Scheme of assistance

This section will examine the duties and rights established by the ‘scheme of assistance’. [1] The ‘scheme of assistance’ needs to be implemented by all local authorities by April 2010. However, some local authorities may have implemented the scheme from 1 April 2009, or may move to the scheme throughout the 2009/2010 period. The provisions for each local authority are detailed in their respective ‘statement of assistance’. [2] This scheme will overhaul the current responsibilities of local authorities and will also alter the eligibility of owners, landlords and tenants to access grant provisions to improve or repair a property.

The responsibility of the local authority to provide assistance, financial, non-financial or both, will depend on the type of repair or improvement concerned. Section 71 requires local authorities to provide or arrange for the provision of assistance to a person in connection with:

• the acquisition or sale (or the proposed acquisition or sale) of a house

• work on any land or in any premises for any of the following purposes [3]

• provision of one or more houses by the conversion of a house or other premises,

• construction of a house

• improvement, repair or maintenance of a house

• bringing any house into, or keeping any house in, a reasonable state of repair

• adaptation of a house for a disabled person to make it suitable for the accommodation, welfare or employment of that person

• reinstatement of any house adapted for the purpose set out in paragraph (e)

• provision, in relation to a house, of means of escape from fire and other fire precautions.

Section 71(3), requires local authorities to provide assistance in many ways, including:

• the provision of advice, training or other services and facilities

• the provision of information relating to housing

• making available the services of staff of the local authority

• guaranteeing or joining in guaranteeing the payment of the principal of, and interest on, money borrowed by the person (including money borrowed by the issue of loan capital) or of interest on share capital issued by the person

• payments in respect of any expenses incurred in connection with the opening of a maintenance account

• acquiring, holding, managing and disposing of land or premises

• grants

• standard loans

• subsidised loans.

Section 73(1) states the criteria for when local authorities must provide assistance and help must be provided if:

• the work is a requirement of a work notice

• the work is being adapted for a disabled person

• the work is required to reinstate a property that has been adapted.

This type of assistance is not always financial and the criteria for when financial assistance is applicable or available are detailed below.

Disabled persons

Section 73(2) determines if financial assistance via a grant has to be provided by the local authority and section 74 lays out the particulars required for this application. A grant has to be provided if:

• the house lacks one or more of the standard amenities (required by section 86(1)(e), (f) and (fa) of the 1987 Housing (Scotland) Act) and where the local authority determines that the amenity or amenities to be provided will meet the needs of a disabled person

• the house already has the standard amenity in question but, in the opinion of the local authority, the amenity to be provided is essential to the needs of a disabled person.

The Housing (Scotland) Act 2006 Scheme of Assistance Regulations 2008 set out further situations in which the local authority must provide a grant. Grants are mandatory where the work is essential to meet the needs of the disabled person and the work is structural or involves making permanent changes to the house but does not involve:

• extending the home to create extra living space, or

• creating accommodation in a separate building (for example, converting a separate garage to a bedroom). [4]

A local authority does not fail in this duty where a person has been invited to apply for financial assistance by virtue of section 73(2) and where that assistance is not provided because the person fails to submit an application, [5] the application does not fulfill the criteria as set out in section 74 [6] or the conditions detailed in section 75(4) are not satisfied.

If the work in question is essential for the needs of the disabled person but does not meet the full criteria listed above, the local authority must provide the applicant with advice and information to assist her/him fund the work. [7]

If a house requires adaptation for a disabled person, the local authority must offer him/her an assessment of his/her needs [8]. This assessment will recommend what adaptations are needed to meet the requirements of the disabled person and will determine whether or not these adaptations are essential, for the purposes of providing grant assistance.Some of the recommendations made may be classified as a priority as if this is the case then work should be carried out as soon as possible.

Type of work a grant is available for

The local authority has to award a grant if the work is essential to the disabled person [9], where:

• the property is the disabled persons only or main home, and

• the property does not have a sink, bath, shower or washbasin with hot and cold water, or a toilet that is not shared with any other households, and the work is to install one or more of these amenities to meet the needs of the disabled person, or

• the property already has the hygiene and washing amenities listed above but the disabled person is not able to use one or more of them, or

• the work is structural or involves making permanent changes to the house but does not involve extending the home to create extra living space or create accommodation in a separate building.

The local authority decision

The local authority will assess the application and if an application has been approved, the local authority should notify the applicant of:

• the approved expense [10]

• the applicant’s contribution (if any) (as assessed under s77) [11]

• the amount of the loan or grant and details on if it is a minimum percentage grant or loan [12].

See below for information on the approved expense and the criteria for the minimum percentage grant.

Other home owners and tenants

Home owners can apply for a grant or a loan under the ‘scheme of assistance’. If an applicant owns part of his/her home through a shared ownership or shared equity scheme then he/she can also make an application [13]. Tenants, however, are only able to apply where: [14]

• the work that needs done is the responsibility of the tenant under the tenancy agreement and has been for the period of two years preceding the tenant’s application

• the work is needed to adapt a home for a disabled person tenant or to reinstate an adapted house [15]

• the work is required as a matter of urgency for the health, safety or security of the occupants of a house. In particular, this includes repair work or work to provide a fire escape or other fire precautions.

