Pre-legislative scrutiny of the draft Tenant Fees Bill Contents



90.We were told by a range of stakeholders that effective enforcement will be key to the Bill’s success. The NHC identified it as “one of the most significant aspects of the Bill because without enforcement the provisions will be ineffectual”.145

Recovery of unlawful fees by tenant

91.Clause 11 of the draft Bill would permit tenants to recover prohibited payments by applying to the county court. Most witnesses who addressed the issue told us it was unrealistic for tenants to navigate the county court system to recover unlawfully paid fees from landlords and letting agents. The London Borough of Hackney described it as “unnecessarily costly and complicated”, and said it would “particularly disadvantage households with low incomes”.146 We were told tenants would not be entitled to legal aid, unless brought as a counterclaim in possession proceedings.147 Indeed, as Citizens Advice pointed out, the county court would have only a discretion to order repayment of prohibited fees;148 “the tenant would not necessarily be compensated”.149 Professor Ian Loveland thought that in practice, recovery in the county court was “likely to be a complete nonsense and will never happen”.150

92.In contrast, David Cox of ARLA, told us:

I … disagree with statements that have been made to this Committee that tenants do not go forward and take cases to court. We know that is simply not true by just looking at the tenancy deposit protection situation, 10 years after it came into force. There was a huge case, Superstrike v. Rodrigues, which involved a tenant taking a landlord to court, which went all the way to the Supreme Court … The argument that tenants do not take cases to court is simply not made out when Parliament has had to restate the law on something because of a tenant taking a landlord to court.151

But one case being taken to the Supreme Court on a question of principle does not seem to us evidence that tenants generally are happy to go to court.

93.Clause 12 would allow a local trading standards authority to help a tenant, for example by giving advice or conducting proceedings. And clause 8 allows a local trading standards authority to require a landlord or letting agent to repay a prohibited payment, but only when imposing a financial penalty. But these forms of assistance are both dependent on local authority means and willingness to assist.

94.We heard that it may be more appropriate to enable tenants to use the First-tier Tribunal (“FTT”), or to prevent landlords from gaining possession of their property until any unlawful fee has been paid. Professor Loveland wondered “why there is a division of jurisdiction between the First-tier Tribunal, to which a landlord or agent would appeal against a fine, and the recovery procedures being taken by a tenant”.152 Professor Loveland was not alone in suggesting it might be more beneficial to tenants to prevent landlords obtaining possession (by preventing them from serving a “section 21 notice”)153 while a prohibited payment remained outstanding (or, he suggested, for six months thereafter).154

95.The Minister explained they had considered using the FTT, but “tribunals are unable to enforce their decisions, which is why we go back to the county court level”.155 Becky Perks of MHCLG referred also to the time it could take to get a decision of the tribunal enforced as a judgment of the county court and said it was considered more “expedient” to go direct to the county court.156 She told us:

this is the same mechanism that we take with regard to the enforcement of the tenancy deposit legislation, so we are mirroring that to support tenants to understand what action they can take in instances where they are charged unfair fees …157

96.We are aware of examples of tribunal and even administrative decisions being enforceable in the county court. For example, awards of employment tribunals in England and Wales are, once registered, recoverable “as if … payable under an order of the county court”,158 while a penalty imposed by the Secretary of State on a landlord letting premises to a tenant disqualified by their immigration status is “recoverable as if it were payable under an order of the county court in England and Wales”.159

97.The tenancy deposit legislation160 which the Government is “mirroring” prevents a landlord from serving a section 21 notice while a deposit is unprotected (and not repaid).161 Ms Perks referred to preventing possession as “something that we use in other areas of private rented sector legislation, for example, around gas safety and so forth”.162

98.We recommend that the Bill prevent landlords from recovering possession until they have repaid any prohibited fees. In doing so it would more fully mirror the approach taken in tenancy deposit legislation and would in our view be more effective.

99.We see no reason why tenants should not be allowed to establish their entitlement in the less formal First-tier Tribunal. Enforcement against a recalcitrant landlord is likely to take time whatever the method, but we also think it likely that many landlords would pay once a tribunal had determined a tenant’s rights. We recommend the Government allows tenants to recover prohibited fees in the First-tier Tribunal, with a simple process of registration and enforcement as if payable under an order of the county court.

