Scottish Government

Main Findings

Dealing with Defects and Disrepair

• Over 90% ¹ of respondents agreed that the proposed single statutory notice is the correct way forward, and provides an opportunity to address weaknesses in the current range of statutory notices.
• Support for local authorities being able to take out maintenance orders against a property or group of properties was very high. However, many respondents were also concerned to ensure that their use should be limited to situations where the lack of maintenance is impacting on adjoining properties or where it has been necessary to implement repairs in default of property owners.
• The vast majority of respondents agreed that it is reasonable to require a sinking fund to be set up as part of maintenance order requirements.
• Three-quarters of respondents agreed that there should be powers to control occupation of properties subject to statutory notices.
• Just over 80% of respondents agreed that local authorities should be able to suspend a notice and that the suspension should be limited until the property is sold or let.
• Almost 90% of respondents agreed that local authorities should be given power to control occupation where owners cannot be identified. A similarly high proportion agreed that local authorities should be able to place a charging order to recover the costs of work and administration where an owner would not contribute their share of costs.
• Over 80% of those responding agreed that local authorities should have the power to inspect the insurance policies of persons subject to a single notice. However, some respondents pointed out this would be limited because not all owners are required to have insurance and others have difficulty in securing it.

The Tolerable Standard

• The proposed extensions to the Tolerable Standard were seen as being appropriate by over 80% of respondents. However, there were also proposals to ensure the "basic" provision of thermal insulation was to an adequate standard.
• A number of respondents suggested additions to the proposed new Tolerable Standard, including serious disrepair, sound insulation, safe access, gas safety, serious condensation and minimum space standards.
• Almost 90% of respondents agreed with the proposal that local authorities should publish action plans for dealing with Below Tolerable Standard housing as part of their local housing strategies and should make the improvement of housing condition and quality a specified purpose. However, a number of local authorities felt the requirement to produce a separate action plan on Below Tolerable Standard housing was over-prescriptive.

Area Renewal

• Over 90% of respondents agreed with the proposals to replace Housing Action Areas with Housing Renewal Areas.
• The proposed criteria for declaring a Housing Renewal Area were supported by over 80% of respondents and almost all respondents agreed with the proposed procedures for designating Housing Renewal Areas, with a similar proportion supporting the proposed powers for local authorities following designation.

Financing and Supporting Repair Works

• Over three-quarters of respondents agreed with the types of assistance proposed for private owners. Some local authorities specifically welcomed the removal of the statutory requirement to pay grant and the flexibility the new proposal provided to respond to the specific circumstances in their area.
• Just over one in five respondents disagreed with the proposal, with the level of disagreement particularly high among groups representing older people or people with disabilities.
• Although most respondents agreed with the proposed types of assistance, local authorities in particular claimed there was a need for grants to remain a major part of the approach to tackling disrepair in the private sector.
• Over 70% of respondents agreed with the proposal that, apart from adaptations for disabled people and fire precautions, eligible works for financial assistance should be limited to those relevant to the Tolerable Standard and the Scottish Housing Quality Standard.
• Over 80% of respondents agreed that subsidised loans should be available as an alternative to grant.
• Most respondents agreed that charging orders will be an effective means of releasing capital for carrying out repairs and improvements.
• The vast majority of respondents agreed that the Executive had identified the correct circumstances in which it would be appropriate to use charging orders, although a number of points were raised over how these orders would be implemented.

