A New Deal for Tenants: consultation analysis

Part One: A New Deal for Tenants

Chapter 1 - Ensuring tenants’ voices are heard with an equalities led approach

The consultation paper sets out some of the evidence available about how people with protected characteristics may experience housing, how those needs may differ and what challenges people may face in accessing suitable housing. It states that, as we work towards ensuring people can realise the right to an adequate home and build a housing system that provides people with real options for living in quality, affordable rented accommodation, we must consider how the sector can meet the needs of everyone.

Question 1 – What particular barriers do people with protected characteristics face in their experience of the rented sector?

Around 410 non-campaign respondents made a comment at Question 1. A number of these respondents noted that they did not know what was being referred to and that it would have been helpful to explain what is meant by protected characteristics in the consultation document.

The most frequent view was either that people do not face particular barriers, or that non-campaign respondents were not aware of there being any barriers. This included a number of private landlords who noted that they themselves do not discriminate against anyone when letting their property. It was also suggested that existing PRS laws already provide protections for tenants with protected characteristics.

Another view was that there is a lack of robust national data and information around the challenges faced by people with protected characteristics in accessing or sustaining accommodation in the rented sector. There was also a specific call for more data on existing specialist housing within the PRS, along with information on demand.

The differences between the social sector and PRS were noted, and it was suggested that there should be no inherent barriers in social rented housing in relation to protected characteristics for example, with safeguards provided through legislation and duties in terms of equitable access to housing. However, it was acknowledged that there can be barriers in meeting specific housing needs, particularly where there is high demand and/or when many existing homes are not fully accessible.

There was also a general point that the Scottish Government will be able to effectively address many of the barriers which people with protected characteristics face in the rented sector by ensuring that enough social homes are built to meet housing need. It was suggested that many people with protected characteristics would benefit from being able to access a social home.

Affordability and benefits

Some respondents commented that the principal barrier – and one which could apply to anyone – is being able to afford the rent. In terms of groups that may be particularly disadvantaged by higher rental costs in the PRS, there was reference to women, young and single parents, and those from ethnic minorities being more likely to live in poverty and to be grappling with unaffordable housing and other costs. It was also recognised that many older or disabled people may also be living in poverty, and struggling to meet their housing costs, but that these groups are more likely to be living in either the owner occupied homes or in the social sector.

In relation to younger single people, it was reported that the shared room rate of Local Housing allowance (LHA), which applies to single people under the age of 35, is a barrier to young people on low incomes accessing and sustaining private rented accommodation.

With regards to women, there was reference to the gender pay gap and to a higher proportion of women in receipt of Housing Benefit. Connected to this was the suggestion that one of the main barriers people face is discrimination on the basis that they are receiving housing-related benefits. This included reports, including from people who commented based on their own experience, that some private landlords will not rent properties to people who are in receipt of welfare benefits.

In relation to the social sector, it was reported that the way in which some social landlords require rent to be paid can also lead to additional barriers. It was explained that with Housing Benefit being paid in arrears, some people can be in technical ‘arrears’ if their rent is charged ahead of this payment. It was reported that some housing associations issue their tenants with late rent letters in response to this, which can cause significant distress for some people.

Accessible housing for disabled or older people

It was reported that disabled people not only face barriers associated with affordability and housing-related benefits, but also in relation to the accessibility of the housing stock. It was suggested that this can be an issue across the rented sector but is particularly the case for the PRS.

It was reported that, while Scotland’s older population are most typically represented within the owner occupied tenure, they also account for a significant proportion of tenants within the social rented sector and a small, but growing, group in the PRS. It was suggested that some of the most common housing challenges facing Scotland’s older population are not specific to tenure, but relate to difficulties accessing a warm, energy efficient, accessible and affordable home. It was reported that recent research has shown that only 5% of Scotland’s housing stock is fit for purpose for the over 65 population.

In terms of the social sector, it was reported that accessibility standards have increased significantly over recent decades, with all new social rented homes built to Housing for Varying Needs Standards. However, there remains a shortfall of homes which meet the needs of people with disabilities, and especially wheelchair users. It was reported that research with local authority housing practitioners and disabled housing applicants has found that disabled applicants for social rented housing received inappropriate housing offers, or no offers at all, throughout the 18 months of the study.

In relation to accessible supply overall, there was reference to the upcoming National Planning Framework 4 (NPF4), and it was suggested that without planning policy creating the appropriate framework to deliver specialist housing in the private sector, barriers are created to those with protected characteristics accessing housing. It was also suggested that a focus on accessibility should not only consider the access and internal features of the home but should also assess accessibility of the external environment and the opportunities for people to maintain local support networks.

Other comments addressed adaptation of the existing stock and included that the processes for getting a property adapted can be complex and can vary from area to area. It was also reported that the lack of a cross tenure approach to adaptations can lead to different waiting times.

With specific reference to the PRS, it was reported that private landlords often lack the knowledge and support on how to access appropriate adaptations to help their tenant. However, there was also a view that some private landlords may be less willing to agree to their property being adapted. It was reported that research of adaptation services with the PRS is limited but that anecdotal evidence often highlights that private landlords are reluctant or refuse to undertake necessary adaptations to a property, often leaving vulnerable tenants forced to find an alternative property that may better suit their needs.

Ethnic minority households

The other frequently-referenced group was ethnic minority households. It was reported that ethnic minority households are more likely to be living in the PRS, and may experience barriers in relation to affordability of housing options, restricted access to some private renting options and may also be over-represented in some of the more deprived areas. Further comments included that:

• The higher prevalence of minority ethnic households in the PRS, combined with higher rates of disrepair in the PRS, can impact on health, wellbeing and life opportunities.
• Evidence suggests that people from minority ethnic groups face appreciable levels of discrimination and harassment. The fear or experience of discrimination can influence housing decisions and present a barrier in accessing housing options.

It was also suggested that the accessibility of information and low levels of awareness of available options can be an issue. It was noted that this can be a barrier for ethnic minority households and also for disabled people. Further comments included that while social housing providers are usually well placed to provide information in different formats and languages, the same may not be true for smaller and individual private sector landlords.

Connected to possible language barriers was a concern that they may stop people from understanding their rights. It was reported that experience would suggest that people from minority groups, including those from ethnic minorities, can often end up in poorer quality properties and may be unaware of their rights or of the minimum standards required in the PRS.

Other barriers identified included that:

• Non-UK guarantors are not accepted as part of the application process, putting constraints on migrants and students who may have a support system in another country.
• Those from an ethnic minority background and foreign nationals may be more likely to have no recourse to public funds due to their immigration status and right to reside in the UK. This will mean they are less likely to access social housing and welfare.

Women

With specific reference to the social sector, it was suggested that one of the key barriers is that housing legislation, strategy, policy, planning and budgeting remains ungendered, with a complete absence of any intersectional analysis of women’s housing and homelessness. There was support for plans to undertake a comprehensive audit of current housing and homelessness legislation, to identify where there are gaps in current domestic legislation and where remedies for violations of housing rights can be strengthened, including within the rented sector.

It was noted that in the draft strategy, the only gendered proposals relate either to women experiencing domestic abuse or to women subject to commercial sexual exploitation. It was suggested that there are a number of other highly gendered issues, including affordability, housing standards and security which require a gendered analysis.

With specific reference to women and children experiencing domestic abuse, there was reference to unaffordable rents, unreasonable costs to furnish and set up a home and being forced to move to new areas where they lack family and friendship networks being among the most prominent barriers.

It was noted that there is no reference within the draft rented strategy to Equally Safe: Scotland’s strategy for preventing and eradicating violence against women and girls. It was reported that Equally Safe recognises gender inequality as the root cause of violence against women and girls and makes specific links between gendered abuse, violence and housing. It underlines the requirement for work on violence against women to be interlinked with other Scottish Government strategies, programmes and frameworks.

Other groups facing barriers

There were also a number of suggestions around particular groups of people who may face particular barriers. These suggestions included: included:

• Single parent families.
• Larger families. This was connected to the lack of supply of larger properties referenced above.
• Older people. There was again reference to lack of supply, especially in the PRS.
• Those suffering with mental health issues. It was suggested, for example, that people with mental health issues may experience additional difficulties when trying to negotiate with a landlord over a dispute.
• People with dementia. There was connection to challenges with having a home adapted was referenced here.
• The LGBTQI+ community, and same-sex couples specifically. It was reported that people who identify as LGBTQI+ face additional barriers to renting, as well as being over-represented in the homeless population. It was also noted that disclosing their identity may make them feel more vulnerable.
• People needing culturally appropriate accommodation. This was connected to there being a limited supply of suitable homes.
• Gypsy/Travellers, which may result in members of the community being unable to live their lives in a way that recognises and respects their culture and beliefs. There was specific reference to many Roma families being accommodated in the PRS and to their accommodation often being unaffordable, over-crowded and of poor quality.
• European Economic Area nationals who have got into housing difficulty. It was reported that their eligibility for housing and homelessness assistance is often tied to immigration law and that this means the process of determining eligibility and accessing support is complex and takes a significant amount of time.

In relation to students, it was reported that while being a student is not a protected characteristic, there is considerable anecdotal evidence around students facing a range of barriers to accessing rented accommodation. It was suggested that the best quality housing is often not accessible to students, who either have to move further away from their place of study or accept lower quality housing.

Other points made in relation to students included that:

• There are specific issues with the applicability and enforcement of equality law for student tenants. Equality law does not currently apply to private student accommodation providers in the same way it does to public sector funded student accommodation.
• Disabled students are often paying a premium to access student accommodation. Accessible rooms are usually offered in newer, generally more expensive accommodation and providers charge rates for adapted rooms that are higher than the normal (average) room rate for that development. As a result, disabled students are often unable to access either the cheapest developments or the cheapest room rates in the more accessible higher-specification developments.
• Particular consideration should be given to the housing needs of care-experienced students and estranged students. Students who are care leavers, or estranged from their parents may not have relationships with their families which would enable them to ask them to act as a guarantor for a rented property, making them disproportionately vulnerable to poverty and homelessness.

Finally, it was suggested that it is important to consider intersectionality, with some groups, for example women from ethnic minority communities facing increased barriers and risks. It was also reported that those with intersectional marginality are over-represented in the homeless population.

Other systemic and societal barriers

In terms of the other barriers people can face, some were structural, and some were societal. In terms of systemic barriers there was reference to:

• An insufficient supply larger family homes, and especially those with 4 bedrooms or more. This was said to be an issue across the rental sector. In terms of the groups most affected, there was reference to multi-generational families, and it was noted that these families are more likely to be ethnic minority families.
• Lack of supply in locations which would allow people easy access to the formal or informal support they rely on.
• Digital exclusion, both in terms of having the necessary devices and internet access, and also around being able to find and understand information in a format that is accessible.
• Some agents and landlords in the PRS not identifying protected characteristics correctly and not making reasonable adjustments to support their tenants. It was suggested that a Regulator could provide guidance to agents and landlords and develop a level of best practice across the industry.

In terms of societal barriers there was reference to people encountering prejudice, judgement, preconceptions, hostility, condescension, discrimination, and misunderstanding. Connected to this was a concern that people with protected characteristics may be reluctant to self-identify and that this may mean they do not access appropriate support and advice.

Ensuring that we understand tenants’ experiences and priorities for change to inform effective policy interventions

The consultation paper notes that, while tenant participation and tenant scrutiny in the social sector is well established and developed, tenant participation in the PRS is less well developed.

It suggests that a tenant participation panel would provide a forum in which a wide range of PRS sector tenants, representative of the diverse range of people living within the sector, can share their experience and views and be supported to actively influence national housing policy and legislation in Scotland, contributing to achieving the Scottish Government’s vision for Housing to 2040.

Question 2 – Do you have any suggestions for how we can better meaningfully embed tenant participation within the private rented sector, including for people with protected characteristics, in national and local policy/decision making?

Around 390 non-campaign respondents made a comment at Question 2. Those responding to the Living Rent campaign also endorsed its comments at this question.

Opening observations included that there is a lack of consumer voice in the PRS, and that at present tenants have very few routes to come together to discuss and act upon the issues that affect them. Many non-campaign respondents went on to welcome the focus on embedding tenant participation in the PRS, including by providing opportunities to shape the development of national policy.

However, some non-campaign respondents did note that embedding tenant participant within the PRS will not come without its challenges. There was reference to the fragmented nature of the sector, with a significant component structured around contracts between single tenants and single property landlords. It was suggested that this situation limits current opportunities for participation involving multiple tenants and multiple landlords as interests are contractually exclusive. It was also noted that there is no clear history and culture of tenant participation in the PRS.

Some non-campaign respondents, including a number of ‘Private landlord, letting agent or their representative bodies’ and ‘Individual’ respondents did not agree that embedding meaningful tenant participation is needed or should be a focus. It was suggested that what tenants need is an effective route for remedy when things go wrong, and that the Private Residential Tenancy (PRT) regime already provides this.

There was also a view that the Scottish Government is already engaging sufficiently with tenants; the connection was made to this consultation, with a suggestion that the ‘New Deal for Tenants’ exemplifies the tenant-centred approach being taken to reforming the PRS. It was also noted that PRS tenants have other routes through which they can raise issues, such as by contacting their MSP or MP.

An alternative suggestion was that, while there would be benefits to having enhanced tenant participation in the PRS, in the first instance there is more of a need to provide greater assurances on rights and responsibilities for tenants and landlords. It was suggested that these assurances could be made as part of the development of a PRS Charter which would be based on the principles of the Scottish Social Housing Charter.

Experience and learning

Non-campaign respondents who did support embedding tenant participation within the PRS sometimes went on to note that there is a range of learning and practice that can be drawn on to inform the approach to be taken. It was seen as important that recent models of tenant participation are enhanced and expanded. There was reference to current initiatives being evaluated and good practice shared and encouraged. It was suggested that this work could be done in conjunction with public and voluntary sector bodies.

It was also suggested that lessons and skills around tenant participation from the social housing sector would be very relevant within the PRS, albeit that the challenge will be how to manage and centralise the activity.

A specific suggestion was to review how the Scottish Housing Regulator (SHR) currently structures its participation. Engaging with the TPAS and the TIS was also proposed, as was learning the lessons from the experience of having participation included within the housing legislation and the Scottish Social Housing Charter.

There was also reference to the Joseph Rowntree Foundation’s (JRF’s) Tenant Insight programme, including that JRF has sought to learn from other organisations who have used tenant participation approaches in the PRS, such from Shelter Scotland’s private rented sector panel.

Principles and rights underpinning tenant participation

An overarching comment was that developing a legislative framework and guidance for participation would help ensure that any process was transparent, accountable and open to all. Associated to this was the suggestion that meaningful representation may require a formal mechanism which is recognised within a regulatory regime and has defined roles in terms of addressing standards and operations.

Giving tenants a statutory ‘right to unionise’ was also seen as key. It was suggested that this could be similar to the rights of tenants to set up Registered Tenant Organisations (RTOs). The theme of tenants’ unions is picked up again at the next question.

There were a range of suggestions for key principles that could help support successful tenant participation. These included:

• Making sure all voices can be heard and that all tenants, including those with protected characteristics, have opportunities.
• Building strong, trusted relationships and helping people find commonality.
• Ensuring that tenants can get involved without fear of any repercussions about voicing an opinion.
• Valuing people’s time and ensuring the relationship is not wholly extractive. There was reference to paying people for their time and expertise where possible.

The importance of developing an approach that is inclusive to both tenants and landlords was also highlighted.

In relation to the types of issues that tenants should be able to influence, there was reference to a ‘Tenants First’ approach to decisions, based on fundamental rights to home and quality of life.

Overall approaches

There was a view that a national rather than local approach is likely to be the most successful and that a larger body to represent the interests of private tenants may be the simplest solution. It was recognised that this approach would not help address issues that were specific to a particular area, but it was noted that it could allow tenants to be involved in wider policy decisions. There was reference to working in partnership with the Scottish Government and supporting agencies to deliver the Rented Sector Strategy and oversee the delivery of Housing to 2040.

However, it was also suggested that local level, tenant-led panels should also be established to work in partnership with local authorities and supporting agencies to ensure national and local level policy is delivered appropriately.

A number of non-campaign respondents, from across a range of respondent types, noted their support for the establishment of a PRS tenant participation panel. Reasons given for supporting this approach included that it would seek input from both landlords and tenants.

Some went on to make suggestion about how the panel approach should be taken forward, including that the necessary funding and support should be made available for this to be done meaningfully. It was also noted that three tenant-focused organisations are referred to in the consultation paper – TIS, TPAS and Living Rent. It was suggested that these organisations should be used to develop any tenant participation panel rather than establishing a new group which will only replicate work already being undertaken.

More generally, it was noted that there are a number of consumer groups and bodies that provide support and advice for consumers, such as Shelter Scotland, the Scottish Public Services Ombudsman (SPSO) and Citizen Advice Scotland, could help embed tenant participation within PRS. It was also reported that The Property Ombudsman holds regular Consumer Forums to provide a platform to help address consumer detriment and increase consumer education and awareness.

In terms of other overall approaches, there was reference to:

• Looking at the arrangements for The Resident Panel for the social housing sector in England. It was reported that it provides opportunities for residents of member landlords to be involved in the development of services, as well as giving the Housing Ombudsman feedback on their experience using those services. Membership is made up of residents appointed by the Ombudsman from a cross-section of landlords in the Housing Ombudsman Scheme, ensuring that residents with different types, sizes and locations of landlords are represented.
• Adopting a community organising^[2] model could help establish trust and relationships within communities. Community organising tools that could be used to increase tenant participation might include: conversation cafes held in community spaces; setting up stalls at community events and spaces to discuss tenant participation; and skill-building training aimed at empowering tenants to galvanise the participation of other tenants.
• Engaging with groups and organisations that are already established and who are already working with and/or supporting people. It was suggested that this approach could be particularly useful in terms of engaging with tenants with protected characteristics.
• Local authorities encouraging the use of existing mechanisms, such as local Tenants and Resident’s Federations or Organisations.

Engaging with tenants, including those with protected characteristics

With specific reference to ensuring that the views of tenants with protected characteristics are taken into account, it was suggested that establishing trust and a two-way relationship is crucial for reaching out to those most marginalised.

Developing processes that reflect what tenants want was also seen as key to sustained and meaningful engagement. There was a call for specific work with tenants, including those with protected characteristics, to better understand what they want by way of involvement and consultation and how best to meet those needs. Working with existing community and support organisations was one of the ways in which respondents thought that a range of different types of people could be involved.

There was specific reference to students, single parents, key workers, migrants, working families with children, older and disabled people and those from ethnic minorities, students, and those working in agriculture with tied worker tenancies. It was also suggested that any initiatives should explicitly aim to include:

• Those with experience of homelessness who have moved into a PRT.
• Families at most risk of living in poverty in Scotland (disabled families, lone parents, Black, Asian and minority ethnic groups, larger families, families with a child under one and families where the mother is under 25).
• Students. It was suggested that students are often forgotten, despite being a significant proportion of those renting in the PRS. It was reported that they have particular housing needs, and that any panel or other models proposed should take these into account.

There were also a number of references to ensuring that the necessary support is available, including to enable people to access training and develop new skills. It was suggested that:

• Resourcing and working through trusted partner organisations – often smaller, locally based organisations close to the communities we hear from least often – will be important.
• Tenant participation groups should have active involvement from duly qualified persons, such as chairs to the First-tier Tribunal for Scotland (Housing and Property Chamber) (the Tribunal).

Specific approaches

Other general suggestions included that online engagement can be very effective, especially now we can draw on learning from moving activities online during the COVID-19 pandemic. It was suggested that it can be more inclusive, including for people who may have been less comfortable in a more traditional meeting setting, or faced barriers to participation if having to travel. However, it was also noted that:

• Using the new technology, and getting the best out of it for participants, does require new facilitation skills and a different approach.
• Offering different ways to engage is key. It was reported that some people will prefer quick, fast paced engagement, for example digital surveys and instant feedback mechanisms; whereas some will prefer in person discussion and workshop events.
• It must be recognised that reliance on digital options may restrict access by certain protected characteristic groups, including based on age, ethnicity or disability. One respondent reported that their tenant survey has indicated that some tenants prefer written rather than electronic communication.

There were also a number of other specific suggestions, including around making initial contact with PRS tenants. These included:

• Utilising existing community hubs, such as schools and libraries, to share information.
• Using social media platforms and relevant apps to help reach a wider demographic.
• Supporting landlords and letting agents to promote tenant participation channels.
• Requiring landlords to inform tenants about how they can be involved in wider policy decision making as part of the sign-up process.
• Landlords obtaining permission to pass on a tenant’s contact details to allow local authorities to interact and communicate directly with tenants. It was suggested that a question could be added on to the model tenancy agreement – ‘Can your email address be passed to the local authority for consultation purposes’?
• Allowing access to tenant contact details through deposit schemes.
• Considering the potential of using the Scottish Government’s Private Landlord Register to alert private tenants of Scottish Government policy consultations affecting the PRS.

With specific reference to people who have experienced homelessness, it was suggested that access schemes, like the Help to Rent scheme Crisis delivers in Edinburgh, can provide a route through which to engage with tenants.

Potential challenges or notes of caution

In terms of general notes of caution, a frequently-made point was it will be important that tenant participation groups share accurate information in terms of current law or best practice. It was reported that this not always the case at present, and that information provided by third sector advice agencies can also be misapplied or misunderstood. It was suggested that any advisory board set up needs to be accurate and consistent in the information it provides.

There was also a concern about the resources required to support tenant participation in the PRS and it was suggested that local authorities lack the necessary resources. There was a call for the Scottish Government to provide the essential tools which allow local authorities to engage with their local private renter population.

The role of tenants’ unions in tenant participation and influencing decision making processes and policies

Question 3 – What are your views on the future role tenants’ unions could have in supporting tenants to actively participate in decision-making at a national and local level in Scotland?

Around 490 non-campaign respondents made a comment at Question 3.

Challenges and considerations

Some of these comments highlighted issues that respondents saw as problematic around some of the current approaches to tenant participation. They included views that much current tenant participation involves self-selected representatives, or individuals brought together into forums by charities or government. It was suggested that this is often quite unrepresentative, and it can be a flawed and undemocratic process. There were specific concerns about the current imbalance of power between social landlords and RTOs.

Moving forward, and at Question 2, it was noted that there are challenges associated with creating effective engagement mechanisms for a more transient PRS population. It was suggested that consideration needs to be given to enabling opportunities for PRS tenants to not only become involved but to maintain and sustain involvement.

In terms of possible pitfalls or challenges that will need to be addressed if taking forward a tenants’ union-type approach, comments included that:

• It could lead to a greater focus on the needs of those tenants with the time and capacity to form unions, potentially leaving more vulnerable people behind.
• There is a risk that it could act as a barrier, with a union considered as being representative of all tenants and becoming seen as the only way to be heard.

It was also noted that there is currently a network of mechanisms for tenant involvement in the social sector, including RTOs and Regional Networks, and it was reported that social landlords devote considerable resources to engaging with their tenants. There was reference to tenant groups, tenant scrutiny panels, consultation meetings and housing officer surgeries. It was also noted that tenants play a key role in the governance of housing associations, with the vast majority having at least one tenant representative on their governing body. It was suggested that the potential of tenants’ unions needs to be understood and considered within this context.

For some, these existing mechanisms are already sufficient. With specific reference to the PRS, it was reported that the Tribunal is a powerful tool for tenants, and it was thought to be unclear how a tenants’ union would assist further.

Those raising reservations sometimes went on to suggest alternative ways forward including that it may be more worthwhile to expand consultation and participation opportunities in more diverse and different ways to reach different sections within the sector.

Some of those raising concerns expressed their clear disagreement with tenants’ unions having a greater and/or formalised role. These non-campaign respondents tended to be either ‘Private landlord, letting agent or their representative bodies’ or ‘Individuals’. Further comments included that tenants already have too much power compared to landlords, or that they would avoid renting to union members.

Also from a private landlord perspective, it was suggested that initiatives to support tenants in understanding and exercising their rights are welcomed but that it is important that those advocating for tenants commit to operating in a constructive and reasonable way. It was also suggested that if a union did not act objectively and reasonably, they should be held accountable for any losses a landlord suffers as a result.

Some ‘Private landlord, letting agent or their representative bodies’ respondents reported that their experience of existing tenants’ unions had not been positive, with reports of unrealistic and unreasonable demands being made.

Potential of the tenants’ union approach

A number of respondents either noted their support for tenants’ unions having a role in supporting tenants to participate in decision-making or welcomed the potential of tenants’ unions being considered and explored.

In terms of that consideration, it was suggested that a wider review of representative organisations already in place across sectors, and also across countries, should be undertaken. It could look at any gaps and consider options. It was also suggested that the social sector could be used as a baseline, noting the differences between the role and nature of social and private landlords.

Further comments included that anything which encourages participation is a positive thing and it was also noted that there is scope for improvement in relation to awareness of rights and responsibilities amongst tenants, particularly in the PRS. It was also suggested that:

• Tenants’ unions appear to work well in various European Countries, USA and Australia, particularly in relation to affordable rent levels. However, there was also a note of caution that, while the consultation paper suggestions that the Swedish model of tenants’ unions might be something that could be replicated in Scotland, it is important to caveat comparisons with the differences in the housing systems.
• They are generally membership organisations that bring together tenants and their associations in a far more democratic and accountable manner than many other forms of tenant participation.

Respondents also considered the focus and function of tenants’ unions, with suggestions including that they could or should:

• Represent the views of tenants in national discussions and local strategy development. A ‘Tenants’ and residents’ groups and their representative bodies’ respondent also reported that they have national forums where delegates create, discuss, and vote upon policy as well as discussing how to respond to consultations such as this one.
• Act as expert bodies who can help advise and advocate for tenants who are experiencing issues with their landlord and who need help and support to exercise their rights. A ‘Tenants’ and residents’ groups and their representative bodies’ respondent reported that they respond to tenant issues in their own homes on an independent basis.

Specific suggestions included that they could represent tenants in referrals to the Housing and Property Chamber, engage with the Regulator on conditions in the PRS, and challenge poor and illegal practice.

Key features of a tenants’ union approach

Respondents also pointed to issues that will need to be considered if the tenants’ unions are to play a greater, or more significant, role in the future. These included that meaningful representation may require a formal mechanism which is recognised within a regulatory regime and has defined roles in terms of addressing standards and operations. As at Question 2, it was suggested that tenants’ unions could be supported by a ‘right to unionise’.

Other comments or suggestions about the overall approach included that:

• Any process to determine formal mechanisms for tenants’ unions should involve existing organisations.
• How tenants’ unions would be structured, supported and funded will need to be considered, along with ensuring there is a diversity of participation structures and arrangements.
• They should be wholly independent organisations. It was also suggested that they should be apolitical.
• The onus should be on a bottom-up approach and particularly developing tenant involvement at a local neighbourhood level.
• Tenants’ unions should follow a model similar to industrial relations regarding consultation.

Other comments included that there would need to be safeguards to ensure that tenants are not discriminated against for being members. People should not have to disclose that they are members of a tenants’ union unless as part of a formal process involving a tenants’ union.

The issue of membership fees was also raised. It was reported that tenants’ unions typically charge around £10 a month for membership. There was a concern that this would be unaffordable for many, and more generally would discourage tenants from joining a tenants’ union. It was also suggested that any charge for tenant participation would simply not be viable for the majority of social tenants.

In terms of the resource implications for landlords, it was suggested that any requirements on individual private landlords to undertake more engagement with tenants would need to be proportionate.

Awareness of rights and support to exercise them.

Question 4 – How best can we ensure people are aware of their rights and how to exercise them in:
a) The private rented sector?
b) The social rented sector?

Around 560 non-campaign respondents made a comment at Question 4a, with around 225 commenting at 4b. A number of the comments were general to both sectors, and some respondents cross-referenced between their responses to parts a) and b).

A general observation about awareness raising was that it works best when it taps into existing networks, where they already exist, rather than try to create new ones. There was reference to local authorities, and particularly services, housing associations, private landlords, third sector organisations, lenders and Community Planning partners, as well as locally-based groups offering information, advice and referral services within communities. However, it was also suggested that organisations must be fully engaged and resourced to cope with any resultant increases in demands placed on their services.

There was also a call for housing education to be embedded into the education curriculum, ensuring that young people are aware of how the housing system works, and their rights in regard to it, before potentially taking on a tenancy of their own.

Another general observation that applied to both the PRS and social sector was that many older people have difficulty understanding their housing options and are often unsure where to get information and advice. It was noted that they may rely on non-digital means of getting support and information and that a high degree of digital exclusion among older people in Scotland should be remembered and considered.

Private rented sector

A number of non-campaign respondents commented on experience and evidence that points to low levels of awareness of their rights among PRS tenants in particular. There was specific reference to the RentBetter research programme’s findings that people are not aware of what tenancy they are on, what rights this brings or how to exercise them.

However, there was also a view that there is ample information available on tenants’ rights and how to exercise them for those who wish to understand them. It was noted that they are covered in the PRT model lease (in both summary form and full detail), PRT guidance notes, pre-action requirement letters, on mygov.scot, Shelter Scotland and Citizen’s Advice websites to name but a few. It was also noted that the Scottish Government has also recently launched a new website which sets out tenants’ rights in a clear and simple manner.

A frequently-made point was that even if tenants know their rights, they may struggle to have these enforced, partly due to a lack of resources compared to their landlord, and partly because they fear potential repercussions. There were also reports that those who have used the Tribunal find it to be inaccessible and intimidating. It was also reported that people on low incomes and with limited financial power are unlikely to exercise their rights due to the limited supply of housing, limited choices of affordable alternatives and the fear that challenge may result in the loss of their current housing.

A number of non-campaign respondents identified a range of ways of approaches or actions that might help ensure that PRS tenants are better aware of their rights and how to exercise them. An overarching observation was that multiple bodies must be involved in promoting rights awareness including the Scottish Government, local authorities, bodies which come into frequent contact with tenants such as tenancy deposit schemes (TDS), as well as independent advice organisations such as the Citizens Advice network. It was suggested that the package of work should be joined up centrally, with clear and consistent information provided to all tenants.

Tenants’ unions and tenant participation

The most frequently-made point, reflecting some of the themes raised at the previous question, was that supporting tenants through tenants’ unions is essential for achieving both awareness and the ability to exercise rights.

Further comments were that tenants’ unions would be a suitable forum to expand on the awareness of tenancy rights as well as what the current legal requirements and expectations are for landlords.

The potential of existing local and national tenant participation structures and vehicles was also highlighted.

