Rent arrears guide

 March 2017

Fact sheet no. G1 SCOT Rent arrears guide

This guide will give you practical information and advice if you are behind on your rent. It will explain your options, and the processes your landlord must follow.

Use this guide to:

  • work out what kind of tenancy you have;
  • find out if there is any help you can get with your rent;
  • decide the best option for you;
  • help you negotiate with your landlord; and
  • get advice about dealing with court action.

IMPORTANT

Important:

paying your rent

Rent arrears are very important because you could lose your home if you do not pay them.

This guide is split into two parts. Which part you need to read will depend on what sort of tenant you are and when you started renting your home.

Go to Part one if:

  • you are a council tenant;
  • you are a housing co-operative tenant;
  • you are a housing association tenant; or
  • you rent from a private landlord and you started renting your home before 2 January 1989.

Housing co-operatives are similar to housing associations.  They offer rented accommodation in city centres, housing estates and rural areas.  Housing co-operatives are jointly owned and run by their tenants.  This means that the tenants take responsibility for arranging repairs, making decisions about rent and who joins or leaves the co-op.

Go to Part two if you rent from a private landlord and you started renting your home on or after 2 January 1989.

You cannot be evicted for rent arrears without a court order.  If your landlord is threatening to do this, contact us for advice.

If you are not sure what kind of tenancy you have, contact us for advice.

Part one

Information:

housing cooperatives

Housing co-operatives are similar to housing associations.  Housing co-operatives are jointly owned and run by their tenants.  This means that the tenants take responsibility for arranging repairs, making decisions about rent and who joins or leaves the co-op.

This section has advice for:

  • council tenants;
  • housing co-operative tenants;
  • housing association tenants; and
  • private tenants who started renting their home before 2 January 1989.

This section gives advice on the following.

  • Housing Benefit
  • How can I apply for my rent to be registered as a fair rent?
  • How can I pay off my rent arrears?
  • What if my landlord refuses to accept my offer?
  • What if my landlord takes court action?
  • Eviction – what can I do?

If you are not sure which type of tenancy you have, contact us for advice.

Housing Benefit

Rent arrears can often build up when you don’t claim all the benefits you can. Claiming Housing Benefit can reduce the amount of rent you have to pay. To find out how much you might get, contact Shelter or a local advice agency. See Useful contacts at the end of this guide or use an online calculator such as www.turn2us.org.uk

  • To make a claim, ask your council’s Housing Benefit office for a form. Some councils will let you apply over the phone. You can also get a copy of the form online at www.gov.uk.
  • When you make a claim, keep a copy of your claim form, and any letters you send or receive.
  • Pay as much as you can towards your rent until your benefit comes through.
  • Tell your landlord you have made a claim for Housing Benefit.

Recent changes to Housing Benefit

The ‘under-occupancy rules’

From 1 April 2013, if you rent your home from a social housing landlord such as the council or a housing association, and you are of working age, your Housing Benefit may be cut if it's considered you have more bedrooms than you actually need. This means that people living in houses larger than they need (under-occupiers) will have to move to somewhere smaller, or make up the difference in rent. In this situation, Housing Benefit will be reduced with a:

  • 14% cut in Housing Benefit if you under-occupy by one bedroom; or
  • 25% cut in Housing Benefit if you under-occupy by two or more bedrooms.

You are allowed one bedroom for each category shown below:

Extra advice

disabled children

If you have a child that you think cannot share a bedroom with another child because they have a disability, tell your council. If your child receives the middle or higher rate care component of Disability Living Allowance, they should take this into account when working out how much Housing Benefit you are entitled to. They may also ask you for medical evidence or other information about your child's condition to help them make their decision.

  • Each adult couple.
  • Each person over 16.
  • Two children of the same sex under 16.
  • Two children under 10, regardless of their sex.
  • Any other child.
  • An overnight carer you or a joint tenant needs but who doesn't normally live with you.
  • A foster child.
  • An adult ‘child’ who still lives at home but is a member of the armed forces and is away on operations.

If you think you may lose some Housing Benefit, it's important to think about how you'll be able to pay your rent, or if you will need to move to somewhere smaller. Phone Shelter for advice on 0808 800 4444.

The ‘benefit cap’

Information: 

if you are of pension age

You won't be affected by the benefit cap or the bedroom tax if you are over Pension Credit age. It doesn't matter whether you actually get Pension Credit, or whether you're working. 

In 2013 the Government introduced a ‘benefit cap’. This means there is a limit on how much in benefits you can receive if you and your partner are of working-age but not working. The cap will apply if your combined income from certain benefits is over a set limit, and means that the amount of Housing Benefit you receive may be reduced. You will have to either make up the difference in rent yourself, or move somewhere cheaper. The cap will not apply if anyone in your household receives particular disability-related and some other benefits.

Discretionary housing payment

If Housing Benefit won’t cover all your rent, and you cannot afford to make up the difference yourself, ask your council about a discretionary housing payment. This is an amount of money the council can give you to help with housing costs that doesn’t have to be paid back. It is up to the council whether to give you a discretionary housing payment, and if so, how much. It might also be a temporary payment. Ask your council or contact us for advice.

