Rented sector reform: Housing (Scotland) Bill: business and regulatory impact assessment

Tenants affected by domestic abuse – pre-action requirements

Background, Objective and Rationale

Domestic abuse is one of the leading causes of women’s homelessness ^[125] and also has negative short- and long-run impacts on significant numbers of children. Financial abuse, which involves a perpetrator using or misusing money to limit and control their partner, is a significant element of coercive control in domestic abuse: research suggests that 89% of women experience financial abuse as part of domestic abuse.^[126]

The Scottish Government set up a working group in 2019 co-chaired by the Chartered Institute of Housing Scotland and Scottish Women’s Aid to consider how Scotland could improve housing outcomes for women and children experiencing domestic abuse, including those experiencing financial abuse, to remain in their home. One of the working group’s recommendations^[127] was the introduction of a new statutory pre-action requirement^[128] for social landlords to ensure that they have fully considered domestic abuse before commencing legal action to recover possession of a property. In the Scottish Government’s engagement questionnaire on rented sector reform, 83% of those answering the question agreed with this proposal: support was strongest amongst tenants, but a smaller majority of landlords and landlord organisations also supported the proposal.

The overall policy aim is to help protect the rights of women and children experiencing domestic abuse financial control living in social housing to remain in their home, or be re-housed if that is their wish, and ensure arrears accrued because of domestic abuse are not a barrier to accessing social housing in the future.

Sector and Groups Affected

The main sectors and groups who could be directly affected by the various options considered include:

• Social rented sector tenants
• Social landlords
• Scottish Courts and Tribunals Service

Option 1 – Do nothing

In this option, current legislation would remain the same. There would be no statutory requirement on social landlords, where they consider that a tenant has experienced (or is experiencing) domestic abuse which (fully or partly) explains why rent arrears have accrued, to take action to support the tenant in line with its domestic abuse policy. There would also be no statutory requirement for the landlord to provide the tenant with details of other appropriate support that may be available to them in relation to domestic abuse before court action for recovery of possession of a property on rent arrears grounds can be instituted.

Scottish Ministers do not consider this to be a satisfactory position. This option would not address the significant impact of domestic abuse financial control on victims, which, as set out above, can include being made homeless due to rent arrears.

Option 2 – Non-regulatory measures

While work could be undertaken on a non-regulatory basis to further highlight to social landlords the issue of financial control in domestic abuse, for example through issuing guidance, this would fall short of the policy aim of guaranteeing that landlords will take appropriate action to support a victim with rent arrears before commencing legal action to recover possession of a property. For this reason, Scottish Ministers do not consider non-regulatory measures to be appropriate.

Benefits

Not applicable.

Costs

Not applicable.

Option 3 – Legislate (Preferred option)

The proposed changes would:

• ensure social landlords consider domestic abuse financial control in all rent arrears cases before commencing legal action for eviction;
• require social landlords to support individuals experiencing domestic abuse causing financial arrears in a specialised manner; and
• require social landlords to confirm to the court that all the pre-action requirements have been complied with if a court action for eviction on rent arrears grounds, or grounds including rent arrears, is raised.

Benefits

Social tenants

This option would make current landlord ‘positive practice’ in domestic abuse financial control cases in Scotland a statutory requirement for all social landlords. Tenants or their representatives will also be able to challenge compliance with the new pre-action requirement in court, if required. As a result, social tenants, in particular women and their children, who experience domestic abuse financial control will receive greater protection to remain in their home, or, if that is their wish, be re-housed by ensuring rent arrears accrued because of domestic abuse are not a barrier to accessing social housing in the future. The evidence presented above shows that that people, particularly women, who experience domestic abuse may also be subject to financial abuse which leaves them vulnerable to rent arrears.

Costs

Scottish Courts and Tribunals Service

SCTS have advised in the Scottish Government’s engagement with them that any implementation or on-going costs for this measure are covered by existing court processes and existing budgets.

Social landlords

Under the existing legislative pre-action requirements, social landlords are already required to do all that they can to resolve rent arrears with a tenant before raising eviction action in court. This provision makes current landlord ‘positive practice’ in domestic abuse financial control cases a statutory requirement for all social landlords. As a result, this option is not expected to result in material additional costs for landlords.