Communities and Local Government CommitteeWritten evidence submitted by the Association of Tenancy Relations Officers

1.0 Introduction

1. The Association of Tenancy Relations Officers (ATRO) represents local government officers across England and Wales who, as part of their work role, investigate allegations from private rented sector tenants of unlawful eviction and harassment. Members also seek to negotiate and mediate to resolve landlord and tenant disputes and work proactively to encourage and educate landlords in the private rented sector in order to improve management standards and promote a successful and responsible private rented sector. The Association’s members work in the front line of housing advice and enforcement services and have wide experience and knowledge of housing disputes.

2.0 Regulation of Landlords

Protection from Illegal Eviction and Bullying Behaviour:

2.1 The private rented sector is expanding, will continue to expand and is likely to be populated by an increasingly high proportion of the poorest and most vulnerable people in our society. Let us say first, how aware we are that the vast majority of private landlords do a very good job in managing rented accommodation in increasingly difficult circumstances. ATRO’s concerns are about those landlords who are not able, or who do not have the inclination, to manage their properties responsibly and within the legal framework.

2.2 One of the main concerns of this Association is how far, in practice, Local Authorities (LA’s) are using their powers to ensure that private tenants enjoy their rights to their home and in particular, how effectively private tenants are being protected from the fear and reality of losing their homes unlawfully at the hands of the small minority of private landlords who are prepared to harass their tenants into leaving or simply change the locks to exclude them.

We believe that unlawful eviction; or the threat of it, and harassment and intimidation from landlords are at the very worst end of the scale of bad experiences that a private tenant can have.

2.3 The experience of our members, who deal with cases of harassment and illegal eviction daily, is that a lack of encouragement from central government over the past 20 years or so, has led to a tendency for LA’s to reduce the importance of investigation and enforcement of offences of illegal eviction and harassment. The lack of suitably experienced staff with knowledge of private sector law is likely to have led to under recording of the problem as well as less enforcement activity. This at a time when more and more vulnerable tenants find themselves reliant on the private sector and even the most competent of landlords are likely to face increasingly challenging management problems.

2.4 There is good reason to think that that issues of harassment and illegal eviction may become more prevalent as private landlords increasingly encounter more and more frustration and challenges in dealing with a more vulnerable tenant group presenting particular management challenges.

2.5 Support to both landlords and tenants is important in this context but ATRO also firmly believes that LA’s must act robustly and consistently in making clear that landlords must not resort to unlawful means to evict tenants in order to provide a short cut solution to problems such as rent arrears, or as an expression of impatience with having to follow a lawful procedure.

2.6 Effective and consistent enforcement of LA powers of prosecution under the Protection from Eviction Act (PEA) is one important tool that LA’s have, but one which is under utilised as a means of challenging and discouraging landlords from evicting illegally. We have little doubt that many LA’s have now lost the confidence and expertise to effectively enforce PEA.

2.7 By contrast other LA’s regularly and effectively enforce PEA from an investigation stage through to a prosecution in the criminal courts. However, lack of consistency across regions does have a negative effect, even on those LA’s who do take their powers seriously. It is not uncommon for landlords to openly breach the law believing that a prosecution, or even an investigation, is very unlikely to happen. In areas where a Tenancy Relations Service is not provided, many police officers believe that illegal eviction is a purely civil matter and the police themselves do not normally investigate the offence.

2.8 Equally, it seems that LA’s who do little to deter harassment and illegal eviction, benefit from the efforts of those who do, with well publicised prosecutions having a national impact as they are usually feature widely on blogs and forums, and are brought to the attention of letting agents and landlord associations.

2.9 For the vast majority of responsible landlords the possibility of prosecution under PEA should not be an issue, but it is a sharp edged tool for confronting and deterring the minority worst kind of private landlord who has little interest in operating by the same rules as those of the responsible majority.