The payment of Housing Benefit

Extra advice:

interim payments of Housing Benefit

If you are a private or housing association tenant and:

  • you are waiting for a Housing Benefit claim to be sorted out;
  • 14 days have gone by; and
  • this is making your rent arrears worse;

explain this to the Housing Benefit office at your council. Ask for an ‘interim’ payment of Housing Benefit. Contact us for advice.

Under current rules, if you are a council tenant, your Housing Benefit is paid direct to the rent office of your council’s housing department. If you are a housing association or private tenant, Housing Benefit will be paid direct to you, but you can arrange to have it paid direct to your landlord if you want to. Doing this may make your landlord more willing to come to an arrangement over your arrears, because they will be sure of receiving regular payment.

From October 2013 you may be moved onto a new benefit called Universal Credit. Universal Credit will replace benefits such as Income Support, Jobseekers’ Allowance and Employment and Support Allowance. Universal Credit will be paid directly to you, and will include help with your housing costs. It will be up to you to use part of your Universal Credit to pay your rent. People will be moved onto Universal Credit at different times. Contact us for advice

How can I apply for my rent to be registered as a fair rent?

Important:

check your local rent levels

Before you apply to the rent officer, check how much rent other people are paying in your area for similar flats or houses to see if your rent is above average.  The rent officer can increase the rent on your home as well as reduce it.

If you rent from a private landlord or housing association (not a council) and you feel that your rent is very high, it may be worth having a fair rent registered on your home.  A Rental Valuation Officer from the Rent Service Scotland will decide what a fair rent for your home is and fix it at that.  Your landlord cannot then increase the rent unless a new fair rent is set.  To apply to have a fair rent registered you need to fill in a form RR1, which you can get from the Scottish Government website www.gov.scot.

How can I pay off my rent arrears?

It is never too early or too late to come to an arrangement to pay off your arrears.  You may not be in arrears yet, or your landlord may have started court action.  Whatever the situation, do not delay – contact your landlord as soon as possible. If you are a private or housing association tenant and:

  • you are waiting for a Housing Benefit claim to be sorted out;
  • 14 days have gone by; and
  • this is making your rent arrears worse,

explain this to your Housing Benefit office.  Ask for an interim payment of Housing Benefit.  Contact us for advice.

Have my rent arrears been worked out properly?

Get a breakdown of your rent account from your landlord.  Check that all the payments you have made have been added to your account.  Ask for regular statements. Also, keep all your receipts.  In particular, check whether you have been overpaid any Housing Benefit.  Sometimes Housing Benefit that has been claimed back by the council is included as rent arrears on your rent account.  If you are a council tenant, the council cannot treat Housing Benefit overpayments as rent arrears and they should keep them in a separate account.  You cannot be evicted from your home for receiving too much Housing Benefit.

If you are not sure if your rent arrears include Housing Benefit overpayments, or the council refuses to separate the two, contact us for advice.

If you are not a council tenant, the rules are complicated as to whether or not a Housing Benefit overpayment is treated as rent arrears.  If this applies to you, contact us for advice.

Extra weekly payments

Information:

self-help pack

Our self-help pack includes further information on types of debt, guidance on completing a budget and how to negotiate with creditors.

  • Use your budget to work out how much to pay off the arrears each week.
  • Don’t be afraid to offer only a small amount if that is all you can afford.
  • If you get Housing Benefit, offer to have it paid directly to your landlord.  This might make them more willing to agree to your offer (but see direct payments of rent arrears in the Extra advice box below).
  • Start paying the amount you are offering immediately to the landlord or agent.

If you can’t afford to pay anything, contact us for advice

Direct payments of rent arrears

Extra advice:

payments directly to your landlord

The rules about how Housing Benefit is paid are changing.  In some cases, you will no longer be able to have your Housing Benefit paid directly to your landlord.  Instead, it will be paid directly into your bank account every month. Contact us for advice.

If you get Income Support, Pension Credit, Employment and Support Allowance or Jobseeker’s Allowance, you can have a set amount taken out of your benefit each week or every two weeks, and paid directly to your landlord for rent arrears. The rules about how Housing Benefit is paid are changing. In some cases, you will no longer be able to have an amount taken out of your benefit each week to help pay your arrears. Contact us for advice.

What if my landlord refuses to accept my offer?

Important:

no eviction without a court order

You cannot be evicted without a court order. If your landlord threatens to throw you out without going to court, or harasses you to make you leave, they may be acting illegally.  If this is happening to you, contact your local council.  Ask for the person who deals with tenants who are being harassed.  You can also contact the police.

Just because your landlord refuses your offer of payment, does not mean you will automatically lose your home.  If your landlord refuses to accept your offer:

  • start paying your rent immediately plus the amount you have offered off the arrears;
  • contact your landlord and use your budget to show that the amount you have offered is all you can afford;
  • keep a record of all payments and letters to and from your landlord; and
  • keep paying your rent and arrears payments.

If your landlord still takes action against you, contact us for advice. Your landlord might make it difficult for you to pay, for example by not calling for the rent. If this is happening, contact us for advice.

What if my landlord takes court action?

Before court action

Extra advice:

extra protection

If your landlord is a council or housing association, you have extra protection.  If your landlord wants to repossess your home because of rent arrears, they must follow certain steps before they send you the ‘notice of proceedings for recovery of possession’.  These steps are known as 'pre-action requirements'.  See the next section for more information.

