Policy Response

Consultation Regarding Options for Improvement to the Landscape for Rented Housing Dispute Resolution in Scotland

Capability Scotland Response

9th April 2013

Capability Scotland campaigns with, and provides education, employment and care services for disabled people across Scotland.

Summary

  • Capability Scotland, together with the Glasgow Centre for Inclusive Living (GCIL), is theScottish Government’s Key Strategic Partner for Housing and Disability. As such we have a strong interest in ensuring that disabled people have equal access to effective dispute resolution in relation to their housing rights.
  • We believe that early intervention and investment in mediation services will result in better outcomes for both landlords and tenants. Disabled tenants in particular will benefit from the opportunity to resolve disputes with their landlord directly instead of having to take costly court action. Common disputes which might be resolved in this way include disagreements about the landlord’s duty to make reasonable adjustments and the installation of aids and adaptations.
  • We are also in favour of the creation of a Housing Panel for Scotland to replace the Sheriff Court as the main forum for resolving housing disputes. Our engagement with disabled people has highlighted that formal court proceedings can be intimidating and inaccessible. Indeed, past research conducted by Capability Scotland highlighted that 40% of disabled people feel they do not have equal access to the justice system in Scotland[1].

Our Response
1. Capability Scotland welcomes this consultation and is pleased that the Scottish Government is taking steps to address the difficulties many tenants and landlords experience in resolving housing disputes. The existence of suitable and accessible dispute resolution mechanisms is particularly important for disabled people who often experience additional barriers to maintaining successful tenancies. Commonly reported issues include:

  • The complexity of law and policy in relation to installing, maintain and funding aids and adaptations in rented accommodation often leads to conflict and dispute. Both tenants and landlords struggle to understand and enforce their rights in this area. As a result, many disabled people are living in rented accommodation which fails to meet their most basic requirements[2].
  • High levels of poverty amongst disabled people can lead to an increased risk of arrears and eviction[3]. This is likely to escalate as a result of welfare reforms such as the abolition of Disability Living Allowance and the introduction of Housing Benefit Under Occupation Charges. Of the 670,000 people affected by the charge it is estimated that 450,000 (66%) will be disabled.[4]
  • Certain disabilities, such as mental health problems, cognitive impairments and learning disabilities can increase the likelihood of behaviour which is seen as antisocial. This can lead to an increased risk of conflict with neighbours and landlords. Improved dispute resolution mechanisms could prevent some of these conflicts escalating to the point of eviction.

Q1: Do we need to consider legislation to assist the early resolution of disputes, for example by imposing additional legal duties on landlords?
2. Yes. There is a need to consider placing legal duties on landlords to ensure early intervention in housing disputes. While we appreciatethe enormous financial pressure on many landlords, we believe the long termfinancial and social benefits of early intervention are likely to outweigh the initial cost of compliance. Requiring landlords to have face to face discussion with tenants with a view to considering alternatives to eviction, for instance, could potentially result in better outcomes for bothlandlord and tenant. It could also result in financial savings tothe local authority, Scottish Court Service, the local social work department and the NHS as eviction and subsequent homelessness are prevented.This is in-keeping with the Christie Commission’s recommendation that, “The adoption of preventative approaches will contribute significantly to making the best possible use of money and other assets.”[5]

Q1a: If yes, in what areas should these duties be imposed and for what purpose? e.g. should we impose wider pre-action requirements before landlords could raise eviction proceedings in any case?
3. As noted above we believe that a requirement to communicate directly with the tenant and to document the consideration of alternatives to court action might be effective. Any failure to comply with this obligation could be taken into account in subsequent court action. This would give landlords an incentive to explore all the alternatives to eviction.

4. There should also be an obligation on landlords to meet with tenants who feel the landlord is not fulfilling its statutory obligations. Where, for instance, a tenant believes their landlord has an obligation tomake an adaptation and the landlord fails to do so, there should be an obligation to meet with the tenant to discuss the matter. This will often result in disputes being resolved at an earlier stage.

