Consumer Rights Bill

Debate between Baroness Gardner of Parkes and Baroness Hayter of Kentish Town

Wednesday 26th November 2014 Lords Chamber

[Baroness Gardner of Parkes (Con)]

My Lords, this amendment seeks to correct an injustice from which a number of leaseholders are suffering at present. The leasehold valuation tribunal—LVT—set up years ago has now been abolished and replaced by a tribunal. An aggrieved leaseholder who has not managed to receive any satisfactory response from their landlord, be it for repairs to be carried out or any other problem of non-compliance with the terms of his lease, has to take his case to the First-tier Tribunal. I opposed this change when it was debated in Grand Committee.

It was interesting to read in the past week—I think it was in the Evening Standard—that as yet there has not been one single application to the First-tier Tribunal relating to the redress scheme in the new regulations. That is not surprising. Everyone is waiting to see how heavy the costs are and what the procedures are. I have asked questions in the House as to how people are able to find out exactly what the new procedures are and what steps they need to take. In reply, I have been assured that efforts are being made to see that this information is readily available, but I have not seen anything other than that piece in the press.

As a tribunal application is now a much more expensive process than the LVT process, where costs were intended to be limited to a maximum of £500, the present reaction is not surprising. No one wants to plunge in at what looks like the deep end but someone will be forced to dip a toe in the water sooner or later, and I expect that then we will eventually have a deluge of applications. It was always understood that if a case needed to move on from the LVT to the Lands Tribunal and was to be financially within the reach of any leaseholder, much higher costs would be involved. I opposed the move to close the leasehold valuation tribunal and the move to the new tribunal and I will be very interested to see how it will work. It was debated in Grand Committee at the time the change was proposed.

This change of tribunal, however, makes my amendment even more necessary. A most unfortunate practice has developed in the leasehold valuation tribunal, whereby leaseholders bringing their cases personally found that they were confronting capable and expensive solicitors, in some cases QCs. That might seem to be a free choice of the landlord, and I have no objection to it. What I believe is totally immoral and unjust is that some less scrupulous landlords are charging these costs, even when they lose the case, back to the very leaseholders who were right in their claims. Those costs come disguised as service charges.

Whenever I have raised this question in your Lordships’ House, the reply is always that it depends on the terms of the lease. My amendment covers that situation for now but would prevent such a new clause being inserted into any new lease or extension of an existing lease. Too many leasehold terms and conditions are not understood by leaseholders and it is time that the many Acts, made over very many years, should be reviewed and a consolidation Act was brought forward. This House would be the ideal body to set up a committee to consider this in detail. There are too many Acts, each changing the preceding Acts and making these laws very difficult to follow. Even highly experienced lawyers have to spend their time referring from one Act to another, backwards and forwards. I was very grateful to the noble and learned Lord, Lord Lloyd of Berwick, who has long experience in consolidation, for supporting the principle of a consolidation Bill when it was raised recently in the House. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we are very happy to support this amendment, which would ensure that tenants do not end up being charged a share of the landlord’s legal costs which were perhaps incurred when he was challenging those very same leaseholders, as the noble Baroness has said. That makes sense and I hope the Government will accept the amendment.

While I am standing, perhaps I might report to the House the outcome of our discussions in Committee on the rights of leaseholders. In that case, the discussion was on insurance and the difficulty which leaseholders have in seeing the underlying information in the insurance policy, as the contract is actually between the landlord and the insurer. Partly because of that and partly because the cost is passed onto tenants by the landlord, there is no incentive for the landlord to shop around for a better deal.

I received a letter today from the ABI, which agreed with the statement that I had made in Committee that leaseholders should have increased opportunities to engage in the process when the managing agent purchases insurance and that the landlord, as the client of the insurer, should request relevant information from the insurer. The ABI supports leaseholders being given clear and timely information about the insurance contract. The letter from the ABI suggests the sort of information that should be provided before the contract is signed, including any commission paid to the agent. While the Government were not able to accept the amendment in Committee, it is very good that the knock-on effect has been that it will become a note of good practice, which should have some impact on leaseholders. I hope the Government will now accept this amendment and help them in that way, too.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Baroness Neville-Rolfe) (Con)]

My Lords, I have listened with great interest to the comments made on this important subject and I am very grateful to the noble Baroness, Lady Gardner, for giving up some time earlier today to take me through her points. The purpose of her amendment, as I understand it, is to provide leaseholders and tenants with protection from a landlord seeking to recover the costs incurred through proceedings at court or tribunal through their service charges. This is obviously a sensitive area for both leaseholders and landlords and it is important to get the right balance. It is of course important that leaseholders are provided with protections but also that the law creates parity between the parties.

