Scotland's Sustainable Housing Strategy: Analysis of Responses to 'Homes that Don't Cost the Earth' Consultation
The report summarises the responses to the consultation on Scotland's Sustainable Housing Strategy which sought views on measures to promote the energy efficiency of housing
3 Analysis of Responses: The Role of Standards
3.1 Questions 11 to 33 address the role of standards.
3.2 Questions 11 and 12 address the issues of introducing a condition standard for all housing and a maintenance checklist.
Q11 a) Should the Scottish Government consider whether a single mandatory condition standard (beyond the tolerable standard) should apply to all properties, irrespective of tenure? b) If so, how would that be enforced?
3.3 The consultation referred to the Scottish Housing Quality Standard (SHQS) that social housing must meet by 2015. It stated that the only requirement for owner occupied housing was that it should meet the tolerable standard, which is a minimum condemnatory standard for all housing. Privately rented housing must also meet the repairing standard. Since 2006 the tolerable standard has included a requirement for "satisfactory" thermal insulation; the repairing standard does not address energy efficiency issues.
3.4 Parts a) and b) were distinct questions. However, most of those who did not agree with the first part chose to give comments under the second. Thus the response to part b) was higher than that for part a) and included a higher proportion of negative comments than would otherwise have been expected.
3.5 Over three quarters of respondents answered question 11 a) (77%), with a particularly high response rate from the RSL and local authority groups. Most of these answered 'Yes' (77%), with the full support of the professional and 'other' groups, but with the private sector group split between 'Yes' and 'No.' There was no space provided for comment on question 11a, although two respondents noted 'yes with caveats' and 'no, not at this time,' while three respondents who didn't use the questionnaire format were recorded as 'comment only.'
3.6 Even more responded to question 11 b) (81%), including all but one of the respondents who said 'No' to question 11a). Some of those who had answered 'yes' to part a) used part b) to raise issues about part a). The variety of comments made in response to 11 b) suggests that there was considerable diversity of views or perhaps confusion about what the question meant or what the proposed standard would entail.
3.7 Overall the most commonly occurring comments were: that additional resources would be needed for enforcement or that local authorities did not have sufficient resources for enforcement – local authorities are already under strain as a result of increased enforcement and monitoring of dangerous and defective buildings; that enforcement would be difficult because local authorities have difficulty in identifying BTS (below tolerable standard) properties or properties that fail the repairing standard; that enforcement should be by the local authorities; that enforcement should be at point of sale; and that incentives should be used to achieve compliance. Some respondents referred directly to energy efficiency standards and did not mention condition standards.
3.8 The responses suggested that many respondents had concerns about compulsion, which might result in some properties becoming un-saleable or un-lettable, which might result in more empty homes and increase further the demand for social rented housing. Private rented sector tenants may be reluctant to report poor energy efficiency, and the Private Rented Housing Panel may need to deal with complaints, while for owner occupiers, there may be human rights or other legal issues involved in forcing individuals to improve their property.
3.9 Some respondents expressed a preference for information and incentives over compulsion. Such incentives might include a lower rate of LBTT for properties that were compliant or made compliant within a short period after purchase.
3.10 Although local authorities were the enforcement agency most commonly suggested, other agencies were suggested by small numbers of respondents – the Home Energy Efficiency Database (HEED), the Scottish Housing Regulator (SHR) for social housing, the Private Rented Housing Panel (PRHP) or 'a national enforcement agency.'
"Box 6: Looking after your home – a hierarchy of needs:
1. Make sure that your home is wind and watertight and that it is structurally sound, make sure that it stays that way by carrying out regular maintenance.
2. Make sure that work is done properly because poor quality repairs may be ineffective and can cost more in the long run.
3. Consider retrofitting appropriate insulation.
4. Make sure that your home is properly ventilated because this is essential to keep it healthy.
5. Review your boiler to ensure that it is efficient.
6. Ensure that points 1-5 have been addressed before considering micro-renewable technology."
3.11 Most respondents answered question 12 a) (76%), with the lowest response rate in the private sector group. Of those responding, most answered 'Yes' (70%). Almost two thirds offered comments in response to question 12 b) (63%).
3.12 There was therefore general support for the principle of such a hierarchy. Respondents offered advice on: the potential use of the hierarchy; additional criteria or the need for supplementary guidance; rewording; and alternative ordering. Comments also addressed the potential use of the hierarchy and its standards, for example: it was a 'reasonable guide' for a 'reasonable lay person' but needed objective standards or measures; 'appropriate insulation' begged the question of what was appropriate (thickness of insulation or a specified point on an energy efficiency scale, appropriate to a particular type of house)? what was meant by 'appropriate ventilation' or an 'efficient' boiler?
3.13 Over a third of those commenting suggested additional criteria or the need for supplementary guidance. Under checklist item 1, respondents recommended adding information about the annual inspection of roofs and external parts including gutters as a low cost preventative measure, together with a schedule of what, when and how, rather than just stating the need to complete basic maintenance; others suggested it would be useful to include sources of reputable advice and information on repairs assessment and implementation; and that the first item should be having a plan to proactively check and maintain the property.
3.14 Under checklist item 2, comments included: the need for the public to know how to go about finding properly accredited contractors to carry out work and how to check accreditation; they may also need a specialist chartered surveyor; the guidance should include consideration of safety, so that it reads: .."poor quality repairs may be ineffective or unsafe and can cost more in the long run."
3.15 Under checklist item 3, respondents suggested the addition of the following issues: consideration of the energy efficiency of replacement windows or doors; explanation of the benefits of a fabric first approach; room to room and floor to floor insulation (as well as whole house), with zoned heating and timer controls; draught proofing and air tightness, e.g. draught strip around windows, doors and wall abutments to prevent draughts and heat loss.
3.16 Under checklist item 4, respondents recommended that mention of ventilation should be expanded with advice to take care to avoid condensation and mould growth, and that mechanical ventilation might be necessary.
3.17 Checklist item 5 drew the most comments, with recommendations that detail of heating systems in non-gas areas should be given, also there should be notes to 'contact your local advice centre to review the availability of grants and funding to help you improve the energy efficiency of your system,' and 'when heating needs replaced, appraise all options before deciding on new system - don't assume like for like;' and also notes to highlight the need for regular servicing and the importance of ventilation for open flued gas boilers.
3.18 Under checklist item 6 respondents advised the addition of: adequate safety of electrical installations, hot water and smoke detection; eliminating damp, regulating temperature, and keeping out vermin; for radon protection areas, include the need to take appropriate measures to limit ingress of radon.
3.19 Some suggested rewordings: "Consider retrofitting appropriate insulation" was felt to be timid - reword to make it more directive; say 'Install insulation where it is technically feasible to do so.' "Review your boiler to ensure that it is efficient" assumes everyone has a boiler - rewording suggestions included: 'Check whether your heating system is as efficient as it can be; if not, consider improving controls, or replacing it.' The final point was "Ensure that points 1-5 have been addressed before considering micro-renewable technology," but there may be good reasons for installing a solar panel before external wall insulation– re-word: 'Consider installing solar panels or other appropriate microgeneration equipment.'
