The next item of business is stage 3 proceedings on the Private Rented Housing (Scotland) Bill. In dealing with amendments, members should have the bill as amended at stage 2, the marshalled list—that is, SP Bill 54A-ML—and the groupings, which the Presiding Officer has agreed. As usual, the division bell will sound and proceedings will be suspended for five minutes for the first division. The period of voting for the first division will be 30 seconds. Thereafter, I will allow a voting period of one minute for the first division after a debate. All other divisions will be 30 seconds.
Section 5—Access to register: additional information
The amendments in this group are minor drafting amendments that make slight changes to the wording of a few sections in order to clarify some expressions, remove ambiguity and make the drafting consistent.
Only amendment 4 needs specific comment. It relates to new section 93A of the Antisocial Behaviour etc (Scotland) Act 2004, which is inserted by section 8 of the bill. New section 93A gives the court the power, when a person is convicted of offences relating to operating as an unregistered landlord, to disqualify that person from registering as a landlord for up to five years.
A landlord may not be an individual; it could be a body such as a company or a partnership. As currently drafted, the section allows the court in such a case to disqualify a director, partner or other person involved in the management of the house. However, such a person may not be directly involved in the management of the house. Amendment 4 therefore replaces the word “house” with the word “person” so that, where the landlord is a company or other body, anyone involved in the management of the company or other body concerned could be subject to disqualification.
I invite Parliament to support amendment 3 and the other amendments in the group.
I move amendment 3.
I am sorry about that. Your name came up on the screen.
Amendment 3 agreed to.
Section 8—Disqualification orders for unregistered landlords
Section 9—Power to obtain information
Amendments 5 and 6 moved—[Alex Neil]—and agreed to.
Section 13—Amendment of HMO licensing regime
The amendments relate to the proposed power for a local authority to refuse to consider an application for an HMO licence when it considers that use of the property as an HMO would be a breach of planning control.
It has always been the policy position that a local authority would be able to refuse to consider a licence application if it thought that the owner of the property had failed to obtain requisite planning permission or to comply with conditions or limitations that were contained in planning permission that had been obtained. However, the current wording of proposed new section 129A that section 13 of the bill would insert into the Housing (Scotland) Act 2006 would allow consideration to be refused where there had been any breach of planning control as defined by the Town and Country Planning (Scotland) Act 1997, including minor breaches due to failure to give or display notices. Amendment 7 will correct that position by restricting the local authority’s power to refuse consideration of an application to cases where there has been a failure to obtain, or comply with conditions of, planning permission.
It has always been the Government’s intention that a refusal to consider an HMO licence application would occur before full consideration of the application, and therefore would not be the same as refusal of the application. When a local authority considered that planning permission was required, the HMO licence application would not be considered until the planning situation had been rectified. We wish to ensure that that important point is beyond doubt. Therefore, amendment 8 makes it explicit that a local authority’s refusal to consider an HMO licence application because it considers that there are planning issues is not to be regarded as a refusal to grant the licence.
It is important to draw that distinction and clarify that a refusal to consider a licence application is not a refusal of the licence. Will the minister confirm that that means that the landlord would not be entitled to operate an HMO even though the licence had not actually been refused? I am just a little bit worried about why the Government thinks at this late stage that it is important to make the distinction. I had read the provision as amounting to a refusal—in fact, I think that I said so at stage 2—which is why I thought that it was a good provision. I want to be clear that landlords will be unable to operate if the local authority refuses to consider their application. That should amount to the same thing, surely.
I confirm that landlords cannot operate an HMO until they receive a licence to do so.
Amendments 9 and 10 are consequential and remove provisions that amendment 8 renders unnecessary.
I invite Parliament to support amendment 7 and the other amendments in the group.
I move amendment 7.
Amendment 7 agreed to.
Amendment 1 deals with a continuing issue about which the Local Government and Communities Committee heard evidence. It relates to HMOs in which rooms have been subdivided and toilets, bathrooms and kitchens—otherwise known as stacked services—have been moved to accommodate more tenants. I felt that the committee was minded—as I felt that the minister was in my discussions with him—to recognise that that is a serious problem for all tenants who live in conditions that are too cramped because of subdivision or who live below a room that was previously a bathroom or kitchen.