Accessible information and advice

Non-campaign respondents were most likely to refer to the importance of ensuring that tenants are provided with the necessary information from the outset, with further comments including that landlords should provide this information to tenants at the start of their tenancy. One suggestion was that this information could be part of the standard PRT, for example by using a QR code which links to an online resource(s).

It was noted that every tenant must be provided with a Tenant Information Pack (TIP) which provides all relevant information and that there could be a requirement to ensure that the information on rights is prominent. Non-campaign respondents also referenced providing a summary of rights at tenancy sign-up, and annual follow-ups to ensure people were aware of their rights.

Non-campaign respondents also commented on the need for accessible, free, and independent information and advice. Specific comments included that:

• Independent advice agencies need greater capacity, which will require more funding. It was also suggested that there needs to be training for advice providers and a focus on capacity building for organisations that provide housing advice and support. There was a particular concern that there is currently a lack of training for providers in how to support tenants through the Tribunal system.
• The advice that local authorities can provide through Landlord Registration Services could be more widely promoted.

A ‘Local authority’ respondent reported that their PRS Housing and Welfare team provides support to PRS tenants in relation to their rights and also signposts to relevant agencies, such as law centres. There was also reference to student associations often playing a key role in educating students on their rights as tenants.

Other comments or suggestions around awareness raising and access to information included:

• Making use of the national landlord register. It was suggested that the Scottish Government should be promoting and supporting local authorities to communicate with private tenants on their rights, via their details recorded in the register.
• Running both national and localised publicity campaigns. These could utilise a range of methods, recognising that digital exclusion can affect access to information. There was reference to both television and radio campaigns.
• Providing a PRS-focused website. It was also noted, however, that there is already good information on a number of online sites including those of Shelter, mygov.uk and some local authorities. It was suggested that all social housing providers could include links to these sites on their own websites.
• Providing summaries of key information in different languages and formats that are downloadable and can be accessed by both landlords and tenants.
• Using targeted approaches for certain groups, including for those who share a protected characteristic or who face particular challenges or disadvantage.
• Regular updates and information briefings could be sent to those who are privately renting via the new regulatory body.

It was also suggested that there could be a requirement to signpost to independent agencies as part of any pre-action requirements.

Enabling people to exercise their rights

As noted above, many respondents raised concerns that tenants may struggle to exercise their rights. In terms of enabling them to do so, it was suggested that we need processes and services which recognise the clear power imbalances between tenants and landlords.

One suggestion was that, to provide clarity in relation to service delivery and expectations, consideration could be given to the development of a statement of rights, to complement the model PRT agreement, in which tenant and landlord rights and responsibilities could be summarised. It was also suggested that streamlining legislation could also help tenants keep track of their rights and avoid them having to deal with multiple pieces of legislation.

There was also reference to improving tenants’ access to justice. Specific suggestions included:

• Introducing clear minimum penalties and compensation for breaches of housing standards, housing law or other housing-related regulations.
• Funding to support tenants’ access to justice. There was a specific suggestion around supporting tenants at the Tribunal. Tools which may help tenants actively participate and put forward their case using the Tribunal system, such as a digital tool or advice pre-hearing, were also proposed.
• Reversal of the burden of proof, especially in relation to grounds for eviction.
• Well-resourced enforcement teams in each local council.

It was also suggested the data routinely recorded and published by the Tribunal should be expanded, making information more freely available and allowing for better analysis of the Tribunal process and a deeper understanding of tenants’ experiences.

Landlord-focused suggestions

There were also comments related specifically to sharing information with landlords, including that local authorities could include relevant information in newsletters or other communications for registered landlords.

There was reference to working with private landlords, via local landlord registration and private sector housing teams, to develop forums and networks which encourage and support good awareness amongst landlords of tenants’ rights and how they can support tenants through high quality service and information provision.

It was also suggested that organisations, such as Landlord Accreditation Scotland, and representative bodies, such as The Scottish Association of Landlords, could continue to play a role in promoting good practice among private landlords.

Social rented sector

It was noted that the context and challenges for the social sector are very different to that of the PRS, including a view that there are already robust processes to ensure that social tenants are aware of their rights. Examples given included the provision of advice and information at tenancy sign up, initially through a new tenant video, and then through tenancy newsletters and ongoing tenancy visits. There was also reference to tenants’ handbooks and guides to policies and processes being available online. The importance of information being accessible and up to date, the use of plain language and a range of formats were also highlighted.

Other mechanisms or approaches noted included:

• Tenant participation strategies.
• Housing scrutiny initiatives.
• Existing tenants and residents’ associations.
• The work of housing officers and welfare or money advice services, including support services provided by third sector providers.

The role of the SHR in safeguarding and promoting the interests of social tenants was also highlighted, as was the role of the SPSO. It was also noted that many housing associations have a Complaints Policy and Procedure that is based on the SPSO’s model complaints handling procedures.

It was also reported that social landlords are already required to comply with pre-action requirements before raising repossession proceedings. However it was noted that, as with the PRS, social tenants may know their rights but may struggle to have these enforced.

Non-campaign respondents identified a number of areas where they saw the potential for improvement. These included through a specific focus on improving involvement from individuals and groups who are under-represented in existing tenant participation structures.

Further comments included that the most straightforward method of communicating housing rights is through the already existing SHR and the Scottish Social Housing Charter. It was suggested that together they provide a fundamental basis for promoting and ensuring the housing rights of older and vulnerable tenants, within the social sector, are protected. A specific suggestion was that the Social Housing Charter should be updated in a future review with a new outcome focused on the Housing Needs of Older People, which could help signpost and highlight best practice for social landlords to adhere to, ensuring their services reflect the needs of older people.

In terms of general approaches that could be used to help raise awareness or enable people to exercise their rights, many of the suggestions included:

• Using a range of approaches, but always keeping a focus on the accessibility of the information that is being shared.
• Having clear and accessible processes and services which recognise the power imbalances between tenants and landlords. This would mean supporting tenants to raise issues with housing officers, clear lines of accountability and clear fines for landlords who fail to comply with their obligations.
• Training and information provision to partner organisations, third and independent sector organisations may also be beneficial in developing a greater awareness amongst wider sectors in relation to tenants’ rights.
• The use of Neighbourhood Coaches, an approach that can be proactive in making tenants aware of their rights and how to access them.

Specific suggestions included that:

• Tenants should be given clear information, or should be signposted to information, on the repairing standards, tenancy rights, refurbishment rights and any other relevant housing rights. This should include how to raise any issues with their landlord.
• If tenants raise an issue, they should be informed of when they can expect a response, and what to do if the issue is not addressed satisfactorily.
• Those accessing homeless assistance should be made aware of their rights to temporary accommodation, that is suitable in terms of the Unsuitable Accommodation Order and any revised standards, by making information available on websites and as part of case management.

Chapter 2 - Enhancing rights within the existing tenancy framework

Review and consider potential reforms to the current grounds for repossession under the Private Residential Tenancy

The PRT has been in place since December 2017 and, as the consultation paper notes, the Scottish Government made a commitment to review the 18 grounds for eviction after the tenancy had been in operation for five years.

Grounds for eviction

1. Landlord intends to sell
2. Property to be sold by lender
3. Landlord intends to refurbish
4. Landlord intends to live in property
5. Family member intends to live in property
6. Landlord intends to use for non-residential purpose
7. Property required for religious purpose
8. Not an employee
9. No longer in need of supported accommodation
10. Not occupying let property
11. Breach of tenancy agreement
12. Rent arrears
13. Criminal behaviour
14. Anti-social behaviour
15. Association with person who has relevant conviction or engaged in relevant anti- social behaviour
16. Landlord has ceased to be registered
17. HMO licence has been revoked
18. Overcrowding statutory notice

Question 5 – After 4 years of use, how well do you think these grounds are working? Is there anything that you would like to see changed?

Please explain your answer with reference to the relevant ground(s).

Around 640 non-campaign respondents made a comment at Question 5.

Some of these non-campaign respondents simply noted that they thought the current grounds work well or that the current arrangements do not need to be changed. Further comments included that the grounds for eviction strike the right balance in terms of the rights of tenants with regards to security of tenure, and the rights of landlords to use their property as they wish. It was also suggested that having grounds which are mandatory or discretionary makes it easier to understand what is required.

Others suggested that the grounds, along with how they are operating, need to be reviewed. Further comments included that any review should be human rights-led and could also look at the process for eviction to ensure that spurious evictions do not take place. There was specific reference to looking at the use of grounds 4 and 5.

There was also thought to be a need to collect additional data to help understand the potentially complex issues that lead to eviction more generally, and specifically the impact of COVID-19. There was specific reference to looking both at the personal and circumstantial information often detailed in the decisions of the Tribunal but also to looking at the wider socio-economic reasons behind evictions.

Mandatory or discretionary

A commonly-raised issue was around the balance between mandatory or discretionary grounds.

It was noted that all grounds for evictions became discretionary during the COVID-19 pandemic (under the Coronavirus (Scotland) (No. 2) Act 2020), giving the Tribunal greater ability to rule on eviction cases and a chance to consider the impacts of an eviction on tenants. A frequently-expressed view was that it is vital that all eviction grounds remain as discretionary.

Further comments included that keeping the grounds discretionary would allow the Tribunal to take a full range of factors into account in their decision making, balancing the needs of the tenant and the landlord in each individual case. It was also suggested that making these temporary measures permanent will improve standards for tenants and landlords. The ability to exercise discretion was seen to be of particular importance for the rent arrears ground (ground 12) which, it was suggested, should be considered within the context of adherence to the pre-action requirements and whether it is reasonable and fair to evict following these steps.

An alternative perspective was that the mandatory status of some grounds should be reinstated, including to avoid risking lender, institutional, and private investment confidence. It was also noted that if all the grounds become discretionary, many more cases will go to the Tribunal; there was a concern that it would not have the resources to cope with the additional workload and cases, leading to delays.

There was again reference to the rent arrears ground (ground 12) but in this case that it being discretionary could lead to tenants being in a property they cannot afford, and accumulating large debts, rather than getting help from the local authority to find something more affordable.

Removal of some grounds

Some respondents also commented on the current list of grounds overall, including suggesting that it is too wide and that many of the current grounds do not relate to the effective management of rented housing. One perspective was that they are underpinned by a desire to support landlord and property rights at the expense of the right to adequate housing. An associated point was that grounds which relate to aspects of business change or failure should be removed. It was suggested that this applies to grounds 1 to 9 and 16 to 19. The most frequent suggestion was that grounds 1 to 6 should be removed.

Other general comments or suggestions included that:

• The Scottish Government may wish to give further consideration to introducing a minimum term for certain grounds, but with careful consideration of whether there would be an impact on landlords’ willingness to enter into the sector.
• Landlords should be required to give tenants four months’ notice for all the no-fault grounds.
• The current legal structure places the responsibility on the evicted tenant to identify that the landlord misled the Tribunal. Responsibility should instead be placed on other parties, including the Tribunal, local authorities or the proposed regulator.

Specific grounds

1. Landlord intends to sell

Ground 1 was one of the more frequently-commented on, with points including that, it should be removed. If it is not removed, there were calls for tenants to be able to stay in the property through:

• Measures to enable landlords to sell with sitting tenant(s) or to sell to the existing tenant(s). It was reported that there are letting agencies which specialise in the sale of properties of sitting tenants and that opportunities for sharing and demonstrating best practice on this should be encouraged by the Scottish Government.
• Local authorities and local housing associations having a first right of refusal to purchase the property. It was suggested that this approach would allow them to assess whether buying the property would serve their goals of providing genuinely affordable housing locally.
• Developing a national scheme to assist in the purchase of properties where there is a sitting tenant.

It was also suggested that if selling with sitting tenants is not possible, the landlord should provide relocation compensation to the tenant.

A different perspective was that landlords need the ability to sell with vacant possession for reasons including, for example, releasing a capital sum for retirement or paying off debt. It was suggested that restricting the ability to recover possession for vacant sale might deter some from letting in the first place. It was also reported that the capital value of a property is going to be significantly impacted if a landlord cannot sell a property with vacant possession.

Other comments focused on the potential misuse of this ground. There was reference to tenants being evicted using this ground, with the property then not being sold, or it not being possible to sell. It was suggested that ground 1 may need to be investigated further as it may be an ‘easy’ way to end a tenancy.

In terms of strengthening ground 1, or ways of ensuring it is not misused, there was reference to:

• Ground 1 remaining discretionary (as under the Coronavirus (Scotland) (No. 2) Act 2020) and it should not be used within the first two years of the tenancy.
• The need for good evidence to show that there is an intention to sell the property. One option suggested was that the landlord must be actively marketing the property for sale at an appropriate market price in accordance with professional advice. Mandating the provision of a recent home report was also suggestion.
• A condition could be inserted whereby the tenant must have secured suitable alternative accommodation before the landlord can take back the property.

2. Property to be sold by lender

As in relation to ground 1, there was a suggestion that the Scottish Government should consider measures that would ensure that the home continues to be occupied by the current tenants. This included that lenders could be required to offer to sell property to the sitting tenant first.

A different view was that ground 2 should be disposed of without a hearing. It was suggested that offering the option to apply to the court for accelerated possession, and having the case decided based upon what the landlord, tenant, and lender have provided in writing, will likely lead to swifter decisions.

3. Landlord intends to refurbish

There was a concern that ground 3 incentivises landlords to evict tenants if they ask for large repairs or refurbishment work and there were calls for it to be removed.

In terms of working being carried out, a temporary move into alternative accommodation, with the tenant’s agreement, was seen as preferable. However, it was suggested that this should only be necessary if the refurbishment limits access to necessary cooking and washing facilities or will cause unreasonable disruption to the tenant. It was noted that the tenant should not incur any costs resulting from a temporary move.

If evictions were still to be permitted using ground 3, it was suggested that the landlord should update the Tribunal three months after the eviction date, with evidence documenting refurbishment works. If this was not forthcoming, the landlord should be required to pay compensation to the tenant based on monthly rent.

4. Landlord intends to live in property & 5. Family member intends to live in property

Comments often referenced grounds 4 and 5 and included that, if a landlord or a member of their family intended to move into the property, this should be evidenced by the submission of proof of occupancy within a reasonable time after the eviction. It was suggested that failure to do so should result in compensation being paid to the evicted tenant.

Suggestions specifically about ground 5 included that:

• The definition of family member should be amended to include ex-husband/ex-wife.
• The minimum period of residency for the family member should be increased from 3 to 6 months.
• There should be an extended notice period if there is no other issue with the tenancy.

6. Landlord intends to use for non-residential purpose

Clarification around what is covered under non-residential was requested. It was also suggested that the evidence required to use this ground should be strong enough to prevent it being used improperly.

7. Property required for religious purpose

A small number of non-campaign respondents raised concerns that ground 7 is not operating as intended and is not giving due regard to the legitimate requirement of religious organisations to regain vacant possession of a property.

The first of two main problems cited was that religious organisations’ ability to recover possession of tenanted houses, in the event of these being required for use by a religious worker, now only applies to properties which had previously been occupied by a religious worker. It was suggested that an appropriate balance of interests has not been achieved and that ground 7, as currently drafted, removes the possibility of flexibility, which can operate to suit both landlord and tenant in many situations.

The second concern related to the removal of this ground as a mandatory ground of eviction and the proposal to make this change, brought into force as a result of the pandemic, permanent. It was suggested that there is no good policy reason to prioritise a tenant's right to remain in a manse, or other house acquired for the sole purpose of housing a religious worker, over the right of the religious organisation to recover possession so as to meet that purpose. There was a call for ground 7 to remain a mandatory ground of eviction.

The only other point raised was whether a property would require planning permission if it was to be used for religious purposes? It was suggested that, if that is the case, planning permission should be acquired first before an eviction notice can be served.

8. Not an employee

Comments in relation to ground 8 included that it is important it remains a mandatory ground.

Further comments echoed some of those made at Question 6 relating to the importance to rural businesses of being able to make accommodations available for employees. It was suggested that the ability to recover a house from a former employee can be essential to being able to recruit another. It was suggested that this could have serious repercussions for the functioning of some businesses which could impact on animal welfare and other health and safety issues.

9. No longer in need of supported accommodation

There were no specific comments about ground 9.

10. Not occupying let property

Comments that ground 10 has helped landlords in difficult situations where tenants leave.

It was also noted that there are many reasons why a tenant may have a second home and that, if the property is vacant for long periods but the tenant is paying rent and ensuring the upkeep of the property, they should be allowed to remain. An associated point was that where it is believed that illegal activity is being conducted in the empty property, grounds 11, 13 and 15 can be used.

11. Breach of tenancy agreement

Comments on ground 11 included that it should be considered for removal. It was suggested that the only breaches of a tenancy agreement which should lead to the risk of eviction are non-payment of rent or serious anti-social or criminal behaviour, and that these are covered sufficiently by grounds 12 and 13.

Another suggestion was that the landlord and tenant should provide proof relating to how the breach in tenancy has impacted on the property, neighbours and/or the tenant. An example given was that keeping a pet may be against the tenancy agreement, but if the tenant would be allowed to prove that the pet has acted as a mental support to keep them in a job, pay rent and that the pet has not caused any detrimental damage to the property, then eviction should be reconsidered by the Tribunal.

12. Rent arrears

Ground 12 was the most frequently commented on, including by a number of ‘Private landlord, letting agent or their representative bodies’ and ‘Individual’ respondents.

A number of them commented that, when the PRT was being developed, landlords were assured that it would provide them with a quicker way to end a tenancy where the tenant was not paying their rent. This included being allowed to serve a Notice to Leave for rent arrears as soon as a tenant fell into rent arrears then apply to the Tribunal for an eviction order once the tenant had owed some rent for three months.

However, it was reported that the Upper Tribunal has ruled in two separate judgements that this is not the case and that Notice to Leave cannot be served until the tenant has owed some rent for three months. There were concerns that these delays can be very costly for landlords, as the entire process can take around 8 months. There was a call for the legislation to be amended to allow a landlord to serve notice once a tenant has owed some rent for one month and landlords enabled to apply to the Tribunal for an eviction on ground 12 once the tenant has owed some rent for two months.

Other comments or suggestions included that:

• Allowing rent arrears to accrue places tenants in more debt, which may affect their chances of securing a follow-on tenancy. Ideally, as soon as a tenant is in financial difficulties, they would receive support to rectify this.
• It is essential that ground 12 ties in directly with the Prevention of Homelessness Duties. It was suggested that landlords should be making efforts to prevent rent arrears and prevent the ending of tenancy at various stages, prior to taking a case to the Tribunal.
• Rent arrears should be a mandatory ground, provided the landlord can demonstrate that they have tried to work with the tenant in relation to payment plans.

13. Criminal behaviour

The most frequent comment was that ground 13 should be removed in the light of ensuring everyone has an equal right to housing. It was noted that, if a homeowner is judged for criminal behaviour, they do not lose their home and it was suggested that when someone commits a criminal offence, this is and should be dealt with within the criminal system and should be kept independent of their housing status.

14. Anti-social behaviour

It was suggested that it should be possible for landlords and neighbours to gather evidence to satisfy ground 14. This was connected to a report that local authority anti-social behaviour teams will often not engage with the issue.

15. Association with person who has relevant conviction or engaged in relevant anti-social behaviour

Comments on ground 15 included that it should be discretionary and should only be considered if there is significant input from public protection agencies. It was noted that there are a range of reasons why an individual may be associating with people with convictions or who engage in anti-social behaviour, and that possibility of coercive control, domestic abuse or cuckooing all need to be considered. It was suggested that, in the first instance, the Prevention of Homelessness Duties must be used to ensure that all necessary support has been offered to the tenant prior to any eviction.

However, it was also suggested that other members of the community need to be protected from anti-social behaviour and that a more streamlined court process needs to be in place for evictions being raised as a consequence of criminal or anti-social behaviour.

16. Landlord has ceased to be registered & 17. HMO licence has been revoked

There was a view that grounds 16 and 17 should be considered for removal as they are not the fault of the tenant. Suggested alternatives to a tenant being evicted were:

• If a landlord fails to meet their obligations regarding registration or Houses in Multiple Occupation (HMO) licensing, the landlord should be responsible for re-housing the tenant, covering all relocation costs and paying compensation.
• If a local authority refuses a landlord’s registration request when there is a sitting tenant, they should assess whether buying the property from the landlord is an option.
• The tenancy could be taken over and managed by a local authority or housing association while any registration or licencing issues are resolved. A specific suggestion was the use of a private sector leasing scheme.
• Exploring whether the property could be sold with a sitting tenant.

It was suggested that the grounds should be revised to outline that evictions should be a last resort and tenants’ welfare and needs prioritised.

It was also suggested that local authorities should review their enforcement mechanisms and increase the funding for enforcement teams to ensure rigorous enforcement of the registration and HMO licensing.

18. Overcrowding statutory notice

As in relation to grounds 16 and 17, it was suggested that ground 18 should be considered for removal as it is not the fault of the tenant.

There were also process-related related comments, including:

• A query about the status of the overcrowding statutory notice, given that it is contained within legislation which has not been enacted (Part 3 of the Private Rented Housing (Scotland) Act 2011.
• That procedures should be put into place to help rehousing. It was reported that occupiers can apply for an overcrowding license under the Housing (Scotland) 1987 Act but that it is at the discretion of the local authority. It was suggested that it is unclear whether and how provisions have been applied in the past.

Delivery issues

A small number of non-campaign respondents also commented on the processes and resources connected to eviction proceedings.

There was a view that, while the grounds for evictions are adequate, the way they are applied in practice has been challenging due to resource constraints within the Tribunal. It was reported that this has created backlogs and delays to considering cases, which has resulted in further losses to landlords and reduced confidence in legislation being balanced and applied fairly. Other comments included that to ensure that the Tribunal system works fairly for tenants, there must also be improved access to advice and legal aid.

The Scottish Courts and Tribunals Service made a general observation that what is proposed in terms of the existing grounds for repossession, illegal evictions and new restrictions to evictions in winter will impact on them in terms of: Court and Tribunal time and programming; associated staff training and accommodation resources; and costs involved in relevant information and communication technologies (ICT) changes.

Question 6 – Are there any additional specific grounds for ending a tenancy that you think should be added?
Please explain your answer.

Responses to Question 6 by respondent type are set out in Table 2 below.

Table 2

Q6: Are there any additional specific grounds for ending a tenancy that you think should be added?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group		1		2	3
Housing, legal or advice agency or professional or representative body		5		3	8
Local authorities and their representative bodies	2	17	1	3	23
Other private sector		1		2	3
Other professional or representative body	2	2		1	5
Private landlord, letting agent or their representative bodies	27	16	2	10	55
Public body or agency			1	7	8
Religious group or body	3			1	4
Social landlords and their representative bodies	2	4	3	3	12
Tenants’ and residents’ groups and their representative bodies	1	1	4	3	9
Third sector organisation	1		1	20	22
Union, student or campaign group	1	8		9	18
Total organisations	39	55	12	64	170
% of organisations answering	37%	52%	11%
Individuals	226	177	129	224	756
% of individuals answering	42%	33%	24%
Total non-campaign respondents	265	232	141	288	926
% of all non-campaign respondents	29%	25%	15%	31%
% of all non-campaign respondents answering	42%	36%	22%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6383	232	141	1678	8434
% of all respondents	76%	3%	2%	20%
% of all those answering	94%	3%	2%

A very substantial majority – 94% of those answering the question – thought that additional grounds should be added. The proportion of non-campaign respondents thinking that additional grounds are required dropped to 42% overall, with 37% of organisations and 42% of individual respondents identifying a requirement for additional grounds.

Around 410 non-campaign respondents made a comment at Question 6. Those who did not think any additional specific grounds should be added tended to note simply that they agreed with the current 18 grounds, or that they did not think further grounds were necessary if their views on mandatory or discretionary grounds (covered at Question 5) are taken into account.

In terms of other suggestions for additional grounds, the most frequently-made were:

• In the case of domestic abuse, ending a perpetrator’s interest in a tenancy or joint tenancy. The most frequent suggestion was that, to enable equal outcomes across tenures, the Scottish Government should introduce a similar ground to the one existing in the social sector to enable victim-survivors of domestic abuse to end a perpetrator’s interest in a tenancy or joint tenancy, in order for victim-survivors to be able to remain in the family home if they wish to do so. This issue is picked up again at subsequent questions, and at Questions 14-17 in particular.
• Ending a tenancy to comply with a planning enforcement notice which prevents the property from being used in its current manner e.g. as an HMO. It was reported that some local authorities require landlords to apply for planning permission as well as a licence to operate HMOs but often the two schemes are operated separately so it would be possible to obtain an HMO licence whilst being in breach of planning policy. The potential for a renewal application to not be submitted before an existing HMO licence ends, meaning that the property cannot lawfully be operated as an HMO but would be occupied by existing tenants as an HMO, was also highlighted.
• Recovery of possession where the property is required to house an employee. There was also reference to needing a property for tied housing. Further comments included that with limited convenient housing in rural areas, it is important for rural businesses and farms, in particular, to be able to regain possession to house an employee. It was suggested that, for the rural economy to thrive and support employment, businesses need to retain flexibility.

Other suggestions included:

• Conforming to planning restrictions. The example given was that if a property has an ‘agricultural tie’, then it is a requirement that the person living in the property works in either agriculture or forestry. If the occupant ceases to work in those sectors, then it should be grounds for eviction due to the need to meet planning requirements.
• For Required Works. It was noted that where a house does not meet standards it should be improved but that, if significant works are required, it will sometimes be necessary to regain possession.
• Landlord intends to develop. This was described as important to encouraging landlords to renew old housing stock.
• Antisocial behaviour that has not proceeded to a criminal conviction, but grounds can be demonstrated to the Tribunal. Examples given included damage to working farm buildings and children on off-road bikes at high speed.
• Damage by pets and or pets unsuitable to the property. Examples given were dogs being shut in the house all day and substantial damage being caused to a property.
• Additional people staying in the property.
• Using the property for short-term or holiday lets without landlord consent.^[3] There was specific reference to mid-market and affordable rent properties.
• Not communicating with the agent or landlord.
• Refusal to give access to the landlord for annual inspections.
• The tenant in applying for the tenancy, or in their communications with the landlord, has lied or dealt dishonestly with the landlord. It was suggested that no-one should be held to a contract that was entered into on the basis of inaccurate information supplied by the other party.

There were also suggestions relating to existing grounds including that ground 14 (Anti-social behaviour) should be extended to specifically protect the landlord and their staff from abusive and threatening behaviour.

Finally, some non-campaign respondents also raised issues relating to the statutory requirements relating to evictions, including looking for further legislative changes needed to the Private Housing (Tenancies) (Scotland) Act 2016 (the 2016 Act). These included:

• Amending statutory term no. 4 (notification of other residents) to make it clear that this clause can only be relied on if the other residents are members of the tenant’s family, with the family member definition being the same as is used in eviction ground 5.
• The Notice to Leave template should be amended to remove the star (*) before the section in part 3 which is worded [state particulars…]. The Notice to Leave template should be further amended to state in part 3 that evidence should be attached to support the eviction “where available/applicable”.
• Clause 54(2)(b) is being interpreted by the Tribunal as not allowing a landlord to give more than 28/84 days’ notice. It was assumed that it was not the government’s intention to prohibit a landlord from giving a tenant more than the minimum amount of notice, but it was reported that in some Tribunal cases eviction applications have been rejected because the landlord gave too much notice.
• Regarding Clause 54(3), clarification is needed on how much notice is required for grounds unrelated to tenant behaviour where one tenant has been entitled to occupy the property for more than 6 months and one has been living there for less than six months.

It was also suggested that the landlord having the option to end the tenancy after a time period would often remove the need for landlords to use the eviction grounds set out.

Ground 6

The consultation paper refers to stakeholder feedback suggesting that there has been some confusion regarding whether a landlord could use eviction ground 6 ‘Landlord intends to use for non-residential purpose’ to evict a tenant in order to use a property for short-term holiday let(s). It was noted that this is contrary to the original policy intention and that the Scottish Government is considering taking legislative action to make clear that this eviction ground cannot be used to evict a tenant in order to use the property as a short-term holiday let.

Question 7 – Do you have any views on our proposal to take forward a clarification in relation to the use of ground 6 – ‘Landlord intends to use for non-residential purpose’?

Around 555 non-campaign respondents made a comment at Question 7.

The most frequently-made point was that ground 6 should not be used to evict a tenant in order to use the property as a short-term holiday let. Others noted they supported the intention of ground 6 being clarified, including by makes it clear that short-term lets (including Airbnbs) are not included in the definition of ‘non-residential purpose’.

Supporting comments included that the growth of short-term lets has come at the expense of housing supply and the housing needs of local residents and tenants. There was particular reference to in the Highlands and Islands, Arran and Edinburgh.

Others suggested that, while they agreed that ground 6 should not be used routinely to evict tenants in order to operate short-term holiday lets, there could be occasions when this might be necessary. The two scenarios given were that:

• If a short-term holiday let has been used as a temporary home for PRS tenant while repair works are done at their home. It was reported that experience points to tenants occasionally failing to move back into their home once the repair works are complete.
• Tenants occasionally move in to short-term let due to a change of circumstances, misunderstanding or deliberate deceit with the landlord believing they are there for a holiday whereas in fact they are occupying it as their main residence.

The connection was made to upcoming regulation of short-term lets, including a requirement to obtain planning permission in some areas of Scotland; it was noted that it will be even more important to be able to change the use of properties back to residential accommodation as the property may be in a use class that only allows it to be used for short-term holiday lets and not as a dwelling.

Others commented simply that clarification is not required or that as a discretionary ground it cannot be used to convert a property to a short-term let, unless there is a demonstrable need to do so, which is entirely at the Tribunal’s discretion. It was also suggested that the regulation of short-term lets, and the introduction of Planning Control Areas, will help resolve any issue.

Some suggested that landlords should not be prevented from moving a property between the residential and holiday sectors and that they should be free to choose what they do with their property. It was also noted that, particularly where a PRS property needs significant financial expenditure to meet future standards, it may be that the landlord would want to alter its use. There was also reference to property owners and rural businesses needing to generate income, as well as short-term lets being vital in ensuring there is sufficient tourism infrastructure in rural communities.

There was also a note of caution regarding lets to students then being used for holiday accommodation over the summer period. There was a query around whether clarifying ground 6 as proposed would drive more landlords out of the student let market, further reducing the number of private lets available.

Introduce pre-action protocols on a permanent basis in the private rented sector and revise pre-action requirements in the social rented sector

Question 8 – What further refinements could be made to either the private rented or social rented sector pre-action requirements in order to further protect and support tenants?

Around 510 non-campaign respondents commented at Question 8.

