Housing and Planning Bill

Written evidence submitted by the Housing Law Practitioners Association (HLPA) (HPB 13)

Housing and Planning Bill

About HLPA

1. The Housing Law Practitioners Association (HLPA) is an organisation of solicitors, barristers, advice workers, environmental health officers, academics and others who work in the field of housing law. Membership is open to all those who use housing law for the benefit of the homeless, tenants and other occupiers of housing. It has members throughout England and Wales.

2. HLPA has existed for over 25 years. Its main function is the holding of regular meetings for members on topics suggested by the membership and led by practitioners particularly experienced in that area, almost invariably members themselves. Presently, meetings the take place every two months and are regularly attended by c.100 practitioners.

3. The Association is regularly consulted on proposed changes in housing law (whether by primary or subordinate legislation or statutory guidance). During 2015 it has given oral evidence to committees of both the Welsh Assembly (on the Renting Homes (Wales) Bill) and the House of Commons (on legal aid reforms) and has given written evidence in response many other consultations. HLPA’s responses are available at www.hlpa.org.uk.

4. Membership of HLPA is on the basis of a commitment to HLPA’s objectives. These objectives are:

· To promote, foster and develop equal access to the legal system.

· To promote, foster and develop the rights of homeless persons, tenants and others who receive housing services or are disadvantaged in the provision of housing.

· To foster the role of the legal process in the protection of tenants and other residential occupiers.

· To foster the role of the legal process in the promotion of higher standards of housing construction, improvement and repair, landlord services to tenants and local authority services to public and private sector tenants, homeless persons and others in need of advice and assistance in housing provision.

· To promote and develop expertise in the practice of housing law by education and the exchange of information and knowledge.

About the author

5. Justin Bates is a barrister at Arden Chambers (London & Birmingham) and the vice-chair of the HLPA. He is the Deputy General Editor of the Encyclopedia of Housing Law and the author or co-author of various other books on housing law and local government law


6. We are concerned by the lack of detail in much of the Bill and by the amount that will be left to secondary legislation

7. We strongly support the "rogue landlord" provisions and have suggestions for how to strengthen the "banning order" regime and the rent repayment proposals.

8. We disagree with the proposals on "abandoned" properties and do not understand what is thought to be defective with the existing law.

9. We are concerned about the long-term implications of the new duty on local housing authorities to consider selling their housing stock and fear that, in reality, this marks the end of local authorities as landlords.

10. We are surprised that the experience of differential rents in Ireland has not been examined when developing the "pay to stay" policy and suggest that research into the Irish position should be commissioned. We have concerns on the mechanism for calculating the rent by reference only to the income in the previous tax year.

11. We welcome the power for local authorities to impose financial penalties for violations of the Housing Act 2004 as an alternative to prosecution and would wish to see this power extended to other housing statutes.

Initial observations

12. HLPA limits itself to issues of housing law, rather than housing supply and will not comment on the planning law elements of the Bill.

13. As a general and overarching theme however, HLPA is very concerned that much of the Bill consists of statements of general principle and vague statements, with the details to be supplied by statutory instrument. Not only does this limit the opportunity for democratic oversight, but it has two unwanted and unwelcome consequences.

14. First, it makes the law less accessible to the general public since it requires them not only to know that subordinate legislation has been made, but also to know which form (or version) of the relevant regulations to read.

15. Secondly, it leaves the legislation open to greater challenge in the courts, given the much broader powers of the High Court in relation to secondary legislation (by contrast with the relatively limited powers in relation to primary legislation).

Parts 2 and 3: Rogue Landlords

16. We are broadly supportive of these proposals and make the following suggestions.

What is a banning order offence?

17. The definition of "banning order offence" will be left to subordinate legislation (cl.13(2)). We would suggest that there should be certain matters which should always be regarded as banning order matters, e.g. offences under the Accommodation Agencies Act 1953; Protection from Eviction Act 1977; offences under the Protection from Harassment Act 1997; and, offences under the Housing Act 2004. The technical discussion paper which proceeded the Bill [1] was very general and unspecific about the relevant offences which would be likely to be specified.

