Housing and Planning Bill

Written evidence submitted by David Cox, Managing Director, Association of Residential Letting Agents (ARLA) (HPB 72)

Client Money Protection Amendment

Housing and Planning Bill 2015

Context:

The purpose of this amendment is to require letting agents to have a protection system in place for monies received by them in the course of their business from tenants, prospective tenants or any other person who is renting accommodation or seeking accommodation to rent.

It is estimated that letting agents currently hold approximately £2.7 billion in client funds [1] and yet, if a letting agent is not covered by client money protection, both the landlord and tenant could stand to lose their money. This amendment is designed to protect both parties in the unlikely event that an agent goes into administration or misappropriates their client’s funds as any losses incurred through the actions of the letting agent can be covered.

This amendment provides for a similar type of consumer protection in the property sector as the Financial Services Compensation Scheme (FSCS) provides in the financial services industry. However, the consumer protection offered by this amendment would be financed by the industry itself and would not need the financial backing that the Government currently provides to the FSCS.

Further, we see this amendment as complimenting the provisions contained within sections 83 – 88 of the Enterprise and Regulatory Reform Act 2013 which require all letting and managing agents to be members of a redress scheme (these provisions came into force on 1 October 2014). If a landlord or tenant suffers financial loss through fraud or misappropriation by an agent that would not be covered under any award made by one of the redress schemes. However with agents covered under a Client Money Protection Scheme that would offer consumers vital financial protection.

Draft Amendment:

The amendment is based on the similar provision for client money protection in section 16 of the Estate Agents Act 1979, which applies to money received by estate agents in the course of sale and purchase transactions.

Client money protection in this context covers sums of money paid by persons who are not ‘clients’ of the agency (since the landlord is the client or principal), but who are required to pay money to the agency in the course of renting a property or seeking accommodation to rent.

The meaning of "lettings agency work" in this amendment is the same as in section 83 of the Enterprise and Regulatory Reform Act 2013 (redress schemes: lettings agency work). It is defined in that section as:

"things done by any person in the course of a business in a response to instructions received from-

(a) a person seeking to find another person wishing to rent a dwelling-house in England under a domestic tenancy and, having found such a person, to grant such a tenancy ("a prospective landlord");

(b) a person seeking to find a dwelling-house in England to rent under a domestic tenancy and, having found such a dwelling house, to obtain such a tenancy of it ("a prospective tenant")."

New clause 90: To require lettings agents to have Client Money Protection to cover all money received in the course of business

Following clause 88, page 29, following line 30, insert the following new clause:

"Client Money protection for Letting Agents

89 Cover for money received or held by lettings agents in the course of business

(1) Subject to the provisions of this section, a person may not accept money from another person ("T") in the course of lettings agency work unless there are in force authorised arrangements under which, in the event of his failing to account for such money to the person entitled to it, his liability will be made good by another.

(2) In this section ‘T’ is any person who seeks residential accommodation which is to let or who has a tenancy of, or other right or permission to occupy, residential premises; and a "relevant payment" means any sum of money which is received from T in the circumstances described in subsection (1).

(3) In this section "lettings agency work" has the same meaning as in section 83 of the Enterprise and Regulatory Reform Act 2013 and a "lettings agent" is a person who engages in lettings agency work.

(4) The Secretary of State may by regulations made by statutory instrument, which shall be subject to annulment in pursuance of a resolution of either House of Parliament –

(a) specify any persons or classes of persons to whom subsection (1) above does not apply;

(b) specify arrangements which are authorised for the purposes of this section including arrangements to which a enforcement authority nominated for the purpose by the Secretary of State or any other person so nominated is a party;

(c) specify the terms and conditions upon which any payment is to be made under such arrangements and any circumstances in which the right to any such payment may be excluded or modified;

(d) provide that any limit on the amount of any such payment is to be not less than a specified amount; and

(e) require a person providing authorised arrangements covering any person carrying on lettings agency work to issue a certificate in a form specified in the regulations certifying that arrangements complying with the regulations have been made with respect to that person

(5) Every guarantee entered into by a person who provides authorised arrangements covering a lettings agent shall tenure for the benefit of every person from whom the lettings agent has received a relevant payment as if the guarantee were contained in a contract made by the insurer with every such person."