These are the usual stages leading to court action.  The landlord will normally send you a letter asking you to pay off the arrears.  If you have not already contacted your landlord to try to reach an agreement, do it now.  Keep paying the rent and what you have offered off the arrears.

If you haven’t made an arrangement to pay off the arrears, some landlords may send a second letter or may get their solicitor to write to you.  Before landlords can take court action, they must send you a formal letter which is called a ‘notice of proceedings for recovery of possession’ (if you are a council or housing association tenant) or a ‘notice to quit’ (if you have a private landlord).  These must be served on you before court proceedings can be started. 

They do not mean you have to leave your home. Contact your landlord straight away and try to reach an agreement. Keep paying your rent and what you have offered off the arrears.

Pre-action requirements

Important:

council or housing association landlords only

The pre-action requirements only apply if your landlord is a council or housing association.  If your landlord has not followed the pre-action requirements, the court may not let your landlord repossess your home.

Your landlord must tell you:

  • about the terms of the tenancy agreement;
  • how much you owe in rent arrears; and
  • if any extra charges will be added to what you owe if the arrears are not paid.

Your landlord must try to give you help and advice about whether you may be entitled to receive:

  • Housing Benefit; or
  • any other type financial help, such as benefits or grants.

Your landlord must tell you how you can get help and advice with your debts.  They should also encourage you to contact your local authority for further help.

Your landlord must try to come to a reasonable arrangement with you about how you pay your:

  • rent arrears; and
  • ongoing rent.

Your landlord must not start possession action before considering:

  • any claim for Housing Benefit you are making and what the likely result of this will be;
  • whether you are likely to pay off your rent arrears in a reasonable period of time; and 
  • whether you are likely to be able to stick to any repayment plan.

Court action

If you have not been able to make an arrangement with your landlord and the time limit on the notice has run out (normally 28 days after you receive it), your landlord can ask the court to send you a ‘summons’.  This will give you a date and time for a hearing in the sheriff court.

Even if you are taken to the sheriff court, this does not mean you will automatically lose your home.  Even if the court decides you cannot afford to stay there, you will not be evicted from your home on the date of the hearing.

Keep paying your rent and the amount you have offered off the arrears.  This will show the court that you are now able to pay.

Important:

pre-action requirements

If your landlord has not followed the pre-action requirements, explain this on the reply form.  If you can provide evidence of this at the hearing, the court may not let your landlord repossess your home.

The court will send you a summons with a form called a ‘statement of claim’ which sets out your landlord’s case for taking possession of your home.  You will also get a reply form which you should fill in and return to the court within 14 days.

Filling in the reply form

Read through the ‘statement of claim’.  It should give:

  • the amount of rent arrears;
  • details of any arrangements that you have made with your landlord to repay the arrears; and
  • information about your circumstances that your landlord is aware of, such as whether you receive Housing Benefit.

If you do not agree with any of the details, say so on the first page of the form.p>

Extra advice:

keep paying your rent

Remember to keep paying your rent.  If you have arrears, it is important to start paying the amount you have offered. You can still come to an agreement with your landlord or their solicitor.  If you can reach an agreement, the hearing date can be put off (‘adjourned’) to give the agreement a chance to work.

  • You are asked whether you can pay anything towards the arrears.  Put down the amount which you have worked out that you can pay using your budget.  You should do this even if your landlord has already refused to accept this amount.  It is better to put down an amount which you can realistically afford to pay rather than offer repayments that you won’t be able to keep to.         
  • If you cannot afford to pay anything off the arrears, contact us for advice.
  • Fill in the financial details.  This will allow the court to see how you have worked out how much you can afford to pay towards the arrears.  Use the spare boxes for items which are not on the form but which appear on your budget
  • You are also asked for details about your bank account.  If you have money in your account to pay household bills, do not include this in the credit balance on the form.
  • At the bottom of the form there is a space for giving your side of the case.  Explain why you got into the arrears.  Ask here if you want the court to give you more time to find somewhere else to live.

If your landlord says they can evict you without a court order or is threatening you, contact us for advice.

The court hearing

Remember, you will not be evicted from your home on the day of the hearing.

  • You must go to the court hearing, even if you have already made an agreement with your landlord.
  • If you will not be able to go to the hearing because of illness or disability, write to the court to explain your circumstances and ask if a relative or friend can represent you.  Don’t forget to include the case number in the letter. This can be found on the papers you received from the court.
  • The purpose of the hearing is not to find anyone guilty or innocent but to come to a fair decision for both sides.  At the hearing you, your landlord or their representative and the sheriff will be present.  The sheriff is the person who decides your case.  Call the sheriff ‘My Lord’ or ‘My Lady’.

When you go to court

  • Make short notes about what you want to say at the hearing.  Take these in with you and refer to them if you need to.
  • If your circumstances have changed since you filled in the court form, work out a new budget. Take three copies of your budget with you (one for you, one for the sheriff and one for the landlord’s representative).
  • If English is not your first language, you could take an interpreter with you.
  • Don’t be afraid to approach the landlord’s representative before the hearing to see if you could come to an agreement to present to the sheriff.  But don’t be pressed into offering more than you can afford.  The sheriff may agree with you and allow you to pay less than the landlord’s representative wants.
  • Answer questions clearly, calmly and fully.  This will help the sheriff make his or her decision.  Remember, you have as much right to put your case forward as the landlord.

