Seòmar agus comataidhean

I guess that the ideal is that we increase the number of situations in which an alternative route or resolution is found. One would hope that if a landlord made such an approach and the tenant engaged constructively, the case would never have to reach the tribunal stage, because a way of resolving the situation and sustaining the tenancy would be found. That is what we are looking to achieve. It seems to be fairly clear that if a landlord has taken the steps and is still, because the tenant has refused to do so, unable to engage properly with their tenant, the tribunal will be able to take that into account.

We will continue to listen to the sector and to recognise the very different circumstances—or heterogeneity, as I think one of the witnesses on the previous panel described it—of landlords in the private rented sector. I have met the Scottish Association of Landlords and other organisations that represent the sector on the landlords’ side, as well as those who represent the interests of tenants.

There is probably a need to recognise that there is a shared interest here in achieving the two goals that I set out earlier: closing the gap in outcomes between the social rented sector and the private rented sector; and raising standards across the board. Good-quality, responsible, professional landlords will see that as being in their interests, too. They do not want to have low-quality landlords—those who are sometimes called “rogue landlords”—operating in the sector. The professional and high-quality parts of the private rented sector want there to be good standards across the board and want an end to unscrupulous or unacceptable behaviour.

Beyond the specific measures that we are talking about today, we need to recognise that there are concerns around a wide range of other issues. For example, as the committee heard from the previous panel, there are concerns around energy efficiency and the move to net zero. All political parties support the move to net zero, and I think that the private rented sector recognises that there is work to do. On average, its stock has a lower level of energy efficiency than the rest of the housing stock, which impacts on the affordability of housing for tenants. We need to make sure that we support the whole sector to move forward with that agenda, as we do with the rest of society.

The Government continues to commit to working with the sector in all its diversity, listening to it and understanding its concerns, and we will do that, in particular, with landlords who want to work with us to raise standards, while taking on board the perspective of tenants.

That is hugely important. There have been periods when evictions in the private rented sector were the largest route into homelessness. That has perhaps declined proportionately but there is a real concern and a desire to make sure that that does not become a problem of the scale that Mark Griffin is are rightly concerned about.

The pre-action protocol and the tribunal discretion provisions are both safeguards that can help to prevent eviction into homelessness. The protocol, in particular, encourages and supports the dialogue that I referred to earlier between landlords and tenants so that they can work towards the establishment of repayment plans to help clear rent arrears and sustain a tenancy and to make sure that tenants have access to the financial support that can also help them.

The organisations that you have heard from have made similar points. Shelter in particular says:

“The pre-action requirements (PARs) for eviction proceedings on the grounds of rent arrears introduced another important preventative measure for eviction and homelessness ... this extra protection for renters”

against evictions

“should be made permanent. The PARs encourage landlords to help their tenants access support and advice on rent arrears management before any eviction action is taken, thus helping them to manage their debt and remain in their home.”

There is a pretty clear sense from the organisations that work most closely on homelessness and that rightly challenge the Government to continue to do more on homelessness prevention that the measures will be a positive step in that direction. I by no means suggest that they are the only steps that we need to take, but they will certainly be positive in helping to achieve that.

There is a great deal that we are actively looking at in the development of the housing bill and the consultation on the new deal for tenants. I welcome any constructive proposals for the ideas that we should be considering for inclusion in that bill.

I am not sure whether Miles Briggs is referring to correspondence that he has had with me; it does not immediately ring a bell. It might be that other ministers have dealt with it, and I am not going to try to answer on their behalf correspondence that I have not seen. If Miles Briggs wants to write to me about it, I will certainly explore that matter and discuss it with other colleagues who might have already considered his correspondence.

The fundamental point about the Coronavirus (Reform and Recovery) (Scotland) Bill is that is gives us the opportunity to make permanent some provisions that were introduced on a temporary basis during the pandemic. That is the fundamental opportunity that it presents. Of the four provisions that I mentioned earlier in discussion with Mark Griffin, the two that the bill deals with have clearly demonstrated themselves to be positive in terms of the impact that they have on people’s lives by resolving some disputes between landlords and tenants. They are also proportionate measures that can help the Government to achieve its policy objectives beyond the pandemic. The bill is the opportunity to take the relatively modest step of making permanent those successful temporary provisions.

On the wider question of other considerations that we need to address, the Government will, of course, be open to constructive suggestions from all sides as we develop the next piece of housing legislation.

I heard the discussion during the first evidence session. If I remember rightly, John Blackwood from the Scottish Association of Landlords said that a landlord would be poorly advised to pursue a request for eviction with the tribunal if they had not gone through the pre-action protocol, because there is an expectation that the tribunal would consider whether the landlord had complied with it.

We are looking to make permanent the temporary provisions that were put in place during the pandemic, because that will be the simplest and cleanest way to achieve continuation. At some point in the future, perhaps in the housing bill in year 2 of the session, we might be able to consider whether there are wider views. If the evidence that we gather between now and then shows that the protocol should be amended to create a stronger legal duty to ensure compliance, we could consider that. At the moment, making the current temporary provisions permanent is the cleanest and simplest way to ensure that we retain the additional level of protection.

