Housing and Planning Act 2016 (Banning Order Offences) Regulations 2017

Lord Bourne of Aberystwyth Excerpts

Monday 22nd January 2018 Lords Chamber

Moved by

[Lord Bourne of Aberystwyth]

That the draft Regulations laid before the House on 29 November 2017 be approved.

Relevant document: 13th Report from the Secondary Legislation Scrutiny Committee

[The Parliamentary Under-Secretary of State, Ministry of Housing, Communities and Local Government and Wales Office (Lord Bourne of Aberystwyth) (Con)]

My Lords, the Government value the private rented sector. It is an important part of our housing market, housing 4.5 million households in England. We want to support good landlords who provide decent well-maintained homes and avoid unnecessary further regulation of them. Most private landlords provide a decent service to their tenants, respect their rights and comply with the obligations and legal requirements imposed on them. We know, however, that a small number of landlords and property agents do not meet their legal obligations, sometimes exploiting their tenants by renting out substandard, overcrowded or dangerous accommodation. These landlords and property agents often do not respond to legitimate complaints made by tenants. Some would even prefer to be prosecuted rather than maintain their properties to a decent standard. Let me be clear: these practices damage the reputation of the sector and have no place in modern Britain.

The Government brought in tough measures to enable local authorities to target such rogue landlords under the Housing and Planning Act 2016. In April 2017, we introduced civil penalties of up to £30,000 as an alternative to prosecution and extended rent repayment orders to cover a wider range of housing offences, including illegal eviction and failure to comply with a statutory notice. Banning orders, which are the subject of these regulations, are an important part of the package, which will enable local authorities to take effective enforcement action against rogue landlords.

It may be helpful to noble Lords if I briefly outline the purpose of a banning order. A banning order is defined under Section 14 of the Housing and Planning Act 2016. A person subject to a banning order may be prevented from: letting housing in England; engaging in English letting agency work; engaging in English property management work; or a combination of these. Section 15 of the Act enables a local housing authority to apply to the First-tier Tribunal for a banning order against a person who has been convicted of a banning order offence. A banning order must last for a minimum of 12 months, and there is no upper limit. If a landlord breaches a banning order, they will face enforcement action.

Noble Lords may also be aware of our intention to introduce a database of rogue landlords and property agents. Any landlord or property agent subject to a banning order will be entered on to the database, which will be used by local housing authorities to target their enforcement activity effectively.

We also want to ensure that tenants who live in a property rented by a landlord subject to a banning order are adequately protected. A banning order does not invalidate any tenancy agreement held by tenants in a property, regardless of whether the agreement was issued before or after the banning order was made. This is to ensure that tenants do not lose their rights under the terms and conditions of their tenancy agreement. The Act therefore provides that, in certain circumstances, the management of a property can be taken on by the local housing authority following the making of a banning order.

Banning orders target the most prolific offenders who have been convicted of serious housing, immigration and other criminal offences connected to their role as landlords. They will prevent rogue landlords and property agents earning income from renting out properties or engaging in letting agency or property management work, forcing them either to raise their standards or to leave the sector entirely.

Noble Lords will be aware that we did not include specific banning order offences in the Housing and Planning Act 2016. During the passage of the Act, concerns were raised about the nature and scope of banning order offences. In response we held a public consultation on which existing criminal offences should be regarded as banning order offences. We also amended the Act to ensure that the regulation-making powers were subject to the affirmative procedure to enable full scrutiny of the proposed offences by Parliament.

The regulations before the House today specify which offences will constitute banning order offences under Section 14 of the Act. I will summarise briefly the offences set out in the schedule to the regulations. All the offences listed in the regulations are existing criminal offences. By making the offences “banning order offences”, we are not introducing new offences but simply introducing a new sanction for pre-existing criminal offences.

Broadly speaking, there are three types of offences in the regulations. The first type is housing offences relating to a breach of existing requirements under the Housing Act 2004 and other housing-related legislation, provided the person convicted of the offence has not received an absolute or conditional discharge. This condition is in place to ensure that banning orders remain a proportionate sanction. We want to target only the worst offenders, who have been convicted of serious housing offences.

