The Scottish Parliament is expected to approve regulations which will bring into force Part 2 of the Domestic Abuse (Protection) (Scotland) Act 2021 (“the 2021 Act”). It is anticipated the changes will come into force from 1 August 2026 and will significantly change the way in which social landlords can support victim-survivors of domestic abuse. If passed, it will enable social landlords to seek a court order for the recovery of possession of a property and transfer the tenancy from an abusive tenant to their partner.
Brodies’ social housing team is proud to have worked with Scottish Women’s Aid, the Chartered Institute of Housing and the Scottish Government as part of the working group considering these provisions, which it is hoped will prevent victim-survivors of domestic abuse being made homeless.
The Part 2 powers
The Part 2 powers are set out in section 22 of the 2021 Act and amends certain current provisions of the Housing (Scotland) Act 2001. Section 22 of the 2021 Act creates a new ground for the recovery of possession of a Scottish secure tenancy (the form of tenancy used in social housing) where a tenant engages in domestic abuse towards their partner and allows social landlords to intervene in two ways to help safeguard the rights and safety of domestic abuse victim-survivors.
- Sole tenancies: In the case of sole tenancies, where an abusive partner lives with a victim-survivor who is not named on the tenancy agreement, social landlords will be given the power to raise court action to recover possession of the property on the grounds of the domestic abuse. If the court terminates the tenancy, a social landlord will then have 28-days to enter into a tenancy agreement with the victim-survivor as the new tenant of the property.
- Joint tenancies: Where a tenancy is jointly held, social landlords will be able to raise an action to terminate the abusive partner’s interest in the tenancy on the grounds of the domestic abuse. The tenancy will be transferred from a joint tenancy into the sole name of the tenant who has been the victim-survivor of domestic abuse.
If seeking to use this new ground for recovery of possession, the social landlord will need to demonstrate to the court that it has established the ground for the termination of the abusive partner’s interest in the tenancy, and that it is reasonable to make the order. They will also have to satisfy the court that:
- The shared residence is the victim-survivor’s only or primary home and they wish to continue to live in the property;
- there is clear evidence of abuse (as defined by the 2021 Act); and
- that all other statutory requirements are met.
If social landlords do seek to recover possession of a property using the new ground, they must engage with the abusive partner after proceedings are raised to give them advice and assistance on alternative accommodation in the event that an order is made. The Scottish Ministers will also be entitled to issue statutory guidance on these changes to the law, which social landlords will need to have regard to when exercising these powers conferred on them.
Shifting the burden from victims
The implementation of Part 2 of the 2021 Act marks a shift in the legislative framework to enable social landlords to take assertive action against abusive partners and to lessen the burden upon victim-survivors during an already difficult period in their lives. The legislative message is unequivocal: accountability should rest with the abusive partners, not the victim-survivors.
It is hoped that the Part 2 provisions will assist by helping to lessen the impact of domestic abuse on victim-survivors. By transferring a tenancy to the victim-survivor, social landlords can help to give victim-survivors’ stability by ensuring that they can remain in their homes. This should help them to preserve continuity with their social support networks, employment, and schooling where there are children involved. Domestic abuse is the leading cause of female homelessness in Scotland, and it is hoped that the provisions will assist by reducing the likelihood of victim-survivors being moved to temporary or homeless accommodation as an interim measure.
Key Implications for Social Landlords
The impeding implementation of Part 2 of the Act marks an important milestone in Scotland’s domestic abuse policy. Enabling social landlords to take decisive action to safeguard victim-survivors demonstrates that housing is a key component to help safeguard victim-survivors of domestic abuse and promote the safety and wellbeing.
Social landlords can get ready for the implementation of Part 2 by considering the following points:
- Policy: Social landlords can ensure that they have an up to date domestic abuse policy which sets out the action that the landlord will take and incorporates the Part 2 powers.
- Staff Training: Staff should be trained on the impending legislation to ensure that they understand the changes to the legislative framework, they can spot signs of domestic abuse, and how to gather evidence where there are concerns.
- Collaboration: Social landlords should also look to engage with local charities and providers who support victim-survivors of domestic abuse to facilitate effective implementation of the Part 2 powers and safe tenancy transfers.
If you would like to discuss how Part 2 of the 2021 Act may affect you as a social landlord, or for any assistance on how to get ready for its implementation, please contact Fiona McLeod or your usual Brodies contact.
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