That situation is causing many tenants untold misery and is becoming much more of an issue. Many of my constituents have written to me to say that they have had to move out of their homes as a result or that the noise from rooms that have been changed round is becoming unbearable. Defective bathrooms that have been installed to allow the number of tenants to be increased are leaking sewage and water, and insurance companies will no longer insure tenants when such leaks have happened two or three times.
I hope that the minister and I are not at odds on what I am trying to achieve. He and his officials drew my attention to section 131 of the 2006 act, which amendment 1 would amend. Section 131 says:
“In determining whether any living accommodation is, or can be made to be, suitable for occupation as an HMO the local authority must consider—
(a) its location,
(b) its condition,
(c) any amenities it contains,
(d) the type and number of persons likely to occupy it,
(e) the safety and security of persons ... and
(f) the possibility of undue public nuisance.”
After discussion, I have not really been persuaded that those provisions are clear cut or that it is clear that local authorities could consider refusing an application because a room was subdivided or because it was concerned that stacked services would cause the problems that I have talked about. In some cases, sheriffs have refused to uphold a local authority’s refusal under section 131 because the section does not make it clear that a licence can be refused on such grounds.
Members might hear this afternoon of another way to achieve the objective. I have looked at the issue in relation to all the legislation on HMOs that the Parliament has considered. I was told that it could be dealt with through planning, then through building control. I have approached all those departments, but I can see no solution. Building control departments say that they are required only to consider the standards and perhaps the dimensions in guidance; they cannot consider the use of a property. My proposal is the only and best way to ensure that local authorities that want to avoid the problems that I have described can do so without challenge in the courts.
I plead with the Parliament: this is our last chance to resolve some of the issues, which affect not just families but students and a range of people who live in such properties. Some landlords who manage HMOs and do not live in the properties pay no attention to the complaints that they receive from tenants who live in the conditions that I have talked about. At this late stage, I plead with members who think that what I have described is a problem: for clarity, please include the proposed provisions in section 131 of the 2006 act.
I am delighted that the 2006 act will—at last—be implemented in August, and I give the Government credit for the provisions that it will put in that act. However, to ensure that it is the best act that it can be, we should give local authorities the additional grounds for refusal, so that, when a landlord challenges a local authority in court for refusing an application for such reasons, the local authority is on safe ground.
I move amendment 1.
I thank the minister for making himself available to all members to talk through the bill and the amendments. Will he provide clarification about section 17 of the bill, to which I think Pauline McNeill referred? That section will give local authorities the power to serve a statutory notice on the landlord of an overcrowded house when that overcrowding is having
“an adverse effect on the health or wellbeing of any person” or on any
“amenity of the house or its locality.”
That will allow enforcement action to be taken to deal with adverse effects on occupants, neighbours and others in the locality.
I ask the minister for clarification of whether section 17 covers what Pauline McNeill’s amendment 1 would cover. I am not too clear about that. Like her, I have read the bill. I spoke to her about the issue just after lunch time. I have sympathy with her, but I feel that her proposal—and I would like to hear from the minister about it—is covered by section 17 and by the 2006 act, which will come into force in August. I would like clarification before I make up my mind on whether I fully support Pauline McNeill’s amendment 1.
I very strongly support Pauline McNeill’s amendment 1. I understand the point about section 17, but I do not feel that it deals with the issue in a satisfactory way. There is no great dispute about the fact that the problem is significant and affects a number of tenemental properties, perhaps particularly in Glasgow, although I believe that the situation is similar in other parts of Scotland.
