Tenant Fees Bill

Robert Goodwill Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 5th September 2018 Commons Chamber

[Rishi Sunak]

I thank my hon. Friend for his intervention, and I entirely agree. The Bill is not about driving letting agents out of business, but about levelling the playing field so that the small minority of bad actors in the industry are not able to continue to the disadvantage of the vast majority of agents who do a terrific and valuable job, which we want to see continue.

[Mr Robert Goodwill (Scarborough and Whitby) (Con)]

It is precisely the sort of case that the right hon. Member for Birkenhead (Frank Field) raises that gives all landlords a bad name. Most landlords are actually trying to do their best to provide a service to their tenants and hope to have long-standing tenants.

Under the current legislation, for a deposit to be retained by the landlord, there has to be agreement on both sides, otherwise there is an arbitration process. If it is just a case of someone not emptying the bins, there is no way that the landlord would be able to keep all the deposit.

--- Later in debate ---

[Rishi Sunak]

My hon. Friend spoke passionately on Second Reading about renters in her constituency and the work she has done with them to ensure that they are treated fairly. I commend her for that, and for raising a very good point. I am pleased to tell her that the Government are funding enforcement activity with half a million pounds of fresh funding in the first year after the Bill is enacted. Subsequent to that, the fines that the legislation will enable local authorities to levy—potentially up to £30,000 for a repeat incidence—will help to fund ongoing activity. I am confident that we will be able to deal with the issue that she raises.

[Mr Goodwill]

Is the Minister confident that local authorities will have the resources and expertise to do what is set out in the Bill? We in the Bill Committee were concerned that 93% of local authorities had failed to issue even one penalty, and that the level of activity in this area was very poor.

[Rishi Sunak]

As the Minister with responsibility for local government, I am full of admiration for local authorities and their ability to do many things. The pace of the creation of new legislation over the past year or two means that many of the local authorities’ powers in this area are relatively new, so local authorities are getting to grips with them bit by bit. I am pleased to say that there are very positive examples on the ground of local authorities taking action to enforce housing legislation and reinvesting in enforcement the fines that they generate.

A brilliant example of that is Torbay Council, which has used the fines from civil penalties to employ an extra enforcement officer to help with exactly the activities that we are discussing.

--- Later in debate ---

[Rishi Sunak]

I thank my hon. Friend for that clear example of an activity that is already happening that enables redress to be found. He is absolutely right to highlight the potential extension of membership of redress schemes from agents to landlords, which would further improve tenants’ ability to seek redress when they need it and would more generally act as an incentive for good behaviour in the first place. He will know that the Government are conducting a broader conversation about the regulation of estate agents, about ensuring that the industry is properly regulated and that standards are high and about ensuring that the actions of a small minority do not jeopardise the health of the great majority of the sector. That is an ongoing piece of work, and I am sure that we will discuss it in the House in due course.

As we discussed in Committee, when a tenant has paid an unlawful fee, it is only fair that they should be given a say in how those fees are reimbursed, and the hon. Members for Great Grimsby (Melanie Onn) and for Croydon Central (Sarah Jones), whom I am pleased to see the in their places on the Front Bench, tabled an amendment to that specific effect. As I said I would in Committee, I have considered their amendment and agree that such a provision would be a worthwhile addition to the legislation. As such, amendments 9, 10, 12, 18, 19 and 43 will place a requirement on landlords and agents to seek consent if they wish to offset such a fee against a tenancy deposit or rent payment. I hope that those hon. Members will be happy with that incorporation.

I am pleased to say that our amendments go slightly further than the one proposed by the Opposition Front-Bench team, by also requiring agents and landlords to seek the tenant’s consent if they wish to offset the holding deposit from the tenancy deposit or a future rent payment. If the landlord or agent does not seek consent from the tenant or relevant person about how the prohibited payment or holding deposit should be refunded, they will be judged not to have fulfilled their obligation to repay the fee. That will leave the landlord or agent liable for a financial penalty and give the tenant the right to recover their fee through the relevant enforcement authority. It will also restrict the landlord’s ability to serve a section 21 eviction notice.

I have already explained why we do not support the amendment tabled by the hon. Member for Great Grimsby on the default fee provision and why our proposed alternative is fairer and more workable. I wish briefly to address amendment 1, which she also tabled and which would increase the financial penalty for a breach of the ban from £5,000 to £30,000, and explain why we do not support it. We want the fine to act as a serious deterrent to non-compliance. We have listened to feedback from across the sector, and we firmly believe that financial penalties provided in the Bill are the right ones. I think that most people would agree that a £30,000 fine for an initial breach of the ban, as proposed in the amendment, would be excessive. We do not want unfairly to penalise landlords and agents who may inadvertently breach the ban on fees. In particular, that might seriously financially hurt individual landlords who, for context, collect on average rent of around £8,000 from a single properly. A £30,000 fine is almost four multiples of that.

