(8-14)

House of Commons

Session 2002 - 03
Internet Publications
Other Bills before Parliament

(  8  )

(i)
consisted of, or derived from, payments of housing benefit,

and

(ii)
was actually received by the appropriate person;

(c)
whether the appropriate person has at any time been convicted of

an offence under section 71(1) in relation to the HMO;

(d)
the conduct and financial circumstances of the appropriate person;

and

(e)
where the application is made by an occupier, the conduct of the

occupier.

(7)
In subsection (6) “relevant payments” means—

(a)
in relation to an application by a local housing authority, payments

of housing benefit or periodical payments payable by occupiers;

(b)
in relation to an application by an occupier, periodical payments

payable by the occupier, less any amount of housing benefit

payable in respect of occupation of the part of the HMO occupied

by him during the period in question.

(8)
A rent repayment order may not require the payment of any amount

which—

(a)
(where the application is made by a local housing authority) is in

respect of any time falling outside the period of 12 months

mentioned in section (Other consequences of operating unlicensed

HMOs: rent repayment orders)(6)(a); or

(b)
(where the application is made by an occupier) is in respect of any

time falling outside the period of 12 months ending with the date of

the occupier’s application under section (Other consequences of

operating unlicensed HMO: rent repayment orders)(5);


and the period to be taken into account under subsection (6)(a) above is

restricted accordingly.

(9)
Any amount payable to a local housing authority under a rent repayment

order—

(a)
does not, when recovered by the authority, constitute an amount of

housing benefit recovered by them, and

(b)
until recovered by them, is a legal charge on the HMO which is a

local land charge.

(10)
For the purpose of enforcing that charge the authority have the same

powers and remedies under the Law of Property Act 1925 (c. 20) and

otherwise as if they were mortgagees by deed having powers of sale and

lease, and of accepting surrenders of leases and of appointing a receiver.

(11)
The power of appointing a receiver is exercisable at any time after the end

of the period of one month beginning with the date on which the charge

takes effect.

(12)
If the authority subsequently grant a licence under this Part or Part 3 in

respect of the HMO to the appropriate person or any person acting on his

behalf, the conditions contained in the licence may include a condition

requiring the licence holder—

(a)
to pay to the authority any amount payable to them under the rent

repayment order and not so far recovered by them; and

(b)
to do so in such instalments as are specified in the licence.

(  9  )

(13)
If the authority subsequently make a management order under Chapter 1

of Part 4 in respect of the HMO, the order may contain such provisions as

the authority consider appropriate for the recovery of any amount payable

to them under the rent repayment order and not so far recovered by them.

(14)
Any amount payable to an occupier by virtue of a rent repayment order is

recoverable by the occupier as a debt due to him from the appropriate

person.

(15)
The appropriate national authority may by regulations make such

provision as it considers appropriate for supplementing the provisions of

this section and section (Other consequences of operating unlicensed HMOs:

rent repayment orders), and in particular—

(a)
for securing that persons are not unfairly prejudiced by rent

repayment orders (whether in cases where there have been over-

payments of housing benefit or otherwise);

(b)
for requiring or authorising amounts received by local housing

authorities by virtue of rent repayment orders to be dealt with in

such manner as is specified in the regulations.

(16)
Section (Other consequences of operating unlicensed HMOs: rent repayment

orders)(10) and (11) apply for the purposes of this section as they apply for

the purposes of section (Other consequences of operating unlicensed HMOs:

rent repayment orders).”
37
Insert the following new Clause—

“Other consequences of operating unlicensed HMOs: restriction on terminating

tenancies

(1)
No section 21 notice may be given in relation to a shorthold tenancy of a

part of an unlicensed HMO so long as it remains such an HMO.

(2)
In this section—


a “section 21 notice” means a notice under section 21(1)(b) or (4)(a) of

the Housing Act 1988 (c. 50) (recovery of possession on termination

of shorthold tenancy);


a “shorthold tenancy” means an assured shorthold tenancy within the

meaning of Chapter 2 of Part 1 of that Act;


“unlicensed HMO” has the same meaning as in section (Other

consequences of operating unlicensed HMOs: rent repayment orders) of

this Act.”
Clause 76
38
Page 52, leave out lines 8 and 9 and insert “a tenancy or licence to be an exempt

tenancy or licence—

(a)
if it falls within any description of tenancy or licence specified in the

order; or

(b)
in any other circumstances so specified.”
Clause 82
39
Page 55, leave out lines 33 and 34 and insert—

“(a)
it is an HMO to which Part 2 applies (see section 54(2)), or”