100.We also recommend the Government review whether to provide the First-tier Tribunal with enforcement powers. In the longer term, it should review the routes (e.g. housing court, housing ombudsman) by which tenants can seek redress, with a view to unifying the process across the private rented sector.

Recovery of prohibited loans

101.There is no express provision in the draft Bill to require a landlord or letting agent to repay a prohibited loan. Prohibited payments are recoverable on application to the county court under clause 11,163 but prohibited loans are not referred to.

102.The Government told us: “A loan is treated as any other kind of prohibited payment and the recovery mechanisms are the same”.164 But clauses 1 and 2 distinguish between the making of a prohibited payment and the granting of a prohibited loan. The Ministry might be seeking to differentiate between the making of a loan agreement and the subsequent payment of the loan pursuant to that agreement but if it is, the purpose of this subtle distinction is unclear and creates a risk that a loan advance would not be treated as a prohibited payment.

103.In Scotland, prohibited loans are expressly made repayable on demand.165 The law in Scotland is drafted differently; aside from loans it prohibits the payment of a premium, which might not include a loan advance. Nevertheless, the Scottish approach is clearer on this point.

104.We do not share the Government’s confidence in its interpretation of the draft Bill, as currently drafted, that prohibited loans are repayable on demand. The Government must clarify the drafting in this respect to remove any question of doubt.

Enforcement by local authorities (trading standards)

105.Clause 6 would place the primary duty to enforce the draft Bill on local weights and measures authorities.166 These are non-metropolitan county councils, metropolitan district councils and London borough councils.167 In practice, it is the trading standards departments of these authorities that enforce weights and measures legislation. For brevity, we refer to them simply as “local authorities”.

Local authority resources

106.Clause 7 of the draft Bill would give local authorities the power to enforce the provisions of the draft Bill168 by imposing a (civil) financial penalty in the case of breach. The penalty could be up to £5,000.169 If a breach were repeated within 5 years, the penalty could be up to £30,000;170 or the authority could choose to prosecute it as a criminal offence (punishable by an unlimited fine in a magistrates’ court).171 The draft Bill is designed to be “fiscally neutral” as Schedule 3, paragraph 10, makes provisions for local authorities to retain the proceeds of the financial penalties. The proceeds are hypothecated to enforcement action in relation to the private rented sector.

107.While there was broad support for the enforcement role of local authorities, many witnesses questioned the draft Bill’s approach to funding enforcement. The Government’s assessment of impact does state that:

The Government are planning to provide an additional £150k per annum to support enforcement of the ban… We anticipate that it will cost an additional £100k per annum to fund tribunals related to the enforcement of the ban. The enforcement costs are estimated to total no more than c.£700k per annum.172

However, it is unclear what this money is to be used for and how it could be accessed; the evidence we have received widely interprets that the provisions of the Bill, if enacted, would provide no additional funding.

108.The ability to retain money levied from the civil penalties was welcomed.173 However, as stated to us by Sir Robin Wales, Mayor of the London Borough of Newham, while it is welcome that any money raised through fines are hypothecated to further enforcement, “it should not, by definition, be a system entirely based on that”.174

109.We repeatedly heard concerns about the capacity of trading standards given that the draft Bill does not appear to provide any additional funding to local authorities at a time when it is widely considered that trading standards “have been under-resourced and over-stretched for some time”.175 The London Borough of Hackney stated that “the Bill fails to provide the additional funding to councils that is so essential for ensuring the ban is effectively enforced, instead placing further strain on already stretched Trading Standards service”.176 The Local Government Association (LGA) agreed, stating that “[the Government’s] proposed solution for funding this work through civil penalties will not sufficiently address the funding pressure”.177 This view was also supported by ARLA which contended that “unless specific funding is set aside for the sole purpose of enforcing these new laws, then we expect the same lack of effective enforcement on the ban on lettings fees as has been demonstrated on the transparency rules under the Consumer Rights Act 2015”.178

