The Rent Officers (Additional Functions) (Scotland) Order 1995

Article 3(1)(a)

PART 1 DETERMINATIONS

Significantly high rents

1.—(1) The rent officer shall determine whether, in his opinion, the rent payable under the tenancy of the dwelling at the relevant time is significantly higher than the rent which the landlord might reasonably have been expected to obtain under the tenancy at that time.

(2) If the rent officer determines under sub-paragraph (1) that the rent is significantly higher, the rent officer shall also determine the rent which the landlord might reasonably have been expected to obtain under the tenancy at the relevant time.

(3) When making a determination under this paragraph, the rent officer shall have regard to the level of rent under similar tenancies of similar dwellings in the locality or as similar as regards tenancy, dwelling and locality as is reasonably practicable, and shall assume that no one who would have been entitled to housing benefit had sought or is seeking the tenancy.

Size and rent

2.—(1) The rent officer shall determine whether the dwelling, at the relevant time, exceeds the size criteria for the occupiers.

(2) If the rent officer determines that the dwelling exceeds the size criteria, the rent officer shall also determine the rent which a landlord might reasonably have been expected to obtain, at the relevant time, for a tenancy which is—

(a) similar to the tenancy of the dwelling;

(b) on the same terms other than the term relating to the amount of rent; and

(c) of a dwelling which is in the same locality as the dwelling, but which—

(i) accords with the size criteria for the occupiers;

(ii) is in a reasonable state of repair; and

(iii) corresponds in other respects, in the rent officer’s opinion, as closely as is reasonably practicable to the dwelling.

(3) When making a determination under sub-paragraph (2), the rent officer shall have regard to the same matter and make the same assumption as specified in paragraph 1(3), except that in judging the similarity of other tenancies and dwellings the comparison shall be with the tenancy of the second dwelling referred to in sub-paragraph (2) and shall assume that no one who would have been entitled to housing benefit had sought or is seeking that tenancy.

Exceptionally high rents

3.—(1) The rent officer shall determine whether, in his opinion, the rent payable for the tenancy of the dwelling at the relevant time is exceptionally high.

(2) In sub-paragraph (1) “rent payable for the tenancy” means—

(a) where a determination is made under sub-paragraph (2) of paragraph 2, the rent determined under that sub-paragraph;

(b) where no determination is so made and a determination is made under sub-paragraph (2) of paragraph 1, the rent determined under that sub-paragraph; and

(c) in any other case, the rent payable under the tenancy.

(3) If the rent officer determines under sub-paragraph (1) that the rent is exceptionally high, the rent officer shall also determine the highest rent, which is not an exceptionally high rent and which a landlord might reasonably have been expected to obtain at the relevant time on the assumption that no one who would have been entitled to housing benefit had sought or is seeking the tenancy, for an assured tenancy of a dwelling which—

(a) is in the same locality as the dwelling;

(b) has the same number of bedrooms and rooms suitable for living in as the dwelling or, where the dwelling exceeds the size criteria for the occupiers, accords with the size criteria; and

(c) is in a reasonable state of repair.

(4) For the purpose of determining whether a rent is an exceptionally high rent under this paragraph, the rent officer shall have regard to the levels of rent under assured tenancies of dwellings which—

(a) are in the same locality as the dwelling or in as similar a locality as is reasonably practicable; and

(b) have the same number of bedrooms and rooms suitable for living in as the dwelling or, in a case where the dwelling exceeds the size criteria for the occupiers, accord with the size criteria.

Local reference rents

4.—(1) The rent officer shall make a determination of a local reference rent in accordance with the formula—

where—

a

R is the local reference rent;

b

H is the highest rent in the rent officer’s opinion—

(i)

which a landlord might reasonably have been expected to obtain at the relevant time for an assured tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

(ii)

which is not an exceptionally high rent; and

c

L is the lowest rent in the rent officer’s opinion—

(i)

which a landlord might reasonably have been expected to obtain at the relevant time for an assured tenancy of a dwelling which meets the criteria in sub-paragraph (2); and

(ii)

which is not an exceptionally low rent.

(2) The criteria are—

(a) that the dwelling under the assured tenancy—

(i) is in the same locality as the dwelling;

(ii) is in a reasonable state of repair; and

(iii) has the same number of bedrooms and rooms suitable for living in as the dwelling or, in a case where the dwelling exceeds the size criteria for the occupiers, accords with the size criteria; and

(b) if the tenant does not have the use of more than one bedroom or room suitable for living in—

(i) if the rent under the tenancy includes payments for board and attendance and the rent officer considers the amount fairly attributable to board and attendance is a substantial part of the rent, that a substantial part of the rent under the assured tenancy is fairly attributable to board and attendance;

(ii) if sub-paragraph (i) does not apply and the tenant shares a kitchen or toilet otherwise than with a member of his household, that the assured tenancy provides for a tenant to share a kitchen or toilet; and

(iii) if sub-paragraphs (i) and (ii) do not apply, that the circumstances described in sub-paragraphs (i) and (ii) do not apply in relation to the assured tenancy.

(3) When ascertaining H and L under sub-paragraph (1), the rent officer—

(a) shall assume that no one who would have been entitled to housing benefit had sought or is seeking the tenancy; and

(b) shall exclude the amount of any rent which, in the rent officer’s opinion, is fairly attributable to the provision of services which are ineligible to be met by housing benefit.

(4) In sub-paragraph (3), “services” means services performed or facilities (including the use of furniture) provided for, or rights made available to, the tenant but not—

(a) the provision of meals (including the preparation of meals or provision of unprepared food); or

(b) the provision of services to which any service charge for fuel relates.

Services

5.—(1) Where the dwelling is not in a hostel and the rent officer makes a determination under—

(a) paragraph 1(1) where no determination is to be made under paragraph 1(2), 2(2) or 3(3);

(b) paragraph 1(2) where no determination is to be made under paragraph 2(2) or 3(3);

(c) paragraph 2(2) where no determination is to be made under paragraph 3(3); or

(d) paragraph 3(3),

he shall also determine whether, in his opinion, any of the rent at the relevant time is fairly attributable to the provision of services which are ineligible to be met by housing benefit and, if so, the amount which in his opinion is so attributable except where he considers the amount is negligible.

(2) In sub-paragraph (1)—

“rent”, in relation to a determination under paragraph 1(2), 2(2) or 3(3), means as the case may be the rent determined under paragraph 1(2), 2(2) or 3(3) and, in relation to a determination under paragraph 1(1), means the rent payable under the tenancy at the relevant time; and

“services” has the meaning given in paragraph 4(4).