Support from stakeholders involved in the private rented sector:

All involved in the industry are supportive of this amendment and below are supporting statements from a broad coalition of organisations involved in the private rented sector, including:

· Single office, small, medium, large and corporate letting agencies;

· Professional and self-regulatory bodies for the property industry;

· Landlord bodies;

· Consumer and tenant organisations;

· Government-authorised tenancy deposit protection and redress schemes;

· Prominent landlord and tenant solicitors firms.

Kate Boyes, Managing Director, Alexandra Boyes

Alexandre Boyes is a family run business which prides itself on maintaining standards of client care above all else and as a regulated member of RICS and ARLA Licensed Firm, Alexandre Boyes already operates within the Client Money Protection scheme, (CMP) which provides peace of mind for both landlords and tenants alike. 


The mandatory inclusion of the CMP within the regulatory framework which is to be self-funded by the agents will bring both regulated and unregulated businesses onto a level playing field for the first time providing reassurance to clients that their money will be protected. Alexandre Boyes sees this as a positive step towards enhancing the professional reputation of letting agents across the board.  Financial security is not something tenants and landlords should assume, it is something they should be guaranteed and we hope the mandatory inclusion of CMP will achieve this.

David Smith, Operations Partner, Anthony Gold Solicitors

There are already a great many professional agents operating high quality businesses. Their efforts and the reputation of the sector are undermined by the small minority of bad agents who steal from their clients and from tenants. Client Money Protection is a badge of professionalism and provides much needed security for all parties that their money is not going to be misused to fund an agent’s business or personal affairs. Regulating agent's by requiring consumer redress schemes without regulating this most crucial, and most easily abused, part of their work is meaningless. 

Jan Hÿtch, Residential and Lettings Partner, Arnolds Keys LLP, Past President of NAEA

The Client Money Protection (CMP) Scheme offers vital protection for landlords, tenants and others, in the event that an agent misappropriates rent payments, deposit monies or other client funds. It is widely – and wrongly - assumed by the consumer that such protection already exists across the industry by default – indeed that it is a prerequisite to have CMP to operate as a letting agent, in a similar was ABTA is to the holiday industry.

From 1 October 2014 letting agents had to be members of one of the three Redress Schemes, however this still does not require them to be a member of a CMP Scheme. When tenants and landlords find out – usually the hard way – that this most basic of consumer expectations is not met by robust consumer protection legislation, it comes as a shock and an unpleasant surprise. For some it can damage their personal credit record and for others it is literally life changing, to lose such a large amount of capital.

As members of RICS, ARLA and NAEA, Arnolds Keys LLP is both regulated and independently audited, and all our landlord and tenant monies are protected under CMP. This is because we feel it is right to do so, and reasonable for the consumer to expect it of us. We want to see the consumer being able to approach and engage whole-of-market with an industry where each and every firm offers the same level of protection and reassurance.

David Cox, Managing Director, Association of Residential Letting Agents (ARLA)

The Client Money Protection scheme is fundamental for tenants and landlords to ensure that they have peace of mind should an agent go bust or take off with their funds. Last year’s move for all letting agents and property management agents in England to be a member of an approved redress scheme is a welcome step but essentially is only a half measure without a Client Money Protection scheme in place to ensure that, if necessary, we can cover losses for both the landlord and tenants. To not include such an amendment during the process of reviewing and consolidating consumer rights would be a missed opportunity.

Ian Fletcher, Director of Policy (Real Estate), British Property Federation

The British Property Federation has long campaigned for the need to ensure that all landlords and tenants are covered by what is seen in the industry as a minimum standard of having client money protection (CMP). The amounts of cash that agents handle runs into £billions, and that held by unregulated agents will dwarf many regulated industries. In an ideal world landlords would select an agent on the basis they are offering CMP, but that just does not happen, and both they and their tenants, who have no say in choice of agent, can lose £thousands as a result. We therefore commend this amendment to the Housing and Planning Bill.

Maeve McGoldrick, Head of Policy and Campaigns, Crisis

We know that for people on low incomes, including homeless people, getting the money together to pay a rent deposit or letting fees is a huge challenge. For them to lose that money because an agent has shut down or misappropriated their funds can be disastrous. Requiring all agents to belong to a Client Money Protection scheme is a sensible step to stop this happening and to protect some of the most vulnerable renters.

