Social housing allocations in Scotland: practice guide

13. Suspending, Bypassing and Deferring

This section covers the circumstances under which a landlord might not make an offer of housing to an applicant on their list, who might otherwise receive an offer.

By working through this section readers will:

• understand the difference between by-passing, deferral and suspension.
• know about the statutory suspension option.
• be familiar with the range of reasons why landlords might suspend an applicant and how long they might suspend for.
• know the circumstances when a landlord cannot suspend an applicant.
• be aware of the outline approach when suspending an applicant.

13.1 Definitions

There are various circumstances where landlords might choose not to make an offer of housing to an applicant on their list. When this happens landlords must have clear reasons for doing so.

Bypass: This is when a landlord doesn't not make an offer of housing to someone who might otherwise have received an offer. This might be done when the landlord knows that the property would not meet the applicant's needs or knows that the applicant will refuse the offer. An example of this would be where the applicant has recently refused an offer of a similar property in the same location and has said they would not be interested in receiving a similar offer.

If a landlord bypasses an applicant for an offer of housing, it should always keep a record of why it has done so. If the landlord is bypassing the same applicant frequently, it may wish to ask the applicant to review the choices of area and housing type they have made.

Deferral: This is when an applicant advises the landlord that they wish to remain on the housing list but do not want to receive an offer at this time. Common reasons for this include health, family or employment circumstances. Many landlords allow applicants to ask for their application to be deferred for a set period of time or until further notice.

Landlords should keep all deferrals under regular review to ensure that applications are not deferred indefinitely. Once the applicant asks for the deferral to be lifted, this should be done as soon as possible, and landlords may also use this as an opportunity to carry out a housing health check with the applicant.

Suspension: This is when a landlord decides that it will not make an applicant an offer of housing until certain circumstances have changed, conditions are met or a set period of time has passed. The applicant remains on the landlord's housing list while suspended unless they ask to be removed from the list.

Although suspensions can be a useful housing management approach they should be kept to a minimum.

When suspending any applicant, landlords should ensure that a suspension is being imposed for sound reasons. Suspensions should not be used as a punitive measure but rather as a way of sending a clear signal about what is expected of someone before they will be considered for an offer of housing.

A landlord's suspension policy should set out clearly the reasons for which an applicant could be suspended, how long they will be suspended for and what, if anything the applicant should do to have a suspension lifted. It should also set out how an applicant can appeal against their suspension.

In developing their approach, landlords should refer to the Minimum Period for Applications to remain in force - Suspensions Under Section 20B of the Housing (Scotland) Act 1987. Statutory Guidance, Housing (Scotland) Act 2014 (Scottish Government 2018). The Guidance is useful in relation to both statutory and non-statutory suspensions (see below). The Guidance is available from the Scottish Government's website at: https://www.gov.scot/policies/social-housing/

13.2 Non-statutory or statutory suspensions

Suspensions have been used for many years and most landlords already have a suspensions policy in place. This may be a separate policy or, more usually, will be included in their allocation policy. This long-used type of suspension, which is not based on legislation and is therefore non-statutory, will continue to be the way that applicants who are already on the housing list can be suspended.

Section 6 of the 2014 Act introduced a new statutory suspension provision and provides an additional power to social landlords to suspend an application at the point at which that application is placed on the list. Landlords do not need to use the statutory suspension provision, but they can choose to do so.

Where landlords decide to use statutory suspensions for applicants who are new to the list, applicants who are suspended on this basis (under section 20B) have a right to appeal to the Sheriff Court. As with all suspensions and deferrals, landlords will need to ensure that they have robust evidence to support the suspension being made.

13.3 Statutory homelessness and suspensions

A local authority may not impose a statutory suspension where it has a duty to secure accommodation for an applicant who has been assessed as being statutorily homeless. This restriction applies when the applicant is being made offers of housing because of their statutorily homeless status.

If the statutorily homeless applicant turns down these offers, and any future offers are being made as a general list applicant, landlords could impose a non-statutory suspension. However, landlords should make every reasonable effort to avoid suspending an applicant under these circumstances.

