Housing and Planning Bill (HL Bill 87)

Housing and Planning BillPage 10

(4) In deciding whether to make a banning order against a person, and in deciding
what order to make, the Tribunal must consider—

(a) the seriousness of the offence of which the person has been convicted,

(b) any previous convictions that the person has for a banning order
5offence,

(c) whether the person is or has at any time been included in the database
of rogue landlords and property agents, and

(d) the likely effect of the banning order on the person and anyone else
who may be affected by the order.

16 10Duration and effect of banning order

(1) A banning order must specify the length of each ban imposed by the order.

(2) A ban must last at least 12 months.

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

(4) 15A 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.

17 Content of banning order: company involvement

(1) 20A banning order may include provision banning the person against whom it is
made from being involved in any company that carries out an activity that the
person is banned by the order from carrying out.

(2) For this purpose a person is “involved” in a company if the person acts as a
officer of the company or directly or indirectly takes part in or is concerned in
25the management of the company.

18 Power to require information

(1) A local housing authority may require a person to provide specified
information for the purpose of enabling the authority to decide whether to
apply for a banning order against the person.

(2)
30It is an offence for the person to fail to comply with a requirement, unless the
person has a reasonable excuse for the failure.

(3)
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.

(4) 35A person who commits an offence under this section is liable on summary
conviction to a fine.

19 Revocation or variation of banning orders

(1) A person against whom a banning order is made may apply to the First-tier
Tribunal for an order under this section revoking or varying the order.

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(2) If the banning order was made on the basis of one or more convictions all of
which are overturned on appeal, the First-tier Tribunal must revoke the
banning order.

(3) If the banning order was made on the basis of more than one conviction and
5some of them (but not all) have been overturned on appeal, the First-tier
Tribunal may—

(a) vary the banning order, or

(b) revoke the banning order.

(4) If the banning order was made on the basis of one or more convictions that
10have become spent, the First-tier Tribunal may—

(a) vary the banning order, or

(b) revoke the banning order.

(5) The power to vary a banning order under subsection (3)(a) or (4)(a) may be
used to add new exceptions to a ban or to vary—

(a) 15the banned activities,

(b) the length of a ban, or

(c) existing exceptions to a ban.

(6) In this section “spent”, in relation to a conviction, means spent for the purposes
of the Rehabilitation of Offenders Act 1974.

20Consequences of banning order, including consequences of breach

20 Offence of breach of banning order

(1) A person who breaches a banning order commits an offence.

(2) A person guilty of an offence under this section is liable on summary
conviction to imprisonment for a period not exceeding 51 weeks or to a fine or
25to both.

(3) If a financial penalty under section 22 has been imposed in respect of the
breach, the person may not be convicted of an offence under this section.

(4) In relation to an offence committed before section 281(5) of the Criminal Justice
Act 2003 comes into force, the reference in subsection (2) to 51 weeks is to be
30read as a reference to 6 months.

21 Offences by bodies corporate

(1) Where an offence under section 20 committed by a body corporate is proved to
have been committed with the consent or connivance of, or to be attributable
to any neglect on the part of, an officer of a body corporate, the officer as well
35as the body corporate commits the offence and is liable to be proceeded against
and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection
(1) applies in relation to the acts and defaults of a member in connection with
the member’s functions of management as if the member were an officer of the
40body corporate.

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22 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’s conduct amounts to an offence under
section 20.

(2) 5In this section “responsible local housing authority” means the local housing
authority for the area in which the housing to which the conduct relates is
situated.

(3) Only one financial penalty under this section may be imposed in respect of the
same conduct.

(4) 10The amount of a financial penalty imposed under this section is to be
determined by the authority imposing it, but must not be more than £30,000.

(5) The responsible local housing authority may not impose a financial penalty in
respect of any conduct amounting to an offence under section 20 if—

(a) the person has been convicted of an offence under that section in
15respect of the conduct, or

(b) criminal proceedings for the offence have been instituted against the
person in respect of the conduct and the proceedings have not been
concluded.

(6) Schedule 1 deals with—

(a) 20the procedure for imposing financial penalties,

(b) appeals 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) 25The Secretary of State may by regulations amend the amount specified in
subsection (4) 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.

