Section 12A — Short Scottish secure tenancies

Part of Antisocial Behaviour etc (Scotland) Bill: Stage 3 – in the Scottish Parliament at 10:15 am on 17th June 2004.

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Photo of Margaret Curran Margaret Curran Labour 10:15 am, 17th June 2004

Amendments 49, 80 and 81 return to an issue that we debated at stage 2. I hope that members will understand our reasons for seeking to overturn amendments that the Communities Committee agreed to at that stage. It is not something that Mary Mulligan or I do lightly. Members of the committee will know that this is the only issue in the entire bill on which we have sought to challenge the decisions of the committee at stage 2. I repeat how seriously I take the views of committees on legislation, but we seek to overturn the stage 2 amendments because we believe strongly that it is the right thing to do.

Contrary to the intentions of those who supported the amendments lodged by Elaine Smith and Stewart Stevenson at stage 2, those amendments would mean that more families faced the prospect of eviction from their homes because of antisocial behaviour by one of the family members. I recognise the intention behind Elaine Smith's argument, but I genuinely believe that it would offer a perverse incentive that would be contrary to what she is trying to achieve.

The issue is not straightforward. Before I explain in more detail why we have lodged amendments 49, 80 and 81, I will give some of the background. As members of the committee will know, ASBOs for adults were introduced by the Crime and Disorder Act 1998. The next development was that section 35 of the Housing (Scotland) Act 2001, which I am sure some of us remember very well, allowed public sector landlords, local authorities or registered social landlords to serve a notice on a tenant to convert their tenancy to a short Scottish secure tenancy when the tenant or a person residing with the tenant was subject to an ASBO. It is important to note that that is a power; it is not a duty. Crucially, if a tenancy is converted to an SSST, obligations on the landlord to support the tenant kick in. Landlords must provide support to enable the tenant to convert back to a full Scottish secure tenancy after 12 months. In addition, the tenant has a right of appeal to the courts if they do not agree with the conversion of their tenancy to an SSST. That is the present position; it is where we were before the introduction of the bill.

Members who were involved will remember that considerable discussion took place on section 35 of the 2001 act. However, I recall that, once people understood why we wanted a link between ASBOs and SSSTs, and understood the support arrangements that would be put in place when that link was made, they offered general support for the idea. I believe that that was correct.

From my experience and from what I have heard from other MSPs, I know that landlords have used the link on a number of occasions and have done so responsibly. They have converted a tenancy to an SSST because an adult in the property was subject to an ASBO. They have put in support and successfully changed the difficult behaviour, after which the tenancy has been converted back to an SST. Without that intervention, recourse to an eviction would have been much more likely.

It is because of such experience that we have sought to allow tenancies to be converted to SSSTs if the ASBO has been made in respect of someone who is under 16 or if the ASBO has been imposed by a criminal court. Let me be as clear about this as I can—that is what Elaine Smith and Stewart Stevenson's stage 2 amendments would prevent. I recognise their motives but believe them to be misguided. Their amendments would not have the impact that they intended.

I strongly defend the need to maintain the option to convert a tenancy to a short SST if ASBOs are made in respect of someone who is under 16. Members should not be under the illusion that preventing the use of SSSTs in cases when an ASBO has been made on a child will protect the interests of that child. On the contrary, without the option of an SSST, landlords who have to deal with the sometimes very difficult behaviour of young people in their properties will move straight for an eviction. That will undoubtedly be their imperative.

Without the link to tenancies in ASBO cases that involve 12 to 15-year-olds, we would be failing to provide a safety net. The short SST provides a buffer and is always backed up by support. When a tenancy is converted to an SSST, obligations on the landlord to support the tenant kick in. We know that that support can work. As I have said, landlords must provide support to enable a tenant to convert back to a full SST after 12 months.

In a similar way, we are moving to reverse the effect of Stewart Stevenson's stage 2 amendment that would limit the power to convert a tenancy to a short SST to ASBOs made in the civil court under section 4. The Executive's intention is that the power to convert a tenancy to an SSST should also be available when an ASBO is made on conviction in the criminal court. There is no reason why an ASBO that has been made in a criminal court should not have the same consequences as one made in a civil court. As with other ASBOs, we will ensure through guidance that, when an ASBO that is imposed by a criminal court does not relate to behaviour in and around the locality of the tenancy, the conversion of the tenancy does not take place.

I will now deal with a number of the arguments that have been made about the Executive's position on the proposals. A number of members who have been involved in the debate expressed concern about the principle of the link. They argue that we are punishing innocent members of a household because of the actions of another member, but that is not the case.

First, SSSTs are not about punishment. They are about the provision of support to improve the behaviour of difficult households. The two members who have been most involved in the debate have consistently argued for support provisions and have spoken about the impact and effect that those can have.

Secondly, those who make the case that we would be punishing the innocent forget that, in allowing the link in relation to adults who are subject to an ASBO, we are providing that the children of the family may live in a house that is subject to an SSST because of the behaviour of their parents.

Thirdly, landlords already have the power to evict where a person residing or lodging in the house with a tenant or a person visiting the house has engaged in an antisocial manner towards people in the locality of the tenancy. Given that that provision applies to children under 16, it would be ridiculous for the power of eviction to be available in the case of antisocial behaviour that was caused by a young person and not to have the power to convert the tenancy of the house in which they reside to an SSST. That is especially the case given that conversion to an SSST with support can be used by landlords as an alternative to eviction. The stage 2 amendment could have the opposite effect to that which was intended. If the option of the SSST and the related support were not made available, more families would face speedier eviction.

Others have argued against our position on the basis that it is unjust that such a tool is available in relation to public sector tenants when no equivalent exists for people who live in private rented accommodation or in their own homes. Again, I am convinced that those arguments are wrong.

Obviously, we have to accept that people live in different types of housing—that is a fact. Because of that, we need to have different tools to deal with antisocial behaviour in those different types of tenure. For example, parts 7 and 8 of the bill relate exclusively to antisocial behaviour in the private rented sector. I do not think that arguments were put forward against those provisions on the ground that they discriminate against private sector tenants.

Another factor that we need to consider in this context is that private sector tenants or owner-occupiers will not have available to them the support that must accompany the serving of an SSST. Again, we are talking about different tools for different situations. Given that more support is available to those in the social rented sector, our position is a reasonable one to take—indeed, it is appropriate.

Finally, our opponents have argued that support to change behaviour should be available irrespective of tenure and that therefore the support that goes with an SSST is not the strong argument that we have held it up to be. I disagree.

A landlord's first priority must be to help to improve the behaviour of their tenants and thereby to protect tenants whose behaviour does not cause problems. The responsibilities of landlords are enshrined in legislation, the principle of which has never been questioned. Although additional support could be provided on its own, the short SST establishes a contract: it makes it clear that there are obligations on the part of the landlord and the tenant. Again, members of the Scottish Parliament have never objected to that principle.

We want to change behaviour for the better. I remain convinced that the option to convert a tenancy to a short SST in the circumstances that an ASBO has been served on a child should be available.