(  10  )
40
Page 55, leave out line 37 and insert—

“(c)
a management order is in force in relation to it under Chapter 1 or

2 of”
Clause 84
41
Page 57, line 34, after “under” insert “Chapter 1 of”
42
Page 57, line 36, leave out “Part” and insert “Chapter”
Clause 85
43
Page 57, line 39, leave out “may” and insert “must”
Clause 87
44
Page 59, line 18, leave out from “regulating” to end of line 20 and insert “the

management, use or occupation of the house concerned.”
45
Page 59, line 25, leave out “such steps as are reasonably practicable” and insert

“reasonable and practicable steps”
46
Page 59, line 27, at end insert—

“(2A)
A licence may also include—”
47
Page 59, line 46, after “imposing” insert “(in accordance with subsection (2A))”
Clause 88
48
Page 60, line 28, at end insert “or becomes an HMO to which Part 2 applies (see

section 54(2))”
Clause 90
49
Page 61, leave out line 38 and insert “has committed a serious breach of a condition

of the licence or repeated breaches of such a condition;”
50
Page 61, line 43, at end insert—


“Section 86(1) applies in relation to paragraph (b) or (c) above as it applies

in relation to section 85(3)(a) or (c).”
Clause 93
51
Leave out Clause 93 and insert the following new Clause—

“Other consequences of operating unlicensed houses: rent repayment orders

(1)
For the purposes of this section a house is an “unlicensed house” if—

(a)
it is required to be licensed under this Part but is not so licensed,

and

(b)
neither of the conditions in subsection (2) is satisfied.

(  11  )

(2)
The conditions are—

(a)
that a notification has been duly given in respect of the house under

section 61(1) or 83(1) and that notification is still effective (as

defined by section 92(7));

(b)
that an application for a licence has been duly made in respect of the

house under section 84 and that application is still effective (as so

defined).

(3)
No rule of law relating to the validity or enforceability of contracts in

circumstances involving illegality is to affect the validity or enforceability

of—

(a)
any provision requiring the payment of rent or the making of any

other periodical payment in connection with any tenancy or licence

of the whole or a part of an unlicensed house, or

(b)
any other provision of such a tenancy or licence.

(4)
But amounts paid in respect of rent or other periodical payments payable

in connection with such a tenancy or licence may be recovered in

accordance with subsection (5) and section (Further provisions about rent

repayment orders).

(5)
If—

(a)
an application in respect of a house is made to a residential property

tribunal by the local housing authority or an occupier of the whole

or part of the house, and

(b)
the tribunal is satisfied as to the matters mentioned in subsection (6)

or (8),


the tribunal may make an order (a “rent repayment order”) requiring the

appropriate person to pay to the applicant such amount in respect of the

housing benefit paid as mentioned in subsection (6)(b), or (as the case may

be) the periodical payments paid as mentioned in subsection (8)(b), as is

specified in the order (see section (Further provisions about rent repayment

orders)(2) to (8)).

(6)
If the application is made by the local housing authority, the tribunal must

be satisfied as to the following matters—

(a)
that, at any time within the period of 12 months ending with the

date of the notice of intended proceedings required by subsection

(6), the appropriate person has committed an offence under section

92(1) in relation to the house (whether or not he has been charged

or convicted),

(b)
that housing benefit has been paid (to any person) in respect of

periodical payments payable in connection with the occupation of

the whole or any part or parts of the house during any period

during which it appears to the tribunal that such an offence was

being committed, and

(c)
that the requirements of subsection (7) have been complied with in

relation to the application.

(7)
Those requirements are as follows—

(a)
the authority must have served on the appropriate person a notice

(a “notice of intended proceedings”)—

(i)
informing him that the authority are proposing to make an

application under subsection (5),

(ii)
setting out the reasons why they propose to do so,

(  12  )

(iii)
stating the amount that they will seek to recover under that

subsection and how that amount is calculated, and

(iv)
inviting him to make representations to them within a

period specified in the notice of not less than 28 days;

(b)
that period must have expired; and

(c)
the authority must have considered any representations made to

them within that period by the appropriate person.

(8)
If the application is made by an occupier of the whole or part of the house,

the tribunal must be satisfied as to the following matters—

(a)
that the appropriate person has been convicted of an offence under

section 92(1) in relation to the house, or has been required by a rent

repayment order to make a payment in respect of housing benefit

paid in connection with occupation of the whole or any part or parts

of the house,

(b)
that the occupier paid, to a person having control of or managing

the house, periodical payments in respect of occupation of the

whole or part of the house during any period during which it

appears to the tribunal that such an offence was being committed in

relation to the house, and

(c)
that the application is made within the period of 12 months

beginning with—

(i)
the date of the conviction or order, or

(ii)
if such a conviction was followed by such an order (or vice

versa), the date of the later of them.

(9)
Where a local housing authority serve a notice of intended proceedings on

any person under this section, they must ensure—

(a)
that a copy of the notice is received by the department of the

authority responsible for administering the housing benefit to

which the proceedings would relate; and

(b)
that that department is subsequently kept informed of any matters

relating to the proceedings that are likely to be of interest to it in

connection with the administration of housing benefit.