RSLs also have duties under section 5 of the 2001 Act to house statutory homeless people. RSLs have to meet section 5 requests from local authorities unless there are good reasons not to.

Although RSLs are not governed by the same rules as local authorities, RSLs will want to consider whether it is appropriate to suspend an applicant who has been assessed as homeless.

13.4 Circumstances where a landlord may not impose a statutory suspension

If imposing a statutory suspension under the 2014 Act, a landlord cannot use the same evidence more than once to impose a suspension when it relates to the same application for housing. Landlords may want to consider taking an equivalent approach to non-statutory suspensions.

As an example, if a landlord imposes a suspension because an applicant has abandoned a previous tenancy, it cannot suspend again using this reason once the initial suspension has come to an end. This applies to evidence relating to an applicant or someone it is proposed will live with the applicant.

A landlord could however choose to impose a further suspension for a different reason. For example, it could impose a suspension for a previous conviction and once that suspension has expired, they could immediately impose a suspension for a separate occurrence of antisocial behaviour.

Landlords will want to think very carefully, however, about imposing consecutive suspensions which result in an applicant not being considered for housing for a prolonged period. Any approach should be proportionate to the circumstances of each case, and reasons for suspending should be recorded.

13.5 Possible reasons for suspension

A suspension policy should set out clearly the reasons that might be used to suspend an applicant from receiving an offer of housing.

If a landlord is developing a statutory suspension policy, the grounds set out in the 2014 Act and as covered in turn below are the only suspension reasons it can use. However, for other non-statutory suspensions, landlords can develop their own grounds as long as they are reasonable and are set out in their policy. An example could be suspending a transfer applicant who has neglected their current home until the condition of their home is improved. However, landlords may find the categories set out in the 2014 Act a useful starting point for reviewing their non-statutory suspensions policy.

Antisocial behaviour

Antisocial behaviour is already a frequently-used reason for suspending applicants.

Section 20B(6)(a) states that landlords may impose a suspension where:

(a) the person has-

(i) acted in an antisocial manner in relation to another person residing in, visiting, or otherwise engaged in lawful activity in the locality of a house occupied by the person,

(ii) pursued a course of conduct amounting to harassment of such other person, or a course of conduct which is otherwise antisocial conduct in relation to such other person, or

(iii) acted in an antisocial manner, or pursued a course of conduct which is antisocial conduct, in relation to an employee of the social landlord in the course of making the application.

Antisocial behaviour is defined as an action or course of conduct causing or likely to cause alarm, distress, nuisance or annoyance with 'conduct' including things which a person has said as well as physical actions. A course of conduct must involve antisocial behaviour on at least two occasions.

The Housing (Scotland) Act 2001 gives criteria for landlords to use when considering court action for eviction based on antisocial behaviour and provides a useful framework for landlords to use when deciding whether to suspend based on antisocial behaviour. Landlords should consider:

• the nature, frequency and length of the conduct;
• the extent to which the conduct arises because of acts or omissions of people other than the tenant;
• the effect the conduct is having on other people; and
• any other action taken, or capable of being taken, by the landlord to address the conduct.

Whenever a landlord suspends an application it must ensure that it has robust evidence to support its decision.

Previous convictions

Landlords might choose to impose a suspension if the applicant, or someone the applicant lives with or has lived with, has been convicted of certain offences and where those offences are associated with a residential property or the surrounding area.

Landlords that have included previous convictions for antisocial behaviour as a reason for suspension within their policy could suspend a waiting list or transfer applicant from receiving an offer of housing where they, or someone they live or have lived with, have been convicted of a crime that has been committed in or near the property where they were a tenant or joint tenant.

Landlords will want to consider carefully the nature of the offence and whether the behaviour that led to a conviction has had an impact on the people living in, or in the locality of, the house before suspending on this basis. In particular, they will want to consider what they are trying to achieve through the suspension.

If a landlord chooses to include previous convictions within its suspensions policy, it can only use the reasons specified under section 20B of the 1987 Act. These are that the applicant, or someone who has lived with the applicant has been convicted of:

(i) using a house or allowing it to be used for immoral or illegal purposes, or

(ii) an offence punishable by imprisonment which was committed in, or in the locality of, a house occupied by the person.

