Rights and Security in Housing: the Repossession Process in the Social Rented Sector
| Date | 01 January 1999 |
| Published date | 01 January 1999 |
| Author | Suzanne Fitzpatrick,Tom Mullen,Robina Goodlad,Suzie Scott |
| DOI | http://doi.org/10.1111/1468-2230.00189 |
Rights and Security in Housing: the Repossession
Process in the Social Rented Sector
Tom Mullen*, Suzie Scott, Suzanne Fitzpatrick and Robina
Goodlad**
Rented housing in Britain is divided between a private sector in which houses are
let for profit, and a social rented sector in which houses have traditionally been let
as a service to the community. The social rented sector is itself divided between
two main types of provider: local authorities (council housing), and housing
associations, although account must be taken of other providers, particularly in
Scotland, where Scottish Homes, a quango, is a substantial provider of social
housing. Until recently, the new towns were substantial providers of rented
housing, but the new town development corporations have now all been wound up
and their stock transferred to other landlords. In this article, the expressions ‘social
rented sector’ and ‘social housing’ refer to housing let by the public sector bodies
just referred to and by housing associations.
For most of this century the nature of the provider has determined the legal
tenure on which rented housing has been held. Thus, the Rent Acts applied to
private sector lets, but were not applied to public sector tenants. Between 1980 and
1989 council tenants and housing association tenants shared a common tenure
regime, the secure tenancy. However, when in 1989, a new form of tenure – the
assured tenancy – was introduced for the private sector,1it was also applied to new
housing association lets, although local authorities and other public sector bodies
continued to offer secure tenancies. As a consequence, since 1989, there have been
two different legal tenures within the social rented sector: the secure tenancy and
the assured tenancy. The two legal regimes afford substantially different rights to
tenants. In the light of these changes to tenure regimes, this article discusses the
importance of legal guarantees of security of tenure in the social rented sector, and
compares the way in which the process of recovery of possession has been
operating in the two forms of tenure. This is a two-fold comparison. As the rights
of existing housing association tenants were preserved in 1989, housing
associations continued to have many secure tenants, and so it is possible to
compare the respective positions of secure and assured tenants both (a) as between
local authorities and housing associations, and (b) within the housing association
sector.
The research on which this article is based shows that there are substantial
differences in the outcomes of the repossession process for different groups of
tenants. The questions these outcomes pose include whether differences in the
legal rights of secure and assured tenants are capable of explaining the outcomes of
the repossession process, and what other factors might be influencing outcomes.
The Modern Law Review Limited 1999 (MLR 62:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 11
*School of Law, University of Glasgow
**Centre for Housing Research and Urban Studies, University of Glasgow
1 By the Housing (Scotland) Act 1988. Assured tenancies were introduced for England and Wales by
the Housing Act 1988.
These questions are themselves relevant to broader themes about the role of law in
a regulated housing system and the appropriate legal framework for securing the
social rights of citizenship.2
The focus of this article is the social rented sector in Scotland. But although
Scotland has its own regime of landlord and tenant law, the broad thrust of housing
policy and the aims of housing legislation have been similar throughout Britain in
recent years.3Many of the insights derived from the research may, therefore, be
transferable, provided allowance is made for legal and contextual differences
between the social rented sectors in Scotland and elsewhere in Britain. Important
differences between Scottish and English law are highlighted in the text or
footnotes.
The research
The research which provides the data for this article4was funded by Scottish
Homes, a public agency which took over the functions of the Housing Corporation
in Scotland, including funding and regulating housing associations, after the
picture of the extent to which the position of tenants in the social rented sector had
been affected by the introduction of assured tenancies under Part II of the Housing
(Scotland) Act 1988 (‘the 1988 Act’), with particular, but not exclusive, emphasis
on issues of security of tenure. The research had four elements: first, an analysis of
the tenancy agreements used by social landlords in Scotland; second, a
questionnaire survey on landlords’ repossession policies, practices and activity;
third, an analysis of court records of repossession cases brought by housing
associations in four Sheriff courts; and, fourth, case studies of housing
management in nineteen social landlords. The fieldwork and data analysis were
carried out between January and August 1996. The questionnaire data relate to the
financial years 1994–95 and 1995–96. The court records are those for the calendar
year 1995. The research was carried out immediately before the local government
reorganisation of April 1996 and, therefore, all local authority data refer to pre-
reorganisation authorities.
The housing policy context
The principal concern of housing policy in relation to rented housing in the 1980s
and 1990s has been to increase the role of the market. The public sector has been
reduced by a combination of measures including granting public sector tenants the
2 See for example, M. Partington, ‘Citizenship and Housing’ in R. Blackburn (ed) Rights of Citizenship
(London: Mansell, 1993).
3 Whether the important changes made by the Housing Act 1996 which apply only to England and
Wales mean that we are embarking on a period of divergent development remains to be seen. The
principal changes in the 1996 Act – new rules on allocation of housing, reduced duties to the
homeless, introductory tenancies, and the raft of changes related to anti-social behaviour – were not
applied to Scotland, although some relatively minor aspects of the first and last mentioned have
already led to amendments to Scottish legislation, including those in the Crime and Disorder Act
1998.
4 T. Mullen, S. Scott, S. Fitzpatrick and R. Goodlad, Tenancy Rights and Repossession Rates in Theory
and Practice (Edinburgh: Scottish Homes, 1997).
5 Unlike the Housing Corporation, Scottish Homes is also a significant social landlord, but it intends to
divest itself of its housing stock over the next few years.
The Modern Law Review [Vol. 62
12 The Modern Law Review Limited 1999
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