Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019

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The Scottish Parliament is being asked to delay the implementation of regulations on smoke and carbon monoxide alarms. This follows an upswell in public concern over ‘new rules’ about fire alarms in privately owned homes.

But what, exactly, is Parliament being asked to delay, and why?

The legislation in question is the Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019. These regulations were laid before Parliament in November 2018. The Local Government and Communities Committee considered them in December 2018, during which assurances were given about planned communications – see columns 26 and 27 in the Official Report of that session. Shortly after, the committee recommended that the Order be approved and Parliament passed them on 16 January 2019.

The Order inserts two additional requirements into the tolerable standard as set out in Section 86 of the Housing (Scotland) Act 1987, relating to equipment for detecting fire and carbon monoxide.

The tolerable standard is a basic level of repair that your property must meet in order to be habitable. Councils have powers to force property owners to bring their property up to the tolerable standard, as well as establish support schemes. However, the tolerable standard is not a statutory duty on owners; it is not a requirement to be fulfilled; it is not a building standard. A house without adequate loft insulation probably won’t meet the tolerable standard, but no council is likely to take action against a homeowner who does not insulate their loft.

If you rent out a property, you must meet the repairing standard. Unlike the tolerable standard, this is a duty – the property owner must provide a habitable home for their tenants. The repairing standard includes the provision of suitable fire and carbon monoxide detection devices. The 2019 Tolerable Standard Order was intended to bring safety standards for properties in the owner-occupier sector in line with the private rented sector.

The actual text of the order stipulates that, in order to meet the tolerable standard, houses must have “satisfactory equipment” for detecting fire and carbon monoxide.

What is ‘satisfactory’? The statutory instrument does not define it. Most properties with existing fire and carbon monoxide detection systems will meet the letter of the law.

The Scottish Government produced guidance in January 2019 which says that “satisfactory equipment” means:

  • one smoke alarm installed in the room most frequently used for general
  • daytime living purposes (normally the living room/lounge);
  • one smoke alarm in every circulation space on each storey, such as hallways and landings;
  • one heat alarm installed in every kitchen;
  • all smoke and heat alarms to be ceiling mounted; and
  • all smoke and heat alarms to be interlinked.

This mirrors the specification in the guidance available to private sector landlords on fire detection systems. The difference is that if a landlord does not meet the repairing standard, their tenants have access to legal redress through the First-Tier Tribunal (Housing and Property Chamber).

Guidance is not scrutinised by Parliament. It is not voted on. It is what the government produce in order to communicate legislation to those affected. In this case, homeowners. And how did the government communicate these proposed changes to homeowners?

I submitted a written question last month to the Scottish Government asking “what specific steps it has taken to inform homeowners of the changes introduced by the Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019 since January 2019, and when it took these steps.” In reply, the Minister for Housing and Planning told me:

“Following the changes to the tolerable standards, announced in March 2018, there was significant media coverage. The changes were further reported as they passed through Parliament, and the regularly updated online Q and A has been available since March 2018.

We have worked closely with the Scottish Fire and Rescue Service (SFRS) who have continued to publicise the changes via themed social media campaigns, all linking to what the requirements mean for home owners.

Further information, literature and advice are also provided during SFRS’ Home Fire Safety Visits.”

Is media coverage, an online Q&A and social media coverage sufficient? It was clear from the outcry last month that many homeowners had no idea these changes were coming. Every homeowner in Scotland receives a council tax bill – the perfect opportunity to communicate changes in law affecting homeowners.

A further consideration is insurance. As ever, individual insurers will have decisions to make about whether a property is insurable. If a property meets the letter of the law, but not the guidance, will homeowners face issues with cover?

The Scottish Government now has a number of options before it. It could – as it has proposed – delay the date at which the order comes into force. Kevin Stewart wrote to the Local Government and Communities Committee on 20th October to notify the committee that he would be asking Parliament to approve a 12 month delay. Is 12 months enough? And will the guidance be revisited? How will these changes now be communicated? How will the government ensure that unscrupulous companies do not take advantage of vulnerable people concerned about whether their fire alarms are up to spec?

This legislation was introduced in the shadow of Grenfell, as part of the drive to improve fire safety standards in our homes. The Scottish Government’s intention was to ensure that fire safety standards were the same whether you rent or own your home. Such a change should have been communicated clearly to homeowners at the earliest possible opportunity together with a clear understanding of what people did or did not need to do. The Scottish Parliament will probably extend the deadline but Government is in for some tough questions as to why it failed to communicate these changes more effectively and timeously.

1 thought on “Housing (Scotland) Act 1987 (Tolerable Standard) (Extension of Criteria) Order 2019

  1. Thanks Andy, really informative and interesting.

    I was taken by surprise by the postcard through the door last week. I replaced my CO alarm six months ago and neither the plumber who pointed out the expiry date nor the shop mentioned the change (although neither had an interest in doing so).

    I guess that the government would argue that the light touch enforcement is like discretion given to local authorities. But whilst my mains smoke alarm and battery CO alarm seem pretty comprehensive for a one bedroom tenement flat, I won’t be surprised if my insurance company tell me that I must meet the standard.

    Is the best answer maybe a more nuanced standard taking more account of the actual dwelling? The current approach sounds like a de facto duty on landlords where tenants know the rules and care enough to go to FtT, but that seems odd, as neighbours of owner occupied should surely also be able to benefit from the increased protection if what those owners have in place is inadequate…?

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