23 30Saving for illegal contracts

A 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.

24 35Banned 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.

25 Management orders following banning order

Schedule 3 amends the Housing Act 2004 to allow interim and final
40management orders to be made in cases where a banning order has been made.

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Anti-avoidance

26 Prohibition on certain disposals

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

(2) 5A 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) In subsection (1) “prohibited person” means—

(a) 10a 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) a body corporate of which the landlord or a person mentioned in
15paragraph (a) to (d) is an officer,

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

(g) in a case where the landlord is a body corporate, any body corporate
that has an officer in common with the landlord.

(5) 20In section (4)

  • “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.

25CHAPTER 3 Database of rogue landlords and property agents

The database and its content

27 Database of rogue landlords and property agents

(1) The Secretary of State must establish and operate a database of rogue landlords
30and property agents for the purposes of this Chapter.

(2) Sections 28 and 29 give local housing authorities in England responsibility for
maintaining 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
35and updating the database under section 33.

28 Duty to include person with banning order

(1) A local housing authority in England must make an entry in the database in
respect of a person if—

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(a) a banning order has been made against the person following an
application by the authority, and

(b) no entry was made under section 29, before the banning order was
made, on the basis of a conviction for the offence to which the banning
5order relates.

(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.

29 Power to include person convicted of banning order offence

(1) A local housing authority in England may make an entry in the database in
10respect of a person 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 property agent.

(2) A local housing authority in England may make an entry in the database in
15respect of a person who has, at least twice within a period of 12 months,
received a financial penalty in respect of a banning order offence committed at
a time when the person was a residential landlord or a property agent.

(3) A financial penalty is to be taken into account for the purposes of subsection
(2) only if the period for appealing the penalty has expired and any appeal has
20been finally determined or withdrawn.

(4) Section 30 imposes procedural requirements that must be met before an entry
may be made in the database under this section.

(5) An entry made under this section—

(a) must be maintained for the period specified in the decision notice given
25under section 30 before the entry was made (or that period as reduced
in accordance with section 35), and

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

(6) Subsection (5)(a) does not prevent an entry being removed early in accordance
under section 35.

(7) 30The Secretary of State must publish guidance setting out criteria to which local
housing authorities must have regard in deciding—

(a) whether to make an entry in the database under this section, and

(b) the period to specify in a decision notice under section 30.

30 Procedure for inclusion under section 29

(1) 35If a local housing authority decides to make an entry in the database in respect
of a person under section 29 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 make the entry in the database
40after the end of the period of 21 days beginning with the day on 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.

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(3) The decision notice must also summarise the person’s appeal rights under
section 31.

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

(5) 5If a person appeals under section 31 within the notice period the local housing
authority may not make the entry in the database until—

(a) the 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) 10A 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—

(a) was convicted of the banning order offence to which the notice relates,
or

(b) received the second of the financial penalties to which the notice
15relates.

31 Appeals

(1) A person who has been given a decision notice under section 30 may appeal to
the First-tier Tribunal against—

(a) the decision to make the entry in the database in respect of the person,
20or

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

(2) An appeal under this section must be made before the end of the notice period
specified in the decision notice under section 30(2).

(3) 25The 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) On an appeal under this section the tribunal may confirm, vary or cancel the
decision notice.

32 30Information 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) The regulations may, in particular, require a person’s entry to include—

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

(b) 35the 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
convicted;

(e) details of any banning orders made against the person, whether or not
40still in force;

(f) details of financial penalties that the person has received.

(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.

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33 Updating

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

34 Power to require information

(1) 5A local housing authority may require a person to provide specified
information for the purpose of enabling the authority to decide whether to
make an entry in the database in respect of the person.

(2) A local housing authority that makes an entry in the database in respect of a
person, or that is proposing to make an entry in the database in respect of a
10person, may require the person to provide any information needed to complete
the person’s entry or keep it up-to-date.

(3) It 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
15if 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
conviction to a fine.

Removal or variation

35 20Removal or variation of entries made under section 29

(1) An entry made in the database under section 29 may be removed or varied in
accordance with this section.

