Pre-Action Requirements in rent arrears cases may make it easier to evict

Govan Law Centre (GLC) is launching an advice leaflet today aimed at local tenants in Glasgow who get into financial difficulties and accrue arrears of rent. Although the Scottish Government's new 'Pre-Action Requirements' (PAR) for rent arrears came into force on 1st August 2012, the PAR only apply to eviction actions where a notice of proceedings was served on or after 1 August. 

Because of the time it takes to raise court proceedings we are still seeing cases calling in Glasgow next week with notices served before 1 August. Accordingly, GLC expects to see the PAR feature in most rent arrears eviction cases in Scotland shortly. The PAR are well intentioned and designed to prevent eviction cases being raised in the first place by requiring councils and housing associations to undertake a number of activities to attempt to avoid litigation. 

Flaw in the Pre-Action Requirements for rent arrears
However, we believe there is a major flaw and weakness in the PAR which may have the perverse effect of making it much easier for landlords to secure a decrees for eviction in those cases which come to court. All of the PAR activities must take place before a notice of proceedings is served, such as negotiating a repayment plan. Some of the duties, such as the landlord's requirement to help the tenant with a housing benefit application only engage 'if requested' by the tenant. 

Need for free independent advice 
Unless a tenant obtains independent advice at the time of the PAR there is a very real danger they will enter into an unaffordable repayment plan, fail to formally request housing benefit assistance or fail to engage. We know this from our casework experience over the last two decades; landlords invariably want arrears repaid more quickly than tenants can realistically afford. And we also know that tenants do not seek out independent advice at the early stage of the PAR - typically law centres and advice agencies are approached just before or when proceedings are raised.

What does this mean in practice? 
GLC is concerned that many tenants will fail to properly utilise the PAR without good independent advice. If this happens the perverse affect of the PAR is to give the landlord a powerful audit trail and new argument for why it is now reasonable to evict. A key flaw in the PAR is that even if a tenant approaches us before their case calls in court it is purely a matter of discretion on the part of the landlord whether to re-engage the PAR.

The 2012 PAR Order clearly states the landlord's duties are pre-notice of proceedings, yet five months may have passed after that point in time before a summons is raised, and it may be another two months before the case calls in court. Scottish Government guidance recognises this weakness, but simply states it is up to the landlord to decide whether to engage the PAR activities.

There is a very real risk the PAR could become a formal box ticking exercise which enables a landlord to demonstrate how reasonable it has been.

Solutions?
The PAR will only have any traction and policy impact if tenants obtain advice when the PAR engage. Accordingly, GLC will undertake local awareness raising through a variety of channels. We need to get the messages across that tenants need to take up their PAR rights and take independent advice. Our new leaflet attempts to sets out these messages in clear and accessible terms.

Ultimately, we believe the best solution to ensure the policy intention of the PAR is achieved would be to amend the 2003 Homelessness etc., (Scotland) Act to require housing associations to notify the council - akin to section 11 notifications - when they engage the PAR in any case. That would enable the local authority to facilitate an independent intervention. GLC intends to take this initiative up with the Scottish Government.