Douglas Robertson Blog 3 – Accessing housing justice: I fought the law, and the law won

Accessing housing justice:

I fought the law, and the law won

The Scottish Government’s ambitions for private tenancy reform were to ‘improve security, stability and predictability for tenants and provide safeguards for landlords, lenders and investors’. Core to delivering on this was the creation of a new tenancy, the Private Residential Tenancy (PRT). The model tenancy details all tenants’ rights, although most of these are not new, but were provided by previous legislation changes  introduced gradually over the last 20 years. The Rent Better research, funded by the Nationwide Foundation, endeavours to evaluate the impact of the more recent PRT changes for both tenants and landlords. The first wave of findings, which relate to the first year of this three-year study, are now published.

Given a quarter of private tenants were unsure of the actual tenancy they held, as noted in my earlier blog, then awareness of any rights associated with whatever tenancy they held was always going to be limited. Even when tenants knew the type of tenancy they held, the rights it provided was still poorly understood. The lack of knowledge about the tenancy rights provided by the PRT is concerning and suggests a failure to highlight these fundamental changes in a way that is accessible for tenants. Being unaware of your rights severely compromises any access to justice.

While the research showed that awareness of tenancy rights is limited, it was interesting that most tenants felt confident about raising any disputes directly with the landlord or their letting agent. There was a general assumption that the landlord, and the ‘system’ as a whole, would ‘do right’ by tenants, and generally, people are averse to pursuing formal routes to justice. Maintaining a positive and trusting relationship with landlords was thus preferred to making formal complaints, with the responsiveness of the small ‘cottage industry’ landlords to addressing concerns also emphasised. Perhaps not surprisingly, those expressing less confidence in the PRS justice system were again people with less financial power.

Landlord knowledge of the PRT tenancy provisions was far better than tenants, although there were gaps in understanding about certain details. That was in part explained by the fact that many landlords employed agents to manage the tenancy relationships, including disputes.

Paralleling the tenancy reforms was legislation that established the Tribunal system of justice, the Housing and Property Chamber, First-tier Tribunal for Scotland. This body now considers tenancy disputes, brought to it by either party, whereas in the past this was under the jurisdiction of the Sheriff Court. A core motivation here was to build up housing specific expertise, often found lacking with Sheriffs, and to ensure a less adversarial adjudication process.

These changes were considered a means to improve access to justice, but very few tenants had any experience of the Tribunal arrangements. By contrast, for landlords and agents the work of the Tribunal had quickly become ‘part and parcel’ of the landlord business. One marked difference was that landlords and their agents were typically legally represented at Tribunal hearings, whereas tenants were not. Arguably, this undermines the notion that the Tribunal would be less adversarial than a Court setting. For the few tenants that had experience of a Tribunal hearing it was neither considered accessible nor positive.

Formal justice mechanisms appear better suited to professionals than tenants. Maintaining positive, trusting relationships with the landlord emerged as a strong theme in relation to resolving problems for tenants. Again, it was the ‘cottage industry’, small portfolio landlords who were seen to be better placed to resolve concerns. Pursing formal justice mechanisms would undermine such a relationship, which reveals the power relationship that exists within this housing market.

Professor Douglas Robertson was the Chair of the Advisory Group between 2009 and 2015 that made recommendations for reform, and he now sits on the RentBetter Advisory Group.

To access the full set of research reports on the impacts of recent legislative reform on Scotland private rented section use the link:

To sign up for a webinar on the findings please go to findings page and complete your details. Webinars will be held early in 2021.