Orders the sheriff might make

At the hearing the sheriff can make one of the following orders.

  • Dismiss your landlord’s action.  For example, the court may do this if you have paid off all the arrears before the hearing date or if your landlord has not followed the pre-action requirements.
  • Continue (‘adjourn’) the case to give you more time.  This could be to provide extra information to support your case, or to pay off your arrears in full, for example, by sorting out your Housing Benefit claim.  This is called a ‘continuation’.
  • Continue the case by agreement to allow you to repay what you owe.  This means that if you keep the court’s order (normally that you pay the rent plus a set amount off the arrears each week or month), the court will not allow your landlord to take your home.  It may be that a ‘time to pay’ direction will be made.
  • ‘Sist’ the case (that is, put it on hold), to allow repayments, or to allow you to send in a legal aid application, if you want to defend the case.
  • Fix a date for a ‘proof’ (a full hearing of the case) if you have a defence.
  • Make an order for outright possession of the property.  This means that at the end of a set period (usually 28 days), your landlord can take the next step towards repossessing your home.  See the later section Eviction – what can I do?.

What should I ask for?

Extra advice:

what if I can't pay the order?

If at any time you find you cannot pay the amount which the court has ordered, you must go back to the court, explain the reason why you cannot pay, and ask for the order to be changed to an amount you can afford.

  • If you can show the court that it would be unreasonable to make a ‘decree of ejection’ (that is, a court order authorising your landlord to make you leave your home, enforceable by sheriff officers), you should ask the sheriff to dismiss the landlord’s action.  To do this you will have to give reasons for a defence.  This might be because you have been paying the rent plus a regular amount off the arrears for several months, or your landlord has not followed the pre-action requirements.  Contact us for advice before you go to court.
  • If you can pay all the arrears in a short time, for instance by sorting out your Housing Benefit claim, ask for a ‘continuation’.
  • If you can’t pay off the arrears in a short time and the amount of arrears is correct, you should make an offer of repayment that you can afford.
  • If you are on Income Support, Pension Credit, Employment and Support Allowance, Jobseeker’s Allowance, or a low income, do not be afraid to offer a very small amount if that is all you can afford.  Use the Department for Work and Pensions (DWP) standard amount for direct payments as a guide.  This amount changes each April. Contact us for advice.
  • If the sheriff thinks your offer is fair, they are likely to ‘continue’ or ‘sist’ the case (see the previous section Orders the sheriff might make) if you agree to pay the normal rent plus the amount offered each week or month off the arrears.  As long as you can keep to what is ordered, your landlord can take no further action.
  • If the court will not accept any of these arrangements, the sheriff can make an outright decree.  This would normally allow you at least 28 days before your landlord could take further action.

Eviction – what can I do?

Information:

recall of decree

If you have not previously defended the action, or appeared in court for anything other than a continuation, you may be able to apply for a ‘recall of decree’ and ask for a hearing.  If the decree is recalled, the court can order a sist or continuation instead of a new decree.  Contact us for advice.

The court will not take action to evict you unless your landlord asks it to.  Contact your landlord immediately if:

  • you have not kept up the payments and the case has been ‘continued’ or ‘sisted’; or
  • the time given on a ‘decree of possession’ has run out.  Try to make an arrangement with them.

Try and move out before the eviction date because the sheriff officers can force their way into your home if they have to. They might remove your possessions from your home.

If you cannot reach an agreement, your landlord can apply to the court for a ‘warrant of ejection’.  This is a letter from the sheriff officers giving you a date and time when they will come to evict you.  You may be able to stop this, but you must act quickly.  If your landlord applies for a warrant of ejection, they must tell your local authority.  This may help you to get extra advice to deal with your situation.

After you are evicted your landlord may:

  • ask you to pay the rent you still owe; or
  • ask you to pay for repairing any damage done to your home while you were renting it.

Getting rehoused

See our fact sheet:

                Homelessness.

If you think you may lose your home, contact your local council to make a homeless application.  You can get help from the council if you are likely to become homeless in the next two months.  The council only has to offer you permanent rehousing as homeless under certain circumstances.  Otherwise they may only offer advice or temporary accommodation.

Part two

  • The following advice is for private tenants who started renting their homes on or after 2 January 1989.  If you are a tenant of a local authority, housing association (or a water authority or other public organisation), this information does not apply to you Go to the earlier section Part one.
  • If you are a private tenant and started renting your home before 2 January 1989, this information does not apply to you. Go to the earlier section Part one.

What type of tenancy do I have?

Short assured tenancies

Short assured tenancies last for a fixed time of at least six months.  Private landlords often use this type of tenancy. Your landlord must give you a written notice (called an AT5 notice) that you have a short assured tenancy before the tenancy begins.

Assured tenancies

Assured tenancies usually have no time limits although some may last for a fixed time.  Since October 2002, only private landlords can offer this type of tenancy. All council and housing association tenancies are now Scottish secure tenancies.  If you are not sure what tenancy you have, contact us for advice.

