This briefing provides the LGA view on relevant amendments tabled by the Government on 15 November.
Key Messages
- This briefing provides the LGA view on relevant amendments tabled by the Government on 15 November.
The LGA supports the inclusion of amendments that:
- deter landlords from evicting tenants on erroneous grounds
- ensure that local housing authorities have increased flexibility to use proceeds of financial penalties towards meeting enforcement costs
- will ensure that the legislation can also be applied to shared living accommodation
- enable a local housing authority to take enforcement action in respect of an offence under the legislation which occurs outside of its area, in addition to the existing provision in the Bill that enables enforcement actions in respect of a breach
- clarify that county councils who have responsibility for trading standards enforcement in two-tier areas will have powers to enforce relevant parts of the legislation
- add a degree of fairness to a tenant by requiring co-operation with any engagement from the landlord to be taken into account by the courts when considering whether to grant a possession order on the anti-social behaviour grounds
- ban landlords from adopting discriminatory practices which make it harder for people who are on benefits and/or people who have children (or have children visit them) to obtain a relevant tenancy and are pleased that these have now been introduced into the Bill
- allow the Secretary of State to expand which groups constitute those protected against discriminatory practices and we would like to see the legislation expanded to provide protections for other groups that have experienced blanket bans, such as non-UK passport holders and prison leavers
- However, there is a risk that in practice this law could be difficult to enforce as tenants and regulatory authorities would have to point to evidence that applicants are refused on the basis of being in receipt of benefits and/or having children which may prove difficult in practice beyond rarer cases that are explicit
- introduce the Decent Homes Standard in the private rented sector. We welcome the proposal that councils can issue appropriate financial penalties to hold landlords to account and keep the proceeds of financial penalties to reinvest in enforcement activity
- However, this funding alone will likely be insufficient to cover the full cost of undertaking enforcement work in the PRS that is required to achieve the ambitions of the Bill, particularly as it will be councils’ intention to issue financial penalties or undertake criminal proceedings as a last resort.
- enable tenant to be able to claim up to 24 months rent back through Rent Repayment Orders, up from 12 previously. This increase will act as an additional deterrent for non-compliance by landlords. It will also incentivise tenants to understand their rights and identify and report non-compliance
- seek to increase councils’ investigative powers to support the targeting of criminal landlords.
- However, effective investigation and enforcement is reliant on having the right number of trained and qualified staff, which councils are facing significant challenges in recruiting. A recent LGA workforce survey showed that 45 percent of councils were having difficulties recruiting environmental health officers and 25 percent were having difficulties retaining housing officers.
We are concerned by the ambiguity of the Bill’s definition of anti-social behaviour. Including all behaviour that is ‘capable of causing’ nuisance or annoyance, sets a low bar for what constitutes anti-social behaviour. We want to work with the government to better define anti-social behaviour in this context to reduce the risk of these grounds being open to abuse.
Amendment statements
Gov 31
Member's explanatory statement: This amendment makes it an offence for landlords and people acting on their behalf, or purporting to do so, to serve notice using a ground for possession on which the landlord is not entitled to rely, if the tenant surrenders the tenancy within 3 months following service of the notice.
LGA view: We support this amendment which will deter landlords from evicting tenants on erroneous grounds. It will, therefore, increasing housing security and reduce the potential of homelessness.
Gov 54
Member's explanatory statement: This amendment ensures that the proceeds of financial penalties imposed under section 16F or 16H of the Housing Act 1988 can be applied towards meeting the cost of enforcement functions relating to superior landlords as well as immediate landlords.
Gov 75
Member's explanatory statement: This amendment ensures that the proceeds of financial penalties imposed under clauses 26 and 47 can be applied towards meeting enforcement costs relating to superior landlords as well as immediate landlords.
LGA view on amendment 54 and 75:
We support these amendments to ensure that local housing authorities have increased flexibility to use proceeds of financial penalties towards meeting enforcement costs.
Gov 64
Member's explanatory statement: This amendment allows the power to amend the definition of "dwelling" that applies for the purposes of Part 2 of the Bill to be used so as to add to that definition places that are not occupied as a separate dwelling. This will enable the power to be exercised to bring shared living accommodation within the definition of "dwelling".
LGA view:
We support this amendment which will ensure that the legislation can also be applied to shared living accommodation.
Gov 76
Member's explanatory statement: This amendment ensures that the duty in clause 58(1) does not prevent a local housing authority from taking enforcement action in respect of an offence under the landlord legislation which occurs outside of its area.
LGA view:
We support this amendment which will enable a local housing authority to take enforcement action in respect of an offence under the legislation which occurs outside of its area, in addition to the existing provision in the Bill that enables enforcement actions in respect of a breach.