I will put amendment 1 in context. It seems to me that amendment 1 would not require the refusal of an HMO licence. Instead, it would give local authorities discretion to look at the matter, establish whether particular aspects are satisfactory and deal with it in consequence. It may be—as I believe that the minister will suggest—that the matter is already covered by the more general provisions in section 131(1) of the 2006 act. However, amendment 1 would put a particular onus on local authorities, specifically mention the issue and ensure that it is higher up in councils’ thinking. Also, it is appropriate, as a matter of policy, to deal with the issue in the context of HMOs, because there is a particular problem, and although it can exist in other circumstances, it comes to the fore in HMO situations.
We have heard the argument about the linkage between HMO licences and planning. Similarly, it is useful to join together the issues that are addressed in amendment 1. They could be joined together through other arrangements, but amendment 1 is a neat, effective and satisfactory way of doing it, and makes it much more likely that the local authority—which will look at the legislation that it must comply with—will deal with the matter more effectively and address the problem.
Like other members, I have had a number of representations on various aspects of HMO legislation. Amendment 1 is a small but important amendment on one such aspect, and I hope that the minister will look on it favourably.
I would like to support Pauline McNeill’s amendment 1, but I wonder whether she could address one or two issues in her closing speech. We all know that her constituency contains good and bad landlords, but some of the biggest and most profitable in the industry are extremely exploitative, and we all want to reduce the harm that they do.
Two organisations that have briefed MSPs share that concern but have argued against amendment 1. The National Union of Students Scotland states that it understands the reasoning behind the amendment, but it is concerned that it could force the HMO system away from ensuring the safety of occupants, which was the original intention when the system was introduced. It suggests that changes to guidance to local authorities could make reference to subdivisions, to moving water and waste pipes and to other issues.
Shelter raised a similar concern. It is concerned about adding specific examples to a general power, which it suggests could undermine the generality of the existing power. It also referred to the possibility of using guidance to local authorities. I would like to be persuaded of the merits of voting for amendment 1, so I invite Pauline McNeill to address those points in her closing speech.
I, too, have been lobbied by many organisations, both within and outside my constituency. For the avoidance of doubt, I put my mind to the point that Patrick Harvie raised. In my view, in addition to the points that Pauline McNeill made and which Robert Brown amplified, amendment 1 would ensure that my constituents—many of whom are students—are no longer required to live in rooms in which there is no natural light because of subdivision and would ensure that they have sanitary facilities that work and that do not cause environmental and social problems for their neighbours.
Amendment 1 is about more than convenience or inconvenience; it is about the safety and wellbeing of those who live in HMOs and those who live in the wider environment round about. I therefore support amendment 1.
We are all trying to achieve the same objective. The issue is the best way to achieve it. As Pauline McNeill stated, her amendment 1 would introduce subdivision of rooms and alteration of water or drainage pipes as issues that a local authority would have to take into account when considering an HMO application.
Pauline McNeill suggested a similar amendment at stage 2. As I highlighted then, local authorities are already required to consider the suitability of the accommodation when deciding whether to grant or renew an HMO licence. Section 131 of the 2006 act places a duty on local authorities to consider the property’s location and condition, any amenities it contains, the type and number of persons who are likely to occupy it, the safety and security of likely occupants and the possibility of public nuisance. That is not an exhaustive list, and local authorities should consider other relevant matters that might make accommodation unsuitable to be used as an HMO, such as the subdivision and adaptation of rooms. The statutory guidance on part 5 of the 2006 act, to which local authorities are required to have regard, will set out further recommended standards and licensing conditions. Therefore, I consider that Pauline McNeill’s amendment 1 is unnecessary, because the same objective will be obtained on a statutory basis as a result of the guidance on part 5.
In granting or renewing HMO licences, local authorities already apply space standards to ensure that rooms are of a sufficient size. Our guidance encourages local authorities to work with colleagues in building standards to ensure compliance. There have been issues when bathrooms and kitchens have been relocated in flats, causing nuisance. However, that applies not only to HMOs, but to adaptations of owner-occupied housing. It is for building standards to deal with such matters.
I hope that my comments provide Pauline McNeill and others with the reassurance that they need that the matters that she is rightly concerned about are already addressed and that no further amendment is required. I ask Pauline McNeill to seek to withdraw her amendment, as the matter will be dealt with by guidance under part 5 of the 2006 act.