2.10 We believe that, without investigation of PEA offences, there is also a danger of undermining the credibility of landlord accreditation schemes and mandatory and selective licensing schemes, as without a conviction there may not be any, or insufficient, evidence for LA’s to sustain a decision to exclude landlords from these schemes. This will have a detrimental effect on good landlords who may be aware that others who flout the law are still able to use the badge of accreditation. It is our contention that an accreditation or licensing scheme which does not exclude landlords who harass or illegally evict their tenants has little value and little credibility. However, landlords and managers can not be excluded unless allegations against them are properly and fairly investigated. Where the evidence from a criminal investigation supports the allegations, it therefore effectively serves the purpose of both:

(1)Providing the basis for a prosecution and the strategic deterrent value that brings and

(2)Provides a sound basis for excluding the landlord from licensing and accreditation approval.

2.11 We believe effective enforcement of PEA also boosts the effectiveness of other regulatory work that Local Authorities carries out, both in the private sector and more generally. Some of the few PEA prosecutions that have been taken recently have resulted in custodial sentences which boost the credibility of the LA as a regulatory body. It is also worth questioning the consistency and logic of a LA strategy which sets out to protect the health and safety of occupiers in relation to hazards around the home, but then makes no provision for addressing the sudden and traumatic loss of the entire home through illegal eviction, which we would suggest is likely to have an even greater impact on the physical and mental health and well being of the tenant and their family. This is especially so, given the nature of many illegal evictions and serious criminal harassment: the suddenness, the bullying element, the practical problems, the loss of possessions etc. Even given that lawful eviction may only take 3–4 months, there is some time to plan, the opportunity to challenge and there is an order, logic and a structure to events which, by comparison makes the experience of unlawful eviction much more damaging and traumatic.

2.12 Where there is no enforcement of PEA, Housing Solutions or Homelessness Officers are limited in their attempts to warn landlords against illegal eviction. If the law is not taken seriously enough by the LA, it is not likely to be taken seriously by an irresponsible landlord, the deterrence of prosecution will soon be lost and interventions by Homeless prevention officers will fall on deaf ears.

2.13 One or two LA’s have used powers under anti-social behaviour law to combat harassment and illegal eviction and this is a tool worth wider consideration.

2.14 However, the value of carrying out criminal investigations and bringing prosecutions should not be lost sight of.

2.15 A criminal record is still a powerful deterrent, all the more so when the crime carries the risk of a custodial sentence.

2.16 As local authority workers, we owe it to landlords as well as to tenants to investigate allegations thoroughly and fairly. Whilst we would very much agree that a strengthening of our investigatory powers would be welcome, even those we have got now, enable us to dig deeper than would generally be possible without undertaking a criminal investigation. This is especially so in terms of getting information from 3rd parties and from the Police

2.17 Forging an effective relationship with the Police is a crucial aspect of any harassment and illegal eviction prevention strategy and this is much easier where co-operation is based on crime prevention. This applies to preventative interventions as well as to information sharing. The Local Authority is unlikely to be able to convince the Police to take Protection from Eviction Act crimes seriously if it does not take them seriously itself.

2.18 Recently, there have been a number of cases of custodial sentences for PEA offences, showing that when cases are well put together, the Courts are willing to pass sentences which are credible deterrents.

2.19 However, it’s not just the penalty, or even the prosecution that has deterrent value. Engaging a suspected landlord in a criminal investigation process is itself, a deterrent. In our experience, subjecting an alleged eviction or incident to a serious, credible investigation, carries weight, all the more so when this is followed up by a formal interview under caution. Following a process itself, in our experience, acts as a deterrent and sends the message that the alleged criminal conduct is being taken seriously. Even if the evidence falls short of what is required for a prosecution, a possibly errant landlord has met a response and has got a message that the Local Authority cares about what happens.

2.20 ATRO believes that it is right for it to be the Local Authority that is seen to be taking effective action in these cases. It is reassuring for tenants to know that there is a highly visible, very well known organisation with an established policing role, which is prepared to take action. We come across tenants who are so vulnerable as to be reluctant to front their own action, or indeed are not well equipped to provide the necessary direction to a civil action themselves (even with a highly supportive advocate) but will still act as a witness for a Council prosecution. Of course, effort still has to be put into supporting the tenant witness but this process in itself can be very beneficial to building up confidence in the Council role.