110.One of the reasons used to justify this stance was that money levied through fines would not cover the true costs of enforcement. Alison Farrar, representing CTSI told us that “enforcement levels come from a huge amount of prior work”.179 She clarified that “enforcement is not just about taking people to court, prosecuting them and keeping the money from the fines. It is about a huge amount of work before that to do with educating traders and tenants, and obviously creating business guidance and making sure that it is being adhered to”.180 When we asked whether the penalties in the draft Bill would be sufficient to cover the cost of resourcing of this additional work, Farrar answered “definitely not”.181 She went on to say that “when you issue a fine in court and you get the costs, you do not ever get the real costs of the investigation… therefore, obtaining and keeping the money from the fine does not really cover a proportion of the costs”.182

111.The LGA agreed that this approach to funding “would not fund any up-front or proactive work that does not lead to any civil penalties being issued”.183 The NHC also agreed, stating that “any payments received from penalty notices will be minimal”.184 Councillor Simon Blackburn, Leader of Blackpool Council, recommended that “the fees ought to represent a full cost recovery model, so whatever it costs local government to enforce and police those regulations ought to equal what we are able to charge”.185

112.Local authorities were also concerned that if the Bill is solely, or significantly, self-funded, the retention of fines acts as a disincentive to proactively engage with landlords and letting agents. The London Borough of Hackney stated:

Civil penalties, while they are a helpful and welcome deterrent, are a last resort. If trading standards’ enforcement activities are effective, civil penalties will rarely be charged. In Hackney Council’s experience of enforcing the letting agent redress scheme and requirements relating to the transparency of letting agent fees, most of council officers’ intensive activities relate to identifying and monitoring letting agents’ practices, and working closely with them to comply with the law. In our experience, an approach of working with letting agents to ensure their compliance is far more effective than an overly punitive approach.186

CTSI agreed that “using enforcement as an income stream creates negative incentives for services to work with legitimate landlords and agents to bring them into compliance via advice”187 Kate Webb from Shelter told us in our first evidence session that “this is a slightly curious situation” and called on the Government to reconsider whether there should be upfront funding for local authorities.188

113.Becky Perks of MHCLG told the Committee that “we have heard the points around proactive enforcement and it is something we will consider through the new burdens assessment”.189 The Minister reiterated that the Government are “open” to considering the new burdens assessment.190

114.We believe that funding enforcement of the Bill solely through the retention of any civil penalties is likely to be ineffective, exacerbate existing pressures and lead to further discontentment in the enforcement of legislation in the private rented sector. The funding model as it stands offers a perverse disincentive for local authorities to engage proactively and cooperatively with landlords and letting agents despite this approach being considered as more effective than a punitive system. If the funding arrangements go unchanged in the Bill, the Government will fail to achieve the aims of the legislation.

115.We strongly urge the Government to reconsider its intention for the legislation to be solely self-funded through the retention of civil penalties. The Government must provide sufficient additional funding directly to all local authorities to enforce the legislation if it wants the Bill to achieve the Government’s aims. Failing that, the Bill should increase the maximum amount of civil penalty.

116.Professor Loveland raised with us the question of whether, bearing in mind that local authorities can retain and apply the proceeds of fines:

It is to be acceptable for a council to take into account the cost of effective enforcement of the scheme in setting the level of the fine; i.e.—crudely put—“If we fine this landlord £5000 that will pay for thousands of leaflets publicising the scheme”. Is that intended to be a (in the administrative law sense) relevant consideration when a council sets the size of a fine.191

117.The Minister told us local authorities should not be allowed to take into account their funding needs but should be able to cover their costs: “This is not meant to be topping up the general support grant. This is covering their costs”.192 The draft Bill would allow proceeds of penalties to be applied to “costs and expenses (whether administrative or legal) incurred in, or associated with, carrying out any of its enforcement functions under this Act or otherwise in relation to the private rented sector”.193 Given this potentially wide application, and that the Government intends enforcement of the provisions to be “fiscally neutral”,194 we understand the Government’s intention to be that the general cost of enforcement of the Bill’s provisions should be considered when setting penalties.