Better Information for Home Buyers

• Over 70% of respondents agreed that the Scottish Executive should take powers to introduce a single survey with the vast majority of these respondents saying that these should be reserve powers. However, a substantial minority of respondents (about a quarter in total) said that the issue of a single survey should be left to the market. Many of these respondents argued strongly that no action should be taken at least until the results of the current pilot exercise are fully evaluated.
• Two thirds of respondents said there should be no exemptions to the requirement to produce a single survey; however, just under a third of respondents said that there should be exemptions. The most frequently mentioned categories of property were right to buy properties and properties still under a builder's warranty.
• Over 80% of respondents said that there should be a time limit on single surveys; a majority proposed that the time limit should be six months or less and a further quarter of respondents said that the maximum time limit on the validity of a single survey should be one year.
• Nearly a third of respondents suggested that if a single survey was introduced the most appropriate enforcement mechanism would be to prohibit a sale. However, there were also significant numbers of respondents who said that a fine would be the most appropriate enforcement mechanism and a similar proportion that said enforcement should be either voluntary or left to market forces.
• Almost two thirds of respondents said they thought there should be sanctions applied to the proposed Energy Performance Certificate.

Improving Standards in the Privately Rented Sector

• The majority of respondents agreed with the elements proposed for inclusion in the new modernised Repairing Standard for private landlords. However, a substantial minority of respondents suggested additional elements to be included in the new standard. The most commonly mentioned aspects included health and safety requirements, energy saving, noise insulation, external areas and internal decoration.
• The vast majority of respondents agreed with the proposed range of tenancies to which the new standard would apply. Similarly, over 90% of respondents agreed that there should be a statutory requirement that all written leases should contain an explicit statement of the private landlords' repairing obligation.
• The proposal to establish a new Private Rented Housing Tribunal was welcomed by a wide range of respondents including those that represent private landlords.
• Almost 90% of respondents said that they agreed that a new legislative framework for Houses in Multiple Occupation was required.
• There was strong support for the proposal to allow tenants with disabilities to carry out adaptations. Support was strongest amongst voluntary organisations but there was also support from local authorities and national bodies, including representatives of private landlords.
• Nearly two-thirds of those who responded to this section of the consultation paper agreed that it was sensible to consider extending the National Scheme for the Registration of Private Landlords. However, over a third of respondents said that extending the scheme would place too great a burden on private landlords and local authorities.

Mobile Homes

• Over 90% of those who responded said they agreed with the proposals contained in the consultation paper relating to mobile homes and a similarly high proportion of respondents agreed that the proposals, taken together with the existing legislation, would adequately protect mobile homes occupiers. However, some detailed suggestions were made about extending the proposals relating to mobile home owners and possibly extending the provision to those who rent rather than own their mobile homes.

Introduction and Research Methods

The Housing Improvement Task Force (HITF) was set up by the Scottish Executive in 2001 to look at the extent of condition problems in private sector housing stock in Scotland and to make recommendations for tackling these problems. The HITF published two reports: Issues in Improving Quality in Private Housing (2002) and S tewardship and Responsibility (2003). The latter report made a comprehensive set of recommendations to ensure that Scotland's housing is well maintained and of a good standard.

In July 2004 the Scottish Executive published a consultation pack entitled " Maintaining Houses Preserving Homes". This consultation paper was aimed at taking the recommendations of the HITF forward and in addition proposed the introduction of a single survey and the implementation of an EU Directive on Energy Performance Certificates.

The consultation pack asked respondents to give their views on 46 specific questions grouped into three main areas:

• Dealing with defects and disrepair
• Better information for homebuyers
• Improving standards in the privately rented sector.

The closing date for receipt of written or online responses was Friday 29th October 2004. By this date, 314 completed responses had been received. 41% of the total responses received came from individuals and 54% from organisations. (The remainder of respondents declined to state whether they were responding as an individual or on behalf of an organisation.)

Analysis of Responses

The analysis of the consultation responses involved a combination of qualitative and quantitative methods. The quantitative analysis aims to show the proportion of respondents that were supportive, or otherwise of the suggestions made in the consultation document. It gives a basic overview of the majority of issues raised in response to each question, and an indication of the levels of support for some of the suggestions the consultation makes.

All respondents were given equal weighting in the quantitative analysis. Where we believed that the responses of certain organisations were particularly relevant, they have been addressed in the qualitative discussion of each section.