Robert Bolwell , Partner and Head of Landlord and Tenant, Dutton Gregory Solicitors

A recurring problem which our landlord and tenant team has come across since the advent of the Housing Act 1988 is the inability of consumers both landlords and tenants to appreciate that monies paid to a letting agent are not always held in a secure or nominated client account. Sadly, this has led in recent times to consumers suffering significant losses in the event of a letting agent going out of business.

It is not appreciated by the majority of landlord and tenants that deposit registration is not a panacea in such circumstances and can often give rise to a false sense of security. These issues would be more than adequately addressed by the introduction of a compulsory client money protection scheme such as the schemes which are mandated for many other professionals including solicitors and accountants.

Betsy Dilner, Director, Generation Rent

Generation Rent is keen to see a professional and high quality lettings industry and this common-sense amendment is certainly a step in that direction. Whichever agent a private renter goes through when choosing a home, they should feel confident that the money they have paid for charges or rent will be protected if something goes wrong with the company. This is both a clear consumer rights issue that should be recognised in the bill and a vital part of ensuring that the private rented sector becomes a fair and sustainable tenure for tenants, agents and landlords.

Eddie Hooker, CEO of Hamilton Fraser Insurance, Scheme Administrator for my|deposits and CM Protect

my|deposits recommends the purchase of Client Money Protection insurance (CMPI) as it promotes best practice and professionalism within the lettings industry and ultimately provides another layer of consumer protection alongside tenancy deposit protection. My|deposits rewards agents that hold CMP with lower protection fees as we are more confident that the agent has robust financial controls due to the audit requirements that the CMP providers impose on their members. However, we would want to see a ‘minimum requirement for policy coverage’ for CMP imposed by the authorised Redress Schemes, to ensure a level playing field throughout the industry as well as promoting a simplified and consistent message to the consumer.

Patrick Connolly, Senior Lettings Manager, James Anderson Estate Agents

James Anderson support the Client Money Protection Scheme (CMP) and encourage the Government to ensure that all agents are part of the scheme. Protecting Tenants and Landlords from agents going into administration and unethical agents is essential in today’s climate as the vast majority of decent agents want to create more faith in the public perception of letting agents and increase confidence. The growing number of on line agents and high street agents entering the market who are unregulated could well see more instances of misappropriated funds and unacceptable behaviour from a minority, only fuelling uncertainty for Landlords and Tenants.

James Anderson are proud to be regulated and already have client monies protected, are members of a redress scheme (as per Enterprise and Regulatory Reform Act 2013) and are long standing ARLA members. A mandatory CMP Scheme alongside the compulsory Redress Scheme will bring more confidence to the consumer and should make unethical agents think twice before causing upset to clients and tarnishing the reputation of professional agents in our industry.

Ross Jezzard, Director, Jezzards

At Jezzards, we would like to urge the government to change its stance regarding compulsory client money protection for letting agents. Every year, we hear of more and more agents misappropriating client funds and costing the public thousands of pounds because they don’t have protective measures in place to guarantee their money. This in turn brings a distrust between the consumer and reputable letting agents.

Since Jezzards first opened in January 2014, we have held client money protection in place for our clients. As a new business we found the cost to be insignificant to us compared to the income from business we have been able to gain by educating our clients of the need of client money protection. We are now appealing to the government to step in and help agents with only the best intentions of protecting the consumer. The current lack of requirement for mandatory client money protection appears to only be benefiting the "rogue" letting agents with malicious intent, whilst most honest, reputable letting agents are already members of client money protection schemes through membership of ARLA or other similar organisations. We now feel it is time for the government to step in and take control of the situation.

Unlike the financial service industry, where there is a requirement to be a member of the FCA, no such rules are in place for the lettings industry, although, we handle billions of pounds worth of client monies every year. As Jezzards are licensed members of ARLA (Association of Residential Letting Agents), we are required to maintain a specially designated bank account to receive and hold client money separate from our business or office accounts and to be a member of an appropriate client money protection scheme. Our client money protection scheme automatically covers any relevant money held in our designated client account from misappropriation. It is vital for us that our clients know they are placing their trust in a professional, honest, qualified letting agent and that their money is safe; that it will be handled honestly and apportioned properly. As part of our client money protection scheme, we are required to have our client account independently audited annually.

