Housing and Planning Bill (HC Bill 75)

16 Duration and effect of banning order

(1) A banning order must specify the length of the ban for each banned activity.

(2) A ban must last at least 6 months.

(3) A banning order may contain exceptions to the ban for some or all of the period
5to which the ban relates and the exceptions may be subject to conditions.

(4) A banning order may, for example, contain exceptions—

(a) to deal with cases where there are existing tenancies and the landlord
does not have the power to bring them to an immediate end, or

(b) to allow letting agents to wind down current business.

10Consequences of banning order, including consequences of breach

17 Financial penalty for breach of banning order

(1) The responsible local housing authority may impose a financial penalty on a
person if satisfied that the person has breached a banning order.

(2) In this section “responsible local housing authority” means the local housing
15authority that applied for the banning order.

(3) Only one financial penalty under this section may be imposed in respect of the
same breach, unless subsection (4) allows another penalty to be imposed.

(4) If a breach continues for more than 6 months, a financial penalty may be
imposed for each additional 6 month period for the whole or part of which the
20breach continues.

(5) The amount of a financial penalty imposed under this section is to be
determined by the authority imposing it, but must not be more than £5,000.

(6) Schedule 1 deals with—

(a) the procedure for imposing financial penalties,

(b) 25appeals against financial penalties, and

(c) enforcement of financial penalties.

(7) The Secretary of State may by regulations make provision about how local
housing authorities are to deal with financial penalties recovered.

(8) The Secretary of State may by regulations amend the amount specified in
30subsection (5) to reflect changes in the value of money.

(9) A local housing authority must have regard to any guidance given by the
Secretary of State about the exercise of its functions under this section or
Schedule 1.

18 Saving for illegal contracts

35A breach of a banning order does not affect the validity or enforceability of any
provision of a tenancy or other contract entered into by a person despite any
rule of law relating to the validity or enforceability of contracts in
circumstances involving illegality.

19 Banned person may not hold HMO licence etc

Schedule 2 changes the rules about granting and revoking licences under Parts
2 and 3 of the Housing Act 2004 where a banning order has been made.

20 Management orders following banning order

5Schedule 3 amends the Housing Act 2004 to allow interim and final
management orders to be made in cases where a banning order has been made.

Anti-avoidance

21 Prohibition on certain disposals

(1) A person who is subject to a banning order that includes a ban on letting may
10not make an unauthorised transfer of an estate in land to a prohibited person.

(2) A disposal in breach of the prohibition imposed by subsection (1) is void.

(3) A transfer is “unauthorised” for the purposes of subsection (1) unless it is
authorised by the First-tier Tribunal on an application by the person who is
subject to the banning order.

(4) 15In subsection (1) “prohibited person” means—

(a) a person associated with the landlord,

(b) a business partner of the landlord,

(c) a person associated with a business partner of the landlord,

(d) a business partner of a person associated with the landlord,

(e) 20a body corporate of which the landlord or a person mentioned in
paragraph (a) to (d) is a director, secretary or other officer, or

(f) a body corporate in which the landlord has a shareholding or other
financial interest.

(5) In section (4)—

• 25“associated person” is to be read in accordance with section 178 of the
  Housing Act 1996;

• “business partner” is to be read in accordance with section 34(5) of the
  Deregulation Act 2015.

CHAPTER 3 Database of rogue landlords and letting agents

30The database and its content

22 Database of rogue landlords and letting agents

(1) The Secretary of State must establish and operate a database of rogue landlords
and letting agents for the purposes of this Chapter.

(2) Sections 23 and 24 give local housing authorities in England responsibility for
35maintaining the content of the database.

(3) The Secretary of State must ensure that local housing authorities are able to edit
the database for the purpose carrying out their functions under those sections
and updating the database under section 28.

23 Duty to include person with banning order

(1) 5A local housing authority in England must enter a person in the database if a banning
order is made against the person following an application by that authority.

(2) An entry made under this section must be maintained for the period for which
the banning order has effect and must then be removed.

24 Power to include person convicted of banning order offence

(1) 10A local housing authority in England may enter a person in the database if—

(a) the person has been convicted of a banning order offence, and

(b) the offence was committed at a time when the person was a residential landlord
or a letting agent.