Gov NC1
Member's explanatory statement: This new clause amends the factors for the court to take into account when considering whether to grant a possession order on the discretionary anti-social behaviour ground of possession. It adds co-operation with any engagement from the landlord as a factor and adds a requirement for the court to consider in particular effects on other tenants of the same HMO.
LGA view:
We support this amendment and the further detail provided. This will add a degree of fairness to a tenant by requiring co-operation with any engagement from the landlord to be taken into account by the courts when considering whether to grant a possession order on the anti-social behaviour grounds. It will also provide consideration of the impact of anti-social behaviour from a specified tenant on other tenants living in the same HMO.
More broadly, we have concerns regarding the ambiguity of the Bill’s definition of anti-social behaviour. Including all behaviour that is ‘capable of causing’ nuisance or annoyance sets a low bar for what constitutes anti-social behaviour. We want to work with the government to better define anti-social behaviour in this context to reduce the risk of these grounds being open to abuse. Government should also deliver on their commitment to bring forward guidance outlining what constitutes anti-social behaviour.
Gov NC7
Member's explanatory statement: This new clause is consequential on the insertion of section 199A of the Housing Act 1996 by the Homelessness Reduction Act 2017 and restricts the circumstances in which accommodation arranged in pursuance of that section can be an assured tenancy.
LGA view:
We understand that this clause is not adding or removing anything substantial. Instead, it is moving clauses together. We would welcome more clarity and a clearer explanation of this clause so that is easier to understand and interpret.
Gov NC8
Member's explanatory statement: This new clause bans landlords and those who act on their behalf or purport to do so from adopting certain discriminatory practices which make it harder for people who have children (or have children visit them) to obtain a relevant tenancy.
Gov NC9
Member’s explanatory statement: This new clause bans landlords and those who act on their behalf or purport to do so from adopting certain discriminatory practices which make it harder for people who are on benefits to obtain a relevant tenancy.
Gov NC10
Member’s explanatory statement: This new clause makes provision for the enforcement of NC8 and NC9 by the imposition of financial penalties.
LGA view on NC8, NC9 and NC10:
We welcome the introduction of the amendments into the Bill that will ban landlords from adopting discriminatory practices which make it harder for people who are on benefits and/or people who have children (or have children visit them) to obtain a relevant tenancy and are pleased that these have now been introduced into the Bill.
People who receive benefits continue to unfairly face discrimination when renting in the private rented sector. The National Audit Office (NAO) estimated that over half (52 per cent) of landlords are unwilling to let to people who receive housing benefit. This is despite several court rulings which found that refusing to rent to tenants on this basis is unlawful under the Equality Act 2010, given that groups with protected characteristics – such as disabled people and women – are more likely to receive benefits.
However, there is a risk that in practice this law could be difficult to enforce as tenants and regulatory authorities would have to point to evidence that applicants are refused on the basis of being in receipt of benefits and/or having children which may prove difficult in practice beyond rarer cases that are explicit, such as through advertisement or the refusal to allow the prospective tenant to view the property. Therefore, for this new policy to be enforceable, councils will need significant resourcing to identify illegal practice that may be more implicit, with guidance for landlords, tenants and enforcement authorities on how to make such investigations measurable and objective. We would welcome further clarity on the specific scenarios where subsection (1) for both NC8 and NC9 do not apply, as outlined in subsection (2) for each clause.
We welcome NC10 that will allow local authorities to issue financial penalties to landlords who are in breach of the legislation. To act as an effective deterrent to landlords, the maximum financial penalty that local housing authorities can issue to landlords for all breaches to the legislation should be increased from £5000 to £30,000 (with a minimum limit of £500). This is in line with other financial penalties that can be issued by enforcement authorities against landlords who breach legislation, for example the Leasehold Reform (Ground Rent) Act 2022.
Gov NC15
Member's explanatory statement: This new clause allows the Secretary of State by regulations to expand the new Chapter expected to be formed of new clauses relating to discriminatory practices in relation to the grant of tenancies to protect persons of other descriptions.
LGA view:
We support this amendment. We would like to see the legislation expanded to provide protections for other groups that have experienced blanket bans, such as non-UK passport holders and prison leavers, to ensure that the these cohorts also have access to a fairer private rented sector.
Gov NC19
Member's explanatory statement: This new clause combines the amendments of section 40 of the Housing and Planning Act 2016 previously contained in clauses 27(9) and 48(10) in a single amendment and adds consequential amendments of sections 44 and 45 of that Act. It is expected to be included in Chapter 4 of Part 2 of the Bill.
