Housing and Planning Bill

Written evidence submitted by Paul Stockton (HPB 06)

Housing and Planning Bill 2015

Comments and suggested amendments on Part 2

Summary

1. This paper, from a former senior civil servant in the Ministry of Justice, suggests changes to clauses 13, 14, 15, 20 and 25 which are intended to create a better balance between the roles of the criminal courts, the tribunals and local housing authorities in imposing banning orders and making entries onto the database of rogue landlords. The changes are:

a. Banning order offences should not be confined to housing offences;

b. A criminal court should be able to impose a banning order as part of the sentencing process;

c. Where the court does not impose a ban a local authority should be able to do so, with the landlord having the right to appeal to the First-tier Tribunal;

d. Bans should come into effect as soon as they are imposed but where there is an appeal the court or tribunal concerned should be able to control the local authority’s use of its consequent management powers;

e. Database entries of offences should be made immediately but if there is an appeal that information should be noted on the database.

About the author

2. I am Paul Stockton, a barrister and a retired senior civil servant from the Ministry of Justice and its predecessor departments. Most of my time as a civil servant was spent working with criminal courts and with tribunals. Among posts held were Principal Private Secretary to the Lord Chancellor, Head of Criminal Justice Division, Head of Administrative Justice Division, and Director of the Tribunals Judicial Office. I headed the team which prepared and took the Tribunals, Courts and Enforcement Act 2007 through Parliament. I was awarded the CBE for services to the Ministry of Justice in 2010.

3. I am currently a volunteer advisor with my local CAB and I am copying this submission to Citizens Advice centrally.

The procedure for Banning Orders

4. It is assumed for the purpose of these comments that Government and Parliament will want to stick with the general approach taken in these clauses. The proposals set out below are intended to strengthen protection for tenants against rogue landlords and reduce delays in imposing banning orders while safeguarding landlords’ rights and reducing the potential cost to local authorities of the new regime.

5. The clauses make it a precedent condition for a banning order that a landlord has been convicted of a banning order offence. These offences are to be listed or defined in regulations. There are some issues of principle about what sort of offence should be listed in due course. Comments I have seen so far suggest that there is an assumption that these will be offences under housing legislation. But why should the list be restricted in this way? Is there not a good case for also listing serious generic offences such as serious sexual offences, fraud and burglary? It would be a major gap if rogue landlords who defrauded or assaulted their tenants could not be banned.

6. The procedure envisaged by these clauses is that following a conviction the local authority can apply to the First-tier Tribunal for a banning order. This approach seems to me to have a major drawback: because the Tribunal will have to take the full range of circumstances into account, and has a complete discretion over what order, if any, to make, it may well be that the local authority will have to present to the Tribunal the full case which was presented to the criminal court, and the landlord may be able in effect to contest all the facts on which the conviction was based, or at least to assert that the offence was not as serious as it may appear or as the criminal court considered it to be.

7. The local authority may be able to provide the Tribunal with the paperwork produced for the criminal court but there is no way of putting what was actually said in court before the Tribunal. Proceedings in magistrates courts are not recorded in any way, except as to outcomes. Transcripts of Crown Court proceedings are not routinely produced and are very expensive.

8. Also, because the burden of proof under clauses 14 and 15 clearly rests on the local authority it may be possible for the rogue landlord simply to sit back and do nothing, requiring the local authority to prove its case and present all the relevant facts to the Tribunal. Victims and witnesses from the criminal proceedings may have to give their evidence all over again. The Tribunal Procedure Rules might mitigate this effect but realistically, at least at first, local authorities will have to be prepared for all contingencies. The cost and delay may be considerable, and a deterrent to taking action.

9. Changes to the clauses could substantially reduce these risks and disadvantages. First, the criminal courts could be given the power to make a banning order as part of the sentencing process. It is the obvious forum in which to make the decision about banning. That court has heard the evidence and the landlord’s case. Convicted landlords would have the right to make representations, just like any defendant has the right to make representations about sentence, so it is fair to them. The local authority and the First-tier Tribunal would be spared the need to have what will in effect be overlapping proceedings.

10. I do not propose that the criminal courts have the sole power to impose a banning order. There may be all kinds of good reasons why the criminal court does not impose a ban. If generic offences are included as banning order offences the criminal court may not even know that the defendant is a landlord. So there should be a way of obtaining a banning order where a banning order offence is committed but no ban is imposed by the criminal court. In those circumstances, however, the power to impose a ban should in my view rest with the local authority, with a right of appeal to the First-tier Tribunal, rather than the local authority having to apply to the Tribunal.

