SP- Paper 96 (Web Only)
SL/S4/12/R13
13th Report, 2012 (Session 4)
Subordinate Legislation
Remit and membership
Remit:
The remit of the Subordinate Legislation Committee is to consider and report on—
(a) any—
(i) subordinate legislation laid before the Parliament;
(ii) [deleted]
(iii) pension or grants motion as described in Rule 8.11A.1;
and, in particular, to determine whether the attention of the Parliament should be drawn to any of the matters mentioned in Rule 10.3.1;
(b) proposed powers to make subordinate legislation in particular Bills or other proposed legislation;
(c) general questions relating to powers to make subordinate legislation;
(d) whether any proposed delegated powers in particular Bills or other legislation should be expressed as a power to make subordinate legislation;
(e) any failure to lay an instrument in accordance with section 28(2), 30(2) or 31 of the 2010 Act; and
(f) proposed changes to the procedure to which subordinate legislation laid before the Parliament is subject.
(Standing Orders of the Scottish Parliament, Rule 6.11)
Membership:
Chic Brodie
Nigel Don (Convener)
James Dornan (Deputy Convener)
Mike MacKenzie
Michael McMahon
John Pentland
John Scott
Committee Clerking Team:
Clerk to the Committee
Irene Fleming
Assistant Clerk
Rob Littlejohn
Support Manager
Daren Pratt
Subordinate Legislation
The Committee reports to the Parliament as follows—
1. At its meeting on 13 March 2012, the Committee agreed to draw the attention of the Parliament to the following instruments—
- Scottish Secure Tenancies (Proceedings for Possession) (Pre-Action Requirements) Order 2012 [draft];
- Teachers' Superannuation (Scotland) Amendment Regulations 2012 (2012/70); and
- Police Pensions (Contributions) Amendment (Scotland) Regulations 2012 (2012/71).
2. The Committee’s recommendations in relation to these instruments are set out below.
3. In addition, the Committee refers the following instrument to the lead Committee for consideration—
- Scottish Secure Tenancies (Repossession Orders) (Maximum Period) Order 2012 [draft];
4. Although the matter does not relate to a formal reporting ground, the Committee considered that the practical effect of the instrument is something that the lead Committee may wish to consider further. The Committee’s deliberations are set out later in this report.
5. Finally, the instruments that the Committee determined it did not need to draw the Parliament’s attention to are set out at the end of this report.
POINTS RAISED: INSTRUMENTS SUBJECT TO AFFIRMATIVE PROCEDURE
Scottish Secure Tenancies (Proceedings for Possession) (Pre-Action Requirements) Order 2012 [draft] (Infrastructure and Capital Investment Committee)
6. Tenants who rent properties from local authorities and registered social landlords generally do so on Scottish secure tenancies. Where a landlord wishes to recover possession of a property and evict the tenant, it must obtain a court order which permits it to do so. The procedure with which a landlord must comply is laid down in sections 14 to 16 of the Housing (Scotland) Act 2001 (“the 2001 Act”).
7. Where a landlord seeks to recover possession on the ground that the tenant has not paid rent which is lawfully due, the landlord has to comply with the pre-action requirements laid down in section 14A of the 2001 Act. It may not commence proceedings until it has confirmed to the court that it has done so.
8. This Order makes provision about the pre-action requirements contained in section 14A of the 2001 Act. It specifies further steps which landlords must take in order to comply with certain of the requirements, and provides further detail as to the operation of others.
9. The instrument is subject to the affirmative procedure. If approved, it will come into force on 1 August 2012.
10. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 1.
11. First, as a pre-action requirement, article 2 obliges landlords to provide a breakdown of monies due to the landlord under the tenancy agreement, including charges incurred should rent or other financial arrears arise which the landlord requires to recover by way of legal action. Accordingly, the landlord is required to provide an “illustrative indication of legal expenses” to the tenant.
12. The Scottish Government was asked whether it considers that the basis on which any “illustrative indication of legal expenses” is to be calculated is sufficiently clear. In particular, it was asked whether the term covers only the landlord’s judicial expenses (those expenses which a successful landlord is entitled to recover under the rules of court), or whether it is intended to have a wider meaning.
13. In its response, the Scottish Government notes that a landlord could not estimate in detail what legal expenses might be incurred and states that the reference to “illustrative” legal expenses was inserted in recognition of that. However, it does not explain further the precise meaning of the term “legal expenses”.