Housing Benefit

Rent arrears can often build up when you don’t claim all the benefits you can. Claiming Housing Benefit can reduce the amount of rent you have to pay.

  • To find out how much you might get, contact Shelter or a local advice agency. See Useful contacts at the end of this guide or use an online calculator such as www.turn2us.org.uk
  • To make a claim, ask your council’s Housing Benefit office for a form. Some councils will let you apply over the phone. You can also get a copy of the form online at www.gov.uk.
  • When you make a claim, keep a copy of your claim form, and any letters you send or receive.
  • Pay as much as you can towards your rent until your benefit comes through.
  • Tell your landlord you have made a claim for Housing Benefit.

If you are having any problems claiming Housing Benefit, contact us for advice.

Housing Benefit rent restriction rules

In some situations, the council will only pay Housing Benefit up to a maximum level, even if the actual cost of renting the property is higher.

These rules may affect you if:

  • you rent from a private landlord;
  • your tenancy began on or after 2 January 1989; and
  • you have not been moved to Local Housing Allowance. See the later section Local Housing Allowance.

If you think the Housing Benefit rent restriction rules may apply to you, ask your council or contact Shelter. See Useful contacts at the end of this guide.

Housing Benefit if you are under 35

From 1 January 2012, if you are under the age of 35 and you do not live with your partner or dependents such as children, there are new rules about how much Housing Benefit you can get. You may only get enough Housing Benefit to pay for a single room with shared use of a living room, kitchen and bathroom. This rule only applies if you rent from a private landlord.

There are some situations in which this rule will not apply to you, for example, if you live in a certain type of hostel. Ask your council or contact us for advice.

The ‘benefit cap’

The ‘benefit cap’  means there is a limit on how much in benefits you can receive if you and your partner are of working age but not working. The cap applies if your combined income from certain benefits is over a set limit, and means that the amount of Housing Benefit you receive may be reduced. You will have to either make up the difference in rent yourself, or move somewhere cheaper. The cap will not apply if anyone in your household receives particular disability-related and some other benefits.

Local Housing Allowance

Information:

when LHA does not apply

The LHA rules will not apply if:

  • you are a council tenant;
  • you are a private tenant but your tenancy started before 2 January 1989; or
  • you rent from a housing association.

If you were claiming Housing Benefit before 7 April 2008, LHA only applies after this date if:

  • you move house;
  • you make a new claim for Housing Benefit; or
  • you become a private tenant on or after 7 April 2008.

Local Housing Allowance (LHA) is a different way of working out how much Housing Benefit someone can get. LHA rules only apply to certain private tenants.

LHA means that you will only get a certain amount of Housing Benefit, even if the rent on your home is higher. If this happens, you will have to pay the difference. The amount is worked out by a rent officer, using information about the cost of renting in your local area and the type of property you live in.

Under LHA rules, your benefit will be paid directly to you or into your bank account. It is then up to you to pay the rent to your landlord. However, if you are paying off rent arrears directly from your benefit, for example Income Support, or you have eight weeks’ rent arrears, the council will pay your landlord directly.

There may be other circumstances in which the council will agree to pay your landlord directly.  Ask your council or contact us for advice. 

Information:

Local Housing Allowance rates

You can find a table showing the levels of Local Housing Allowance for each region on the Scottish Government’s website, www.gov.scot.

What can I do if Housing Benefit or Local Housing Allowance does not pay all my rent?

  • You may be able to ask the landlord to charge you less rent.
  • Pay the extra rent yourself out of your income.
  • Take in a lodger. But get advice first to see how this would affect your benefits and tenancy.
  • Ask the council to review their decision about how much benefit they will pay. You can appeal against the decision to an independent tribunal within a month of the review decision, but only if you think a mistake has been made.
  • Payments made directly to your landlord for the extra rent by friends, family, or a charity should not affect your benefits.
  • Councils can pay extra towards your rent from a limited fund called the ‘discretionary housing payment fund’. These payments are called ‘discretionary housing payments’. They will only help if you can show you will be in hardship due to exceptional circumstances. If the fund has no money left in it, they can refuse to pay. Write to your council’s Housing Benefit department and ask for a discretionary housing payment. You can ask the council to review their decision but there is no right of appeal. 

Paying Housing Benefit

It can sometimes take several weeks for a Housing Benefit claim to be sorted out.

If you are either an assured or a short assured tenant, it is very important that your Housing Benefit is paid quickly because if you have more than three months’ rent arrears and your landlord takes you to court, the court cannot allow you to stay in your home.

The council should start paying your Housing Benefit within 14 days.  So, if your claim has been delayed, ask for an interim payment.  You should get a ‘payment on account’ unless you haven’t given all the information asked for to deal with your claim.  Contact us for advice.

The rules about how Housing Benefit are changing.  From October 2013, you will normally receive your Housing Benefit directly.  This means that you are then responsible for paying it to your landlord to keep your rent up to date.  Contact us for advice.

What if my landlord increases my rent?

With assured and short assured tenancies there is no fixed limit on the rent. If your landlord increases it, you may be able to challenge the increase by appealing to the First-tier Tribunal for Scotland (Housing and Property Chamber).

If your landlord wants to increase your rent and you think it is too much you can do the following.