Q2: Would this sort of upstream action be preferable and achieve better outcomes than a new Housing Panel or reformed courts?

5. We do not believe that these options are mutually exclusive. Preventative intervention does not remove the need for more effective dispute resolution mechanisms at a higher level.

Q3: Are there non legislative measures we could take to encourage the prevention and early resolution of housing disputes between parties?

6. There is a need for increased understanding of right and obligations, both on the part of both tenants and landlords. We appreciate that some action has been taken to achieve this with the on-going development of the Tenancy Information Pack (TIP). However, we feel that the TIP has several short-comings which the Scottish Government must address. These include a lack of information about the responsibilities of landlords in relation to disabled tenants and a lack of information about where tenants can access independent support and advice.

7.Levels of disability awareness also appear to be low among some landlords and housing officers. Engagement with disabled people has revealed that many people feel that housing officers see disability equality as a tick box exercise and do not make sufficient effort to understand more complex conditions[6]. This should be addressed through disability awareness training for all landlords and frontline staff.

Q4: Do you think mediation should be made available for housing disputes?

8. Yes. Mediation could potentially widen access to justice by providing a cheaper and more accessible alternative to court action. Our engagement with disabled people has highlightedthat formal court proceedings can be extremely intimidating and inaccessible[7]. One woman explained how she had had to be helped out of her wheelchair and use her hands to pull her up the stairs to the court room where her case was being held. Another participant told us,“Courts are scary places.....and the staff look right though you. They need training in how to talk to people with mental health problems, mental health awareness, how to talk to everybody really, just to make the experience more bearable.”

Q4b: What sort of housing issues would mediation be most effective at resolving?

9. Mediation would be a helpful way to address complex disputes where there may be a need for expert input. Mediation relating to rights and responsibility for aids and adaptations, for instance, would be extremely useful. The Equality Act 2010specifies that landlords are exempt from the requirement tomake reasonable adjustments to the physical features of their property. They may, however, have a duty to make reasonable adjustments to “furniture, furnishings, materials and equipment”.[8]The relative complexity of these provisions means that tenants and landlords are often uncertain about their responsibilities. The opportunity to discuss these issues in the presence of a mediator with some expertise could result in effective resolution.

Q6: Do you think there should be a Housing Panel as a pre-court dispute resolution forum for some housing disputes?
10. We are in favour of the creation of a housing panel with powers to resolve disputes between landlords and tenants but believe that it should have wide powers as outlined in Option 3.

Q7: Should there be a new housing tribunal, to be called the Housing Panel?
11. Yes. We believe that it would be preferable for the majority of cases to be disposed of through a housing panel rather than the Sheriff Court. This is particularly important in relation to complex disability related disputes where there is a need for in-depth understanding of the relevant legislation. Housing Panels would also represent a less formal, less expensive alternative to court action. This is likely to make them more accessible to disabled people.

About Us
Capability Scotland campaigns with, and provides education, employment and care services for, disabled people across Scotland. The organisation aims to be a major ally in supporting disabled people to achieve full equality and to have choice and control of their lives by 2020.

Contact Us

Hanna McCulloch
Senior Policy Advisor
Capability Scotland
11 Ellersly Road
EH12 6HY

Tel: 0131 347 1025

E-mail:

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[1]For reports of our research as part of the Justice Disability Steering Group go to

[2]For more information see Capability Scotland’s report on Disabled Peoples Experiences of Accessing Housing

[3]Between 2009/10 and 2010/11 the percentage point difference between families in relative poverty with and without a disabled adult has increased from 3 percentage points to 8 percentage points – Scottish Government figures on Income Inequality

[4] Scottish Federation of Housing Associations (SFHA) ‘Welfare Reform and the New Size Criteria’ (2012)

[5] Christie Commission on the Future Delivery of Public Services, June 2011

[6]For more information see Capability Scotland’s report on Disabled Peoples Experiences of Accessing Housing

[7]For reports of our research as part of the Justice Disability Steering Group go to

[8] Schedule 4, Equality Act 2010