14. The Committee observes that the term “legal expenses” is not a term of art and that what might broadly be considered the “legal expenses” of a successful landlord will include expenses which are not recoverable from the tenant. It therefore considers that the term “illustrative indication of legal expenses” could be clearer, as if it is given its natural meaning then it goes beyond what a landlord might in law hope to recover.
15. Secondly, articles 4(1)(b) and 5(1) impose a duty on landlords to “encourage” a tenant to do certain things. As these duties form part of the pre-action requirements, a landlord’s failure to comply with them prevents it from taking legal action to recover possession of its property. The Scottish Government was therefore asked to explain how a landlord might discharge these duties.
16. In its response, the Scottish Government simply advises that it is for landlords to decide how best to encourage tenants to provide details of their financial circumstances (article 4(1)(b)) or to provide written authority to allow the landlord to discuss housing benefit claims (article 5(1)). It states that, ultimately, the courts will determine whether the steps taken are adequate in any given case.
17. The Committee considers that the term “encourage” appears to go beyond simply requesting that a tenant does something. Plainly it does not go so far as to require a tenant to do something, as landlords have no power to require compliance. However, it is unclear what precisely landlords are expected to do to discharge the obligations on them in relation to these pre-action requirements, and the Committee therefore considers the position to be unsatisfactory.
18. Thirdly, article 4(1)(c) of the Order requires a landlord to advise the tenant to seek assistance from “an appropriate debt advice agency”. That expression is not defined in the Order or in the 2001 Act.
19. The Scottish Government was asked to explain whether the landlord has to form a view on which debt advice agencies are appropriate or whether it is sufficient for the landlord to advise the tenant to seek advice from such an agency.
20. In its response, the Scottish Government accepts that there was a potential lack of clarity as to the meaning of “appropriate debt advice agency” and thanks the Committee for drawing it to its attention. It confirms that the intention is that the landlord’s duty is to advise the tenant of bodies that the tenant might approach, with the tenant deciding their course of action thereafter.
21. The Committee notes that the Scottish Government proposes to clarify this point in guidance, to which landlords are obliged to have regard. However, the Committee considers that the provision could be clearer.
22. Fourthly, article 5(1) requires a landlord to encourage a tenant who has made a housing benefit application to provide the landlord with written authority to discuss that application with “relevant housing benefit staff”. In the absence of any definition, the Scottish Government was asked whether it is sufficiently clear who falls within that category.
23. This is particularly important as tenants are being asked to grant written authority that, in effect, waives their usual right to confidentiality in respect of an application. It would seem reasonable that tenants are aware of the persons to whom that authority is directed.
24. In its response, the Scottish Government states that a landlord “can readily establish which staff are the relevant persons to assist it”. The Committee considers, however, that this response appears to assume that everyone will understand that the term means members of staff of the local authority which is considering the application, and the Committee questions whether that is a reasonable assumption.
25. More fundamentally, the Committee questions whether written authority to “relevant members of housing benefit staff” would be of any effect. It is to the local authority that an application is made. It is the local authority which is the data controller for the purposes of the Data Protection Act 1998. As such, if authority is to be given to waive confidentiality, the Committee considers that it should be directed to the local authority. Although article 5(1) does not expressly preclude the possibility that the written authority would be addressed in those terms, it is not clear to the Committee that that is what is intended from the reference to “relevant housing benefit staff”.
26. Finally, article 5(2)(d) requires a landlord to whom written authority has been granted to take reasonable steps to establish the likely outcome of a housing benefit application. It is for the local authority to determine whether the tenant meets the criteria for an award of housing benefit and the level of that award.
27. The Scottish Government was therefore asked to explain what reasonable steps it considers that a landlord could take to satisfy the requirement in article 5(2)(d) given that, if the local authority has not yet determined the application, any indication by the local authority as to its likely outcome would appear to involve prejudging that determination.
28. In its response, the Scottish Government states that an action that the landlord might take includes “asking housing benefit staff if they can give a view on the likely outcome of an application”.
29. The Committee’s principal concern is that a local authority which indicates the likely outcome of a housing benefit application before the application has been determined could be seen to have prejudged the application. Although the Scottish Government advises that this is current practice within local authorities, a general principle of administrative law is that prejudging the outcome of an application may taint the subsequent decision and leave it open to challenge.