Section 20C of the Landlord and Tenant Act 1985 enables a leaseholder to apply to the tribunal for an order that the landlord’s costs should not be included in determining the service charge payable by the leaseholder. At any point during proceedings, a leaseholder may make an application to the tribunal to ensure that they do not bear the costs of all the litigation. This ensures that the leaseholder knows where the costs of the matter will lie. The tribunal process is designed to be as cost effective and user friendly as possible. It may be that this could be better communicated so that leaseholders understand their rights. The judiciary has always been aware that, if costs have been awarded against the landlord, they should not get through the back door what has been refused through the front door. Tribunals must make decisions that are just and equitable in the circumstances; they are best placed to make those decisions because they are apprised of the facts.

I am a bit concerned about the perverse effect of the amendment, which could restrict landlords from ever recovering costs of legal proceedings by way of a service charge. This seems wrong. For example, in an insurance dispute resulting in the insurance company refusing to pay out, the landlord would need to instigate proceedings ensuring that leaseholders do not have to pay for repairs through service charges that might be covered by the insurance. However, I am very glad to say that the leasehold sector is large and growing; we have over 4 million dwellings in England subject to a long lease, and the noble Baroness, Lady Gardner, explained to me that there are 6 million leaseholders. Of course, there are also 2.8 million dwellings in flats. I am advised that the amendment could change the leases for flats without consultations with individuals or working with the sector to consider these matters, although I think the noble Baroness was saying something different in her comments. Be that as it may, this is an incredibly important sector, and I know that the changes and new regulations on redress introduced on 1 October may change the market place and need to be allowed to settle. Again, there may be an information problem that we would be keen to address.

Before I finish, I pick up the point that the noble Baroness, Lady Hayter, made about the ABI letter, which she was kind enough to give me a copy of earlier today. DCLG officials are working closely with the Competition and Markets Authority in relation to the remedial measures from its market study on property management services. The final report will be published next week and is likely to ask government to consider most of the points in the ABI letter. My noble friend will also be interested to hear about that report. She identified an important issue, that of legal costs that are incurred by landlords and how they are passed on as service charges. I do not feel able to accept her amendment but I shall write to my ministerial colleagues at the Ministry of Justice and DCLG alerting them to the issue, making sure that they consider the points that she made very carefully. I will ensure that we follow through as a Government and I will see her again if the need arises. There is a willingness to take this forward. In the circumstances, I hope that she will feel able to withdraw her amendment.

Enterprise and Regulatory Reform Bill

Debate between Baroness Gardner of Parkes and Baroness Hayter of Kentish Town

Wednesday 16th January 2013 Grand Committee

[Baroness Hayter of Kentish Town]

My Lords, this is unfinished business for me. As the then chair of the Property Standards Board, I failed miserably to persuade the previous Government to do what I am now asking, but I feel I might have more success with this one.

The purpose of these amendments is, first, to bring letting agents into the Estate Agents Act, thus enabling the OFT to ban agents who act improperly; and, secondly, to require all letting and block management agencies to join an ombudsman’s scheme, which would give tenants and landlords the possibility of redress. This is already the case for estate agents under the Consumers, Estate Agents and Redress Act 2007 and we simply want to extend this to letting agents, as was demanded by Mark Prisk in 2007. I will make the case in three ways: first, the evidence of need due to the size of this sector; secondly, the number of complaints; and thirdly, the industry’s support for this move.

