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Publication - Research Publication

Energy efficiency and condition standards in private rented housing: consultation analysis

Published: 14 Nov 2017
Part of:
Housing, Research
ISBN:
9781788513906

This report presents an analysis of responses to the consultation on energy efficiency and condition standards in private rented housing.

147 page PDF

1.2MB

147 page PDF

1.2MB

Contents
Energy efficiency and condition standards in private rented housing: consultation analysis
What happens if the property doesn't meet the standard?

147 page PDF

1.2MB

What happens if the property doesn't meet the standard?

Question 1.18 - Do you think that local authorities should be responsible for enforcing the standard? If not, why not, and what alternative would you suggest?

Table 19: Question 1.18 – Responses by type of respondent.

Type of respondent Yes No Don't know Not answered Total
Organisations:
Energy-related private sector 4   1   5
Landlord 12 6 1 9 28
Letting agents etc. 7 2 1 2 12
Local Authority 16 3 3   22
Other 1   3 4
Professional body 11 2 3 10 26
Third sector 6 1 1 3 11
Total organisations 57 14 10 27 108
% of organisations answering 70% 17% 12% 100%
Individuals 40 25 16 9 90
% of individuals answering 49% 31% 20% 100%
All respondents 97 39 26 36 198
% of all respondents 49% 20% 13% 18% 100%
% of all those answering 60% 24% 16% 100%

A majority of respondents, 60% of those answering the question, agreed that local authorities should be responsible for enforcing the standard, 24% disagreed and 16% said they did not know. Overall, organisational respondents were more likely to agree than individuals (70% and 49% respectively).

Around 110 respondents made an additional comment. Respondents who agreed often pointed to local authorities having an understanding of local issues and being the sensible choice given their existing enforcement role within the PRS. However, the most frequent point, made by around 2 in 5 respondents irrespective of their answer to the Yes/No question, was that local authorities need to be provided with additional resources to take on this additional work, or that they lack the capacity to do it at present. It was also suggested that there would need to be a consistent approach across local authorities and that the Scottish Government should issue guidance to ensure this.

A small number of respondents referred to the existing Landlord Registration scheme as a potential route for local authority enforcement of minimum energy efficiency standards, or that there could be opportunities to build on existing processes or to join up enforcement activities. It was also suggested, however, that proactive monitoring of the energy efficiency standard is apparently at odds with 'light touch' guidance for local authorities with respect to landlord registration and that it would not be a simple process to add energy efficiency regulation to the existing system.

Around 1 in 10 respondents suggested an alternative approach, that the repairing standard should be amended to include the minimum energy efficiency requirement, and that enforcement or redress should then be via the Housing and Property Chamber of the FTT. It was suggested local authority officers could utilise third party reporting to refer a case to the FTT where they become aware that a landlord has failed to comply or where a tenant feels unable to do so themselves. The FTT can then issue an enforcement order or rent penalty notice. A small number of respondents who accepted that there are reasons not to use the repairing standard as a route for enforcement at present suggested consideration should be given to taking this approach at a later date, possibly through the forthcoming Warm Homes Bill.

Other suggestions, made by only one or a small number of respondents, included that:

  • Potential or perceived conflicts of interest between local authority enforcement and revenue generation activities that might undermine landlord trust must be avoided.
  • The Scottish Government should consider alternative means of enforcing compliance either directly or through an agency.
  • Enforcement could be outsourced to alternative organisations or professionals including: the National House Building Council; the Carbon Trust; the Scottish Association of Landlords; or to Chartered Surveyors.
  • The role of letting agents should be considered further. Reference was made to obligations set out in the new code of practice for letting agents that require an agent who knows their client is not meeting legal obligations as a landlord to inform the appropriate authorities.
  • There should be ongoing opportunities for engagement between local authorities and landlords before enforcement is considered. A pilot project providing Private Landlord Support Officers in two council areas was cited as a possible model.

Question 1.19 - Do you think that the penalty for not complying with the standard should be a civil fine against the owner? If not, why not, and what alternative would you suggest?

Table 20: Question 1.19 – Responses by type of respondent.

