Rent arrears - social housing tenant

 December 2017

Fact sheet no. 59 SCOT Rent arrears - social housing tenant

Information:

renting from a private landlord

If you started renting from a private landlord on or after 2 January 1989, you need a different fact sheet. You will find the information you need in our Rent arrears – private tenant fact sheet.

This fact sheet will give you practical information and advice if you are behind on your rent and you live in housing provided by your local council, housing co-operative or housing association. It will explain your options, and the processes your landlord must follow. It does not cover commercially-rented properties with a business lease.

Information:

housing co-operatives

Housing co-operatives offer rented accommodation and are jointly owned and run by their tenants. The tenants take responsibility for arranging repairs, making decisions about rent and who joins or leaves the co-operative.

Use this fact sheet to:

  • 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.

If you think you may lose your home in the near future, 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.

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

Information:

private tenancies before 1989

Although this fact sheet is generally about social housing, some older private tenancies that began before 1989, also operate in a similar way. The information in this fact sheet applies to you if:

  • you rent your home from a private landlord;
  • you started your private tenancy agreement before 2 January 1989; and
  • your tenancy agreement has not been changed.

Help with rent payments

Extra advice:

Housing Benefit or Universal Credit

You might get help with the your rent payment from either Housing Benefit or from Universal Credit. See either the Housing Benefit or Universal Credit section for more information. If you aren’t able to claim Universal Credit, you can make a claim for Housing Benefit. If you are able to claim Universal Credit, the amount of rent payment you get help with, called the ‘housing costs element’, forms part of your Universal Credit award. In Scotland, you can choose where the housing costs element is paid. You can ask that it is paid either to your landlord or paid to you.

Housing Benefit

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

  • To find out how much you might get, contact Shelter Scotland or a local advice agency. See the Useful contacts section at the end of this fact sheet or use the Turn2us Benefit Calculator.
  • To make a claim, ask your council’s Housing Benefit office for a form. You can also get information 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.

The under-occupancy rules or ‘bedroom tax’

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) may 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 if you under-occupy by one bedroom; or
  • 25% cut in if you under-occupy by two or more bedrooms.

You are allowed one bedroom for each category shown below:

  • 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 under 16 who needs a bedroom because shared bedrooms have been fully occupied;
  • 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.

  • any child under 16 who is unable to share a bedroom due to their disability, subject to council approval;
  • an overnight carer you or a joint tenant needs, but who doesn't normally live with you;
  • a foster carer; or
  • an adult ‘child’ who still lives at home but is a student or a member of the armed forces 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. Contact Shelter Scotland for advice on 0808 800 4444.

The payment of Housing Benefit

Extra advice:

payment on account

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 local council. Ask for a payment on account, sometimes called 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.

Universal Credit

Full service and live service areas

Universal Credit replaces benefits such as Income Support, income-based Jobseeker’s Allowance, income-related Employment and Support Allowance, Housing Benefit, Child Tax Credit and Working Tax Credit. Depending on where you live, you may be in a full or live service area for Universal Credit. In a full service area, most claimants can apply for Universal Credit through the online system. To apply online, go to the GOV.UK website and search using the words Universal Credit. Alternatively, type the website address www.gov.uk/universal-credit into your browser. However, if you have three children or more in your household, you will not be able to apply for Universal Credit until 1 February 2019 Instead, you can apply for the older benefits and tax credits: Income Support, Jobseeker’s Allowance, Employment and Support Allowance, Housing Benefit, Child Tax Credit and Working Tax Credit.

If you live in a live service area, you have to meet particular rules, called gateway conditions, to be able to apply for Universal Credit. If you do not meet the gateway conditions in a live service area, you can apply for Jobseeker’s Allowance, Income Support, Employment and Support Allowance, Housing Benefit, Child Tax Credit and Working Tax Credit.

