Short Scottish Secure Tenancies for antisocial behaviour and miscellaneous changes: statutory guidance for social landlords

1. Introduction And Background

1.1 Tenancy agreements should set out the level of behaviour expected from tenants, members of their household and visitors to their home and make it clear to tenants that they are responsible for the behaviour of others in, or visiting their home. The tenancy agreement and other tenancy information such as tenant handbooks, should also make it clear to tenants that breaking their tenancy agreement as a result of antisocial behaviour may result in legal action to evict them, or a reduction in their tenancy rights. Tenants are responsible for ensuring that they keep to the conditions of their tenancy agreement.

1.2 Antisocial behaviour can have a serious impact on individuals and communities and needs to be clearly defined, identified, and tackled quickly and effectively when it arises. How it will be addressed should be set out in each landlord’s^[1] Antisocial Behaviour Strategy/Policy. Early identification and close working arrangements between partners such as the police, local authorities, registered social landlords and voluntary sector organisations can help to prevent antisocial behaviour and criminal behaviour escalating and eliminate the need for costly court action at a later stage.

1.3 The Antisocial Behaviour etc. (Scotland) Act 2004 and the Housing (Scotland) Act 2001 (“the 2001 Act”) set out a range of measures that landlords or their partner agencies such as the police, can take to help address antisocial behaviour. The Scottish Social Housing Charter contains outcomes that cover the role of landlords, working with others, in managing antisocial behaviour. It highlights how landlords should carry out their housing activities in a way which complies with equalities legislation.

1.4 To complement the existing measures available to landlords to address antisocial behaviour in, or in the locality of a social housing tenancy, a number of new provisions were introduced in the Housing (Scotland) Act 2014 (“the 2014 Act”). These measures include:

• a new short Scottish secure tenancy for antisocial behaviour^[2];
• a power for landlords to extend the term of some short Scottish secure tenancies by 6 months, including those related to previous antisocial behaviour, where housing support services are being provided^[3]; and
• a new streamlined eviction process where there has been a recent criminal conviction punishable by imprisonment for tenancy related antisocial or criminal behaviour within the previous 12 months^[4]. Further information on this can be found in the guidance ‘Streamlined Eviction Process – Criminal or Antisocial Behaviour’.

1.5 This statutory guidance will help landlords use changes to the law on short Scottish secure tenancies (short SSTs) in the 2001 Act as amended by sections 7,9,10 and 11 of the 2014 Act. [The position prior to these changes being made is set out in the guidance for landlords on short SSTs in SEDD Circular 6/2002 – Housing (Scotland) Act 2001 – Scottish Secure and Short Scottish Secure Tenancy].

1.6 This guidance, and these new provisions, will take effect from 1 May 2019. The Housing (Scotland) Act 2014 (Commencement No. 8, Savings, Transitional and Supplemental Provisions) Order 2018 sets 1 May 2019 as the date the provisions at sections 7 (except section 7(1)(b) containing the power to make the guidance which came into force on 20 November 2014), 9,10 and 11 of the 2014 Act come into force. This guidance and these new provisions do not apply to a short SST where the notice offering the short SST is served before 1 May 2019. The guidance and these new provisions also do not apply where the landlord has already served a notice of proceedings on a tenant under section 36(3) or section 14(2)(a) of the 2001 Act before 1 May 2019 and which is in force on the date court action is raised.

1.7 The Scottish Government has made regulations under the Act which landlords must follow for all short SSTs created on and after 1 May 2019. These are:-

• The Short Scottish Secure Tenancies (Notice) Regulations 2018; and
• The Short Scottish Secure Tenancies (Proceedings for Possession) Regulations 2018.

1.8 In addition, landlords must also follow The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Regulations 2012 as amended by The Scottish Secure Tenancies (Proceedings for Possession) (Form of Notice) Amendment Regulations 2018 when using section 14 of the 2001 Act to recover possession of any short SST (paragraphs 13.21 to 13.29 of this guidance refer).

1.9 In summary, the changes introduced by the 2014 Act include:

• Allowing a landlord, without going to court, to give a short SST to a new tenant where that person, or other specified person, has demonstrated the specified antisocial behaviour^[5] within the previous 3 years;
• Similarly, allowing a landlord, without going to court, to convert a Scottish Secure Tenancy (SST) to a short SST, where an existing tenant or other specified person has demonstrated the specified antisocial behaviour^[6] within the previous 3 years;
• Setting a new term of 12 months for a short SST given on any of the antisocial behaviour grounds^[7], 18 months in cases where an extension applies – as set out below;
• Giving landlords the flexibility to extend a 12 month short SST given on any of the antisocial behaviour grounds for a further 6 months where housing support services are in place^[8] and where, for example, sufficient improvement in behaviour has not yet been demonstrated;
• Automatic conversion to a Scottish Secure Tenancy (SST)^[9] at the end of the 12 month term for a short SST given on any of the antisocial behaviour grounds, unless the landlord has taken action to extend the tenancy for a further 6 months, or has taken action to repossess the tenancy;
• New provisions for cases where a landlord is seeking recovery of possession of a house let under a short SST on any grounds. These include the flexibility for landlords to use the procedures at section 14 of the 2001 Act to take possession action at any stage during the term of the tenancy^[10], providing the tenant with reasons for the landlord taking action under section 36 of that Act (including in antisocial behaviour cases, the obligations of the tenancy which have been broken)^[11], and a new right of review for tenants^[12].

1.10 These changes are intended to help landlords tackle antisocial behaviour by tenants and others living in social housing by giving more flexibility on when a short SST on antisocial behaviour grounds can be used. They also set out how a short SST on antisocial behaviour grounds should be managed in order to provide the tenant with an opportunity to make positive change and be able to sustain a successful tenancy. In addition, changes to repossession action for any type of short SST, give increased flexibility for landlords and protection for tenants.

1.11 Before deciding to use a short SST for a new or existing tenant who has demonstrated antisocial behaviour within the previous 3 years, landlords will have to consider whether a short SST is appropriate. Guidance for social housing providers on taking measures to address and manage antisocial behaviour is contained in guidance produced by the Equality and Human Rights Commission. Human Rights at Home – Guidance for Social Housing Providers.

1.12 The Explanatory Notes for Part 2 of the 2014 Act describe in full the purpose and effect of these provisions. Details of the legislative changes made by the 2014 Act are shown in a consolidated way at Annex A.