(10)
In this section—


“the appropriate person”, in relation to any payment of housing

benefit or periodical payment payable in connection with

occupation of the whole or a part of a house, means the person who

at the time of the payment was entitled to receive on his own

account periodical payments payable in connection with such

occupation;


“housing benefit” means housing benefit provided by virtue of a

scheme under section 123 of the Social Security Contributions and

Benefits Act 1992 (c. 4);


“occupier”, in relation to any periodical payment, means a person

who was an occupier at the time of the payment, whether under a

tenancy or licence (and “occupation” has a corresponding

meaning);


“periodical payments” means periodical payments in respect of which

housing benefit may be paid by virtue of regulation 10 of the

(  13  )

Housing Benefit (General) Regulations 1987 (S.I. 1987/1971) or any

corresponding provision replacing that regulation.

(11)
For the purposes of this section an amount which—

(a)
is not actually paid by an occupier but is used by him to discharge

the whole or part of his liability in respect of a periodical payment

(for example, by offsetting the amount against any such liability),

and

(b)
is not an amount of housing benefit,


is to be regarded as an amount paid by the occupier in respect of that

periodical payment.”
After Clause 93
52
Insert the following new Clause—

“Further provisions about rent repayment orders

(1)
This section applies in relation to orders made by residential property

tribunals under section (Other consequences of operating unlicensed houses:

rent repayment orders)(5).

(2)
Where, on an application by the local housing authority, the tribunal is

satisfied—

(a)
that a person has been convicted of an offence under section 92(1)

in relation to the house, and

(b)
that housing benefit was paid (whether or not to the appropriate

person) in respect of periodical payments payable in connection

with occupation of the whole or any part or parts of the house

during any period during which it appears to the tribunal that such

an offence was being committed in relation to the house,


the tribunal must make a rent repayment order requiring the appropriate

person to pay to the authority an amount equal to the total amount of

housing benefit paid as mentioned in paragraph (b).


This is subject to subsections (3), (4) and (8).

(3)
If the total of the amounts received by the appropriate person in respect of

periodical payments payable as mentioned in paragraph (b) of subsection

(2) (“the rent total”) is less than the total amount of housing benefit paid as

mentioned in that paragraph, the amount required to be paid by virtue of

a rent repayment order made in accordance with that subsection is limited

to the rent total.

(4)
A rent repayment order made in accordance with subsection (2) may not

require the payment of any amount which the tribunal is satisfied that, by

reason of any exceptional circumstances, it would be unreasonable for that

person to be required to pay.

(5)
In a case where subsection (2) does not apply, the amount required to be

paid by virtue of a rent repayment order under section (Other consequences

(  14  )

of operating unlicensed houses: rent repayment orders)(5) is to be such amount

as the tribunal considers reasonable in the circumstances.


This is subject to subsections (6) to (8).

(6)
In such a case the tribunal must, in particular, take into account the

following matters—

(a)
the total amount of relevant payments paid in connection with

occupation of the house during any period during which it appears

to the tribunal that an offence was being committed by the

appropriate person in relation to the house under section 92(1);

(b)
the extent to which that total amount—

(i)
consisted of, or derived from, payments of housing benefit,

and

(ii)
was actually received by the appropriate person;

(c)
whether the appropriate person has at any time been convicted of

an offence under section 92(1) in relation to the house;

(d)
the conduct and financial circumstances of the appropriate person;

and

(e)
where the application is made by an occupier, the conduct of the

occupier.

(7)
In subsection (6) “relevant payments” means—

(a)
in relation to an application by a local housing authority, payments

of housing benefit or periodical payments payable by occupiers;

(b)
in relation to an application by an occupier, periodical payments

payable by the occupier, less any amount of housing benefit

payable in respect of occupation of the house, or (as the case may

be) the part of it occupied by him, during the period in question.

(8)
A rent repayment order may not require the payment of an amount

which—

(a)
(where the application is made by a local housing authority) is in

respect of any time falling outside the period of 12 months

mentioned in section (Other consequences of operating unlicensed

houses: rent payment orders)(5)(a); or

(b)
(where the application is made by an occupier) is in respect of any

time falling outside the period of 12 months ending with the date of

the occupier’s application under section (Other consequences of

operating unlicensed houses: rent payment orders)(5);


and the period to be taken into account under subsection (6)(a) above is

restricted accordingly.

(9)
Any amount payable to a local housing authority under a rent repayment

order—

(a)
does not, when recovered by the authority, constitute an amount of

housing benefit recovered by them, and

(b)
is, until recovered by them, a legal charge on the house which is a

local land charge.

(10)
For the purpose of enforcing that charge the authority have the same

powers and remedies under the Law of Property Act 1925 (c. 20) and