30. Article 5(2)(d) appears capable of being operated without rendering any subsequent decision liable to challenge, in that a landlord may also use the provision simply to obtain information to allow it to form its own views on the likely success of an application. However, the Committee considers that the Scottish Government’s response makes it quite clear that it envisages the provision being operated in a different way so that the staff of a local authority who have responsibility for determining the application will be asked to give a preliminary view on the matter. This policy appears to the Committee to leave housing benefit decisions open to potential challenge in the courts. Accordingly, it refers the practical effect of the instrument to the lead Committee’s attention.
31. In conclusion, the Committee draws the instrument to the attention of the Parliament on reporting ground (h) in respect of the following five matters—
- The meaning of “illustrative indication of legal expenses” in article 2(2) could be clearer. From the terms of article 2(1)(b)(ii), it appears that the intention is that tenants should be made aware of the expenses which a landlord will be able to recover from them should the landlord be successful in obtaining an order for recovery of possession. However, the landlord’s recoverable, or judicial, expenses are a subset of their legal expenses as a whole.
- It is not clear what a landlord must do in order to “encourage” a tenant to take a certain course of action for the purposes of articles 4(1)(b) and 5(1). While the Scottish Government indicates that this is a lesser standard than obliging a landlord to “require” a tenant to do something, the ordinary meaning of “encourage” suggests more than requesting that the tenant do something, and it is not clear what this entails.
- It is not clear whether it is for the landlord or the tenant to ascertain whether a particular debt advice agency is an “appropriate debt advice agency” for the purposes of article 4(1)(c).
- It is not clear, for the purposes of article 5(1), who “relevant housing benefit staff” are, or even who employs those staff. This is of particular significance given that tenants are to be encouraged under that provision to waive their usual right to confidentiality so that these unascertained persons may discuss the detail of housing benefit applications with landlords.
- Written authority under article 5(1) will require to be addressed to the local authority (as data controller) in order to be effective. Standing the references in article 5(1) to “relevant housing benefit staff”, it is not clear that this is what is intended, although it does not appear that the wording of article 5(1) expressly precludes the possibility that a landlord could obtain effective written authority.
32. The Committee also refers the practical effect of this instrument to the lead Committee. Although this is not a formal reporting matter, the lead Committee may wish to consider it further. The apparent policy intention, as disclosed in the Scottish Ministers’ response to question 5, is that landlords may seek a preliminary indication as to the outcome of a housing benefit application from the persons charged with determining the application, notwithstanding the fact that to give such an indication appears to involve prejudging the application.
POINTS RAISED: INSTRUMENTS SUBJECT TO NEGATIVE PROCEDURE
Teachers’ Superannuation (Scotland) Amendment Regulations 2012 (2012/70) (Education and Culture Committee)
33. These short Regulations amend the Teachers’ Superannuation (Scotland) Regulations 2005 to adjust the contribution rates payable by teachers in respect of their pensions.
34. In particular, they amend Regulation C3(2) to add new provisions for the year 1 April 2012 to 31 March 2013, providing for a table of percentages of contributions. The contributions are to be calculated monthly by reference to the annual rate (or in the case of part-time employees, annual equivalent rate) of each employee’s contributable salary for that month. This is done in regulation 3.
35. The Regulations are subject to the negative procedure and come into force on 1 April 2012.
36. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 2.
37. In particular, the Scottish Government was asked whether it agreed that there are drafting errors in regulation 3. In its response, the Scottish Government accepts that some punctuation has “gone awry” in regulation 3. It considered that there can be no doubt as to the meaning intended, but it stated that it intends to correct the punctuation by means of a printing correction slip, which should be available before the instrument comes into force. The Committee accepts that the difficulty with regulation 3 is largely caused by the misplaced open quotation marks in the second line, and that the intended meaning underlying the provision appears reasonably clear, despite the punctuation slips.
38. The Committee therefore draws this instrument to the Parliament’s attention on the general reporting ground, because it contains the following drafting error. It is not clear that the words “and ending 31st March 2012” are inserted after “1st April 2007” in regulation C3 of the principal Regulations.
39. This was caused by a series of punctuation and paragraphing errors in regulation 3, which the Scottish Government has acknowledged and proposes to resolve by correction slip.
