Select Committee on Office of the Deputy Prime Minister: Housing, Planning, Local Government and the Regions Written Evidence

Memorandum by Brent Private Tenants' Rights Group (DHB 21)


  For the last 15 years, Brent Private Tenants' Rights Group has been bringing private tenants together to voice their concerns, and working to improve their living conditions. We run a specialist housing advice service as well as a membership organisation providing tenants with the latest information about their rights, (or the lack of them).

  The constituency of Brent East is reckoned to have the highest number of houses in multiple occupation in the country, and one in twenty of the unfit HMOs in England and Wales is in Brent.

  We were the first organisation to call for licensing to protect private tenants. We believe that it has the potential to transform the private rented sector (PRS) by raising management standards. If this is achieved, the PRS could take its place in a future that offers genuine housing choice. It could become a viable alternative option to social housing in areas like Brent and other London boroughs where we expect to face an acute shortage of social housing for decades to come.

  For this reason, it is essential to ensure that the legislation is drafted in a manner that will enable it to fulfil this vital role.


  When we first began discussions with Ministers, shadow ministers and others about these ideas, it was in the days before the 1988 Act had had any serious impact on the PRS. The vast majority of vulnerable tenants who most needed protection and who found themselves in the worst parts of the sector with the least competent landlords DID AT LEAST HAVE SECURITY OF TENURE, and could therefore exercise their rights to improvements. These tenants were either (mainly elderly) tenants regulated by the Rent Acts, or they were newer tenants who had security of tenure by default, because their landlords had not provided the correct paperwork to create assured shorthold tenancies.

  By the mid-nineties, most landlords had got the hang of how to create shortholds, and the least competent of all were assisted by the 1996 Housing Act which abolished the need to actively create shortholds, by making them the default tenancy for all new lettings. Now, of course, the vast majority of all tenants have no security beyond the first six months.

  Deregulation of the sector had the desired effect of encouraging investment in the PRS from some quarters such as "Buy to Rent", though far less than was envisaged. The downside is that, to all intents and purposes, shorthold tenants have no housing rights. If a shorthold tenant dares to propose that the landlord repairs their leaking roof, installs smoke alarms or gets the gas boiler serviced, they know that the landlord can, and frequently does, respond by giving them two months' notice to leave, against which there is no defence. Housing Advisers are constantly having to explain tenants' rights while warning tenants of the possible consequences of implementing those rights.

  Similarly, enforcement action by the local authority is frequently a trigger for landlords to evict their tenants, as an easier option than complying with the health and safety measures the Council requires.


  We understand the Government's commitment not to contemplate the re-introduction of security of tenure. This places an onus on us all to find an alternative means of protecting tenants and preventing landlord exploitation. We believe that this entails a switch from the traditional focus on the physical standards in accommodation, towards an emphasis on professional management. Since tenants have no redress against landlords who wish to evict them for merely attempting to exercise their basic housing rights, we have to ensure that those landlords either change their approach, or are replaced by those who are motivated by the wish to obtain a fair return from running a responsible business. With competent management, improved physical standards will follow.

  A Licensing system therefore faces the challenge of being robust in its requirements to raise management standards, without the risk that licensing itself will result in wholesale homelessness created by landlords as a means of avoiding compliance.

  The legislation as drafted does not meet that challenge for the reasons we summarise below.

1.   Definition of HMO

  The definition of "house in multiple occupation" as set out in s.164 of the draft bill appears to restrict HMOs only to those where there are shared amenities. We hope that this is a drafting omission, since the ODPM's Fact Sheet 3, which accompanies the draft housing bill, also includes "a house that comprises of self-contained flats that has not been converted at least to the standards by the 1991 Building Regulation and less than two thirds of the flats are held on long leases or by freeholders."

  It is essential that the definition is set as widely as possible, to encompass all types of HMOs falling within the 1985 Housing Act definition (s.345), that is, "a house which is occupied by persons who do not form a single household . . . [and is a house which] . . . was originally constructed or subsequently adapted for occupation by a single household."

  The importance of widening the definition is to ensure that local authorities needing to license all types of HMO as a part of their strategic approach to the area are able to do so. This will be necessary is areas such as Brent, where the high demand for all types of PRS accommodation, leads to low management standards across the sector. Unless the scheme can be enforced in all, or almost all types of lettings, the response of the worst landlords will be one of the following.

  (i)  Landlords will evict most of their tenants, as they do now, for example, when the Council serves an enforcement notice requiring an additional kitchen, or fire doors; wait until the Council has dropped the enforcement process and turned its attention elsewhere, and then re-let as before.

  (ii)  Landlords will evict their tenants, and adapt the property to a category of HMO which falls outside the licensing regime. This will inevitably create fewer lettings at higher rents, while retaining the same irresponsible management.

  (iii)  If the definition in s.164 is not a drafting omission or a misunderstanding on our part, landlords will simply be able to close shared kitchens, where there happens to be, say, one household on each floor in rooms leading off the common parts, with a bathroom and wc on each floor; shove a baby belling in each room (increasing the fire risks), and the property will not be subject to licensing.