Offences include failure to comply with an improvement or overcrowding notice, failure to comply with houses in multiple occupation licensing and selective licensing of other privately rented properties, and offences relating to fire and gas safety. They also include the unlawful eviction of tenants or violence or harassment towards tenants by the landlord or letting agent. Such offences are serious and directly impact on the health and safety of tenants at a property. These offences are directly related to the offender’s role as a landlord, and it is right that they are included as banning order offences.

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[Lord Campbell-Savours (Lab)]

My Lords, a number of us spoke at some length on this matter when we were dealing in 2015 with what became the Housing and Planning Act 2016. This offers us the opportunity for a further canter around the course. I shall speak briefly because in principle, like most of the House, I support the regulations. I am trying to work out how effective they will be. One stat which would be helpful would be to know to what extent local authorities have, let us say, over the past 12 months or couple of years, prosecuted landlords with the offences defined in the regulations, because they already have the power to prosecute, which brings me to my second point. If they have that power to prosecute, and they do not do so—for all sorts of reasons, which I shall come to in a moment—the chances of them using a banning order are substantially reduced. The prosecution comes first, and the banning order comes second. I stand to be corrected if I am wrong. It is absolutely dependent on whether local authorities are prepared to prosecute.

Let us take a specific example. Slough is a town notorious for the number of sheds in gardens, most of which are there illegally. The local authority is in difficulty. I presume it knows that it could say to the shed owner, “Close the shed because you are in breach of the law”. On the other hand the local authority may say, “We want to ban that particular landlord”, but it is not prepared to do so because by prosecuting him it will create a homeless situation and it will have to step in and rehouse the family concerned. I am arguing that there may well be a hesitation within local authorities to prosecute and introduce banning orders in the knowledge that they may have to take on responsibility for the tenants. That might apply equally to unfit, overcrowded housing, which is covered under a contravention of overcrowding notice, or fire and gas safety standards offences. The local authority would have to have all that in mind if it decided to prosecute and get a banning order.

If one is dependent on the other and there is a hesitation to prosecute, to what extent will that influence the preparedness of a local authority to introduce the banning order? Unless there is housing into which to place people, or the local authority is prepared to take on the property, which in itself means expenditure because it has been through the legal process, the measure being introduced here might well not work in the way Ministers intend. What we need is more houses: more houses to rent and more houses at a sensible price. That would ease the whole process whereby local authorities would feel freer to proceed and close down property, with the obvious implication for rehousing families.

What stats do we have on the preparedness of local authorities to prosecute and place landlords in a position whereby ultimately, under these regulations, they will be subject to banning orders?

[Lord Bourne of Aberystwyth]

My Lords, I thank noble Lords who have participated in the debate on these regulations and I will do my best to deal with the various points in the order in which they were made.

First, I thank the noble Lord, Lord Jones, for his kind words. Wales does indeed have provisions; they are not identical to these. I will write to noble Lords who have participated, covering the issues raised, and I will endeavour to give the noble Lord full details. He will know that in a devolved context, things are slightly different but there is legislation there and, I believe, in Scotland as well, which I will also seek to cover.

I thank the noble Baroness, Lady Grender, for her general welcome for these regulations. She made points about transparency, which were echoed elsewhere. The noble Lords, Lord Beecham and Lord Shipley, talked about the regulations being cast in a way that would mean tenants could look at potential landlords to find out the position by having a register that is open to the public. Noble Lords will appreciate that that is not possible under the main legislation, which was discussed and passed. The Housing and Planning Act 2016 does not permit that. This is a register for local authorities to use. It is not a ministry of housing—to use our new title—register; it will be a national register for local authorities which will contain these details. In addition—although I am not an expert in this area of the law—there are considerations under the Data Protection Act as to what can be disclosed in such situations. Again, I will endeavour to give chapter and verse on that when I respond in more detail.

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[Lord Beecham]

Before the Minister sits down, can he clarify that he will deal in writing with the point I raised about paragraph 7.1 of the Explanatory Memorandum, which talks about tackling,

“the most serious and prolific offenders”?

[Lord Bourne of Aberystwyth]

I am grateful to the noble Lord. I had unintentionally missed that point in summing up. As I said, we will certainly be making guidance available to local authorities in a booklet. I will give more detail on that in my letter.

Motion agreed.