5. Duty to provide advice and assistance
Local authorities have a duty to provide advice and assistance to tenants and landlords in certain circumstances.
Details of the advice that should be given to tenants and landlords are set out in
Landlords must be provided with general advice about what constitutes good practice in the letting of houses, if such advice has not already been provided as part of the process leading to the making of an application. Advice given could extend beyond landlord registration to encompass other aspects of letting houses, such as energy efficiency, tenancy deposit schemes and landlord accreditation.
If a local authority proposes to refuse or revoke an application and it considers that the relevant person can or might be able to take action to avert the proposed refusal or revocation, they should give advice on the appropriate action to take. In practical terms this may be a referral to dedicated training available through the local authority or organisations such as Landlord Accreditation Scotland. Alternatively, where the local authority has concerns about the performance of a landlord, for example in the maintenance of the property or management of the tenancy, or where the landlord is living overseas and is not contactable, it may be appropriate to suggest that the landlord appoints a registered agent in order to meet the requirements of registration.
Tenants should be provided with advice and information in respect of any decision to refuse or revoke a registration and to issue a rent penalty notice. Advice and assistance to tenants should include information on the general position of tenants or occupants where a landlord decides to terminate the tenancy; information on other relevant sources of individual advice (such as money and benefits advice); and details of how to access assistance that could be available from a local authority to prevent or address homelessness.
Local authorities should ensure that landlords and tenants, whose first language is not English, are able to access information about their rights and responsibilities by providing written information in other languages.
The duty to provide advice and assistance does not extend to the provision of legal advice. If such a request is made, the local authority should consider signposting the relevant person to appropriate advice agencies or organisations. A list of useful contacts is contained in Annex D.
Case studies 3 - Duty to provide advice and assistance
Dundee City Council and Highland Council alongside Lochaber Housing Association have been operating a joint project with Shelter Scotland to provide advice and support to help landlords meet their legal duties and improve day to day practice.
See Annex C – Case Studies 3 for further detail on this project and other approaches taken by South Ayrshire, South Lanarkshire and Aberdeenshire Councils.
"Action plan" is a term that is used by some local authorities to describe an intervention, as part of their help and advice role, to support landlords. They are used by some local authorities to help landlords to improve their practice so that they can meet the requirements for registration and may be used in conjunction with the requirement to undertake training to ensure the landlord is familiar with their legal responsibilities. The legal basis for providing advice and assistance where an applicant is at risk of not meeting registration requirements is set out in SSI 2005/557.
For action plans to be used successfully, local authorities should establish clear procedures that:
- make it clear to the landlord what the issue is;
- set out the improvement that is required (though where there are options to achieve this the action plan need not be prescriptive on how the improvement is achieved);
- state a reasonable time-scale for the landlord to resolve the problem; and
- make clear the consequences of failing to comply.
In most cases the landlord will comply with the requirements of the action plan. However, should this not be the case the local authority should consider reviewing the landlord's fit and proper person status. Where there is evidence that raises doubt as to the fit and proper person status, there should be clear escalation procedures to deal with the issue. These should include appropriate arrangements for refusal or revocation of fit and proper person status by senior managers or by a referral to a committee or scrutiny panel.
The process of preparing action plans should involve colleagues from other services where necessary. For example an action plan involving noise and refuse nuisance might typically be supported with input from Antisocial Behaviour and Environmental Health teams within the local authority.
See Annex C – Case Studies 4 for examples of how action plans are used by East Ayrshire and Fife Councils.
Engaging with landlords
Local authorities should consider a range of actions to help landlords reach the standards required in privately letting properties, and to keep them informed of changes in legislation.
Examples of these actions include:
- inviting landlords to attend a regular landlord forum;
- promoting training programmes organised by various representative organisations;
- providing good practice information through a landlord checklist (see Annex C - Case study 3.);
- providing updates on relevant legislative changes through electronic newsletters or the Council website;
- publicising examples of successful enforcement activity; and
- promoting landlord accreditation schemes.
These measures, as part of the wider help and advice role, play a significant part in informing landlords, encouraging them to comply with their legal duties and improve practice. It is for individual authorities to decide what the most appropriate means of engagement with landlords in their area should be. For example, landlord forums may not be well attended in some geographical areas but it might be possible to run a webinar that local landlords can sign up for. However, all local authorities should consider using the register to proactively communicate with landlords/tenants to provide advice and assistance. Whilst data protection principles must always be followed, many local authorities consider that the duty to provide advice and assistance does provide the legal basis for such an approach.
Where pressures on resources make it difficult for individual authorities to engage with landlords, the value of collaborating on a regional basis to deliver joint communications to landlords should be considered.
Local authorities proactively engaging with landlords by issuing newsletters, promoting training, good practice and updates on changes in legislation include Aberdeenshire; Dumfries and Galloway; Dundee City; East Ayrshire; Glasgow City; Moray; North Lanarkshire and Renfrewshire.
Edinburgh City Council publicises landlord registration enforcement successes on their news pages:
East Ayrshire Council shares resources with other local authorities to organise an Ayrshire wide landlord conference. Responsibility for organisation of the conference is rotated.
Minority ethnic and migrant communities
In some locations, particularly in cities and larger towns there is evidence of landlords from minority ethnic backgrounds letting primarily to members of their own community. In some cases, landlords may target specific communities, including EU migrants as part of their overall business model.
There is no reason to believe that these landlords are less likely to be "fit and proper" than other landlords. However, engagement with them and their tenants can present particular challenges especially where English is not their first language.
It will be for each local authority to develop its approach to risk in such circumstances and to ensure that they have access to any necessary translation or other specialist services that may be required to support effective communication. The overriding principle should be that the ethnic origin of either tenant or landlord should not have a bearing on the requirements for compliance or the extent of the protection offered by landlord registration.
Local authorities should be aware of the equality duty which was created by the Equality Act 2010 and which came into force in April 2011. The general equality duty is set out in section 149 of the Equality Act and requires public authorities to have due regard to the need to eliminate discrimination; advance equality of opportunity; and foster good relations – when making decisions and setting policies. To do this, it is necessary for the organisation to understand the potential effects of its activities on different people. Where these are not immediately apparent, it may be necessary to carry out some form of assessment or analysis, in order to better understand them.
Email: Gary Mitchell, Gary.firstname.lastname@example.org
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House