18. If a landlord (or agent) has been convicted of any offence under the Protection from Eviction Act 1977 (for example), we cannot see any reason why the landlord or agent should not expect to receive a banning order.

19. Accordingly, we suggest that cl.13 be amended so that, when the Secretary of State produces subordinate legislation, it must include offences under the Acts identified above.

Who may make a banning order?

20. We would also suggest that – in addition to the current proposals – the Magistrates’ Court and Crown Court should be given power to make a "banning order on conviction". Civil restrictions flowing from criminal convictions are now a very common aspect of our law (see, e.g. Criminal Behaviour Orders, Pt.2, Anti-social Behaviour, Crime and Policing Act 2014).

21. It would provide a quick and simple route for those "clear" cases where it is obvious that the landlord/agent should be banned, e.g. a conviction for unlawful eviction, violence against a tenant, fraud against the housing benefit authorities, etc.

22. It will also help to ensure that the residents of any local authority which is reluctant to exercise the new powers (perhaps because of budgetary constraints) receive some protection against rogue landlords.

23. This would require consequential amendments to Pt.2, Ch.3, providing for the courts to notify someone (whether the local authority or the Secretary of State as registrar of banned landlords) of the order, but that is a relatively simple amendment to produce.

Access to the register

24. We also think that the register of banned landlords/agents should be available to the public and not only to local authorities. The banning scheme is plainly aimed at protecting tenants (and potential tenants), yet they are unable to conduct any "due diligence" on the landlord/agent if they cannot see the register.

Rent repayment orders

25. The list of offences which can trigger a rent-repayment order (cl.32) is too limited. It does not deal with offences under, e.g. Protection from Harassment Act 1997. It should at least be amended to give the Secretary of State power to add further offences by subordinate legislation.

26. We also suggest that the rent repayment order provisions need amending to make clear that, when assessing the amount to be re-paid, the FTT should disregard any damages awarded in civil proceedings or fines imposed by the criminal court. Otherwise, landlord will argue that no rent repayment order should be made because (it will be said) this would amount to double-recovery. Of course, it is not double recovery – civil damages are designed to cover the harm caused by the wrong committed and criminal penalties are to mark societal disapproval of the behaviour – but, as cl.36 stands (especially cl.36(4), this argument seems to be open to landlords. The Bill should be amended to ensure this argument cannot be raised.

27. We would also suggest that the criminal courts should be given power to make rent repayment orders, following conviction, in the same manner as discussed above.

Abandoned property

28. We are very concerned about this part of the Bill.

29. First, we are unaware of any evidential basis that suggests a need for such a power.

30. Secondly, the "trigger" rent arrears (cl.50) are plainly modelled on those in Ground 8, Sch.2, Housing Act 1988. If those rent arrears are made out then the landlord is already entitled to a mandatory possession order under Ground 8. If a landlord has a mandatory right to possession already, why does he also need a right to bypass the court?

31. Thirdly, the provisions for service of the warning notice (cl.53) appear to provide for service of the notice on the tenant. But this is about abandoned property! If the tenant can be found, then why is the property thought to be abandoned? And, if he can be found, then possession could be recovered under Ground 8. [2]

32. Fourthly, the re-instatement provisions will not work in practice. If the landlord re-lets the property after recovering possession using the abandoned property route and then the original tenant seeks re-instatement, the court is very likely to refuse to do so, given that the reinstatement would take effect as a concurrent tenancy and would not actually entitle the original tenant to resume occupation. [3]

33. Finally, if the landlord really cannot find the tenant and suspects the property has been abandoned, there is already a method for recovering possession, see s.54, Landlord and Tenant Act 1954. None of the material produced by the government explains why s.54 is ineffective. [4]

Part 4: RTB and housing associations

34. We have very real concerns about this part of the Bill, but anticipate that housing associations and local authorities will have more to say than us. We content ourselves with the following observations.

