COVID-19 and Housing

The Coronavirus (Scotland) Act 2020 is now law.  It brings major changes to housing law and practice, which will impact a large number of tenants for the foreseeable future.  The emergency provisions are initially effective until 30 September 2020 but may be extended by the Scottish Ministers up to a further year.  These changes could well be with us for the medium term, and it is crucial that advisers, lawyers, and others are familiar with them.

The Legal Services Agency remains committed to defending the right to a safe, secure, and affordable home.  Our solicitors are fully equipped to provide advice and assistance by telephone.  If you or someone you know might be affected by these changes, please contact us.

Private rented sector

Arguably the most noteworthy change is that all evictions in the private rented sector are now discretionary.  This means the tribunal is no longer bound to grant an eviction order when a given set of facts are proved, but rather, may do so only if satisfied that it is reasonable in the circumstances.  The changes extend to both modern private residential tenancies and older (short) assured tenancies.

Housing rights campaigners will particularly welcome changes to the mandatory, no-fault eviction ground in short assured tenancies, under section 33 of the Housing (Scotland) Act 1988.  This requires only that a landlord serve valid notices to end the tenancy, after which the tribunal is bound to grant an eviction order.  However, it is now to be read as though it is discretionary; it is for the tribunal to decide whether it is reasonable to evict the tenant considering the full facts.

In recognition of the economic difficulties that lie ahead, there are important changes to the rules around eviction on rent arrears grounds.  The Private Housing (Tenancies) (Scotland) Act 2016 provides that if a tenant is in arrears equivalent to more than one month’s rent, and has been so for at least three consecutive months, the tribunal is obliged to grant an eviction order.  The relevant paragraph is now to be read as though it had been repealed.  Schedule 3, paragraph 12(3) of the 2016 Act, however, remains unchanged, which means that where a tenant is in arrears of rent for at least three months, the tribunal may grant an eviction order if satisfied that it is reasonable to do so.

Notice periods have also been extended across the board.  The minimum period of notice in most cases is now six months.  There is a shorter period of 28 days for the tenant not occupying a property let under a private residential tenancy.  The period has also been extended to three months, rather than six, for:

• landlord intends to live in the let property;
• a member of the landlord’s family intends to live in the let property;
• the tenant has a relevant conviction;
• the tenant has engaged in antisocial behaviour;
• the tenant associates in the let property with a person who has a relevant conviction or engages in antisocial behaviour;
• the landlord is not registered by the relevant local authority;
• the let property is in multiple occupation and not licensed to be so.

It must be noted that all these changes apply only to actions where notice is served after the commencement of the 2020 Act.  This means that where a landlord served notice specifying mandatory grounds prior to 7 April 2020, a tribunal would still be bound to evict the tenant.  The First-tier Tribunal for Scotland (Housing and Property Chamber) has advertised that it does not intend for tribunals to sit until at least 28 May 2020, which may prevent some evictions during the current crisis.  However, it has also confirmed that orders will continue to be issued administratively in the immediate future.  Those tenants against whom an order was granted before now may consequently find themselves at imminent risk of eviction during the greatest public health crisis of generations.

Social rented sector

The 2020 Act also introduces changes which will affect tenants in the socially rented sector.  Whilst there is no modification of eviction grounds, there are significant changes to notice periods.

Before court action for eviction of a tenant can be raised, a social landlord must issue a Notice of Proceedings for Recovery of Possession.  Legislation previously provided that at least four weeks must pass between service of the notice and raising of an action for eviction of a Scottish Secure Tenant.  That period has now been extended, in most cases, to six months.  A shorter period of three months applies where eviction is sought due to antisocial behaviour, criminal conviction, and fraud.

The extended notice periods will, for example, give those tenants affected financially by Coronavirus a reasonable period in which to address rent arrears.  However, as in the private sector, the changes are effective only for notices served after 7 April.  For tenants served with notice prior to this date, whose circumstances are exacerbated by the current crisis, it is vital that they seek appropriate legal advice and representation.

Human Rights – and the application of the Human Rights Act

Both Paul Brown and Ben Christman have written, on this blog, about the impact of the current public health emergency on human rights.  Most relevant to the issue of housing is Article 8 of the European Convention on Human Rights, which provides that everyone has the right to respect for their private and family life, including their home.  This is incorporated into UK law by way of the Human Rights Act 1998.

Courts and tribunals may apply the Coronavirus (Scotland) Act 2020, as any other, only insofar as it complies with the Human Rights Act 1998 and the Convention rights contained therein.  If a tenant seeks to challenge an eviction on human rights grounds, courts and tribunals must decide whether the eviction is a ‘proportionate’ interference with their Article 8 rights.  Critically, courts must consider proportionality only where it is raised by the tenant as a defence to an action.  It is therefore vital that anyone at risk of eviction in the coming months take expert legal advice in relation to proportionality and other human rights-based defences which may be available to them.

Embedding rights

Whilst these changes are welcome, they fall far short of adequately protecting even the most vulnerable tenants.  A tenant against whom an eviction order was granted in the past weeks might soon find themselves evicted from their home during a public health crisis like nothing we have seen before.  Whilst the Scottish Federation of Housing Associations has committed to halting evictions until the crisis is over, they do not bind all social landlords, far less those in the private sector.  There must be nothing short of an absolute ban on evictions whilst restrictions on movement are in place, in the interests of preserving public health and relieving pressure on public services.

There are few rights and needs more fundamental than a safe, secure, and affordable home.  The right to adequate housing is enshrined in international law – in both the International Covenant on Economic, Social, and Cultural Rights and the Charter of Fundamental Rights of the European Union.  The Coronavirus crisis has shown that, when circumstances dictate, we can take decisive national action to bolster housing rights.  We must continue this effort.  The effects of the Coronavirus pandemic will undoubtedly be with us long after 30 September 2020, and the most vulnerable members of our society will be disproportionately affected.  We must reflect, and take this opportunity to embed the right to housing in domestic law.

Shaun McPhee
Trainee Solicior
LSA