Type of respondent Yes No Don't know Not answered Total
Organisations:
Energy-related private sector 4   1   5
Landlord 7 8 2 11 28
Letting agents etc. 5 4 1 2 12
Local Authority 11 6 4 1 22
Other   4 4
Professional body 10 4 1 11 26
Third sector 3 2   6 11
Total organisations 40 24 9 35 108
% of organisations answering 55% 33% 12% 100%
Individuals 21 41 18 10 90
% of individuals answering 26% 51% 23% 100%
All respondents 61 65 27 45 198
% of all respondents 31% 33% 14% 23% 100%
% of all those answering 40% 42% 18% 100%

Views were mixed at this question. The largest proportion of respondents, 42% of those answering the question, did not think that the penalty for not complying with the standard should be a civil fine against the owner. However, 40% thought it should and 18% said they did not know. Overall, individual respondents were more likely to disagree than organisational respondents (51% and 33% respectively). Amongst organisational respondents, landlords were the only group in which more respondents disagreed than agreed.

The Shelter Scotland report asked private tenants if they thought fines are the appropriate penalty. Of the 19 tenants who answered the question, nine said they are, three said they are not and two said they did not know. A further five tenants suggested there should be another approach. In their further comments, some agreed that removing a landlord's registration might be an appropriate measure. Others commented on the possibility of rent-free windows for tenants until works are completed.

Around 100 respondents made an additional comment. Respondents who did not agree gave a variety of reasons – from not believing there should be minimum energy standards or related fines, to not considering the proposed penalties to be sufficient.

Some respondents argued that the Scottish Government should set standards at achievable levels, should allow a longer time frame for implementation of standards, or should seek to incentivise compliance rather than imposing fines. It was also suggested that there should be a procedure for reviewing the circumstances of individual cases, including the improvement measures that have been implemented and the affordability of compliance before penalties are imposed. The procedure when a landlord is in financial difficulties was also queried: it was noted that a mortgage lender repossessing property would not expect to be responsible for fines levied against a borrower.

Many respondents suggested that rent penalty notices would be preferable to fines sometimes making related points about the desirability of using established enforcement procedures available under the repairing standard. It was noted that referral to the Housing and Property Chamber of the FTT could result in a Repairing Standard Enforcement Order being issued, and that failure to comply with this would be a criminal offence which could lead to prosecution, and revocation of a landlord's registration status.

It was also argued that civil fines are expensive to enforce and cases can take a long time to come to Court. Further, respondents questioned what would happen to the proceeds of fines including a suggestion there could be resentment if a local authority appears to be making money from fines.

Respondents also questioned what is expected to happen if the fine is not paid, or if it is paid but the landlord still fails to comply with the minimum energy standard. It was noted that levels of fines proposed fall well below the £5,000 expenditure cap and it was argued that such fines could be accepted as a cost of doing business.

Other suggestions made by respondents who did not agree that the penalty should be a civil fine included:

  • Suspend or remove landlords from the Landlord Registration register.
  • Reduce Local Housing Allowance in line with the EPC rating.
  • Increase council tax on the property, and ensure this is not passed on to the tenant.
  • In the case of agricultural tenancies there should be a trigger for Right to Buy under the Land Reform Act 2016.

Respondents who agreed that civil fines would be appropriate often made limited further comment. Points raised included:

  • Fines should be a last resort and there should be a notification / grace period before fines are imposed. There should be circumstances where there is flexibility.
  • Rent penalty notices or a rent cap could also be imposed, and landlord registration revoked.
  • There should be consistency with penalties under the repairing standard.
  • Consideration could be given to fining letting agents as well as landlords.

Question 1.20 - We have proposed the following fines:

£500 for failing to have a minimum standards assessment;

£1000 for failing to carry out the works within six months of the assessment.

Do you think these proposed fines are appropriate and proportionate?

Please explain your answer.

Table 21: Question 1.20 – Responses by type of respondent.

Type of respondent Yes No Don't know Not answered Total
Organisations:
Energy-related private sector 3 1   1 5
Landlord 5 10 3 10 28
Letting agents etc. 4 3 2 3 12
Local Authority 8 5 6 3 22
Other 1   3 4
Professional body 8 4 3 11 26
Third sector 3 3   5 11
Total organisations 32 26 14 36 108
% of organisations answering 44% 36% 19% 100%
Individuals 15 58 9 8 90
% of individuals answering 18% 71% 11% 100%
All respondents 47 84 23 44 198
% of all respondents 24% 42% 12% 22% 100%
% of all those answering 31% 55% 15% 100%

A majority of respondents, 55% of those answering the question, did not think that the proposed fines are appropriate and proportionate. However, 31% thought they were and 15% said they did not know. Overall, individual respondents were more likely to disagree than organisational respondents (71% and 36% respectively). Amongst organisational respondents, landlords were the only group in which more respondents disagreed than agreed.