2.21 Our experience is that landlords generally don’t want to get into trouble with the Council, especially where there is a generally positive relationship between landlords and the authority and where of course, the landlord is immediately aware that the Council is the licensing authority for Houses in Multiple Occupation. This gives the Council an edge when it comes to intervening and threatening prosecution in order to prevent an offence.

2.22 There are advantages of coherence and consistency to be had in having the same body responsible for policing, enforcing and overall strategy in the private rented sector.

2.23 For every prosecution taken, a hundred or more positive, successful interventions can be made, backed by the convincing threat of prosecution. On top of course of the many active interventions, are the possibly hundreds more, potential threats or incidents which do not happen when it is known that a Local Authority takes a clear and unequivocal stance on prosecuting cases of illegal eviction.

3.0 Conclusions: Illegal Eviction

3.1 In order to bolster the credibility and reliability of the Private Rented Sector, and as a contribution to homelessness prevention, ATRO would like to see LA’s reminded of their powers and responsibilities in relation to the policing of the private rented sector, especially in relation to the discouragement and deterrence of the harassment and illegal eviction of tenants.

3.2 Whilst accepting the possibility that different regions and local authority areas may need different approaches; we believe having a consistently applied, properly resourced PEA prosecution strategy should be strongly encouraged as a part of any local authority’s private rented and homeless prevention strategies. Whatever strategies are employed in different areas, Local Authorities need to be encouraged to take all aspects of policing the private rented sector seriously, including illegal eviction and they need to have the tools and resources to do it, which may require an enhancing of investigatory powers.

3.3 We are also concerned about inconsistency of how seriously different Local Authorities address issues of harassment and illegal eviction. We would urge government to consider making it a statutory duty for local authorities to have a coherent policy as to how they will deter, investigate, and intervene in cases where private tenants are being unlawfully intimidated and subject to threats of illegal eviction.

There should be a consistently applied intervention and prosecution policy or some other locally chosen variation.

4.0 Security of Tenure

4.1 The problems of “retaliatory eviction” ie Landlords’ responding to complaints of eg disrepair, illegal charges, or harassment by giving a section 21 Notice, have been raised often before. ATRO members continue to see examples of this on a regular basis but we believe any attempts to measure the incidence of the problem are bound to underestimate the problem many fold because the unfettered, “no fault” section 21 ground as it currently stands, deters tenants from ever reporting dangerous conditions. Any responsible housing adviser is duty bound to make private tenants aware that a possible consequence of raising a complaint is that the landlord will give a section 21 Notice. What’s more, it is our experience that there is some “rationale” behind retaliatory eviction for the irresponsible landlord especially when alternative tenants are easy to come by. Tenants differ hugely in the degrees of strength and resolve required to make a complaint and also differ in terms of their likely realistic alternative housing options. The availability of retaliatory eviction therefore encourages unscrupulous landlords to seek out the most vulnerable. By evicting a “troublesome” tenant, a landlord may well find a more compliant tenant who is far less likely to raise issues about standards of management. Also, where a hard pressed Local Authority is dealing with a complaint eg about a hazard, realistically, it is probably less likely that any action will be followed through where the complainant leaves and the landlords future intentions for the property are unclear.

4.2 We believe that serious consideration needs to be given as to how tenants who make genuine complaints can be given the opportunity to raise retaliatory eviction as a defence to section 21 proceedings.

5.0 Resolving Homelessness Through the Private Rented Sector

5.1 ATRO recognises the important role the private sector has to play here. However, we believe that for the sector to be strengthened as a credible housing alternative, especially for the vulnerable, there needs to be the sort of enhanced protection discussed above.

6.0 Letting Agents

6.1 ATRO believes that those organisations which claim to be able to offer a specialised management service to landlords, should be subject to some form of light touch regulation and should be barred from operating when they are shown to be incapable of, or unwilling to, operate within the law. Many small, one-off landlords, are not aware of the wisdom of seeking an agent who is a voluntary member of a regulatory body, others seek a cheaper alternative and others simply have the wool pulled over their eyes by agents who are able to project their profile very well, but who do not have the knowledge or skills to manage properties as well as they can project their image.

January 2013

Prepared 16th July 2013