It is important to emphasise that whilst the quantitative information gives a basic overview of the majority of issues raised in response to each question, and an indication of the levels of support for some of the suggestions the consultation makes, it cannot reflect the detailed issues that respondents raise or reflect the reasons they give for their views. These views are explored in more depth through the qualitative analysis presented in the full research report.

Many respondents chose to simply respond yes or no to each question. Others submitted detailed and sometimes lengthy free text responses. The qualitative analysis aims to capture in more detail the concerns and issues raised by respondents, and the reasoning behind their views.

Dealing with Defects and Disrepairs

Single Notice Procedures

The consultation paper proposed that local authorities should be given the power to issue a single notice that would allow action to be taken to remedy a wide range of disrepair and defects.

This proposal was supported by over 90% of respondents although some local authorities raised concerns about the additional resources that would be required to ensure the proposals were implemented effectively. There were also some concerns about the proposal to allow local authorities to issue notices where a condition was not serious but could result in serious disrepair or damage to adjoining properties if not addressed.

Maintenance Orders

The consultation paper proposed giving local authorities the power to intervene where lack of maintenance of a property is likely to lead to disrepair.

This proposal was again supported by over 90% of respondents. There were however mixed views about whether there should be a time limit on such orders. Almost 60% of respondents agreed with the suggestion that orders should be limited to five years. However, a substantial minority felt there should be no time limit.

Some local authorities suggested that orders could be renewed on a rolling basis while others felt that orders should remain in place until such time as an owner has demonstrated their ability or willingness to maintain the property.

Just over 80% of respondents agreed that it would be reasonable to require a sinking fund to be set up as part of maintenance order requirements. However, local authorities in particular were opposed to the proposal, feeling it would place too heavy a burden of responsibility on individual councils. There was some support for establishing a Scottish wide scheme that would be commissioned and promoted by the Scottish Executive.

Control of Occupation

Three-quarters of respondents agreed that local authorities should have the power to control occupation of properties subject to statutory notices. Some of those who opposed the proposal felt it was too 'draconian' and could lead to deterioration of properties and make them vulnerable to vandalism and break-ins.

Enforcement

The most commonly supported method of enforcement was to prevent the sale or lease of a property until the required work was completed. While some respondents (about 16%) suggested that eviction notices should be used as an enforcement mechanism others argued that these should only be considered in the most extreme cases where disrepair or defects could have a significant impact on the health and safety of occupants.

Suspension of Work

Over 80% of respondents agreed that local authorities should be able to suspend a notice. Support for this proposal was strongest amongst architects, estate agents, letting agents and property managers. Local authorities were more likely to argue that any suspension should not be for an indefinite period as this could lead to a 'limbo' status that would prevent the necessary works being undertaken within a reasonable time.

Other New Powers

Almost 90% of respondents agreed that local authorities should be given powers to control occupation of a property where the owners cannot be identified. A similarly high proportion of respondents agreed that where owners will not contribute their share of costs for communal repairs local authorities should have the power to meet the costs in order to allow necessary works to go ahead and to place a charging order on those owners to pay costs when the property is sold.

Local authorities were concerned about the practical feasibility of the proposed measure and the resources that would be required to finance the proposal. The Council of Mortgage Lenders (CML) would be opposed to the measure if charging orders taken over properties were ranked before a standard security held over the property.

Insurance

Over 80% of respondents agreed to the proposal to give local authorities the power to inspect the insurance policies of persons subjected to the new single notice procedures.

The Tolerable Standard

The consultation paper contained proposals to extend the Tolerable Standard to include requirements for basic provision of thermal insulation and installations for the supply, distribution and use of electrical power being adequate and safe.

Over 80% of respondents agreed with these proposed extensions to the Tolerable Standard. There was, however, some concern amongst local authorities about applying a single standard for thermal insulation for all housing irrespective of age, location and construction type. There were also some concerns from professionals about ensuring that any energy rating system should be easily understood. The Royal Institute of Chartered Surveyors (RICS) in Scotland, for example, suggested that the National Home Energy Rating (NHER) system is not 'user friendly'.