(2) If the entry was made on the basis of one or more convictions all of which are
overturned on appeal, the responsible local housing authority must remove
25the entry.

(3) If the entry was made on the basis of more than one conviction and some of
them (but not all) have been overturned on appeal, the responsible local
housing authority may—

(a) remove the entry, or

(b) 30reduce the period for which the entry must be maintained.

(4) If the entry was made on the basis of one or more convictions that have become
spent, the responsible local housing authority may—

(a) remove the entry, or

(b) reduce the period for which the entry must be maintained.

(5) 35If the entry was made on the basis that the person has received two or more
financial penalties and at least one year has elapsed since the entry was made,
the responsible local housing authority may—

(a) remove the entry, or

(b) reduce the period for which the entry must be maintained.

(6) 40The power in subsection (3), (4) or (5) may even be used—

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(a) to remove an entry before the end of the two-year period mentioned in
section 30(2)(b), or

(b) to reduce the period for which an entry must be maintained to less than
the two-year period mentioned in section 30(2)(b).

(7) 5If a local housing authority removes an entry in the database, or reduces the
period for which it must be maintained, it must notify the person to whom the
entry relates.

(8) In this section—

  • “responsible local housing authority” means the local housing authority
    10by which the entry was made;

  • “spent”, in relation to a conviction, means spent for the purposes of the
    Rehabilitation of Offenders Act 1974.

36 Requests for exercise of powers under section 35 and appeals

(1) A person in respect of whom an entry is made in the database under section 29
15may request the responsible local housing authority to use its powers under
section 35 to—

(a) remove the entry, or

(b) reduce the period for which the entry must be maintained.

(2) The request must be in writing.

(3) 20Where a request is made, the local housing authority must—

(a) decide whether to comply with the request, and

(b) give the person notice of its decision.

(4) If the local housing authority decides not to comply with the request the notice
must include—

(a) 25reasons for that decision, and

(b) a summary of the appeal rights conferred by this section.

(5) Where a person is given notice that the responsible local housing authority has
decided not to comply with the request the person may appeal to the First-tier
Tribunal against that decision.

(6) 30An appeal to the First-tier Tribunal under subsection (5) must be made before
the end of the period of 21 days beginning with the day on which the notice
was given.

(7) The First-tier Tribunal may allow an appeal to be made to it after the end of that
period if satisfied that there is a good reason for the person’s failure to appeal
35within the period (and for any subsequent delay).

(8) On an appeal under this section the tribunal may order the local housing
authority to—

(a) remove the entry, or

(b) reduce the period for which the entry must be maintained.

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Access to information in the database

37 Access to database

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

38 5Use of information in database

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

(2) The Secretary of State may disclose information in the database to any person
if the information is disclosed in an anonymised form.

(3) 10Information is disclosed in an anonymised form if no individual or other
person to whom the information relates can be identified from the information.

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

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

(b) 15for 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) for the purposes of promoting compliance with the law relating to
20housing 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

39 25Introduction and key definitions

(1) This Chapter confers power on the First-tier Tribunal to make a rent repayment
order where a landlord has committed an offence to which this Chapter
applies.

(2) A rent repayment order is an order requiring the landlord under a tenancy of
30housing in England to—

(a) repay 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) 35A 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.

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Act section general description of
offence
1 Criminal Law Act
1977
section 6(1) violence for securing
entry
2 Protection from
Eviction Act 1977
section 1(2), (3) or (3A) 5eviction or harassment
of occupiers
3 Housing Act 2004 section 30(1) failure to comply with
improvement notice
4 . section 32(1) failure to comply with
10prohibition order etc
5 . section 72(1) control or management
of unlicensed HMO
6 . section 95(1) control or management
of unlicensed house
7 This Act section 20 15breach of banning
order

(4) For 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
20section was given in respect of a hazard on the premises let by the landlord (as
opposed, for example, to common parts).

Application for rent repayment order

40 Application for rent repayment order

(1) A tenant or a local housing authority may apply to the First-tier Tribunal for a
25rent repayment order against a person who has committed an offence to which
this Chapter applies.

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

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

(b) 30the offence was committed in the period of 12 months 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 offence relates to housing in the authority’s area, and

(b) the authority has complied with section 41.

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