Scottish Government Consultation

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1 Briefing paper Scottish Government Consultation Better Dispute Resolution in Housing: Consultation on Introduction of a New Housing Panel for Scotland A briefing paper from CIH Scotland January

2 The Chartered Institute of Housing The Chartered Institute of Housing is the professional body for people involved in housing and communities. We are a registered charity and not-for-profit organisation. We have a diverse and growing membership of over 22,000 people both in the public and private sectors. CIH Scotland has more than 2,500 members working in local authorities, housing associations, housing co-operatives, Scottish Government and Government agencies, voluntary organisations, the private sector, and educational institutions. The CIH aims to ensure members are equipped to do their job by working to improve practice and delivery. We also represent the interests of our members in the development of strategic and national housing policy Prepared by: The Policy and Practice Team Chartered Institute of Housing Scotland 125 Princes Street Edinburgh EH2 4AD For more information on the contents of this paper, please contact Sue Shone: Telephone #housingjusticereform website Learn with us. Improve with us. Influence with us 2

3 A briefing paper on the Scottish Government Consultation on the introduction of a new housing panel for Scotland Introduction On 16 January 2013 the Scottish Government launched its consultation to look formally at how rented housing disputes can be resolved more efficiently and effectively than at present. It offers three options on the way housing dispute cases may be managed in future: Enhanced mediation and prevention opportunities A problem solving pre-court panel to provide early intervention A Housing Panel to replace the court for most civil rented housing actions. The impact of any changes will be felt widely, 34% of Scottish households live in the rented sector of which 23% are in the social rented sector and 11% in the private rented sector. CIH Scotland had already set the scene for changing the way in which housing dispute cases are dealt with back in 2004 via its publication A housing tribunal for Scotland: Improving rented housing dispute resolution (Scott and O Carroll). In this document the case was made for a specialist housing tribunal. Subsequently a number of papers from other sources 1 reviewed the operation of the courts and tribunals operating in Scotland, referencing housing and making various suggestions on how these cases may be improved. This consultation focuses entirely on civil cases, as opposed to criminal matters, and so will not affect cases of unlawful eviction or the prosecution of landlords that fail to comply with landlord registration, for example. 1 See Learn with us. Improve with us. Influence with us 3

4 The current situation sees rented housing cases across the sectors being adjudicated in a variety of forums, including: The Private Rented Housing Panel (PRHP) this is a tribunal model which deals with disrepair and some rent issues in the private rented sector Sheriff court access to which can be via four different procedures and which deal with the majority of housing cases, including rent arrears Lands Tribunal this is a tribunal model which deals with Right to Buy disputes. Data available on the use of the court in dealing with housing cases shows that 14,906 eviction cases were raised in 2010/2011. By and large these were related to rent arrears and a small minority (500) were raised by private landlords, with the remaining majority being social landlords. This disproportionate disparity can be explained by the extensive use of Short Assured Tenancies in the private rented sector, which are fixed term tenancies and are easier to end than social lets. The overall trend in relation to eviction actions has been reducing over the past 4 years, probably reflecting the increasing emphasis on homelessness prevention and improvements in housing practice. Various reasons are cited by the Scottish Government for the drive to change the focus from the sheriff court to the alternative dispute resolution options in the consultation document, these include: The existing system does not encourage early resolution of a dispute Whilst the court is seen as a last resort, it is often the only option The sheriff court is adversarial and can be intimidating Cases can be subject to delays Sheriffs can be inexperienced in housing cases leading to inconsistent decisions. Greater access to mediation and pre court resolution opportunities is emphasised in the consultation, with the focus on prevention and getting it right first time (a Learn with us. Improve with us. Influence with us 4

5 recommendation of the Scottish Civil Courts Review). The consultation also suggests that a combination of more than one of the proposals may be appropriate and they make it clear they are not suggesting a one size fits all approach to housing dispute resolution. The remainder of this briefing will summarise the three new dispute resolution proposals in the consultation. Over the coming weeks we will be consulting members and others on the detail of the proposals and this will inform our final response. The consultation period ends on 9 April For the Scottish Government consultation and accompanying questions please go to For the Chartered Institute of Scotland briefing paper Housing dispute resolution improving access and quality (November 2012) please go to Proposal 1- Promoting Prevention and Mediation This proposal does not include the role of a housing tribunal as such (or panel as it is referred to in the consultation). Rather it centres around prevention, early intervention and the use of mediation. Prevention comes in the form of advice services and a possible extension of the current pre action requirement to include more cases than arrears. Mediation is currently provided by some local authorities, often linked to homelessness prevention. The consultation seeks opinion on whether enabling wider access to mediation could be done best by identifying where there are gaps in provision and filling them or by creating a new one stop mediation service. This one stop approach could sit alongside a new housing panel in a similar way that exists currently with the PRHP. Learn with us. Improve with us. Influence with us 5

