Right to adapt privately rented property
This section looks at those private tenants who have the right to adapt.
Right to adapt
Any tenant who is not a Scottish secure tenant or short Scottish secure tenant [1] has the right to ask her/his landlord for consent to carry out work to adapt the home.
To apply to adapt, the tenant must consider the adaptation as necessary in order to make the home more suitable for the accommodation, welfare or employment of a person with a disability who uses the home as her/his sole or main residence, or if the work is required to improve energy efficiency. [2]
The application does not need to be in writing, but it would be good practice to ensure that a written record of the request is created.
The landlord must not withhold consent unreasonably. [3] It is not possible for the landlord to contract out of this obligation. [4]
Tenants have no right to be reimbursed for the cost of the work or compensated if the work improves the value of the property; however the tenant and the landlord could come to an agreement about this between themselves.
If the work required to the property could be classed as an auxiliary aid, for example, fitting new taps or door handles, the landlord may have a duty to carry this out her/himself. See the page on auxiliary aids for more information.
Requesting consent
The tenant's application for consent must include details of the work s/he intends to carry out.
The landlord can consent, or consent with reasonable conditions attached, or refuse to consent (but not unreasonably). [5]
Considerations for the landlord
When making her/his decision, the landlord may consider:
the safety of the occupiers of the house or any other property
any costs that the landlord might incur as a result of the work
whether the proposed work could have a negative impact on the value of the property
if the house could be re-instated to its original state if the work is carried out. [6]
If the work is required to make the property suitable for a person with a disability, the landlord may also have to consider:
the person's disability
whether the work is necessary to make the house suitable for a person with a disability
any code of practice produced by the Equality and Human Rights Commission. [7]
If the landlord is considering consenting, but with conditions attached, s/he may have regard to the age and condition of the house and the likely cost of complying with the condition. [8] A condition may specify the standard to which the work is carried out and/or require that the property be returned to its original state at the end of the tenancy. [9]
Conditions that are likely to be reasonable could include requiring the tenant to:
obtain the necessary planning and building consents
carry out work in accordance with plans approved by the landlord
allow the landlord to inspect the work
be responsible for paying for and arranging maintenance, for example, having a stair lift serviced.
The landlord's decision
The landlord must notify the tenant of her/his decision within one month of receiving the application. [10] If the landlord fails to issue a decision in this period, it shall be assumed that the application has been refused on the last day of the one-month period. [11]
If the landlord gives consent with conditions attached, these must be included in the decision along with the reasons for imposing them. [12]
The landlord needs consent from a third party
The tenant cannot carry out any work that requires consent under any Act until that consent has been obtained. [13] For example, the lender may need to obtain consent from the mortgage lender.
If the landlord is required to obtain consent before the work can be carried out, s/he must take reasonable steps to do so, but s/he may recover any expenses incurred from the tenant. [14] Any requirement for the landlord to obtain consent before the work can be carried out is not a reasonable ground for the landlord to refuse the tenant's application. [15]
Conciliation
The Equality and Human Rights Commission may be able to arrange conciliation services if there is a dispute regarding the landlord refusing to give consent or any conditions that are attached to the consent.
Appealing the landlord's decision
If the tenant is unhappy with the landlord's decision because permission has been refused, or a condition has been attached to permission, s/he can appeal by applying to the First Tier Tribunal Housing and Property Chamber within six months of being notified of the decision. [16] The application should be made using Form G under 'Rule 59. Application to appeal the decision of a landlord in relation to adapting a rented house for a disabled person'.
The tribunal can hear a late appeal if there is a good cause. [17]
The tribunal have the power to:
set aside the decision
instruct the landlord to remove or vary a condition
consent to the application with or without conditions [18]
make an order about payment of expenses in relation to the appeal. [19]
When determining an appeal about the right to adapt a property to make it suitable for a disabled person, the sheriff must have regard to any code of practice produced by the Equality and Human Rights Commission.
The tribunal's decision is final. [20]
The Equality and Human Rights Commission may be able to provide advice and representation to tenants wishing to appeal.
Last updated: 10 February 2020