Public Law

On 6 April 2020, the Coronavirus (Scotland) Act 2020 came into force. For social landlords, the interim measures include an extended notice period where a notice of recovery of proceedings has been served to recover a property under a Scottish secure tenancy and a short Scottish Secure Tenancy.

Scottish Secure Tenancy

The notice period has been increased from 28 days to 3 months where seeking recovery under:

  • Ground 2 – crime punishable by imprisonment;
  • Ground 6 – false statements;
  • Ground 7 – antisocial behaviour; and
  • Ground 8 – nuisance

The notice period has been increased from 28 days to 6 months when seeking recovery under;

  • Ground 1 – Rent arrears/breach of tenancy;
  • Ground 3 – Condition of property;
  • Ground 4 – Condition of furniture; and
  • Ground 9 – 15 which includes transfer of a tenancy.

Short Scottish secure tenancy

Where the property is subject to a short Scottish secure tenancy (“SSST”), the notice period has been extended from two months to six months if the SSST was created as a result of paragraphs 3-7A of Schedule 6 of the Housing (Scotland) Act 2001.

In all other cases, the notice period remains the same. Scottish Government previously indicated that their intention is that no-one should lose their home because of COVID-19 and the interim powers provide greater assurances to tenants at this time.

Scottish Government has issued guidance for all social landlords during the current circumstances. The guidance takes the form of a Q&A document and the full document can be found here. The Scottish Government’s concerns will be fuelled by a number of concerns including that homeless persons will be more vulnerable to COVID-19. They may, for example, find it difficult to self-isolate. Further announcements are expected to be made shortly. Brodies are reviewing matters regularly and will provide further advice and guidance as announcements are made.

Our top 5 takeaways from the guidance are as follows;

  • Eviction of a tenant during the current circumstances.

The Scottish Government has called upon all social housing providers halt to any evictions where the tenant has suffered hardship as a result of COVID-19. Coronavirus (Scotland) Act 2020 has now came into force and the notice periods for eviction have been extended some for as long as six months.

In the meantime, social housing providers are encouraged to continue to follow their processes for managing tenancy issues. Each case should be reviewed individually, and tenants should continue to be provided with advice and support, including financial advice, to help sustain their tenancy.

The UK Government has introduced some temporary changes to make claims for Universal Credit easier, including receipt of up to one months advanced payment without the need to attend the jobcentre to do so.

  • Disruption to service levels

Over the coming weeks and months many social housing providers are likely to see a disruption to service levels. Where this occurs, landlords should maintain records of which tenants, service users or residents are affected. Services to relating to health and safety of tenants should be prioritised and any disruption should be rectified as soon as possible. The impact of disruption as a result of COVID-19 should be monitored and reported to the Scottish Housing Regulator where there is a disruption of service. The SHR will be monitoring the impact of COVID-19 and reporting any significant impact to the Scottish Government. You should also advise the SHR if you are unable to comply with data returns as a result of capacity in the organisation. Brodies recommend that where you are able to identify issues in advance you should notify the SHR without delay and not leave it until after the problem has arisen.

  • Unable to deliver an emergency service

Where a social landlord is unable to deliver a service such as gas safety inspections or emergency repairs, either due to a tenant self-isolating or sickness levels within the organisation, this should be recorded as related to the COVID-19. The social housing provider should consider retrying to undertake such service as soon as it is reasonably practicable to do so. This, of course means, that as difficult as it may be at this time, social landlords should be keeping in close touch with tenants, especially tenants who are known to be vulnerable.

  • Suspension of Right to Repair

Right to Repair can be suspended at this time where social housing providers and contractors are unable to repair within the maximum time set out. Tenants should be advised where this scenario arises. This will help manage expectations.

  • Decisions of Governing Body.

Many social landlords will be considering other means of holding meetings such as telephone or video conferencing. Where the governing body cannot meet in person or achieve a quorum, amendments can be made to the organisations standing orders and delegated authorities in order that essential decisions can be made. The Scottish Government recommends seeking legal advice in relation to such amendments. If your organisation may be affected in this way, don’t hesitate to get in touch with the contacts below at Brodies who will be happy to help.

Fiona McLeod