6 The consultation recognises that mediation requires both parties to be in agreement to take part, however it suggests that where encouragement is needed the sheriff court (or new housing panel) could recommend the parties use mediation before seeking a judgement from the court or panel. The recommendation would not be compulsory. Proposal 2 Pre-court Housing Panel This approach is one which aims to address the challenge of engaging with tenants at an early stage to resolve the dispute and before it gets to the point where court action is required. It would be a problem solving forum but would not replace mediation, or similar action to resolve matters. This would be expected to have taken place prior to accessing the panel. Parties would not require legal representation. The suggestion is that the panel, which would be a mixture of lay people, housing professionals and legal professionals, would have the power to make interim orders compelling the parties to carry out particular actions, e.g. to make specific payment on a weekly or monthly basis. Should the order not be complied with the panel would not have the power to evict but the case could fast track to the court. The court would then take into account the non compliance when making its decision on whether to evict. The Scottish Government suggests that this problem solving panel model lends itself best to cases that would potentially result in eviction, such as rent arrears or anti-social behaviour. In other cases, such as where the tenancy will be coming to an end anyway or where the landlord is in breach of tenancy conditions, it may be less appropriate. Although it does suggest it could make interim orders compelling landlords to carry out particular action. Failure to comply would be addressed by the court. Proposal 3 A Housing Panel replacing the courts as decision maker This proposal is the one which most mirrors the tribunal model suggested by CIH Scotland in its paper in The panel members would be, similar to proposal 2, made up of legal and housing representatives and lay people. Learn with us. Improve with us. Influence with us 6

7 The Housing Panel would replace the court as the decision maker and would be seen, as the court is now, as the last resort. Mediation would be encouraged prior to the case being taken to the panel. It would operate, as the existing PRHP does currently, with an inquisitorial approach but could also mould itself to the needs of the case and provide a problem solving forum. Decisions could be reached on the basis of written submissions or with less than three panel members. Legal representation would not be required, but the panel would have the same powers as the existing court, including that of the power to evict. The consultation also considers that this panel could have a similar role to that in proposal 2, to hold earlier hearings and make interim orders. For this proposal the Scottish Government favours extending the existing role of the PRHP rather than create a new panel from scratch. It recognises that doing so will increase the support required by the PRHP to carry out its new functions. Rather than take a phased approach or separate out some cases that will still use the sheriff court and some that will use the new panel, the suggestion is that the majority of civil housing cases will be transferred to the new panel. These may include: Repossession cases Breach of tenancy agreement Failure of a landlord to comply with legal obligation Challenge of a landlords decision (that currently has a right to appeal to the sheriff court) Private landlord appeals against landlord registration decisions. Initial CIH Scotland observations All three proposals would have a profound effect on the way in which landlords and tenants resolve their differences. The consultation asks specific questions on each of them. For example, if it is felt appropriate, how might extended access to mediation be funded? Who should be able to refer cases to the Pre-court Panel and which cases should the panel handle? Or if a Housing Panel replaced the court, should parties be charged a fee for raising actions to it? Learn with us. Improve with us. Influence with us 7

8 CIH Scotland s initial view is that the first proposal would not, on its own, have any discernible impact on the speed, consistency or accessibility of housing justice. The conciliatory approach is already one that is being taken by many social landlords (who make up the bulk of the cases going to court) in their endeavours to prevent homelessness. Mediation requires both parties to be prepared to participate and for it to be effective should not be a compulsory activity, but as a consequence it does not have sufficient teeth and may be treated as a delaying tactic. However, enhancing accessibility and knowledge of mediation would have the potential to supplement a Housing Panel. The second option of a pre-court housing panel appears only to provide another staging post on the journey to resolution as it only has the power to go so far. The court (or Housing Panel) would still be required to enforce any breach of agreement. In addition, an accelerated or fast track access to court (or Housing Panel) flounders if the common route becomes the pre-court panel and so the majority of cases, rather than the minority, are able to access it. The final proposal in the consultation is the one which CIH Scotland favours, as it offers the most radical and effective response to the negative experience those using the court currently have. A specialist housing panel, where most housing dispute cases will be heard, provides an easy to understand and accessible route to housing justice. The links to mediation and the much reduced adversarial approach are of particular importance in the existing economic climate and with the impact of welfare reform yet to be fully understood. Learn with us. Improve with us. Influence with us 8

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