3.20 Several respondents advised that any checklist should use plain English and avoid jargon such as 'retrofitting' and 'micro-renewable technology.' One respondent suggested that housing professionals would make sense of the hierarchy of needs, but home owners or landlords might not.
3.21 Some queried how the checklist might be used, by whom, and the appropriate level of detail. The consultation document noted that the hierarchy would 'help owners to prioritise how they invest in their properties,' however it was unclear how this information would be communicated to home owners and more detail would be required if this information was to be meaningful to householders. Consideration should be given to how the checklist would be publicised. Would the 'hierarchy of needs' be used as criteria for incentives and grants? Would it change how ESSacs deliver their advice?
3.22 Some suggested alternative ordering of the hierarchy. Ventilation should come before or at the same time as insulation - a property that has insulation retrofitted without addressing ventilation could deteriorate due to condensation.[5] Views on 'ensuring that work is done properly' (currently 2) were contradictory: one respondent suggested it was given too much priority, another suggested it should be moved to number 1 as it was fundamental that any work would be done properly. Another proposed moving heating system (currently 5) to 2 or 3. One respondent advised variable ordering because a rigid approach cannot always be taken: for example, RSLs had developed CHP schemes ahead of insulation - decisions would always be partially influenced by funding, particularly when funding was limited or targeted on particular technologies.
3.23 Questions 13 to 18 address the powers of local authorities.
3.24 Most respondents answered question 13 (81%), including most of the responding local authorities (88%). Over half of those responding answered 'Yes' (62%), with strongest support from RSLs. All except three of those saying 'Yes' expressed some caveat or qualification. More than a third of the local authority, private sector, and professional groups answered 'No,' including Glasgow City, City of Edinburgh and seven other councils.
3.25 Relatively few answers directly reflect the consultation paper's emphasis on these powers being needed primarily to support the achievement of SHQS in mixed tenure situations – the question appears to have been interpreted more widely by many respondents. Key issues were: recovery of costs and resources for enforcement, and enforcement issues.
3.26 Local authorities commented: that enforcement action would be impractical due to the scale of the action required and the costs incurred by the council when owners could not or would not pay for the works; that recovery of cost for enforced work was already a significant issue for local authorities; that to extend powers further without additional resource would be meaningless; that serious disrepair must always be prioritised over enforcement of 'desirable' but not essential works; that additional powers for recovery of monies and government support would be needed as the current method of recovery, the Repayment Charge, allows up to 30 years for repayment - local authorities could find themselves having to fund the retrofit programme. Where local authorities have tried to recover costs for repairs to mixed tenure and privately owned properties (under the Building (Scotland) Act 2003 and Environmental Protection Act 1990) this was often problematic and costly. The current shortage of staff and financial resources to take action on repairing issues could be exacerbated by adding energy efficiency works unless additional resources were applied from the National Retrofit Programme or Green Deal. Enforcement might raise complex issues:
"Care would also have to be taken to consider how requiring owners to make energy efficiency improvements to their properties would sit with pre-existing repair issues where these existed. There would be no point for example in installing solid wall insulation (backed by funding from ECO) where a roof needs urgent repair but this repair has not been enforced due to lack of finance." – Local authority
3.27 RSL, private sector, professional, and some 'other' group respondents also highlighted difficulties of enforcement: the proposals would impose unsupportable pressures on local authorities; an RSL observed that there was no means of forcing the councils to utilise their powers; the cost of monitoring and enforcement would be prohibitive; enforcement was under-used now- how would councils cope with expanded powers? Other issues were the introduction of a cumbersome and costly bureaucracy and how best to pinpoint low efficiency housing and store information about it.
3.28 Further issues included costs to owner-occupiers and landlords. Local authorities pointed out that in the current economic climate many owners were struggling to carry out basic repairs to their properties; reduced equity and poor availability of repair grants meant there was less incentive for owners to repair their homes, let alone improve them. Problems financing improvements pointed to the need for a body such as a national lending unit. Several respondents suggested that there would be a need for a strong link to grants and assistance from Green Deal / ECO, particularly for higher cost measures such as solid wall insulation. There was a concern that improvements to a multi-tenure tower block might only be partly funded by ECO.
3.29 Private sector organisations also asked for consideration of low income home owners, and pointed to the risk of an increase in repossessions, and impact on markets. Compulsion to improve energy efficiency would be inappropriate, particularly if measures were not cost-effective due to the nature of the building.
3.30 Some respondents suggested limitations on the scope or application of the power. Local authorities suggested that given the resources needed for enforcement, notices should only be served on re-letting, work on common parts, empty homes, sale of sub-standard property. While the focus of local authority intervention should be repair and maintenance rather than improvement, it would be beneficial to include improvements whilst repair works were underway. Finally, the need for enforcement should be balanced by a need to retain landlords at a time of housing shortage.
3.31 RSL and 'other' groups suggested targeting use of the power on a worst-first basis or in response to high levels of fuel poverty in particular areas. It was felt appropriate to enforce against private landlords but not private owners, and to enforce for basic measures only – it would be difficult to enforce high cost measures such as solid wall insulation unless these were fully funded.
3.32 Some respondents, including one local authority and two RSLs, would welcome a power to ensure improvements in mixed tenure or multi-owner blocks – and indeed this was the context in which the consultation envisaged such a power being used. This could support the achievement of the SHQS in mixed tenure blocks. In blocks where the local authority had an interest, it could coordinate the work, and in privately owned mixed blocks this could link to new proposals on property factors. However, there were particular problems in Edinburgh tenements as the City of Edinburgh Council system of statutory notices had been curtailed.
3.33 Other comments included suggestions for alternative approaches. Several suggested that a first step should be to expand HMO type legislation and licensing of landlords. Any landlords unable or unwilling to make improvements might then sell up to more professional property companies. One respondent commented that whilst the priority was to ensure that owners meet their responsibility to keep properties wind and watertight and structurally sound, it was also important to encourage them to improve energy efficiency during repairs or larger projects such as roof replacements. Private sector organisations again proposed the introduction of building MOTs with inspection and certification to encourage owners to implement a planned maintenance regime and to assess options for improving energy efficiency.
3.34 Some questioned whether such powers could legitimately be applied to energy efficiency improvements. It was felt that responsibility for decisions to improve a property should remain with the owners - it might be legitimate to require a roof or stonework repairs in light of public safety concerns, but could the argument be extended to installation of insulation? Another respondent thought that an improvement notice concerning energy efficiency should be supported with subsidy because, unlike structural integrity, it would not be seen as detrimental to the health of the occupant or the building.
3.35 Other issues raised included the difficulty of improving insulation in historic properties without damaging the building or its historic qualities, and whether it would be reasonable to require improvements of households with low energy consumption living in energy in-efficient homes as the carbon impact might be balanced.