As noted at the previous question, the Shelter Scotland report asked private tenants if they thought the proposed fines were appropriate and proportionate. Of the 24 private tenants who answered this question, 10 thought they were, 12 thought they were not and two tenants said they did not know.

Around 130 respondents made an additional comment. The issues raised most frequently were:

  • 6 months is too short a period for the landlord to carry out the work. It was sometimes suggested that 12 months would be more appropriate.
  • The proposed levels of fines are too high.
  • The proposed levels of fines are potentially lower than the cost of carrying out work and may be too low to incentivise compliance.
  • Fines could or should be related to rent levels rather than being at a flat rate.
  • Rent penalty notices would be preferable to fines.

The suggestion that fines are too high was made exclusively by respondents who had said they did not think the proposed fines appropriate or proportionate. The other points listed above were made by respondents irrespective of their answer to the Yes/No question.

Small numbers of respondents also made specific comments on the relative levels of the two proposed penalties including:

  • The fine for failing to have an MSA should be £1,000 and for not doing the work £3,000.
  • Both fines should be £500, or both should be the same.
  • The proposals indicate that someone who has a MSA carried out but does not then carry out the work will be fined £1,000, while someone who does not get an MSA carried out or do any work will be fined £500. This does not seem reasonable.
  • The MSA should not be compulsory, so no fine should be attached. The fine for failing to bring the property up to the required standard should be higher.

Alternative suggestions on the level of fines included:

  • Fines could be scaled according to number of properties a landlord has so that a larger business faces larger fines.
  • Fines could be related to the cost of work required.
  • The fines proposed are set too low to cover court action to recover unpaid fines and should be seen in the context of the resources needed for a local authority to pursue action against an owner.

Clarification was sought on what it expected to happen next, as it was suggested there is nothing in the consultation paper to explain whether these are one-off fines or what action is expected on repeat offenders. Suggestions included:

  • There should be a daily rate for the period of non-compliance.
  • The fine should be £100 per month of non-compliance.
  • There could be provision for repeat fines to be levied at 6 to 12-month intervals or on an annual basis.
  • If continued non-compliance is harming the occupant, there should be a provision to allow a local authority to instruct the works and recover costs through the civil courts.
  • Ultimately, repeat offenders could be removed from the Landlord Registration register and so would not be able rent out property.

At Question 1.21 the consultation paper asks about exceptions where a longer timeframe should be allowed for compliance. The proposal is that it should be open to the local authority to give the owner longer to carry out the required improvements if:

  • There are legal reasons why the work cannot take place. Examples given were where a sitting tenant refuses to grant permission to carry out the work or assessment, or where there are protected species that cannot be disturbed.
  • A property will be part of an agreed local authority led area based scheme which will bring the property up to the required standard but will not complete within the 6-month period.
  • There is evidence of a lack of capacity in the local workforce to carry out the assessment in time, or to complete the work within six months of the minimum standards assessment.

Question 1.21 - We have proposed some specific situations where owners should have longer than six months to bring their properties up to the minimum standard. Do you have any comments on these proposed situations in relation to:

(a) The proposed reasons?

(b) What evidence you think the landlord would need to provide for each?

(c) Should there be other situations, such as the completion of condition works?

Around 125 respondents answered Question 1.21. General comments, collectively made by around 1 in 6 respondents, included that the proposals seem to be sensible, reasonable, practical or appropriate. Flexibility or discretion on the part of the enforcing body was welcomed by many respondents, and this sometimes extended to a view that each case should be assessed on its own merit.

It was also suggested, however, that there must be consistency of application across local authorities, and it was noted that the degree of discretion proposed creates uncertainty for local authorities, requiring that clear statutory guidance should be in place. The importance of enforcement was also highlighted, as was adequate funding for the enforcing authority.