Carol Pawsey, Group Lettings Director, Kinleigh Folkard & Hayward

The Client Money Protection (CMP) Scheme provides compensation to landlords, tenants and other clients should an agent misappropriate their rent deposit or other client funds.

As a member of the National Federation of Property Professionals (NFoPP), Kinleigh Folkard & Hayward (KFH) are both regulated under a code of practice, independently audited, and all our landlord and tenant monies are protected under the CMP compensation scheme.

However it is not a level playing field, and all too often rogue agents who do not subscribe to a CMP Scheme misappropriate landlord and tenant funds resulting in much misery and headline grabbing bad news stories which gives the vast majority of professional agents a bad name.

It should be compulsory that all agents subscribe to a CMP Scheme to protect consumers. Whilst all agents from 1 October 2014 have had to be members of one of the three Redress Schemes this still does not require them to be a member of a CMP Scheme, and thus may give a false sense of security to consumers.

It is time to act, millions of pounds are transacted in rent collection and deposit transactions via letting agents and it is long overdue that this money should be protected by all agents who wish to operate in this arena.

Isobel Thomson, Chief Executive Officer, NALS

NALS fully supports this important amendment. When using a lettings and management agent consumers must have the necessary financial protection that is afforded in other business areas of their lives.

Requiring lettings and management agents to be part of a Client Money Protection Scheme is long overdue and we hope that this common sense measure will be supported widely and ultimately introduced.

Mark Hayward, Managing Director, National Association of Estate Agents (NAEA)

The National Association of Estate Agents (NAEA) is keen to ensure that consumers are protected across all aspects of the housing market, and is therefore delighted to support this amendment. The introduction of a protection system for tenants monies would ensure that a small, but potentially devastating, loophole in the protection of the consumer is eradicated.

Richard Lambert, Chief Executive Officer, National Landlords Association

A good letting agent can transform a landlords’ letting business, but equally agent failure or criminality can destroy years of hard work and investment. As their primary clients, landlords place a great deal of trust in their letting agents. In most instances the property entrusted to their care and management is the largest single investment a landlord has, or will ever make. It is frequently the asset upon which their future retirement is based and from which much of their income is derived. It is criminal therefore that so many letting agents who purport to be professional fail to insure against the loss of their clients’ money.

A letting agent managing a typical NLA member’s portfolio will collect in excess £72,000 per year in rent, be responsible for multiple thousands of pounds worth of repairs and maintenance and often hold millions of pounds in tenants’ deposits at any one time. Landlords and tenants should be able to feel assured that their money is safe should the worst happen and their money disappears. This amendment is an opportunity to provide that re-assurance and instil some genuine professional standards into the letting agent community while protecting the investments and homes of more than 10 million hardworking households.

Lewis Shand Smith, Chair, Ombudsman Services - Property

We support the proposed amendment announced. As the demand for private rental accommodation continues to grow, it is important that both tenants and landlords have the financial protection they need when using a lettings and management agent.

All letting agents are required to belong to an approved dispute resolution scheme, such as Ombudsman Services: Property, however it is possible for someone to open up a letting agency and receive thousands of pounds in clients’ money and there would be no means of protection if the money was misappropriated. This amendment will go far in protecting the consumer.

Sean Hooker, Head of Redress, The Property Redress Scheme

Now that redress has become a mandatory requirement, the next logical step is to protect the financial interest of the consumer. Client Money Protection will ensure that the lettings industry is a safer environment for its customers. By adding CMP to the toolkit, the industry will have a robust legal framework by which it can be accountable, improve standards and show its commitment to professional service.

Alan Ward, Chair, Residential Landlords Association

Client money makes sense for landlords too. It is inconceivable that letting agents, who handle millions of pounds in rents and deposits are not regulated, but estate agents are registered although they handle no client cash.

Jeremy Blackburn, Head of Policy and Parliamentary affairs, RICS

The Royal Institution of Chartered Surveyors manages a consumer money protection scheme alongside other industry bodies and provides best practice guidance on what robust controls and systems look like, and inspects our member firms to ensure that they are protecting the security of clients’ money on their behalf.

Self-regulation delivered by us and other industry partners is however not picking up those who would not choose self-regulation and do not act responsibly. In such circumstances we need the regulatory minimum conditions to be raised and for government to encompass all letting agents in the Housing and Planning Bill, via this amendment.