I recognise the work that Alex Neil has done to make the bill better, but if I had been given a penny every time I heard a minister say at the last minute at stage 3 that there was a better way to achieve something, I would be a rich woman. There is not a better way to achieve what amendment 1 seeks, and I will briefly say why.
I am afraid that Sandra White has misread section 17, which relates to statutory notices. Local authorities will not use that section to deal with the issue, for a simple reason. Robert Brown made the important point that when a licensing committee considers whether to grant an HMO licence, it needs to know what it is looking for. It is crucial that we place the issues of subdivision and adaptations higher up in licensing committees’ thinking when they are applying section 131 of the 2006 act. I know that Sandra White is sympathetic to amendment 1, but she is wrong, in that the issue needs to be dealt with before a landlord is granted a licence in the first place.
Let me address the issues that Patrick Harvie raised. Good landlords—I put it on record that there are many of them—do not tend to cram tenants into subdivided rooms with no light. The University of Glasgow students representative council came to me this week and gave its support for amendment 1. Members might have received an e-mail from the SRC on the issue. The reason for that is that students across Glasgow have been crammed into such rooms for one reason or another. That tells me that local authorities do not use their discretion.
The issue is nothing to do with granting a power; instead, it is to do with giving local authorities reasons, if they so wish, to reject a licence application when the subdivision of rooms would mean that tenants would get a poor deal or the property would be a poor HMO. If Alex Neil supports the general intention, I do not see what is wrong with adding to section 131. He says that the local authority can take into account the location, the condition, any amenities and the possibility of undue public nuisance, but that is not clear enough.
All I am asking is for the Government to add two things to that list, so that if local authorities want to reject licences because of stacked services and subdivisions, they can do so. There have been cases in which the sheriff refused to uphold the decision of the local authority because the decision was made on those grounds. We are making law here, so I ask members to make the law clear. We will not have another chance to do this. I plead with members: they have nothing to lose if they support amendment 1, and I ask them to do so.
In speaking to amendment 15, I pay tribute to Suscoms—Sustainable Communities (Scotland)—which first alerted the Public Petitions Committee to a variety of problems regarding houses in multiple occupation in parts of our towns and cities. In supporting the original petition, Pauline McNeill and Sandra White raised HMO problems—which we have now resolved—in Glasgow; Margo MacDonald, Mike Pringle and Robin Harper spoke about similar problems in Edinburgh; and I drew the committee’s attention to the overconcentration of HMOs in the town centre of St Andrews, where I make my home.
Initially I believed that the problems might be resolved by requiring all HMO applications to be subject to planning approval by the local authority. However, our pragmatic and ever-resourceful Minister for Housing and Communities persuaded me that the problem would be best tackled by amending the licensing provisions for HMOs as set out in the Housing (Scotland) Act 2006, to be introduced in August.
Amendment 15 proposes an entirely new section 131A in the part of the original act that relates to the licensing of HMOs. To those who might say that it is a fairly weighty hammer to crack a relatively small nut, I say that the daily lives of people—let us call them the local indigenous populations—in certain areas of our cities and towns are being blighted by the very high density of HMOs in their neighbourhoods.
Some might argue, as the minister originally did, that local authorities already have powers in the 2006 act to address that growing problem: indeed, different local authorities have attempted to tackle the problem in different ways. However, evidence suggested that many local authorities did not believe that the existing licensing provisions were specific enough to allow them to turn down applications solely on the grounds that there were already too many HMOs in that locality.
I am very grateful to Margo MacDonald for her kind words.
I draw members’ attention to the situation in St Andrews, which I may have mentioned before. The core of the town, which is arguably the most complete medieval town centre in Scotland, is now given over virtually entirely to students living in HMOs. Some local streets have as few as eight permanent residents and as many as 35 HMO flats, which means that there could be as many as 140 HMO bed spaces in one thoroughfare. Many of the houses in the historic quarter are listed, but a large proportion are owned by absentee landlords and there is growing concern about the lack of maintenance of buildings and gardens in one of the most important tourist venues in Scotland.
