Eviction for rent arrears and private residential tenants

The eviction ban ended on 31 March 2024.

We have more guidance on the eviction ban and the rent cap.

Permanent legislation has been introduced that makes all tenancy eviction grounds discretionary from 1st October 2022. [1] This means that the tribunal must consider whether it is reasonable to evict the tenant in every case.

It is common for rent payments to be late due to delays in housing benefit or universal credit payments. It is not mandatory for the tribunal to make an eviction order if the rent arrears are due to any delay or failure in payment of rent caused by problems with relevant benefit payments.

However, as housing benefit and universal credit are always paid in arrears it is conceivable that a tenant in receipt of benefits may find themselves in a position where they are always in arrears of one month even where there is no delay in payments. Tenants in this position should be encouraged to do what they can to get the balance down to below this one month rental figure.

If the arrears are due to problems with payment of housing benefit, advisers should remind the local authority of its legal obligation to make a payment of housing benefit within 14 days, or as soon as possible if this is not reasonably practical. [2]

Local authorities have a duty to prevent homelessness. It may be appropriate to suggest that it exercise its powers under The Children (Scotland) Act 1995 [3] or the Social Work (Scotland) Act 1968 [4] to offer cash to enable the rent arrears to be reduced to less than one month.

Advisers should always seek expert advice and a referral to a solicitor with expertise in housing law would be appropriate in such cases.

The Scottish Government introduced a tenant hardship grant fund and a loan fund during the coronavirus (COVID-19) pandemic. These were for tenants who had their finances impacted by the pandemic, who missed rent payments and did not have other means of support.

The loan fund closed on 31 December 2021.

The grant fund

Tenants applied for a grant through their local council’s homeless prevention team. The grant did not need to be paid back.

The grant fund has been extended to cover rent arrears that are not related to the pandemic. If you're assisting a client who is being evicted for rent arrears, check with the local authority. There may be money left in the fund, but it will be important to manage expectations with the client.

Protection against eviction:

Any landlord evicting a tenant over rent arrears needs to follow the pre-action requirements both in the social rented sector and in the private rent sector.

Landlords will also need to agree not to start or proceed with any repossession action to receive a grant payment. When preparing a defence at a tribunal, advisers should note where:

• a landlord has failed to signpost to the grant fund or

• refused to accept a grant fund payment

The loan fund

The loan was administered by the Scottish Government. Applications were made through the tenant hardship loan fund website.

The loan fund closed to new applications on 31 December 2021.

Any applications made prior to that date will still be processed. 

Any tenants who were given the loan should continue to make repayments as required by the loan fund. 

Tenants will not need to start paying off the loan for 6 months from the application being accepted.  Loan payments can then be split monthly for a maximum of 60 months. 

If you received a Tenant Hardship Loan and have an enquiry about it, please email TenantHardshipLoan@est.org.uk or call 0808 108 9414.

Protection against eviction:

For a tenant to receive the loan private landlords must have agreed not to repossess a property on certain eviction grounds. These grounds are:

• rent arrears

• the landlord or their family member intend to live in the let property

• the landlord intends to sell the let property

• the landlord intends to use the let property for a purpose other than housing

Any action to end a tenancy on these grounds that has already been started will also need to be withdrawn.

Any tenant who has received an eviction notice after receiving the loan fund should contact a housing adviser or solicitor for further advice.

When considering reasonableness, the tribunal must consider to what extent the landlord has complied with certain pre-action protocols. [5]

This requirement was made permanent on 1 October 2022.

You can full details on the page Private sector rent arrears - pre-action protocols.