3.36 Most respondents answered question 14 (73%), including most of the responding local authorities (85%). Most of those responding answered 'Yes' (73%), with strongest support from the private sector and professional groups.
3.37 There was more support for this proposal than for the enforcement of improvement powers in question 13, with local authorities expressing varying degrees of caution. One suggested that local authorities should have discretionary power to support owners by meeting 'missing shares' where works were a priority in the Scheme of Assistance, avoiding serving works notices for small scale works; this would remove the need to serve a work notice where an owner has no objection to the works but was unable to pay. Another authority stated that this power would increase the effectiveness of Tenement Management Schemes (TMS) by giving them the necessary 'teeth.' A cautionary point was made in relation to large cities - extensive resources would be required to enforce decisions, given the high proportion of households living in flats.
3.38 RSLs, private sector, and 'other' groups supported the proposal as a catalyst to allow energy efficiency schemes to move forward, to ensure that properties were improved when in mixed tenure buildings, to assist homeowners and factors in carrying out maintenance and mitigating the need for significant future work, easing pressure on 'grant application' and 'statutory repair' work. However, some private sector organisations wanted the further power to take over the voting rights, make payment and recover from non-paying parties.
3.39 The most common concern was the recovery of costs. Local authorities felt that enforcement should focus on help to fellow owners to recover costs rather than putting the burden on local authorities. It was suggested that any powers to enforce decisions under TMS would need to be matched by an ability to put a repayment charge on the title. It was stated that there were already mechanisms for owners to pursue decisions made under the title deeds, the TMS or by unanimity, but they were complex and costly - a practical response would be to streamline such processes or create a more responsive arbitration process. Respondents reported that payment orders were extremely bureaucratic to use, with associated legal costs, and a 30 year repayment term, and that it would be difficult to secure such resources in the current economic climate. A local authority suggested that private landlords often held up improvements and that new powers should aim to speed up the process.
3.40 Some respondents questioned whether a new power was needed; they believed that existing legislation allowed local authorities to enforce these decisions.
3.41 An RSL suggested the power should come with an obligation to implement, while local authorities said it ran counter to the intention of the Housing Act to refocus responsibility for maintenance and repair on owners, which lay behind the removal of a statutory right to grant in respect to enforcement notices.
3.42 Glasgow City Council drew attention to the Factoring Commission, due to report in 2013 (see Annex C), while one of the third sector organisations suggested the use of agent organisations:
"Yes - however, we need to be aware that most local authorities are not geared up to use such powers effectively. It would be useful to explore the use of agent organisations – such as RSLs – which might intervene on the authorities' behalf; and how such agents would be incentivised." – 'Other' group
Q15 Should local authorities be able to automaticallyissue maintenance orders on any property which has had a work notice?
3.43 Over half the respondents answered question 15 (63%), including most of the responding local authorities (88%). Most of those responding answered 'Yes' (81%), with strongest support from the 'other', RSL, and local authority groups.
3.44 Over a third gave reasons to support the proposal; six repeated their answer to question 13. This could prove beneficial in promoting a factoring service due to heightened awareness of maintenance rather than belated repair, thus protecting the investment. Several local authorities felt this should not be mandatory - local authorities should have this option available as a tool to improve energy efficiency. It could be used for those situations in which there was thought to be risk of deterioration, not automatically. However, three respondents suggested that such a power was unnecessary because there are existing powers: Section 42 of the Housing (Scotland) Act 2006 allowed a maintenance order to be issued if a Local Authority considered a house had not been, or was unlikely to be, maintained to a reasonable standard.
3.45 Private sector organisations were stronger in their support. They felt that maintenance orders helped reinforce the obligation under title to maintain the property. By stopping properties falling back into disrepair they would help increase the supply of housing and save property owners money in the long run. They would need an accompanying programme of maintenance information for property owners. Some local authorities queried how effective maintenance orders had been to date.
3.46 A quarter of those responding raised issues of resourcing. Whether policed in-house or contracted out, resources would be significantly stretched to monitor and enforce the five year maintenance plan. The power should be available, but given the costs in time and resources and the precedents it would create, it was likely to be used sparingly; without resources to monitor compliance and significant penalties for non-compliance, such action was unlikely to have any greater impact than current information and advice strategies. One RSL commented that there was already a huge backlog of maintenance order work in Glasgow and experience in Edinburgh had caused a loss of trust in local authorities' ability to manage maintenance orders.
3.47 Other respondents raised issues of common definitions: it would be helpful to stipulate what was required for the fulfilment of householder responsibility towards 'reasonable repair' so that standards were consistent across Scotland.
Q16 Should the process for using maintenance orders bestreamlined, and if so, how?
3.48 Around half the respondents answered question 16 (49%) including most of the responding local authorities (88%). Most of those responding answered 'Yes' (87%), with many general comments and local authorities offering detailed suggestions on maintenance orders (MO).
3.49 ALACHO stated that they were aware that some councils saw the process for implementing MOs as time consuming, cumbersome and bureaucratic, and that any streamlining here was certain to be welcomed. Some individual local authorities also called for a review of the use of MOs.
3.50 MOs were most likely to be required for large, mixed tenure flatted properties: one local authority considered excessive the requirements to write to many different parties, to liaise informally with residents and landlords, identify all owners, prepare and serve individual MOs for all properties, owners, landlords and creditors and notify all interested parties of the assessment of any plan forthcoming.
3.51 The process allowed two 21 day appeal periods and two local authorities reported that it cost £60 per flat per registration of the MO and maintenance plan (plus a further £60 if varied or if revoked) – one local authority suggested there should only be one appeal procedure and one registration, when the Order was recorded against the Title. It was suggested that the process of registering the MO in the appropriate land register should be streamlined and should be recoverable from owners.
3.52 Alternatively, MOs might be recorded in the Building Standards register (as for Works Notices) and that if a plan were to be produced, it could be registered on titles and the order removed from the Building Standards register.[6] Another local authority suggested that the process of extending the Maintenance Plan beyond 5 years might be streamlined.
3.53 One local authority stated that the process was not the main impediment - funding the initial outlay was more problematic. Another proposed that local authorities could provide more specific guidance or set out a maintenance plan with the order to prevent delays created by inexperienced persons attempting to draw up their own plan. Another suggested that inaction and non-payment by landlords should be considered in the Fit and Proper test for landlords.
3.54 Over half the respondents answered question 17 (58%), including most of the responding local authorities (88%). Most of those responding answered 'Yes' (75%).
3.55 Most local authorities welcomed the proposal. One commented that the process to create an HRA was complex and would welcome the ability to deal with issues of amenity, safety and security without the need to declare an HRA. Another noted that the powers under Section 179 of The Town and Country Planning (Scotland) Act 1997 were not always suitable to deal with eyesore properties. One suggested that limiting Notices to 'essential' works missed opportunities for creating more sustainable housing, giving the example of costly multiple patch repairs where a re-roof would be more cost effective.
