What are social landlords’ obligations in Scotland?

Schedule 4 of the Housing (Scotland) Act 2001

In Scotland, the law governing tenancies in the social rented sector is the Housing (Scotland) Act 2001. If your landlord is a local authority or a housing association, it is very likely that your tenancy is a Scottish secure tenancy or a Short Scottish secure tenancy — and that means your landlord must abide by this 2001 Act.

The Act imposes duties on landlords which can’t be changed or avoided. They are stated in Schedule 4 of the Act.

Most Scottish secure tenancy agreements follow a standard model which was drafted by the Scottish Government. This repeats the obligations of the landlord under the Act. So, if you have a Scottish secure tenancy, the schedule 4 duties are probably stated in your tenancy agreement.

Fit for human habitation

The primary, and most important, duty is stated at the beginning of Schedule 4:

1 The landlord in a Scottish secure tenancy must—
(a) ensure that the house is, at the commencement of the tenancy, wind and watertight and in all other respects reasonably fit for human habitation, and
(b) keep the house in such condition throughout the tenancy.

The words “in all…respects reasonably fit for human habitation” are important. Basically, they mean that, if the state of the accommodation is such that by ordinary, everyday use, the occupier is at risk of suffering mental or physical injury, then it is not up to standard.

When deciding whether accommodation is fit for human habitation, a court is also entitled to look at whether “by reason of disrepair or sanitary defects” it falls short of the building regulations. That means it has not been kept in repair (see our page about this) or that it doesn’t provide the basic necessities for health.

At the start and throughout your tenancy

Because the accommodation must meet that standard “at the commencement of the tenancy”, the landlord has a duty to inspect it before then, identify any necessary work, and carry out that work.

And, because the landlord must meet the standard “throughout the tenancy”, if it falls below this standard while you are living there, they must carry out any work needed to bring it back up to standard.

This must happen within a reasonable time of you notifying the landlord, or the landlord otherwise becoming aware, that the work is required. When carrying out any repairs, the landlord must also make good any damage caused by the work.

If your house is not up to standard at the commencement of the tenancy, or your landlord does carry out repairs after becoming aware of the need to do so, you may be able to claim damages. Your local law centre should be able to help.

Standards

There are several other standards which apply to houses in Scotland, which can be a bit confusing. If you are the tenant of a social landlord, Schedule 4 is the most important standard. But it is also helpful to know what the other standards mean.

Tolerable standard

The tolerable standard is the most basic level of repair, and standard of amenity, that any accommodation (including accommodation that is owner-occupied) must meet, to make it fit for a person to live in.

It consists of fourteen different elements which must be met, including that the structure is stable; that there’s no rising or penetrating damp; that there’s an adequate wholesome water supply, etc.

Where a home does not meet the standard, the local authority has the power to require it to be closed, demolished or brought up to the standard. And if your flat does not meet the tolerable standard, it is very likely that it will also fall below the standard in schedule 4.

Scottish Housing Quality Standard

Social landlords are regulated by the Scottish Housing Regulator. They must comply with the Scottish Social Housing Charter, which in turn requires the landlord to meet the Scottish Housing Quality Standard (SHQS).

The obligations on the landlord that the SHQS demands are more detailed than those in Schedule 4 of the 2001 Act.

What is the difference between these standards?

From the tenant’s point of view, the difference lies in what you can do about it if your landlord fails to meet the standard.

Schedule 4 sets out duties that the landlord owes to the tenant by law. If those duties are not met, your ultimate remedy is to take the landlord to court, and ask the court to order that the landlord fixes the house, and/or pays damages.
The SHQS is a standard which is overseen by regulators. This means that if the landlord fails to meet the standard, your remedy is to complain to the Scottish Public Services Ombudsman. If the Ombudsman makes a finding that your landlord is not complying with the SHQS and the Scottish Social Housing Charter, that could mean bad publicity for the landlord, and possibly intervention by the Scottish Housing Regulator.

Repairing standard

The repairing standard does not apply to the tenancies of social landlords. Private tenants are subject to different legislation, in relation to repairs. In the case of the tenancy of a social landlord, under the Housing (Scotland) Act 2001, legal proceedings have to be raised in court, rather than at the Tribunal.