Punishable by imprisonment means that the offence carries imprisonment as a possible penalty. A prison sentence does not need to have been imposed for the conviction to be used as a valid ground for suspension. For example, a community payback order may be given by the criminal court as an alternative to a prison sentence.

Order for recovery of possession

Landlords could consider suspending an applicant if an order for recovery of possession has been made against them in proceedings under:

(i) the Housing (Northern Ireland) Order 1983

(ii) the Housing Act 1985

(iii) the Housing (Scotland) Act 1987

(iv) the Housing (Scotland) Act 1988

(v) the Housing (Scotland) Act 2001.

This means that where a court in Scotland, England, Wales or Northern Ireland has previously granted an order to evict a tenant, a social landlord may suspend that person from receiving an offer of housing. It is not a requirement to do so in every case and landlords should consider each case on its merits so that individual circumstances can be taken into account, and this flexibility should be included in suspensions policies.

Abandoning or neglecting a property

Landlords could consider suspending applicants when, as either a tenant or joint tenant, they have abandoned or neglected a previous tenancy.

For example, landlords could impose a suspension where:

• an applicant's previous tenancy has been repossessed when abandoned under section 18(2) of the 2001 Act. If a joint tenant, the tenancy would have been terminated by the landlord under section 20(3) of the 2001 Act.

This means that an applicant could be suspended if they had previously had a property repossessed by a social landlord because they had abandoned that property. It would apply whether they were the sole or a joint tenant.

Landlords could also consider including neglecting a property as a possible reason for suspension. This could be phrased as:

• Where the applicant was a tenant or joint tenant of a property for which a court has ordered recovery of possession on the ground of deterioration of the property due to neglect, or deterioration of furniture due to ill-treatment (paragraph 3 or 4 of schedule 2 to the 2001 Act).

As set out above, these reasons for suspension apply only to repossessions or orders for repossession of any social rented sector tenancy made in Scotland under the provisions of the 2001 Act. This means that landlords could choose to suspend an applicant who has abandoned or neglected another social landlord's property as well as their own.

Landlords will have to have access to historic information on the grounds for any eviction and also any abandonment procedures so it will be important for all social landlords to retain records on such actions including the specific grounds for an eviction.

Rent arrears and other tenancy-related debt

Rent arrears and other tenancy-related debt have long been included as reason for suspending applications by many landlords. Tenancy-related debts can include such things as service charges, the cost of rechargeable repairs, the costs of clearing an abandoned house and storing furniture, and property management charges.

Any suspension should be compliant with the outstanding liabilities set out in section 20(2)(a) of the 1987 Act (as amended). The provisions for a statutory suspension set out in the 2014 Act mirror those requirements, meaning that landlords can impose a suspension where there is or was any outstanding liability (for payment of rent or otherwise) in relation to a house which:

(i) is attributable to the person's tenancy of the house, and

(ii) either:

(A) section 20(2A) would not be satisfied in respect of that debt, or

(B) in the case of a debt which is no longer outstanding, section 20(2A) would not have been satisfied at any time while that debt remained outstanding" (section 20B(6)(g) of the 1987 Act as amended by section 6(2) of the 2014 Act)

This means that a landlord can impose a suspension for rent arrears or other outstanding charges relating to a house. However, there are circumstances when a landlord cannot suspend because of rent arrears. These are:

• they do not relate to the tenancy of a house; or
• when the arrears or other liabilities are no longer outstanding.

In occasional circumstances, it may be reasonable for a landlord to impose a suspension on an applicant if they have previously had significant unpaid rent arrears or service charges which are no longer outstanding because the landlord has written off the debt.

Landlords also cannot suspend an applicant when the applicant is in rent arrears or owes a landlord money for a reason relating to the property, where the applicant has agreed to and is keeping up with a repayment agreement. Specifically, a landlord cannot suspend when either or both of the following apply:

• the rent arrears are not more than one twelfth of the annual rent (i.e. one month's rent).
• the applicant has agreed with the landlord an arrangement for paying the outstanding liability; and has made payments in accordance with that arrangement for at least three months; and is continuing to make such payments.