3.56 Other local authorities raised issues including resourcing and existing powers. One said that given that the problem of disrepair under current legislative arrangements far exceeds available resources, any new proposals would be academic without substantial, additional investment. Another suggested this should not be a duty on local authorities and probably limited to safety and security. Another commented that owners in a tenement have powers to resolve safety and security issues through the Tenements Act and that the Work Notice should remain a tool for repairs rather than improvements. Others referred to existing powers under the 2006 Housing (Scotland) Act to issue work notices for properties outwith HRAs and the use of maintenance orders, while another noted the need to address any cross over with the existing tolerable standard, or other legislation such as the Civic Government (Scotland) Act 1982 or building standards.
3.57 There were differing views among private sector organisations, some querying whether this should be restricted to safety and security rather than amenity, or should cover repair and energy efficiency while including other criteria such as security and safety (other than fire safety) may be too heavy handed.
"We consider sufficient rights already exist. A Housing Renewal Area can be designated if a Local Authority considers the "appearance or state of repair of any houses in the locality is adversely affecting the amenity of that locality".... Work Notices can be served on sub-standard houses outwith an HRA... If there is a risk to safety, we consider the house would be substandard. We do not consider it appropriate to allow service of a Work Notice on houses outwith the HRA for amenity purposes only. If the situation is sufficiently severe the Local Authority should designate an HRA." – Scottish Lands and Estates
3.58 Over half the respondents answered question 18 (62%), including most of the responding local authorities (81%). Most of those responding answered 'Yes' (82%) with particularly strong support from RSLs and local authorities (92%, 90%).
3.59 Comments in support included: that this was a major concern when dealing with tenements where the ground floor commercial premises carry liability for the major proportion of cost to repair. With a repayment charge, the local authority could give the proprietor time to pay the account, and get necessary works underway - the alternative would be to take every commercial proprietor to court and put many out of business.
3.60 Another respondent observed that the current climate had increased the problem of securing financial commitment from commercial property owners, many of whose shops were currently empty. A repayment charge over the title would allow interest to be charged which might act as an incentive for the commercial proprietors to seek their own finance to progress the work themselves. ALACHO believed that common works required by legislation should be recoverable according to the title deed provisions and pursued accordingly, and repayment orders might help to do this.
3.61 More generally, local authorities called for repayment charges to be amended so that local authorities could determine the payback period, based on the size of the debt - 5, 10 or 15 years might be more appropriate than the present 30 years. It might also be beneficial for the council to be able to seize and then sell the property in order to recover costs much earlier.
3.62 Question 19 addressed the issue of property factors.
Q19 What action, if any, do you think the Governmentshould take to make it easier to dismiss and replace property factors?
3.63 Just over half the respondents answered question 19 (53%), including most of the RSLs and local authorities, but less than a third of the other respondents. The consultation set out four options; some respondents referred directly to these, while other responses could be allocated to options. Some responses referred to more than one option.
3.64 A number of respondents stressed that factors should only be dismissed if the intent was to replace them - if the focus were on ease of dismissal, it could become even harder for common repairs to be carried out.
3.65 Over a third of responses, from a range of different respondent types, favoured Option 1: "to take no action, particularly as the industry is undergoing major changes at the moment as the Property Factors (Scotland) Act 2011 is brought into force."
3.66 Two local authorities were concerned about factoring arrangements in new build developments, stating that some builders tied new owners through their title deeds, even if the owners were not satisfied with the services provided. However, Homes for Scotland explained the normal procedures for the appointment of factors and expressed the view that two years between the handover of the last unit and any decision to 'switch' would allow performance to be properly judged. However, they suggested that clear guidance was needed on the majority required to make a change, the formal process and mechanisms needed to take such a decision, and any default positions in case of no show/ no vote – a suggestion which has relevance to Option 2.
3.67 A fifth of responses to Q19 favoured Option 2:"to issue guidance, outlining best practice when placing provisions in title deeds on property factors and advice to homeowners on dealing with factors and switching factors" with a few favouring option 2 in conjunction with options 3 or 4.
3.68 A fifth of responses favoured Option 4: "to amend the Title Conditions (Scotland) Act 2003 so that, for example, a simple majority (rather than two thirds) of residents can always dismiss a property factor, regardless of what the title deeds say, once the manager burden has expired." One local authority suggested that support should also be available for owner associations to actively manage their own properties. Consumer Focus Scotland commented that Option 4 would bring the rules into line with those for home owners whose title deeds did not set out a procedure for dismissing a factor, and would ensure that all homeowners had the same rights when switching their property manager. They also advised that when amending the Act 2003 the definition of 'property manager' should be the same as that used in the Property Factors (Scotland) Act 2011.
3.69 Only three responses favoured Option 3: "to change the provisions on manager burdens so that they have effect for shorter periods," as one in a combination of options. One suggested that options 3 and 4 offered the greatest flexibility.
3.70 A fifth of responses were more concerned with buildings that had no factoring arrangements. Buildings without factors were felt to represent the greatest challenges to local authority actions to rectify poor building maintenance - it would be beneficial if all common areas had an appointed approved factor.
3.71 One of the 'other' group suggested limiting contracts between factors and owners to a maximum one year but making it a requirement that there must always be a factor in place, incorporating this into existing legislation. One of the RSL sector respondents commented that property factors had a potentially significant role in relation to any new energy efficiency standards - without a property factor or equivalent, how would works be agreed with residents, contractors be appointed, works be funded and how would payments be recovered? However, ALACHO stated that:
"It is not clear that poor property factors are a significant issue in promoting improvement works, especially relating to energy efficiency, though ALACHO would be happy to see any evidence on this. Where this is an issue a simple majority or minimum 50% of owners should be sufficient to remove (although some Title Deeds may have different provisions, allowing landlords to retain factoring responsibilities where as little as one property remains in their ownership.) Building unanimous or even majority consent is likely to be a bigger issue in common blocks , though enlightened and pro-active factors can play a key role in generating this consensus."
3.72 Finally, Consumer Focus Scotland drew attention to the need for responsibility for its consumer guide on the management of tenements in Scotland, last revised in 2009 and some other property-related guides to be transferred, perhaps to the Scottish Government.
3.73 Questions 20 to 22 addressed ways to raise the importance of energy efficiency for tenants and owners, the introduction of an energy efficiency standard for existing private housing, and enhancements to Energy Performance Certification.
Q20 What action can be taken to raise the importanceplaced by owners and tenants on the energy efficiency of their properties?
3.74 Most respondents answered question 20 (79%). Key issues were the need for improved information about existing homes, and awareness raising. Other issues included regulation to require information at point of sale or renting and incentives. Comments which related to improvements to EPCs were considered in the analysis of Q22.
3.75 Other calls were for improved information on running costs. It was suggested that the new private sector Tenant Information Packs could empower tenants to ask landlords about the energy efficiency of their homes and any plans for improvement. At present the housing shortage meant that private rented tenants tended not to ask for EPCs and that for many this was a choice that would be difficult to exercise. An RSL suggested that the effectiveness of Energy Reports in Home Reports in changing attitudes should be evaluated. Other respondents recommended that sellers or utility companies should be required to provide information about recent energy costs for a property, and there should be free energy assessments for home owners.