General comments about pre-action requirements included that a tenure-neutral approach would seem sensible. It was also suggested that tenants should be supported to maintain tenancies as much as possible and that this should be the vision guiding all measures considered.

In terms of tenure-neutral refinements or changes, taking into account when rent arrears having accrued following a change of circumstance related to Universal Credit and the impact of domestic abuse was suggested.

Others simply suggested that no changes or further refinements are required.

Private rented sector

Current arrangements

In terms of how the current pre-action requirements operate, there was a concern from a number of ‘Private landlord, letting agent or their representative bodies’ and ‘Individual’ respondents that it is rare for landlords to see evidence of their benefit. It was reported that, in the vast majority of cases, tenants choose not to engage in communications with their landlord in response to the pre-action requirements.

An alternative perspective was that, although private landlords are required by law to send a section 11 notice to the local authority when they start eviction proceedings, this may not always be done. If pre-action requirements are not actioned, it was noted that a valuable opportunity for people to be linked up with independent advice and support services will be lost. This would include ensuring that households are accessing all benefits they are entitled to, which may help to address any arrears. An associated point was a lack of published data makes it difficult to understand the extent of any issues or patterns around non-compliance. There was a call for publication of section 11 data to be restarted, as well as standardised data collection and publication from the Tribunal.

Other comments echoed some of the issues raised at previous questions, and at Question 5 in particular. They included that, as contained within the draft Coronavirus (Recovery and Reform) (Scotland) Bill, the pre-action requirements for eviction proceedings on the rent arrears ground (ground 12) should be made permanent. It was reported that the pre-action requirements encourage landlords to help their tenants access support and advice on rent arrears management before any eviction action is taken, thus helping them to manage their debt and remain in their home.

However, others took a different view and did not consider that the pre-action requirements introduced due to the public health crisis would be beneficial on a permanent basis. It was noted that as Scotland lifts COVID-19 restrictions, the financial support available to tenants to address rent arrears, such as the Tenant Grant Fund has been withdrawn and there was a call for emergency measures applied to the PRS to also be rescinded.

Section 11 and point of issue

One suggestion was that there should be a concerted effort to improve the effectiveness of section 11, using learning from the social sector. However, there were some concerns that local authorities have limited capacity to investigate cases, with their resources focused on prioritising their duty to investigate and assess current homelessness presentations.

There were calls for a section 11 notice to be served earlier than is currently required.^[4] A specific proposal was to require the section 11 notice to be served at the point when a notice to quit, notice to leave or notice of proceedings is being served, or at least 28 days prior to an application for eviction being granted. It was hoped that this would give adequate time for the local authority to help the tenant find a new home before they get into a situation where they have accrued significant unpaid debt that will impact on their future ability to move home.

However, it was also suggested that ‘upstreaming homelessness prevention’ and including the PRS within a prevention duty, would need to come with significant additional financial support from central government for it to be effective and impactful.

Others did not think that it would be sensible to bring forward the section 11 notice requirement so that it is issued at the point the landlord issues a tenant with a Notice to Leave. Instead, it was suggested that the templates for these documents should be amended to add a prompt, reminding the landlord to issue the section 11 notice at this stage, so that it is not overlooked. Further suggestions were that:

• The section 11 notice should also be amended to require the landlord to enter the reason for the eviction so that the local authority has visibility of what this is.
• Guidance should be issued to local authorities on the steps the government would expect them to take when they receive a section 11 notice. It was suggested that the section 11 notice could set out what a local authority should do for tenants on receipt of the notice – including the provision of advice/assistance to tenants in sourcing alternative accommodation.

Finally, it was suggested that the Scottish Government should work with relevant partners to consider the potential use of Section 11 data to inform local evidence bases and to revise Local Housing Strategy (LHS) guidance. There was particular reference to strengthening links between housing options and wider advice and support approaches at a local level.

Reach and focus of pre-action requirements

A frequent suggestion was that pre-action requirements should be extended to all grounds for eviction. There was also reference to the recent consultation on Prevention of Homelessness Duties^[5], and to welcoming a requirement on private landlords to consider the future housing needs of existing tenants. Other suggestions were that:

• The existing pre-action requirements should be amended to take account of issues affecting those who share certain protected characteristics.
• A new pre-action requirement should require landlords to ensure that they have fully considered domestic abuse before commencing legal action to recover possession of a property. Guidance should specify what constitutes full consideration of domestic abuse and the actions required by a landlord to investigate, and to respond to, and support, victim-survivors of domestic abuse.
• More generally, the pre-action protocols would benefit from greater detail as to what is expected of a landlord. There would be merit in standardising the information landlords are to provide to tenants in compliance with the pre-action requirements to ensure that this is consistent across the board. This would also assist individual private landlords to ensure compliance with their obligations.

It was also suggested that landlords should be offered training to ensure that they are aware of their obligations, with the Landlord Accreditation Scheme promoted by all agencies at every opportunity.

Other suggestions were that the pre-action requirements could be strengthened if the Scottish Government provided a pre-action requirement checklist, which was incorporated into the Notice to Leave. In terms of actions to be required, suggestions included:

• Clear guidance on General Data Protection Regulation (GDPR) should be produced to ensure that information can be shared appropriately between landlords and the local authority.
• With the tenant’s consent, a homelessness prevention referral to the local authority should be part of the pre-action protocol. The pre-action requirement checklist (referenced above) could include a prompt for the landlords to have a conversation with the tenant about whether they would like to be referred to the local authority housing assistance service.
• Signposting to the local tenants’ union should be required. More generally, landlords must be required to demonstrate where they have attempted to communicate and/or support their tenants prior to seeking eviction.
• There should be greater practical support for a tenant and landlord to reach an agreed repayment plan. Letting agencies and landlords should not be able to add interest or legal costs to repayment plans.

It was also suggested that the Scottish government should consider extending access to emergency grants for tenants in arrears; funding should be easy to access and should be managed by local authorities.

In relation to ensuring that landlords adhere to the legislation, including any pre-action requirements, it was suggested that the Tribunal has a key role to play. One proposal was that the Tribunal should have discretion under all grounds of repossession if pre-action requirements cannot be evidenced. It was also suggested that there is always room for improved enforcement, and that the Tribunal should play a strong role in actively interrogating and enforcing the fulfilment of pre-action requirements.

Social rented sector

There were relatively few comments relating to the social rented sector. Those that did comment tended to suggest that the current requirements are sufficient or satisfactory. However, there was support for amending social sector’s pre-action requirements to take account of the issues around Universal Credit and the impact of domestic abuse on rent arrears.

There was also a call for amendments to The Housing (Scotland) Act 2001 and 2010 statutory repossession guidance for social landlords to include a new pre-action requirement for social landlords to ensure that they have fully considered domestic abuse before commencing legal action to recover possession of a property. It was suggested that a similar requirement could be placed on the court to be satisfied that social landlords have fulfilled this pre-action requirement. Guidance should specify what constitutes full consideration of domestic abuse and the actions required by a social landlord to investigate, and to respond to and support victim-survivors of domestic abuse.

Other comments about the focus going forward included suggestions that:

• Training staff and learning from good practice should continue.
• There should be a minimum requirement for housing officers and other agreed professionals to complete a course on pre-action requirements (and sources of current advice).
• Appropriate support for tenants for whom English is not their first language, those with mental health issues or learning disabilities, is vital.

There was also reference to the importance of early engagement and support as particularly important in addressing rent arrears. In particular, the importance of information and support to access independent advice and advocacy was stressed and there was a call for a specific reference to provision of information on how to access legal representation, including legal aid in specific situations.

There was again reference to the Homelessness Prevention Duties proposals and the potential for a form of pre-action requirements for tenants facing court proceedings not related to rent arrears and not, therefore, covered by existing pre-action requirements. There was support for such an approach.

Question 9 – Can you provide any examples/case studies of where the pre-action requirements have worked well in practice?

Around 200 non-campaign respondents commented at Question 9, albeit many simply noted that they either had no experience of using the pre-action requirements or had no examples to put forward. Others noted that they do not think that the pre-action requirements have worked well. This was often connected with tenants not engaging.

General comments included that there are many examples of the pre-action early intervention working in the social sector, including in relation to rent arrears. There was reference to effective and early intervention through providing income maximisation advice, tenancy sustainment services and signposting/referral to other services. A number of ‘Local authority’ respondents referred to the work of their homelessness prevention teams. There was also reference to the range of tenancy sustainment work undertaken by housing associations. This included: tenant engagement or advocacy arrangements to discuss how to reduce arrears; tackling disrepair; and dealing with neighbour disputes.

There was reference to the pre-action requirements providing a positive template for practice to be embedded within policy and procedures and to social landlords only undertaking eviction action as a last resort. A connected point was that the pre-action requirements can help codify the actions to be taken. There were also a number of references to the crucial role of independent advice services.

With specific reference to measures taken in the social sector, there was reference to:

• Tenants on Universal Credit being allowed to clear the initial 5-week wait arrears incrementally.
• Applying for Alternative payment Arrangements in most cases rather than going to court.

Examples of PRS-related approaches that have worked well included:

• Private landlords working with tenants, especially with regard to rent arrears. A number of ‘Private landlord, letting agent or their representative bodies’ and ‘Individual’ respondents reported that they have agreed to payment plans and/or see taking a case to the Tribunal as a last resort.
• The use of Tenant Grant Funding, with cases identified by landlords who are carrying out pre-action work and working with tenants to address arrears that threaten a tenancy.
• Positive engagement with PRS landlords, including the local authority attending local landlord forums and raising awareness about the importance and effectiveness of pre-action requirements in the prevention of homelessness.

Specific examples of prevention and/or pre-action requirements working well in practice included:

• Shelter Scotland’s service to respond to section 11 referrals in Dundee. The service was commissioned by Dundee City Council and has achieved significantly higher levels of engagement from tenants than had been the case for the local authority.
• The work of Glasgow City Council’s PRS Housing and Welfare team. A case study related to a tenant presented with a notice to leave on the grounds that the landlord required vacant possession of the property to carry out essential repairs. Household members required wheelchair accessible accommodation. Actions included support to make housing applications and referrals to other partners, including the local law centre. The case went to the Tribunal, which found in the tenant’s favour. The landlord was issued with an enforcement order to carry out the necessary repairs whilst the tenant remains in the property.
• Glasgow’s Housing Options approach and work with partner housing associations.
• When the requirement to use pre-action protocols was put in place, Lowther (a member of the Wheatley Group providing property factoring and mid- and full-market rentals) drew on the established model already used by the social landlords in the group. It was reported that this has worked well in helping to structure engagement with tenants around arrears prior to issuing a Notice.
• The work of Kingdom Housing Association’s money advice team, including in connection with Universal Credit for rent and arrears. There was specific reference to backdated Housing Benefit to cover an Under Occupancy Charge, applications for Hardship Loans and engagement with social work services.
• The Neighbourhood Coach approach taken in East Ayrshire. It was reported that it has helped residents interact with the local authority in new ways and has enabled and empowered people to make their own choices and come to their own solutions. It was reported that the neighbourhood coach assists individuals with a range of issues, including rent arrears and neighbour disputes. It was suggested that this proactive approach to empowering tenants reduces the need for enforcement action in the future.

Rented sector and gender-based violence

The consultation paper stresses that having safe accommodation is fundamental for women’s safety and wellbeing, but that violence against women (VAW) in all forms can have a significant impact on housing needs and experiences. It also explains that the specific harms of commercial sexual exploitation (CSE) as a form of VAW, and particularly the exchange of sex for rent, are important in the context of the PRS.

Question 10 – What measures could be implemented to support people involved in sex work, including women subject to commercial sexual exploitation in the rented sector?

Around 355 non-campaign respondents made a comment at Question 10. Some of these respondents noted that they have no knowledge or experience of the issue and/or did not feel able to make an informed comment.

There was a view that supporting people involved in sex work should not be a responsibility of the private landlord or agent community, including because they will generally not have the expertise to make informed decisions. A slightly different perspective was that qualified agents and experienced property managers know the signs of potential exploitation in a rented property, but that Individual or inexperienced landlords may be less aware.

However, others noted that they were pleased to see recognition that housing, for PRS tenants, influences involvement in CSE and can present barriers to women exiting from it.

Complexity of the issue

A number of ‘Third sector organisations’ were amongst those highlighting the complexity of the issues raised by Question 10, with comments including that these issues cannot be addressed through a single question.^[6]

It was seen as disappointing that Equally Safe (Scotland’s strategy for preventing and eradicating violence against women and girls), is not interlinked with the proposals set out in A New Deal for Tenants. It was also reported that this is the first time that a consultation has specifically included a question about the housing needs of women who sell or exchange sex. This was seen as both encouraging but problematic, in the latter case because it points to the lack of a gendered lens when designing a housing strategy for Scotland.

It was suggested that this consultation is an opportunity for the Scottish Government to design a housing strategy with a gender-based violence (GBV) lens, which aligns with the Equally Safe strategy, and which explores and addresses the specific situation for women who sell or exchange sex. However, there were also questions as to whether a strategy and consultation focused on improving tenants’ rights is the right place to consider such an important, complex and potentially cross tenure issue.

In relation to wider housing issues, it was noted that women’s needs in the rented sector cannot be separated from their housing needs in general and that housing needs and GBV, including CSE, are closely interrelated. Further comments included that:

• Women’s access to and ability to retain housing, their risk of homelessness, and routes in and out of homelessness are affected by violence against women and girls, economic instability, and caring responsibilities. In order to fully understand and address these issues, it is critical that the Scottish Government fulfils its commitment made in the Ending Homelessness Together action plan (2020) to ‘Apply a gendered analysis to our actions, ensuring the homelessness system meets the needs of diverse groups of women.’
• Lack of access to adequate housing is not only a factor that can push women to sell or exchange sex, but also remains a huge issue while they are involved, and it often prevents them from moving on.
• Women who sell or exchange sex are not a homogenous group and so their housing needs differ based on their individual circumstances.

In terms of other issues to be considered there was also reference to human trafficking and people with ‘no recourse to public funds’.

Overall, it was stressed that women in CSE are not only entitled to have their housing rights fulfilled but need this in order to make choices in their lives and achieve safety and stability. As part of a wider progress to enshrine housing as a human right for everyone in Scotland, women in CSE need to be considered throughout.

Further comments included that the Scottish Government should align any terminology describing sex work in this strategy with that used in Equally Safe. For example, it was suggested that A New Deal for Tenants should refer to CSE or to women who sell or exchange sex, and the term ‘sex worker’ should be avoided.

Multi-agency working and support

Reflecting comments about the complexity of the issues, there were a number of calls for partnership-driven and holistic interventions. Multi-agency working was seen as essential to tackling a range of issues such as the right to work, assistance with drug and alcohol misuse, homelessness, debt, poverty, poor mental and physical health, poor education, uncertain immigration status, lack of social support from family or other social networks, abusive relationships and escaping exploiters.

In terms of the range of agencies involved, there was reference to all community planning partners and to multi-agency public protection arrangements. Suggestions for ensuring appropriate and effective multi-agency working included that:

• The Scottish Government should work with local authorities and Health and Social Care Partnerships (HSCPs) to develop operational strategies to ensure that women involved in sex work and people subject to sexual exploitation have access to support and services.
• Scottish Government, local authorities and HSCPs should also work with colleagues within the criminal justice system to ensure effective enforcement action whilst protecting women victims.
• Local agencies should work together, via a shared Prostitution Strategy, to support women to exit.
• Any operational response needs to reflect the natures of the private rented and social housing sectors and work with a wide range of stakeholders to ensure that women who are reluctant to engage or difficult to reach can access advice and support.

In terms of the support that should be available, it was argued that a package of specialist support should be tailored to the specific needs of each woman. A number of non-campaign respondents referred to specialist services and providers having a key role to play, including reference to Women's Aid, rape crisis centres and law centres.

It was also reported that there are excellent examples of models of practice which have been shown to transform women’s situations. The importance of tailoring approaches to each area, and co-developing approaches with women with lived experience was highlighted. In terms of some of the key principles that could underpin effective support, there was reference to the Encompass Network’s work on support and exiting services for women involved in prostitution. The principles they identified – including being in it for the long term – were seen as transferable to other issues such as housing, as part of a multiagency approach with services working to provide continuity of care. There were also references to:

• Naming the problem, with local strategies, and the agencies delivering them, recognising the issue, for example in the case of prostitution, as violence against women.
• Being flexible and accessible to enable women living in chaotic circumstances to engage with them.
• The importance of monitoring and evaluation, which then inform the development of future strategies and approaches.
• Addressing on-street and off-street commercial sexual exploitation.

Specific suggestions relating to the type of support that should be available included:

• Providing safe accommodation, potentially involving a move to another area. A ‘Local authority’ respondent referred to a project which supports women rescued from sex trafficking, with the local authority providing accommodation and a partner organisation with specialist expertise providing support.
• The option of transitional housing for those needing safe and affordable accommodation, and possibly ‘breathing space’ in terms of rent if they want to exit CSE. Also, providing aftercare to sustain tenancies and support tenants to develop skills to budget, pay bills and claim benefits.
• Ensuring that information is available in understandable formats is vital, particularly for those with poor literacy skills. Information should be available in places where vulnerable women might present or seek assistance such as hospitals, police, homelessness services, addiction support, shelters, volunteer-run community services, and via cultural or ethnic minority groups.

Other comments addressed issues beyond specialist services and the importance that all sectors within housing have an awareness of CSE. In terms of the social sector, a ‘Housing association’ respondent referred to the specialist training they have developed to enhance the knowledge and understanding of their staff in this area. It was also suggested that public bodies must be given adequate training and resources to spot the signs and to understand and respond to sex work in a trauma-informed manner. Training and understanding were seen as key to ensuring the need for support can be identified quickly and support given at the right time. The importance of creating a culture in which women will not feel stigmatised or judged was also highlighted.

It was also noted that, while women who wish to leave sex work should be supported, it cannot be assumed that every person will want to leave this line of work. There was a concern that the New Deal for Tenants appears to focus only on supporting women who wish to leave. It was suggested that support should not only be established for women wishing to exit sex work but also for women who do not wish to exit. It was acknowledged that the type of support needed will be different, but it was stressed that all women should have access to housing and be given choices and options.

A specific issue raised was that people involved in CSE may have difficulty in providing employment information and references, making them vulnerable to exploitation due to not having a legal tenancy agreement. It was suggested that women without references and looking for a PRS tenancy could be eligible to access a rent guarantor scheme.

Protection from eviction

A number of non-campaign respondents noted that they agreed with the consultation paper’s suggestion that the references in the model Scottish Secure Tenancy Agreement and Private Residential Tenancy: Model Agreement to ‘immoral purposes’ and ‘brothel keeping’ should be reviewed. Some suggested that they should be removed, with further comments including that the wording does not reflect a trauma-informed approach.

Further comments included that the effect of the morality clause is to leave sex workers in social housing in a more precarious situation and less able to access their rights. The example given was that an abusive partner could use this morality clause to threaten to have his partner evicted if she tries to end the relationship. It could mean that a woman who sells or exchanges sex feels unable to report violence she has experienced, for fear that this will impact on her tenancy.

It was suggested that the Housing (Scotland) Act 2014 urgently needs updating to remove the morality clause. There were also general calls for the protections for people involved in sex work to be strengthened as part of the pre-action requirements and evictions protocols. Specifically, there was a call for clarification that sex work – including sex work which involves criminal convictions for soliciting or loitering – cannot be, in itself, grounds for an eviction from social housing or from the PRS.

Sex for rent

There were also a number of comments about ‘sex for rent’, which was described as a phenomenon created by the housing crisis. A frequently made point was that, with rents continuing to rise and a shortage of affordable social housing, more tenants are vulnerable to being exploited by unscrupulous landlords through the abhorrent practice of ‘sex for rent’. Addressing the lack of genuinely affordable and quality housing through effective rent controls and greater protections for tenants was seen as crucial for all tenants in Scotland, but particularly for those vulnerable to exploitation.

There were mixed views on whether the Scottish Government should look to legislate that ‘sex for rent’ is illegal in Scotland. Some non-campaign respondents thought it should be, although it was noted that there would also need to be safeguarding measures to support people wanting to leave the current situation.

Others thought the focus should be on additional measures to prevent exploitation through ‘sex for rent’ arrangements. The concern was that, although men who seek out ‘sex for rent’ arrangements as the ‘landlord’ are exploitative and abusive, criminalisation risks making this bad situation worse.

In particular, it was suggested that women or LBGTQ people who are street-homeless and/or drug-using are likely to have experienced criminalisation in the past and risk further criminalisation even if they are the victim of the ‘sex for rent’ situation that is being investigated. Criminalising ‘sex for rent’ was seen as risking bringing more police contact into the lives of vulnerable people who may already have had extremely negative experiences with the police.

In terms approaches that should be taken, it was suggested that women who exchange sex for rent, and find themselves in precarious accommodation, need to be protected in the same way as victims of domestic abuse.

Landlord Registration and enforcement

Other comments addressed the potential for strong enforcement action against landlords involved in CSE. In terms of the PRS, there was reference to criminal charges and the swift removal of their registration. It was noted that removal of registration already happens where the local authority becomes aware of any criminal charges, but that the period between registration and renewal is 3 years, and checks are not likely during this period. It was suggested that greater information sharing between relevant partners and agencies may provide earlier intervention and enforcement.

Other comments or suggestions relating to landlord registration included that:

• Additional criminal record checks, increased background checking and the need for references could be considered. However, it was noted that such enhanced checks would have resource implications.
• There could be closer liaison with Police Scotland to tackle links to organised crime.

Joint tenants

The consultation paper explains that previous stakeholder engagement has highlighted two specific tenancy issues that need to be addressed – allowing joint tenants experiencing domestic abuse to end a joint tenancy in the PRS and, where appropriate, enabling them to remain in the family home as a sole tenant.

A joint tenant can end their interest in a private rented sector tenancy

The consultation paper suggests that there is a need to make legislative changes to the operation of the PRT to ensure that a joint tenant can end their interest in the tenancy without the agreement of the other joint tenant(s). It suggests that this change will be of particular benefit to those experiencing domestic abuse.

Question 11 – Do you agree with our proposal to amend the 2016 Act to ensure that all joint tenants can terminate their interest in a private residential tenancy without the agreement of other joint tenant(s)?
Please explain your answer.

Responses to Question 11 by respondent type are set out in Table 3 below.

Table 3

Q11: Do you agree with our proposal to amend the 2016 Act to ensure that all joint tenants can terminate their interest in a private residential tenancy without the agreement of other joint tenant(s)?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group			1	2	3
Housing, legal or advice agency or professional or representative body	6		2		8
Local authorities and their representative bodies	20		1	2	23
Other private sector		1		2	3
Other professional or representative body	1	1	1	2	5
Private landlord, letting agent or their representative bodies	12	30	8	5	55
Public body or agency	4		1	3	8
Religious group or body	2			2	4
Social Landlords and their representative bodies	8	1		3	12
Tenants’ and residents’ groups and their representative bodies	7		1	1	9
Third sector organisation	2		1	19	22
Union, student or campaign group	10		1	7	18
Total organisations	72	33	17	48	170
% of organisations answering	59%	27%	14%
Individuals	211	257	110	178	756
% of individuals answering	37%	44%	19%
Total non-campaign respondents	283	290	127	226	926
% of all non-campaign respondents	31%	31%	14%	24%
% of all non-campaign respondents answering	40%	41%	18%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6401	290	127	1616	8434
% of all respondents	76%	3%	2%	19%
% of all those answering	94%	4%	2%

A very substantial majority – 94% of those answering the question – thought that the 2016 Act should be amended to ensure that all joint tenants can terminate their interest in a PRT without the agreement of other joint tenants. The proportion of non-campaign respondents who agreed that the 2016 Act should be amended dropped to just 40%, with 59% of organisations and 37% of individuals in agreement. Among organisations, a large majority of those who disagreed were from the ‘Private landlord, letting agent or their representative bodies’ group.

Around 545 non-campaign respondents went on to make a comment at Question 11.

There was support for the proposed changes, which were described as a sensible, practical approach that brings the PRS in line with the social sector and reinstates the position prior to the 2016 Act. The ability to terminate an interest in a joint tenancy was seen as both an issue of individual choice for all tenants, but also as an important protection for victim-survivors of domestic abuse.

In the latter case it was argued that allowing a joint tenant to terminate their tenancy without the agreement of other joint tenants would remove an element of control currently available to perpetrators, and some respondents included case studies to illustrate situations that are currently possible. However, there was a note of concern that a perpetrator could use the proposed change to their advantage, for example by removing themselves from the tenancy and avoiding liability for rent while continuing to live at the property.

Other reasons given for supporting the proposed amendment included that:

• It would provide flexibility where one tenant wants to leave but others do not and will avoid trapping tenants in tenancies. It was reported that the current situation can lead to emotional and mental distress for tenants if landlords will not allow a tenancy changeover.
• It would be particularly helpful for students, who tend to be a highly mobile population that can find their personal circumstances changing at short notice. It was reported that there are regular instances where students are prevented from ending a joint tenancy even when they have experienced harassment or bullying from flatmates.

An alternative view was that those who jointly sign a lease should remain jointly and severally liable for the rent, with some non-campaign respondents drawing analogies to mortgage arrangements. The importance of honouring a contract was emphasised and it was argued that:

• Allowing one tenant to exit a joint tenancy should only be permitted in exceptional circumstances and that, while important, domestic abuse is only an issue in very small proportion of tenancies.
• Relationship issues should not be the concern of landlords or letting agents, including because they are not suitably informed to decide when a person needs to be removed from a joint tenancy.
• The proposed amendment will cause considerable confusion and add additional complexity. It may also make landlords more cautious when letting to joint tenants, including through seeking to ensure that the other tenant(s) would be able to cover the rent if one of their number leaves. It was suggested that this could disadvantage lower earning tenants, especially if landlords make different decisions when looking at credit risk profiles.

However, it was also acknowledged that the issue can be complex, and a number of issues were raised both by respondents who supported the proposed change and those who did not. They included whether the remaining tenants are liable jointly for the full liabilities, including existing rent; the length of notice periods; and whether the existing tenancy continues or a new tenancy would begin.

Affordability for remaining tenants

It was noted that a landlord’s decision to let a property to a group of tenants is based on an assessment of their collective ability to afford the rent and that, if one leaves, the remaining tenants may be unable to cover the rent and other outgoings such as Council Tax. Concerns were raised that allowing one joint tenant to leave could have a serious impact on their fellow tenants, potentially leaving them at risk of losing their home. It was argued that there should be a study into the impact of the proposed change on remaining tenants, and that it should consider those in a range of circumstances and should include Equality Impact Assessment.

It was also noted that there would be a financial risk for landlords if rent arrears accrue. An associated point was that lenders may need to take the proposed amendment into consideration in their Buy to Let mortgage underwriting. Additionally, it was suggested that rent guarantee insurance policies taken out by some landlords and letting agents are based on affordability, referencing and credit checks of the incoming tenants; it was reported that these would become invalid in the event a joint tenant leaves the tenancy.

Various arguments were made with respect to liability for rent if a tenant is allowed to exit a lease without the agreement of fellow tenants, including that the departing tenant should continue to have joint responsibility for the rent unless this liability is accepted by other tenants, and this is agreed by the landlord.

An alternative perspective was that the remaining tenant(s) should be liable for the full rent. Connected to this was a suggestion that, on a practical level, landlords would not be able to trace tenants who had moved on in order to collect a share of the rent.

Deposits and arrears

Some non-campaign respondents raised issues in relation to the deposit paid by a departing joint tenant. Points included that the deposit for a property would normally be a set amount, regardless of how many tenants are living there and, for the landlord, it would not be desirable for any part of this deposit to be released until all tenants depart.

One perspective was that a departing tenant should have to wait until the tenancy ends to receive their share of the deposit unless the remaining tenants or any replacement tenant can cover the difference. Another view was that, since the departing tenant could reasonably expect their share of the deposit to be returned, the remaining tenants would have to cover this amount.

Other suggestions included that a segmented deposit scheme would allow a deposit to be split and returned following an inspection at the time of an individual’s departure.

A final suggestion was that the original entry inspection should continue into a new lease if any tenants have remained in the property. However, it was noted that this would mean that an incoming tenant would be left with the burden of paying for any breach of the outgoing tenant’s obligations as set out in the PRT.

Some non-campaign respondents raised issues in relation to any rent arrears if one tenant leaves. It was reported that arrears would normally be the responsibility of all the individuals who were named as tenants during the period over which they arose; the connected concern was that they could have an adverse effect on the ability of the remaining tenants to sustain the tenancy or on the willingness of the landlord to offer a new tenancy to those who wish to stay on in the property. It was suggested that:

• A departing tenant should understand that they are jointly and severally responsible for any arrears at the point they left.
• In the event of rent arrears across the joint tenancy, an agreement between landlord and tenant would need to be made prior to ending the tenancy. Alternatively, any outstanding rent must be settled prior to releasing an outgoing tenant.

Student rental market

Although some non-campaign respondents saw benefits in allowing students to exit from a joint tenancy in the PRS, others argued that the proposal does not make sense for the student market. It was argued that the remaining students in a jointly rented property could be forced to end their lease if unable to find a replacement or make up the remaining rent themselves. It was also suggested that it is likely to be difficult to find a replacement tenant during an academic year.

There was a concern that risks associated with the frequent breakdown of joint tenancy agreements could leave some housing providers unwilling to rent to students and may leave students vulnerable to increased costs.

Proposed conditions

Many respondents identified elements that they thought would be important if the 2016 Act is to be amended as proposed. These suggestions came from both those who supported the proposed amendment, and those who did not.

Clear procedures and responsibilities

There was said to be a degree of confusion regarding some of the conditions of the current joint tenancy. It was suggested that moving forward:

• Rules around exiting a joint tenancy should be flexible and easy to understand.
• Setting out clear responsibilities for tenants, and the appointment of a ‘lead tenant’, could avoid confusion.
• The Model Tenancy Agreement or Easy Read notes could be amended to clearly explain the responsibilities of those tenants who remain, including in relation to the rent.

Notice periods

Comments in relation to notice periods included that all parties must be informed of a tenant’s wish to leave, and that a tenant wishing to leave could be required to serve both the landlord and their co-tenant(s) notice so that all parties are aware of the situation.

Notice Periods are covered in more detail at Question 12.

Individual tenancies

A frequently-made suggestion was that, rather than a joint tenancy, each tenant should have their own tenancy agreement. This would mean that an individual tenant would be able to give notice of their intention to move out, as under the current PRT, and that one tenant moving on would not have an impact on those who remained.