Of course, students and other tenants in HMOs have an absolute right to safe and secure accommodation, but HMOs do not exist in isolation. How can we have socially cohesive neighbourhoods when, as in St Andrews town centre, 85 per cent of the residents impose their lifestyles on the remaining 15 per cent?
Amendment 15 does not seek to reduce the number of HMOs, or to support some residents at the expense of landlords, students or other tenants, but it gives licensing authorities the absolute right to refuse HMO applications in areas in which they believe that there are already too many HMOs. The proposed provision is not retrospective but seeks, over time, to achieve a position whereby we will have more balanced communities in which tenants in HMOs can live in closer harmony with existing tenants.
I move amendment 15.
I have some concerns about amendment 15, on which I seek clarification from the minister and from Ted Brocklebank. They relate, in particular, to subsection (4)(b) of proposed new section 131A of the 2006 act.
Ted Brocklebank has rightly highlighted the concerns that the indigenous population in places such as St Andrews has about the number of town centre HMOs, but it is equally important to recognise that students and others have a right to somewhere to live. We must ensure that amendment 15 has no unintended consequences. For example, it might result in someone letting a property as it stands and having just two residents rather than subdividing it and letting it as an HMO to three or four residents. That would increase the demand for accommodation rather than reduce the number of students who lived in the area. We must ensure that amendment 15 does not have such unintended consequences.
I seek an assurance that subsection (4)(b)—
“the need for housing accommodation in the locality and the extent to which HMO accommodation is required to meet that need”— will be an important aspect when any limitation on the number of HMOs in an area is considered, and that local authorities will have an absolute duty to ensure that housing need is being met in that area. I seek an assurance that if there is a need for HMOs, regardless of whether there is already a large concentration of them, housing need will be the main priority when a licence application is considered.
It is very important that we have such an assurance on record, because otherwise, in places such as St Andrews, we might end up forcing people out of perfectly adequate accommodation simply to meet the requirements of the provision. In doing so, we might leave students homeless or facing unaffordable rents because of a reduction in the number of residents who would be living in accommodation that at present is being used as HMO accommodation.
I have more serious concerns about amendment 15 than I had about amendment 1. Perhaps it would be unfortunate to interpret what Ted Brocklebank said in this way, but there will be those who will interpret him as having said that there are some properties that just should not have students living in them and that there are some neighbourhoods that just should not have too many students because other people do not like living in student areas. I am sure that that was not Ted Brocklebank’s intention, but there will be those who will draw that inference and there are certainly those who make that case.
My concern is that if we agree to amendment 15, some of the people who just do not like studenty areas and who think that there are just too many HMOs—not necessarily too many, given the level of need, but just too many for their taste—would have an excuse to take or to threaten action against their local authority.
Other unintended consequences could arise if a limitation on the number of HMOs were to be put in place by a local authority. That could prevent good, higher-quality landlords from coming in to provide accommodation. If an area has bad landlords who have bad practices and who charge exploitative rents, we would obviously rather see good landlords coming into that area and offering students—or any other HMO tenants—a better deal. I worry that if we agree to amendment 15, we might prevent such improvements.
Amendment 15 does not seem to establish a relationship between the different factors to which a local authority must have regard under subsection (4) of proposed new section 131A of the 2006 act. It mentions
“the number and capacity of licensed HMOs in the locality”, the level of need for HMO accommodation, and “other matters” that may be specified, but it does not say whether a higher priority should be attached to the first factor than to the second. I worry that some local authorities would be tempted, or would be put under significant pressure from residents, to attach a higher priority to the first factor—the number of HMOs and their capacity—and a lower priority to the level of need that existed and the extent to which HMO accommodation could meet that need. Therefore, I am not sympathetic to amendment 15.