  • Write to your landlord and tell them you do not agree to the increase (keep a copy of the letter).
  • Appeal to the First-tier Tribunal for Scotland (Housing and Property Chamber). Phone them on 0141 302 5900 or see www.housingandpropertychamber.scot.
  • Keep paying your old rent.  Put money aside to pay the increase in case the First-tier Tribunal for Scotland (Housing and Property Chamber) decides the new rent is correct.
  • Contact your local authority immediately.  Tell them that your landlord has increased your rent, but you have appealed to the First-tier Tribunal for Scotland (Housing and Property Chamber).  Don’t wait until the tribunal decides your appeal, or you may lose benefit.  If you are not already claiming Housing Benefit or the housing costs element of Universal Credit, the increase in rent may mean that you will now qualify.

Appealing to the First-tier Tribunal for Scotland (Housing and Property Chamber) may be complicated. Contact a local housing advice centre or contact us for advice.

How can I pay off my rent arrears?

It is never too early or too late to come to an arrangement to repay your arrears.  You may not be in arrears yet, or your landlord may have started court action.  Whatever the situation, don’t delay. Contact your landlord as soon as possible.

Explain to the Housing Benefit office if you are waiting for a Housing Benefit claim to be sorted out and this is making your rent arrears worse.  Ask for an interim payment if you have been waiting more than 14 daysContact us for advice.

Have the rent arrears been worked out properly?

Get a breakdown of your rent account from your landlord. Check that all the payments you have made have been added to your account. Ask for regular statements and keep your receipts.

If Housing Benefit is paid directly to your landlord and there has been an overpayment, the rules on whether or not a Housing Benefit overpayment should be treated as rent arrears are complicated. Phone Shelter Scotland for advice on 0808 800 4444 or contact us for advice.

If you are not sure if your rent arrears include a Housing Benefit overpayment, contact Shelter or contact us for advice.

Extra payments to clear the arrears

Important:

direct payment of Housing Benefit

The rules about how Housing Benefit is paid are changing.  From October 2013, your Housing Benefit is likely to be paid directly to you in most situations.  This means that you are then responsible for paying it to your landlord to keep your rent up to date.  Contact us for advice.

  • Use Your budget to work out how much you can afford to pay each week or month towards the arrears. Don’t be afraid to offer only a small amount if that is all you can afford.
  • Start paying the amount you have offered straight away. If you cannot afford to pay anything, contact us for advice.

         

Extra advice:

paying off arrears

The rules about how Housing Benefit is paid are changing. This may mean that you will no longer be able to have an amount taken out of your benefit each week to help pay your arrears. Contact us for advice.

Information:

direct payment of rent arrears

If you get Income Support, Pension Credit, Employment and Support Allowance, Jobseeker's Allowance or Universal Credit, you can have a set amount taken out of your benefit and paid directly to your landlord for rent arrears. Contact us for advice.

​What if my landlord refuses to agree to my offer?

Extra advice:

no eviction without a court order

You cannot be evicted without a court order.  If your landlord threatens to throw you out without going to court or harasses you to make you leave, they may be acting illegally.  If this is happening to you, contact your local council. Ask for the person who deals with tenants who are being harassed. You could also phone the police.

Just because your landlord refuses your offer of payment, this does not mean you will automatically lose your home.  If your landlord refuses to accept your offer:

  • start paying your rent immediately plus the amount you have offered off the arrears;
  • contact your landlord, use your budget to show what you can afford;
  • keep a record of all payments, and letters to and from your landlord; and
  • keep paying your rent and arrears payment.

If your landlord still takes action against you, contact us for advice.

Your landlord might make it difficult for you to pay, for example, by not calling for the rent. If this happens, contact us for advice.

Renewing your short assured tenancy

Important:

if your landlord starts court action

If you are a short assured tenant and your landlord starts court action because your tenancy has come to an end, then the court cannot allow you to stay in your home.  However, your landlord may miss a time limit or make another technical mistake.  If this applies to you, contact Shelter Scotland on 0808 800 4444 or see scotland.shelter.org.uk to search for face to face advice near you.

If you have a short assured tenancy, your landlord does not have to renew your tenancy when it runs out.  They are not likely to let you stay if you are behind with your rent.

You must try to come to an arrangement with your landlord and pay the amount you have offered off your arrears.  If you pay regularly, your landlord may be willing to renew your tenancy.

See our fact sheet:

Homelessness.

What if my landlord takes court action?

Your landlord can take court action if:

  • you have any rent arrears;
  • you have more than three months of rent arrears; or
  • you have ‘persistently delayed’ paying your rent (for example, if your Housing Benefit always arrives after the date the rent is due).  You do not have to be in arrears when your landlord starts court action for this reason.

If you have a short assured tenancy that has run out, see the previous section Renewing your short assured tenancy.

Before court action

These are the usual stages leading to sheriff court action.

  • The landlord will normally send a letter asking you to pay off the arrears.  If you have not already contacted your landlord, do so now and try to reach an agreement.  Keep paying your rent and the amount you have offered off the arrears.
  • If you haven’t made an arrangement to pay off the arrears, some landlords may send a second letter or may get their solicitors to write to you.
  • Before landlords can take court action, they must send you a formal letter which is called a ‘notice of intention to raise proceedings for possession’.  This must be served on you before court proceedings can start.  It does not mean you have to leave your home. They must also send you a ‘notice to quit’.
  • Contact your landlord straight away and try to reach an agreement.  Keep paying your rent and the amount you have offered off the arrears.