Replacement tenants and new leases

There were differing views on who should find replacement tenants, and who should approve them. Points raised included that:

• The remaining tenant(s) should be given first option to enter into a new rental contract with the same conditions as the previous lease. It was reported that there have been cases where the landlord/letting agent has used drawing up a new tenancy agreement for remaining tenants as an opportunity to increase the rent.
• Tenants should be given the option to find a replacement tenant themselves, who the landlord should accept if all the required documents are submitted. Landlords should not be able to reject a potential replacement tenant without good reason.
• Tenants should be given an incentive to find a replacement that they are happy to live with, but should not be forced to do so, leaving the onus mainly on the landlord. If the landlord locates a potential tenant, the current tenants should have the opportunity to meet with them and to approve or reject them.
• The landlord should have the right to assess the suitability of the remaining tenant(s) to ensure the rent is affordable. They should also have the right to assess the suitability of any new tenant in terms of ability to cover the cost of rent and look after the property.
• If a new lease is needed, any administration fee should be the responsibility of the tenants.
• To protect the position of the landlord a new mandatory ground of eviction could be introduced of rent arrears of two or more months’ following termination by a joint tenant.

Proposals focused on abusive or coercive relationships

Some non-campaign respondents proposed alternative or additional provisions, often with respect to situations involving abusive or coercive relationships. These included that:

• A more targeted and specific ground for eviction is required. However, it was also suggested that The Domestic Abuse (Protection) (Scotland) Act 2021 might be used to evict the perpetrator of abuse from a tenancy.
• Private landlords should be given the powers to seek the eviction of a tenant who has been convicted of abuse if the other party wishes to retain the tenancy. However, the case should go to Tribunal to mirror arrangements in social housing.
• The Tribunal should be given new powers to decide when a joint tenant can exit a tenancy. It was suggested that similar procedures are in place under the Matrimonial Homes Act 1981 and Civil Partnership Act 2004, which can already be used in cases of domestic abuse.

It was also suggested that guidance and training on implementation of the legislation will be needed for PRS landlords and agents to prevent service generated risks.

Question 12 – In the social rented sector, the notice period required for a joint tenant to end their interest is four weeks.
A) Should a similar 4 weeks’ notice period apply for a joint tenant in the private rented sector to give to their landlord and other joint tenant(s) to end their interest in the tenancy? Please explain your answer.
B) Should there be longer notice periods where there are more than two joint tenants to reflect the greater prevalence of multiple joint tenancies in the private rented sector, for example in student households? Please explain your answer.

Responses to Question 12(a) by respondent type are set out in Table 4 below.

Table 4

Q12a: Should a similar 4 weeks’ notice period apply for a joint tenant in the private rented sector to give to their landlord and other joint tenant(s) to end their interest in the tenancy?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group			1	2	3
Housing, legal or advice agency or professional or representative body	4	1	1	2	8
Local authorities and their representative bodies	20		1	2	23
Other private sector	1			2	3
Other professional or representative body	1	1		3	5
Private landlord, letting agent or their representative bodies	7	28	8	12	55
Public body or agency	1		1	6	8
Religious group or body	2			2	4
Social Landlords and their representative bodies	7	2		3	12
Tenants’ and residents’ groups and their representative bodies	7			2	9
Third sector organisation	1		1	20	22
Union, student or campaign group	9	1	1	7	18
Total organisations	60	33	14	63	170
% of organisations answering	56%	31%	13%
Individuals	216	202	118	220	756
% of individuals answering	40%	38%	22%
Total non-campaign respondents	276	235	132	283	926
% of all non-campaign respondents	30%	25%	14%	31%
% of all non-campaign respondents answering	43%	37%	21%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6394	235	132	1673	8434
% of all respondents	76%	3%	2%	20%
% of all those answering	95%	3%	2%

A very substantial majority – 95% of those answering the question – thought that a 4 weeks’ notice period should apply for a joint tenant in the PRS. The proportion of non-campaign respondents who agreed that 4 weeks would be appropriate dropped to 43%, with 56% of organisations and 40% of individuals in agreement. Among organisations, a large majority of those who disagreed were from the ‘Private landlord, letting agent or their representative bodies’ group.

Around 435 non-campaign respondents went on to provide a comment at Question 12(a).

Some respondents who agreed that the notice period should be 4 weeks described this as sensible, reasonable or appropriate, and as long enough for the remaining tenants to consider their options or find a replacement. The importance of consistency of approach was often highlighted, primarily in terms of the PRS and social sector, but also in giving joint tenants the same rights as those in single occupancy tenancies. It was suggested that alignment can help renters understand their rights as tenants, regardless of the type of tenancy they have.

Non-campaign respondents who did not agree with a 4 weeks’ notice period often restated their position from the previous question that a joint tenant should not be able to exit a tenancy without the agreement of their fellow tenants. Some expressing this view went on to add that if the proposal is enacted, the notice period should be longer than 4 weeks. Among suggestions were that the notice period should be:

• The same as that which the landlord is required to give the tenant.
• In line with the notice period agreed for the tenancy.
• Two months, giving other tenants one month to assess their options and then if they too wish to leave, serve their 28 days’ notice and terminate the tenancy.
• Slightly longer for a single tenant to end their interest in a joint tenancy than for the whole group of joint tenants to end their tenancy.

Both respondents who agreed with a 4 weeks’ notice period and those who did not highlighted the impact on remaining tenants and/or suggested that they should be given time to try and resolve any issues. Respondents also identified certain circumstances where additional flexibility may be required, including:

• Where requiring 4 weeks’ notice may put someone experiencing violence or abuse at a higher risk of harm.
• Where all parties agree to a shorter period. It was suggested that legislation should be amended across both sectors to provide for discretion in situations where the landlord and existing joint tenants mutually agree a shorter timeframe.
• If new tenant can move in sooner.

It was also suggested that short notice periods will be important for those in receipt of Universal Credit, which does not provide for Housing Benefit to be paid on two homes at the same time. The potential impact of under occupation on LHA was also highlighted, with a suggestion that remaining tenants could be covered for up to two months to allow them time to either find a new tenant or to downsize.

Other points raised with respect to giving notice and notice periods included that:

• A landlord should be required to respond to a request to end a tenancy within 2 weeks of a tenant giving notice.
• Giving notice to a joint tenant will require careful consideration in situations involving domestic abuse and/or sex work/trafficking.

Responses to Question 12(b) by respondent type are set out in Table 5 below.

Table 5

Q12b: Should there be longer notice periods where there are more than two joint tenants to reflect the greater prevalence of multiple joint tenancies in the private rented sector, for example in student households?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group	1			2	3
Housing, legal or advice agency or professional or representative body	1	2	1	4	8
Local authorities and their representative bodies	6	14	2	1	23
Other private sector			1	2	3
Other professional or representative body		3		2	5
Private landlord, letting agent or their representative bodies	10	14	18	13	55
Public body or agency			2	6	8
Religious group or body	2			2	4
Social Landlords and their representative bodies	1	4	2	5	12
Tenants’ and residents’ groups and their representative bodies	4	3		2	9
Third sector organisation			1	21	22
Union, student or campaign group	2	5	3	8	18
Total organisations	27	45	30	68	170
% of organisations answering	26%	44%	29%
Individuals	204	175	151	226	756
% of individuals answering	38%	33%	28%
Total non-campaign respondents	231	220	181	294	926
% of all non-campaign respondents	25%	24%	20%	32%
% of all non-campaign respondents answering	37%	35%	29%
Campaign respondents		6118		1390	7508
% of campaign respondents answering	0%	100%	0%
All respondents	231	6338	181	1684	8434
% of all respondents	3%	75%	2%	20%
% of all those answering	3%	94%	3%

A very substantial majority – 94% of those answering the question – did not think there should be longer notice periods where there are more than two joint tenants. Among non-campaign respondents overall, opinion was relatively evenly divided with 37% agreeing there should be longer notice periods and 35% disagreeing. Organisations were more likely to disagree than individual respondents, at 44% and 33% respectively.

Around 360 non-campaign respondents went on to provide a comment at Question 12(b).

Among respondents who did not feel longer notice periods would be appropriate, reasons given included that consistency is important and that differing notice periods could be complicated or confusing. Some non-campaign respondents also thought it is not clear why households with more than two joint tenants should be different, and that 4 weeks’ notice is long enough. It was reported that there is no evidence that 4 weeks’ notice causes significant problems in social housing.

Other arguments against a longer notice period included that landlords of properties with more than two joint tenants will continue to receive rental income from other tenants. Concerns were also raised that increasing the length of notice periods would have an impact on those with overlapping tenancies. This was said to be an issue of particular significance for people on low incomes.

It was also argued that there should not be different ‘categories’ of tenant and that longer notice periods could just encourage a tenant to give notice earlier. A pre-action process for tenants was suggested as a potential way to enable a smoother transition.

Some non-campaign respondents who thought there should be longer notice periods argued – as at Question 12(a) – that a joint tenant should not be able to exit a tenancy without the agreement of their fellow tenants or that, if the proposed change is made, notice periods should be longer than 4 weeks in all cases. It was also suggested that domestic abuse situations are less likely in properties with more than two joint tenants, so urgency is reduced.

A longer period was also seen as:

• Potentially beneficial for transient tenants such as student households where there is likely to be higher turnover.
• Allowing remaining tenants more time to find replacements or make alternative arrangements and so, potentially, preventing homelessness.

Specific suggestions with respect to how long the notice period should be included:

• 6 - 8 weeks
• a minimum of 8 weeks
• a minimum of 6 months for student lets

There was also a call for further work with private landlords, tenants and other stakeholders to gain a better understanding of the impact of the proposal

Student tenancies

A number of non-campaign respondents made comments in relation to student tenancies, including that a specific tenancy agreement should be considered, and that this could be looked at as part of wider work on the student accommodation strategy. It was argued that work to improve understanding of impacts where there are multiple joint tenancies should include consultation with students, their representative bodies and others who typically enter into multiple joint tenancies.

However, it was also suggested that uncertainty around the availability of accommodation for students could deter students, particularly those from outwith Scotland, from choosing to study here, and that this would have an impact on higher education providers and the wider Scottish economy.

Question 13 – Should this proposal be taken forward, are there any additional safeguards that should be put in place for remaining joint tenants in the private rented sector?
Please explain your answer.

Responses to Question 13 by respondent type are set out in Table 6 below.

Table 6

Q13: Should this proposal be taken forward, are there any additional safeguards that should be put in place for remaining joint tenants in the private rented sector?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group	1			2	3
Housing, legal or advice agency or professional or representative body	3		1	4	8
Local authorities and their representative bodies	15		3	5	23
Other private sector	1			2	3
Other professional or representative body			1	4	5
Private landlord, letting agent or their representative bodies	20	17	7	11	55
Public body or agency			1	7	8
Religious group or body	3			1	4
Social Landlords and their representative bodies	2	1	3	6	12
Tenants’ and residents’ groups and their representative bodies	6		2	1	9
Third sector organisation	1		1	20	22
Union, student or campaign group	6			12	18
Total organisations	58	18	19	75	170
% of organisations answering	61%	19%	20%
Individuals	209	171	134	242	756
% of individuals answering	41%	33%	26%
Total non-campaign respondents	267	189	153	317	926
% of all non-campaign respondents	29%	20%	17%	34%
% of all non-campaign respondents answering	44%	31%	25%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6385	189	153	1707	8434
% of all respondents	76%	2%	2%	20%
% of all those answering	95%	3%	2%

A very substantial majority – 95% of those answering the question – thought that additional safeguards should be put in place for remaining joint tenants. The proportion of non-campaign respondents overall who thought this to be necessary dropped to 44%, with 61% of organisations and 41% of individuals taking this view. Among organisations, a large majority of those who disagreed were from the ‘Private landlord, letting agent or their representative bodies’ group.

Around 450 non-campaign respondents went on to provide a comment at Question 13, including some respondents who said ‘no’ or who did not answer the closed element.

Some non-campaign respondents reiterated their opposition to allowing a joint tenant to leave without the agreement of other joint tenants, while others argued that the position of landlords also needs to be safeguarded. Given the potentially serious impacts on remaining joint tenants, it was argued that the Tribunal should be required grant individual release from a mutual liability tenancy.

As at Question 11, some respondents proposed legislative action to ensure that rather than signing a joint tenancy, each tenant receives their own individual tenancy agreement in residences of multiple occupancy, and that this agreement should have the same terms as a PRT. It was argued that, for many tenants, sharing a property is the only viable option and that the current position of joint and several liability, whereby tenants are responsible for each other’s rent payments, should be changed.

As a general point it was also suggested that safeguards for remaining joint tenants should take account of the circumstances under which they became ‘remaining joint tenants’ – for example if they were the perpetrator of abuse against the person who has left the tenancy.

Advice and support

Some non-campaign respondents noted that advice should be available when a tenancy agreement is being signed, to ensure that all parties are clear on the implications of the proposed approach and understand their rights and risks if someone leaves during the tenancy. Specific suggestions included that appropriate information should be produced by the Scottish Government, in a similar format to the Model Tenancy Agreement, and that providing this information should be a statutory requirement. A signing section of the lease highlighting liabilities was also proposed.

With respect to safeguards for remaining joint tenants, some non-campaign respondents highlighted the importance of access to, and awareness of, housing advice and support, with early intervention seen as a key factor in preventing homelessness. Specific topics referenced included:

• Awareness of responsibilities and obligations. Suggestions included that the landlord should be responsible for notifying remaining tenants of their obligations, along with highlighting relevant rights.
• Financial advice around affordability, debt and income maximisation.
• Advice on access to benefits and the impact of joint benefit claims coming to an end.
• Advice on alternative housing options.
• Referral to the local authority if required.

Reference was also made to the Prevention Review Group proposals (consulted on in the recent Prevention of Homelessness Duties consultation) which were thought to provide an important safety net for anyone who might be at risk of homelessness within the next six months. It was suggested that access to advice on ending a joint tenancy should be included as part of the ‘reasonable steps’ offered by local authorities as part of these new duties.

Security of tenure

Several points were made with respect to security of tenure for remaining tenants, including a potential risk that the landlord decides to terminate the tenancy altogether and repossess the property. Protections were proposed to prevent a tenancy coming to an end as long as the rent is paid. It was suggested that the remaining tenant(s) should have the opportunity to renew the contract in their own name(s). However, it was also suggested that there should be an option for the remaining joint tenants to end the tenancy at the same time as the tenant who is leaving.

A further suggestion was that the number of tenancy changes might be limited, such that one cannot be instigated in the first three months, and only one every six months thereafter. It was argued that this would allow remaining and incoming tenants to feel that they have a secure home for at least that period.

Notice

Reflecting comments made at previous questions, it was argued that notice must be provided to fellow tenants, as well as to the landlord, and that in some circumstances longer notice periods could safeguard the position of remaining joint tenants.

Affordability

With respect to affordability for the remaining joint tenants suggestions included:

• That the landlord should carry out affordability checks to ensure the remaining tenant(s) can afford the rent without financial hardship.
• If applicable, the LHA allowance should be retained to assist with affordability issues which may arise.
• There could be a fund which would help to cover with rent until a replacement tenant is found.
• The Scottish Government should support tenants who cannot afford the rent to remain in the property until social housing is available.
• There should be protection from rent increases for a 6-week period.

It was also suggested that the remaining tenants should not be required to pay additional rent or Council Tax to cover a vacancy.

With specific reference to MMR, it was suggested that there could be more flexibility than at the initial letting stage to help the remaining tenant(s) retain their tenancy.

Deposits and arrears

There were calls for consideration, clarity or guidance with respect to procedures in relation to deposits and rent arrears. Points in relation to deposits included a frequent view that the landlord should not be left with a reduced deposit.

It was reported that, at present, the deposit paid by a departing tenant may be transferred into a new tenant’s name, while the new tenant transfers the deposit amount to the departing tenant through a private transaction. It was also reported that this has led to disputes in some cases.

Suggestions relating to how deposits should be managed going forward included that:

• The system for a departing tenant to recover their share of the deposit should not be complex.
• A departing tenant should either forfeit their deposit or wait until the tenancy ends to receive their share.
• The deposit should only be returned following a mandatory inspection.
• Procedures for claims against the deposit for damage while the outgoing tenant was in occupation need to be clarified.
• If other tenants remain, they must be made aware of their obligation to ensure that the deposit held is kept at the full amount stated on the lease.

With respect to arrears, it was suggested that failure to clear arrears accrued before a joint tenant exits the tenancy could leave the remaining tenant(s) in an unfair position and with a poor credit rating. It was argued that:

• A departing tenant must settle their share of any debts before notice can be served or before leaving.
• Arrears should be deducted from the departing tenant’s deposit, although this may not cover all liabilities.
• Landlords should be encouraged to pursue the departing tenant for arrears or repair liability, rather than looking to the remaining tenants.

It was also noted that the remaining tenants may not have been aware of any arrears, particularly in cases of domestic abuse.

Finding and agreeing replacement tenants

On finding and agreeing replacement tenants, comments relating to safeguarding the remaining joint tenants included that:

• The landlord should accept a new tenant as long as they meet basic requirements. Otherwise, it was suggested, a landlord could effectively force tenants out by not accepting a replacement while still requiring the full property rent to be paid.
• Securing another tenant should not be the responsibility of the remaining tenants.
• In the instance of multiple joint tenancies, remaining tenants should have a say in how the vacated room is allocated.
• How existing tenants agree a new tenant should be stipulated – for example whether all tenants must agree or if a majority is acceptable.

Domestic abuse

With respect to situations involving domestic abuse, there was support for provisions to enable joint tenants who have experienced domestic abuse to remain as sole tenant. There was reference to access to advice and support from specialist services and financial advice services. The Preventing Homelessness Duties consultation also referenced in this context as relating to proposed legislation that could potentially give social landlords the opportunity to evict perpetrators of domestic abuse.

There was also reference to training and guidance for landlords and letting agents on dealing with cases of abuse, and clear signposting to specialist services in order to avoid further harms. There was also a call for greater information sharing between agencies and landlords.

Joint tenants who experience domestic abuse in the private rented sector, where appropriate, can remain in the family home as a sole tenant

The consultation paper sets out that the Scottish Government wants to ensure that private tenants who experience domestic abuse are offered the same protection and options to remain/return to the family home as in the social sector. It sought views on introducing a ground to enable a private landlord to apply to the Tribunal to transfer a tenancy to enable a survivor of domestic abuse to remain in the family home as a sole tenant.

Question 14 – Should we introduce a similar ground to that in the social sector, to enable private landlords to initiate eviction proceedings to end a perpetrators interest in a joint tenancy and transfer the tenancy to a tenant who was subject to domestic abuse allowing the victim/survivor to remain in the family home where they wish to do so?
Please explain your answer.

Responses to Question 14 by respondent type are set out in Table 7 below.

Table 7

Q14: Should we introduce a similar ground to that in the social sector, to enable private landlords to initiate eviction proceedings to end a perpetrators interest in a joint tenancy and transfer the tenancy to a tenant who was subject to domestic abuse allowing the victim/survivor to remain in the family home where they wish to do so?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group	1			2	3
Housing, legal or advice agency or professional or representative body	4			4	8
Local authorities and their representative bodies	21	1		1	23
Other private sector		1		2	3
Other professional or representative body		1		4	5
Private landlord, letting agent or their representative bodies	17	14	12	12	55
Public body or agency	3			5	8
Religious group or body	1	2		1	4
Social Landlords and their representative bodies	8			4	12
Tenants’ and residents’ groups and their representative bodies	7			2	9
Third sector organisation	4		1	17	22
Union, student or campaign group	9		1	8	18
Total organisations	75	19	14	62	170
% of organisations answering	69%	18%	13%
Individuals	237	133	155	231	756
% of individuals answering	45%	25%	30%
Total non-campaign respondents	312	152	169	293	926
% of all non-campaign respondents	34%	16%	18%	32%
% of all non-campaign respondents answering	49%	24%	27%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6430	152	169	1683	8434
% of all respondents	76%	2%	2%	20%
% of all those answering	95%	2%	3%

A very substantial majority – 95% of those answering the question – thought a ground should be introduced to enable private landlords to initiate eviction proceedings to end a perpetrator’s interest in a joint tenancy and transfer the tenancy to the tenant who was subject to domestic abuse. Among non-campaign respondents overall, just under half (49% of those answering) agreed, with 69% of organisations and 45% of individual respondents agreeing. Among organisations, most of those who disagreed were from the ‘Private landlord, letting agent or their representative bodies’ group.

Around 430 non-campaign respondents went on to make a comment at Question 14.

Some respondents indicated their support for the proposed new ground, while also noting their own lack of experience in relation to domestic abuse cases. Enabling private landlords to initiate eviction proceedings to end a perpetrator’s interest in a joint tenancy was also seen as sensible, fair and reasonable, and as providing greater protection and security to victim-survivors of abuse. The disproportionate impact of homelessness on women and children who have experienced abuse was also noted. The most frequently-given reason for thinking the proposed new ground should be introduced in the PRS was to provide consistency across the rented sectors, although it was noted that the equivalent ground has not yet been enacted or tested in the social housing sector.

The most frequent reasons for thinking the proposed ground should not be introduced were that this not an appropriate matter for landlords to initiate, or that private landlords are unlikely to have appropriate experience or sufficient information and evidence to intervene in such cases. It was suggested that unplanned, illegal evictions could result. Existing powers to end the interest of any party in a joint lease under the Matrimonial Homes Act 1981 and the Civil Partnership Act 2004 were referenced, and it was argued that these can be used in cases of domestic abuse. Some non-campaign respondents suggested that a judicial process is required, or that action by landlords should only be on the recommendation of the Police or if ordered by a court or the Tribunal. There was also a view that a ground should be available for a tenant to instigate their own action.

As an alternative to the ground proposed it was suggested that provision should be made for a joint tenant (or the local authority on their behalf) to refer the matter to the Tribunal so that it can issue a notice to the landlord ending one joint tenant's interest and transferring the lease into the sole name of the remaining tenant.

A proposed role for the Tribunal is covered at Question 15.

How the ground might work

A number of issues were raised about how a system would work in practice and it was argued that there would need to be defined procedures in place. Specific points were raised with respect to:

• the process being led by professionals
• the need for simple procedures to encourage landlords to engage
• clear guidelines on when it would be suitable to use this ground
• how abuse might be evidenced
• the nature of an appeals process
• ensuring that tenants are aware of the provision
• placing an obligation on the landlord to use the process to protect a tenant if requested to do so when appropriate criteria are met

It was also argued that any issues associated with the victim-survivor of domestic abuse, such as possession of an Anti-social Behaviour Order, should not stand in the way of them being entitled to the tenancy.

Some non-campaign respondents expressed a view that that affordability checks will be necessary to ensure someone who wishes to remain in a property can afford the rent and other liabilities. A fund to provide financial assistance for a remaining tenant was proposed and the possibility of financial assistance for landlords to implement eviction proceedings was also raised.

Providing support for landlords

Some non-campaign respondents identified a need for education, advice and support for private landlords and letting agents with respect to cases involving domestic abuse, and for organisations offering such support to be adequately resourced and equipped. It was suggested that a partnership approach and sharing of good practice would help to support and encourage landlords. Specific suggestions included access to specialist support, detailed guidance and access to free legal advice.

Since social housing providers train their staff to support victim-survivors of domestic abuse, it was suggested that training opportunities might be shared with private landlords. A similar suggestion was that the Scottish Government might make training available for both sectors. It was also suggested that training for landlords could be linked to the landlord registration process.

With respect to content, it was argued that there needs to be a programme of trauma-informed domestic abuse training, statutory guidance and domestic abuse housing protocols in both the social and private rented sectors.

Other points for consideration

Other points raised for consideration in relation to the proposed ground included that:

• Proposed new powers in the social sector are restricted to tenants who have been cohabiting for at least 6 months, while the Domestic Abuse (Protection) (Scotland) Act 2021 considers relationships regardless of whether the victim-survivor and perpetrator live together.
• In some cases, criminal trials involving domestic abuse are taking two years or longer to be heard and, even if an offending partner leaves the home, they still have rights in relation to the tenancy. Changes to criminal legislation would allow the local authority to remove those rights.
• The proposals could cause perpetrators of domestic abuse to be made homeless. It was argued someone at risk of eviction on these grounds should be considered as ‘six months away from homelessness’ and referred as soon as possible to housing assistance/homelessness services.
• Abusive behaviour between flatmates within friendships or casual relationships should also be included in the mechanisms for tenancy transfer.

Finally, concerns were raised that a mechanism established to protect victim-survivors could in fact be used by perpetrators of abuse to exercise control over their victims.

Question 15 – Unlike the social rented sector, private rented sector housing cases are heard by the Tribunal. What are your views on the Tribunal’s role being expanded to consider transfer of tenancy in relation to cases of domestic abuse?

Around 430 non-campaign respondents answered Question 15.

Some respondents noted their agreement that the role of the Tribunal should be expanded and/or their support for greater protection for victim-survivors of domestic abuse. The proposed extension was variously described as appropriate, suitable, sensible and logical. The Tribunal was said to be less formal, adversarial, intimidating and complex than the Sheriff Court. It was also said to be less onerous and more accessible for landlords. Other advantages associated with cases being heard by the Tribunal included that it acts as a one-stop-shop for the PRS, reducing court costs. One suggestion was that a trial period would be appropriate, and that the views of Tribunal members and family law Sheriffs should be sought before proposals are finalised.

Reasons why some other non-campaign respondents thought the role of the Tribunal should not be expanded as proposed included that:

• Domestic abuse cases would require a skill-set and experience completely different to that needed for the other matters dealt with by the Tribunal.
• Asking the Tribunal to make such decisions based on accounts given by the occupants may prove problematic and, in the absence of evidence, accusations might be false.
• The Tribunal is often still very formal and heavy on legalities, with substantial amounts of evidence required. It is inaccessible and intimidating for tenants and an alternative mechanism should be found to enable the transfer of a tenancy.
• The financial costs and time required by landlords and agents will increase.

Issues to be addressed

Respondents also added various caveats to their approval or raised issues with respect to how the proposed expansion of the Tribunal’s role might work in practice.

Tribunal capacity

Concerns were raised with respect to the capacity of the Tribunal system. It was argued that the system is currently under-resourced, has a long back log of existing cases, and would not be able to deal with the additional workload as quickly as necessary for situations involving domestic abuse. Some non-campaign respondents suggested that such cases would need to be fast-tracked, and that the process would need to be both quick and simple to give confidence to tenants. The need for additional resources and improved capacity was highlighted. Specifically, it was suggested that both a significant increase in the number of legal members, and the employment of permanent Tribunal judges, would be required, along with Tribunal offices across Scotland.

Tribunal training requirements

There were queries about whether the expertise of existing panel members would be appropriate for cases involving domestic abuse, and a requirement for additional training was often suggested. Points raised in relation to suitable training included that:

• This must be addressed comprehensively before any cases are transferred.
• There should be engagement with charities and organisations that specialise in supporting victim-survivors of domestic abuse, such as Scottish Women’s Aid and Rape Crisis Scotland.
• Training should be robust, gender-competent and trauma-informed. It could reflect the mandatory training on domestic abuse for new Sheriffs.

It was also argued that the Tribunal process should reflect best practice regarding support for victim-survivors of domestic abuse.

Legal position

Clarification was sought on how the Tribunal’s powers would align with those of the Sheriff and High Court in cases where there is overlap and whether some form of criminal offence conviction would be required to allow the Tribunal to proceed with the transfer of a tenancy.

Other queries included:

• Whether an application to the Tribunal would be made by landlord or tenant?
• Who would be responsible for covering the cost of applications?
• If an automatic transfer up on certain thresholds – such as a police caution or court conviction – would be possible as an alternative?

Tenant privacy and security

Issues were raised with respect to the privacy of victim-survivors of domestic abuse and how their right to privacy would be protected. It was noted that Tribunal cases are published, and it was suggested it may be easier to search the Tribunal decisions database than the court registers, potentially deterring victim-survivors from coming forward.

There were also queries with regard to what victim protection measures would be in place, and it was argued that safeguarding steps would need to be established between proceedings to ensure the safety of the abused tenant. Whether the two estranged partners would need to be in the same room for a hearing, or if representatives could be in attendance instead, was also raised.

Support

The importance of support for victim-survivors to ensure that they are not traumatised by the Tribunal experience was highlighted. It was argued that more funding should be provided to services supporting domestic abuse victim-survivors, along with training in any new legal procedures, so that these services are equipped to support victim-survivors.

There were also queries with respect to:

• The availability of legal aid/support for the tenant
• As above, whether a victim-survivor could be represented or supported by domestic abuse advocates?

The importance of guidance for landlords was also highlighted.

Criteria for consideration

Criteria that should, or should not, be factors in the Tribunal’s decision to transfer a tenancy were also suggested including that the Tribunal:

• should consider the ability of a remaining tenant to pay the rent
• should not have discretion to allow a perpetrator to remain in the home

Question 16 – Should we streamline the eviction process (remove the discretion of the Tribunal), where there has been a criminal conviction relating to abuse of another person living with them in the let property (joint tenant or cohabitee) which is punishable by imprisonment in the previous 12 months?
Please explain your answer.

Responses to Question 16 by respondent type are set out in Table 8 below.

Table 8

Q16: Should we streamline the eviction process where there has been a criminal conviction relating to abuse of another person living with them in the let property (joint tenant or cohabitee) which is punishable by imprisonment in the previous 12 months?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group	1			2	3
Housing, legal or advice agency or professional or representative body	2	2	1	3	8
Local Authorities and their representative bodies	18	2		3	23
Other private sector			1	2	3
Other professional or representative body	3			2	5
Private landlord, letting agent or their representative bodies	31		12	12	55
Public body or agency	1			7	8
Religious group or body		3		1	4
Social Landlords and their representative bodies	6		3	3	12
Tenants' and residents' groups and their representative bodies	5		1	3	9
Third sector organisation	2	1	1	18	22
Union, student or campaign group	4	1	2	11	18
Total organisations	73	9	21	67	170
% of organisations answering	71%	9%	20%
Individuals	347	40	115	254	756
% of individuals answering	69%	8%	23%
Total non-campaign respondents	420	49	136	321	926
% of all non-campaign respondents	45%	5%	15%	35%
% of all non-campaign respondents answering	69%	8%	22%
Campaign respondents	7508				7508
% of campaign respondents answering	100%	0%	0%
All respondents	7928	49	136	321	8434
% of all respondents	94%	1%	2%	4%
% of all those answering	98%	1%	2%

A very substantial majority – 98% of those answering the question – thought the eviction process should be streamlined under the circumstances set out. Among non-campaign respondents overall 69% agreed, with similar levels of agreement between organisations (71%) and individual respondents (69%).