3.76 There were calls for awareness raising campaigns and marketing, with many suggestions similar to those for the NRP, including clear branding. Others concerned messaging: to 'normalise' energy efficiency as with the smoking ban and seatbelts campaign; 'smart' marketing highlighting lifestyle benefits; to change the emphasis from global warming to improved comfort and fuel bills; and the comment "too much information, so many messages."
3.77 Some called for requirements for every home to have a current EPC, a Building MOT, or for a charter for private housing. More commonly, suggestions were for requirements at point of sale or renting, including calls for owners to be required to meet a certain condition prior to sale or rental and restrictions or premiums on transferring unimproved property. Other comments concerning EPCs are discussed under the analysis of question 22.
3.78 The most commonly mentioned incentive was discounted council tax - the discount might be based on the EPC rating, or linked to measures taken to improve energy efficiency; other suggestions for incentives were reduced stamp duty / new Land and Buildings Transaction Tax, and a pence per unit reduction in energy costs based on the EPC rating.
Q21 Should the Scottish Government introduce minimumenergy efficiency standards for private sector housing?
3.79 Most respondents answered Q21 (87%). This was an open question, presented without 'Yes' / 'No' options. LSA reviewed the content of all the responses and found that over half supported minimum standards for the private sector (57%); both RSL and local authority groups were more supportive than the private sector. A third either definitely disagreed, gave only strongly qualified agreement, suggested an alternative approach or appeared undecided (30%).
"There is a good case for the application of minimum standards.... However, we are under no illusions as to the challenges of implementation" – 'Other' group
3.80 Compulsory minimum standards were supported by the WWF Campaign:
"alongside attractive financial incentives, a basic standard of E on the Energy Performance Certificate scale should be introduced by 2015 at the point of sale or rental. There is no reason why substandard properties which condemn people to high bills and fuel poverty should continue to be on the market. Regulation will drive demand for energy upgrades, and give a meaningful value to the energy performance of homes. Voluntary programmes are not delivering the pace and scale of change required." - WWF Campaign text
3.81 There was some support for creating a level playing field across tenures. A quarter commented on the nature of standards and their application. Suggestions varied in ambition: a non-mandatory goal with a programme of incentives to encourage implementation; a matching of the 2018 England and Wales standard which would ban the rental of houses rated F or G unless all Green Deal measures had been installed; or a single standard of EPC band E from 2015 and EPC band C from 2020 with sufficient financial support and advice through NRP. Some called for exemptions for listed buildings and properties in conservation areas.
3.82 A fifth were concerned about the impact on the housing market and cost of enforcement. The minimum standards could further slow the housing market by adding costs at point of sale or rental and liabilities for purchasers, while private landlords might increase rents or withdraw homes from the market: estate agents and surveyors should be involved in an impact assessment. There were concerns about how councils would resource enforcement, and for financial hardship amongst low income property owners.
"... yes, in principle. The imposition of standards to only that minority of Scotland's housing stock which constitutes the social rented sector would essentially be pointless.... enforcement of even minimum standards is an altogether different proposition, which if attempted without sufficient resourcing would be equally ineffective." – ALACHO
3.83 Some respondents raised technical considerations. Minimum standards could lead owners to install inappropriate insulation resulting in condensation problems. Some suggested that the work should be carried out by accredited tradespeople. Others pointed to the inaccuracy of RdSAP for traditional buildings, and the need for exemptions for certain difficult to treat or historic properties. However, only one organisation suggested demolition as an appropriate solution.
3.84 Some suggested alternatives to minimum standards including: a graduated tariff with higher costs per kWh if demand exceeds a local average, an enhanced repairing standard to improve private rented properties; and the use of LBTT as an incentive. One local authority suggested that an amendment to the tolerable standard would be a way to introduce minimum energy efficiency standards for private sector housing.
3.85 Others discussed procedures. There were calls for monitoring to be facilitated by the HEED database and a central database of Home Reports. The conveyancing process could be used to police standards for owner occupied housing but policing the private rented sector would be more difficult. A different approach might be needed in tenemental housing and mixed tenure blocks, but this should not delay enforcement of minimum standards in stand-alone properties.
3.86 Other issues included a call for consideration of the balance between an owner's right to 'quiet enjoyment' of their home with the national interests of tackling fuel poverty and climate change. Waterwise called for the standards to cover water efficiency, with maximum flow and flush rates.
Q22 How could we amend EPCs to make them a more usefultool for influencing behaviour change to improve energy efficiency?
3.87 Most respondents answered question 22 (73%) and many gave similar answers to those for Q20. Just over half suggested improvements to EPCs particularly the inclusion of likely running costs. Some suggested ways to raise the profile of EPCs including linking to incentives. There was also some general criticism of EPCs and RdSAP.
3.88 We note however that most of the recommendations have been superseded by the revised format for EPCs, issued in October 2012, which includes a recommendations report that includes information under the following headings: Estimated running costs for this home, broken down by heating, hot water and lighting; potential running costs if specified improvements were undertaken; indicative cost of improvements, typical annual savings, and impact on the energy rating, plus further detail of each type of improvement; signposting to the Energy Saving Trust for free, impartial advice and to the Green Deal.
3.89 Some suggested that EPCs should contain even more information such as: likely energy costs based on different scenarios/family profiles or for explaining the standard occupancy assumed; an explanation of the cost benefits of each improvement on a weekly basis.[7] Others suggested the inclusion of information about: the energy consumed by appliances; landlord obligations; approved installers; current performance against 2020 target.
3.90 There were many recommendations to raise awareness of energy performance ratings, such as including the EPC rating in advertising, and about the availability of the certificate and recommendations report. Most of these recommendations have been dealt with in the 2012 amendments to The Energy Performance of Buildings (Scotland) Regulations which implement aspects of the re-cast European Energy Performance of Buildings Directive (EPBD). These include a requirement, whereby from January 2013, the energy performance indicator from the EPC must be clearly stated in any advertisement in commercial media.
3.91 There were also calls for a national EPC database, with data from EPCs available to allow energy advisors to be more proactive and provide tailored advice to individual households, while one of the responses to question 20 called for quality control of EPCs, randomly checking the accuracy of EPCs, with penalties incurred where incorrect. Again, there have been some recent changes associated with the re-cast EPBD Regulations, which may meet some of these points.
3.92 Other ways to raise the profile of EPCs would be to link EPC bandings to: council tax and LBTT discounts; financial support for measures; lower mortgage charges, fuel tariffs, or insurance; or to a compulsory energy condition prior to rent or sale.
3.93 A few respondents criticised the reliability of EPC ratings, for: not recognising the value of renewable electricity generated nearby; a lack of transparency of the input data and information analysis; the potential impact on investment decisions of over-stated savings from insulation or heating due to inappropriate assumed comfort levels; inability to input the correct U-values for certain measures; inaccuracy of surveys, calling for closer scrutiny of surveyor training. One asserted that EPCs discriminate against properties in off-gas grid areas where heating oil, electricity, solid fuel and LPG were more expensive than natural gas, given that EPC ratings would be used to prioritise activity under ECO and limit availability of the RHI and FITs.