118.Statute prescribes that the amount of a fine must reflect “the seriousness of the offence”.195 The Sentencing Guideline Council’s long-standing guideline on the principle of seriousness196 describes seriousness as “the key factor in deciding … the amount of any fine imposed. A court is required to pass a sentence that is commensurate with the seriousness of the offence”.197

119.In our parallel inquiry into the private rented sector, the LGA told us that powers were available to councils to allow them to recover some of their costs, but these were “rarely sufficient to meet the full cost” of enforcement activity.198 Courts, they told us, could award costs to councils, but only from the point that a decision was made to prosecute, and any preliminary investigation or time spent collecting evidence could not be included in the application for costs. Councillor Lawton’s evidence that spending £5,000 on a prosecution but receiving only “£100 back” suggested that an impediment to recovering full costs could discourage some authorities from prosecuting.199

120.A criminal court can order an offender to pay the prosecution’s costs.200 The court decides what amount is “just and reasonable”. This can include all of the prosecutor’s costs of investigating, before as well as after any decision to prosecute.201 Where those costs are disproportionate to the fine imposed, they are unlikely to be awarded in full, especially where the cost of investigating officers would have been incurred anyway because they are employed by the prosecuting authority and carrying out their normal duties.202

121.The Government has told us it intends that local authorities should take into account the need to cover their costs of their enforcement functions when setting the level of a financial penalty. This is a departure from the usual principle that penalties should principally relate to the gravity of the wrongdoing.

122.We recommend that the Bill provide that the only costs to be taken into account in fixing the level of a financial penalty are those costs directly associated with the breach for which the penalty is being imposed. Alternatively, the Government must explain in detail its reasons for departing from usual principle.

123.There is a conflict between local authorities’ experience of recovering the costs of their investigations in the court and our interpretation of the law. We recommend that the Government review whether the law about recovery of a prosecutor’s costs of investigation is sufficiently clear, adequately understood by local authorities, and comprehensive enough to ensure that there is no disincentive to authorities pursuing wrongdoing landlords and letting agents.

Local authority enforcement powers

124.Before imposing a financial penalty, the local authority would have to notify the alleged wrongdoer, who could then make representations before the authority made a final decision.203 There would be a right of appeal to the FTT, on various grounds.204 The penalty could be recovered in the county court.205 There would be similar powers for breach of banning order offences206 and certain offences under the Housing Act 2004.207 In relation to the former, the House of Lords’ Delegate Powers and Regulatory Reform Committee (DPRRC) reported in 2016 that:

It might be considered that this clause empowers an authority to act as if it were prosecutor, judge, jury and executioner!208

125.The local authority would be able to use the proceeds of financial penalties to fund the cost and expense of (or associated with) carrying out its enforcement functions under the proposed legislation or otherwise in relation to the private rented sector.209 Councillor Lawton hinted that there may be occasions when the level of likely fine, when compared to the cost of prosecution, leads to a calculation not to prosecute,210 though Councillor Salier, Cabinet Member for Housing at Wandsworth Council, emphasised that she “would not want to say that finance was at the bottom of [their] decision on whether to prosecute a rogue landlord”, and did not think it should be. If the possibility of profit (even just for the purpose of private rented sector enforcement functions) were to drive enforcement, that would be unfortunate. But in any event, the DPRRC’s criticism might be thought even stronger here, where the authority is the beneficiary of proceeds, albeit for defined purposes.

126.The imposition of a financial penalty would not itself equate to a criminal conviction, but would probably be seen as akin to it for the purposes of human rights law, as Professor Loveland pointed out.211 The procedural protection of an independent decision-maker is, as he put it, “clearly lacking if the council decides if an offence has been committed and then levies a fine which is payable to the council itself”.212 This could be remedied, he thought, if the FTT had “a very expansive jurisdiction over the fines levied”; however, as currently worded, he felt the draft Bill was unclear.213

We queried human rights compliance with the Ministry, who responded:

We are grateful to the Committee for raising this point and we will ensure that the Bill is fully compliant with the European Convention of Human Rights. In particular we intend to provide for a broader right of appeal, modelled on that in the Housing and Planning Act.