35. We think it inevitable that the duty on local authorities to consider selling their "high value" homes (and giving the proceeds to the government) will mean that the days of local housing authorities building new council homes will be over. No sane authority will choose to build homes, at its own expense, when they can be sold effectively for nothing.

36. Likewise, local housing authorities who inherited a debt when the subsidy for the housing revenue account was abolished will also be concerned about how they will be able to finance that debt in the absence of capital receipts from sale of their own stock.

37. In the longer term, local housing authorities will cease to own any, or a very small proportion, of their own stock. While the current proposal is only for the sale of an authority’s most valuable homes, once those are sold those that remain will also need to be sold to fund the discounts available to future association tenants. The reality is that this is the end of local authorities as residential landlords.

Part 4: Pay to Stay

38. The move to differential rents is a significant change in social housing and HLPA is very concerned at the lack of any research or analysis as to the likely implications. This is particularly surprising given that Ireland has had a system of differential rents for local authority properties since the 1930s. [5] HLPA would suggest that the government should commission a report into how differential rents work in Ireland. The Irish legal system is sufficiently similar to allow meaningful comparisons to be made.

39. We also have concerns about the suggestion that rents would be set with reference to all taxable income in the household. Pensions (both private and state) are prima facie taxable income. Certain welfare benefits are also taxable (e.g. carer’s allowance, bereavement allowance, widowed parent’s allowance). We are also concerned that the rent is set by the previous year’s income, with no mechanism to consider current affordability. [6] One way to address this concern would be to introduce an appeal mechanism (see below).

40. Moreover, we are concerned to see that there is no reference to the 1% social housing rent reduction in the Welfare Reform and Work Bill. How this cut will affect the "pay to stay" policy?

41. We do not understand why housing associations get to keep the "extra" rent but local authorities are required to pay it to the Secretary of State. There is no explanation for this in the Bill nor in the previous consultation documents. It amounts – in effect – to an additional tax on local authority tenants.

42. Finally, there should be a right of appeal against the rent set by the authority in the event that a dispute arises as to the quantum of the household income. The suggestion in the present consultation paper is that the household income will be calculated by reference to the two highest incomes, but suppose that only one of those people is the tenant and therefore only that person is contractually liable to pay the rent?

Part 5: Other changes

43. We welcome cl.86 as recognition of the very limited number of criminal prosecutions brought by local authorities and as a way of enabling their enforcement schemes to become self-funding. We would like to see c.86 (and the associated Schedule) extended to the Protection from Eviction Act 1977.

November 2015

[1] Tackling Rogue Landlord and Improving the Private Rented Sector, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/450862/Discussion_paper_FINAL.pdf

[2] Or, actually, by service of a Notice to Quit and possession proceedings based on the absence of security – if the tenant is not occupying the property as his only or principal home then he will have no statutory security.

[3] As to the discretion not to allow re-instatement, see e.g. Southwark LBC v Sarfo (1999) 32 HLR 602 CA. As to the problems of concurrent tenancies in rental housing, see Sheffield CC v Wall [2010] EWCA Civ 922; [2010] HLR 47.

[4] Being charitable, it might be said that the time period in s.54 (6 months) is felt to be too long. But, if that is the view, then the appropriate response is to amend s.54 to reduce the period.

[5] See From Asset Based Welfare to Welfare Housing? The Changing Function of Social Housing in Ireland Dr Michelle Norris and others, University College Dublin.

[6] Plainly there needs to be some sort of safeguard – suppose the "high income" tenant died at the end of the tax year, so that the household income is now much lower. As the Bill stands, it seems to us that the household would have to pay the higher rent, even though the person who had the well-paid job is dead.

Prepared 10th November 2015