CIH Scotland Response to: Overcrowding Statutory Notices Date 18 June 2015 Submitted by email to: OSNconsultation@scotland.gsi.gov.uk Shaping Housing and Community Agendas 1
1. Introduction The Chartered Institute of Housing (CIH) is the independent voice for housing and the home of professional standards. Our goal is simple to provide housing professionals with the advice, support and knowledge they need to be brilliant. CIH is a registered charity and not-for-profit organisation. This means that the money we make is put back into the organisation and funds the activities we carry out to support the housing sector. We have a diverse and growing membership of people who work in both the public and private sectors, in 20 countries on five continents across the world including 2,500 in Scotland. Further information is available at: www.cih.org CIH Scotland contact: Ashley Campbell Policy and Practice Officer ashley.campbell@cih.org 2. General Comments 2.1 We welcome the opportunity to respond to this consultation on the introduction of an Overcrowding Statutory Notice (OSN) for the private rented sector (PRS). The PRS has grown significantly in recent years and as more people are looking to settle in the PRS, it becomes more important to ensure that the sector can provide safe, affordable, good quality homes. We support the Scottish Government s strategic aim to improve management of the PRS and to encourage investment and growth in the sector. 2.2 In principle, we have no issues with the introduction of powers to prevent or reduce overcrowding which we know can have a serious impact on the health of tenants living in overcrowded conditions and a negative impact on local communities in terms of excess rubbish, noise and antisocial behaviour. 2.3. However, we do have some concerns regarding how OSNs will work in practice. These are summarised below. 2.4 It is not clear what action, other than eviction, a private landlord is expected to take if they are served with an OSN. A landlord may be able to explain to the residents of an overcrowded home that it is unsafe or unsuitable for them to remain in the home and they must find alternative accommodation. If the tenants do not leave voluntarily, it seems that the landlord would be forced to evict the residents or risk a substantial fine. 2
2.5 The proposed grounds for eviction currently being considered by the Scottish Government through the consultation on a new tenancy for the PRS do not include a ground for overcrowding. If, as per the proposals, the no fault clause is removed, we would assume that an eviction for overcrowding would have to be based on breach of tenancy, in which case the maximum number of residents permitted must be clearly set out in the tenancy agreement. This issue must be addressed through the development of the new PRS tenancy. 2.6 We also have concerns about the ability of those forced to leave a home because of overcrowding to find another suitable home. Two of the most common situations leading to overcrowding are tenants sharing accommodation to keep the cost of renting down or a large family group who cannot find a big enough home to rent within their budget. Both of these situations boil down to lack of housing supply and this fundamental problem will not be addressed through issuing an OSN. 2.7 The 2011 census indicates that almost 93,000 households in the social sector are living in overcrowded accommodation 1. There is no suggestion that these people should be asked to leave their homes before suitable accommodation has been identified. It is unclear why a household living in the PRS should be treated any differently. 2.8 An alternative option might be that overcrowded households can stay in their current PRS home until suitable accommodation can be secured, as long as there is no immediate danger to the health and safety of the residents or others living in the area. This approach could be adopted on the condition that the household is actively seeking alternative accommodation, perhaps specifying that the residents must seek assistance from their local authority. 2.9 While we understand that the powers are discretionary and are unlikely to be widely used, we would not want to see a situation where any household was forced into homelessness or temporary accommodation unnecessarily. This would undermine the Scottish Government s direction in terms of homelessness prevention and the housing options approach. 2.10 We strongly feel that accompanying guidance must stress that OSNs should only be used as a last resort where attempts to work constructively with the residents have failed and the situation is posing a clear danger to the health of the tenants, the health of their neighbours or is causing significant nuisance. 2.11 Our comments on the specific questions raised in the consultation paper are detailed below. 1 2011 data for Scotland, Table DC4104SC: http://www.scotlandscensus.gov.uk/odsweb/standard-outputs.html 3
3. Questions Q1. Does the notice contain the right information? If not, what should be added or removed? As well as information on the maximum number of occupants that should be permitted to stay in the property, the OSN should include details of how many people the local authority believes to be living in the home and the evidence for this. It would be helpful for the OSN to include contact details for the relevant local authority department. This would assist landlords seeking more information on the notice or the appeal process. The example OSN gives space for the local authority to insert a date by which the landlord must have reduced the occupancy of their property. We believe that guidance should specify a minimum amount of time to be allowed for action to be taken with the upper limit at the discretion of the local authority. We also feel that guidance should specify circumstances under which this date should be extended. For example, a situation where the residents are actively looking for alternative accommodation but have not yet found anything suitable. Where the landlord has been actively working to address the issue of overcrowding, they should not be subject to a financial penalty. It is not clear why the landlord should be responsible for informing the tenants that they can approach the local authority for assistance (point 4 in the notes). The OSN (or a version of it) should be provided to the residents of the home to which it applies. This should include advice and information for the tenants and details of where they can access further help. If the final version of the OSN does include this duty, it is not clear what the consequence would be for the landlord if they failed to pass on the details of local authority homelessness advice or what evidence they would need to prove that advice had been given. Q2. Do you have any suggestions to improve the layout of the document to make it clearer and easier to use? No. Q3. Who do you think should be given a copy of the notice? A copy of the notice should be provided to the landlord/s, to the agent (where one has been appointed), as per the details provided through landlord registration, and to all known residents of the home. 4