(2) Section 25 imposes procedural requirements that must be met before a person
15may be entered in the database under this section.

(3) An entry made under this section—

(a) must be maintained for the period specified in the decision notice given
under section 25 before the entry was made, and

(b) must be removed at the end of that period.

(4) 20The Secretary of State must publish guidance setting out criteria to which local
housing authorities must have regard in deciding—

(a) whether to include a person in the database under this section, and

(b) the period to specify in a decision notice under section 25.

25 Procedure for inclusion under section 24

(1) 25If a local housing authority decides to enter a person in the database under
section 24 it must give the person a decision notice before the entry is made.

(2) The decision notice must—

(a) explain that the authority has decided to include the person in the
database after the end of the period of 21 days beginning with the day
30on which the notice is given (“the notice period”), and

(b) specify the period for which the person’s entry will be maintained,
which must be at least 2 years beginning with the day on which the
entry is made.

(3) The decision notice must also summarise the person’s appeal rights under
35section 26.

(4) The authority must wait until the notice period has ended before entering the
person in the database.

(5) If a person appeals under section 26 within the notice period the local housing
authority may not enter the person in the database until—

(a) 40the appeal has been determined or withdrawn, and

(b) there is no possibility of further appeal (ignoring the possibility of an
appeal out of time).

(6) A decision notice under this section may not be given after the end of the
period of 6 months beginning with the day on which the person was convicted
of the banning order offence to which the notice relates.

26 Appeals

(1) 5A person who has been given a decision notice under section 25 may appeal to
the First-tier Tribunal against—

(a) the decision to include the person in the database, or

(b) the decision as to the period for which the person’s entry is to be
maintained.

(2) 10An appeal under this section must be made before the end of the notice period
specified in the decision notice under section 25(2).

(3) The Tribunal may allow an appeal to be made to it after the end of the notice
period if satisfied that there is a good reason for the person’s failure to appeal
within the period (and for any subsequent delay).

(4) 15On an appeal under this section the tribunal may confirm, vary or cancel the
decision notice.

27 Information to be included in the database

(1) The Secretary of State may by regulations make provision about the
information that must be included in a person’s entry in the database.

(2) 20The regulations may, in particular, require a person’s entry to include—

(a) the person’s address or other contact details,

(b) the period for which the entry is to be maintained;

(c) details of properties owned, let or managed by the person;

(d) details of any banning order offences of which the person has been
25convicted;

(e) details of any banning orders made against the person, whether or not
still in force.

(3) In relation to a case where a body corporate is entered in the database, the
regulations may also require information to be included about its officers.

28 30Updating

A local housing authority must take reasonable steps to keep information in
the database up-to-date.

29 Power to require information

(1) A local housing authority may require a person to provide specified
35information for the purpose of enabling the authority to decide whether to
enter the person in the database.

(2) A local housing authority that enters a person in the database, or that is
proposing to enter a person in the database, may require the person to provide
any information needed to complete the person’s entry or keep it up-to-date.

(3) 40It is an offence for the person to fail to comply with a requirement, unless the
person has a reasonable excuse for the failure.

(4) It is an offence for the person to provide information that is false or misleading
if the person knows that the information is false or misleading or is reckless as
to whether it is false or misleading.

(5) A person who commits an offence under this section is liable on summary
5conviction to a fine.

Access to information in the database

30 Access to database

The Secretary of State must give every local housing authority in England
access to information in the database.

31 10Use of information in database

(1) The Secretary of State may use information in the database for statistical or
research purposes.

(2) A local housing authority in England may only use information obtained from
the database—

(a) 15for purposes connected with its functions under the Housing Act 2004,

(b) for the purposes of a criminal investigation or proceedings relating to a
banning order offence,

(c) for the purposes of an investigation or proceedings relating to a
contravention of the law relating to housing or landlord and tenant,

(d) 20for the purposes of promoting compliance with the law relating to
housing or landlord and tenant by any person in the database, or

(e) for statistical or research purposes.

CHAPTER 4 Rent repayment orders

Rent repayment orders: introduction

32 25Introduction and key definitions

(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment
order in certain cases.