Proposed reasons

Many respondents who commented specifically on the proposed reasons given in the consultation paper expressed their agreement, including that these are fair, reasonable, obvious or valid, and enforceable. It was, however, suggested they should take greater account of the potential challenges faced in remote rural areas.

Legal reasons

Sitting tenant refuses to give access

This provision was welcomed by several respondents although further comments illustrated differing views including:

  • There should be a sensible deadline.
  • An extension of a further 6 months could be appropriate.
  • The extension should be extended until the tenant leaves.

Other respondents suggested a tenant would not be able to refuse reasonable access if energy efficiency requirements were brought under the repairing standard and enforced by the FTT.

Other points made regarding discretion to allow longer time related to tenants included that extra time might be required if a sitting tenant needs to find alternative accommodation, and that work should not be required while a tenant is not paying rent or is under eviction for non-payment.

Protected species cannot be disturbed

The inclusion of protected species attracted very few comments, but was welcomed.

Property will be part of a local authority led area based scheme

There were few comments on area based schemes other than that this provision is reasonable, or welcome.

It was also suggested that where a landlord has a programme of works to improve their housing stock which can be evidenced to the local authority, this should be considered a qualifying scheme.

Lack of capacity

Opinions were somewhat divided on inclusion of lack of capacity. Several respondents suggested this is not a reasonable excuse given the lead time for the regulations while others who agreed with its inclusion also noted agreement with the expectation in the consultation paper that this will not be problem in view of the lead time. It was also suggested that lack of capacity may be difficult to prove or that it should only be permitted as a reason for allowing additional time if an agreed mechanism for evidencing it is agreed nationally. Further points included that:

  • What is meant by "local" should be defined.
  • PAS2030 accreditation may be an issue, potentially limiting the number of approved installers.
  • Both that rurality could be cited as a barrier, but also that additional time should only be allowed in rural areas that already have these issues or for properties that require specific skills or products which are in short supply.
  • This should be limited to measures that have been independently verified as being technically difficult to install in six months.

Evidence required

To minimise pressure on local authorities it was suggested that the onus should be on the landlord to provide evidence. Comments on such evidence were sometimes general in nature – such as that it should include the assessor's report, be in writing and independent or be verified by an independent body. It was also suggested that in all cases, the landlord should provide detailed information on how the issue will be overcome so a reasonable timetable for the upgrade can be agreed.

The importance of ensuring consistency between local authorities was also noted and guidance on typical exception scenarios and the standard of evidence to be retained was requested.

Legal reasons

Sitting tenant refuses to give access

Suggestions included:

  • Evidence relating to the activities undertaken by the owner to gain permission for the assessment to be carried out or the work to be carried out.
  • Evidence that the tenant refuses to grant permission to carry out the work or the assessment. Preferably a signed letter from the tenant.
  • Documentary evidence showing attempts to gain entry and paperwork from Housing & Property Chamber showing Right of Entry procedure has been applied for.

Protected species cannot be disturbed

Suggestions included:

  • A report from a specialist on protected species confirming presence and when/if it is likely work could commence. It was suggested this report could impose significant additional costs on rural landlords and might be difficult to obtain quickly.
  • Confirmation from Scottish Natural Heritage that a protected species is present and cannot be disturbed, including when improvements might be able to be made and how improvements can be made.

Property will be part of a local authority led area based scheme

Suggestions included:

  • Confirmation from the local authority that an agreed area based scheme will cover the relevant property.
  • Confirmation of the timescales associated with the scheme.
  • Confirmation that the owner has agreed to be part of the scheme.

Limited capacity

Several respondents acknowledged that this could be difficult. Although it was sometimes suggested evidence could be in the form of letters from suppliers or contractors who have been approached for quotations it was also observed that builders are unlikely to respond to requests to confirm in writing that they are too busy to carry out work. Evidence of attempting to achieve a number of quotes was suggested or providing correspondence from assessors/contractors confirming the earliest date that they can carry out an assessment or start work.

Other situations such as the completion of condition works

There was support for other situations qualifying for an extension, although it was suggested that the list should be kept to a minimum to reduce the administrative burden on local authorities.

With respect to completion of condition works, most respondents who commented supported these being included. However, an alternative view was also expressed, that the lead in period is sufficient to allow for these to be planned and completed, with an exception made for unforeseen condition issues found when implementing energy efficiency measures.