Extra advice:

direct payment to your landlord

From 4 October 2017 in Scotland, if you are a new claimant of Universal Credit and living in a full service area, you can ask for your housing costs element to be paid directly to your landlord. The Scottish Government website page Universal Credit: information for new applicants has more information about how to do this at any time during your claim for Universal Credit.

People who have claimed Universal Credit in Scotland before 4 October 2017 may be able to use this option at some point in 2018. Check the Scottish Government website page for updates.

You may be moved onto Universal Credit from a benefit you are already getting. People are being moved onto Universal Credit at different times. Normally, Universal Credit will include help with your rent, called the ‘housing costs element’. Unless you ask for the housing costs element to be paid directly to your landlord, you will need to use part of your Universal Credit to pay your rent. Contact us for advice.

Getting paid

The Department for Work and Pensions (DWP) should start paying the housing costs element of your Universal Credit within six weeks of you making your claim (this reduces to five weeks from 1 February 2018). If you need money to pay your rent earlier, or your claim has been delayed, ask for a short-term advance payment on account. 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.

18 to 21 year olds and Universal Credit housing costs

People who are aged 18 to 21 will not normally be entitled to the housing costs element of Universal Credit if they are claiming as a single person and are able to work, although there are some exceptions. Contact us for advice.

The Scottish Government has said that it will replace the housing costs element for those affected by this rent restriction by payments from the Scottish Welfare Fund. 18 to 21 year olds who are affected should contact their local council to claim their top-up payment from the Scottish Welfare Fund.

The ‘benefit cap’

Information:

pension age

You won't usually 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.

The Government has introduced a ‘benefit cap’. This means there is a limit on how much you can receive in benefits 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 or Universal Credit 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 benefits or some other benefits. Also, it may not apply if you have childcare costs when receiving Universal Credit. Contact us for advice.

Discretionary housing payment

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

Am I paying too much rent?

Extra advice:

check 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 rent officer from 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 page Setting Fair Rent.

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.

Contact your local council if you are waiting for a Housing Benefit claim to be sorted out and this is making your rent arrears worse. Ask for a short-term benefit advance payment on account if you have been waiting more than 14 days. If you are waiting for your claim for Universal Credit to be sorted out and it is making your arrears worse, contact the DWP and ask for a short-term advance payment on account. 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 and 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 payments to clear the arrears

Information:

direct deduction from benefit

If you get Income Support, Pension Credit, income-related Employment and Support Allowance, income-based 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. In some circumstances they can be paid from certain other benefits. The amount of the deduction that can be taken from your benefit for rent arrears varies, depending on whether it is deducted from Universal Credit or another kind of benefit. Contact us for advice.

  • Use Your budget to work out how much you can afford to pay each month towards the arrears. Don’t be afraid to offer only a small amount if that is all you can afford.
  • Depending on what benefit you receive (Housing Benefit or Universal Credit), consider whether you can afford to pay by direct deduction. The deduction from your Universal Credit can be up to 20% of your standard allowance. The DWP should take account of your financial circumstances when deciding how much they will take. If the amount of the deduction is causing you hardship, contact us for advice.
  • Start paying the amount you have offered straight away. If you cannot afford to pay anything, contact us for advice.

My landlord refuses to accept my rent arrears offer

Just because your landlord refuses your offer of payment, it 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.

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 can also contact the police.

If your landlord still takes action against you, you could seek help from:

Contact us for advice.

What if my landlord takes court action for rent arrears?

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 Pre-action requirements for more information.

Before court action your 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. This 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 and anyone who is a qualifying occupier (see the section Qualifying occupiers below) 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.

Qualifying occupiers

Your landlord must serve the notice on any person who is a qualifying occupier before they can start court proceedings for possession. This is so that the person can ask the court to take them into account when making their decision about whether to give the landlord possession of the property. A qualifying occupier is a person who lives in a council or housing association property as their only or main home and who is:

  • a member of the family aged at least 16 years;
  • a person to whom the tenant has sublet or transferred the tenancy, with the landlord’s consent; or
  • a person whom the tenant has taken in as a lodger with the landlord’s consent.