Police Pensions (Contributions) Amendment (Scotland) Regulations 2012 (2012/71) (Justice Committee)
40. The Regulations amend the Police Pensions Regulations 1987 (as regards Scotland) and the Police Pensions (Scotland) Regulations 2007, to adjust the pension contributions of police for the year 1 April 2012 to 31 March 2013. They also adjust the cap on periodical contributions payable under those Regulations.
41. The relevant provisions of the 1987 and 2007 Police Pensions Schemes are amended to replace the current contribution rate with new tiered contributions, dependent on the officers’ pay bands, including rates in cases where an officer is ineligible for a pension award on the grounds of permanent disablement.
42. The Regulations are subject to the negative procedure and come into force on 1 April 2012.
43. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 3.
44. In particular, the Scottish Government was asked whether it would agree that the reference to a “regular police officer” in regulation 2(2) is an error and should be to a “regular policeman”, which is the term defined in the principal 1987 Regulations. It was also asked to clarify certain references made in the Regulations to regulation G2A of the principal 1987 Regulations, and 7A of the principal 2007 Regulations.
45. The Committee notes that, in its response, the Scottish Government accepted that the reference to “regular police officer” is incorrect, as are the references to regulations G2A and 7A, which do not exist. It also notes that the Scottish Government intends to correct those mistakes by amendment when it makes the next set of amending regulations.
46. The Committee therefore draws this instrument to the attention of the Parliament on the general reporting ground. There are drafting errors:
- in regulation 2(2), where it inserts the first line of regulation G2(1) of the Police Pensions Regulation 1987. The reference to a “regular police officer” should refer to “regular policeman” being the term defined by Schedule A to those 1987 Regulations;
- in regulation 2(2) (substituting a new regulation G2 into those 1987 Regulations), where it refers in three places to regulation G2A, and which regulation does not exist; and
- in regulation 3(2), where it refers in three places to regulation 7A of the Police Pensions (Scotland) Regulations 2007, and which regulation 7A does not exist.
47. The Committee welcomes that the Scottish Government has undertaken to correct these errors by means of an amending instrument.
INSTRUMENTS REFERRED TO LEAD COMMITTEE FOR CONSIDERATION
Scottish Secure Tenancies (Repossession Orders) (Maximum Period) Order 2012 [draft] (Infrastructure and Capital Investment Committee)
48. This Order prescribes the maximum period for which a landlord’s right to recover possession of a property let under a secure tenancy may be effective, in terms of section 16(5A)(c) of the Housing (Scotland) Act 2001. It provides that the maximum period is six months from the date that the decree authorising recovery of possession is extracted by a sheriff clerk.
49. The instrument is subject to the affirmative procedure. If approved, it will come into force on 1 August 2012.
50. In considering the instrument, the Committee asked the Scottish Government for clarification of certain points. The correspondence is reproduced in Appendix 4.
51. The Committee refers the practical effect of this instrument to the lead Committee. Although this is not a formal reporting matter, the lead Committee may wish to consider it further. Although this instrument appears to prescribe a maximum period of six months within which an order for recovery of possession may have effect, this is dependent on decree being extracted promptly. Any delay in extracting decree by the landlord will have the effect of postponing the last date on which the order may have effect against the tenant.