Respondents also suggested other situations that they thought should attract discretion to allow more than 6 months to complete works required to bring their property up to the minimum standard. These included:

  • Work on listed buildings.
  • Work subject to planning constraints or building warrants or in conservation areas.
  • Common works in buildings with multiple owners.
  • Cost - including allowing the landlord time to raise funds.
  • Weather conditions/time of year.
  • Work on non-traditional properties.
  • Measures that have been independently verified as bringing the property up to a much higher standard (B or A).
  • Special tenancy regimes where the tenant may be responsible for carrying out work.
  • Where the property would be devalued by the works by more than 5%. This abeyance mirrors that which is in force in England and Wales.
  • Where there is an acute shortage of private rented accommodation, to the extent that there is a localised pressure on homelessness and these regulations risk making homes obsolete.

Question 1.22 - We have proposed some situations where we think owners should not be penalised for not carrying out the full improvement identified by the minimum standards assessment. Do you have any comments on these in relation to:

(a) Technical reasons

(b) Legal reasons

(c) Excessive cost reasons

(d) The proposal that this would remain valid for a period of not more than 5 years?

Around 120 respondents answered Question 1.22. A number of respondents indicated broad agreement with the proposals, sometimes making little further comment. Others answered each part of the question separately.

General comments at Question 1.22 included that:

  • The approach taken in relaxing standards in specific circumstances, rather than granting exemptions is welcome or, alternatively, that there should be complete exemptions in some cases. Small but equivalent numbers of respondents made these points.
  • The onus should be on the landlord to provide evidence in support of a request for an exception.
  • Where an exception is granted it is important that other measures specified in the MSA are still carried out.
  • Uniform application of exceptions policies across local authorities will be important and definitive guidance will be needed. Sampling of cases between local authority areas was suggested as a mean of monitoring consistency.
  • Local authorities will need appropriate resources to manage the exceptions policy.

Other general suggestions included that terms such as 'technical' or 'excessive cost' should be defined and that there should be an appeals/ arbitration mechanism. From the perspective of a landlord it was suggested these exceptions provides a good safety net which should be made clear from outset, while it was argued that prospective tenants should be provided with information on exceptions that might apply to a particular building and prevent improvements, so they can make an informed choice.

Technical reasons

Respondents often agreed that there are technical reasons why a landlord should not be penalised for failing to carry out the full improvements identified in the MSA. Very few disagreed, arguing that if a property cannot be brought to a suitable standard it should not be available for rent. Other respondents noted that the MSA should only specify technical measures that are appropriate to the property, or that any technical difficulties should be outlined in the report.

Relatively few additional points were made with respect to technical reasons. Suggestions included:

  • Technical reasons rarely pose an insurmountable barrier.
  • If it becomes evident that a recommended measure is not suitable there should be a mechanism for this to be reassessed. All possible options should be exhausted before an exception is sought.
  • With respect to the example of bats used in the consultation paper it was suggested that advice from the Bat Conservation Trust suggests this is an issue about timing, rather than a change in the standard.

Legal reasons

In many cases respondents who agreed with the technical reasons for exceptions also agreed with the legal grounds proposed.

With respect to the example of communal works given in the consultation paper, several respondents agreed this to be appropriate, and that the landlord should not have to proceed unless all other owners agree, or unless the local authority is willing to exercise its powers to pay the missing shares for non-consenting owners. It was also suggested, however, that there should not be an exception if measures could be enforced using powers under the Tenements (Scotland) Act.

Otherwise comments on legal reasons largely referred to listed buildings and planning consents, including:

  • Work with Historic Environment Scotland should seek to minimise listed building consents for energy improvement works, and to ensure that local authority planning departments are taking note of the latest guidance from Historic Environment Scotland.
  • It should not be necessary to produce evidence of a failed planning application if the proposed work is clearly in breach of planning policy.
  • Listed status should not be used as excuse for doing nothing.

Excessive cost reasons

The Shelter Scotland report asked if the proposed cost cap was reasonable. Of the 23 private tenants who answered the question, 14 said it seemed reasonable and four said it was expecting landlords to pay too much. Five tenants said landlords should have to pay more to improve the property.

