This blog explains the changes brought about by new regulations (the Relevant Adjustments to Common Parts (Disabled Persons) (Scotland) Regulations 2020) which mean that a disabled homeowner or tenant can request adaptations to the communal areas of their buildings, provided a majority of the other homeowners agree.
What happens currently?
Section 52 of the Housing (Scotland) Act 2006 (Part 7) (“the 2006 Act”) outlines the rights of a tenant to adapt a private rented property. Currently, provided that they have the landlord’s permission (which cannot be unreasonably withheld), a tenant may carry out any work in the house which they consider necessary for:
“the purpose of making the house suitable for the accommodation, welfare or employment of any disabled person who occupies, or intends to occupy, the house as a sole or main residence”.
At present, adaptations for all housing tenures (i.e. private tenants, social rented tenants) can only be made if consent is given by everyone who owns part of the communal area. This is stated in the Tenements (Scotland) Act 2004..
The Equality Act 2010 (“the 2010 Act”) is UK legislation which protects people from unlawful discrimination because of their ‘protected characteristics’ and aims to promote a fair and more equal society. The Act gives Scottish Ministers the power to make regulations regarding adjustments to common areas. This was considered appropriate as adjustments to common areas require the consent of other property owners and concern primarily devolved areas of responsibility (i.e. housing, land registration, civil justice).
The 2010 Act says that common parts means:
“the structure and exterior of, and any common facilities within or used in connection with, the building or part of a building which includes the premises but only in so far as the structure, exterior and common facilities are not solely owned by the owner of the premises”.
What has changed?
The major change with the new regulations is that a homeowner or tenant now has the right to make adaptations to the communal areas of their buildings, provided a majority of the other homeowners agree. Previously, adaptations required consent from all the homeowners in a building. The majority can be as few as one and is outlined in Regulation 5.
Regulation 3 says that a tenant does not need to first obtain their landlords’ permission to make adaptations to common parts.
There are forms to be sent out if an adaptation is required. These are contained in this legislation.
However, the Regulations state that an application for consent should be sent to all owners of the common parts affected. This application must be done on the form prescribed in Regulation 5, found in part one of the Schedule refers to the owner(s) of “other properties with a share in the common parts of the premises affected by the proposed works”. There will be an amending set of regulations to remove this inconsistency but, as yet, there is no timescale.
What does this mean for tenants and homeowners?
These regulations mean that a tenant (with the landlord’s consent) or homeowner can, with the agreement of the majority of their homeowners, install a ramp or other adaptation within communal areas of a building. This will make buildings, such as blocks of flats or tenements, more accessible for disabled people.
It will mean that a single owner occupier in a property with shared common parts should not be able to prevent work to common areas being carried out.
Any dispute regarding The Relevant Adjustments to Common Parts (Disabled Persons) (Scotland) Regulations 2020 will be heard in the Sheriff Court as this is a property based matter, affecting the property itself, rather than a tenancy related matter, such as rent arrears.
The disabled person would normally pay for the adaptations, unless there was a separate agreement with co-owners of the common parts. However, it is more likely that the majority of costs would be paid for by the relevant Integration Joint Board (IJB). IJBs were established through the Public Bodies Joint Working (Scotland) act 2014 and encourage joint working between partners, particularly NHS boards and local authorities. It is expected that the IJBs will oversee the budgets for health and social care in the future, under which adaptations are included.
Why did it take so long to make the regulations?
The Scottish Government carried out a consultation in 2011 where 92% of respondents agreed with the proposals behind these new regulations. Section 37(3) of the Equality Act 2010 requires Scottish Ministers to consult a Minister of the Crown if they want to make changes to the legislation.
The Minister for Local Government, Housing and Planning, Kevin Stewart MSP, told the Local Government and Communities Committee, on 22 January 2020, that:
“there was complexity in the fact that we were given the devolved powers to deal with the matter but had to seek permission to do so.”
The legislation was the first of its kind in the UK and required in depth work with a wide range of stakeholders to ensure it was fit for purpose. There were also changes at ministerial and official level which impacted on the timetable.
When will the Regulations be implemented?
These regulations came into force on Monday 24th February 2020.