First, the numbers: about 3.5 million people rent privately, two-thirds of whom go through letting agents. Over 1 million landlords use letting agents to manage their properties. The private rented sector accounts for about 17% of all stock at the moment; this is forecast to rise to 20% by the time of the next general election. Which? estimates that tenants pay £175 million a year in agency fees. So it is a big industry, affecting the most basic of consumer goods—that is, homes—but it is not well run or well regulated.

Indeed, the industry is actually completely unregulated. There is ample evidence of rogue agents in this field. Luckily, there is also lots of evidence of good agents. In fact, just as estate agents have to sign up to a redress scheme, so 60% of letting agents—those who are members of the professional association ARLA: the Association of Residential Letting Agents—choose to belong to a redress scheme. However, 40% of letting agents are not members of a redress scheme because membership is voluntary.

We want all letting and managing agents to be members of a scheme and thus covered by a code of conduct or by the RICS “Blue Book” of standards. The amendment is supported by the two residential property ombudsmen: Ombudsman Services and the Property Ombudsman. The latter, Chris Hamer, has noted that with 40% of agents outside a redress scheme, there is a,

“significant risk for consumers who use such … firms. That risk arises from a failure of the firm to follow accepted standards of operation and customer service as laid down in … [the] code; and … exposes the landlord or tenant to … financial loss either through there being no protection of client money if the firm fails, or because … funds have been misappropriated”.

The Property Ombudsman’s workload with letting agencies has increased 200% in the past five years—up 25% last year alone. Some of that represents the increase in agents who are joining voluntarily, but it is the economic situation forcing more people into the private rented sector that is leading to more complaints. However, a quarter of the complaints referred to the Property Ombudsman could not be handled because the letting agent was not a member of the redress scheme.

The other ombudsman, Lewis Shand Smith, who is chief ombudsman at Ombudsman Services, has stated:

“Protection for the consumer in the lettings market is patchy which in turn leads to confusion. There is also an inequality in that those buying and selling residential properties are protected and have access to redress, while those renting in the private sector do not. A more robust and comprehensive regulatory framework and comprehensive access to independent redress will both protect and empower those in the PRS [private rented sector] market”.

These ombudsmen are seeing the problem grow day by day. Research undertaken by Which? and by RICS bears this out. One in five tenants and 17% of landlords said they were dissatisfied with their letting agents. Indeed, landlords’ customer satisfaction score for letting agents was sixth from the bottom across 50 markets and tenants’ satisfaction was second from the bottom. Half of consumers were unaware of or could not remember if their agent was a member of a professional body and the vast majority of them believed that letting agents are required to abide by a code of practice, despite that not being the case. However, nine out of 10 believe it should be compulsory for agents to register with a regulatory body and meet a code of conduct.

It is not just tenants. Landlords are hardly more sophisticated consumers than tenants. In fact, only one-third checked whether their letting agent was a member of a professional body. So tenants are not in a position to choose the agent and landlords often make bad choices. It is not simply that tenants and landlords have nowhere to go with complaints if there is not a redress scheme. It is also that, because letting agents do not have to be a member of a redress scheme, they cannot be banned for bad practice, they do not have to provide indemnity insurance, they do not need a published complaints procedure, there are no client protection rules and there are no entry requirements or qualifications. It will come as no surprise to the Committee that Shelter, Crisis and Which? support these amendments, as does Boris Johnson, mayor in this city, and Sir Robin Wales, Mayor of Newham, whose borough has driven the debate on regulation of the private rented sector. The noble Lord, Lord Borrie, who is, unfortunately, unwell today and unable to be with us, is also very supportive of these amendments. He was the first director of the OFT, which would gain some powers under one of these amendments. The noble Baroness, Lady Greengross, who sat through our last session when we did not reach these amendments would also like her name associated with them.

We know that those who represent tenants and landlords want this change, but what of the industry? The industry is absolutely behind this amendment. Lucy Morton, who has been described by the Telegraph as,

“the queen of London’s rental market for 30 years”,

told that paper:

“It is shocking that so many letting agents remain unregulated”.

The Chartered Institute of Housing wrote to me that it,

“believes that the private rented sector deserves adequate … regulation … to protect the increasing numbers of people … in the sector ... Currently, the regulatory arrangements … fall short of customer expectations with … nearly 40% of … agents not part of … [the] regime. CIH supports these amendments … [which] would … offer a redress scheme and extend the Estate Agents Act … to include … letting and managing”,

agencies.