2.   Defence against Licensing Requirements

  Almost by way of an encouragement to landlords to evict tenants, s.66 (2)(b) provides a defence for a landlord against the requirement to be licensed, if "he is taking all reasonable steps to try to ensure that the house ceased to be a house in multiple occupation to which this Part applies." Again this serves only to undermine the local authority's strategic role. In Brent, for example, there is such an acute need for (relatively) affordable accommodation in the PRS that the borough's Unitary Development Plan calls for the retention of houses comprising bedsits. Appeals against the refusal of planning applications to convert from this type of accommodation must surely succeed with the statutory support proposed by s.66.

3.   No Rent PayableIn the event that landlords need further incentives to evict their tenants, s.67(2) proposes that "for the period during which the house in multiple occupation is not licensed -

  (a)  no rent or licence fee is payable by a person who occupies the house under a tenancy or licence; and

  (b)  no other compensation is payable for use or occupation of the house."

  This will, of course, have no effect on those tenants who do not claim housing benefit. Shorthold tenants will have no more power to refuse to pay the rent than they have power to exercise any other housing right. However, for housing benefit claimants, the situation is tragic, because their benefit will cease, and they will lose their homes at the earliest opportunity. Many of these tenants will be in priority need, and will have no option but to present as homeless to the local authority. The effect of this section of the bill alone, will be sufficient, in areas such as Brent, to completely undermine the considerable efforts being made to comply with the ODPM's directive to cease the use of B&Bs for homeless families, other than in emergencies. There will be a similarly adverse impact on the attempt to eradicate rough sleeping in metropolitan areas.

4.   Prohibition Orders

  Further powers to evict appear to stem from the issue of Prohibition Orders (s.47). These appear to combine the existing Closing Orders with local authority powers to require a reduction in the number of occupiers. At present Closing Orders trigger a rehousing duty by the local authority towards those who lose their homes as a result, and we trust that such a duty will accompany the use of Prohibition Orders. Under current legislation, the reduction in the number of occupiers is normally achieved through "natural wastage", that is tenancies that end naturally may not be replaced until the required reduction is achieved. It would appear from combining the two, that landlords have a right to immediate possession in both these situations. We must therefore hope, from the tenants' point of view, that the homelessness duty covers both situations, while recognising the additional pressures this will place on the local authority's ability to reduce homelessness.

5.   Fit and Proper Status

  Our final reservation concerns the test of a "fit and proper" person to be a licence holder or manager. On this issue we echo concerns that have been expressed in the past by landlord organisations at the responsible end of the sector. The test is, like existing legislation, wholly negative, relying on what a person must NOT be (ie convicted of various offences). We believe that there could be a Human Rights issue here, since it allows for refusal of fit and proper status where convictions are spent. In any event a more positive approach would be desirable in encouraging responsible landlords to replace those unwilling to comply with licensing requirements.


  We must accept that, given that we are not creating a private rented sector from scratch, there cannot be a perfect way of bringing about the transition from irresponsible to responsible management of the sector without any negative results. Nevertheless, we believe that our proposed changes will serve to minimise the adverse effects while maximising the effectiveness of the licensing regime.

1.   Licensing must be Comprehensive

  As suggested above, licensing must be available for every type of house in multiple occupation. We would go so far as to ask the Select Committee to give serious consideration to an extension of licensing to cover all forms of rented accommodation in the PRS. We would like to see licensing mandatory for all letting types. At the very least, it must be a strategic option available to local authorities who wish to operate a broadly defined licensing scheme. This will remove the incentives that are otherwise available to landlords to switch to lettings falling outside the scheme.

2.   Drop proposal that no Rent is Payable in unlicensed HMOs

  This proposal will not provide any incentive to landlords to comply with licensing requirements; it will merely serve to penalise housing benefit claimants who will lose their homes as a result.

3.   Re-define "Fit and Proper" for Licensing Purposes

  In order to switch the focus away from bricks and mortar in favour of professional management, more thought should be given to the definition of a fit and proper person to manage tenants' homes.

  We are currently working with Brent Council, the Independent Housing Ombudsman and local Housing Associations to devise a scheme whereby all fit and proper persons (in this case relating to Brent's existing HMO Registration Scheme) must provide evidence of having passed a test in basic housing management, which will normally require them to undertake a short training course (max. 12 hours). Landlords have the option, of course, to undertake the training themselves, or to employ a fit and proper person as their agent (which could be a Housing Association).

  We are also considering membership of the Independent Housing Ombudsman as the criterion for being deemed to be "fit and proper". This, in turn, could provide access to a range of support services to landlords, as well as a fast and cost effective means of dispute resolution. It would also overcome the marked omission from the draft bill of any protection for tenants' deposits, since IHO membership could automatically include membership of the existing (pilot) national Tenancy Deposit Scheme administered by the IHO. The Tenancy Deposit Scheme could then become a permanent part of the service. This more positive approach could be presented in a way which would be welcomed by the responsible parts of the PRS. Hopefully, responsible landlords and potential new investors would thus be encouraged to replace those landlords who leave the sector, either because they cannot, or do not choose, to take on the responsibilities of a fit and proper manager.

  We therefore suggest that s.72(2) of the draft bill which lists evidence the local housing authority should consider, should be replaced with a power for the Secretary of State to introduce criteria for what constitutes a fit and proper person. This would allow for secondary legislation to reflect good practice in this area, perhaps after using Brent's initiative as a pilot for Licensing.

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