(2) A rent repayment order is an order requiring the landlord under a tenancy of
housing in England to—

(a) 30repay an amount of rent paid by a tenant, or

(b) pay a local housing authority an amount in respect of a relevant award
of universal credit paid (to any person) in respect of rent under the
tenancy.

(3) One of the grounds for making a rent repayment order under this Chapter is
35that the landlord has committed an offence to which this Chapter applies.

(4) A reference to “an offence to which this Chapter applies” is to an offence, of a
description specified in the table, that is committed by a landlord in relation to
housing in England let by that landlord.

(5) 15For the purposes of subsection (4), an offence under section 30(1) or 32(1) of the
Housing Act 2004 is committed in relation to housing in England let by a
landlord only if the improvement notice or prohibition order mentioned in that
section was given in respect of a hazard on the premises let by the landlord (as
opposed, for example, to common parts).

20Application for rent repayment order

33 Application for rent repayment order

(1) A tenant or a local housing authority may apply to the First-tier Tribunal for a rent
repayment order against a person who has—

(a) let housing in breach of a banning order, or

(b) 25committed an offence to which this Chapter applies.

(2) A tenant may apply for a rent repayment order only if —

(a) the breach or offence relates to housing that, at the time of the breach or
offence, was let to the tenant, and

(b) the breach occurred or the offence was committed in the period of 12
30months ending with the day on which the application is made.

(3) A local housing authority may apply for a rent repayment order only if—

(a) the breach or offence relates to housing in the authority’s area, and

(b) the authority has complied with section 34.

(4) In deciding whether to apply for a rent repayment order a local housing
35authority must have regard to any guidance given by the Secretary of State.

34 Notice of intended proceedings

(1) Before applying for a rent repayment order a local housing authority must give
the landlord a notice of intended proceedings.

(2) A notice of intended proceedings must—

(a) inform the landlord that the authority is proposing to apply for a rent
repayment order and explain why,

(b) state the amount that the authority seeks to recover, and

(c) 5invite the landlord to make representations within a period specified in
the notice of not less than 28 days (“the notice period”).

(3) The authority must consider any representations made during the notice
period.

(4) The authority must wait until the notice period has ended before applying for
10a rent repayment order.

(5) A notice of intended proceedings may not be given after the end of the period
of 12 months beginning with the day on which the landlord breached the
banning order or committed the offence to which it relates.

Rent repayment order for breach of banning order

35 15Order following breach of banning order

(1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond
reasonable doubt, that a landlord has let housing in breach of a banning order.

(2) A rent repayment order under this section may be made only on an application
under section 33.

(3) 20The amount of a rent repayment order under this section is to be determined
in accordance with section 36.

36 Amount of order under section 35

(1) Where the First-tier Tribunal decides to make a rent repayment order under
section 35, the amount is to be determined in accordance with this section.

(2) 25If the order is made in favour of a tenant, the amount must be—

(a) the amount of rent paid in respect of the period during which the
landlord was in breach of the banning order but capped at 12 months,
less

(b) any relevant award of universal credit paid (to any person) in respect
30of rent under the tenancy during that period.

(3) If the order is made in favour of a local housing authority, the amount must be
the amount of any universal credit received by the landlord (directly or
indirectly) in respect of rent under the tenancy for the period during which the
landlord was in breach of the banning order but capped at 12 months.

(4) 35Nothing in this section requires the payment of any amount that, by reason of
exceptional circumstances, the tribunal considers it would be unreasonable to
require the landlord to pay.

Rent repayment order following offence

37 Order following offence

(1) The First-tier Tribunal may make a rent repayment order if satisfied, beyond
reasonable doubt, that a landlord has committed an offence to which this
5Chapter applies (whether or not the landlord has been convicted).

(2) A rent repayment order under this section may be made only on an application
under section 33.

(3) The amount of a rent repayment order under this section is to be determined
in accordance with—

(a) 10section 38 (where the application is made by a tenant);

(b) section 39 (where the application is made by a local housing authority);

(c) section 40 (in certain cases where the landlord has been convicted etc).

38 Amount of order under section 37: tenants

(1) Where the First-tier Tribunal decides to make a rent repayment order under
15section 37 in favour of a tenant, the amount is to be determined in accordance
with this section.