A number of submissions suggested additional extensions to the Tolerable Standard. The most frequently mentioned issues were serious disrepair, adequate sound insulation, safe access, gas safety, severe condensation and minimum standards in respect of kitchens and bathrooms.

National Guidance

Over 90% of respondents agreed that there should be national guidance produced by the Scottish Executive to ensure that, as far as possible, there is a consistent approach in interpreting the new Tolerable Standard. However, a number of local authorities argued that the guidance needed to be flexible and not over prescriptive in order to reflect local conditions and circumstances.

Local Housing Strategies

Almost 90% of respondents agreed with the proposal that local authorities should prepare and publish a specific action plan for dealing with Below Tolerable Standard housing as part of their local housing strategies.

A number of local authorities, while agreeing that the improvement of housing conditions in the private sector should form an integral part of local housing strategies, questioned the need for a separate action plan.

Area Renewal

Over 90% of respondents agreed with the proposal to repeal the powers to declare Housing Action Areas and replace them with a new power to declare Housing Renewal Areas. The proposal was generally seen as providing more flexibility to undertake housing renewal within specific locations.

Over 80% of respondents agreed with the criteria proposed in the consultation paper for declaring a Housing Renewal Area. A number of respondents, including many local authorities, argued that there should be even greater flexibility than proposed in the consultation paper. There were particular concerns about the 'arbitrary' nature of the requirement that 50% of properties in an area need to fall within the criteria before a Housing Renewal Area can be declared.

Over 90% of respondents agreed with the proposed procedures for designating Housing Renewal Areas and the proposed local authority powers following a designation.

There were some concerns, e.g. from the National Association of Estate Agents, about the impact that designating an area as a Housing Renewal Area would have on the ability to sell individual properties.

Financing and Supporting Repair Work

In the past, assistance to private owners to meet their repair obligations has been given almost exclusively in the form of grants. The consultation paper suggested that there should be more flexibility and a wider range of options available to finance and support repair work.

The proposals were supported by just over 75% of respondents with local authorities in particular welcoming the greater flexibility proposed and the removal of the specific requirement to pay grants.

However, about a quarter of respondents disagreed with the proposals. Groups representing older people and people with disabilities were particularly concerned loans would become the norm. There were also concerns that loans would replace grants as the main method of funding aids and adaptations. Many of these groups argued that aids and adaptations should be dealt with separately from issues relating to disrepair.

Just over 70% of respondents agreed that eligible works for financial assistance should be limited to those relevant to the Tolerable Standard and Scottish Housing Quality Standard. However, almost 30% of respondents disagreed with this proposal. Most of those who opposed the proposal felt the criteria proposed were too narrow and did not allow sufficient flexibility to respond to local circumstances. The RICS Scotland suggested that other works should be considered for assistance, e.g. works required by a notice served under the Building (Scotland) Act 2003. The Royal Incorporation of Architects in Scotland (RIAS) also opposed the proposal and suggested that any works that would bring a property up to current Building Standard regulations should be considered for financial assistance.

Charging Orders

The consultation paper contained proposals to allow local authorities to pay for repairs and improvements to private houses and recover these costs by the use of a charging order, i.e. a loan secured on the property.

Almost 82% of respondents agreed with this proposal. Some local authorities including Glasgow City Council argued that charging orders were already used and that they provided a useful way of overcoming the problems posed by resistance from individual owners to carrying out improvements agreed by a majority of owners in a common property such as a tenement building.

A number of respondents including COSLA, the Law Society for Scotland and the Council for Mortgage Lenders (CML) suggested that careful consideration needed to be given to how charging orders would impact on and rank against other forms of security over a property.