127.Under the Housing and Planning Act 2014, appeals to the FTT against financial penalties are dealt with as a complete re-hearing of the local housing authority’s decision, and can take into account matters of which the authority was unaware.214 This allows the FTT to consider the matter afresh, and is broader than in the draft Bill.

128.We would be concerned if local authorities were perceived as judge and jury, if the penalties they levy were perceived by the public as a revenue stream, or if the penalty process was inconsistent with the European Convention on Human Rights. We are pleased that the Government intends to address these concerns by providing a broader right of appeal.

129.We recommend that the Government clearly specifies in the final Bill a broader right of appeal against financial penalties, allowing the First-tier Tribunal to decide appeals as complete re-hearings, and to take into account all matters, whether or not known to the local authority at the time of its decision.

County Court enforcement of financial penalty

130.A local authority could enforce a financial penalty, if unpaid, by certifying to the county court that it is unpaid. This would be treated as conclusive evidence.215 This provision is not unique.216 We asked our local government witnesses whether local authorities needed the provision, which would prevent defendants from proving they had in fact paid a penalty.217 The LGA told us “local authorities would be unwilling to sign and present a certificate to court if it had already received the payment from the defendant” and that therefore they did not believe the provision unfair.218 They also pointed to precedents in, for example, the Consumer Rights Act 2015 and an absence of evidence of abuse.

131.In our view, any provision which excludes the court’s usual ability to test the accuracy of what it is being told ought to be included in legislation only cautiously. We do not doubt for a moment the sincerity of local government officers, but mistakes are always possible. We recommend that the Government reconsider carefully whether the need for local authorities to be able to recover financial penalties might not adequately be met by providing in Schedule 3, paragraph 7, that a certificate of non-payment is prima facie, rather than conclusive, evidence of that fact.

Lead enforcement authority

132.Clause 16 establishes a lead enforcement authority (LEA). Its duties are outlined in the draft Bill’s explanatory notes as follows:

National Trading Standards stated that a LEA could also “provide ‘back stop’ enforcement, where they could take on a significant investigation and potential formal action, if a local authority felt it did not have the capacity to do so”.220 The role can either be fulfilled by the Secretary of State or outsourced to an external body. The draft Bill’s assessment of impact state that “one trading standard body will be nominated as the lead enforcement body”.221

133.The creation of such a body was broadly welcomed in evidence to our inquiry. The LGA stated that “the use of lead enforcement authorities is a helpful way of ensuring that funding is appropriately targeted at the organisations enforcing specific areas of activity”.222 Councillor Robert Lawton told us that “any help we can get is good”.223 Councillor Lawton said the LEA would be particularly useful if it could develop a national database of landlords and letting agents that have been prosecuted under the legislation.224 The LGA stated that the Government must ensure that a “national information campaign is undertaken to make tenants aware of the new rules”.225 We consider that this would be best implemented by the LEA. However, Councillor Blackburn called into question whether a LEA would be able to usefully assist local trading standards:

we would need a very clear point of contact [at the LEA] and they would need to be super-responsive to be able to match the sort of response that our local trading standards and housing enforcement teams would be able to do. I am not quite sure how it could speed the system up.226

134.We heard that for the LEA to be successful, it would need to work closely with a range of stakeholders, including all local authority tiers. Councillor Clare Salier told us that it would be “reliant on relationships”.227 National Trading Standards identified their Estate Agency Team as a body that the LEA “would need with very closely with… as many of the functions have an amount of overlap”.228 The NHC stated that it would need to work with landlords and letting agents.229

135.Alison Farrar from CTSI suggested that the LEA created by the draft Bill could be merged with the existing estate agent LEA as there is “quite a lot of overlap”.230 However, as she also noted, this is complicated by their respective territorial application. The draft Bill applies in England while the Estate Agents Acts 1979, which established the estate agent LEA, applies throughout the UK.

136.The success of the Lead Enforcement Authority is dependent on developing strong relationships with all local authority tiers, tenants, landlords and letting agents. Such relationships should also be cultivated at local authority level. Guidance developed by the Lead Enforcement Authority for local trading standards should strongly encourage collaborative relationships with a range of stakeholders, particularly with all local authority tiers in order to draw on local expertise. The guidance should also highlight existing powers of delegation under the Local Government Act 1972 and the Deregulation and Contracting Out Act 1994 which permit weights and measures authorities to delegate their powers under the Bill to other tiers of local government where appropriate.