In addition to a copy of the OSN, the residents should be provided with further advice on housing options and information as proposed in the consultation document section 7.3 and covered in the following question. Q4. Do you agree that this information and advice should be included in the notice to the occupier? Yes. We agree that advice and information should be provided in line with the proposals. Again, it is not clear why landlords would have a responsibility to inform the tenant that they can approach the local authority for homelessness assistance if the local authority has to serve the occupier of the home with a notice containing this information as well as indicating further sources of advice and support. Q5. Is there anything else that should be included? No. Q6. How can a local authority ensure that the notice is understood by the occupants? We have some concern with the language used in the consultation document which states that: Local authorities may have to take steps to ensure that the information should be made available in the appropriate language(s) if required. (our emphasis) We believe that the local authority must take steps to ensure the notice is received and understood by the residents of the home in question and that this duty should take into account literacy issues and visual impairment as well as language. During the course of investigating a case of suspected overcrowding, local authority officers are likely to have engaged in some way with the residents whether through enquiries regarding who is living in the property or through more formal intervention as a result of antisocial behaviour or environmental issues associated with overcrowding. This should help to inform the local authority of potential issues with communication which should be taken into account when informing residents of an OSN. Q7. In what circumstances do you think a request for information and advice from the occupier would be unreasonable? We cannot envisage circumstances where the request for further information would be considered unreasonable. 5
Q8. How can a local authority respond efficiently and effectively to such requests? As the consultation document suggests, it is unlikely that the OSN will be widely used and is intended to be issued as a last resort where other intervention has failed. If this is the case, we would assume that some resource has already been committed to resolving the situation and that the issue of an OSN should not generate additional work to the extent that the local authority could not cope. Q9. How should a local authority measure and define reasonableness and proportionality in relation to overcrowding in a privately rented house? The local authority should take into account: Whether the current living conditions pose an immediate threat to the health and wellbeing of the residents or their neighbours; Whether the overcrowding is causing a significant disturbance to neighbours e.g. excessive noise; The likelihood of suitable alternative accommodation being available, especially in cases involving families with children; If there is no suitable alternative accommodation in the area, the impact that moving to another neighbourhood is likely to have, especially in cases involving children or vulnerable adults with established support networks; Whether the residents are actively seeking more appropriate accommodation. For example, are they on a waiting list for social housing? Whether other options such as mediation, have been used but proved unsuccessful. Q.10 What circumstances could justify a house being overcrowded? Overcrowding may be justified in cases where there is no immediate danger to the health and wellbeing of the residents or neighbours and no suitable alternative accommodation has been identified. In such a case, local authorities should be seeking to support the residents to find suitable accommodation. It does not make sense to force people to move out of an overcrowded home if there is no suitable alternative available. Q11. How should a local authority ensure that it effectively gathers the views of the landlord, occupier and others living in the house prior to serving an overcrowding statutory notice? The local authority should engage with the landlord and those living in the house in an attempt to resolve the situation before an OSN is issued. It could be explained at this stage that an OSN could be served if issues identified as being a result of overcrowding are not addressed. 6
Q.12 How should a local authority go about ensuring it has identified the circumstances of the occupier and others living in a potentially overcrowded house? As mentioned previously, we would expect that use of an OSN would only be considered where other interventions had failed. This would suggest that the local authority would have some previous engagement with the residents either through formal or informal intervention. This contact could form at least part of the assessment of circumstances of those living in the home. Q13. How can a local authority decide if the service of a notice is likely to cause homelessness? The local authority would have to consider evidence regarding the number of people who could potentially be displaced by an OSN, whether they are living as a family unit and likely to seek accommodation together elsewhere and what the likelihood of suitable alternative accommodation being available in the area is. Q14. To what extent do you think the serving of overcrowding statutory notices will have an impact on creating homelessness? Ideally, we would like to see local authorities working with landlords and overcrowded households to resolve unsatisfactory housing situations rather than issuing OSNs. If a local authority does decide to make use of an OSN (and as the consultation document states, this is not expected to be a common occurrence) there is a risk that some people could be forced through the homeless route. As we have expressed previously, we do not want to see a situation where any household is forced through the homeless route if at all avoidable. Q15. How can local authorities ensure that those living within an overcrowded, privately rented home are supported to move into alternative, suitable accommodation? Residents of an overcrowded home should be offered assistance through housing options, preferably before resorting to the use of an OSN. As we stated previously (see 2.7), an alternative to serving an OSN could be to allow the household to remain in their current home (as long as this does not endanger the health of residents or neighbours or cause excessive nuisance) on the condition that they were actively seeking alternative accommodation, perhaps specifying that they must engage with the local authority. 7