An agricultural or crafting tenant can also apply in some cases which are established by section 93. [16]

All applications for a grant or a loan must be made in accordance with sections 74 and 77. [17] An application can only be made to one local authority. [18] Full details on the particulars of the work should be included. This should detail information on all plans and specifications of the work, [19] the land/premises where the work is to take place, [20] the expenses estimated for the work. [21] If an application is being made to only cover a proportion of the total expense for the work, the application should detail this. [22] Additionally, a local authority can reasonably request information to be provided by applicants to validate its accuracy. [23]

In most cases, applicants should not begin work on his/her house until they have heard of the local authority’s decision.

A local authority will make a decision on the application for a grant or loan and notify the applicant of the outcome. If an application has been approved, the local authority should notify the applicant of:

• the approved expense [24]

• the applicant’s contribution (if any) (as assessed under s77)[25]

• the amount of the loan or grant and details on if it is a minimum percentage grant or loan [26]

• the terms of the grant. [27]

If the local authority approves an application, but fixes an approved expense lower than that which is detailed in the application for the grant, it must notify the applicant of this. [28] In some cases, the approval of an application at a lower than applied for expense rate, might occur because the applied for rate is higher than that which is permitted under section 76(4).

The approved expense rate is the amount the local authority considers reasonable for carrying out the work detailed in the application. [29] If the local authority refuses an application, notice should be given to the applicant. [30]

The amount which an applicant is offered and eligible for will be based on a local authority’s decision on how much an applicant has been assessed as being able to contribute to the works. Section 77 details the criteria which local authorities need to consider when assessing the level of contribution required by an applicant, if any. Principally, this criteria gives consideration to the income level and financial circumstances of the applicant. [31] An applicant’s spouse or civil partner's income level and financial circumstances will also be taken into account where relevant. [32] There is also consideration given to any person who is dependent on the applicant or whom the applicant is dependent on, [33] as well as any person who resides with or intends to reside with the applicant. [34]

An applicant can request the local authority to review his/her assessed contribution amount. [35] The local authority must notify the applicant on the decision of the review [36] and an applicant has no right to request an additional review of this review decision. [37] The request for review by the applicant must be within 21 days [38]and the review must be carried out by a person in the local authority who is senior to the original person who made the assessment within the local authority. [39]

Regulations specified by Scottish Ministers [40] determine the percentage of the approved expense which can be offered to the applicant. This is called the ‘minimum percentage grant' [41] and it is the percentage of the approved expense that an applicant is guaranteed to get. An applicant will be entitled to 100 per cent of the approved expense where the application is to adapt a home for a disabled person or to reinstate an adapted home if the applicant, or those detailed in section 77(2)(a)(ii) to (iv), receive any of the following benefits:

• income support

• income-based jobseeker’s allowance

• the guarantee element of pension credit, or

• income-related employment and support allowance. [42]

Where this criteria is not fulfilled, the percentage of the approved expense is 80 per cent. [43]

If the local authority offers a grant to the applicant, the amount of this will be the greater of the amount of the approved expense minus the applicant’s assessed contribution (if any) [44] or the ‘minimum percentage grant'. [45]

The local authority will pay the grant:

• within one month of the date on which the work has been completed and the property is now fit for occupation, [46] or

• by installments while the work is being carried out with the final installment paid within one month of the finishing date. [47]

The conditions for payment are detailed in section 82(2).Before a grant can be paid, the local authority must be satisfied that the work has been carried out properly. [48]

Section 83 establishes further conditions after the completion of the work. The conditions are:

A. that the house must be used as a private dwelling, but that does not prevent the use of part of the house as a shop or office or for business, trade or professional purposes [49]

B. that the house must not be occupied by the owner of a member of the owner’s family except as that person’s only or main residence [50]

C. that the owner of the land or premised must take all practicable steps to keep it in a good state of repair [51]

D.that the owner of the land or premises must, if required by the local authority, certify that conditions A to C are, where applicable, being met.[52]

Conditions A to D apply from the date on which the work is completed and is fit for occupation (as determined by the local authority) [53] and this period ends after ten years for a grant; [54] The local authority has powers under section 86 to ask for repayment of the grant if any of the conditions mentioned in section 83 are breached. [55] However, the local authority can allow time for the breach to be remedied, in some instances and if the breach is remedied within the time allowed, the breach is then disregarded by the local authority. Where the local authority considers that the breach cannot be remedied, it may disregard it, where it is satisfied that the breach was not due to the act, default or connivance of the owner.

It was held in Hussain v Glasgow City Council that a council cannot make a 'pre-payment condition' to the award of a grant.[56]

If the applicant sells the home before the 10 year period has elapsed, the conditions will remain attached to the property and will transfer to the new owner.

In cases where the applicant has his/her house repossessed then the grant and any interest will be paid to the local authority by the mortgage lender, if the conditions have still to expire. The mortgage lender will then add this amount to the total mortgage debt of the applicant.