137.The Lead Enforcement Authority should be tasked, and given the funding, to launch a nationwide awareness raising campaign to promote the legislation to tenants.

138.We note that there is crossover with the UK-wide estate agent Lead Enforcement Authority but given the territorial application of the draft Bill do not think it is appropriate to merge the two authorities.


139.Clause 6(4) would require a local authority to “have regard to any guidance issued by the Secretary of State or the LEA (if not the Secretary of State) about the exercise of its functions under this Act”.231 The Government explained the role of the guidance in its Delegated Powers Memorandum:

The Government would expect that the guidance will support local authorities in understanding and undertaking their responsibilities under the relevant Acts. In particular, the Government would expect that it will provide detail regarding practical aspects of enforcement such as interactions between the LEA and local Trading Standards, including the setting out of reporting requirements and/or procedures (see clause 18(6)). The Government would also expect that guidance will be used to promote and provide examples of best practice and to promote consistency in application of the legislation, for example in relation to the circumstances in which it would be more appropriate to issue a financial penalty rather than prosecute, and the appropriate levels of financial penalty in particular circumstances.232

140.While the proposals provide (in clause 17(5)) that the Secretary of State can direct the LEA to produce guidance, they do not place a duty on either the Secretary of State or the LEA to produce such guidance. However, the need for such guidance, particularly regarding setting the level of civil penalty, was highlighted by local authorities. Cheshire West and Chester Council stated that “clear guidance should be provided to local authorities in relation to the new civil and criminal offences… it is important”.233 Professor Ian Loveland also believed that guidance had an important role:

There does not seem to be in the Bill itself, nor in the explanatory notes—although it may feature in the subsequent guidance—any governmental attempt to structure local authorities’ discretion in relation to the size of fine that they charge. I think that is a serious omission.234When asked further about the level of fine, Professor Loveland stated:

Anything that involves unstructured discretion will necessarily lead to a large amount of satellite litigation. Eventually, the matter will have to work its way up through the courts, and the Supreme Court will tell us in five years’ time exactly what the principles should be.235

141.Given the concerns, the Government have indicated that they intend to make the issuing of guidance under clause 17(5) a duty. Becky Perks of MHCLG, told us:

We have listened to the Committee on this and this is very much something we intend the lead enforcement authority to do, so we are looking at making sure that that is a duty. We are looking, with lawyers, at how best we achieve that through the Bill.

142.Guidance for local authorities on the exercise of their enforcement powers is key to ensuring consistent and proportionate responses to breaches of the legislation. Therefore, the production of guidance under clause 17(5) of the draft Bill should be a duty, not simply a power, on the Secretary of State or the Lead Enforcement Authority (if not the Secretary of State). We welcome the Government’s stated intention to ensure that the production of guidance, issued under clause 17(5), is a duty in the final Bill.

143.The House of Lords Delegated Powers and Regulatory Reform Committee considered that the influential role of the guidance issued under clause 17(5) warrants additional scrutiny:

The Department acknowledges in its memorandum that the guidance will play an important role in ensuring consistency in the way in which different local weights and measures authorities exercise their enforcement functions, including deciding whether to impose a financial penalty or to prosecute. Since the guidance is likely to be highly influential as to how enforcement functions are exercised, we consider it should be made subject to parliamentary scrutiny, with the draft negative procedure offering an appropriate level of scrutiny.236

144.Under the draft negative procedure, a draft of the guidance would be laid before both Houses. Either may then decide to reject the guidance, and if so the guidance would not take effect.237

145.We recommend that the lead enforcement agency be under a duty to issue the guidance referred to in clause 17(5), and that it be subject to Parliamentary scrutiny. In particular, we advocate the use of the draft negative procedure as endorsed by the House of Lords Delegated Powers and Regulatory Reform Committee.