NO POINTS RAISED
52. At its meeting on 13 March 2012, the Committee also considered the following instruments and determined that it did not need to draw the attention of the Parliament to any of the instruments on any grounds within its remit:
Education and Culture Committee
Education (Fees, Awards and Student Support) (Miscellaneous Amendments) (Scotland) Regulations 2012 (SSI 2012/72)
Health and Sport Committee
Community Care (Joint Working etc.) (Scotland) Amendment Regulations 2012 (SSI 2012/65)
Community Care and Health (Scotland) Act 2002 (Incidental Provision) (Adult Support and Protection) Order 2012 (SSI 2012/66)
National Assistance (Sums for Personal Requirements) (Scotland) Regulations 2012 (SSI 2012/67)
National Assistance (Assessment of Resources) Amendment (Scotland) Regulations 2012 (SSI 2012/68)
National Health Service (Superannuation Scheme and Pension Scheme) (Scotland) Amendment Regulations 2012 (SSI 2012/69)
National Health Service (Optical Charges and Payments) (Scotland) Amendment Regulations 2012 (SSI 2012/73)
National Health Service (Free Prescriptions and Charges for Drugs and Appliances) (Scotland) Amendment Regulations 2012 (SSI 2012/74)
Personal Injuries (NHS Charges) (Amounts) (Scotland) Amendment Regulations 2012 (SSI 2012/76)
Infrastructure and Capital Investment Committee
A720 Edinburgh City Bypass and M8 (Hermiston Junction) (Speed Limit) Regulations 2012 (SSI 2012/62) [relevant correspondence reproduced in appendix 5]
Rural Affairs, Climate Change and Environment Committee
Sharks, Skates and Rays (Prohibition of Fishing, Trans-shipment and Landing) (Scotland) Order 2012 (SSI 2012/63)
Bovine Viral Diarrhoea (Scotland) Order 2012 (SSI 2012/78)
APPENDIX 1
Scottish Secure Tenancies (Proceedings for Possession) (Pre-Action Requirements) Order 2012 (SSI 2012/draft)
On 2 March 2012 the Scottish Government was asked:
1. Does the Scottish Government consider that the basis on which any “illustrative indication of legal expenses” (article 2(2)) is to be calculated is sufficiently clear, and in particular:
a. does this relate to the landlord’s judicial expenses recoverable in terms of the Act of Sederunt (Fees of Solicitors in the Sheriff Court) (Amendment and Further Provisions) 1993, or is it intended to have a wider meaning, and if so what is that meaning?
b. would an illustrative indication be expected to deal with the expenses of any potential appeal which might be taken?
2. Given that a landlord may not raise proceedings to recover possession of its property until it confirms to the court that all of the pre-action requirements in section 14A of the Housing (Scotland) Act 2001 (“the 2001 Act”) and in this Order have been complied with, what must a landlord must do in order to discharge the requirement that it encourage the tenant to provide information in terms of article 4(1)(b)) or that it encourage a tenant to provide written authority in terms of article 5(1)? Does the Scottish Government consider that what a landlord must do to discharge these requirements is sufficiently clear?
3. Article 4(1)(c) requires a landlord to advise the tenant to seek assistance from “an appropriate debt advice agency”, which expression is not defined in the Order or in the 2001 Act. Does the landlord have to form a view as to which debt advice agencies would be appropriate to assist the tenant, or is it sufficient for the landlord to advise the tenant that he or she should seek advice from such an agency and leave it to the tenant to determine whether a given agency is appropriate? Does the Scottish Government consider that what is required of a landlord in terms of this requirement is sufficiently clear?
4. Article 5(1) requires a landlord to encourage a tenant who has made a housing benefit application to provide the landlord with written authority to discuss that application with “relevant housing benefit staff”. In the absence of any definition, is it sufficiently clear who falls within that category? Does the Scottish Government consider that authority granted in those terms would be adequate to permit a local authority, as the data controller in respect of applications for housing benefit, to disclose personal data and sensitive personal data to a landlord?
5. Article 5(2)(d) requires a landlord to whom written authority has been granted to take reasonable steps to establish the likely outcome of the housing benefit application. Article 5(3) requires a landlord who has not been granted such authority to take such steps as it can to establish the likely outcome of the housing benefit application. It is for the local authority to determine whether the tenant meets the criteria for an award of housing benefit and the level of that award. The Scottish Government is asked to explain:
a. what reasonable steps it considers that a landlord could take in order to establish the likely outcome of an application, given that – if the local authority has not yet determined the application – any indication by the local authority as to its likely outcome appears to involve prejudging that determination?
b. how a landlord may demonstrate that it has taken “such steps as it can” for the purposes of article 5(3)? What steps does the Scottish Government consider that a landlord could take to establish the likely outcome of a housing benefit application, in circumstances where the applicant has not granted written authority for the landlord to discuss the matter?”
The Scottish Government responded as follows:
1. A landlord plainly cannot estimate in detail what legal expenses might be incurred in a particular case, not least because the amounts will vary according to how any defence is conducted, and whether any qualifying occupiers exercise their right to be heard. The reference in the Order to “illustrative” legal expenses was inserted in recognition of that.
Ministers will expand upon what they consider a landlord should provide as this “illustrative indication” in statutory guidance, to be issued under the power at section 14A(8) of the Housing (Scotland) Act 2001, but ultimately it will be for a court to determine whether this requirement has been complied with, in the event of any dispute being brought regarding it.