[Mr Goodwill]

Does the Minister agree that a £30,000 fine might well precipitate the sale of the property and the eviction of the tenant—the very person whom the Bill is meant to protect?

[Rishi Sunak]

My right hon. Friend is right. He made the same points in Committee, and I appreciate his raising them again today.

The Government have listened to concerns that some agents and landlords see the £5,000 initial fines as a cost of business and thus repeatedly refuse to comply. That is why the legislation makes landlords and agents liable for a financial penalty for each individual breach of the ban that they commit. In addition, setting financial penalty at up to £30,000 for a second or further breach of the ban will act as a serious deterrent for prolific offenders. It is worth pointing out that further breaches will leave the landlord or agent liable to prosecution and an unlimited fine and, indeed, qualify as a banning-order offence. The Government believe that, taken together, this set of sanctions forms a serious deterrent to poor behaviour. To accept the Opposition amendment would be disproportionate and excessive in respect of the cases we are discussing.

--- Later in debate ---

[Melanie Onn]

I accept what the hon. Gentleman says. The amendment would serve as an example. I would be happy for it to be adopted and then to be taken on further by the Lords. It sets out examples, rather than being a full definition of the circumstances in which a tenant could be charged.

In principle, putting in place a simple paragraph such as that in amendment 3 would make it far clearer to tenants when a breach had taken place. As it stands, the Bill will still be extremely confusing for any tenant trying to tell whether a breach has taken place. That, in turn, will inhibit the right and opportunity of a tenant to properly challenge a landlord or letting agent at a tribunal. Providing clarity on the face of the Bill would remove the ambiguity. Under amendment 3, it would be easy for a tenant to tell if they had been charged an unfair fee, and they would be better able to self-enforce their rights.

Such self-enforcement may be necessary. The Minister talked about it in very positive terms, but I am not sure it is so positive. It reinforces the point that the Bill does not carry the weight of enforcement behind it to take landlords and letting agents to task properly when they continue to break the law. For the Bill to succeed, it must be backed by sufficient enforcement power.

That is why we propose amendments 1 and 2, the primary aim of which is to allow trading councils the freedom to apply higher fines to those who break the rules. That would improve the enforcement of the Bill twofold. First, it would deter landlords and letting agents from taking the chance of applying prohibited levels of fines towards tenants. Even with strong legislation, we know that tenants can often end up in illegal renting situations owing to a lack of knowledge, a lack of confidence to challenge an unfair decision or the fear that a complaint or relationship breakdown could leave them without a house and on the street. We can see this in the Citizens Advice report “Touch and go”, which highlighted the fact that 44% of tenants did not complain about a category 1 hazard in their house.

Secondly, the Opposition are worried that unscrupulous landlords and letting agents may still be tempted to charge prohibited fees in the belief that they will not be challenged until they have taken well over £5,000 in prohibited fees, and that as a result they will see those fines as a business cost. As the hon. Member for Harrow East (Bob Blackman) pointed out, it is just the cost of doing business, rather than the real deterrent it should be. I echo his point that some of the people who local authorities have been enforcing against are not genuine, upstanding, licensed and registered, above-board landlords and agents, but criminals and crooks, and the fine of £5,000 will simply not be enough to deter them.

The Minister had concerns about the £30,000 fine, but amendment 2 states only that it “must not exceed” £30,000. That need not necessarily be the first fine—that would be for the enforcement agency to determine, given the circumstances and an understanding of the situation. Still, to provide a full deterrent would certainly increase the odds against those who take the chance and charge prohibited fees.

[Mr Goodwill]

I do not for one second wish to defend the actions of some of these unscrupulous letting agents, but the fine will be £5,000 for each occurrence, so if they are serial offenders, they are likely to get serial penalties. At the same time, of course, some landlords may inadvertently fall foul of the law, and it would be unfair to impose on them fines as big as £30,000. As I said to the Minister, it might result in properties having to be sold and tenants losing their house.

[Melanie Onn]

I hear what the right hon. Gentleman says, and I thank him for his intervention, but I repeat the point that the fine “must not exceed” £30,000 but need not necessarily be £30,000 in the first instance.

--- Later in debate ---

[Madam Deputy Speaker (Dame Eleanor Laing)]

Order. It will be obvious to the House that there is one hour and one minute left to debate this part of the proceedings and that a great many people wish to speak. I quite understand why those on the Front Benches had a lot to say and took a lot of interventions; this is a very large group of amendments. I appeal to hon. Members that if anybody speaks for much more than five minutes, they will be preventing many of their colleagues from speaking at all. It is not up to me to regulate that; it is up to the honour of each Member of the House to limit their remarks, not necessarily in scope but in time, because brevity is the soul of wit.

[Mr Goodwill]

I was very pleased to serve on the Bill Committee and to hear the very good reasons why the Bill came forward. I am pleased that the Minister has responded to some of the points made in Committee with the Government amendments, which I am very pleased to support.