It is pretty clear that we can have confidence that any landlord who feels the need to pursue an eviction, and who genuinely believes that they are acting reasonably in the circumstances, will have gone through the pre-action protocol steps in the first place, in order to demonstrate to the tribunal that their actions have been reasonable.

It is up to the tribunal to decide what circumstances it takes into account, which will determine how long it might take for a case to be considered. It is possible that it will take longer for some cases to be considered, if there are exceptional or unusual circumstances. However, that will not always be the case.

The evidence that we have to date suggests that the effect will be modest. The most important thing is to ensure that most tenancy exits do not go to the tribunal. We need to recognise that, and acknowledge that the intention of the provisions is to encourage negotiation and agreement between tenants and landlords when there is a problem. If we are successful in doing that—I think that the evidence shows that the temporary provisions have been successful—any additional workload burdens would be manageable and the effect would be modest.

The financial memorandum that accompanies the bill explores the costs to the tribunal in detail. On there being quantifiable costs to discretionary decision making, it is worth noting that the introduction of the pre-action protocol, and the obligation of the tribunal to consider a landlord’s compliance with it before making its decision, will again reinforce that it is in the landlord’s best interests to engage with their tenant early to prevent arrears from building up in the first place. Again I note that that early engagement could prevent altogether the need for eviction proceedings, which ultimately would reduce the costs for the tribunal.

The Scottish Association of Landlords has set out in its submission some figures that suggest that the number of cases in which the outcome was altered as a result of the mandatory grounds being made discretionary under the emergency legislation was very small. It is important to recognise, however, that the impact in that small number of cases was extremely significant. Even if only a small number of people get different outcomes in their tribunal cases, the impact on their lives will be extremely significant.

The deeper point that I will make is that the bigger impact, which is perhaps harder to measure, relates to cases that do not go to tribunal in the first place. For example, a landlord might previously have thought about going to the tribunal on grounds that would have resulted in a mandatory determination for an eviction order. If the determination was discretionary, the landlord might reach the view that they had not taken a reasonable course of action and that the individual reasons for their seeking an eviction were not reasonable, so they might be more likely not to proceed with eviction in the first place.

This is related to the point that I made to Graeme Dey. We are looking to maximise the opportunities for negotiated outcomes, reasonable settlements and actions being taken that sustain rather than end tenancies. Whether we are talking about requiring compliance with the pre-action protocol and taking reasonable steps to engage, or ensuring that landlords know that they are more likely to get some kind of resolution if they try to sustain a tenancy instead of going straight for eviction, we are likely to have a sector that sees the resolution of any such problems as the first option.

As I have said, the approach is already good practice in the private rented sector. Landlords who follow best practice will already be taking such steps and will not pursue eviction if they think that there might be a chance of a tribunal considering the pursuit to be unreasonable.

That might be a little hard to quantify with precise or objective numbers, because the nature of pre-action protocols is that they are used prior to cases appearing before the tribunal. As such, we do not necessarily have official statistics on when actions have led to successful resolution of a problem.

However, there has been an overall reduction in the number of eviction cases coming before the tribunal during the pandemic, so it is fair to say that the provision has contributed to supporting tenants and landlords in achieving positive resolutions to problems and in sustaining tenancies. For example, when tenants have been able to secure additional sources of financial support as a result of signposting by landlords during the pre-action protocol process, that support will have helped to resolve problems.

The committee will be well aware of the tenant hardship grant fund, which is a source of additional support that was available during the pandemic. There are also discretionary housing payments and other forms of money and financial advice that tenants can access from the voluntary sector or community organisations. It might well be that we never have to count cases of landlords actively signposting tenants to support. We should see that as a positive thing.

We have, of course, engaged extensively on the provisions in the bill. In my opening remarks, I touched on the consultation that took place. It is possible that making all eviction grounds discretionary could lead to some increase in costs for landlords in certain circumstances—for example, as I mentioned earlier, if the consideration of a particular case takes a little longer due to the need to take individual circumstances into account. We think, however, that that is highly unlikely to lead to significant additional costs for landlords.

On the pre-action protocol provisions, the Scottish Association of Landlords pointed out during the consultation that many landlords already take that course of action to support tenants in rent arrears. Compliance with those provisions would not increase costs at all or even increase the amount of work or the action that is necessary for those who follow best practice. It would bring the additional advantage of encouraging and requiring good practice by those who have not previously taken that approach, but we do not believe that the provisions would create any significant additional costs for landlords.

In the European context, there is always a mix, but the mix is different in different places. Germany has a much bigger private rented sector, but it has had in place for quite some time some of the rights and protections that we will explore and develop in the year 2 housing bill.

In some European countries, there is little difference in the rights and protections for tenants between what we call the social rented sector and the private rented sector. In other places, the distinction that is made over who the housing provider is—whether that is a private or a social organisation—does not have the significant impact in producing a different experience for tenants that it has in this country. The consultation on the new deal for tenants and the development of the year 2 housing bill will be informed by consideration of all the examples and experiences from other contexts.