The landlord must take reasonable steps to find out if there are any qualifying occupiers who could be affected by their action and who those people are.

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.

Pre-action requirements

Important:

council or housing association 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 take possession of your home.

Before your landlord can take action in court to take possession of your home, they 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 Universal Credit; or
  • any other type of financial help, such as benefits or grants.

Your landlord must tell you how you can get help and advice with your debts. If your landlord is not the council, they should also encourage you to contact your local council 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 or Universal Credit 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 for rent arrears

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 go 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. See Shelter Scotland’s website page Being evicted from council house, housing association or co-op accommodation and temporary accommodation for more information.

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.

Remember:

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 take possession of 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 tell you:

  • 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 or Universal Credit.

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

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 make.
  • 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 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. Explain why you got into arrears. Ask here if you want the court to give you more time to find somewhere else to live.

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 cannot 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 or their representative).
  • If English is not your first language, you could take an interpreter with you.
  • Don’t be afraid to approach the landlord or their 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 or their 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 or their representative .

What orders might the sheriff make for rent arrears?

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 or Universal Credit claim.
  • Continue the case by agreement to allow you to repay what you owe. 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.
  • ‘Sist’ the case (put it on hold). This could be to allow you to make repayments, or to give you time 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). This option might be chosen if you have a defence; for example, that you do not owe any arrears.
  • 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 taking possession of your home. See the later section Eviction for rent arrears - what can I do? for more details.

What you should ask for

Extra advice:

can't pay the order

If at any time you find you cannot pay the amount which the court has ordered, you should seek help from:

  • If you can show the court that it would be unreasonable to evict you, you should ask the sheriff to dismiss the landlord’s action. To do this you will have to give reasons. 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 or Universal Credit claim, ask for a continuation, so that you have time to pay off the arrears.
  • 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 means-tested benefits or a low income, do not be afraid to offer a very small amount if that is all you can afford. Use the DWP's standard amount for direct payments as a guide. This amount can change in April. Contact us for advice.
  • If the sheriff thinks your offer is fair, they are likely to continue or sist the case if you agree to pay the normal rent plus a regular amount off the arrears each month. 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 of possession. This would normally allow you at least 28 days before your landlord could take further action.

Recall

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 the decree of possession to be recalled and ask for a hearing. If the decree is recalled, the court can order a sist or continuation instead of a new decree. You will need help to fill out the form correctly. You could seek help from:

Contact us for advice.

Eviction for rent arrears - what can I do?

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 when the court has given you more time to pay;
  • you have not kept up the payments when the court has put the case on hold so that you can pay; or
  • the time given on a decree of possession has run out. Try to make an arrangement with them.

If you cannot reach an agreement, your landlord can apply to the court for an order for possession. This gives the sheriff officers a date and time when they will come to evict you. You may be able to stop this, but you must act quickly. Contact Shelter Scotland on 0808 800 4444. If your landlord applies for an order of possession, they must tell your local council. This may help you to get extra advice to deal with your situation. Contact your local council, tell them your situation and ask them to help you.

Sheriff officers

Before you are evicted, you will receive a letter, called a Form of Charge for Removing. This tells you the date and time when the sheriff officers will come to evict you. You may be able to stop this, but you must act quickly. See the Shelter Scotland website page Eviction by sheriff officers for more information.

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.

After you have been 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. It provides protection from bankruptcy and diligence. This means that your landlord could still take possession action to evict you, despite the debt payment programme, if you are behind with your rent payments. However, having rent arrears included in a DAS debt payment programme may make possession less likely. Contact us for advice.

If your landlord still takes action to take possession of 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

GOV.UK
www.gov.uk

Law Society of Scotland
www.lawscot.org.uk

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
Email: enquiries@scotcourts.gov.uk
www.scotscourts.gov.uk

Scottish Government
www.gov.scot

Shelter Scotland
Phone 0808 800 4444
scotland.shelter.org.uk

Turn2us
www.turn2us.org.uk