If you have three months' arrears

Important:

three months' arrears

If your landlord goes to court, and you still have three months' rent arrears at the date of the hearing, the court cannot allow you to make an arrangement to pay the arrears.  The only protection the court can give you is to allow 14 days, or up to 6 weeks in very rare circumstances, to find somewhere else to live.

  • If you have three months' rent arrears, start paying your rent and something off the arrears immediately.  The amount you pay must reduce your arrears to less than three months' worth by the date of the court hearing.
  • If you are in arrears because you’re waiting for Housing Benefit to be paid, contact your Housing Benefit office.  Explain why your claim is urgent and ask for an interim payment.
  • If you can’t start paying immediately or if you can’t reduce your arrears quickly enough, contact us for advice.

Court action

Important:

keep paying your rent

If you have arrears, it is important to start paying the amount you have offered.  You can still come to an agreement with your landlord or their solicitor.  If you can reach an agreement, the hearing date can be put off (‘continued’) to give the agreement a chance to work.  If your landlord says they can evict you without a court order, or is threatening you, contact us for advice.

If you have not been able to make an arrangement with your landlord and the time limit on the notice has run out, your landlord can ask the court to send you a ‘summons’.  This will give you the date and the time for a hearing in the sheriff court.

Your landlord can start court action even if you have no rent arrears, but have had arrears in the past. This is known as ‘persistent delay’ in paying your rent.  However, your previous delays in paying rent would usually need to be quite serious before the court will give possession to your landlord.

  • Even if your landlord takes you to the sheriff court, you will not lose your home on the date of the court hearing.
  • Keep paying your rent and the amount you have offered off the arrears.  This shows the court you are now able to pay.
  • Even if you have managed to clear your arrears by the date of the court hearing, the landlord can still go ahead with the court action. So you must fill in the court papers and go to any court hearing. If you are in this situation, contact us for advice.

The court will send you a summons with a form called a ‘statement of claim’ which sets out the landlord’s case for taking possession of your home.  You will also get a form which you should fill in and return to the court within 14 days.

Filling in the reply form

Read through the ‘statement of claim’. It should give:

  • the amount of the rent arrears;
  • details of any arrangements that you have made with your landlord to repay the arrears; and
  • information about your circumstances that your landlord is aware of, such as whether you receive Housing Benefit.

If you do not agree with any of the details, say so on the first page of the form.

  • You are asked whether you can pay anything towards the arrears.  Use your budget to work out what you can afford to pay.  If your landlord is asking for possession because you have three months’ rent arrears, remember it could be very important to reduce them to less than this by the date of the hearing.
  • If you cannot afford to pay anything off the arrears, contact us for advice.

Fill in the financial details. This will allow the court to see how you have worked out how much you can afford to pay towards the arrears. You may find it easier to attach a copy of your budget to the reply form.  This is because the boxes on the reply form may not allow you to input all the figures from your income and outgoings.

You are asked for details about your bank account.  If you have money in your account to pay business or household bills, do not include this in the credit balance on the form.

At the bottom of the form, there is a space for giving your side of the case.  If you are not in rent arrears now, but have been in the past, explain why you got into rent arrears and why you can now afford to pay your rent.  If you are going to find it difficult to find somewhere else to live, ask the court if you can be given some extra time.

The court hearing

Extra advice:

no eviction at the hearing

You will not be evicted from your home on the day of the hearing.

You must go to the court hearing even if you have no rent arrears or if you have already made an agreement with your landlord.

If you will not be able to go to the hearing because of illness or disability, write to the court to explain your circumstances and ask if a relative or friend can represent you.  Don’t forget to include the case number in the letter.  You will find this on the court form.

The purpose of the hearing is not to find anyone guilty or innocent but to come to a fair decision for both sides.  As long as your arrears are under three months' worth, the court should consider any offer of payment you make on your rent arrears.  If your arrears are for more than three months, and this is because of a problem with your Housing Benefit (such as a delay in it being paid), the court should take this into account.

At the hearing you, your landlord or their representative and the sheriff will be present.  The sheriff is the person who decides your case.  Call the sheriff ‘My Lord’ or ‘My Lady’.

When you go to court

  • Make short notes about what you want to say at the hearing.  Take these with you and refer to them if you need to.
  • If your circumstances have changed since you filled in the court form, work out a new budget.  Take three copies of your budget with you (one for you, one for the sheriff and one for the landlord’s representative).
  • If English is not your first language, you could take an interpreter with you.
  • Don’t be afraid to approach the landlord’s representative before the hearing to see if you can come to an agreement to present to the court.  But don’t be pressed into offering more than you can afford.  The sheriff may agree with you and allow you to pay less than the landlord’s representative wants.
  • Answer questions clearly, calmly and fully. This will help the sheriff make his or her decision.  Remember you have as much right to put your case forward as the landlord.