Better Information for Home Buyers

Single Survey

The consultation paper contained proposals to legislate to give the Scottish Executive legal powers to require the use of single surveys. This would mean that sellers would be required to obtain a survey of their property and make this available to all prospective purchasers.

The powers proposed in the consultation would be reserve powers and it was not envisaged that they would be used until after a full appraisal of the current pilot of the single survey that is being undertaken in four areas of Scotland.

Just under 60% of respondents agreed that the Scottish Executive should take reserve powers to introduce the single survey on a Scotland wide basis. A minority of respondents argued that the single survey provision should be introduced at the same time as the other proposed legislative provisions. However, a quarter of respondents said that single surveys should be left entirely to the market and that there was no role for legislation in relation to this aspect of the house selling process.

Some respondents, e.g. the National Association of Estate Agents, were opposed to the concept of the single survey in principle but many, including the RICS, the Law Society of Scotland and the CML, said they felt that the proposal to introduce legislation was pre-empting the results of the pilot exercise and was therefore premature.

While two-thirds of respondents said that if a single survey was introduced there should be no exemptions, a third said there should be some types of property exempted from the requirements. The most frequently mentioned categories of property were Right to Buy properties (31%) and properties under a builder's warranty (22%).

While a number of respondents suggested that Right to Buy properties should be excluded a number of organisations, including the RICS, CML and the Chartered Institute of Housing, argued strongly that they should not be excluded.

Some respondents, e.g. the Property Managers Association Scotland, raised concerns about the costs of conducting a single survey in tenemental or other multi-occupation properties as these would require an inspection of the whole building rather that a single property.

A majority of respondents (60%) said that if a single survey process was introduced then there should be a time limit of six months or less placed on the validity of the survey. However, the RICS and the CML argued against any uniform limit being placed on surveys as circumstances would be different for individual properties and in different property markets.

There were mixed views amongst respondents about what, if any, enforcement mechanisms should be put in place if the single survey is introduced. A third of those who responded to this question said that prohibiting a sale would be the most appropriate method of enforcement but there was also a significant number of respondents who said that fines would be the most appropriate method of enforcement.

There were a number of organisations, including the Law Society of Scotland, who argued strongly that any form of statutory enforcement would be inappropriate as the purchase or sale of a property is a contract entered into on a voluntary basis by both parties.

Nearly two-thirds of respondents said they supported the proposal to require sellers to provide a Purchaser's Information Pack to all prospective purchasers.

Energy Performance Certificates

The consultation paper contained proposals to implement the legislative requirements of the EU Directive on Energy Performance Certificates for all domestic properties.

Almost two-thirds of respondents who commented upon this question said that they thought there should be some form of sanction for non compliance with the requirements. However, a substantial minority of respondents said that compliance should be voluntary and determined by market forces.

Some local authorities, including Glasgow City Council, argued that the proposed use of the Standard Assessment Procedure, for certifying the energy efficiency of properties, was not appropriate in Scotland because it only covers heating and hot water and not the thermal performance of a property. A number of other respondents argued that the most important criterion of any energy performance rating system was the need for it to be easily understood by householders and others who would rely on it.

Improving Standards in the Privately Rented Sector

The consultation paper asked for views on a variety of proposals to improve both the physical condition and management of the privately rented sector. These proposals included modernising the Repairing Standard for private landlords, extending the range of tenancies the new standard would apply to and making it a statutory requirement to include a statement of landlords' repairing obligations in all leases.

A substantial majority of respondents agreed with the additional elements proposed for inclusion in the new Repairing Standard. However, a considerable number of respondents also suggested additional elements that they thought should be included. The most frequently mentioned were health and safety requirements, energy conservation, noise insulation, fire safety, and external and internal decoration standards.

Over 90% of respondents agreed that there should be a statutory requirement that all written leases should contain an explicit statement of a private landlord's repairing obligations.