Otherwise, although there was a significant level of agreement with the excessive cost reasons set out in the consultation paper, several respondents disagreed and this was the exception that attracted the highest level of comment. General remarks included that since additional funding may be available, owners should be required to explore funding options before applying for exception, that the Scottish Government should develop a mechanism to ensure impartial quotes for the cost of improvements are received, or that a cost cap should only be allowed if the rent is capped, with the postcode average minus 10% suggested.

Level of the cost cap

A number of respondents questioned the figures for estimated costs presented in paragraph 105 of the consultation paper, sometimes casting doubt on the modelling involved. It was suggested that:

  • £1,100 is a significant underestimate of the cost to bring a property up to band E, particularly for rural property.
  • There only being 200 properties that would require more than £5,000 to bring them up to band E is also an underestimate, not credible, and should be revisited. Respondents sometimes cited findings from their own surveys to support their views.

Other suggestions on the level of the cost cap included that rather than being set at a flat rate of £5,000 the cap should be based on rental value, property value, the size of a landlord's organisation, or a percentage of the annual Local Housing Allowance rate.

Other points on the cost cap included:

  • Poor quality property may need work above £5,000. The landlord should do work up to £5,000 then be allowed additional time to bring the property up to band E.
  • The cap should relate to the cost the owner is expected to pay and should be in addition to any grant funding.
  • Whatever the level of the cap there should be adequate financial support.
  • The £5,000 cap is too high, and £3,000 is more appropriate taking into account ancillary costs and loss of rental income.
  • Allowance should be made for previous investment in the energy efficiency of the property made prior to introduction of the regulations. It was suggested that expenditure after the date when the consultation paper was published should count towards the cost cap.

There was uncertainty as to whether:

  • The intention is that a landlord could be expected to spend £5,000 every 5 years?
  • The landlord is expected to spend £5,000 before the exception is granted?

What can be included

The consultation paper proposes that cost of the energy efficiency measures identified by the assessment, and the cost of the MSA itself should be included in the cost cap, but not the cost of gaining planning permission or any incidental work such as redecorating or condition works. Several respondents disagreed with this, arguing that all costs directly associated with installing energy efficiency measures should be included, including redecoration if this would not otherwise be required, and that planning application fees should also be allowed.

It was also suggested that the cost cap should include VAT.

5-year validity

Respondents who commented on proposal that the exception should apply for 5 years often agreed. However, it was also observed that 5 years is a long time for a tenant to live in a substandard property.

Alternative suggestions, each made by only one or a very small number of respondents) included:

  • 1 year.
  • 3 years, which would be more appropriate if enforcement is linked to the Landlord Registration system.
  • 5 years, with the option to grant a further 5 years.
  • 7 or 8 years: it was suggested little will change particularly where age and construction type are factors, and that a longer period would also reduce the administrative load on local authorities.
  • 10 years, which would be in line with the length of the EPC.
  • A discretionary period, reviewed depending on circumstances.
  • An indefinite period, for example for listed buildings.

Question 1.23 - For local authorities to be able to enforce and monitor the proposed minimum standards:

(a) What processes do you think local authorities will need to have in place for

(i) normal compliance

(ii) monitoring extended periods for compliance

(iii) monitoring situations where not all of the improvements are made?

(b) What implications would this have for local authorities?

Around 110 respondents answered Question 1.23 although several respondents simply expressed a view that this is a matter for local authorities. Others suggested that the question cannot be answered until details of the regulatory regime are established or that further consideration should be given to enforcement through the Housing and Property Chamber of the FTT, rather than developing a new enforcement mechanism via local authorities.

In terms of the processes that will need to be in place, it was suggested these should be developed as best practice rather than being prescribed, and that local authorities should have the flexibility to implement them in the way that best suits their existing structures. Development of standardised processes and a national database were also suggested as a means of saving time and resources for individual local authorities, and creating a consistent approach for landlords.

Other suggestions included that local authorities could or should have: a new compliance department; access to assessors with training in traditional buildings to provide oversight; a panel to assess cases individually; a forum to work with landlords; and publicity for the scheme and provision of information and advice services. It was also suggested that if the policy is to be successful, enforcement is necessary.

Whatever the processes adopted the avoidance of any real or perceived conflict between local authority enforcement and income generation was urged.

Normal compliance

As a general point, it was noted that the processes adopted will depend on whether self-certification is envisaged.