3.94 Others suggested that smart meters might be more effective than EPCs in changing behaviour, and that changing behaviour was likely to yield greater savings than forcing upgrades.
Q23 Are there other key principles that we ought toconsider when looking at the possible introduction of regulations?
3.95 The consultation identifies the following principles: fit with incentives; clear standards that are appropriate, financially sustainable, and equitable; and appropriate timing. Most respondents answered question 23 (69%).
3.96 A third of them did not suggest other principles, but expanded on principles identified in the consultation, mostly concerning potential financial hardship for low income households and allowing sufficient time for the private sector to prepare for change. An RSL called for consideration of asset rich / cash poor owners and avoidance of discrimination against those in most need (elderly, disabled, fuel poor). A common call was for clear timelines and milestones, with sufficient preparation time for homeowners and PRS landlords, with extended timescales for landlords who own several properties. [Again, in response to this question, some queried the feasibility of the Green Deal.]
3.97 There were calls for awareness-raising for all stakeholders, including local authorities, the conveyancing industry, private landlords and letting agents as well as householders, on how and when the regulations would be brought in and the circumstances in which they would apply.
3.98 Other key principles were: that regulations should be practical and enforceable, there should be no confusion with other regulations, and there should be an impact assessment, including costed case studies. Quality issues might be addressed by the use of suitably accredited energy assessors, advisors, and tradespeople, or by some body to monitor that work which was carried out actually met the design aspirations. Particular difficulties were associated with securing improvements in tenemental housing where the sale of one flat might not lead to work being enforced in communal areas. Some called for clear penalty structures with teeth, others for the incremental introduction of requirements, aiming to secure an initial acceptance of the principle of a minimum standard, then gradually increase it.
3.99 Several organisations volunteered assistance to the working party to develop regulations.
Q24 How could regulation be used to support the uptakeof incentives?
3.100 Two thirds of respondents answered question 24 (67%). There was considerable diversity of views, but over a third asserted that incentives and promotional campaigns were preferable to regulation and that regulations should only be introduced if they fail.
3.101 Uptake of incentives could be supported by a comprehensive communication and enforcement regime. Whilst some thought that no new regulation was required, others suggested using regulation only if awareness-raising fails to improve uptake of incentives. Several referred to uncertainty about the Green Deal/ECO and recommended that any requirement for energy efficiency measures should be related to the availability of incentives.
3.102 Other common responses were that regulation in itself would drive demand for incentives, and that there should be a link to Council Tax or LBTT discounts. One queried whether Scottish regulation might affect eligibility for ECO. Another highlighted the need to continue the arrangement with utilities whereby council tax discount was cost neutral to councils, on the change from CERT to Green Deal / ECO.
3.103 Two thirds of respondents answered question 25 (67%). The options referred to were: Option 1: required specific energy efficiency measures; Option 2: a simplified version of SHQS energy efficiency requirements; Option 3: minimum EPC score or U-value; or Option 4: carrying out recommendations from Energy report at point of sale or rental.
3.104 Some thought that, as yet, it was too early to judge, or disagreed with a mandatory standard. Others made generally supportive comments, some favouring a combination of options, but didn't select an option. Some respondents felt that they needed more detailed proposals before they would be able to comment.
"The introduction of GD and ECO are being delayed and criteria are being changed, RdSAP/EPCs are inadequate and being changed. So some key aspects of the new regime are in flux. We at least need to wait and see how they settle down and how successful they are before thinking about what type of regulation will be appropriate or not" – Scottish Lands and Estates
3.105 Option 3 was the one most favoured by respondents, as being the simplest to explain and administer, allowing different treatments to different property types, and cross-sectoral comparison rather than the confusing dual standards of SHQS and EPCs. It would provide information about running costs to buyers / renters, and would highlight what improvements should be carried out.
3.106 Additionally, the regulation should be designed so the standard (and programmes of support) could be raised over time. It could be accompanied with guidance on the likely measures required for specific housing types. Financial support was advocated for disadvantaged groups, and for rural homes where costs were higher.
3.107 Other views were: that Option 3 might be used for all homes, with Option 4 applying to private sale or rental; that there should in addition be a financial cap on necessary improvements, or that cost limits should take into account the availability of ECO funding for more expensive measures which would make these cost effective. The standard might also include consideration of ventilation levels, cost to heat, dampness and mould levels, and standards of repair. There was only one recommendation that the standard should be expressed as minimum U values, translated to insulation thickness for different constructions.
3.108 Two of the objections to option 4, made by RSLs, were that to renew components ahead of their planned life cycle would not achieve value for money and that it might require them to undertake further improvements to a high energy rated property when investment should be prioritised elsewhere.
3.109 A few respondents suggested alternatives to the options. One advocated moving retrofit standards towards higher airtightness and insulation levels such as those of the Passivhaus retrofit standard, EnerPHit. Another suggested that owners should implement the checklist 'Looking after your home - a hierarchy of needs'.
3.110 Most respondents answered question 26 (81%). Most of those responding answered 'Yes' (78%), with much weaker support from the 'other' group. Nearly a third simply said 'Yes' without further comment.
3.111 A half said 'Yes' and offered comments. Only a few of these were strong reservations about the practicality of the proposal. Others simply offered comments, which were split equally for and against. Less than a tenth said 'No.' However, there appeared to be some confusion about what this question meant. Few directly addressed the question in terms of standards that take account of the energy efficiency capacity of the property and its location. Most of the supportive comments were in terms of having the same standards in the social and private sectors.[8]
3.112 Just under half supported the principle of similar treatment to that proposed for the social sector.
3.113 Of those that simply commented, half were broadly supportive, whilst half raised concerns about financial returns to owners, the potential return in value, and confusion to the public of varying standards especially if different standards were set for the same property type in different locations.
3.114 One of the 'other' group organisations thought that using the EESSH proposal could establish a level playing field across sectors, but was concerned about possible confusion arising from having different standards for different house-types. They also questioned whether the proposed standard was sufficiently challenging to meet the statutory climate change and fuel poverty targets. Another supported the link with fuel type and property type, albeit with exemptions associated with cost-effectiveness, upheaval, and consideration of period features.
3.115 Few addressed setting standards on the basis of location, but one respondent called for a rural weighting, with lower levels of improvement targets.
3.116 Comments from the private sector and the main warranty provider addressed value for money and life cycle cost considerations, impact on value and house sales, and consideration of any contractual restrictions imposed by the mortgage provider or the property factor. Another focussed on cost-benefits:
"Any regulation must be practical and costed. Forced improvements that are costly and ineffective in terms of the carbon reduction in relation to the payback of the capital investment received would be extremely unhelpful." – Homes for Scotland
Q27 If you agree with Q26, should houses of the sametype in the social and private sectors be expected to meet the same standard?