145 Northern Housing Consortium, DTF0039

146 London Borough of Hackney, DTF0031

148 Cl 11(7): “…the court may order…” (emphasis added)

149 Citizens Advice, DTF0042

153 A notice under Housing Act 1988, s 21, a preliminary step in obtaining possession of property let on an assured shorthold tenancy.

154 Professor Loveland, DTF0052. See also Dermot Mckibbin, DTF0051 and Q25.

158 Employment Tribunals Act 1996, s 15(1)

159 Immigration Act 2014, s 31(2)

160 Sections 212 to 215C of the Housing Act 2004

161 Housing Act 2004, s 215(1A)

163 The local trading standards authority can also require a landlord or letting agent to repay a prohibited payment when imposing a financial penalty: cl 8(2).

164 MHCLG, DTF0059

165 Rent (Scotland) Act 1984, s 88(2).

166 Cl 6(1)

167 Weights and Measures Act 1985, s 69 (and also the Common Council of the City of London, and Council of the Isles of Scilly)

168 We take the view that it is the provisions of the draft Bill which are enforced, and not—as cl 7(8) currently puts it—breaches. See the Annex, below.

169 Cl 7(2)

170 Cll 9 and 7(3)

171 Cl 9(3). The offence is a “banning order” offence for the purposes of the Housing and Planning Act 2016: cl 9(6)

172 MHCLG, DTF0044

173 Q205; Shelter, DTF0047

175 College and County, DTF0034

176 London Borough of Hackney, DTF0031

177 Local Government Association, DTF0035

178 ARLA Propertymark, DTF0036

183 Local Government Association, DTF0035

184 Northern Housing Consortium, DTF0039

186 London Borough of Hackney, DTF0031

187 Chartered Institute of Trading Standards, DTF0056

191 Professor Loveland, DTF0052

193 Sched 3, para 3

194 MHCLG, DTF0044

195 Criminal Justice Act 2003, s 164(2)

196 Under Criminal Justice Act 2003, s 170(9)

197 Sentencing Guidelines Council, Overarching Principles: Seriousness (December 2004)

198 Local Government Association, PRS0029

200 Prosecution of Offences Act 1985, s 18

201 Associated Octel Ltd [1997] 1 Cr App R (S) 435

202 BPS Advertising Ltd v London Borough of Barnet [2006] EWHC 3335 (Admin). See, generally, Archbold, Criminal Evidence, Pleading and Practice 2018 para 6–34.

203 Sched 3, paras 2–4

204 Sched 3, para 6

205 See further para 130 below.

206 Housing and Planning Act 2016, s 23 (not yet in force except for making certain regulations) and Sched 1 (not yet in force)

207 Housing and Planning Act 2016, s 126 and Sched 9. Financial penalties can also be imposed for breach of letting agents’ duty to publicise fees, etc: Consumer Rights Act 2015, s 87 and Sched 9.

208 House of Lords, Delegated Powers and Regulatory Reform Committee, 20th Report of Session 2015–16, HL Paper 90, para 10

209 Sched 3, paras 10–12. See also above.

211 Professor Loveland, DTF0052; see also European Court of Human Rights (Research and Library Division), Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (criminal limb) (December 2013), paras 1–9

212 Professor Loveland, DTF0052

213 Professor Loveland, DTF0052

214 Housing and Planning Act 2014, Sched 1 para 10(4) (not yet in force) and Sched 3 para 10(3)

215 Sched 3, para 7(3)

216 See the Housing and Planning Act 2016, Scheds 1 and 9 and Consumer Rights Act 2015 Scheds 9 and 10 but also, for example, National Insurance Contributions Act 2015, Sched 2 para 17(6).

218 Letter from the Local Government Association

219 Explanatory Notes, Draft Tenant Fees Bill

220 National Trading Standards, DTF0054

221 MHCLG, DTF0044

222 Local Government Association, DTF0035

225 Local Government Association, DTF0035

228 National Trading Standards, DTF0054

229 Northern Housing Consortium, DTF0039

231 Cl 6(4)

232 MHCLG, DTF0060

233 Cheshire West and Chester Council, DTF0022

236 Correspondence, Delegated Powers and Regulatory Reform Committee, House of Lords

237 Erskine May (24th edition), p. 678

Published: 29 March 2018