11. This approach has two substantial advantages for local authorities and tenants, without in any way reducing landlords’ rights to a fair hearing. The first is that some landlords will not object to the banning order and so will not exercise their right to appeal. Many will be advised by their lawyers that an appeal would be a waste of time and money. Experience in every other tribunal jurisdiction is that only a proportion – usually only a small proportion - of potential appellants ever exercise their right to appeal. But under the clauses as drafted every case has to go to the Tribunal.

12. The second advantage is that on an appeal the burden of proof is on the appellant – the rogue landlord in this case - not the local authority. The Tribunal only needs material before it from the local authority which relates to the grounds of appeal put forward by the appellant. Furthermore, the Bill could define the possible grounds of appeal so as to prevent any tribunal proceedings being a re-run of the criminal proceedings. I suggest the only possible grounds should be that one or both of the conditions in clause 15(1) have not been met (ie the banned person was not in fact convicted of a banning offence and/or they were not residential landlords or letting agents at the time), and that the ban is disproportionate to the offence.

Bans pending proceedings

13. One effect of the Bill as drafted is that no ban will come into effect until at least the First-tier Tribunal has made its decision. It is not clear whether the ban takes effect if the landlord seeks to appeal to the Upper Tribunal. Even if further appeals are not included it could well be a long time before a ban takes effect.

14. Under Schedule 3 of the Bill when premises become subject to a banning order the interim management order regime comes into effect. If the procedures for obtaining a banning order are changed in the ways I have suggested that regime ought in my view to come into effect as soon as the criminal court or the local authority makes the order, but with a right for the landlord to apply to whichever tribunal or court is dealing with the matter (bearing in mind that an appeal which starts in the First-tier Tribunal can in theory, though rarely in practice, go to the Upper Tribunal, the Court of Appeal and the Supreme Court) to make orders controlling the operation of the management order.

15. This should provide tenants with protection as early as possible, while providing a mechanism to protect the landlords’ position should they be successful on appeal.

Database entries

16. Clause 26 provides for a right of appeal to the First-tier Tribunal against a landlord’s conviction of a banning order offence being entered on a database. This seems generous to rogue landlords. The conviction is a matter of public record: what objection can there be to its being entered on a database available to local housing authorities? But under clause 25(5) the local authority cannot enter the conviction on the database until the appeal process is over. Bearing in mind that, as mentioned above, the appeal process can drag on, and if the effect of dragging the appeal out is to keep the conviction off the database, there is an incentive for rogue landlords to pursue spurious appeals which will deprive local housing authorities of what may be vital information. I suggest that the entry is made as soon as the local authority decides to make it, but with a note that appeal proceedings are under way.

Amended clauses

17. I do not claim any expertise in legislative drafting but the following suggested amendments might be enough to form the basis for discussion in committee.

Clause 13, page 8 line 29, after "made by the" insert: "the Crown Court, a magistrates court or"

Clause 13, page 9 line 8, insert at end "(g) the maximum sentence that might have been imposed."

Clauses 14, page 9 line 10, delete clauses 14 and 15 and insert:

"14 Imposition of banning orders

(1)A local housing authority in England may impose a banning order against a person 
who has been convicted of a banning order offence ("the convicted person").

(2)Before imposing for a banning order, the authority must give the convicted person a 
notice of intended proceedings-

(a)informing the person that the authority is proposing to impose a 
banning order and explaining why, and

(b)inviting the person 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)In deciding whether to make a banning order against a person, and in deciding 
what order to make, the local authority 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 
offence,

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

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

(5)The authority must wait until the notice period has ended before imposing 
a banning order, unless the convicted person agrees otherwise.

(6)A notice of intended proceedings 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 
offence to which the notice relates.

(7) The local housing authority must inform a person upon whom a banning order is imposed of their right of appeal under section 15.

15 Appeals

(1)A person upon whom a banning order is imposed under section 14 may appeal to the First-tier Tribunal but only on one or more of the grounds in sub-section (2).

(2) The grounds of appeal are:

(a)the person has not been convicted of a banning order offence,

(b)the person was not a residential landlord or a letting agent at the time the offence was 
committed,

(c)the imposition of a banning order, or its length, would be disproportionate.

(3) In making a decision under sub-section (2)(c) the Tribunal must, where appropriate, take into account the matters to be considered by the local authority under section 14(4).

(4) Tribunal Procedure Rules must specify the period within which an appeal is to be brought and whether an appeal may be made out of time."

Clause 20, page 11 line 5, at end insert "but any tribunal or court dealing with an appeal under section 15 may on application by the person affected vary or amend any local authority decision under these powers."

Clause 25, page 12 line 38, delete "may not enter the person in the database" and insert "must include in the database information to the effect that an appeal is pending"

November 2015

Prepared 10th November 2015