3.117 Most respondents answered question 27 (76%). Most of those responding answered 'Yes' (78%). Many referred to the answer given to question 26, and the intention of most comments to question 27 is adequately covered by the analysis of those responses. Other comments concerned the benefits of parity between sectors, for instance where RSLs leased private rented housing to supplement their own stock, where there were property exchanges between public and private sectors, and for neighbouring properties in different tenures. One suggestion about the phasing of standards is included in the analysis of question 30.
3.118 Nearly two thirds of respondents answered question 28 (64%). Responses were similar to Q10. Key issues were: learning from previous programmes; targeted funding; clear communication and use of trusted agents; flexibility and practical help in delivering improvements.
Q29 Should we consider additional trigger points topoint of sale or rental? If so, what?
3.119 Most respondents answered question 29 (73%). Of these, over half answered 'Yes' (61%)and suggested additional trigger points. The most common trigger suggested was building work, with three types identified, listed in order of frequency: applications for building warrant, including any request for building warrant or planned improvement and work subject to building control - some would limit that to building warrants for major works; major building work,[9] including renovation, extension, roof conversion, fitting of bathroom, kitchen, internal structural work, re-roofing; extensions, extensions or alterations to improve, major structural repairs; refurbishment / renewal / rehabilitation.
3.120 Other trigger points related to controls on rented properties: landlord registration; HMO licence application; and re-issue of EPCs.
3.121 Other trigger points which were less frequently mentioned were: boiler replacement, window replacement; local authority action not specifically triggered by energy efficiency; application for planning consent; adaptation for accessibility (with extra funding); mixed tenure repairs; at periodic intervals in the life of EPC; at point of purchase; building MOT inspection; application for grant assistance.
3.122 There were some comments on trigger points associated with building work: care would need to be taken to explain this better than in England where the 'conservatory tax' proposal has been abandoned;[10] energy efficiency regulation at the time of extensions could be attractive to homeowners if incentives for the measures were available, particularly if it saved double costs, such as scaffolding. Continuous promotion of the benefits of improvements and availability of incentives could increase take up between point of sale and rental events, avoiding such events becoming critical due to unplanned expenditure. Light touch' consequential improvements'[11] provisions were introduced in the 2010 revision of building regulations and it was suggested that a review of the impact of these provisions should inform deliberations. However, some respondents were concerned that any requirements for improving energy efficiency should not be a disincentive to undertaking home improvements as this would damage the building industry.
3.123 Third sector organisations reported that landlord representatives had raised questions about insulation works not being eligible for tax relief, while other improvement works were eligible, and called for a consistent approach.
3.124 A quarter of respondents answering Q29 agreed with trigger points only at sale or rental, or preferred incentives and information programmes to avoid adversely affecting the housing market, or disagreed with regulation.
3.125 Most respondents answered question 30 (76%). Several queried the format of the question and a high proportion of respondents only gave comments (39%). There appeared to be some confusion of two issues – the timing of rollout and whether similar timings should apply to both sectors.
3.126 Most of those answering Q30 supported phasing, with strongest support amongst the private sector, 'other' and RSL groups; less than a quarter supported introducing standards all at once.
3.127 Where mentioned, most supported the simultaneous application of regulation to owner-occupiers and the PRS, which it was felt would minimise confusion, maximise publicity, help co-ordinate work in mixed tenure properties and area based improvement schemes, facilitate properties switching between tenures, and provide a level playing field across the private sector. One respondent suggested the PRS should not be targeted first, due to the increasingly important role it is playing in meeting housing need, whereas some thought it should be universally applied, but phased, starting with the PRS.
3.128 One respondent supported simultaneous introduction with the new standard for the social sector, otherwise RSLs could sell their worst properties to the private sector. One suggestion for the phasing of standards had been given in response to question 27:
"We agree they should meet the same standard but the timescale should be different. We would expect social housing to meet the target first, then private sector landlords and finally owner-occupiers. Having the same standard for all tenures will allow contractors to develop their offering in well managed social housing with other tenures benefiting from this skilling up of industry. In addition it supports action in mixed tenure blocks as all tenures need to meet the same standard – albeit at different times. It may encourage owners to join in social landlord programmes of work." – 'Other' group
3.129 Some respondents referred to the options given in paragraph 2.75 of the consultation – they mostly favoured starting with the homes that have the lowest EPC ratings or incrementally increasing standards over time - hardly any favoured targeting areas that had already had area-based incentive schemes. However, one respondent remarked that phasing by energy efficiency ratings would only work where all the stock had an energy efficiency rating, but there was neither the time nor resources available to survey all stock. One suggested using BRE's Ecohomes XB to benchmark homes, to establish incremental improvements starting with worst performing homes.[12]
3.130 Suggestions for phasing incremental standards included a requirement for compliance with a minimum standard by a particular date, with a long stop date for every property to comply with a higher standard. Another suggestion was to link the minimum standard to fuel poverty and climate change targets, with milestones in 2015, 2020 and every 5 years.
3.131 Various types of phasing were advocated for rented property: year on year increases; or more generally varying standards over time; aiming at all parts of the housing sector having the same standards by 2020; or relatively easily achievable targets for all for 2020 then 5 year milestones with tougher targets. While some thought hard-to-treat properties might require different or lower standards, including a rural weighting, another suggested that a phased roll-out would give opportunity to work up examples appropriate to different housing types including cost effective solutions for 'hard-to-treat' properties.
3.132 There was little support for regulation only in those areas where programmes had already taken place, or more generally by geography or by tenure. However there were arguments in favour of area-based improvement schemes prioritising fuel poor people and targeting the poorest performing homes.
3.133 Some suggested other bases for phasing. Homes for Scotland was alone in its proposal to prioritise the amount of carbon saved per pound spent so the earlier phase would address quick wins. 'Other' group organisations advocated the application of standards only at the point of sale or rental, where there were existing mechanisms (landlord registration, conveyancing process) rather than applying standards for all housing from a set date which would require an entirely new process and delivery mechanism. A local authority suggested phasing linked to council tax bands, while one of the 'other' group organisations suggested phasing by the age of property. A private sector respondent suggested the introduction of a voluntary building MOT scheme to empower owners to undertake appropriate repairs and maintenance, ahead of any regulation.
3.134 Many respondents identified practical considerations of information and timescales to allow planning of work, and supply chain pressures: a phased approach would allow owners and landlords time to prepare for regulation and allow industries time to build capacity.
Q31 What other issues around enforcement do we need tothink about when considering how different approaches to regulation might work?
3.135 Over half the respondents answered question 31 (58%). Half raised the issue of resourcing of enforcement; a quarter queried practicalities of enforcement. Many comments were very similar to those regarding local authority powers in Questions 13 – 18.