The policy intention is for the tenant to receive an indication of the likely legal expenses they may incur if court action as a result of rent arrears becomes necessary. A landlord is likely to base these on costs tenants have incurred in defending similar types of case. How exactly a landlord does that is a matter for an individual landlord, subject to the possibility of court scrutiny as to whether the legal requirement has been met.
2. The use of “encourage” in articles 4 and 5 is a recognition that a landlord cannot require a tenant to provide details of their financial circumstances or to provide authority for the landlord to discuss a housing benefit application with those dealing with that application. How a landlord best complies with this duty is for a landlord to determine, in the first instance, and for a court to determine conclusively in the event of any dispute being brought regarding it.
In particular, how a landlord might encourage the provision of these matters will vary according to whether, and how, a landlord is able to establish contact with a tenant. In some cases it might be by letter or email, in others by discussion. The Scottish Government does not consider it should be more prescriptive here, but a landlord will need to show how it has complied with a duty which seems to the Scottish Government to be clear as to what must be pursued, albeit the method by which it is pursued has been left flexible.
In relation to article 4, the intention in encouraging the provision of information is so that the landlord can attempt to agree a repayment plan that is reasonable for the tenant’s circumstances, taking into account the debt due to the landlord.
In relation to article 5, the Scottish Government has been advised by landlords it has consulted when preparing the Order that it is standard practice for a landlord to seek to obtain written authority from a tenant to discuss a housing benefit application with housing benefit staff, where it is involved in assisting the tenant with that application.
3. The Scottish Government thanks the Committee for drawing its attention to this potential uncertainty as to the meaning of an “appropriate debt advice agency”, in terms of whether it is a body judged by the landlord to be appropriate, or one judged by the tenant to be appropriate. The policy intention was that it should be for tenants to choose whether, and which, advice agency they consult and that the duty on landlords should be to advise of bodies that a tenant might approach. As with earlier answers, compliance with this requirement would ultimately be a matter for a court to determine.
The Scottish Government will include in the statutory guidance that a landlord should advise the tenant that any agency they approach should be one that offers free and independent debt advice. An example of such an “appropriate debt advice agency” could be a Citizens Advice Bureau or a Welfare Rights organisation, but other bodies exist in some areas and may also be able to offer appropriate assistance.
4. The Scottish Government does not perceive a difficulty with the reference to “relevant housing benefit staff”. A landlord can readily establish which staff are the relevant persons to assist it with the inquiries it is required to make and by whom they are employed. It is not likely that these would be set out on the authority to discuss the application. The situations in which benefit information can be disclosed and shared are essentially matters for the Secretary of State and benefits legislation will contain restrictions on disclosure. However, the Scottish Government considers that client authority will, at least under current legislative arrangements, permit disclosure of information necessary to determine the matters in paragraph (2) of Article 5 (none of which would appear to be sensitive personal data in terms of the Data Protection Act 1998). The disclosure of personal data using such arrangements is standard practice between data controllers, local authority landlords and registered social landlords at the present time.
5. Advice from local authorities and others with expertise in administration of housing benefit is that, in some cases, the outcome of a benefit application will be predictable. For example, an experienced person who assists tenants to make claims (such as an income maximisation officer) will, in some cases, be able to predict that a claim is likely to succeed, or likely to fail, albeit no authoritative decision has yet been taken.
Actions that might be taken here by a landlord would include, where authority has been given for the landlord to discuss a housing benefit application with relevant housing benefit staff: -
- asking housing benefit staff if they can give a view on the likely outcome of an application;
- asking such staff if they can transfer relevant information around a housing benefit claim that a landlord can itself use to attempt a calculation;
- seeking advice from other benefits specialists and advisers; and
- use of online housing benefit calculators.
These steps are not likely to be a calculated figure, but may result in a view that a claim is likely to succeed, be partially successful, or fail. This is not an innovation on current practice. Housing benefit applications can take several weeks or months to process and have a significant impact on whether a tenant should have rent arrears and the eventual level of these arrears. It is current good practice for landlords to try to establish the likely outcome of a housing benefit claim before deciding to issue a notice of proceedings for rent arrears.