Q16. How could harm affecting occupants, neighbours or other people in the locality be defined in the guidance? Worth giving examples? The guidance should outline the types of harm that could be the result of overcrowding, how to spot these within a community and the types of evidence that should be gathered in order to support the issue of an OSN. Examples in the guidance will help to ensure consistency in decision making. Q17. How should local authorities go about identifying and evidencing harm being caused as a result of overcrowding? Evidence of harm being caused by overcrowding could be in the form of: Visual evidence/photographs depicting regular build up of waste; Action taken by environmental health officers; Noise complaints or reports of antisocial behaviour relating to the overcrowded household. Q18. How can a local authority ensure the right people receive a copy of the notice and accompanying documents? What would constitute reasonable enquiries? Details of the landlord (including address and contact details) and any agent acting on behalf of the landlord should be provided to the local authority through the landlord registration process. Failure to provide or update these details should be dealt with as per landlord registration guidance. The local authority should also ensure that residents receive a copy of the ONS and advice and information as set out above. This could be hand delivered to the property or sent by recorded delivery. Q19. What mechanisms could local authorities put in place to ensure the information they need is obtained efficiently from a person from whom they want information? Given the fact that the person in question could be subject to financial penalty for failing to respond to the request for information in relation to a property which is thought to be overcrowded, we feel that the request should be in writing. It should explain the situation, the information required, the consequences of failing to provide this or providing false information. The request for information must also include a timescale for providing this. 8
Q20. Do you agree that the guidance should cover all the areas mentioned in this document? Yes. Q21. Is there anything else the guidance should contain? There are no obvious oversights at the moment but some additional areas may come to light when the content of the OSN is finalised and as guidance is developed. The Scottish Government should involve key stakeholders from across the housing sector in the development of the guidance. Q22. Is it helpful to include examples or case studies such as those given above in the guidance? Case studies and examples would be a useful inclusion throughout the guidance. These should help to illustrate the types of situations which might merit use of OSNs as well as suggestions for how this could be avoided. Q23. What groups do you think would be affected positively or negatively? (Think about listing the groups covered by the legislation, for ease of reference?) Potential for Positive Outcomes Households living in overcrowded condition in the PRS may benefit from the introduction of OSNs but only if the issue of an OSN results in the residents moving to a suitable home. Neighbouring residents may benefit if issues such as excessive waste or antisocial behaviour were addressed by the issue of an OSN. Potential for Negative Outcomes OSNs are likely to have a disproportionate affect on ethnic minorities, who are overrepresented in the PRS. Cultural differences including greater preference for multi-generational living and larger family sizes mean that some ethnic minority groups are more likely to be living in overcrowded conditions. These factors may be compounded by lack of knowledge regarding housing rights or routes to accessing a suitable home. Language barriers may also make it more difficult for some to understand and respond to an OSN or to seek help. Households on low incomes are more likely to be overcrowded due to affordability issues. Low income households are likely to be at a disadvantage if forced to move due to costs associated with moving, especially if this is within the PRS which often requires the payment of a deposit and/or rent in advance. There is a risk that some people may be faced with homelessness resulting from the issue of an OSN. 9
Q24. What could we do to avoid or mitigate any negative effect? Or increase the positive impact? As stated previously, we would ideally like to see local authorities working with landlords and residents to resolve issues without having to resort to the use of OSNs. Where an OSN is issued, the local authority must offer support to find suitable accommodation. Q25. Do you have any comments on the partial Equality Impact Assessment? It would have been helpful for the EIA to include more detailed information on the types of household that are likely to be living in overcrowded conditions. The Assessment gives some general information on the profile of private renters and does state that migrant workers experience problems with overcrowding but does not comment on any other groups in relation to overcrowding. No reference is made to the impact that an OSN might have on the residents of a PRS home if they are forced to move out, although it does acknowledge that nonwhite households find it more difficult to access appropriate PRS housing than other groups. There is also a risk that these people may find it more difficult to access help because of language barriers. These issues need to be explored in more detail. Q26. Do you have any views on the effect preparing and implementing Overcrowding Statutory Notices may have on your business? The use of OSNs is likely to have resource implications for local authorities given that they will have to investigate and evidence a suspected case of overcrowding, monitor the outcome and take action if the OSN is not adhered to. We feel that local authority resources (which are already under a great deal of pressure due to increasing demand for services and challenging economic climate) should be focussed on working constructively with the landlord and residents to resolve the issues associated with overcrowding with OSNs only being used as a last resort. The use of OSNs may also have resource implications for third sector organisations if this increases demand for advice or support from tenants who have been asked to leave their home. Q27. Do you have any comments on the partial BRIA? It appears that the section on has not been completed unless this public consultation is intended to contribute to the BRIA but this has not been made clear. It would have been useful to know which businesses had contributed to the discussion during the development of the BRIA. 10