10 May 2021

The Domestic Abuse (Protection) (Scotland) Bill was introduced to the Scottish Parliament on 2 October 2020 to improve the protections available to people who are at risk of domestic abuse, particularly where they are living with the perpetrator of abuse. The Bill aimed to do this in two ways: Part 1 creates new orders which can be made by the police and the courts; and Part 2 will allow a social landlord to apply to the court to end the tenancy of a domestic abuse perpetrator.

The Bill was passed on 17 March 2021 and the Domestic Abuse (Protection) (Scotland) Act 2021 received Royal Assent on 5 May 2021. Whilst the commencement date of the Act is yet to be appointed, Registered Social Landlords should take steps now to understand the provisions within the Act and, in particular, the new eviction ground that it creates.

This article summarises the changes the Act makes to the Housing (Scotland) Act 2001 and suggests some steps RSLs can take to prepare for the Act coming into force. We will continue to monitor for the commencement date.

Part 2 - Social housing

The Act creates a new ground (ground 15A) on which a social landlord can apply to the court under section 14 of the Housing (Scotland) Act 2001 to end the tenancy of the perpetrator, with a view to transferring the tenancy to the victim of domestic abuse or ending the perpetrator’s interest in the tenancy where the perpetrator and victim are joint tenants. In doing, so the victim will be able to remain in the family home. Landlords can only do this if the person who has been abused wishes to continue living in the home.

The new ground requires that a person who is the tenant or one of the joint tenants has engaged in behaviour which is abusive of their partner or ex-partner. The definition of abusive behaviour within the Act is wide ranging. It can include both physical and psychological harm, as well as behaviour directed towards a person or property. It may also consist of a single incident or a course of conduct.

“Partner or ex-partner” is defined as either a spouse or former spouse, or civil partner, or former civil partner, or a person who has lived in the house as if a spouse for a period of at least six months in the twelve months prior to the proceedings being raised. This can include intermittent periods that amount to six months in total within the last twelve months.

Where a landlord raises proceedings under section 14 and ground 15A, the landlord is required to give the tenant, as well as any qualifying occupier, advice and assistance regarding alternative accommodation. This advice and assistance must be provided as soon as is reasonably practicable after raising the proceedings. The landlord must also have regard to any guidance published by the Scottish Government in respect of ground 15A before raising such proceedings. We await the publication of such guidance.

How can RSLs prepare?

RSLs must familiarise themselves with the terms of the Act and consider how they may adequately investigate and deal with reports of abusive behaviour if Ground 15A is to be relied upon. However, landlords should be mindful that the Act does not automatically require them to use Ground 15A if the relevant circumstances apply. They should continue to signpost victims of domestic abuse to other organisations such as Women’s Aid and family law solicitors who can advise on the other remedies available to them. RSLs may also consider updating (or introducing) a Domestic Abuse Policy upon the publication of the Scottish Government guidance on ground 15A.

Please contact a member of our Social Housing litigation team if you have any queries in relation to the above.

Grant Hunter, Partner: ghu@bto.co.uk / 0141 221 8012