Monitoring of Legal Services – Property, Construction and Planning – Landlord and Tenant Problems

The Scottish Legal Aid Board (SLAB) was given a role in monitoring the availability and accessibility of legal services in the Legal Services (Scotland) Act 2010. Our role is to ascertain whether people or organisations are experiencing systemic problems getting the help they need from solicitors, whether paid for by legal aid or on a private basis.

This paper sets out data collected in relation to landlord and tenant problems, and SLAB’s initial assessment for the purposes of its monitoring duty.

Feedback will help us to develop our overall understanding of possible problems with access to solicitors for contentious landlord and tenant issues.

Overall context: legal services for landlord and tenant problems in Scotland

The category of landlord and tenant problems will include those civil problems which occur in both the private rented sector, and the social rented sector (including properties let by both social landlords and local authorities). Issues common to both may include disputes over property disrepair or maintenance; deposit disputes; and security of tenure. For the purposes of this paper, rent arrears are excluded, as this issue has been examined separately in previous monitoring reports.[1]

The results of the 2012/13 SCJS survey indicate that of those who experienced civil problems in the past 3 years, 6% experienced problems relating to housing[2]. Clearly, the category ‘problems to do with housing’ in the SCJS will include landlord and tenant problems, but will also include a considerably wider range of issues (for instance, any issues in the homeowner sector, and arrears problems). As such, we expect that only a relatively small part of this figure will relate to landlord and tenant problems as defined above. However, overall, ‘problems to do with housing’ were amongst the more common civil problems experienced.

The 2010/11 Scottish Crime and Justice Survey results show that for those who sought advice to solve housing problems, only 5% sought advice from a solicitor, whilst in comparison, 47% approached a local authority.[3] The Scottish Government noted in their consultation on the introduction of a new housing panel (2013) that the majority of housing disputes are resolved between the parties without recourse to a court.[4]

Data provided by CAS to SLAB on the volume of issues presented to CABx in 2013-14 states that there were approximately 14,000 individual, new issues in relation to private rented housing, social rented housing, and local authority housing combined. In addition, the Citizens Advice helpline received around 4,500 calls in relation to the above issues.

The CAS Consumer Snapshot, 2013/14, places ‘private rented housing’ as the 4th most prevalent consumer issue, when visits to CABx and calls to the Citizens Advice consumer helpline are combined, whilst building repairs/improvements (which will also be relevant to the owner-occupier sector) was the 8th most prevalent issue [5]

The private rented sector

The chart below illustrates the breakdown of housing issues (excluding arrears and repeat contacts) presented to CABx in 2013-14. It demonstrates the extent to which issues with the private rented sector (PRS), registered social landlord (RSL) and local authority housing properties form a substantial part of total housing issues seen by CABx: 44%.

Chart 1 - CABx Housing Issues, 2013-14[6]

The chart above illustrates that the PRS is the single largest source of housing problems presented to CABx. One relevant contributing factor to demand for advice in this sector may be the significant increase in numbers of people living in the private rented sector; as a proportion of all household in Scotland, those in the PRS have more than doubled in the past 10 years, to 13% of housing stock.[7] However, given this figure, the volume of problems from the PRS seen by CABx is highly disproportionate to the actual size of the sector.

The 2012/13 SCJS also provides a breakdown of the civil problems experienced by tenure type, which also shows that housing problems are more prevalent in the private rented sector compared to both social rented and owner-occupier properties (13%, 9% and 2%).[8]

In terms of the involvement of solicitors in PRS cases specifically, the CIH response to a consultation on the introduction of a new housing panel noted that social rented, rather than private rented housing cases are much more likely to end up in the courts: private landlords rarely see legal challenges.[9]

Role of legal services

We assume that the role of solicitors in landlord and tenant disputes will be relatively minimal, as suggested by the SCJS figure mentioned above. Where advice is sought, it is likely that the regulatory role of local authorities accounts for the fact that they form the largest provider of housing advice (according to the SCJS).

In addition, we expect that publicly-funded advice providers such as CABx and Shelter (often employing specialist housing advisers) play a relatively substantial role in advising on such problems – they may also provide solicitor representation in some cases (however, these are primarily in eviction or repossession actions, rather than for landlord and tenant problems). Housing associations are also likely to employ generalist tenant advisers. In contrast, there will be a significantly less-developed ‘in-house’ advice network available within the private rented sector, possibly accounting for the disproportionate number of PRS cases presenting at CABx.

In terms of representation by party, we expect that there is a role for solicitors representing local authorities and housing associations. We assume that these organisations will be represented by solicitors to a greater extent than tenants.