This helps the RICS long term view of bringing parity between the regulation of sales agents and letting agents. There is still a long way to go. However, the government view that these measures for the letting sector are burdensome red tape on business, now needs to give way to closing the loop on those who would avoid all voluntary and responsible measures, causing misery to so many.

John Midgley, Chair, SAFEagent

We support this amendment and it is excellent to see so many other organisations now supporting what SAFEagent has been campaigning for over several years - protection of the consumer through a requirement for all letting agents to be part of a Client Money Protection Scheme.

Jane Cronwright-Brown, Director and Head of Residential Lettings, Savills

Savills (UK) Ltd urge the Government to make it compulsory for all letting agents to have Client Money Protection. Billions of pounds of consumers’ money, (rents and deposits) are paid to letting agents and there are a significant number who do not belong to a professional body. Most consumers assume that all letting agents are regulated which can lead to many with no recourse when things go wrong.

Whilst the majority of letting agents are honest and many do belong to professional bodies, anyone can open up a letting agency, receive thousands of pounds in rent and deposits and there is nobody regulating them. Ensuring every agent has CMP is a step in the right direction, however the industry needs to be regulated as it is the only way to eradicate the rogue agents and to protect consumers properly.

Campbell Robb, Chief Executive, Shelter

Introducing Client Money Protection to the lettings industry has extremely broad support. We know that six in ten renters (61%) want greater regulation of letting agencies, with just two per cent opposing.

Letting agents are increasingly important. Eleven million people now rent their home privately, with around half of all rentals arranged or managed by an agent.

Unlike estate agents, letting agents are not required to provide Client Money Protection. This makes no sense. Letting agents handle far more money than estate agents – and they are much more likely to be involved with vulnerable households.

A consequence of this is that landlords and tenants have faced agencies failing to pass on or return money – or disappearing with their money all together.

All letting agents are now required to be a member of a statutory redress scheme. This is welcome, but it does not fully resolve the problem. Redress allows for complaints when something goes wrong, it does not prevent it from happening in the first place.

The sector is crying out for proper regulation. Mandatory Client Money Protection will protect landlords and tenants from unscrupulous agents and drive up standards across the board."

Christopher J Hamer, the Property Ombudsman

Whilst a comprehensive regulatory regime for the lettings sector has yet to be established, there has been an increased emphasis on protecting those consumers who are transacting business in that sector. Primarily this emphasis has come from the obligations placed on letting agents in England to register with a government approved redress scheme offering a facility for the resolution of any dispute that the parties themselves cannot settle. That means a consumer can gain redress for events that have taken place but has in the meantime suffered the aggravation, distress and inconvenience in having the matter cleared up. Some of that aggravation and distress can result from being financially disadvantaged through agents failing or misappropriating funds and this has to be a real concern. Reducing the risk of this happening in the first place, whether the consumer is a landlord or a tenant, can be achieved by making it compulsory for all agents to hold client money protection cover. This amendment would therefore have significant impact.

Steve Harriott, Chief Executive, the Tenancy Deposit Scheme

The Dispute Service operates the Tenancy Deposit Scheme in England and Wales and we would support the proposed requirement for all lettings agents on England to have client money protection insurance in place. This is essential to ensure that monies paid in good faith by tenants to lettings agents are properly protected in the event of misappropriation or insolvency. When such events occur client money protection insurance provides security for tenants’ monies and the failure to require that such cover is in place for all agents is a major weakness in the private rented sector.

Valerie Bannister, Head of Lettings, Your Move and Past President of ARLA

Your Move welcomed the mandatory requirement for all letting agents to join one of the three approved Redress Scheme in October last year. We believed this step change did not go far enough in fully protecting landlords and tenants.

We are in support of further regulation to include that all letting agents must have Client Money Protection Insurance. Letting Agents handle millions of pounds in rent and security deposits – landlords and tenants deserve assurance their money is protected. Your Move urge the Government to help us stamp out rogue agents  from our private rented sector – and support this long overdue amendment which will protect millions of tenants and landlords.

November 2015


[1] This figure is derived from the assumption that letting agents will potentially have their tenant’s deposits and one month’s rent in their client account at any given time.

Prepared 24th November 2015