Having listened to Ted Brocklebank’s concerns about the issues that concentrations of HMOs are creating in St Andrews, I welcome his amendment 15 . Given that Ted Brocklebank is also retiring on Tuesday, I thank him, on behalf of the whole chamber, for his enormous contribution to the Parliament and wish him well in his retirement. [Applause.] If amendment 15 is agreed to, it should be forever known as the Brocklebank amendment.
It is only right and proper that local authorities should have the powers to weigh up the needs for HMOs against their impacts on neighbours and communities in deciding whether to grant HMO licences. Making that a discretionary power—I emphasise the word “discretionary”—will allow local authorities flexibility to deal with issues in problem areas where necessary without unnecessarily overburdening those that have no need for it. To provide protection for vulnerable tenants and minimise the risk of homelessness, in using the powers local authorities will have to consider tenants’ and applicants’ views and the need for HMOs in the locality; I believe that that deals with the points made by Iain Smith and Patrick Harvie. That is especially important, given the potential impact of the welfare reform agenda.
Amendment 15 includes the power for ministers to specify through secondary legislation other matters for consideration in deciding whether to refuse a licence on the ground of overprovision or assessing whether there is overprovision. That is helpful, as it will enable the Scottish Government to make provision to ensure that full consideration is given to relevant matters before an authority decides to refuse a licence on that ground. Before making any such secondary legislation, ministers would be required to consult local authorities as well as landlord and occupier representatives.
I therefore welcome amendment 15 and invite the Parliament to support it.
I believe that the amendment will provide a small but extremely effective weapon in local authorities’ armoury when they come to deal with HMO applications in future, especially in areas where there is already overprovision.
As the minister said, the powers will still remain directly with the local authority; they are not retrospective and any decisions will be entirely at the discretion of the local authority.
I want to make one or two other points.
I pay a personal tribute to Alex Neil, who has been more than generous in the time that he has given to help solve an undoubtedly difficult problem. I am delighted that our joint efforts in this respect have borne fruit today and I wish him well in whatever future capacity he finds himself after 5 May.
I am also grateful to those from other parties who gave their support. Once again, I congratulate Suscoms on its detailed submissions and tenacity in seeing this important piece of legislation all the way from the Public Petitions Committee to—hopefully—the statute book.
The result of the division is: For 92, Against 2, Abstentions 0.
Amendment 15 agreed to.
Amendments 9 and 10 moved—[Alex Neil]—and agreed to.
Amendments 11 and 12 moved—[Alex Neil]—and agreed to.
After section 26A
At stage 2, I sought to introduce an amendment that would give some reassurance to those, including Local Government and Communities Committee members, who had concerns about the measures being introduced by the section on overcrowding. We all want overcrowding to be tackled and ended, but there were concerns about unintended consequences, including homelessness.
My amendment at stage 2 sought to introduce a review of the measures after three years. However, it was pointed out to me that my amendment as worded may also have had unintended consequences and, having had the principle accepted by the committee, I was happy to withdraw my amendment.
I am grateful to the minister and his officials for meeting me and assisting in the drafting of amendment 2. I am also grateful to Shelter and NUS Scotland for supporting it. I think that the Convention of Scottish Local Authorities has raised fears about unnecessary burdens that are grossly overexaggerated, and I hope that it will reconsider its position on the amendment.
I am supportive of measures to tackle overcrowding, and amendment 2 seeks merely a review by the Scottish Government after three years to ensure that those measures are working as intended.
I move amendment 2.
I thank Mary Mulligan for moving amendment 2, which I support. I have previously told the Local Government and Communities Committee that the Scottish Government would monitor the number of overcrowding statutory notices issued and review their effectiveness in dealing with overcrowding and their impact on homelessness.
As I made clear at stage 2, I consider it to be sensible to reassure those who have concerns about overcrowding statutory notices by going further and placing a statutory requirement on ministers to publish a three-yearly report on the number of notices served and their effects. The power for ministers to obtain the necessary information from local authorities will be useful in enabling the completion of the report. I therefore welcome amendment 2 and invite the Parliament to support it.
Amendment 2 agreed to.
Section 29—Tenant information packs
Amendment 14 moved—[Alex Neil]—and agreed to.