There is a role for solicitors in more complex landlord-tenant disputes, particularly in those housing disrepair disputes that do reach court. SLAB’s civil legal aid applications data shows that in 2013-14, there were 41 cases under housing disrepair categories, and 230 in 2012-13. In terms of advice and assistance, there were 1651 intimations to SLAB in relation to landlord and tenant issues in 2013-14.[10] The level of intimations made to SLAB for landlord and tenant issues has been essentially stable since 2008. However, the number of civil legal aid applications made in relation to housing disrepair categories has fluctuated significantly in the same period, and between 2012-13 and 2013-14, fallen by over 80%.

Figure 1 - A&A intimations - Landlord and Tenant Problems, 2008-14

Figure 2 - Civil legal aid applications: housing disrepair

Given that we do not expect need for legal advice in this area to have fallen, it is not clear why this should be the case. We return to this in the section on geographic coverage.

In its 2013 Annual Report, the PRHP noted that it ‘saw the trend continue of an increased number of repairing standard applications.’[11] We expect any role for solicitors at the PRHP to be minimal – the PRHP Annual Report of 2013 states that ‘legal representation is rare, and parties are often unrepresented,’[12] probably due to the relatively informal nature of proceedings before the Panel. Thus, despite the rise in the number of applications to the PRHP, we would expect the use of legal services to have expanded only minimally.

Table 1 - Number of applications relating to housing disrepair received by the PRHP

Year / Disrepair Applications received
2007 / 28
2008 / 115
2009 / 124
2010 / 194
2011 / 229
2012 / 232
2013 / 257

Thus, the civil legal aid data does not reflect what appears to be continued demand for assistance in this area; whilst it could be argued that the PRHP has become more high-profile over time, and is taking on a higher (though still very low) volume of cases, it is not clear that the decline in civil legal aid applications is made up for by additional numbers of applications to the PRHP. As applications to the PRHP rise, we might expect appeals against the PRHP (to Sheriff courts and Court of Session) to increase. In addition to the applications above, in 2013, the PRHP received over 16,000 enquiries from the public.[13]

To compare, in the year 2011-12, CABx saw nearly 16,000 possible landlord and tenant issues (of which over 9000 related to the PRS), whilst the PRHP received only 229 applications in relation to housing disrepair, 102 of which were withdrawn or rejected:[14]

In terms of missing data, we do not anticipate that there is a significant role for privately-funded solicitors in the area of landlord and tenant problems for tenants. In addition, we do not have figures on the actual levels of advice provided by local authorities in this area.

Geographical provision

The results of the 2012/13 SCJS suggest that the prevalence of housing-related problems is slightly higher in urban areas (6% of those who had experienced a civil problem, compared to 5% in rural areas).

On the other hand, CAS suggested in 2014 that problems in the private rented sector are often related to ‘‘persistent’ offenders in the landlord community, [which are] particularly focussed in urban areas.’[15] Both private rented and social-rented/local authority housing sectors saw a mix of urban and rural locations in their top 5 authorities by volumes of problems presented at bureaux. In 2013, the PRHP received applications from 30 of 32 local authorities, and stated ‘while the majority of applications came from urban areas with high population density, a considerable number came from rural areas of Scotland.’[16] There does not appear to be a strong correlation between the incidence of landlord-tenant problems and urban/rural classification.

In terms of legal aid, the decrease in the volume of civil applications for housing disrepair was also accompanied by geographic contraction in terms of where legal services are provided.

Table 2 - Number of civil legal aid applications made for housing disrepair issues, 2012-14: selected local authorities

Selected Local Authorities/Area / 2012-13 / 2013-14
SCOTLAND / 230 / 41
Dundee / 12 / 0
Edinburgh / 12 / 0
Aberdeen / 9 / 0
Highland / 8 / 0
South Lanarkshire / 15 / 2
Glasgow / 90 / 22

The table above illustrates some of the changes in geographic coverage. We welcome any comments on why this pattern and those trends described below might have emerged.

In 2011-12, and 2012-13, civil legal aid applications for housing disrepair categories were made in 28 of 32 local authorities. Whilst there were only very small volumes of applications made in the majority of local authorities (in 2012-13, 5 or fewer applications were made in 18 local authorities), there was nonetheless a spread of cases over most of Scotland. In 2013-14, however, civil legal aid applications under relevant categories were made in only 10 local authorities.