The above steps may allow the landlord to make an informed decision around likely housing benefit entitlement, which can inform any interim repayment arrangement with the tenant. It is not the intention of the Order to prohibit any court action pending a determination of a benefit claim. Sometimes, court action should be raised without delay because a housing benefit claim is unlikely significantly to address the arrears. Sometimes, there will appear to be no necessity for the landlord to progress court action, thereby saving the landlord money and avoiding any anxiety the possibility will cause a tenant.
Where authority has not been given by the tenant for the landlord to discuss a housing benefit application with relevant housing benefit staff, the landlord may nonetheless be able to take some of these steps. For example, a landlord may be able to make an informed decision from its expertise in housing benefit matters as to what the benefit position of a tenant is likely to be. In some cases there may be no steps that a landlord can take and the Order allows for that. It simply provides that, where a landlord can take steps, it is required to do so. The intention is to promote some additional tenant protection, by providing that a failure to give authority for a landlord to discuss a housing benefit claim does not absolve the landlord of all obligations to attempt to establish the outcome of that claim.
As with some previous answers, these are not matters where the Order can cover every eventuality that might arise. Leaving some flexibility in operation of the provisions is unavoidable, which is why they are left for a court to determine in the event of dispute, albeit with statutory guidance that will assist use and inform interpretation.
APPENDIX 2
Teachers’ Superannuation (Scotland) Amendment Regulations 2012 (SSI 2012/70)
On 2 March 2012, the Scottish Government was asked:
(1) Would you agree there are drafting errors in regulation 3, in respect that-
(a) It appears to be intended that in regulation C3(2)(b) of the principal Regulations, the words “and ending 31st March 2012” should be added after “1st April 2007” but the drafting has “and ending “31st March 2012”” so that the first 2 lines do not appear to make sense, and
(b) The new sub-paragraph (bb) is shown on a new line without words preceding it, to insert it after regulation C3(2)(b)?
(2) If you agree these are errors, is it proposed to correct them timeously by an amendment?
The Scottish Government responded as follows:
The Scottish Government accepts that some punctuation has gone awry in regulation 3. However it considers that no textual amendment is necessary and there can be no doubt as to the meaning intended, namely that one contribution regime applies from 1 April 2007 until 31 March 2012, and another applies from 1 April 2012 to 31 March 2013.
We regret this technical problem with the punctuation and intend to correct it by correction slip as follows:
a) There should be opening inverted commas before “and” on the second line;
b) The next 3 sets of inverted commas are redundant and should be removed;
c) There should be a dash after “1st April 2007” and the long insertion dropped to the next line.
The correction slip should be available prior to the instrument coming into force on 1 April 2012.
APPENDIX 3
Police Pensions (Contributions) Amendment (Scotland) Regulations 2012 (SSI 2012/71)
On 2 March 2012, the Scottish Government was asked:
1. (a) Would you agree that the reference to a “regular police officer” in regulation 2(2) (inserted in the first line of the new regulation G2 (1) appears to be a patent error, in respect that the remainder of the substituted regulation G2 provides for the contributions rates for a “regular policeman” which is a term defined by Schedule A to the principal 1987 Regulations to include particular categories of police officer?
(b) If that is agreed, would it be proposed to correct the point by an amendment?
2. The substituted regulation G2 on page 2, and the substituted regulation 7 on page 3, refer in several places to the provisions being subject to regulation G2A and 7A respectively. Please could you clarify how these regulations have been inserted in the principal Regulations, as it appears they are not shown on the official versions of the 1987 and 2007 Regulations on www.legislation.gov.uk, nor in the Legislation Citator or the other legislative sources we have examined?
The Scottish Government responded as follows:
1. As regards question 1, it is accepted that the reference to police officer is incorrect and it should read policeman. The Scottish Government thinks that given the heading of the regulation and the reference elsewhere in the regulation to policeman the correct reading would be given by any court. Nevertheless the Scottish Government intends to correct the mistake by amendment when it makes the next set of amending regulations.
2. As regards question 2, the Scottish Government accepts that references to regulations G2A and 7A are mistakes, since there are no such regulations. The Scottish Government regrets these unfortunate errors but thinks that they will be read out of the text and hence will have no legal effect. Nevertheless the Scottish Government intends to correct the mistake by amendment when it makes the next set of amending regulations.