Orders the sheriff might make

  • At the hearing the sheriff can make one of the following orders.
  • Dismiss your landlord’s action, for example, if all the arrears have been cleared before the hearing date.
  • Continue (adjourn) the case to give you time.  This could be to provide extra information to support your case, or to pay off your arrears in full, for example by sorting out your Housing Benefit claim.
  • Continue (adjourn) the case by agreement to allow repayment.  This means that if you keep to the court’s order (normally that you pay the rent plus a set amount off the arrears each week or month), the court will not allow your landlord to take your home.  It may be that a ‘time to pay’ direction will be made.
  • 'Sist' the case (put it on hold) to allow repayments or to allow you to send in a legal aid application, if you want to defend the case.
  • Fix a date for a ‘proof’ (that is, a full hearing of the case) if you have a defence.
  • An order for outright possession of the property.  This means that at the end of a set period (at least 28 days) your landlord can take the next step towards repossessing your home.  See the later section Eviction – what can I do? for more information.

What you should ask for

Important:

three months' arrears

If you have three months’ rent arrears at the date of the hearing, the sheriff may not be able to give you time to pay.

If you are not in arrears, ask the court to adjourn the hearing because you can now afford to pay your rent regularly.

If at any time in the future you have problems paying your rent, you must contact your landlord to make an arrangement.

If you are in arrears, ask the sheriff to adjourn the hearing if you can pay all the arrears in a short space of time, for example, by sorting out your Housing Benefit claim.  The court may not be prepared to do this unless you can show you have exceptional circumstances.

  • If you can’t pay the arrears in a short time, and you agree that the amount of the arrears is correct, you should make an offer of repayment that you can afford.
  • If you are on Income Support, Pension Credit, Jobseeker's Allowance, Employment and Support Allowance, Universal Credit, or on a low income, don't be afraid to offer a very small amount if that is all you can afford. Use the Department for Work and Pensions standard amount for direct payments as a guide. This amount changes each April. Contact us for advice.

Extra advice:

if you can't pay

If you are in arrears and at any time you find you cannot afford the amount which the court ordered, you must go back to the court and ask for the order to be changed.  You should also contact your landlord to make a new arrangement.

If the sheriff thinks your offer is fair, they are likely to grant a ‘continuation’ or ‘sist’ unless your arrears are more than three months.  This means that as long as you keep paying the normal rent plus the amount ordered each week or month off the arrears, the landlord can take no further action.  If your arrears are for more than three months, and this is because of a problem with your Housing Benefit (such as a delay in it being paid), the court should take this into account.

  • If the court will not accept any of these, the sheriff can make an outright ‘order for ejection’.

Eviction – what can I do?

Information:

recall of decree

If you have not previously defended the action, or appeared in court for anything other than a continuation, you may be able to apply for a ‘recall of decree’ and ask for a hearing.  If the decree is recalled, the court can order a sist or continuation instead of a new decree.  Contact us for advice.

The court will not take action to evict you unless your landlord asks it to.  Contact your landlord immediately if:

  • you have not kept up the payments under an agreement; or
  • the time given on an outright decree for possession and ejection has run out.

Also try to make an arrangement with them.

Try and move out before the eviction date because the sheriff officers can force their way into your home if they have to.  They might remove your possessions from the house.

If you cannot reach an agreement, your landlord can apply to the court for a ‘warrant of ejection’.  This is a letter from the sheriff officers giving you a date and time when they will come to evict you.  You may be able to stop this, but you must act quickly.  If your landlord applies for a warrant of ejection, they must tell your local authority.  This may help you to get extra advice to deal with your situation.

After you are evicted your landlord may:

  • ask you to pay the rent you still owe; and
  • ask you to pay for repairing any damage done to your home while you were renting it.

Getting rehoused

See our fact sheet:

Homelessness.

If you think you may lose your home, contact your local council to make a homeless application.  You can get help from the council if you are likely to become homeless in the next two months.  The council only has to offer you permanent rehousing as homeless under certain circumstances.  Otherwise they may only offer advice or temporary accommodation.

The Debt Arrangement Scheme (DAS) and rent arrears

See our fact sheet:

Debt Arrangement Scheme (DAS).

A DAS debt payment programme is a special scheme to help you repay your debts at an affordable rate over a certain period.   However, it will only provide protection from bankruptcy and diligence.  This means that your landlord could still take repossession action if you are behind with your rent payments.  However, having rent arrears included in a DAS may make repossession less likely.

If your landlord still takes action to repossess your home, you can ask the court to take your debt payment programme into account when deciding what to do.  

Useful contacts

Citizens Advice Scotland
Phone: 0345 404 0506
www.cas.org.uk

First-tier Tribunal for Scotland (Housing and Property Chamber)
Phone: 0141 302 5900
Email: HPCadmin@scotcourtstribunals.gov.uk
www.housingandpropertychamber.scot

Money Advice Scotland
Phone: 0141 572 0237
Email: info@moneyadvicescotland.org.uk
www.moneyadvicescotland.org.uk

Rent Service Scotland
Phone: 0300 244 7000
Email: rrs.dundee@gov.scot

Scottish Courts and Tribunals Service
Phone: 0131 444 3300
www.scotscourts.gov.uk

Shelter Scotland
For advice and to find your nearest housing advice centre.
Phone: 0808 800 4444
scotland.shelter.org.uk

​The Money Advice Trust would like to thank Shelter Scotland for their kind help in preparing this housing guide.