Where an existing tenant who has applied for a transfer has accrued significant rent arrears, landlords should be working with them to achieve a satisfactory outcome. This could include providing or signposting them to financial advice, considering a move to a smaller, more affordable property or putting in place a realistic repayment agreement that will allow the debt to be repaid. Landlords should base any agreement on its affordability for the applicant rather than the level of debt. This approach should form part of their wider work around tenancy sustainment.

Making a false statement in an application for housing

Landlords may consider knowingly making a false statement on a housing application form as a possible reason for suspension. However, a statutory suspension can only apply to a false statement made by the applicant and does not extend to a false statement by others on the application form and who will live in any property let to the applicant.

Landlords will want to look at the circumstances of each case rather than applying a blanket approach. For example, landlords might choose not to suspend if the false information does not affect the outcome of the assessment of housing need.

Applicants who have refused an offer of housing

Some landlords do not impose any limits on the number of offers made while others limit the number of reasonable offers that an applicant can refuse before they are suspended. The Code of Guidance on Homelessness states that "in considering what is a reasonable offer, local authorities should take into account the particular circumstances and needs of the applicant and their household. Local authorities should also take into account the sustainability of the accommodation for that particular applicant."

As with other suspension's reasons, suspensions based on refusing reasonable offers should not be used punitively but rather as a way of encouraging applicants to give careful consideration to the choices they have made about area and property type.

When a landlord decides to include suspension after a set number of offers have been refused, it should apply that policy equally irrespective of the type of applicant involved. For example, homeless, housing list and transfer applicants should all be entitled to the same number of reasonable offers before possible suspension.

13.6 Length of suspensions

A landlord's allocation or suspension policy should set out clearly:

• how long the suspension will be in place; or
• the conditions or terms an applicant needs to meet in order to have the suspension removed.

Rather than setting a specific time for the suspension, a landlord could remove a suspension under certain circumstances. For example, where the applicant has existing rent arrears, a landlord could remove the suspension once an applicant has made payments in accordance with an arrangement for at least three months and is continuing to make their repayments as agreed. Where a suspension is based on the condition of a transfer applicant's property, it could be removed as soon as the condition of the property has been improved to the landlord's satisfaction.

A set timescale might be applied to suspensions for antisocial behaviour, previous convictions, abandoning or neglecting a property, giving false information or refusing a number of reasonable offers. Standard practice is usually to impose a suspension of between three-12 months.

In particularly serious cases or circumstances, landlords could consider a longer suspension period. For example, a landlord might decide to impose a suspension for up to two years where there are previous convictions for an offence committed in or near to a previous tenancy. Landlords can adjust the length of the suspension to reflect the seriousness of the offence, its impact on those who lived nearby and whether the suspended applicant has changed their behaviour.

Landlords can shorten or withdraw a suspension at any time where they feel that it is appropriate to do so. However, they should not vary a suspension in a way that lengthens it.

There is no maximum length for a suspension set out in legislation. However, the Scottish Government's Statutory Guidance makes it clear that statutory suspensions should not exceed three years.

13.7 Reasonable period to look back

Just as landlords should give careful consideration to how long they will suspend applicants in different circumstances, they will also need to consider how far back they will look for reasons to suspend.

Landlords should only look back for up to three years unless there are exceptional circumstances.

Landlords should exercise their discretion when deciding whether it is appropriate to impose a suspension. For example, if an applicant behaved antisocially two or three years ago, but has changed their behaviour, it may not be appropriate to suspend them.

13.8 Approach to suspending

Where a landlord chooses to suspend an applicant, it should inform the applicant at the time it suspends them and provide them the following information:

• if they have been suspended under section 20B, that it is a statutory suspension;
• the reasons why they have been suspended according to the landlord's allocation/suspensions policy;
• the implications of the suspension - they will not be made an offer of housing while it remains in place;
• if there is a timescale for the suspension, the dates on which the suspension begins and ends;
• if certain conditions need to be met, what those conditions are, and what they need to do to satisfy them;
• where to find independent housing and/or legal advice; and
• their right to appeal, including their right to appeal to the Sheriff Court if they are suspended under section 20B.