APPENDIX 4
Scottish Secure Tenancies (Repossession Orders) (Maximum Period) Order 2012 (SSI 2012/draft)
On 2 March 2012, the Scottish Government was asked:
The Executive Note indicates that the Order sets out the maximum period that a landlord has to recover possession of a house after an order for repossession has been granted by the court. This Order provides that the maximum period prescribed for the purposes of section 15(5A)(c) of the Housing (Scotland) Act 2001 is six months from the date when decree is extracted. The Act of Sederunt (Summary Cause Rules) 2002 provides that, unless the sheriff orders earlier extract, the sheriff clerk may not issue an extract until 14 days have elapsed from the granting of the decree (rule 23.6(1)). However, there is no requirement that the sheriff clerk must extract the decree as soon as the 14 day period elapses. As the prescribed period does not begin to run until the date of extract, this appears to make the maximum period contingent upon the individual actings of sheriff clerks in 49 different courts throughout Scotland. The Scottish Government is accordingly asked to explain how article 2(1) can be said to set the maximum period for the purposes of section 15(5A)(c), when it appears that an indeterminate period may elapse between decree and extract before the six month period begins to run.
The Scottish Government responded as follows:
Section 16(5A) (not section 15) of the Housing (Scotland) Act 2001 states that, in the circumstances there specified, a court order for repossession must specify the period for which the landlord’s right to recover possession is to have effect. The effect of the Order is to prescribe the maximum period that the period specified by the court can take.
A court order can have no effect prior to it being extracted. Normal court practice is for the decree to be automatically extracted by the sheriff clerk after the lapse of 14 days from its grant. An exception to this is when the sheriff on application orders earlier extract, usually at the request of the pursuer. Less commonly, the sheriff may on application order delayed extract, usually at the request of the defender. Where an appeal is lodged, extract will be delayed until the appeal has been disposed of.
The wording adopted in the Order allows for these situations, and also for the situation where an appeal is lodged after a decree has been extracted. Where a sheriff varies the usual minimum timescale for extract, the provision made by the Order will operate in a way that seems to the Scottish Government to be unexceptional.
No difficulty is perceived as a result of the possibility that a particular sheriff clerk might, as a matter of administrative practice, briefly delay extract other than by order of a sheriff, for example because the day the 14 day minimum period expires is not a convenient day for extracting the court order.
The power of the Scottish Ministers is to prescribe the maximum period within which a sheriff may specify that the court order is to have effect. The start date for that period (the date of extract) is a matter under the control of the court. The period that the court order actually specifies is also a matter under the control of the court, subject only to the provision that the Order makes.
The Scottish Government therefore does not see any difficulty with what has been provided in the Order.
APPENDIX 5
A720 Edinburgh City Bypass and M8 (Hermiston Junction) (Speed Limit) Regulations 2012 (SSI 2012/62)
On 1 March 2012, the Scottish Government was asked:
The Executive Note (paragraph 2) explains that the existing speed limits (50 and 70 MPH) applying on the Edinburgh City Bypass were made by older instruments which do not describe the lengths of road in great detail, and the road layout has changed. Regulation 6 revokes SI 1989/2125, which has until these Regulations specified the speed limit of 70 MPH on the lengths of special road on the Bypass which are subject to that maximum speed limit.
Could you clarify why these Regulations do not require to revoke another instrument or instruments which currently specify the 50 MPH limit applying to the lengths of special road which shall be covered by regulation 3 and part 1 of the Schedule, with effect from 31 March 2012?
The Scottish Government responded as follows:
The existing 50 MPH speed limit is contained in the following instruments:-
• The A720 Trunk Road (Calder Junction to Hermiston Gait Area) (50 mph Speed Limit) Order 1998 (SI 1998/1235); and
• The City of Edinburgh Council (A720, Edinburgh City Bypass) (50 mph Speed Limit) Order 1998 (“the CEC order”).
In conjunction with SSI 2012/62, the Scottish Ministers are preparing a traffic regulation order (“TRO”) setting speed limits on various trunk roads in the area, some of which are presently covered by SI 1998/1235. This TRO will revoke SI 1998/1235 and is planned to come into force on 31 March 2012.
The Scottish Government has also agreed with the City of Edinburgh Council that the Council will revoke the CEC order, through a TRO, at the next suitable opportunity. That will not be before June 2012, due to the upcoming local elections. This has no impact on the effect of SSI 2012/62, although the Scottish Government will ensure that the police and Procurator Fiscal are made aware of the coming into force of that instrument and the intended revocation of the CEC order.
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