They are not alone: the Residential Landlords Association, the British Property Federation, the Royal Institution of Chartered Surveyors, the Federation of Private Residents’ Associations, the National Federation of Property Professionals, the Association of Residential Letting Agents, the National Association of Estate Agents, Southern Landlords Association, the Institute of Residential Property Management and the Association of Residential Managing Agents have all asked me to let the Committee know that they support these amendments and that they support mandatory membership of a redress scheme in line with estate agents. They have written that they,

“believe that the regulatory framework in the lettings market … offers limited protection for the consumer with approximately 40% of lettings agents outside of regulation … The current … framework … costs business money, hitting many micro-businesses and sole practitioners … particularly hard. This amendment will provide consumers with clarity and … protection … raising standards across the rental sector, without adding unnecessarily to business costs”.

One of the UK’s largest estate agents, Knight Frank, has also written to endorse this statement.

This is a king-sized roll call. The industry is completely signed up to the initiative. Indeed, it is one that it has long wanted, as have others such as the Resolution Foundation, which wants all letting agents to be members of an ombudsman scheme and brought under the Estate Agents Act 1979 so that the OFT can ban those that act improperly. There is a major mischief at the moment as an estate agent banned by the OFT can open up the very next day as a letting agent. Charities, campaigners and the industry support my amendments.

I turn now to the governing parties. In their policy document, Decent Homes for All, the Liberal Democrats, noting that the numbers in the private rented sector now equal those in social housing and are set to overtake the public sector by 2020, describe how,

“a minority of bad … letting agents are a blight on the [private rented] sector … bringing PRS into disrepute”.

The Liberal Democrats therefore support,

“regulation … to ensure that … people are protected from unscrupulous or incompetent landlords and managing agents”,

by promising to,

“require all letting/managing agents to be on a national register and … to set up a mechanism whereby bad agents may be removed and therefore prevented from practising”.

These amendments provide that mechanism.

I turn to the other part of the coalition. The then opposition MP and now Housing Minister, Mark Prisk, tabled amendments to the 2007 Consumers, Estate Agents and Redress Bill when it was going through the House. His amendments, as I am sure the Minister has recognised, were virtually identical to my Amendment 28ZH. That is because he said that that amendment would amend the Estate Agents Act 1979 to extend the definition of estate agency work to include residential lettings and management. Some of the scandals in this market include charging both the landlord and the tenant for the same service, charging for simple procedures already covered by a landlord’s management fee, and charging exorbitant fees for basic functions. He went on to say:

“As a Conservative, I am instinctively cautious about arguing for more regulation. However, as a chartered surveyor and a constituency Member of Parliament, I know that we need to put lettings on the same regulatory footing as sales. The fact that the National Association of Estate Agents, the Royal Institution of Chartered Surveyors and the rest of the industry agree shows that the measure is long overdue”.—[Official Report, Commons, Consumers, Estate Agents and Redress Bill Committee, 24/4/07; col. 192.]

I have to confess that my party then proceeded to defeat his amendment. However, with this amendment, we have a chance to implement the amendment tabled by Mr Prisk in the other place. I beg to move.

[Baroness Gardner of Parkes]

My Lords, I support the amendment, but I do not think it goes far enough. I shall go on to talk about that in a minute. The noble Baroness has raised some interesting points and I was rather cheered to hear about her lack of success with the Labour Government because I am finding the same at the moment with the Conservative Government as regards the regulation of managing agents. I should say at the outset that that is what I think is missing here, and I hope to bring forward an amendment on Report to cover the regulation of managing agents of leasehold properties.

The noble Baroness mentioned the private rented sector. I am aware of what that is, but unfortunately we still seem to be unable to deal with the invisible private sector, which is quite worrying. I meet people all the time who are being forced out of a bedsit or something because the rent is being put up. The landlord does not even declare that he has any tenants—much less use any letting agents—and when the tenants try to find another place to go to, just a simple room, they are joining a huge queue of people. The rent is increasing even as they wait for their opportunity to get a room.