Around 335 non-campaign respondents went on to make a comment at Question 16.

Some non-campaign respondents saw the proposed streamlined eviction process as sensible or appropriate. Specific benefits identified included that it would:

• Make the process as quick as possible and address concerns regarding timescales for the Tribunal to hear cases.
• Protect and provide security for the remaining tenant.
• Be consistent with practice in the social housing sector.

From the perspective of the remaining tenant, it was argued that the stress associated with going through the Tribunal process would be removed and additional scrutiny avoided.

It was also suggested that a streamlined process will help landlords. However, experience in the social housing sector was reported to be that, although the Housing (Scotland) Act 2014 introduced streamlined eviction processes, in practice Courts did still want to consider reasonableness and proportionality. It was suggested that if the Tribunal took a similar approach, landlords would have to be prepared to address issues of reasonableness and proportionality.

Some non-campaign respondents who did not agree that the process should be streamlined as described argued that a mandatory approach would not be suitable, each case should be assessed on merits, and that a one-size-fits all solution should be avoided. There was also a query as to why the streamlined process should apply to abuse-related but not other criminal convictions. It was also suggested that:

• Removal of rights as a tenant without a meaningful hearing may be in breach of Article 6 and/or Article 8 of the Human Rights Act 1998, and that evictions may therefore be susceptible to appeal.
• The benchmark of a criminal conviction relating to domestic abuse punishable by imprisonment in the previous 12 months is set too high. Instead, it was argued the requirement should be conviction on domestic abuse in the previous 12 months, rather than imprisonment.

Caveats

Requirement for conviction resulting in imprisonment

There were requests for further consideration to be given to the requirement for the perpetrator of abuse to have received a sentence of imprisonment in the previous 12 months. Associated comments were that:

• The majority of people do not report domestic abuse to the Police at all, and the majority of reports do not result in the perpetrator receiving a criminal conviction or a prison sentence.
• There is in any case a move away from imprisonment towards Community Payback Orders.
• A sentence of imprisonment relating to the abuse of another person might pre-date the 12-month timescale proposed.

As an alternative to the proposed action via the Tribunal, it was suggested that it might be appropriate for the courts to grant a full exclusion order, including striking down any tenancy-based entitlement at the point of conviction.

It was also argued both that many cases that do not result in custodial sentences could benefit from streamlined eviction processes, and that the same principle should also apply to other criminal convictions for actions at the property.

Respecting the wishes of the victim-survivors of abuse

The agreement of the victim-survivor was also seen as essential, and there was a view that it should be for the victim-survivor tenant to initiate proceedings, or for the local authority to do so on their behalf. It was also reported that many people affected by domestic abuse cannot or do not want to have the perpetrator evicted for a number of reasons.

Concerns were also raised that there might be situations where:

• The landlord wants to use this ground contrary to the wishes of the victim-survivor.
• The victim-survivor feels under pressure to stay in the property when they do not wish to do so.
• The victim-survivor wants a joint tenant to be evicted but the landlord is unwilling to take action.
• A landlord uses the process to evict both joint tenants, although only one has received a criminal conviction. Since the underlying criminal offence is disproportionately committed by men, it was suggested that women could be disproportionately affected by this scenario.

With respect to the last point, the Scottish Government was asked to analyse and share data on the use of streamlined eviction and any impacts on women.

Alignment with other regulations

It was noted that the PRT already has a ground (ground 15) that allows landlords to evict tenants who are convicted of an offence punishable by imprisonment and that this should cover domestic abuse. However, it was also said to be unclear how long it currently takes to evict tenants based on this ground, and whether this process needs to be streamlined. It was also noted that the 2016 Act currently has no provision for ground 15 to be used to end a tenancy for just one tenant and that, if used in these circumstances, it would end the tenancy for all joint tenants.

Any proposal for a new ground to be mandatory was seen as being at odds with proposals in the Coronavirus (Recovery and Reform) (Scotland) Bill that all grounds for possession should be discretionary.

Housing requirement for the evicted tenant

Some non-campaign respondents highlighted the housing requirement of the evicted tenant, including the need to recognise that the perpetrator will have a right to be housed somewhere and that additional pressure may be put on homelessness services. The need for early referral to these services was noted, although it was also observed that the perpetrator may be in prison.

Other issues raised

A number of other issues were raised, including that an eviction should:

• be reviewed if the relevant conviction is overturned
• not be delayed by any provisions to prevent winter evictions

Question 17 – How can we help improve the immediate and longer term housing outcomes of domestic abuse victims living in the private rented sector?

Around 370 non-campaign respondents made a comment at Question 17.

Some respondents referenced topics covered at earlier questions, including the importance of applying the Domestic Abuse (Protection) (Scotland) Act 2021 within the PRS. The establishment of a Tenant Participation Panel and/or the role out of tenants’ unions were also seen as important in ensuring representation for those who have experienced domestic abuse. It was seen as important that victim-survivors have a voice in shaping policy in this area.

It was also noted that, although the question concerns housing outcomes for domestic abuse victim-survivors living in the PRS, action is needed throughout rented housing and in relation to homelessness policy and practice. It was suggested that better integration of homelessness policy with wider housing policy and practice, incorporating a gendered perspective, would also improve housing outcomes.

Support for victim-survivors

Comments in relation to advice and support for PRS tenants who are victim-survivors of domestic abuse included the need for access to specialist services, including housing options advice and access to housing support. Specific suggestions included:

• Involving Scottish Women’s Aid and other key partners.
• Making a trauma-informed response, including ensuring that women have access to independent domestic abuse advocacy services.
• Acknowledging the importance of building a good relationship between local authorities and women from the start, reducing their vulnerability.
• Considering whether the perpetrator or their family/friends live nearby and whether additional measures are needed to avoid harassment or abuse.
• Providing ongoing support to those who have experienced domestic abuse, recognising that there can be life-long repercussions.

There was a call for a multi-agency approach to providing advice and support to domestic abuse victim-survivors, regardless of tenure, and for improved funding for organisations working in this area.

Financial support

Financial consequences of economic abuse – for example on a victim-survivor’s credit rating and ability to find a deposit – were said to increase the difficulty of accessing alternative housing. It was argued that housing policies which mitigate these barriers would help to improve outcomes.

In terms of specific financial support to victim-survivors, suggestions included

• A fund to enable a survivor of abuse to remain in their home. For example, access to support to cover rent in the months following tenancy changes.
• A dedicated payment to support people to prepare, leave and establish themselves after leaving. For example, funding for a deposit and the first month’s rent if a victim-survivor decided to move or temporary support with rental payments while alternative accommodation is found.
• Financial support targeted at sustaining tenancies for victim-survivors, potentially part-funded by unclaimed deposits.

Finding alternative accommodation

With respect to moving to alternative housing it was argued that victim-survivors should be:

• Provided with priority access to temporary accommodation.
• Provided with tenancies with protection and wrap around support as in the Housing First model for people experiencing homelessness.
• Offered accommodation in areas that are not linked to the perpetrator or their family, friends and work.
• Be supported to access social housing more easily with allocation policies reflecting this priority need. Monitoring of domestic abuse presentations through the social housing waiting list and the homeless route to track outcomes and inform best practice was suggested.

It was reported that housing protocols may advise a victim-survivor who has moved to a refuge to present their case as a homeless person rather than as fleeing domestic abuse, meaning they may lose housing priority based on domestic abuse. The respondent making this point argued victim-survivors who have no choice but to flee a domestically abusive situation should retain housing priority based on domestic abuse, regardless of where they are subsequently accommodated.

Other suggestions included that short-term lets of holiday rentals could be used to provide emergency accommodation for victim-survivors, but that this is not possible under current PRT legislation.

Some respondents highlighted issues of around affordability in the PRS, with one ‘Third sector’ respondent reporting the experience of their own members that rental costs mean very few women are able to remain in the PRS after separating from an abusive partner or when rehoused from a refuge. There were calls for:

• Increased availability of affordable housing options. Provision of more social housing.
• Rent controls to tackle the affordability crisis.
• Improved understanding of why benefits are not accepted by all PRS landlords and how this barrier can be overcome. It was argued that a widespread ‘no DSS’ policy discriminates against women, who are twice as likely to dependent on welfare benefits as men.
• Encouragement of MMR landlords to use social stock to facilitate domestic abuse management transfers.

The availability of sufficient accommodation for the perpetrator was also highlighted.

Support for Landlords

Private landlords were also thought to require access to advice, guidance and support, with guidance detailing how domestic abuse victim-survivors can be supported and who to contact if they suspect domestic abuse is happening at their property. It was reported that there have been circumstances where a lack of understanding of domestic abuse on the part of landlords and letting agents has inadvertently resulted in collusion with a perpetrator.

Providing landlords with education or opportunities to attend training on domestic abuse was proposed and it was suggested that the Scottish Government should work with stakeholders to develop guidance for PRS landlords similar to ‘Domestic abuse: a good practice guide for social landlords’ produced for the social sector by the Chartered Institute of Housing and Women’s Aid.

Other comments included that training could be part of the landlord registration process and that there could be incentives for already registered landlords to attend. It was also argued that all landlords should be required to have a domestic abuse policy.

The importance of ensuring that PRS landlords and letting agents are aware of changes in legislation was also highlighted, with a suggestion that information and signposting should be available via the Citizens Advice Bureaux, council websites, letting agents, the Landlord Registration website, and Landlord Accreditation services. It was argued that landlords should know about, or should have a duty to signpost to, appropriate services to help victim-survivors. It was also suggested that they should be held accountable if they fail to do this.

However, there was also a view that responsibility for safeguarding victim-survivors of domestic abuse cannot realistically lie with landlords.

Improving security and dealing with property damage

The importance of the physical security of a property was also raised, with a view that a new Regulator or tenants’ union should look at this issue as a priority.

It was suggested that landlords could: carry out security checks, ensuring locks and door entry systems are in working order; encourage other households to ensure common access areas are secure; and/or install additional safety measures. Provision of funding for private landlords to improve security or install alarms was suggested and it was reported that, in some areas, PRS landlords can access contractors used by Registered Social Landlords (RSLs) who are aware of the particular needs of domestic abuse victim-survivors.

Damage to the property during a period of abuse was also referenced with suggestions that:

• Clarity is needed relating to instances when the property was damaged as a result of the abuse/during the period of abuse.
• In line with processes in social housing, victim-survivors who have a Police crime reference number should be able to make a claim for damage to the property on their landlord’s insurance.

Role of local authorities and agencies

A requirement for further education and awareness-raising for housing sector staff and agencies was also identified. It was reported that Scottish Women’s Aid has found that some local authority staff questioned the validity of women’s experiences of abuse and homelessness, or failed to challenge their partner’s entitlement to remain in the home.

There was a call for dedicated PRS teams within local authorities that could:

• Provide a landlord-tenant liaison service that would help to embed good practice regarding responding to domestic abuse and gender-based violence.
• Offer support to tenants, including to access all benefits to which they are entitled.

The need for Police intervention and effective court action to restrain perpetrators of abuse was also highlighted.

Status of students

It was reported that students can find themselves in situations that do not meet the definition of domestic abuse but where they have been or are being abused by a flatmate or a casual partner in a joint tenancy. It was argued that such situations should also be considered under the legislation.

Tenancy Deposit Schemes (TDS) – use unclaimed deposits to improve and benefit the private rented sector

The Scottish Government is proposing to legislate to enable the reinvestment of unclaimed deposits. Given these deposits should be returned to private tenants, they think it is only right that any reinvestment is to the benefit of tenants living in the PRS – for example, to fund the provision of additional tenant advice or advocacy services, or to support the development of tenants’ unions or other forms of representation in Scotland.

To ensure tenants have sufficient time to claim back the deposit, the proposal is that this action would only be taken after a period of 5 years has elapsed and where all other reasonable efforts to reunite the tenant with their deposit has been exhausted.

Question 18 – If unclaimed deposits were to be reinvested, do you agree that the period after which the funds would be available for reinvestment should be: i) after all avenues to reunite deposits with their tenants have been exhausted, and ii) after a period of 5 years?
Please explain your answer.

Responses to Question 18 by respondent type are set out in Table 9 below.

Table 9

Q18: If unclaimed deposits were to be reinvested, do you agree that the period after which the funds would be available for reinvestment should be: i) after all avenues to reunite deposits with their tenants have been exhausted, and ii) after a period of 5 years?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group	1			2	3
Housing, legal or advice agency or professional or representative body	6			2	8
Local authorities and their representative bodies	16	2	2	3	23
Other private sector		1		2	3
Other professional or representative body	3			2	5
Private landlord, letting agent or their representative bodies	38	5	4	8	55
Public body or agency	2			6	8
Religious group or body	3			1	4
Social Landlords and their representative bodies	8		1	3	12
Tenants' and residents' groups and their representative bodies	5		1	3	9
Third sector organisation	1		2	19	22
Union, student or campaign group	9			9	18
Total organisations	92	8	10	60	170
% of organisations answering	84%	7%	9%
Individuals	337	104	88	227	756
% of individuals answering	64%	20%	17%
Total non-campaign respondents	429	112	98	287	926
% of all non-campaign respondents	46%	12%	11%	31%
% of all non-campaign respondents answering	67%	18%	15%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6547	112	98	1677	8434
% of all respondents	78%	1%	1%	20%
% of all those answering	97%	2%	1%

A very substantial majority – 97% of those answering the question – agreed with the suggested criteria after which unclaimed deposits can be reinvested. Among non-campaign respondents overall the level of agreement dropped to 67%, with the remaining respondents quite evenly split between those who disagreed and those who did not know. Organisations were more likely to agree than Individual respondents at 84% and 64% respectively.

Around 420 non-campaign respondents went on to make a comment at Question 18.

Many non-campaign respondents who agreed expressed a view that the proposals are reasonable or appropriate or, specifically, that the timescale is reasonable. Some noted that they agreed provided that both conditions are met.

Among non-campaign respondents who disagreed, some argued that the proposed period of 5 years is too long, while others thought it too short or that unclaimed deposits should not be reinvested at all.

Conditions to be met

Respondents also highlighted a number of conditions they would wish to see fulfilled before the proposals were taken forward.

Arrangement understood by all parties

It was argued that the proposed arrangements must be clear to all parties from the outset. There were several suggestions with respect to reducing the risks of deposits going unclaimed in future, including that:

• The tenant must be informed where the deposit is registered and how to contact the TDS holding it.
• The time limit for reclaiming deposits, and the need to maintain up-to-date contact details, should be highlighted when a tenancy commences.
• The TDS should obtain multiple means of contacting a tenant. Where details are missing, it was suggested a TDS might acquire email addresses and phone numbers by writing to a property to encourage tenants to sign up.
• As some students have become uncontactable due to the expiry of their academic email address, it should be standard practice to encourage the use of non-student email addresses.
• When either party gives notice, the tenant should be made aware where their deposit is held and how it can be reclaimed.

An additional proposal was that, when lodging a deposit, the tenant could indicate where they would want the deposit to go (for example to a homeless charity) in the event that they cannot be contacted and do not reclaim their money.

All avenues exhausted

There were calls for clarification of what exhausting ‘all avenues’ would mean in practice, with suggestions that there should be:

• Clarity and guidance on the extent of the checks and tracing that should be undertaken to find tenants and return the deposit.
• Evidence, or specifically auditable evidence, of the efforts made to transfer the funds to the tenant.
• Scope for TDS providers to take account of individual circumstances that may have stopped an individual reclaiming their deposit schemes – for example if proceedings are ongoing in relation to the deposit.
• Publication of a list of deposits that are soon to be re-invested on a government website, with a further period allowed for claims and with precautions against fraudulent claims.

It was also suggested that any provision to reinvest the deposit must also prevent claims against either the landlord or the TDS after the 5-year period.

5-year timeframe

As noted above, some non-campaign respondents thought 5 years is a reasonable time after which an unclaimed deposit could be reinvested. It was observed that this is in line with the arrangements for prescription of debt, as set out in the Prescription and Limitation (Scotland) Act 1973.

Other non-campaign respondents thought that 5 years is, or might be, too long. The most frequently suggested alternative was one year or less, with two or three years were also proposed.

A minority view was that 5 years may not be long enough. Non-campaign respondents taking this view tended to refer to 10-year timeframe. Reasons given for a longer period included that 6 years is the usual time limit for financial matters the UK and that the UK Government’s Dormant Asset Scheme makes use of money held in dormant accounts that have not been used for 15 years or more. It was argued that someone returning from a period overseas might reasonably expect to be able to access their deposit. Further exploration of the profile of unclaimed deposits and their owners was suggested.

Suggested uses for unclaimed deposits

Many respondents recommended uses for unclaimed deposits. General points included that proposals should be drawn-up in conjunction with all stakeholders and subject to appropriate scrutiny and consultation. There were also queries with respect to:

• What would be an appropriate mechanism to ensure funds are properly reinvested to give support within the private sector?
• Whether reinvested funds would be apportioned nationally or at local level?

The more frequently-made suggestions for reinvestment of unclaimed deposits were:

• Provision of additional tenant advice or advocacy services, with a specific suggestion that funds should be ring-fenced to enable ‘access to justice’ through the provision of pro bono tenant legal services.
• Funding tenants’ unions or other forms of tenant representation, or that a tenants’ union should be consulted on how the money is allocated.
• A deposit guarantee scheme or means tested grant funding for deposits to enable people who cannot otherwise afford a deposit to secure accommodation in the PRS. Any money owed back to the tenant at the end of the tenancy would be returned to the scheme to be used for other tenants.
• Continuation of the current Tenant Grant Fund, or an alternative rent guarantee/tenancy sustainment support scheme, to help lower income tenants with rent payments. Supplementing incomes of remaining tenants in instances of domestic abuse was also proposed.
• Reinvestment into other housing programmes, particularly programmes to support people experiencing homelessness. Housing First models were referenced specifically.
• Returning deposits to landlords or providing support to landlords in meeting new standards.

On this latter point, some non-campaign respondents thought unclaimed deposits should go back to the landlord for reinvestment in the property or for repairing damage. Others argued that receipt of unclaimed deposits should be conditional on improving the property and that landlords should be required to evidence the investments made in the property or provide receipts for work at the property prior to claiming the tenancy deposit. It was also suggested that landlords should apply for grants to cover repairs and maintenance to help keep buildings wind and water-tight.

Less frequently-made suggestions for use of unclaimed deposits included:

• Using some funds to advertise the mechanism to reclaim deposits, for example on social media.
• Investing in Student Associations to assist with student housing advice services and tenants’ information campaigns.
• Improving landlord registration services, including provision of advice and assistance to landlords.
• Development of training opportunities for landlords.
• Providing incentives for landlords to accept pets or covering clean-up costs associated with pets.

Chapter 3 – Greater flexibility to personalise a rented home

Chapter 3 of the consultation paper considered options relating to the keeping of pets and the right to personalise a rented property.

Allowing people to keep pets

Currently pets are generally allowed only by explicit written agreement and where a landlord agrees for their tenant to keep pets, the Model PRT Agreement outlines the expectations that pet owners must meet. The Scottish Government noted their interest in views on how best to encourage more pet-friendly tenancies.

Question 19 – How could a right to keep pets be most effectively introduced for the private sector, for example by the introduction of a statutory right or by amendment to the Model Tenancy Agreement, and should exceptions be allowed?

Around 750 non-campaign respondents made a comment at Question 19, one of the highest comment rates across the consultation. Responses also tended to be longer than at many questions.

Although the question asked how a right to keep pets could be most effectively introduced, many of the comments addressed the rights or wrongs of introducing such a right in the PRS.

Reasons for supporting a right to keep pets

The most frequently-made point was that, to achieve ‘tenure blind’ housing outcomes and enshrine tenants’ rights to housing, private tenants should have the right to keep pets in their home. Many other comments, particularly those relating to the welfare of tenants and animal, appeared to apply to both the private and social rented sectors, although some were specific to the PRS.

A number of animal welfare-focused ‘Third sector’ respondents referred to their own research into the nature and scale of the issue, including UK-wide survey findings that 51% of tenants had experienced no issues with keeping a pet in their rental property, with no damage caused to the property and the landlord being understanding of pet ownership.

Comments often focused on the importance of pets to people’s emotional life as well as mental health. For example, it was reported that 94% of Scottish cat owners say their cat is part of their family and 95% of tenants who are allowed a cat get positive impacts from having one, including improving their mental health, making them happy and keeping them company. Most recently, it was suggested that the COVID-19 pandemic has highlighted just how vitally important pets are to their owners and that, for many people, they are literally a lifeline. Nevertheless, it was reported that too often cat owning renters face the heart-breaking situation of being forced to give up their cat because of a lack of pet-friendly rented homes.

In terms of all types of pet, it was also reported that 9% of tenants said they had been forced to give up their pets in the past because they were unable to find a suitable property where their pet(s) would be accepted. A ‘Third sector organisation’ respondent also reported that one of the most frequent reasons dogs are handed in to their rehoming centres is a change in the owner’s circumstances, including being unable to live in a rented property with a pet. They also referred to a survey of landlords finding that only two in five private landlords allow dogs.

There was also reference to the particular importance of pet ownership for some groups of people, including that positive pet policies can be crucial to people with experience of homelessness making a smooth transition from hostel into temporary accommodation, especially since many housing providers use PRS properties as temporary accommodation.

It was also noted that research suggests a strong link between animal abuse and domestic abuse, with perpetrators of abuse often threatening or harming a pet in order to intimidate their partner. It was reported that victim-survivors often will not leave their home if they are unable to take their pet with them.

Reasons for disagreeing with a right to keep pets

Other respondents, including many ‘Private landlord, letting agent or their representative bodies’ and ‘Individual’ respondents, raised significant concerns about any right to keep a pet being introduced. Connected concerns included that pets can and have caused problems, including some respondents reporting that they have experienced such problems as landlords. A ‘Private landlord representative body’ respondent reported that a 2020 member survey found that, amongst landlords who have allowed tenants to have pets in the past, 44% experienced problems with allowing cats in their rented properties and 53% experienced problems with allowing dogs in their rented properties.

In terms of the types of problems landlords reported, there was reference to:

• Damage to the property and/or to the floor coverings and furnishings. Some private landlords referred to their own experiences, with reports of damage to walls, doors and skirtings, floor coverings and even floorboards needing to be replaced, and furniture being destroyed or damaged so badly that it too needed to be replaced. There were also references to the substantial costs and inconvenience associated with the necessary repairs and replacements.
• Potentially irreversible damage to listed or traditional properties.
• Specific issues associated with rural properties, in particular with dogs in properties near to areas where livestock is kept.
• Anti-social behaviour problems, particularly related to dogs, and including barking and fouling. It was suggested that the impact on neighbours and the surrounding area must be taken into consideration.

It was also noted that landlords could have allergies or phobias relating to certain types of pets and that allergies could also be a problem for future tenants wanting to move into the property. In relation to shared accommodation, including properties let on a ‘room only’ basis, it was suggested that the introduction of a pet by one tenant might led to concerns or an allergic reaction for other tenants within the property.

A frequently-expressed view was that, rather than a general right, each situation must be assessed on its merits. However, some who did not agree with a general right did note that there should be an exception, and by extension a specific right, for people to keep assistance animals, and in particular for Guide or Hearing Dogs.

More generally, however, it was suggested that tenants should be required to request permission in advance, which should not be unreasonably withheld. Some private landlords noted that this is already the approach they take and that it works well. This included landlords who reported that they have allowed or do allow pets where the circumstances – and in particular the type of property – permit. Overall, it was suggested that the current approach works well and there is simply no need for change.

In conclusion, it was reported that some landlords feel so strongly about this issue that they would leave the sector if a right to keep pets is introduced. A small number of ‘Individual’ or ‘Private landlord’ respondents said that they would stop operating as a private landlord if their choice to refuse permission for a pet was removed.

Overall approaches

Those who supported a right to keep pets generally suggested it should be a statutory right, and there was a suggestion that it should be written into the Model Tenancy Agreement.

Other comments on amending the Model Tenancy Agreement that it should allow for pets in the PRS but that it should not be set out as a right. Some noted that they agreed with making keeping a pet the default position, with the landlord having to object in writing within a set time period. This was also articulated as a right to request keeping a pet with permission not be unreasonably withheld.

However, there were also concerns about any approach that was focused only on changes to the Model Tenancy Agreement and/or based on consent for keeping pets being the default position. It was reported that an amendment to the UK Government’s Model Tenancy Agreement in February 2021 (which made consent for pets the default position) has had little impact, including a low level of awareness among landlords. A ‘Third sector organisation’ also reported survey findings that a third of private landlords who do not always allow pets said nothing would persuade them to do so. There was also a concern that merely amending the Model Tenancy Agreement would mean changes would only apply to landlords who are willing to use that agreement.

Whether a statutory right or not, a number of non-campaign respondents acknowledged that certain issues would need to be taken into account. For example, it was noted that:

• Potential limitations could be considered, for example in relation to the number and type of pets.
• Connected to this, there could also be conditions relating to the suitability of the property. There should be a requirement that a property is suitable for the pet, with the landlord allowed reasonable discretion to refuse consent, subject to the jurisdiction of the Tribunal. There was reference to a ‘Pet CV’ being used to help determine if a property is suitable for a pet and if the landlord is reasonably refusing the keeping of that pet.
• There may need to be an exception when title deeds dictate no pets in the property.
• It would not be appropriate or legal where a tenant/prospective tenant has committed an animal welfare offence and has been banned from keeping a pet.

Specific requirements or suggested actions

If ‘consent being the default position’ were to be the preferred option, there was a call for it to be supported by appropriate guidance for landlords on how to put the changes into practice. Associated suggestions were that the Scottish Government would need to:

• Promote to landlords the benefits of adopting pet friendly properties. There was reference to awareness-raising on the positive health and wellbeing effects of having a pet, which will in turn increase tenancy sustainment and satisfaction.
• Encourage tenants to ask their landlord if they would consider allowing pets, even if the property is not advertised as pet friendly.

There were also suggestions relating to the types of incentives or assurances that could be offered to landlords to encourage them to rent to people with pets. These included:

• Increasing the maximum deposit that landlords are permitted to take if the tenant is being given permission to have a pet in the property. However, it was also noted that deposits can already be used to act as a guarantee against damage to the property or cleaning bills if the property is left in poor condition. A frequently-made point was that deposits should not be greater for pet owners.
• Enabling landlords to charge more than the market rent for a property which is going to be occupied by tenants with pets – in the form of additional rent or a monthly service charge – to cover the additional wear and tear which the property will experience as a result of the pet.
• Allowing landlords to charge an upfront fee at the start of the tenancy to cover the cost of having the property professionally cleaned and carpets shampooed at the end of the tenancy.
• Requiring tenants to take out pet damage insurance or allowing landlords to require/request that tenants take out insurance. In terms of possible advantages to this approach, it was noted that it would provide tenants with an incentive to be responsible in order to build up their no claims discount. A ‘Third sector’ respondent reported survey findings that 42% of landlords would consider pets if they could insist on insurance against damage caused by those pets. It was also reported that 57% of dog owners and 55% of cat owners said they would be willing to take out pet insurance if required by landlords. However, there were also concerns that the costs could be unmanageable.
• Being able to require a deep-clean of the accommodation paid for by tenants at the end of their tenancy period.

Other comments addressed ways of ensuring that any rights that tenants have can be exercised. Suggestions included that:

• There should be clear and easy ways for tenants to contest landlords discriminating against tenants on the basis that they have pets.
• If landlords are able to withhold permission under certain circumstances, there must be a way for tenants to challenge a decision they feel is unreasonable. This could be at the Tribunal or through a complaint to another redress scheme.

Finally, there was a query as to how a private landlord could end a tenancy if pets were causing damage or being a persistent nuisance to neighbours, and whether this might be based on ground for eviction 11 (Breach of tenancy agreement) or 14 (Anti-social behaviour)?

Question 20 – Should the right to keep pets also be introduced as a right in the social sector?
Please explain your answer.

Responses at Question 20 by respondent type are set out in Table 10 below.

Table 10

Q20: Should the right to keep pets also be introduced as a right in the social sector?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group			1	2	3
Housing, legal or advice agency or professional or representative body	5			3	8
Local authorities and their representative bodies	11	8	1	3	23
Other private sector	1			2	3
Other professional or representative body	1	2		2	5
Private landlord, letting agent or their representative bodies	12	14	16	13	55
Public body or agency	1		1	6	8
Religious group or body		2		2	4
Social landlords and their representative bodies	4	5	1	2	12
Tenants’ and residents’ groups and their representative bodies	3	3	1	2	9
Third sector organisation	7	1	2	12	22
Union, student or campaign group	9		1	8	18
Total organisations	54	35	24	57	170
% of organisations answering	48%	31%	21%
Individuals	141	309	120	186	756
% of individuals answering	25%	54%	21%
Total non-campaign respondents	195	344	144	243	926
% of all non-campaign respondents	21%	37%	16%	26%
% of all non-campaign respondents answering	29%	50%	21%
Campaign respondents	7508				7508
% of campaign respondents answering	100%	0%	0%
All respondents	7703	344	144	243	8434
% of all respondents	91%	4%	2%	3%
% of all those answering	94%	4%	2%

A very substantial majority – 94% of those answering the question – thought that the right to keep pets should also be introduced as a right in the social sector. The proportion of non-campaign respondents thinking this right should be introduced dropped to 29% overall, although agreement was higher among organisations than individual respondents (at 48% and 25% respectively). ‘Social landlords and their representative bodies’ and ‘Local authorities and their representative bodies’ respondents were both relatively evenly divided on the issue.

Around 445 non-campaign respondents made a comment at Question 20, although some simply referred back to their comments at the previous question. These comments often related either to the problems that landlords might experience if tenants had a right to keep pets or to the importance of being able to keep a pet, especially in relation to wellbeing. Others noted that they either did not have experience of the social sector, or that they thought it was an issue for those living and working in the social sector to decide on.

The most frequently-made point was that the approach should be tenure-neutral, with those who supported a right to keep pets in the PRS often going on to state that an equivalent right should be introduced for social tenants. There was particular reference to people sometimes being forced to choose between keeping a much-loved pet and being able to move into stable accommodation. It was suggested that a person who finds themselves homeless may have to choose between accessing temporary accommodation or keeping their pet.

Other comments included that, in reality, this already common practice in the social sector, albeit that certain exclusions are likely to be in place. ‘Social landlord’ and ‘Local authority’ respondents were amongst those referring to their own approach, including to allowing one pet without permission but additional pets requiring permission. Other comments included that:

• Out of consideration for neighbours the new right should allow for some restriction on numbers and to normal domestic pets.
• Restrictions should also be possible in some other limited circumstances – for example in specialist housing projects at the discretion of the landlord and in consultation with customers.
• Some of the approaches suggested for the PRS, such as pet CVs, responsible pet contracts and pet deposits, could also be applied to the social sector. However, financial support must be put in place if a pet deposit is required or if funding for a deep clean of the property once vacated is a prerequisite.