A minority of respondents expressed a note of caution about making the list of items to be included in the modernised repairing standard too comprehensive. The CML, for example, argued that a balance had to be struck between raising standards and possibly reducing the supply of houses available for rent.

The proposal to establish a new Private Rented Housing Tribunal to replace the existing Rent Assessment Panel and Committees was widely welcomed by the vast majority of respondents including a number of organisations representing private landlords.

A number of organisations including COSLA and the Chartered Institute of Housing argued that a new body should be created rather than simply extending the remit of the existing Rent Assessment Panel and Committees.

Houses in Multiple Occupation

The consultation paper suggested introducing new primary legislation to cover the regulation of houses in multiple occupation (HMOs) including shared flats, student and nurses' residences, bedsits, hostels, etc. This proposal was supported by almost 90% of respondents and almost three-quarters of respondents agreed with the changes proposed for the new legislative framework.

Some respondents suggested additional requirements that they felt should be included in the new legislation. The most frequently mentioned additional provisions were more punitive sanctions for landlords operating without a licence and longer licensing periods.

The proposal to introduce a standard three year period for all HMO licences was widely welcomed by a range of respondents including the Private Rented Housing Forum and the National Association of Estate Agents.

The commitment made in the consultation paper to delay introduction of the new legislative framework until such a time as local authorities have made substantial progress in implementing the licensing of three person HMOs was generally welcomed by the vast majority of respondents. A number of local authorities, including the City of Edinburgh Council, did, however, raise concerns about the "administrative and operational disruption" that could be caused by introducing a new legislative framework for HMOs.

Adaptations

The consultation paper canvassed opinion on a proposal to introduce a right for tenants with disabilities to carry out adaptations to their homes. The vast majority of those who responded to this question were in favour of the proposal in principle. However, a number of detailed comments were also submitted about how the proposal would operate in practice. The most frequently mentioned operational issues related to what arrangements would be made for re-instatement or refunding of the costs of any adaptations made.

The Disability Rights Commission strongly supported the proposal but also argued that it should be extended to making adaptations to shared areas in common properties and that neighbours should not be able to unreasonably withhold their agreement to these adaptations being carried out.

Extending the National Registration Scheme for Private Landlords

The consultation paper sought views on whether or not it was desirable to extend the national registration scheme for private landlords, provided for in the Antisocial Behaviour (Scotland) Act, to require landlords to certify that they are following all relevant legislative provisions that apply to letting a property.

Nearly two-thirds of respondents said they agreed that the registration scheme should be extended in this way. However, over a third of respondents said they felt this would place too great a regulatory burden on private landlords.

COSLA was one of the organisations that opposed extending the scheme arguing in its submission that it would "impose too much regulation on landlords and extra administrative burdens on local authorities". However, on the other hand, the CIH supported the proposal and argued that eventually the registration scheme should cover all tenancy conditions, management issues and property conditions.

The Private Rented Housing Forum and the Scottish Association of Landlords suggested that the proposed extension of the scheme would be a "step too far" and argued that the existing national registration scheme should not be extended until it has been fully implemented and properly evaluated.

Mobile Homes

The consultation paper contained a number of proposals designed to extend the legal protection for people who buy a mobile home and rent a stance from a site operator. Over 90% of respondents who responded to this section of the consultation agreed with the proposals and the vast majority of these respondents agreed that the proposals, taken together with existing legislation would adequately protect mobile home owners.

Some organisations suggested extending the proposals. COSLA argued that the provisions should be extended to residential caravans and to address the rights of existing tenants where no lease is currently in operation. Shelter Scotland raised concerns that the provisions were limited to those who own their mobile home and let a permanent stance from a site operator. It suggested that consideration should be given to extending the provisions to those who rent mobile homes, which it suggests is a particularly significant issue in Scotland, particularly within the "historical crofting communities".

1 Throughout this report where percentages are quoted they refer to the percentage of respondents who responded to a particular question rather than a percentage of all respondents