It was suggested that the existing Landlord Registration system could be modified to record normal compliance with examples given including a field requesting the EPC rating or a requirement to declare compliance with the EPC and the repairing standard for all properties rented. It was also noted that if the Landlord Registration system is used, it will be important to consider how properties are dealt with that are exempt from landlord registration, but still require an EPC and MSA.

With respect to determining when there is a change of tenancy, it was noted that:

  • Local authorities are not currently notified of this.
  • Although it may be possible to extract this information from changes in council tax records, the Landlord Registration system is not integrated with the Council Tax system and local authorities would require information sharing protocols to access information such as council tax or safe deposit scheme records.

Checks on properties being marketed for rent with an EPC of below E were also suggested as a means of identifying non-compliant properties.

It was also noted that, in the event of non-compliance, processes to decide on and impose fines, and also to review these decisions would be required. Where fines were not paid, systems to take court action to recover unpaid fines would also be needed.

Monitoring extended period s for compliance

It was suggested that local authorities would require a database to record properties that have been allowed an extended period for compliance. Several respondents agreed with the suggestion in the consultation paper that the EPC register could be modified to include a field showing that a property is compliant.

Where an exception is nearing the end of the extended period, there would need to be a mechanism in place to trigger activity by the local authority.

Monitoring situations where not all of the improvements are made

Suggestions were essentially as for extended periods.

What implications would this have for local authorities?

Many respondents identified increased cost or funding implications for local authorities, often suggesting additional resources will be required, including for additional staff and IT systems. Respondents sometimes also suggested this might also have implications for resources available for other local authority services. One Professional Body respondent called for enforcement by local authorities to be fully funded by the Scottish Government arguing that the regulations cannot be implemented properly without being fully resourced, both for administering enforcement and also for any resulting court action.

Local authority respondents sometimes noted the current landlord registration teams monitor rented properties on a light touch basis and are staffed accordingly. It was also suggested that staff currently administering these systems will not be familiar with energy or building technology issues. Almost all local authority respondents stated that additional resources would be required.

Question 1.24 - What opportunities do you think there are to combine enforcement of minimum energy efficiency standards with other action in the private rented sector? Please explain your answers.

Around 95 respondents answered Question 1.24. The most frequently suggested opportunities involved:

  • Alignment with or enforcement of the repairing standard.
  • Landlord registration.

House in Multiple Occupation ( HMO) licencing was also mentioned, but by a much smaller number of respondents.

References to the repairing standard sometimes repeated earlier calls that this should be amended to incorporate energy efficiency requirements, allowing enforcement via the FTT. It was also suggested that local authority inspections associated with the minimum energy standard will give the opportunity to flag up failures to meet the repairing standard, allowing for third party reporting or that repair issues will otherwise come to light through enforcement of minimum energy standards and would avoid the property requiring two sets of work.

It was also suggested that if funding and staffing for greater enforcement and monitoring were addressed then the PRS as a whole will benefit but also that there is a risk that the resources required to monitor the energy efficiency standard will mean all other enforcement activity will reduce significantly.

Local authority respondents sometimes described elements of their current enforcement practice, both noting opportunities presented to combine these with action on enforcement of minimum energy efficiency standards and highlighting the increased workload that could result from a requirement to verify all properties. Comments sometimes illustrated a point made by other respondents, that local authorities work in slightly different ways.

With reference to linking enforcement to the landlord registration system it was suggested that a review would be needed if the current light-touch enforcement regime was changed in favour of a more proactive approach. Such a shift to a more proactive approach was encouraged by other respondents. It was also suggested that at the point of registration and re-registration landlords could be required to provide confirmation, and ideally evidence, that their properties are up to standard in several areas. The Electrical Installation Condition Report, Gas Safety Certificate and EPC/ MSA for each property were suggested. This could be combined with inspection activity targeted where a landlord has failed to produce all the required documentation or on a random sample of properties, or fines could be imposed if all documents were not in place.

It was also suggested that enforcement of minimum efficiency standards should be embedded within the key statutory, regulatory and strategic drivers for the sector and that where there are set criteria for compliance with an agreed standard, local authorities should evidence how they are delivering upon this, and their key approaches should be set out as part of service priorities and measured through reported performance.


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