However, whether there is any evidence that the current approach is not working well was questioned. It was suggested that an unqualified legal right to keep pets would remove the current, important element of discretion for landlords to withhold consent in a small minority of cases, and that this would not be in the interests of tenants or residents/neighbours more widely. A ‘Local authority’ respondent gave the example of not allowing dogs in some of their blocks of flats.

Further comments included that:

• There is already sufficient detail in Scottish Secure Tenancy.
• There should always be the requirement to seek permission from a landlord and that permission should be on the assumption that nuisance is not caused by the keeping of pets.
• There should be a distinction between the right to the keeping of animals as pets predominantly indoors and animals which live/ housed permanently outdoors.

Amend the Private Housing (Tenancies) (Scotland) Act 2016 to allow people to personalise their home by internal decoration

The consultation paper notes that under the PRT, the tenant needs to get the landlord’s written consent, in advance, before making any alterations to the property to fixtures and fittings or internal/ external decorating. It is entirely up to the landlord whether they agree to any of these things being done. However, the landlord cannot unreasonably refuse any request by the tenant for adaptations, auxiliary aids or services under section 52 of the Housing (Scotland) Act 2006 or section 37 of the Equality Act.

The Scottish Government was interested in views on how the current framework could be adapted to enable a right to personalise a privately rented home including on what an appropriate definition of personalisation should be, responsibility for returning the property to an equivalent standard at the end of the tenancy, and how disputes should be resolved.

Question 21 – How could the right to personalise a privately rented home be most effectively introduced for the sector and what is an acceptable definition of personalisation? For example, should the property be returned to the original state by the tenant where there is no explicit agreement between the tenant and landlord?

Around 750 non-campaign respondents answered Question 21.

Although the question asked how a right to personalise a property could be most effectively introduced, many of the comments addressed the rights or wrongs of introducing such a right in the PRS.

Reasons for supporting a right to personalise a privately rented home

The most frequently-made point was that, to achieve ‘tenure blind’ housing outcomes and enshrine tenants’ rights to housing, tenants should be able to redecorate their homes.

Other comments included that many private tenants do not feel as though their home is actually theirs as they are unable to personalise it. It was suggested that being able to make your home feel personal to you can increase mental wellbeing, as well as feelings of choice and control. It was also suggested that tenants may be inclined to take better care of the property and stay longer.

A specific comment relating to MMR was that tenants feel there is little loyalty towards long-term renters in the MMR sector, and no incentive for them to invest in their homes. This included because the value of any improvement is gained by the landlord or subsequent tenants if the tenancy ends.

A number of those who referred to tenants having a right or entitlement to personalise their rented homes did go on to comment that landlords should be able to insist that the property is reinstated to its original condition or to a condition agreed at the initial point of let. Some also noted that, if this is not done, landlords should be entitled to claim on the tenant’s deposit to cover works required.

Further comments included that, in many countries, tenants have an unrestricted right to personalise their home with non-structural modifications without prior agreement, but that departing tenants are required to restore decorative elements, such as wallpaper or wall colour, to either the same as it was at entry or to a neutral colour.

There was also reference to tenants’ rights to modify a house with accessibility aids, such as stairlifts or wet room conversions, being enshrined, such that landlords must facilitate these modifications when required. This issue is covered in further detail at Question 60.

Reasons for not supporting a right to personalise a privately rented home

Many non-campaign respondents raised concerns about a right to personalise being introduced. It was noted that properties need to be let in good condition for a new tenant coming in and, in general, this is done in neutral paint tones in order to appeal to as broad a market as possible.

A number of non-campaign respondents, including ‘Private landlord’ and ‘Individual’ respondents, thought that it is understandable that tenants wish to personalise their home, with further comments including that the majority of decoration is unlikely to be an issue. However, it was also reported that problems that can arise. For example, it was reported that the use of very strong colours can make properties difficult to re-let or can result in a lot of work being required to get it back up to standard prior to re-let. It was also noted the PRT has no minimum term, so tenants could make changes such as these but only stay in the property for a relatively short time.

There were also reports of some of the types of changes tenants had made to properties and the costs that landlords had incurred. Examples included walls painted black, stencilling in metallic paints and the use of stick-on embellishments that are very difficult to remove, and which can leave damage to the plaster. It was also reported that poor quality of workmanship can be a big issue: for example, there were reports of tenants painting walls without moving furniture or protecting sockets or skirtings. It was noted that the landlord can then face the cost of redecoration of an entire room to put these types of issues right.

The associated concern was that the landlord has no way of enforcing a requirement to return the property to the original state when the tenant moves out. It was also noted that to do so may cost well in excess of the deposit, and in any case the deposit may be needed to cover other losses. A follow up point was that there is the potential that landlords will have to seek higher initial deposits which could have a detrimental impact on the ability of lower earners to be able afford a deposit, so denying them access to otherwise affordable homes. For example, a small number of ‘Private landlord’ respondents commented that if a right to personalisation is introduced, they will increase the deposit they require from the current one month up to two-month’s rent.

A number of non-campaign respondents stressed that, in their view, being able to personalise a property must remain at the discretion of the landlord, and is best handled by agreement between tenant and landlord.

As in relation to keeping pets, some ‘Private landlord’ and ‘Individual’ respondents reported that their current practice would be to allow personalisation under some circumstances. There was reference to being comfortable the tenant can, and will, reverse any changes they make if the landlord considers that those changes would not suit successor tenants or where they have no plans to renovate at the end of the tenancy.

Also as in relation to a right to keep pets, it was reported that some landlords’ concerns about tenants being permitted to personalise properties are such that they would exit the sector if their choice to refuse permission was removed. However, others did suggest that they would be content for a right to be introduced if there was a mechanism to ensure that the property is not damaged or de-valued by the decoration.

Approaches and specific actions

An overarching observation was that, if the right to personalise a privately rented home were to be introduced, a clear set of guidance and obligations would need to be created to inform and protect both tenants and landlords. It was suggested that this guidance should:

• Be the responsibility of the Regulator.
• Could cover both how the property could be personalised and in what condition it should be left at the stage of the termination.

It was also suggested that the Model Tenancy Agreement could be amended to reflect this standard as well as incorporating a tenancy schedule similar to that in the social sector. This would detail the terms and conditions of the tenancy agreement and include any ‘special conditions’ which may differ from the national standard but would be considered as ‘reasonable’.

Many non-campaign respondents argued that either the landlord should be entitled to require the property to be handed back in the same condition it was received, allowing for fair wear and tear, or simply that properties should be returned in the same condition they are let. In terms of how any right to personalise could or should be framed, suggestions included that:

• There could be a requirement that any personalisation is carried out to a professional standard.
• Any right should be restricted to decoration only. It would be essential to consider what happens at the end of the tenancy with regards to reinstating any fixtures or fittings removed by the tenant.
• A clear distinction should be made between personalisation and necessary repairs and that, although the tenant should be able to redecorate, the landlord must still take responsibility for ensuring quality standards and carrying out required or outstanding repairs.
• Tenants should require permission to make any other types of alterations. There was reference to the approach in social housing, where a tenant would need to ask permission to make an improvement, would need all necessary permissions to be in place and would need to use qualified trades people carry out the improvement. It was also noted that any entitlement to compensation for improvements would need to be set out in legislation and guidance, along with a process for handling disputes.
• If the tenant has redecorated and left the property in a condition that would not be considered appropriate to re-let, then costs for decoration should be obtained from the deposit. However, this must be evidenced by the landlord and based on objective understandings of ‘worsened conditions’ and not simply differences of opinions on things like colour schemes.
• If there is a disagreement about whether the property needs to be returned to its original state to be re-lettable, a third party – such as a letting agent – could confirm whether or not the property is re-lettable before the deposit is returned.
• There could be flexibility to retain enhancements made to the property during the tenancy where both parties agree.

It was also suggested that the right to personalise would be more appropriate for longer term rentals, allowing people to make the property they live in more like their home. It was acknowledged, however, that what a short/long term rental actually is would need further consideration. There was also a suggestion that there could be a sliding scale of permitted decoration works, with the degree of personalisation permitted linked to the length of the tenancy held.

Those who did not support the introduction of a right to personalise a property sometimes noted that they supported efforts to encourage landlords to allow their tenants to personalise their home. In terms of approaches that could assist, there was reference to:

• Highlighting the advantages to landlords in allowing tenants to personalise their home to suit their tastes.
• Providing additional financial protection to ensure that the property can be reinstated to how it was at the start of the tenancy at no cost to the landlord.

Specific suggestions relating to additional financial protections included:

• Increasing the maximum deposit that landlords are permitted to take if the tenant is being given permission to personalise the property.
• Requiring tenants to cover the cost of an insurance policy for the duration of the tenancy which would cover the cost of reinstating the property to how it was at the start of the tenancy.

Question 22 – Should different consideration be given where a property is furnished or unfurnished?
Please explain your answer.

Responses at Question 22 by respondent type are set out in Table 11 below.

Table 11

Q 22: Should different consideration be given where a property is furnished or unfurnished?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group			1	2	3
Housing, legal or advice agency or professional or representative body	2	1	1	4	8
Local authorities and their representative bodies	4	7	7	5	23
Other private sector		1		2	3
Other professional or representative body	1	2		2	5
Private landlord, letting agent or their representative bodies	8	36	2	9	55
Public body or agency		1		7	8
Religious group or body		3		1	4
Social landlords and their representative bodies	2	3	3	4	12
Tenants’ and residents’ groups and their representative bodies	3	3		3	9
Third sector organisation			1	21	22
Union, student or campaign group	1	6		11	18
Total organisations	21	63	15	71	170
% of organisations answering	21%	64%	15%
Individuals	105	421	69	161	756
% of individuals answering	18%	71%	12%
Total non-campaign respondents	126	484	84	232	926
% of all non-campaign respondents	14%	52%	9%	25%
% of all non-campaign respondents answering	18%	70%	12%
Campaign respondents		6118		1390	7508
% of campaign respondents answering	0%	100%	0%
All respondents	126	6602	84	1622	8434
% of all respondents	1%	78%	1%	19%
% of all those answering	2%	97%	1%

A very substantial majority – 97% of those answering the question – did not think that different consideration should be given depending on whether a property is furnished or unfurnished. A majority of non-campaign respondents overall – 70% of those answering the question – did not think there should be a difference with 64% of organisations and 71% of individuals taking this view.

Based on their further comments, it appears that those who did not think there should be different consideration included both those who thought there should be a right to personalise both a furnished and an unfurnished property, as well as those who thought there should be a right to personalise neither.

Around 435 non-campaign respondents made a comment at Question 22. Many of these respondents, including both those who did think there should be different consideration, as well as those who did not, simply referred back to the previous question, commenting that the same arguments around the pros and cons of allowing a right to personalise apply.

Reasons given by non-campaign respondents who thought that there should not be different consideration included that the furniture provided could be insufficient or of poor quality. Suggestions included that tenants should be able to request that furniture be removed by the landlord, at no cost to the tenant, or changed, if a reasonable request is made.

A general observation was that all properties, let at whatever level of furnishing, should be safe, clean, and in good repair, and that landlords should expect any items, goods, decorations, and furnishings to be subjected to a reasonable level of wear-and-tear over the course of the tenancy. There was reference to the Letting Agent Code of Practice (Scotland) Regulations 2016 already requiring a detailed inventory to be produced at the start of the tenancy, and it was suggested that the Scottish Government should amend the Code to ensure that a check-out report must be produced. This could directly reference the inventory to fairly and reasonably establish how the deposit should be used, based on the responsibilities set out in the tenancy agreement.

Issues raised by those who did think there should be a difference included that there is greater potential for damage to furnished properties, and that this increases the risk that landlords would incur costs that exceed the deposit.

It was also argued that the landlord will have given careful consideration to the furnishings in the property, for example in relation to fire-retardant soft furnishing and portable appliance testing of electrical fittings. Given the importance of these safety-related considerations, it was suggested that there is limited scope for personalisation.

Further comments or suggestions included that:

• The tenancy agreement should specify how furnishings are dealt with, including terms that permit substitution of items and any reasonable costs associated, for example relating to transport and storage.
• If a property is let as furnished, this may require specification of responsibility for removal of items at the end of a tenancy.

Question 23 – Is there a need to review how a private landlord can be protected against damage to their property caused by personalisation, above the current tenancy deposit limits, and who should resolve disputes?

Around 710 non-campaign respondents answered Question 23.

Most of those who commented did not think there is a need to review how a private landlord can be protected against damage to their property caused by personalisation, above the current tenancy deposit limits. The most frequently made point was that the legislation should clarify that deposit dispute mechanisms are the processes to resolve disputes over damages to a rented property.

Other comments included that landlords who give tenants permission to personalise their home should be allowed to take a higher deposit or to require tenants to cover the cost of an insurance policy for the duration of the tenancy which would cover the cost of reinstating the property to how it was at the start of the tenancy. Others did not think a review is necessary because they did not agree that there should be a right to personalise a property.

In relation to the current system, there were some concerns about variations in approach between the three deposit schemes if a claim exceeds a deposit. It was suggested that consistent guidance is needed, and that:

• A full claim should be made in all cases and the scheme should adjudicate to make it easy to take a civil claim to the Tribunal for the balance of costs beyond a held deposit.
• It would then also be easy for the Tribunal to award, the considerations already having been made on award amounts by suitably qualified bodies.

Otherwise, relatively few respondents commented on who should resolve disputes. Those that did were most likely to refer to either the Tribunal and/or a TDS. Other suggestions included:

• Via small-claims procedures/courts.
• The use of a mediation or arbitration service. One suggestion was that a national mediation service should deal with almost all potential disputes between landlords and tenants.
• Letting agents. It was suggested that this is one of the reasons why all lettings should go through registered agents.
• An independent body/third party. This included reference to the proposed Regulator.
• A panel of experts, which should include landlord representation.
• Insurance companies.

Chapter 4 - Reform to the eviction process

Winter Evictions

4.1 Measures to give tenants more time to access support and find alternative housing during the winter period where they are subject to a notice to leave or notice of proceedings.

The consultation paper notes that, in response to the challenges the winter can present, the Scottish Government is seeking views on a range of potential interventions to support tenants where they have been given notice to leave by a private sector landlord, or have been served with a notice of proceedings by a social landlord.

Question 24 – Do you think additional protections against the ending of tenancies during the winter period are needed? For example, some or all of the following:

• restricting the service of notices during the winter period;
• pausing or extending notice periods so that notices do not expire during the winter period;
• pausing or extending the period (following expiry of the notice period) during which eviction proceedings can be raised; and/or
• restricting the ability of landlords to raise eviction proceedings (following expiry of the notice period) during the winter period.

Please explain your answer.

Responses to Question 24 by respondent type are set out in Table 12 below.

Table 12

Q24: Do you think additional protections against the ending of tenancies during the winter period are needed?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group			1	2	3
Housing, legal or advice agency or professional or representative body	2	1	1	4	8
Local authorities and their representative bodies	7	8	5	3	23
Other private sector		1		2	3
Other professional or representative body		2	1	2	5
Private landlord, letting agent or their representative bodies	1	45	2	7	55
Public body or agency			3	5	8
Religious group or body	1	3			4
Social Landlords and their representative bodies		9	1	2	12
Tenants’ and residents’ groups and their representative bodies	2	5	1	1	9
Third sector organisation	1	2	2	17	22
Union, student or campaign group	12		1	5	18
Total organisations	26	76	18	50	170
% of organisations answering	22%	63%	15%
Individuals	79	496	65	116	756
% of individuals answering	12%	78%	10%
Total non-campaign respondents	105	572	83	166	926
% of all non-campaign respondents	11%	62%	9%	18%
% of all non-campaign respondents answering	14%	75%	11%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6223	572	83	1556	8434
% of all respondents	74%	7%	1%	18%
% of all those answering	90%	8%	1%

A substantial majority – 90% of those answering the question – thought that additional protections against the ending of tenancies during the winter period are needed. However, among non-campaign respondents only 14% thought they are needed, with 75% thinking they are not needed. Among organisations, 63% thought additional protections unnecessary, with 78% of individuals also taking this view. Most ‘Private landlord, letting agent or their representative bodies’ respondents and ‘Social Landlords and their representative bodies’ respondents did not think additional protections are needed, with ‘Union, student or campaign group’ respondents taking the opposite view. ‘Local authorities and their representative bodies’ respondents were evenly divided.

Around 660 non-campaign respondents made a comment at Question 24. These comments were very much focused on the pros or cons of additional protections, rather than addressing the options set out in the question.

A general suggestion was that greater protections for tenants against evictions should be introduced all year-round. Irrespective of their position on additional winter protections, a number of respondents commented on the negative impact that eviction has on tenants. It was reported that it is a highly stressful process that can be damaging to both mental and physical health.

In terms of strengthening protections there was reference to taking a human rights-based approach, including by fully incorporating the right to adequate housing into Scots law, as well as making routes to consumer redress, such as the Tribunal, more effective and accessible. Reflecting themes discussed at Questions 5 to 9, there were also references to the grounds for eviction under the PRT and to pre-action requirements.

A number of non-campaign respondents, including social and private landlords, commented on the importance of prevention, including suggesting that eviction is always the last resort, particularly in the social sector. There was reference to the extensive support that will have been offered to tenants and it was suggested that legal action is invariably avoided where tenants engage with that support. Delaying evictions over the winter period was described as offering a solution that comes too late. As an example, it was suggested that if a household is struggling to maintain their tenancy, for example due to high fuel bills and other living costs, they should be provided with the support they need to prevent homelessness, rather than being offered a longer notice period prior to being evicted.

An associated comment was that the introduction of the proposed Prevention of Homelessness Duties will offer an enhanced opportunity to respond earlier, especially if a new six-month prevention duty is introduced. In summary, it was suggested that policy interventions on evictions should focus on reducing them, not making sure they happen at a particular time of year.

Reasons for supporting additional protections

Nevertheless, the most frequent suggestion was no eviction order being enforceable during the winter period. Reasons given for thinking that there should either be no evictions, or additional protections against eviction during the winter period, included that:

• Evictions during the winter time can be even more stressful and damaging to a tenant’s emotional, physical and mental health. There was also reference to Scotland being a country where we can see extreme weather conditions during the winter.
• Local authority and other homelessness services are most stretched during the winter, meaning that people may be left with no access to secure housing.
• Finding a new home may be more difficult.

It was also noted that a similar French policy – la trêve hivernale – has been in place since 1956.

There were also comments about the additional pressures particular groups of people face during the winter period. These included that:

• For older or vulnerable tenants in the PRS the winter period is often one of the most challenging times, with the associated winter heating costs and added expenditure. The sharp rise in the OFGEM price cap, and the anticipated additional rise in October 2022, will undoubtedly push more into fuel poverty with many struggling to meet day-to-day costs. In this context we would therefore support increased protections for tenants.
• For students the winter period covers the middle of the academic year and a prospective eviction is likely to have a significant impact on their academic performance. Additionally, university advice services are likely to be closed over the Christmas and New year period.

Scope of additional protections

Although most of those supporting additional protections tended not to differentiate based on the grounds on which an eviction might be sought, a small number did. A small number of those who did not agree with additional winter protections made similar points. The suggestions tended to be that, while there may be a case for additional protections in relation to rent arrears in particular, they should not apply in cases of criminal or anti-social behaviour.

Further comments included a query as to whether, if a tenant is being evicted for anti-social behaviour, it is fair on their neighbours and other local residents that they are able to remain in their property beyond the required timescale?

Has the case been made?

Although most respondents did support the introduction of additional protections, some non-campaign respondents questioned whether the case for them has been made. Further comments included that there is no clear evidence that being evicted during the winter is worse than at any other time of year and that the policy rationale for people needing additional protection over winter is also not clear. There was a concern that without a clear rationale it is hard to judge whether the appropriate policy response is being proposed.

There was also reference to evidence from other countries, and while some pointed to French policy (of la trêve hivernale) in support of Scotland adopting a similar approach, others questioned its relevance to the Scottish context. In particular, it was noted that in France other rights for people at risk of, or experiencing homelessness, are not as strong as those in Scotland. It was also reported that there are no published studies of the impact on tenants or the extent to which the approach prevents evictions. It was suggested that the available evidence suggests that evictions in France have been rising in recent years, with a ‘season’ for evictions which encourages landlords to take their chance to remove tenants as quickly as they can.

The most frequently-made point by those who did not support additional measures was that the time of year is not, and should not, be relevant. Further points raised included that:

• The Scottish climate can be challenging at any time of year. If the intention is to avoid people being evicted during bad weather, simply setting an arbitrary ‘winter’ period will be of limited value. In any case, the ‘winter period’ is undefined and the strategy does not provide a detailed justification for preventing evictions at this time.
• There is an underlying degree of cultural determinism in the proposal, with a connection made to pausing evictions during or close to the winter festivals. It was noted that a number of sacred periods do not fall in December or January.
• The policy objective should be to reduce evictions at all times of the year and there are other measures within the scope of this consultation (like removing inappropriate grounds) that will have more impact.

A general observation, including from a number of ‘Private landlord, letting agent or their representative bodies’ or ‘Individual’ respondents, was that the proposed measures are not needed or proportionate. Supporting arguments included that:

• Local authorities have a legal duty to rehouse people at risk of homelessness, including those being evicted from their home during the winter months. In addition, the Tribunal already can, and does, rule that the enforcement of eviction orders should be delayed if they consider it reasonable/necessary to do so for any reason.
• In terms of the PRS, the PRT is effective in providing security of tenure and in preventing unlawful evictions and provides robust statutory protections for tenants.
• Concerns around availability of alternative accommodation, particularly over the Christmas and New Year period, would also be relevant at other times of the year.

Given these issues, it was suggested that it seems more appropriate that cases are considered on an individual case-by-case basis under the umbrella of ‘reasonableness’ rather than introducing a blanket ban or restriction. It was suggested that there is a case for guidance for the Tribunal and the courts around the use of delays in the enforcement of decrees, particularly where tenants are likely to face significant problems in securing alternative accommodation or an early entry to, and extended stays, in temporary accommodation.

Although most of those who disagreed with additional protections thought that no further measures are required, some did suggest that a short hiatus, possibly of a few weeks over the Christmas and New Year period, might be reasonable or would reflect the existing practice of many landlords. The timeframes for any potential additional measures are discussed further at the next question (Question 25).

Risks and possible unintended consequences

Many of those who did not think additional protections are needed identified risks associated with their introduction or highlighted possible intended consequences.

Financial risks to landlords

This was the most frequently-raised concern, with further comments including that a landlord evicting a tenant for rent arrears already suffers huge financial losses due to the amount of arrears tenants owe at the point of being evicted. In terms of possible scale, it was reported that most cases would take at least 5-7 months from the point a notice was served to the landlord obtaining an eviction order from the Tribunal and evicting the tenant.

There was also a concern that tenants could deliberately take advantage of the measures in the knowledge that they cannot be evicted for an additional period. It was also suggested that the proposals would mean that unscrupulous tenants would have nothing to lose by referring their case to the Tribunal or the courts. It was noted that this would also then lead to landlords incurring additional legal costs.

In terms of the PRS, it was suggested that investors will be deterred and will question the viability of their letting businesses if further obstacles are placed in the way of ending tenancies, particularly in cases of rent arrears. Also, enhanced protections for renters would need to be taken into consideration by lenders as part of their credit risk processes.

There was a query as to whether any financial assistance would be offered to assist landlords. It was suggested that to expect PRS landlords to provide housing to tenants who are often in significant rent arrears, effectively free of charge during winter months, is wholly unreasonable unless grant funding is provided from the public purse to reimburse them. This was connected to a wider concern that if the measure is introduced, some PRS landlords may choose, or have no choice but to leave the sector.

There were also concerns that the proposed measures could also have a significant impact on the financial resilience of the social sector. It was noted that rent provides vital income for social housing services and it was suggested that significant increases in arrears over the long term will have a detrimental impact on social landlords’ ability to: provide services to existing tenants; maintain and improve existing homes; and deliver new affordable homes. It was also noted that costs incurred through arrears are ultimately borne by tenants who do pay their rent.

In terms of alternative solutions, it was suggested that financial support to tenants, similar to the Tenant Hardship Grant Fund, could allow more effective engagement with landlord. For example, landlords not bearing the whole burden of ongoing arrears, reducing the stress on tenants. However, it was suggested that this would require an additional financial resource that is not currently available to housing associations or private landlords.

In addition to the stress-related concerns noted above, some non-campaign respondents also commented on the impact on the tenant’s themselves of allowing rent arrears to reach high levels. In particular, it was suggested that accruing further debts, before ultimately facing eviction, can leave people in a worse position than if they had been evicted at the earliest point and had then exercised their statutory homelessness rights.

Practicality and impact on services

As noted above, it was reported that eviction cases can take at least 5-7 months. It was reported, however, that this timescale is uncertain and can be delayed by a range of factors. Given these timeframes, along with the potential for delay, it was suggested that it would be extremely difficult to introduce any changes to the eviction process which would ensure, with any certainty, that a tenant would not be evicted during a particular month of the year.

For some non-campaign respondents, this raised issues about capacity within both the Tribunal and the court system. It was reported that a hiatus risks seeing a flood of evictions, either brought forward to immediately before the restriction begins or – as is the case in France – held over until spring. There were concerns about the system being overloaded and the potential for lengthy waits before a ruling is made. This, in turn, fed back into concerns about the scale of the financial losses to which landlords could be exposed.

Non-campaign respondents also raised concerns about the potential impact of the proposed measures on key services, including with significant surges in need and demand at particular points in time. Further comments were that, from the perspective of homelessness services, it is unhelpful to have few applications over a period and then a surge of applications at once. It was reported that a rise in homelessness cases, and a spike in demand for temporary accommodation in spring, would be completely unmanageable for local authorities.

There was also a concern that an increased number of households looking for accommodation within a more restrictive timeframe may result in a drive up of rental costs. It was suggested that this will not only be detrimental to tenants in the longer-term, but it will also likely lead to an increase in homeless applications and increased pressure for social housing providers with finite stock levels.

Question 25 – If measures to restrict the ability of landlords to commence eviction proceedings during the winter period were introduced, what do you think is a reasonable ‘winter period’ timeframe?

Around 610 non-campaign respondents made a comment at Question 25. However, many of these respondents simply noted that they did not agree with additional protections being introduced and/or to there being any variations in notice periods depending on the time of year.

In terms of other comments, many appeared to relate to acting on eviction decrees rather than restricting landlords’ ability to commence eviction proceedings over holiday periods. For example, it was noted that winter eviction bans in other jurisdictions do not prevent landlords starting actions to evict, typically they prevent the enforcement of an eviction during a specific period. It was also noted that, especially with the potential for it to take more than 7 months to get to Tribunal, it would be impossible to tell if a case will be heard in winter or not.

There were also comments about variations across the country and whether an across-Scotland timeframe would make sense. It was noted, for example, that winter in the North of Scotland is longer than in the South and tenants in the North could suffer more from a Scotland-wide definition. Equally, it was noted that bad and cold weather can happen across the year and might not necessarily be restricted to a ‘winter period’, however defined.

Those who did not think additional protections are needed, but who went on to make a suggestion at Question 25, were most likely to refer to the Christmas and New Year period or to any restrictions only being in place for a few weeks. A frequent suggestion was that eviction decrees should not be able to be acted between 24 December and 2 January. There were also a number of references to 2 or 3-week periods over Christmas and New Year. Reflecting issues covered at the previous question, it was noted that this would correspond with a period when many housing and homelessness services are operating restricted hours and/or using out-of-hours services.

In terms of specific timeframes, the most frequently-made suggestion was to mirror the French approach, with the ‘winter period’ timeframe running for 5 months, from 1 November to the 31 March.

The other frequently-made suggestions ranged from 1 to 4 month timeframes:

• In terms of a 4-month period, there was reference to November to February as aligning with the coldest periods of the year. It was also noted that this would reflect the periods in which the Cold Weather Payment Benefit was made.
• Suggestions relating to 3 months tended to refer to December to February, and those advocating for a 2-month timeframe tended to refer to December and January.
• Those suggesting a month tended to refer to mid-December to mid-January.

Among the suggestions of those advocating for longer timeframes were October to March or September to June.

Question 26 – What other policies or interventions could be considered to prevent evictions during the winter period?

Around 475 non-campaign respondents made a comment at Question 26, albeit many of these simply noted that no other policies or interventions should be considered. A number of other comments reiterated the themes covered around grounds for eviction, pre-action requirements and the wider importance of prioritising prevention activities.

The most frequently-made suggestions for other policies or interventions were:

• A right to ‘no disconnection’, whereby any household cannot be disconnected from gas, electricity or water during the winter period. It was noted that utilities are crucial to stay warm and live in dignity and that with the rising fuel prices, a right to no disconnection will be increasingly needed. ‘Tenants' and residents' groups and their representative bodies’, ‘Union, student or campaign groups’ and ‘Individual’ respondents made this suggestion.
• Local authorities being given additional powers to support homelessness prevention. A specific suggestion was local authorities being able to use unoccupied or empty homes temporarily for rehousing or homelessness services. ‘Tenants' and residents' groups and their representative bodies’ and ‘Individual’ respondents made this suggestion.

The other frequently-made point, and an issue raised by a broad range of respondents was the need for additional financial support for tenants. Specific references included to:

• A publicly available rent relief fund, administered by local government, as an additional payment to ensure families in particular are not choosing between rent, food or heat during the winter. ‘Private landlord, letting agent or their representative bodies’ and ‘Individual’ respondents made this suggestion.
• A similar suggestion, regarding the greater use of emergency grant support and social services interventions to sustain tenancies was made by ‘Tenants' and residents' groups and their representative bodies’ and ‘Individual’ respondents.
• Additional benefits to cover fuel payments. There was also reference to fuel poverty grant funding which can be accessed quickly by organisations on behalf of their clients.
• Rent-free periods being built-in as in the social sector.

Some non-campaign respondents also referred to a fund being made available for landlords to draw on to cover rent arrears during any winter period instead of evicting tenants for non-payment of rent.

There was also reference to energy efficiency improvements being a legislative priority. In terms of current approaches, a Housing Association respondent referred to the work of their Warm and Well Coordinator to ensure that their tenants receive the best support in heating their homes affordably. They went on to note that social landlords spend considerable effort and resources in supporting tenants to maximise their income and save money on the energy bills and that this essential preventative work is provided all year round.