(2) The amount must relate to rent paid during the period mentioned in the table.

(3) 25The amount that the landlord may be required to repay in respect of a period
must not exceed—

(a) the rent paid in respect of that period, less

(b) any relevant award of universal credit paid (to any person) in respect
of rent under the tenancy during that period.

(4) 30In determining the amount the tribunal must, in particular, take into account—

(a) the conduct of the landlord and the tenant,

(b) the financial circumstances of the landlord, and

(c) whether the landlord has at any time been convicted of an offence to
which this Chapter applies.

39 35Amount of order under section 37: local housing authorities

(1) Where the First-tier Tribunal decides to make a rent repayment order under
section 37 in favour of a local housing authority, the amount is to be
determined in accordance with this section.

(2) The amount must relate to universal credit paid during the period mentioned
in the table.

(3) 10The amount that the landlord may be required to repay in respect of a period
must not exceed the amount of universal credit that the landlord received
(directly or indirectly) in respect of rent under the tenancy for that period.

(4) In determining the amount the tribunal must, in particular, take into account—

(a) the conduct of the landlord,

(b) 15the financial circumstances of the landlord, and

(c) whether the landlord has at any time been convicted of an offence to
which this Chapter applies.

40 Amount of order following conviction

(1) Where the First-tier Tribunal decides to make a rent repayment order under
20section 37 and both of the following conditions are met, the amount is to be the
maximum that the tribunal has power to order in accordance with section 38
or 39 (but disregarding subsection (4) of those sections).

(2) Condition 1 is that the order—

(a) is made against a landlord who has been convicted of the offence, or

(b) 25is made against a landlord who has received a financial penalty in
respect of the offence and is made at a time when there is no prospect
of appeal against that penalty.

(3)
Condition 2 is that the order is made—

(a) in favour of a tenant on the ground that the landlord has committed an
30offence mentioned in row 1, 2, 3 or 4 of the table in section 32(4), or

(b) in favour of a local housing authority.

(4) For the purposes of subsection (2)(b) there is “no prospect of appeal”, in
relation to a penalty, when the period for appealing the penalty has expired
and any appeal has been finally determined or withdrawn.

(5) 35Nothing in this section requires the payment of any amount that, by reason of
exceptional circumstances, the tribunal considers it would be unreasonable to
require the landlord to pay.

Enforcement of rent repayment order

41 Enforcement of rent repayment orders

(1) An amount payable to a tenant or local housing authority under a rent
repayment order is recoverable as a debt.

(2) 5An amount payable to a local housing authority under a rent repayment order
does not, when recovered by the authority, constitute an amount of universal
credit recovered by the authority.

(3) The Secretary of State may by regulations make provision about how local
housing authorities are to deal with amounts recovered under rent repayment
10orders.

Local housing authority functions

42 Duty to consider applying for rent repayment orders

If a local housing authority becomes aware that a person has been convicted of
an offence to which this Chapter applies in relation to housing in its area, the
15authority must consider applying for a rent repayment order.

43 Helping tenants apply for rent repayment orders

(1) A local housing authority in England may help a tenant to apply for a rent
repayment order.

(2) A local housing authority may, for example, help the tenant to apply by
20conducting proceedings or by giving advice to the tenant.

Amendments etc and interpretation

44 Rent repayment orders: consequential amendments

(1) The Housing Act 2004 is amended as follows.

(2) In section 74 (other consequences of operating unlicensed HMOs: rent
25repayment orders)—

(a) in subsection (4), after “section 74” insert “(in the case of an HMO in
Wales) or in accordance with Chapter 4 of Part 2 of the Housing and
Planning Act 2015 (in the case of an HMO in England)”;

(b) in subsection (5)(a), after “house” insert “in Wales”.

(3) 30In section 96 (other consequences of operating unlicensed houses: rent
repayment orders)—

(a) in subsection (4), after “section 97” insert “(in the case of a house in
Wales) or in accordance with Chapter 4 of Part 2 of the Housing and
Planning Act 2015 (in the case of a house in England)”;

(b) 35in subsection (5)(a), after “house” insert “in Wales”.