The picture painted by colleagues from the south of England, particularly from London, does not represent the position in places such as Scarborough in the north of England, where there is a very vibrant rented sector, with adequate supply and demand and where the sort of fees that some have been talking about are not extracted from tenants. However, it is obvious from what we have heard that the current system is not working to protect tenants. Ninety-three per cent. of local authorities have failed to impose a penalty, and with many letting agents not publicising their fees it is difficult for prospective tenants to know what they would actually have to pay and almost impossible to make comparisons. I have also spoken to local estate agents, who have told me about some of the charges they have to take on board. A credit check, for example, can cost as little as £15, but a rogue agent could be charging as much as £625, which is taking advantage.

[Daniel Kawczynski]

Does my right hon. Friend agree that in places such as Shropshire and Yorkshire the market is in the main regulating itself rather well and these changes might be perceived to be slightly excessive?

[Mr Goodwill]

Yes. As a landlord myself I am aware of how that operates. We have talked about private landlords and social landlords. I like to see myself as a social landlord: I do not see what I provide to my tenants as being any different from what is provided by a housing association or a local authority—indeed, I like to think I give a better service. Still, it is right that this legislation has been introduced, particularly as double-charging could take place, with both tenant and landlord paying fees to the letting agent and the letting agent doing very well out of that.

I do not agree with the Labour shadow Minister, the hon. Member for Great Grimsby (Melanie Onn), about the fines in amendment 1 and 2. A £5,000 fine for a landlord is already equivalent to a year’s rent for many properties in my part of the world. As I said, having much larger fines could jeopardise the business of such landlords. I also do not support amendment 4, tabled by my hon. Friend the Member for Shrewsbury and Atcham (Daniel Kawczynski). We must do everything we can to help people to get into housing—I would prefer that they were able to buy their houses, but if not, we must help them to get into the rented market. A problem people often face when moving house is that the deposit put on the previous house is not made available at the same time as the new tenancy takes effect. Therefore, having to find, for example, six weeks’ rent at £100 a week plus another six weeks’ rent at £100 a week, plus maybe a £300 fee, as the amendment suggests, means a person looking to rent a two-bedroom flat in Scarborough or Whitby would need to find £1,500 of cash just to make that house move.

I was appalled to hear the nightmare stories mentioned by the right hon. Member for Birkenhead (Frank Field). As my hon. Friend the Member for Thirsk and Malton (Kevin Hollinrake) made clear, the tenants’ redress scheme introduced in 2014 means that the landlord can no longer see that money as their own money that they can snaffle when the tenant moves; instead, they need to demonstrate that real damage has been done or there are real problems that require that money to be used. In the past, I am afraid, I have heard horror stories where reasonable wear and tear was put down as damage or a slight scratch on the wall was taken to indicate that a whole room had to be decorated. I was pleased to hear from the Minister that he is looking at the possibility of a passporting scheme for these deposits. That is desperately needed because it is so frustrating for a tenant wishing to move that their deposit, which they will get in due course, is frozen and cannot be used to pay the next deposit.

To return to amendment 4, it is not reasonable to introduce these fees of £200 or £300. That would become the norm and, to be fair, it is the landlord who is getting this service: it is the landlord who is interested in the creditworthiness of the tenant and who wants to see the legalities and the administration done correctly, and therefore it is not unreasonable for the landlord to pick up the bill. Indeed, many landlords will do much of this work themselves, and tenancy agreements are available to download which makes doing that much easier.

In supporting the Government amendments, I hope that my hon. Friend the Member for Shrewsbury and Atcham will not press his amendment. We certainly would not want the Opposition amendments to be pressed.

[Matt Rodda (Reading East) (Lab)]

I am grateful for the opportunity to speak in this debate, having spoken on Second Reading in May. It is also a pleasure to follow my hon. Friend the Member for Great Grimsby (Melanie Onn) and other Members.

In Reading East we have seen increasing numbers of young people and families entering the rental market, and it is in the vital interests of these residents and all my constituents that the rental market in our area is affordable, transparent and accessible. However, as with many other constituencies, rising rents, large deposits and high letting fees are increasingly causing difficulties for those seeking to access rented accommodation.

Along with my Labour colleagues, I welcome the Bill as a first step towards establishing a fair and reliable rental market for tenants in my constituency and across the country. However, I remain concerned that the Bill does not go far enough in its protection for tenants. In particular, I am concerned that it does not go far enough to protect tenants against default fees. As we have heard, these are the fees that are chargeable if a letting agent or landlord incurs costs due to a tenant’s actions, such as replacing a lost key or making a late payment. These fees are set at the discretion of the landlord or the agent, and have been described by agents themselves as a back door to reclaiming income lost through this Bill. I share the concern expressed by the Housing, Communities and Local Government Committee and by other respected organisations such as Shelter and Citizens Advice that the lack of clarity regarding default fees creates a major loophole that could expose tenants to unreasonable fines from unscrupulous landlords or letting agents.