Other suggestions included taking forward commitments to a new Human Rights Bill in Scotland and fully incorporating the right to adequate housing into Scots law. It was reported that more social housing should be provided. In relation to securing alternative accommodation when needed, comments included:

• Introducing a system whereby there must be a known reasonable alternative accommodation option prior to an eviction being carried out regardless of the time of year.
• Ensuring that tenants who are being evicted are being considered for alternative accommodation prior to the day they have been formally evicted through the Tribunal.

Other ideas for possible interventions were:

• Running a rights awareness information campaign. Tenants need to be aware of their rights to empower them to defend them, thus making sure that these rights are realised.
• Using the Landlord Register contact details to notify landlords of any new rules.
• Encouraging tripartite working between tenants, landlords and the local authority. If these parties worked together from the beginning of the tenancy, or Housing Benefit claim to manage rental payments, it would help avoid the accrual of debt and enable arrears to be tackled more swiftly.
• Introducing mandatory dispute resolution process should be introduced to force landlords and tenants to engage and potentially come to an amicable agreement.
• Making routes to consumer redress, such as the Tribunal, more effective and accessible.
• Taking more action to prevent and address illegal evictions, including increased repercussions for landlords who illegally evict tenants.
• Promoting best practice among landlords when dealing with rent arrears. There was also reference to minimum essential training for landlords and housing professionals to prevent arrears and eviction.
• Promoting ‘landlord to landlord sales’ if the landlords requires to bring the tenancy to an end for sales purposes. A specific suggestion was considering a tax reward scheme that encourages this process.

Introducing a specific requirement for the Sheriff Court and Tribunal to consider delaying the enforcement of eviction orders and decrees during the winter period.

The consultation paper notes that tenants can experience additional challenges in finding suitable housing during the winter. It sought views on introducing a specific requirement on the Tribunal and Courts that, in using their discretion, they would be specifically required to consider delaying the enforcement of an eviction order or decree during the winter period except in cases of anti-social or criminal behaviour.

Question 27 – Should we introduce a specific requirement for the Tribunal and Sheriff Court to consider delaying the enforcement of eviction orders and decrees during the winter period?
Please explain your answer.

Responses to Question 27 by respondent type are set out in Table 13 below.

Table 13

Q27: Should we introduce a specific requirement for the Tribunal and Sheriff Court to consider delaying the enforcement of eviction orders and decrees during the winter period?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group				3	3
Housing, legal or advice agency or professional or representative body	3	1		4	8
Local authorities and their representative bodies	8	7	3	5	23
Other private sector				3	3
Other professional or representative body	1	3		1	5
Private landlord, letting agent or their representative bodies	3	41	3	8	55
Public body or agency			2	6	8
Religious group or body		2		2	4
Social landlords and their representative bodies		6	2	4	12
Tenants’ and residents’ groups and their representative bodies	3	2		4	9
Third sector organisation			1	21	22
Union, student or campaign group	9		1	8	18
Total organisations	27	62	12	69	170
% of organisations answering	27%	61%	12%
Individuals	67	465	64	160	756
% of individuals answering	11%	78%	11%
Total non-campaign respondents	94	527	76	229	926
% of all non-campaign respondents	10%	57%	8%	25%
% of all non-campaign respondents answering	13%	76%	11%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6212	527	76	1619	8434
% of all respondents	74%	6%	1%	19%
% of all those answering	91%	8%	1%

A substantial majority – 91% of those answering the question – thought that a specific requirement for the Tribunal and Sheriff Court to consider delaying the enforcement of eviction orders and decrees during the winter period should be introduced. However, only 13% of non-campaign respondents thought a requirement should be introduced, with a clear majority – 76% of those answering – thinking it should not. Among individual respondents 78% did not think a requirement should be introduced, with 61% of organisations taking the same view. Most ‘Private landlord, letting agent or their representative bodies’ respondents and ‘Social Landlords and their representative bodies’ respondents did not think additional protections are needed, with ‘Union, student or campaign group’ respondents taking the opposite view. ‘Local authorities and their representative bodies’ respondents were evenly divided.

Around 410 non-campaign respondents made a comment at Question 27.

Comments tended to be brief, with those who did agree often simply stating that the winter period should be a circumstance that means that Tribunals and Courts delay the granting of an eviction order. Other comments in support included that better protection for tenants would be welcome, although some queried whether it would simply be better to preclude all evictions during this timeframe, and not just some. A small number of those who disagreed made a similar point. They suggested that there should be a much wider general requirement on both the Tribunal, and the Sheriff Court, to consider delaying enforcement where this would reduce harm, particularly where time in temporary accommodation is likely and where children are involved.

The most frequently-made point by those who disagreed was that, in relation to the PRS, a specific requirement is not necessary as the Tribunal already can and does delay evictions taking place when they consider it necessary in a particular case. Other comments included that a specific requirement would not be required if the proposed winter-related measures are not taken forward.

Other comments also addressed themes covered at previous questions, including that: any flexibility should only cover the Christmas and New year period; should not be available when criminal or anti-social behaviour is involved; or that landlords should receive financial compensation to cover any delays.

Illegal evictions

Reform how civil damages for unlawful eviction are calculated

Consideration is being given to a Legal Services Agency (LSA) proposal to remove the current process for calculating damages for an unlawful eviction and replace it with a multiple of the monthly rent. It is thought this would better empower tenants to seek redress where a landlord does not follow the correct legal process for ending a tenancy. The LSA proposal suggests a minimum of 6 times and a maximum of 36 times the monthly rent should be set.

Question 28 – Do you agree the current calculation for unlawful eviction should be reformed and simplified, as proposed?
Please explain your answer.

Responses to Question 28 by respondent type are set out in Table 14 below.

Table 14

Q28: Do you agree the current calculation for unlawful eviction should be reformed and simplified, as proposed?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group	1			2	3
Housing, legal or advice agency or professional or representative body	4	1		3	8
Local authorities and their representative bodies	20		1	2	23
Other private sector		1		2	3
Other professional or representative body	2	1		2	5
Private landlord, letting agent or their representative bodies	5	16	17	17	55
Public body or agency			1	7	8
Religious group or body	2			2	4
Social Landlords and their representative bodies	4	1	2	5	12
Tenants’ and residents’ groups and their representative bodies	3		3	3	9
Third sector organisation	1		1	20	22
Union, student or campaign group	9			9	18
Total organisations	51	20	25	74	170
% of organisations answering	53%	21%	26%
Individuals	133	182	188	253	756
% of individuals answering	26%	36%	37%
Total non-campaign respondents	184	202	213	327	926
% of all non-campaign respondents	20%	22%	23%	35%
% of all non-campaign respondents answering	31%	34%	36%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6302	202	213	1717	8434
% of all respondents	75%	2%	3%	20%
% of all those answering	94%	3%	3%

A very substantial majority – 94% of those answering the question – agreed that the current calculation for unlawful eviction should be reformed and simplified, as proposed. Among non-campaign respondents the level of agreement dropped to only 31% with the remaining respondents quite evenly split between those who disagreed and those who did not know. Organisations were more likely to agree than ‘Individual’ respondents at 53% and 26% respectively. Among organisations, a large proportion of those who disagreed were ‘Private landlord, letting agent or their representative bodies’ respondents.

Around 350 non-campaign respondents went on to make a comment at Question 28.

Some respondents supported simplification of the current process, which was seen as complex or costly, and as a deterrent to tenants taking action against a landlord who they believe has evicted them illegally. The requirement for a specialist valuation of the property and the low rates of compensation awarded to tenants were both highlighted. One ‘Housing, legal or advice agency or representative body’ respondent reported their own evidence that unlawful or illegal evictions occur frequently but are rarely prosecuted or enforced against. While they acknowledged that the majority of illegal evictions may be carried out by unregistered landlords, they argued illegal evictions by registered landlords can and do occur, due to landlords not being fully aware of the law. There was a view that so few cases of illegal eviction being pursued demonstrates that current legislation is not fit for purpose, with a call for research to investigate how many tenants who were evicted illegally subsequently took action against their landlord and what the outcomes were. Going forward it was argued that penalties imposed on landlords must be high enough to act as an effective deterrent and that the legislation must be enforced.

Other respondents, predominantly from the ‘Private landlord, letting agent or their representative bodies’ group, observed that while in support of reform if this is necessary, they are not aware of evidence that the current arrangements are preventing tenants taking action. It was also suggested that illegal evictions are very small in number and the importance of differentiating between the majority of landlords who operate according to the law, and a minority who act illegally, was highlighted.

There was also a view, again largely expressed by ‘Private landlord, letting agent or their representative bodies’ respondents, was that the current process is punitive enough for landlords and does not need to be changed. It was noted that a court can already impose an unlimited fine and/or a prison term of up to two years on a landlord. In contrast, it was argued, a tenant found to have breached their tenancy agreement will be very unlikely to face a potential prison sentence, illustrating a significant imbalance in the relationship between landlords’ and tenants’ responsibilities. Some non-campaign respondents considered that the proposed penalties are excessive or that any damages awarded should be based on actual loss. There was a view that, rather than supplementary legislation, improved enforcement of existing legislation would be preferable.

An alternative perspective was that the levels of fines suggested in the consultation paper are still too small. The appropriate minimum and maximum levels of multiplication that the Tribunal could apply are discussed at Question 29.

Features of a reformed process

There were calls for a reformed process to be:

• Transparent, straightforward and easy for the tenant to understand, making it easier for tenants to challenge an unlawful eviction.
• Explicitly set out within the tenancy agreement.
• Simple for landlords who may inadvertently act illegally.
• As inexpensive as possible, although it was also argued that the process is already free, and that the specialist valuation cost is not borne by a tenant.
• Proportionate, allowing a scale of damages reflecting the severity of a particular case.

Consideration for providing students renting in Purpose Built Student Accommodation (PBSA) with tenants’ rights to challenge unlawful evictions was also requested.

Calculation of damages

As noted above, some respondents considered the proposed penalties to be excessive. Others saw the proposed calculation method as acceptable or reasonable and supported the LSA approach. However, it was noted that one consequence of the suggested approach is that tenants of properties with higher rents are likely to benefit more than those in cheaper accommodation.

A need to define ‘seriousness’, ‘negative impact’ and ‘unlawful’ was highlighted and guidance on assessing the seriousness of the case was requested. It was suggested that:

• Evidence could be provided in terms of the financial loss to the tenant, for example having to pay for emergency accommodation, or loss of possessions.
• A list of potential damages with an allocated financial value would streamline the process.
• A case before the Tribunal should have expert input from qualified surveyors to determine the level of damage and cost where appropriate.

It was also argued that the Tribunal should consider a range of factors, including (but not limited to) the impact on the tenant and whether it is a first offence or a recurrent pattern of offending by the landlord.

Criminal charges

The importance of partnership working with stakeholders, including Police Scotland, was seen as important to ensure that unlawful eviction is prioritised and there was a call for support from Police Scotland in bringing criminal charges in relation to unlawful eviction. Training for police officers in relation to what constitutes an unlawful eviction was also suggested as it was reported that officers often see illegal eviction as a civil matter and not a criminal one.

There was also a query with respect to how Tribunal proceedings would relate to a criminal prosecution and whether evidence that a landlord had been convicted in a criminal court would be required before the Tribunal could make a decision on damages.

Awareness and education

It was argued that the new process must be publicised and that tenants must be made aware of their rights. The need for awareness-raising and education for landlords was also highlighted as important to ensure all parties are aware of their rights and responsibilities. Consideration of a landlord registration process, requiring mandatory education for landlords to become licenced, was recommended.

There was also a call for more awareness-raising and education for landlords as an alternative to the proposed changes.

Question 29 – If the current system for calculating damages was reformed in this way, what do you think would be the appropriate minimum and maximum level of multiplication that the First-Tier Tribunal for Scotland (Housing and Property Chamber) could apply?

Around 305 non-campaign respondents answered Question 29.

Some respondents noted that the minimum and maximum levels suggested by LSA seem reasonable or that the sum involved needs to act as a deterrent to illegal evictions. It was observed that the range available would provide flexibility to allow the seriousness and negative impact on the tenant to be reflected. It was also argued that the present system should not be changed.

Other points raised with respect to how the level of damages might be calculated included that:

• Compensation should be based on the impact on the tenant and should not be constrained by minimum and maximum levels.
• The scale of costs for tenants who have reported illegal eviction should be reviewed to provide supporting evidence, rather than picking a figure that may be subject to challenge.
• The method used to calculate damages should be similar to the calculation of remedy and restitution by Employment Tribunals.
• The Tribunal should consider whether it is a first offence or a recurring pattern of offending. The multiplier should be increased for repeat offences.
• The severity of an illegal eviction should influence the level of damages, with illegally enforced eviction or threatening behaviour attracting a higher premium.
• The multiplier should be linked to how long the tenancy has been in place.
• Damages should reflect whether the tenant has contributed to the problem or should be net of any rent owing when the tenant vacated the property.
• Guidance will be needed to ensure application is consistent but also reflects individual/household circumstances.

There was also a call for consultation on specific proposals and an associated guidance framework before implementation.

Alternatives to the LSA proposal

The consultation paper notes that the LSA has suggested damages could be set at a minimum of 6 times and a maximum of 36 times the monthly rent. While some respondents considered these reasonable, others suggested a range of alternatives.

Minimum value

Some non-campaign respondents proposed there should be no defined minimum arguing that, where a landlord has made a genuine mistake when taking possession of a property illegally, any penalty should be at the discretion of the Tribunal.

A range of other minimum values was suggested, ranging from one to 12 times the monthly rent, with 12 times being the most frequent choice. Thereafter, three months was the most commonly suggested alternative, followed by two months and one month at approximately equal frequencies. A minimum value of £5,000 was also proposed.

Maximum value

With respect to the maximum multiplier of the rent that the Tribunal could award, alternative values ranging from one month to no limit were proposed. By some margin the most frequently suggested alternative value was six times the monthly rental, followed by 12 times. A maximum value of £50,000 was also proposed.

There was also a view that a multiplier of 36 times the monthly rent would be excessive. One Local Authority respondent suggested that, in an area with lower property values, maximum damages calculated on this basis could amount to between a quarter and a third of the property value. Another argued a multiplier needs to take account of the ability of the landlord to pay and that a maximum based on a multiplier of 36 times the monthly rent may never be paid if the landlord lets only one property. Some ‘Individual’ respondents considered that potential damages equating to 36 months’ rent may attract fraudulent claims.

Further sanctions

It was also suggested that in addition to monetary compensation for tenants there could be other penalties, including that a landlord should be stripped of their licence or disbarred from being a landlord or a letting agent.

Increasing penalties for non-compliance and illegal action

The consultation paper notes that, in addition to potentially reforming how unlawful damages for illegal eviction are calculated, the Scottish Government would like to consider whether any further legislative action would encourage and enable tenants to exercise their rights and seek redress.

Question 30 – What other ways can we make it easier and more attractive for victims of illegal eviction to seek redress and exercise their rights?

Around 335 non-campaign respondents answered Question 30.

Raise awareness of tenants’ rights

As at Question 28, the importance of raising tenants’ awareness of their rights in relation to illegal evictions was highlighted, with suggestions that this could be done via the tenancy agreement or could involve a media/social media campaign. It was also argued that greater publicity through government sources would be an important step in ‘normalising’ the process of seeking redress.

Publicise the penalties issued

As well as awareness that they have the right to pursue a case, the importance that tenants have the confidence to do so, as well as faith that they can take action without fear of repercussions were highlighted. It was also suggested that there needs to be tangible evidence that positive results can be achieved and that penalties are being enforced. A ‘Tenants’ and residents’ group and their representative bodies’ respondent reported that tenants who have been evicted illegally may be discouraged from trying to claim compensation via the Tribunal by reports others have tried and failed to do so. Publishing outcomes or publishing names of landlords and/or relevant properties was suggested.

Improve access to advice and support

Also as at earlier questions, access to information, advice and support were identified as important and it was suggested both that there should be increased investment in advisory services for tenants, and that tenants should be encouraged to seek support from appropriate third sector organisations. Signposting to advice by any agency contacted by someone threatened with homelessness due to illegal action was suggested. Potential roles for tenants’ unions or an independent regulator in encouraging or assisting tenants to exercise their rights were also referenced.

Specifically, it was argued that tenants should be provided with access to legal advice and advocacy that is local, provided at reduced rate, on a ‘no win no fee’ basis, or free of charge. There were calls for access to legal aid, funding for legal advice and for provision of pro bono legal support.

In terms of other support, it was suggested that any victim of a confirmed illegal eviction could be given priority on council waiting lists to ensure quick access to replacement accommodation.

Make the process easier or more accessible

It was thought further ways should be found to make the process of seeking compensation more accessible. Suggestions included:

• Introduction of a private sector landlord ombudsman. It was suggested that the ombudsman process is flexible and informal, does not require representation and is easier for someone who may be intimidated by the adversarial process of the Tribunal.
• Involvement of an independent mediator.
• A process similar to the Sheriff Court Simple Procedure, conducted online and assessed by an appointed arbiter who makes a recommendation to the Tribunal or Sheriff Court.

It was also suggested that the Tribunal system should be improved such that processes are streamlined, it should be possible to apply from overseas, judgements are delivered promptly, and well-resourced enforcement teams ensure tenants receive the compensation awarded. The Tribunal’s website was suggested to be off-putting for tenants and it was suggested that a live chat option could be made available to increase levels of assistance and support.

Treat illegal eviction as a criminal offence

‘Local authority’ respondents were among those who called for clarity that illegal eviction is a criminal offence. It was reported that, although evicting a tenant without a court order is a criminal offence under the Rent (Scotland) Act 1984, Police Scotland often treat illegal evictions as a civil matter with which they cannot help. There were calls for collaborative working with Police Scotland and other stakeholders to raise awareness of housing law and illegal eviction legislation, provide a consistent approach to illegal evictions and to prosecute offenders where appropriate.

Moving responsibility for investigating and reporting unlawful eviction from the police to local authorities, trading standards or regulatory or licencing bodies was also suggested.

Consider other penalties

As well as the application of financial penalties, there were calls to remove offending landlords from the landlord register or, more specifically, to remove repeat offenders from the register. It was suggested that withdrawal of a licence is more powerful than fines, and enforcement rules in the case of mobile home licencing were highlighted. Other suggestions included a system of penalty points on a landlord licence or issuing Rent Penalty Notices (RPNs).

It was emphasised that if a landlord’s registration status was revoked, care must be taken to ensure that this does not have adverse consequences for tenants. Suggestions included alternative management of the property through appointment of a letting agent or putting the property in the control of another private landlord (for example an institutional landlord such as an RSL subsidiary active in the private sector).

Improve training for landlords

Improved education and training for landlords was suggested and it was argued more should be done to support registered and accredited landlords and to stop bad practice and illegal activity by unregistered/rogue landlords.

Avoiding illegal eviction

A small number of respondents suggested ways that some illegal evictions, where the process of application to the Tribunal has been incorrect, might be avoided. These included that:

• The process of applying for an eviction order should be fool proof, so that an illegal eviction is not possible.
• Landlords should be required to provide evidence on reasons for eviction.
• Penalties for issue of a wrongful termination order should be increased. It was suggested this could encourage tenants to seek redress when issued with notice.

Further action is not needed

There was also a view that existing penalties for landlords are already severe or that tenants already have adequate routes to seek redress, such that further action is not required. It was argued that the Tribunal service is already advertised in the tenancy agreement and in Easy Read notes so tenants are aware of options available to them.

There were also specific concerns around use of the word “attractive” in the question and fears that a claim culture could be created, to the detriment of landlords who are trying to do the right thing but have made an error in the legal procedure. In some cases, a broader view was expressed that the consultation paper appears to assume that all landlords are bad and that the rights of both tenants and landlords need to be safeguarded.

Question 31 – In the event of a criminal prosecution not taking place, how best can we ensure that a tenant is compensated, where evidence exists of an unlawful action?

Around 335 non-campaign respondents answered Question 31, although some simply referenced points made at earlier questions, and some considered avoidance of illegal evictions or penalties for landlords, rather than compensation for tenants. Other respondents emphasised that there should be criminal prosecutions in the face of evidence of unlawful action or queried why there would not be.

There were also views that:

• There would need to be clarity with respect to what would constitute ‘unlawful action’.
• The severity of an unlawful action, and whether the landlord is a serial offender, should be taken into consideration.
• In the absence of a criminal prosecution, obtaining compensation will be very difficult if the landlord is required to fund this. A ‘Housing, legal or advice agency or representative body’ respondent reported that they are aware of a small number of tenants successfully pursuing their landlord for various poor practices but then struggling to access the compensation, especially if the landlord lives in another country.
• If an illegal eviction has not been proved, then no compensation should be payable.

It was also suggested that proposals for alternative sanctions for landlords, and compensation for tenants, should be considered during establishment of the PRS regulator.

While a small number of non-campaign respondents suggested that a tenant might be supported to pursue a small claim against their former landlord, or that responsibility for claims for compensation might be contained within the role of the PRS regulator, most saw application to the Tribunal as the way a tenant might be compensated. A ‘Housing, legal or advice agency or representative body’ respondent argued that civil penalties awarded by the Tribunal should be in addition to the tenants right to compensation for unlawful eviction.

In terms of how payment of compensation might be achieved, suggestions included that:

• An application for a payment order for compensation could be submitted in a similar manner to the process already in place with respect to landlords who fail to comply with the Tenancy Deposit Regulations.
• The landlord could be charged a percentage of the value of the tenancy deposit.
• The landlord could be fined, and the money used to compensate the tenant.

In the event that a landlord did not comply with a Tribunal decision it was suggested further action could involve:

• A charging order on the property or earnings arrestment.
• A RPN redirecting rent payments if the property is re-let.
• Removal of a landlord from the register. If the landlord were to rent out the property without being registered, the matter should be fast-tracked to criminal proceedings.

It was also argued that landlord registration schemes should be informed of Tribunal decisions, should review a landlord’s registration status and be able to revoke it. Although it was acknowledged the damage would already have been done and the tenant would have lost their home, it was argued the local authority or the PRS regulator should ensure that the landlord was removed from the register and could not illegally evict someone again.

Burden of proof

Issues were raised in relation to satisfying a burden of proof, including that evidence is not the same thing as proof of guilt. How sufficient evidence of an unlawful eviction would be established in the absence of a criminal prosecution was queried and a requirement for a clear framework was suggested.

It was also noted that the different burdens of proof that exist in civil and criminal courts would strengthen the position of tenants bringing a civil claim: while a criminal case would require proof ‘beyond all reasonable doubt’, the test for a civil case would be ‘on the balance of probabilities’.

Chapter 5 - Supporting Students

As the consultation paper explains, students renting from a mainstream private landlord will have a PRT giving students the same rights as any other person living in the PRS. PBSA is exempt from the PRT as PBSA providers effectively act as private providers of ‘halls of residence’ accommodation. However, there are growing concerns in relation to the disparity of rights and protections that exist between students living in PBSA, compared to those renting from a private landlord.

Question 32 – Should students living in Purpose Built Student Accommodation be offered similar rights to students who rent from a private landlord? If so, how can we best achieve this without impacting on the supply of Purpose Built Student Accommodation?

Responses at Question 32 by respondent types are set out in Table 15 below

Table 15

Q32: Should students living in Purpose Built Student Accommodation be offered similar rights to students who rent from a private landlord? If so, how can we best achieve this without impacting on the supply of Purpose Built Student Accommodation?
	Yes	No	Don’t know	N/A	Total
Organisations:
Academic or research group			1	2	3
Housing, legal or advice agency or professional or representative body	3	1	1	3	8
Local authorities and their representative bodies	8	1	7	7	23
Other private sector	1	1		1	3
Other professional or representative body	1	1		3	5
Private landlord, letting agent or their representative bodies	15	13	12	15	55
Public body or agency			1	7	8
Religious group or body			2	2	4
Social Landlords and their representative bodies	2		4	6	12
Tenants’ and residents’ groups and their representative bodies	4		1	4	9
Third sector organisation	1		1	20	22
Union, student or campaign group	12		1	5	18
Total organisations	47	17	31	75	170
% of organisations answering	49%	18%	33%
Individuals	304	89	153	210	756
% of individuals answering	56%	16%	28%
Total non-campaign respondents	351	106	184	285	926
% of all non-campaign respondents	38%	11%	20%	31%
% of all non-campaign respondents answering	55%	17%	29%
Campaign respondents	6118			1390	7508
% of campaign respondents answering	100%	0%	0%
All respondents	6469	106	184	1675	8434
% of all respondents	77%	1%	2%	20%
% of all those answering	96%	2%	3%

A very substantial majority of all respondents – 96% of those who answered the question – thought students living in PBSA should be offered similar rights to students who rent from a private landlord. Among non-campaign respondents 55% agreed, with individual respondents more likely to agree than organisations at 56% and 49% respectively. Most of the organisational respondents who disagreed were from the ‘Private landlord, letting agent or their representative bodies’ group, although within this group respondents were relatively evenly divided.

Around 370 non-campaign respondents answered Question 32. Issues concerning the student market in general are considered at Question 33.

Reasons students living in PBSA should have similar rights

‘Union, student or campaign group’ respondents were among those who pointed to the principle that all tenants should have the same rights and protections irrespective of their accommodation type. Some went on to highlight rights conferred by a PRT that are denied to students living in PBSA. In particular, it was argued that students living in PBSA should be able to give 28 days’ notice to end their tenancy, with some non-campaign respondents referencing the situation of students locked into contracts for accommodation they were not using during the early stages of the COVID-19 pandemic. Although the majority of comments suggested allowing students the right to exit a tenancy, it was also argued that students who wish to stay in PBSA throughout the summer should have the right to do so and that they should not be charged rent at a higher rate in order to do so.

Some ‘Private landlord, letting agent or their representative bodies’ respondents also thought there should be parity in treatment of student lets, but argued that this should be achieved by allowing PRS tenancies to have a fixed term. A new eviction ground for landlords to use to end the tenancy at the end of the contractual term was proposed. There was also a view that there should be a level playing field for all landlords offering student accommodation, and that the present arrangement puts private landlords at a disadvantage.

Reasons students living in PBSA should not have similar rights

Other non-campaign respondents were clear that PBSA is a different type of accommodation, more like extended serviced accommodation or short term let provision. The different letting cycle and the scale of investment needed were both highlighted. It was noted that there is a specific planning class for the sector, underpinning the different status of this form of accommodation and it was argued that undermining development of PBSA will add to pressure on PRS demand.

Again with a focus on contract length, it was argued that allowing students in PBSA the right to terminate a lease at 28 days’ notice would have a serious impact on the supply of student accommodation, with suggestions that:

• The risk of voids will lead to rent increases.
• Students may ‘hold’ one room while looking for an alternative, meaning rooms are not available to others.
• Guaranteeing the availability of first year accommodation for students will not be possible.
• Uncertainty around the availability of accommodation could deter students from coming to study in Scotland, with impacts on both providers of higher education and the wider Scottish economy.

A distinction between private PBSA and university-owned properties was also highlighted.

In addition to impact on availability of accommodation for other students it was argued that removal of the fixed term contract for PBSA would have wider impacts on other uses of the buildings during the summer months, such as providing accommodation for tourists, or as venues for conferences or summer schools.

Issues other than fixed term tenancies

As noted above, responses at Question 32 often focused on issues around fixed term contracts for PBSA. However, other rights of a PRT, from which students in PBSA are excluded, were also highlighted, including with respect to: quality standards and the property being in a reasonable state of repair; notice about rent increases; notice of landlord entry to the property to carry out repairs; ability to take disputes to the Tribunal; and protection from eviction. On the last point it was suggested students living in PBSAs face differing and unclear disciplinary and eviction procedures depending on their provider.

Concerns were also raised with respect to both the use of highly flammable cladding and poor build quality in PBSA.

Absence of regulation of rent increases and high rent levels in PBSA were also noted; it was reported that PBSA rents have increased by 34% since 2018. It was also suggested that the quality of accommodation provided often does not match the high prices charged and it was argued that rents for student accommodation should be included within the wider rent control agenda. There was also a call for the Scottish Government to ensure that all PBSA provide at least 50% of their rooms at an affordable rate.

Retaining some distinctions

While some respondents argued students in PBSA should have the same rights as any other private tenant others saw reasons that there might need to be some differences or argued that improving students’ rights would need to be balanced against the need to maintain the supply of accommodation.

It was suggested there could be:

• A specific PBSA lease, based on and delivering similar rights to a PRT but recognising that the two are different.
• A special category of tenancy specifically for people registered as students.

It was also reported that, in countries such as Denmark, students can choose a tenancy term of 6, 9 or 12 months and have a 3 months’ notice period to end or extend their term if they wish to do so. It was suggested that this provides some flexibility and certainty for both parties.

Implications for supply of PBSA

A small number of non-campaign respondents acknowledged that a change in tenancy arrangements could impact supply of PBSA or thought that this possibility should be considered. It was noted that the Scottish Government is undertaking a separate review of PBSA later in 2022 and there was support for work with all stakeholders, including students and businesses that develop PBSA, to develop a Student Accommodation Strategy for Scotland. It was suggested to be premature to consider amending tenancy arrangements before this review.

It was also argued that there is little evidence that more rights for students will affect supply of PBSA and that students will generally wish to leave PBSA over the summer. It was also argued that profits for PBSA developers must not be prioritised above the rights and welfare of students. There were views that a form of tenancy closer to the PRT would make PBSA a more attractive option for students and would potentially increase tenancy sustainment and reduce the number of students relying on the wider PRS.

Question 33 – Are there any particular aspects of the Private Residential Tenancy that are not working for the student market and what, if any changes/amendments, would help to address these or to encourage landlords to rent more to students?

Around 305 non-campaign respondents answered Question 33, with general comments including a suggestion that reference to the ‘student market’ reinforces a view of housing as a profit driven ‘service’. It was also noted that students are not a homogeneous group and that not all students are young people away from home for the first time.

Some non-campaign respondents were not aware of any problems with the operation of the PRT in relation to the student market. It was also argued that students should be treated the same as any other PRS tenants with one ‘Union, student or campaign group’ respondent noting that they would strongly oppose any proposals to remove a student’s right to a PRT.

Absence of a fixed term contract and 28 day notice periods

As at the previous question, many non-campaign respondents focused on the absence of a fixed term contract and the ability of a tenant to give 28 days’ notice of their intention to leave. It was argued that this combination of an open-ended tenancy and short notice periods do not work well for the student market and the academic year and that landlords are leaving the student market. HMO licencing was also suggested to be a factor.