Any suspension should be lifted as soon as the set time period has elapsed, or any conditions set by the landlord have been met.

There may be situations when suspending an applicant is unlikely to achieve a positive outcome and landlords should make case-by-case decisions rather than applying a blanket policy. For example, if an applicant has a long history of antisocial behaviour, they may find it easier to make positive changes if given a short Scottish secure tenancy with support rather than being suspended for a period of time and then offered a Scottish secure tenancy with no support in place.

Equally, even if a landlord's policy allows for suspension after a number of reasonable offers, discussing their choices of area or house type with the applicant may be a more constructive approach.

Information Point - Short Scottish Secure Tenancies for Antisocial Behaviour

The 2014 Act amends the 2001 Act to extend the circumstances when a short Scottish secure tenancy (short SST) can be given because of antisocial behaviour. The changes come into force on 1 May 2019.

Landlords will now be able to convert an existing Scottish secure tenancy (SST) to a short SST or can give a short SST to new tenants, where the tenant, a household member or a visitor, has behaved antisocially towards another person in or near the house within the last three years.

The legislation also gives social landlords the flexibility to extend a short SST which was created due to antisocial behaviour by an additional six months in certain circumstances. This means that short SSTs created due to antisocial behaviour could last up to 18 months.

Landlords can still take eviction action against the tenant during the 12-month period (18 months where an extension applies) if it becomes necessary. The tenancy will convert automatically to a full SST after 12 months (18 months where an extension applies), unless the landlord has served a notice of proceedings for recovery of possession on the tenant before the end of the 12-month period (18 months in the case of an extension) and the notice is still in force.

The use of short SSTs can benefit tenants by giving them a further chance to change their behaviour and sustain their tenancy. It can also help landlords who are concerned about offering a permanent tenancy to tenants who behave antisocially where there is a risk that offending behaviour might recur.

The statutory guidance on Short Scottish Secure Tenancies for Antisocial Behaviour and Other Miscellaneous Changes to Short Scottish Secure Tenancies is available on the Scottish Government website https://www.gov.scot/policies/social-housing/.

13.9 Monitoring suspensions

It is important that landlords have an effective monitoring system in place to manage suspensions, to make sure that suspensions are regularly reviewed and are lifted when any time period set has elapsed. Landlords also need to monitor their suspensions and manage them in an accountable and transparent way and make sure that suspensions are operating satisfactorily and in line with legislation. Landlords will therefore want to monitor:

• the number of applications suspended, and for what reason;
• the number of reviews of suspensions requested by applicants and their outcomes;
• the number of appeals against section 20B suspensions and their outcomes; and
• the number of subsequent requests for reviews of suspensions, or reviews initiated by the landlord, and their outcomes.

There is no legal requirement to monitor the gender, age, ethnicity and disability of suspended applicants but landlords might find it helpful to do this in order to gather information on how the suspensions policy impacts on different groups of people and to ensure it is operating fairly.

Key Points

A suspension occurs when a landlord makes a decision that it will not make an applicant an offer of housing until certain circumstances have changed or a set period of time has passed.

Although a useful housing management approach in some cases, suspensions should be kept to a minimum.

The 2014 Act introduced a new statutory suspension provision and sets out the reasons according to which an applicant can be given a statutory suspension. Landlords have an option to, but do not need to, use the statutory suspension provision to allow for suspension at the point of application.

Antisocial behaviour, previous convictions, abandoning or neglecting a property, rent arrears, deliberately providing false information in an application for housing and refusing a number of reasonable offers could all serve as both statutory or non-statutory reasons for suspension.

A local authority may not impose a statutory suspension where it has a duty to secure accommodation for an applicant who is homeless. RSLs also have duties under section 5 of the 2001 Act to house statutory homeless people.

There are no rules governing the length of time an applicant can be suspended for any single reason. However, any timescales should be reasonable and justifiable and if a landlord is relying on the new s20B for suspension at the point of application they must have regard to the Scottish Government on this section which states three years should be a maximum for any suspension under s20B.