"ALACHO accepts that some policy issues are sufficiently serious to merit an enforcement component, and that the social and environmental consequences of fuel poverty and carbon emissions come into this category. Thus, our concerns are not about enforcement per se (although legitimate issues of cost related feasibility, and the diminution of individual property rights in favour of collective benefits may be articulated) but about the costs associated with this and the capacity of local authorities to cope if, as seems likely, the burden of enforcement falls on them to deliver. Introducing enforcement measures which people come to believe have little or no consequence is clearly futile. Unless the intention is to properly resource enforcement it should not be introduced." – ALACHO
3.136 Local authorities' comments included consideration of: the work load impact on small local authorities; the monthly numbers of sales and rentals; the resource implication if there were a requirement to monitor energy efficiency compliance and a system of applying for exemptions; and the problems of cost recovery. Others queried the capacity of local authorities (or other publicly funded bodies) to carry out assessments of energy performance as part of the landlord registration process.
3.137 Again, some emphasised the need to consider the condition of the existing structure – there would be no point laying loft insulation if there was severe water ingress and the roof required to be replaced. Others observed that many home owners could not access the necessary funding for improvements, particularly in the current economic conditions, and regretted the absence of a national lending unit.
3.138 Other issues were: the nature of penalties; ensuring the quality of the works and materials employed, and the efficiency of renewable energy systems; and legal issues of ownership of the property or problems gaining access.
3.139 Two thirds of respondents answered question 32 a) (66%); slightly more answered 32 b) (69%). Of those answering question 32, most favoured sanctions on owners (65%), but less than half thought the sanction or obligation should be passed on to buyers (46%). Even amongst those who answered 'Yes' there were many comments advising caution.
3.140 Many comments concerned the negative impact on the housing market or the action of market forces, again with preference for the use of incentives and support, and calls for assessment of whether the desired outcome would be better met by allowing consumer choice to influence the market - sanctions could have a negative impact on house values. One view was that passing on sanctions to the purchaser would have a detrimental impact on the provision of mortgages as the value of the improvement would either be fully retained by the funder or retained pending completion of the required work.
3.141 Other opinions included the view that regulations would worsen inaction on empty homes, where people had bought properties in disrepair with the intention of doing them up but then been unable to do the work. Another respondent warned that impacts were likely to be most damaging in areas of the country that were not doing well economically (hard-to-treat homes in remote rural areas). Some thought that in the PRS either rents would have to be increased or the landlord would have to sell. A few respondents thought market forces would operate so that the value of non-compliant properties would reduce, resulting in a self-policing system. Some argued for incentives rather than sanctions, working in tandem with market forces. Again, several respondents suggested the incentive of LBTT rebates linked to energy efficiency.
3.142 Arguments for passing on sanctions to buyers included purchasers recouping the benefits of energy efficiency, and establishing a strong link between market value and energy efficiency. Without upgrades, purchases might be at a lower price and the purchaser could fund upgrades in a cost neutral way; otherwise, opportunities to purchase old properties to develop would become non-existent. However, regulation should only allow passing on the burden at the first sale - the buyer should not be able to sell on without improvements.
3.143 Some again raised the need for resources for enforcement. The other main issue was the mechanism of sanctions, which tended to argue for having work done before completion, or before occupation - once a property becomes occupied, policing would be impossible. One respondent queried whether sanctions would be legally possible. Some proposed the 'incentive' for landlords of non-compliance being linked to assessment under the Fit and Proper Test for Landlord Registration.
3.144 Some addressed time limits for work to be done, such as provision to allow people to sell properties they were unable to improve with enforcement of compliance within a 12-month window. Others suggested limiting compliance to 6 months. One of the 'other' group organisations asked for consultation with valuation surveyors who would need to be aware of the possibility of cancellation of sales due to properties not meeting energy efficiency standards, with a potential impact on their PI insurance.
3.145 Most respondents answered question 33 (68%). The most popular date suggested was 2015, predominantly by organisations in the 'other' group, followed by 2020 which was mostly suggested by RSLs and local authorities.
3.146 Half of the respondents who suggested 2015 offered justifications. These included alignment with the Fuel Poverty statement target of 2016, and with the targets set for CO2 reduction for 2020 and 2050.
"Given increasing levels of fuel poverty and rising energy costs, we would suggest that regulations should be applied as soon as possible during or after 2015, as a necessary part of the process of the Scottish Government meeting its existing fuel poverty target. However, we also appreciate the need for the delivery of regulations to be effective. We would therefore suggest that the working group should look explicitly at the processes which need to be put in place, including time for promotion of the changes, and should make recommendations on the timing of regulations on that basis." – Existing Homes Alliance, Age Scotland, Consumer Focus Scotland
3.147 However, response was split, with as many comments raising issues and objections as all the suggestions for dates. Issues were mostly raised by local authorities and private sector organisations.
3.148 There were calls to take account of progress of programmes which were about to get underway, and of the health of the economy and domestic property market. ALACHO counselled caution:
"Scottish Government is right to be cautious about the speed with which regulation might be introduced. It is wise to allow for further discussion on timescales within the proposed working group which will consider this issue, and to take into account not only progress with the various initiatives and programmes which are about to get underway, but also the health of the economy and domestic property market, which will play a crucial part in determining participation rates in home energy efficiency improvement schemes. ALACHO is content that firm timescales should only be set following these deliberations, and as and when appropriate and deliverable..."
3.149 There were several comments regarding uncertainty about the Green Deal, and calls for analysis of its progress, including a suggestion that elements of the Green Deal might not fulfil their objectives and that the introduction of regulation should be linked with more effective funding mechanisms. However, some third sector organisations suggested regulation should come into force from 2015 - in part to drive demand for the Green Deal.
3.150 More lead-in time was needed for implementation of an enforcement system delivered through local authorities which penalises owners - owners should be allowed to implement energy efficiency measures as their resources permitted; a few called for landlords with several properties to be given longer to comply. The time taken to achieve the SHQS by the social rented sector indicated how much time the considerably more diverse private sector would require. An RSL sector organisation advised that the data collection and management time required would need to balance the outcome, while self-regulation with benchmarking would be welcome.
3.151 Some referred to the key dates set out in paragraph 2.81 of the consultation (2018 regulation of the PRS in England and Wales; 2020 EESSH implementation; 2020 and 2050 climate change targets) and proposed commencement after implementation of the EESSH, or synchronising regulations for all sectors.
3.152 Private sector respondents were concerned about a lack of consumer awareness about the Green Deal and suggested homeowners should be given additional lead time to introduce energy saving measures voluntarily with access to grants and information, including how to find a suitably skilled and accredited contractor. There were calls for pilot work to ensure workable solutions that deliver the stated levels of energy efficiency benefits. There was a need to ensure there would be sufficient capacity in the repair and maintenance sector, and within local government for enforcement.
"Market conditions must take priority and at this time the market is still extremely fragile.... it is crucial that the Scottish Government think carefully about the timing of any regulation and consult widely with estate agents, surveyors etc., about the state of the market before making decisions on timing." – Homes for Scotland
3.153 The Existing Homes Alliance called for particular consideration of sitting tenants in private rented properties that do not have an EPC – such tenants were particularly vulnerable, being reluctant to risk animosity on the part of their landlord by requesting that their home meet the standard.
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