Shortages of student accommodation in Aberdeen, Glasgow, and Edinburgh were reported. It was suggested that this could be due to a lack of turnover in tenancies, or because landlords are leaving the student market, and that further research is needed.

Specific issues highlighted included that:

• Accommodation is difficult to re-let if tenants move out during the academic year, so void periods are increased.
• Longer void periods and shortage of availability is leading to upward pressure on rents.
• New tenants cannot be lined up in advance for the coming academic year if sitting tenants have not given notice. Students looking for accommodation need to monitor agent listings over several months which may be stressful and time consuming.
• Students in joint tenancies are under pressure to agree amongst themselves when to end a lease.
• Planning maintenance and upgrades while a property is empty is difficult as the lead time for contractors is too short.
• Students may have to rent over the summer in order to secure a property.

It was also suggested that some landlords may be charging 12 months’ rent over 8 months, charging a high monthly rent until April then offering 2 months free, or starting tenancies up to two months before the autumn term begins.

Suggested actions to address these issues included:

• Most ‘Private landlord, letting agent or their representative bodies’ respondents who commented argued that there should be a return to fixed term contracts for students which, it was suggested, generally worked well.
• A longer notice period, with 12 weeks suggested.
• A PRT contract specifically for students.
• Rule changes to ensure rent is charged at a consistent rate across the tenancy and to avoid tenants having to sign tenancies that start up to two months before they will actually move in.

Other problems identified

Respondents also identified a number of other concerns regarding the operation of the PRT in the student rental market, with high rent costs and poor affordability referenced. It was noted that, since student tenancies are typically short, they are more exposed to unregulated rent increases between tenancies. It was suggested both that rent controls could help to address this issue but also that the introduction of further regulations, including rent controls, may cause more landlords to exit the student market. Difficulties in demonstrating affordability and the importance of easily accessible rent guarantor schemes were also referenced.

Poor accommodation quality, difficulties in getting repairs carried out, poor energy efficiency standards and high energy bills were also cited with respect to student tenancies. The importance of following the repairing standard was noted. It was also suggested that Student Housing Cooperatives would allow students to take control of their living situation, or that eligibility for social rented housing should be extended to students. It was also suggested that students may not be aware of their rights, including to challenge issues relating to rent increases or property condition, and that targeted advice/information is required for students with PRTs.

The impacts of joint tenancy issues on student households were raised, with a view that proposed changes to the PRT to allow individuals to exit a joint tenancy should apply to student households.

Other issues raised by a small number of respondents included that:

• Landlord insurance policies sometimes exclude student lettings.
• Landlords or letting agents should not be allowed to discriminate against a potential tenant based on their educational status.
• Rules around deposits and signing leases should be clarified as landlords and agents may ask for deposits to be paid and leases signed long before tenancies actually begin in order to secure the property.
• Charging referencing fees should be abolished.
• Private landlords need to be open and transparent with respect to their terms and conditions. Transparency could be improved by making rental and property information publicly available in a more digestible form.

The Scottish Government’s proposals to bring forward a Student Accommodation Strategy were also referenced as an opportunity to gather more evidence and feedback on specific proposals.

Chapter 6 - Rent Guarantor Scheme

The consultation paper explains that if a prospective tenant does not have a stable income, has a poor credit score or is unable to provide suitable references they may be asked to provide a guarantor. A guarantor provides reassurance to the landlord that, should the tenant not pay the rent or other tenancy related costs, then the guarantor will do so in their place. Where a person cannot provide a guarantor, landlords may ask tenants to pay rent in advance as an alternative.

There are also a number of commercial and insurance based schemes available but not all tenants can make use of these options. Rent Guarantor Schemes in operation in Scotland are currently provided mainly through universities. Views are sought on current provision of guarantor schemes in Scotland, as well as how further schemes can be established to increase access to the PRS.

Question 34 – What would be the key features of an effective guarantor scheme?

Around 350 non-campaign respondents made a comment at Question 34.

General observations included that an effective guarantor scheme should alleviate risks for landlords or should encourage landlords to rent to more vulnerable, or higher risk, tenants. However, there were also views that widespread use of rent guarantor schemes could exclude people from disadvantaged backgrounds from accessing the PRS or that it would be better for households that are likely to be required to provide a guarantor to be housed in the social sector. It was also argued that the level of income at which a guarantor is required – typically when income is less than four times the rent – is too high, and that tenants should be allowed alternative ways to prove that they can pay for a property.

From the perspective of the tenant the most frequently-identified features of a scheme were that:

• Access should be universal and regardless of status.
• The application process should be quick, easy and tenant-friendly. It was reported that existing schemes may be seen as too complicated.
• It should be free to use and run on a not-for-profit basis.
• It should be available for use in high rent areas.
• Landlords should be obliged to accept the guarantor provided.

From the landlord’s viewpoint, the features highlighted included that:

• The organisation running the scheme must be financially robust and sustainable.
• Claims should be paid promptly and should cover unpaid rent, or any other loss, as a result of tenants not complying with tenancy terms.

Features of an effective scheme

Awareness

The need to raise awareness that schemes exist, or to promote schemes to landlords, letting agents, students and other tenants was also highlighted. Examples of how this might be done included Scottish Government advertising, the involvement of local authority PRS teams, landlord registration and letting agent registration processes or via Citizens Advice.

Appropriate eligibility criteria

There were apparently differing expectations of who could or should be eligible to use the proposed scheme. While some respondents sought universal access, including to ensure that no stigma is attached to using a guarantor scheme, others suggested a checklist for eligibility, or specific eligibility criteria. Some non-campaign respondents referenced specific groups that they thought should be eligible including:

• students, with particular reference to those from overseas
• young people or people leaving care environments
• young people who cannot call on their family for financial support
• people on benefits
• people at risk of, or experiencing, homelessness
• people with protected characteristics
• people on low or unstable incomes
• young professionals without a guarantor
• specific circumstances – such as an individual’s first tenancy

Although most respondents focused on guaranteeing rent, there were also references to accessing finance for deposits.

Acceptance by landlords

While some respondents argued that landlords should be mandated to accept tenants with rent deposit scheme guarantors, there was also a view that such schemes require formal acceptance within the PRS, and that agents and landlords must have confidence in them. A requirement for endorsement by leading property organisations, financial services representatives, and tenant advocacy organisations was suggested, as was providing concrete assurance to landlords in the form of Scottish Government funding, insurance or endorsement.

As a means of encouraging acceptance of guarantor schemes, it was suggested a tax reduction for landlords who take a percentage of their tenants through these schemes could be considered.

Easy application process

The speed with which an application can be approved was highlighted as important for a successful scheme, with reports that tenants can miss out on properties while awaiting approval. It was noted that joint tenancies in particular may need to be agreed in only a few days and it was suggested a rent guarantor could be applied for in advance and approved in principle, up to a maximum amount, in a manner analogous to mortgages.

Although there were calls for the application process to be as easy as possible, careful means testing, affordability checks or an affordability toolkit were also suggested, as were clear clauses for the tenant regarding affordability and responsibilities.

Cost of access to scheme

As noted above, many respondents argued that a guarantor scheme should be free to use, while others suggested it should be affordable to those who need it. A ‘Private landlord, letting agent or their representative bodies’ respondent reported that, having looked into existing schemes, they felt the subscription cost for the tenant was excessive. They were also unclear what guarantee would be in place if the tenant failed to continue to pay into the scheme.

Understanding potential liabilities

The importance that all parties understand the responsibilities of acting as a guarantor was highlighted, and it was suggested that a scheme should be designed to ensure tenants are not encouraged to default on rent payments. It was also argued that the liability of a guarantor scheme should be limited to 2 month’s rent as landlords should have effective policies in place to address arrears issues at an early stage. Other comments in relation to liabilities included that:

• A standard template or statutory guarantor form should clearly explain the responsibilities and liabilities to a guarantor before any agreement is signed.
• In the case of joint tenancies, a guarantor could be liable for unpaid rent or any damage for the property as a whole, rather than for a specific tenant.

In relation to the latter point, a ‘Union, student or campaign group’ respondent reported difficulties experienced by students in finding a scheme that will guarantee their joint liability if they sign a joint tenancy agreement with others who: have not been approved by the same scheme; have not met the scheme’s eligibility criteria; or who have different guarantors.

Other features of a scheme

A number of other points were made with respect to management or oversight of a rent guarantor scheme including that it must:

• Have a robust system for monitoring and evaluating delivery or be subject to independent oversight.
• Include continuing monitoring of eligibility criteria to ensure that breaches do not invalidate any guarantee.
• Be reviewed on an annual basis to assess the circumstances of the parties and, where relevant, allow the guarantor to withdraw and pass the full responsibility across to the tenant.
• Comply with all existing relevant legislation, in particular (but not limited to) the prohibition of tenant fees or premiums.

Under-utilisation of existing schemes

A small number of non-campaign respondents commented on reasons that existing schemes may be under-used, including that:

• Potential applicants do not know the scheme exists.
• The application process is considered overly complicated.
• It may cover too small an amount to compensate the landlord for the perceived level of risk.

It was also suggested that most schemes on offer do not meet the obligations of a guarantor on a PRT in Scotland – for example liability for rent payments for the full term of the lease, as well as in relation to damages at the end of the tenancy.

Question 35 – How could we support the development of guarantor schemes that meet the needs of those groups who could benefit from them?

Around 240 non-campaign respondents answered Question 35.

With respect to supporting development of guarantor schemes respondents advised:

• Consultation with organisations – including universities, local authorities and elsewhere in the UK – that already run guarantor schemes to find out what is or is not working well and to determine best practice.
• Engagement with all stakeholders including: universities; student bodies (including the NUS); estranged young people; third sector/advice and advocacy organisations; landlords and industry bodies such as the Royal Institution of Chartered Surveyors (RICS) and the Scottish Association of Landlords; financial sector organisations; and a body representing tenants.
• Co-developing schemes with students, particularly students who have faced barriers themselves or have backgrounds that make them likely to need a guarantor.
• Promoting a partnership based approach between third sector organisations, local authorities, private landlords and local communities.
• Funding pilot and innovation schemes.

There were also calls for the Scottish Government to fund a guarantor scheme, either directly or via local authorities. With respect to the latter, there were views both that a scheme could be developed from the local authority Housing Services Rent Deposit Guarantee Scheme, but also that local authorities do not have the resources to fund or manage a large scale scheme and that, for consistency, a scheme should be on a national basis.

Other suggestions with respect to how a scheme might be provided included that it could be:

• Funded from unclaimed tenancy deposits (as discussed at Question 18).
• Provided by universities or the NUS in the case of students.
• An existing scheme extended to involve a wider range of third and independent sector partners.
• Development of a new private sector access scheme to ensure a range of options.

There was also support for the review of existing Rent Guarantor Schemes referenced in the consultation paper.

Chapter 7 - Gypsy/Traveller Communities

The consultation paper notes that a relatively large proportion of Gypsy/Travellers live in rented accommodation, including residents of 26 publicly provided sites across Scotland. Many Gypsy/Travellers stay in the same location for long periods and want the same security of tenancy as people in other rented accommodation. Pitch agreements therefore need to provide flexibility for those who wish to pursue the tradition of travelling, and also security of tenure to ensure equality with the settled population.

Question 36 – What are the key issues and concerns relating to current pitch agreements for Gypsy/Travellers on public sector sites?

Around 135 non-campaign respondents made a comment at Question 36.

Some of these respondents saw a need for improvement in the volume and quality of accommodation for Gypsy/Travellers, noting a shortage of site accommodation across many parts of Scotland, and citing quality and condition issues for existing sites. It was argued that the responsibility to provide Gypsy/Traveller site accommodation should be equal to the responsibility to provide housing for settled populations.

Non-campaign respondents also cited evidence of very significant inequality of outcomes between Gypsy/Travellers and the general population, including specific reference to physical and mental health, education, employment, homelessness and experience of discrimination. Reference was made to research specifically linking a lack of access to suitable accommodation with poor outcomes for Gypsy/Travellers and, in this context, the commitment to provision of more and better Gypsy/Traveller accommodation was welcomed. The need for a better mix of provision was also noted, in light of the relatively large proportion of Gypsy/Traveller families with particular housing needs.

However, some respondents – primarily ‘Private landlord’ and ‘Individual’ respondents – questioned the scale of funding for Gypsy/Traveller accommodation provision. This included calls for some of the proposed funding to minimise any impacts associated with Gypsy/Traveller sites on local settled communities, for example to improve screening or concealment of sites.

In terms of the approach to improving accommodation provision and considering pitch arrangements, there was support for demonstration projects to consider how best to balance flexibility and security of tenancy for Gypsy/Traveller sites. Consultation feedback that informed interim Site Design Guidance was referenced as a potentially valuable source for consideration of current pitch arrangements and further engagement with Gypsy/Traveller site residents was recommended to inform ongoing policy development.

Standardising pitch agreements

Some non-campaign respondents suggested that pitch agreements should be aligned with Scottish Secure Tenancies in terms of the security and protections provided. It was noted that the SHR has supported equality of protections for some time, and there was a view that this policy support should be translated into legal protections. There was support for standardisation of pitch agreements, including proposals for a national model Pitch Occupancy Agreement. However, it was also noted that the level and profile of Gypsy/Traveller accommodation need varies significantly across Scotland, and it was argued there must be sufficient flexibility to reflect this in pitch arrangements.

In relation to potential standardisation of pitch arrangements, ongoing work in Edinburgh to achieve this alignment with social tenancies was described. It was reported that this will involve moving current pitch agreements to a Scottish Secure Tenancy, retaining key provisions such as allowing up to 12 weeks of travel a year. This was cited as a potential model for public sites across Scotland.

For some non-campaign respondents, standardising pitch agreements and aligning them with social tenancies, was seen as a means of ensuring equality of security and protections for Gypsy/Traveller site residents. However, other responses were more focused on perceived issues around site cleanliness and antisocial behaviour, and wished to see pitch agreements include provisions to deal with these issues. Some saw a need for better communication and education to improve understanding of Gypsy/Traveller culture, and to enable Gypsy/Travellers to travel and stop safely in areas with no official site provision.

Rent affordability

Rents and affordability were also identified as potentially significant issues for Gypsy/Traveller pitch arrangements, with concerns raised for the affordability of rental charges. Need for greater transparency around rent setting criteria for pitch rents was suggested, reflecting concerns that rents are not always commensurate with the facilities provided on Gypsy/Traveller sites. It was also suggested that rent setting criteria should be consistent with those used for social rents.

Potential issues for Gypsy/Travellers entitled to Housing Benefit or Universal Credit were also cited in relation to rent affordability. Whether caravan rental costs are eligible for Universal Credit was questioned, and particular difficulties in accessing Universal Credit for those staying on a site for a relatively short period were noted.

Other considerations

Respondents also highlighted a range of other issues in relation to pitch arrangements including that:

• Local authorities vary in their approach to allocation of Gypsy/Traveller site pitches, and in particular the extent to which these are based on assessment against an allocations policy, or on a ‘first come, first served’ basis using a waiting list if no pitches are available.
• Consideration of pitch arrangements should include provision of accommodation for seasonal farm workers.
• Potential demand for transit sites or stopping places should also be considered, to support Gypsy/Travellers moving between local authority areas. However, resourcing and management challenges which had prevented the development of transit sites or stopping places were also cited.
• Insecurity of tenure on Gypsy/Traveller sites can make it difficult for residents to get insurance for caravans and vehicles.

It was also argued that regulation of Gypsy/Traveller sites should align with the Mobile Homes Act (Scotland) 2013 and Model Standards for Residential Mobile Home sites.

Chapter 8 - Residential Mobile Homes

The Housing (Scotland) Act 2014 established the framework for a new, robust licensing system for mobile home sites with permanent residents. The consultation paper explains that stakeholders have reported a number of concerns relating to the licencing of residential mobile home sites, and it is intended that a post implementation review of the Residential Mobile Homes Site Licencing scheme should be carried out before the end of the current Parliament.

Question 37 – If you rent or let a residential mobile home as a main residence, what type of tenancy do you have and what are the common problems you experience?

Around 25 non-campaign respondents made a comment at Question 37. Only one respondent reported that they currently rent a pitch; they reported that they have no issues. There was also a report of someone who rents from a private landlord being told to move to another pitch because the landlord is trying to sell the plot.

Otherwise, it was reported that mobile home owners are generally prohibited from renting out their properties and that there are very few ‘rented’ permanent residential mobile homes in Scotland, with those that there are generally housing seasonal workers on farms.

In terms of common problems, it was suggested that the main issue is holiday home sites and individual holiday home owners (on holiday sites) renting mobile homes on short term tenancies in the belief that they are not acting as landlords. It was reported that, in a small number of cases, these become long term rentals and result in occupiers believing that this tenancy becomes permanent. There was also reference to residents of mobile homes having to leave the site for a period of 28 days a year to comply with their residency; it was suggested that this can sometimes result in homelessness applications.

Other problems identified included that:

• There are no statutory standards for caravans that are equivalent to the Repairing Standard or Tolerable Standard. The model licensing standards require rented caravans to be kept in good repair, but this does not include a requirement for adequate insulation and there is no guidance available for establishing a line between suitability and unsuitability for occupation. This can have a knock-on effect in terms of priority for social housing.
• The physical standards on caravan sites are controlled by licensing conditions operated by the local authority. However, the licensing system does not offer the same protections as the regulations available to those living in houses.
• Occupiers have no access to the Tribunal, leaving them with only the court system to resolve disputes.
• Electricity supply is controlled by the caravan site operators and can be in the form of pre-payment type meters. The electrical supply to individual caravans can be minimal and is not comparable to housing supplies. This leaves occupiers having to organise their electrical use around a supply that can be barely sufficient, impacting their personal choices.

In terms of changes required going forward, suggestions included that any improvements should be via The Licensing of Relevant Permanent Sites (Scotland) Regulations 2016, with local authorities being empowered to inspect holiday and residential sites. If people are found to be operating as landlords, they should be required to register and provide certification, in line with other PRS properties.

It was also reported that tenants who are renting mobile homes can be vulnerable – for example, they can have chronic mental and/or physical disabilities – and that, anecdotally, there is a high population of elderly people that rent these types of homes. There was a call for an equalities perspective to be adopted when developing any proposals.

Chapter 9 - Agricultural/Crofting/Tied Worker Tenancies

The consultation paper notes that Housing to 2040 makes commitments around including agricultural tenancies within a tenure neutral approach to driving up standards and rights. Initial stakeholder engagement with people who have lived experience suggests that one overwhelming issue is that of security of tenure at the end of employment – particularly for those people living in tied accommodation.

Question 38 – What do you believe are the key housing issues facing people with:
1. A tenant farm or a rented croft house?
2. Tied accommodation as part of their employment?

Around 130 non-campaign respondents made a comment at one or both parts of Question 38. A number of these highlighted issues that respondents saw as common to both.

A general observation relating to tied accommodation was that the strategy appears to be based on the view that those in tied accommodation are on low incomes. It was suggested that this is not necessarily the case and that such employees often have other benefits, such as having energy, council tax and other utility costs met by the employer. It was suggested that, before addressing issues such as affordability, further research and evidence should be gathered to inform policy in this area.

Security of tenure

Lack of security of tenure was confirmed as a key issue particularly, but not exclusively, in relation to tied tenancies. This was sometimes connected to the absence of a residential type Tenancy Agreement. On a technical note, it was reported that the PRT regime effectively turns tied accommodation into a PRT, but that true tied accommodation is a licence to occupy rather than a lease.

In terms of the impact of lack of security of tenure, respondents highlighted that concerns about potential consequences for both accommodation and employment mean tenants are likely to worry about raising quality issues. It was also suggested that there is, in any case, a lack of options available for tenants wanting to raise tenancy-related concerns.

There was reference to a need to end tenancies in a planned way once the employment ends, including to ensure access to suitable alternative housing and to prevent homelessness. This issue is picked up again at Question 39. Other comments and suggestions included that:

• Greater protections and standardisation should be offered to tied tenants in raising issues regarding the tenancy, with written agreements and opportunities for recourse.
• Agents and management organisations should be encouraged to conduct annual surveys to ensure issues are not going unnoticed.

Connected to insecurity were points about there often being a shortage of affordable alternatives for people, particularly if they wish to stay in the same area.

Understanding of rights and responsibilities

Tenants having limited awareness or understanding of their rights was another issue raised, although a further suggestion was that the pandemic has demonstrated that both tenants and landlords are unsure about their rights and responsibilities.

With specific reference to tenants, it was suggested that many may lack knowledge about other housing options, and also may not know where to access information and support. With reference to landlords with tied accommodation, it was noted that they must be registered, but it was reported that this may not always be the case.

In terms of addressing some of these issues, one suggestion was that a clear summary of tied tenants’ rights and landlord’s responsibilities – as compared with ordinary tenancies – should be developed. It could cover issues such as Energy Performance Certificate (EPC) regulations, requirements around electrical and heating inspections, as well as information on fire risk.

Standard of accommodation

A number of ‘Private landlord, letting agent or their representative bodies’ respondents were among those noting that they support moves to improve standards. There were also some references to some landlords ensuring that any agricultural or tied accommodation is at the same standard as any let through a PRT.

However, it was also noted that where properties do fall short, or where required standards are raised, there is a recurrent practical problem over the availability, in many areas, of skilled contractors to carry out necessary works.

Tied accommodation

Comments in relation to the quality standards in tied accommodation included that there can be issues relating to the quality of some accommodation, in particular in relation to properties being difficult or expensive to heat and to poor insulation; a link was made to fuel poverty.

A ‘Third sector’ respondent reported that many of the advice queries they receive on tied accommodation relate to poor conditions and overcrowding. A specific example was of an agricultural worker living in tied accommodation who had no electricity in addition to several broken windows.

In terms of maintaining or improving tied accommodation, it was reported that rents are seldom enough to maintain, let alone improve, the properties. An associated concern was that ‘indefinite tied tenancy arrangements’ may lead little or no investment and unacceptable living standards for elderly and vulnerable people who are perhaps scared to move or complain.

Agricultural tenancies/tenanted farms

It was noted that there are some very particular issues associated with maintenance obligations for agricultural holdings, including with the apportion of responsibility and liability for replacement and repair, wherein the landlord and tenant have different responsibilities, sometimes leading to confusion. In terms of particular issues or circumstances that need to be considered, the following issues were highlighted:

• Agricultural tenancies can run for long periods of time and this, combined with sometimes complex older buildings, frequently leads to a lack of clarity on who is responsible for what; this can lead to necessary work not taking place.
• Aside from maintenance obligations on tenants and classic renewal and repair requirements on the landlord, there are limited obligations to improve properties.
• Many farm buildings are traditional or listed, adding an extra layer of complexity to the situation when it comes to repair and maintenance.
• The implications of a long term farm tenant having made major domestic improvements will need to be considered.
• Tenant farms can require significant investment, but uncertainty for the tenant and poor access to capital can prevent such investment. Specific concerns were raised regarding the resource implications of bringing agricultural tenancies up to Repairing Standard as well as meeting energy efficiency requirements.

It was anticipated that addressing these types of issues will be complex, including because if landlords were required to take on greater responsibility, they may wish to increase rents in line with market values.

It was reported that farm rents for secure agricultural tenancies have no resemblance to the market rents paid for residential properties and that, in many cases, the market rent for the house on the residential market would be far more than the rent paid for the whole farm. There was a concern that rent could become an important issue for tenants in terms of affordability, and for landlords in terms of the ability to obtain a return on any capital invested.

Challenges for landlords/businesses

Along with sometimes noting that they fully supported moves to improve standards, some non-campaign respondents focused their comments on the business/landlord’s perspective.

In this context, it was again noted that the issues relating to agricultural holdings, croft housing and tied accommodation are complex, and there was a call to not be too quick to make changes that could have far reaching consequences. Specifically, it was suggested that the Scottish Agriculture Bill, which is expected in 2023, may be the more appropriate mechanism for taking forward any tenancy-related issues.

A number of the other points raised focused on why agricultural/crofting and tied worker tenancies are different to other private tenancies.

Importance of on-site accommodation

There were a number of references to the importance of tenant farmers, crofters or employees living on site in order to either run a business or perform their role. In the case of tied houses or farmhouses as part of an agricultural tenancy, it was reported that the use of the house is there to enable the person living in it the ability to perform their role, often on animal welfare grounds. There was also reference to peaks in seasonal tasks such as harvest, and to farm security.

There was a concern that any restriction on the landlord or employer regaining possession of the property at the end of the farm tenancy, or period of employment, will have severe implications for incoming workers and tenant farmers. In particular, it was reported that it may be impossible to attract staff to live and work in remote areas. It was noted that this is at a time when labour provision on farms is a well-publicised problem, and there was a view that it would be counter intuitive for any housing policy changes to compound this problem.

It was also noted that with housing stock often very limited in rural areas, employers would not simply have options around finding alternative accommodation for incoming employees.

Housing for retired workers

It was reported that, at present, many retired employees remain in their houses, paying little or no rent, until the properties are required for new employees. However, it was reported that if there is no ability to regain possession when required, then this practice is likely to end.

It was also reported that retired workers are sometimes offered alternative accommodation on a PRT, and that this is often at well below market rent. However, it was also acknowledged that not all farms/businesses will be able, or willing, to offer this option.

Farmhouses/Fixed equipment

With specific reference to farmhouses, it was noted that they are considered ‘fixed equipment’ of the farm and therefore essential to the working of the farm. This would mean that, if the previous tenant remained, it would not be possible to rent the farm to an incoming tenant. This would effectively remove the farm from the rental market and, without a house available, may severely reduce its value.

Issues around planning regulations were also highlighted and it was reported that many houses on farms and estates are subject to planning on the basis of an agricultural occupancy condition; there would be a breach of planning regulations if the property is occupied by someone who does not work in agriculture or forestry.

Question 39 – What can we do to improve the outcomes for those people with a tied house for their employment who are approaching retirement and may face losing their home?

Around 200 non-campaign respondents made a comment at Question 39.

A general observation was that a review of applications for housing across local authorities could help build a broader understanding of the scale of any issues, and where they are most prevalent. It was also suggested that there may be an opportunity to engage both nationally in the medium term, and at a local level in the short term, to support both the people who have tied accommodation and landowners, or their representatives, to develop better outcomes for all.

Although most of those commenting made suggestions around improving outcomes for people with a tied house who are approaching retirement, some did suggest that nothing could or should be done, including because it is the employee’s responsibility to plan for their retirement.

Increased security of tenure

As at the previous question, a number of respondents raised issues on the theme of security of tenure. In terms of tenancy-related ways to improve outcomes, there was reference to:

• Introducing protected tenancies aligned with other rented homes which continue into retirement. The protections given to Mobile Home residents in the Housing (Scotland) Act 2014 were cited.
• Providing security of tenure and rights of succession to a tenancy, if a worker dies leaving a family behind.
• Where retirement is not expected to result in the employee’s replacement, a Right to Buy or Right to Remain being offered.

Other comments considered options for improving planning for, or providing enhanced rights at, the end of a tenancy. They included:

• Requiring a written agreement between both parties that includes what is expected when the employee leaves employment or reaches retirement age. It was suggested that this agreement could include any special or additional agreements made between the employer and employee.
• Ensuring that sufficient and explicit notice is provided that occupancy rights will cease on the confirmed date of retirement.
• Putting more responsibility on employers to have a plan in place, with longer lead in times (for example, 2 years before retirement) to ensure an employee’s wellbeing after they retire. Other suggestions included that preparations for the transition into retirement should start at the beginning of the tenancy, not close to its end.
• Introducing a requirement on employers to inform the local authority when someone living in tied accommodation’s employment is coming to an end.

The last suggestion was connected to the view that, where retirement is expected to result in the employee’s replacement, the ultimate responsibility should lie with the local authority to provide adequate housing to the evicted person.

Awareness raising, prevention and advice

Many of the comments focused on the importance of the early provision of advice and support. Reflecting some of the suggestions above, one proposal was that the key to successfully managing this situation is for both employer and employee to have a discussion well in advance of the retirement date, and for both parties to be clear of their position.

There were also suggestions that there could be requirements on employers to ensure support and advice is provided to employees prior to their employment ending. In terms of the type of support and advice, and who should deliver it, comments included that:

• Collecting information and data on tenants in tied accommodation from landlords, possibly through landlord registration schemes, may help facilitate targeted early interventions.
• Pro-active housing options advice is required. It was suggested that a Section 11 type system, whereby the landlord must notify the local authority 6 months prior to the end of the tied accommodation, may assist.
• Employers could work with local authorities or other housing advice services to ensure employees can plan for their future housing needs.

In relation to employers having the necessary understanding and information on housing rights, there was reference to the work of the Tenant Farming Commissioner and the establishment of close working relationships between the Scottish Land Commission and landlord and tenant farming representative bodies. It was suggested that the best way to provide support and advice to people with agricultural tenancies and in tied housing, is to develop partnerships with these bodies. There was reference to the Scottish Tenant Farmers Association, the National Farmers Union of Scotland, Scottish Land and Estates, the Scottish Agricultural Arbiters and Valuers Association, RICS and the Agricultural Law Association.

A national approach to raising awareness around this issue was also seen as important. Further comments included that:

• It would be helpful if Scottish Government could work to improve understanding of the role that tied houses play in rural employment, and how this links in with the viability of rural businesses.
• A campaign from the Scottish Government to encourage those with tied tenancies to financially plan for the future at an early stage would be welcome.
• The Scottish Government could produce guidance about having difficult conversations around retirement from employment, including tied accommodation, so they can occur at an early stage and allow for improved planning.

It was noted that raising awareness may be more of a challenge in remote and rural areas and that it will be important to make an increased effort for harder to reach households.

It was also suggested that awareness raising work within local authority housing teams could be beneficial. It was noted that people who have lived in tied accommodation will potentially find the adjustment of moving into social housing or the PRS very difficult and may require further support, including around budgeting.

Priority for social housing

The other main theme raised related to priority for social housing. There was broad agreement that those facing the loss of tied accommodation should have priority for social housing, and it was noted that this is a particular issue in remote, rural and island communities.

Further comments included that social landlords could look at this issue when next reviewing their allocation policies, although it was also reported that people facing losing accommodation are already considered to be a high priority under many current allocation policies. Nevertheless, some did suggest that they should receive higher priority.

More ‘retirement’ housing in rural areas

Other comments addressed wider supply issues and included that policy and funding should focus on the provision of more affordable housing in rural Scotland. It was reported that the Rural and Islands Housing Action Plan will aim to support rural repopulation, and will provide an opportunity to bring together policy and funding to enable a significant increase in new rural affordable homes.

Other comments or suggestions included that:

• The consents for new build for retirement homes should be increased.
• It will be important to consider location, including around access to local services and health care.