The geographic contraction was also matched by a contraction in the number of firms making civil applications in this area. In 2013-14, nearly half of civil applications were made by a single law centre. This may reflect the traditional importance of law centres in providing free legal advice on housing issues. Notably, the number of applications made by other firms fell considerably. Only 12 firms made any applications in 2013-14, and only 2 of these made more than 2 applications. In comparison, in 2012-13, 98 firms made applications in relation to housing disrepair: thus, In 2013/14, a large number of firms completely exited the market, or made a drastically reduced number of applications.

Reports of problems with access to solicitors or advocates

Whilst we have noted that the trend in legal applications is downwards, we have not been made aware of any trends or patterns which might suggest a systemic access problem is occurring in this area. In addition, there have been no specific reports made to us which suggest that there are any problems with the availability and accessibility of legal services in this area.

Assessment of systemic problems with access

For individuals seeking advice on landlord and tenant issues, we assume that a mixed legal advice market exists which is comprised of solicitors (legally-aided, particularly through law centres); other advice agencies, including Shelter and CABx; and in-house advisers in local authorities and housing associations within the social rented sector. The role of legal services provided by solicitors is likely to be relatively small and restricted to only the most complex cases. From the evidence available, our initial conclusion is that there is not a systemic problem with access to solicitor services, caused by issues with availability.

Assessment of systemic problems with access to legal services for contentious landlord and tenant issues

Probability that a systemic access problem is occurring / Reports of actual instances of problems with access / Exposure
[Probability x Reports]
1 (low) –
5 (high) / 1 (no reports) –
5 (consistently reported systemic access problems) / 1–4 Green
5-14 Amber
15-25 Red
Contentious landlord and tenant issues / 1 / 1 / 1

Questions

  • Do you have any additional data which you would be willing to share with us regarding this area, or are there any other sources of data we should look at?
  • Are you aware of any specific instances where someone has not been able to find a solicitor for a landlord and tenant problem?
  • Do you have any comments on the downward trend in civil applications for housing disrepair? In particular, do you expect this to have implications for the accessibility and availability of legal services in this area?
  • How do you account for the discrepancy between the apparently higher prevalence of problems in the PRS, but less use of the courts when compared to SRS? Do you have any further comments about differences in availability/accessibility of legal services by tenure?

Consultees

  • Scottish Federation of Housing Associations
  • Association of Local Authority Chief Housing Officers (ALACHO)
  • Scottish Association of Landlords
  • Chartered Institute of Housing
  • Scottish Housing Regulator
  • CAS
  • Shelter
  • Law Society Committee on Property Law
  • Scottish Association of Law Centres
  • SOLAR (Society of Local Authority Lawyers and Administrators in Scotland)

The Scottish Legal Aid Board 1

[1] SLAB’s second monitoring report, 2013-

[2] Scottish Crime and Justice Survey, 2012-13, tables 107-8.

[3] Scottish Crime and Justice Survey, 2010-11

[4] Scottish Government Consultation, 2013, The introduction of a new housing panel, p4

[5] CAS, 2014, Consumer Snapshot 2013/14, p11

[6] NB – This chart excludes arrears in each sector; homeless covers local authority services, actual and threatened; and other covers access to provision of accommodation, discrimination, crofting, environmental and neighbour issues, as well as other miscellaneous issues. The figures are drawn from CAS data provided to SLAB for the purposes of the monitoring duty.

[7]

[8]Scottish Crime and Justice Survey, 2012-13, table 108

[9] Chartered Institute of Housing, 2014, Better Dispute Resolution in Housing: Scottish Government Consultation on Introduction of a New Housing Panel for Scotland – CIH Response, pp4 and 12

[10] Advice and assistance (A&A) helps pay for advice from a solicitor on any matter of Scots law, civil or criminal – for example, to try to settle a dispute without going to court, or to advise on whether there is a legal case to take forward. Civil legal aid helps pay for a solicitor to act in court. It covers the preparation work, as well as the hearing itself, and can provide funding for advocates and experts if needed. Only a solicitor can grant advice and assistance (make an ‘intimation’) or submit an application for civil legal aid. Some people need only advice and assistance, others need only legal aid, and some need both. Many people start the legal process with advice and assistance, and then move on to legal aid. See

[11] Private Rented Housing Panel, Annual Report, 2013, p1

[12] Ibid, 12

[13] Ibid p14

[14] Private Rented Housing Panel, Annual Report 2011, p17

[15] CAS, Nov. 2014, Consultation Response: Commission on Housing and Wellbeing, p3

[16] Private Rented Housing Panel, Annual Report 2013, p16