Housing Service - Eviction Policy - Section 5
5. Legal Framework
5.1 The Council will ensure that the Evictions Policy meets all legislative and good practice requirements and minimises evictions being carried out. This will include, but is not restricted to, the Housing (Scotland) Act 2001, the Antisocial Behaviour etc. (Scotland) Act 2004 and the Homelessness etc. (Scotland) Act 2003.
5.2 The Council will ensure that no tenant's human rights are breached by the implementation of this policy. In particular the Council will ensure that tenants have a fair hearing and will have respect for their private and family life, the home and correspondence in accordance with the Human Rights Act 1998.
5.3 In addition, the Council will ensure that no personal data relating to eviction is passed to a third party in breach of the Data Protection Act 1998. This will include information given to qualifying occupiers (see Section 5.4) and locally elected members.
5.4 The decision to grant a Decree for ejection can only be made by a Sheriff Court, not the Council. The grounds for eviction are contained within the Housing (Scotland) Act 2001, Schedule 2, Part 1. Eviction will only be granted when the court is satisfied that it is reasonable* to do so and that the Council has adhered to the prescribed legal process including serving a valid statutory notice of proceedings on the tenant and all qualifying occupiers**.
*In satisfying itself that it is reasonable to make the order for repossession, the court must have regard to:
- the nature, frequency and duration of the conduct;
- the extent to which the conduct was the responsibility of persons other than the tenant. This can include for example, where delays in the payment of housing benefit have led to rent arrears and are primarily the responsibility of the local authority;
- the effect the conduct has had on neighbours and people other than the tenant; and
- any alternative action taken by the landlord, before seeking possession, to bring about an end to the conduct of the person in question.
** A qualifying occupier is defined as anyone who is: a member of the tenant's family ** aged 16 or over living with the tenant as his/her principal home; any subtenant, lodger or assignee (someone to whom the tenancy has been transferred with the consent of the Council).** a member of the family is defined by the Housing (Scotland) Act 2001, Section 108.
5.5 The introduction of new legislation as part of the Housing (Scotland) Act 2010 requires the Council to explore all possible alternatives to eviction before raising court action. These 'Pre-Action Requirements (PARs)' are a series of steps that landlords should take in rent arrears cases to try and resolve the underlying debt and financial difficulties.
5.6 In the case of rent arrears, the Notice of Proceedings cannot be served until the Council has complied with the pre-action requirements set out in Section 155 of the Housing (Scotland) Act 2010. The requirements are set out below:
- to give clear information - the Council must provide clear information about the terms of the tenancy agreement, the rent due, or any other financial obligation of the tenancy.
- to offer help and advice - the Council must make reasonable efforts to provide the tenant with advice and assistance on the tenant's eligibility to housing benefit or other types of financial assistance.
- to offer help with debt management - the Council must provide the tenant with information about sources of advice and assistance in relation to management of debt.
- to agree an affordable repayment plan - the Council must make reasonable effort to agree a reasonable repayment plan for future payments, this plan must include proposals in respect of future payments of rent, outstanding rent and any other financial obligations of the tenancy
- ensures that landlords do not start an eviction action before considering:
- any housing benefit application - if an application for housing benefit has been made (but not yet determined) and is, in the Council's opinion, likely to result in benefit being paid at a level which would allow the tenant to pay, or reduce by an amount acceptable to the Council, the outstanding rent and any other financial obligation of the tenancy
- steps taken by the tenant - the Council must not serve a Notice of Proceedings if the tenant is taking other steps which, in the opinion of the Council, are likely to result in payment within a reasonable timescale of the outstanding rent and any other outstanding financial obligation of the tenancy, or the tenant is complying with a repayment plan agreed with the Council.