LGA view:
We support this amendment. We are also calling on Government to expand the use of Rent Repayment Orders (RROs) to the following additional circumstances:
- Reletting or remarketing a property within the ‘prohibited period’ (currently 3 months) While we agree with Government that the ‘prohibited period’ will be a helpful mechanism to prevent the eviction grounds from becoming Section 21 by the backdoor, RROs will provide a far more robust deterrent and incentivise tenants to be proactively aware of their landlord’s compliance with the new regulations.
- Letting a property without active relevant entries in the database.
- Letting out a property that fails to meet minimum energy efficiency standards.
Gov NC20
Member's explanatory statement: This clause extends Part 1 of the Housing Act 2004 to cover temporary accommodation provided under homelessness duties of local housing authorities in England. It also provides for regulations to specify new requirements which will form part of the Decent Homes Standard and will apply to temporary accommodation, rented property and supported exempt accommodation. This clause and NS1 are expected to form a new Part of the Bill after the existing Part 2, and are intended to replace clause 63 of the Bill.
Gov NS1
Member’s explanatory statement: This new Schedule contains amendments of Part 1 of the Housing Act 2004 that provide for the enforcement of requirements imposed by regulations under new section 2A of that Act, inserted by NC20. The Schedule also allows financial penalties to be imposed for certain breaches of Part 1 of that Act, and makes consequential amendments of other Acts.
LGA view on NC20 and NS1:
We broadly welcome the introduction of the Decent Homes Standard in the private rented sector. We welcome the proposal that councils can issue appropriate financial penalties to hold landlords to account and keep the proceeds of financial penalties to reinvest in enforcement activity. However, this funding alone will likely be insufficient to cover the full cost of undertaking enforcement work in the PRS that is required to achieve the ambitions of the Bill, particularly as it will be councils’ intention to issue financial penalties or undertake criminal proceedings as a last resort. It vital that DLUHC conducts a realistic assessment of the resources councils need to regulate the PRS effectively. New burdens funding should then be allocated accordingly.
To act as an effective deterrent to landlords, the maximum financial penalty that local housing authorities can issue to landlords for any breach to the legislation should be increased from £5000 to £30,000 (with a minimum limit of £500). This is in line with other financial penalties that can be issued by enforcement authorities against landlords who breach legislation, for example the Leasehold Reform (Ground Rent) Act 2022.
To mitigate the risk of landlords exiting the PRS or passing the costs of meeting the DHS to tenants, an extended implementation timeframe should be considered. Our response to the government’s consultation on introducing the Decent Homes Standard in the private rented sector can be found here.
We have concerns about extending the Decent Homes Standard to temporary accommodation. Ultimately, we share the ambition that those in temporary accommodation should have access to good quality accommodation, with councils working hard to provide the most suitable accommodation they have available. However, given the ongoing housing challenges and councils increasingly struggling to source accommodation, this could further reduce the supply of temporary accommodation available to councils in the short-term. Temporary accommodation is costing councils £1.74 billion per year, with households living in temporary accommodation having risen by 89 per cent over the past decade to 104,000. It is not just a cost issue for councils – it is that often the supply of temporary accommodation is simply not available.
We are calling on the government to provide long-term funding certainty for local government to help councils scale up to deliver an ambitious build programme of 100,000 high-quality, climate-friendly social homes a year and implement our six-point plan for a council housebuilding renaissance. This needs to be a key priority that must sit alongside any proposal to apply the Decent Homes Standard to temporary accommodation, to ensure that there is a sufficient supply of good quality homes for everyone.
Gov NC21
Member's explanatory statement: This new Clause, which is intended to be added to Part 3 of the Bill, will allow Rent Repayment Orders to be made against superior landlords, will extend the period that can be taken into account when calculating payments due under such orders and will make provision about how payments are to be calculated and made in cases where there are multiple landlords or multiple orders.
LGA view: We support this amendment that will enable tenant to be able to claim up to 24 months rent back through Rent Repayment Orders, up from 12 previously. This increase will act as an additional deterrent for non-compliance by landlords. It will also incentivise tenants to understand their rights and identify and report non-compliance.
Gov NC23
Member’s explanatory statement: This new clause requires a local housing authority, or a county council which is not a local housing authority, to report at the request of the Secretary of State on the exercise of its functions under the landlord legislation.
LGA view: If this requirement is introduced, it will be important to avoid multiple data collection requests to local authorities which risk becoming onerous and bureaucratic. Any data request proposals must be considered by the joint DLUHC-LGA single data list gateway group for approval. However, we would encourage DLUHC not to default to create reporting requirements for individual policies, as this is likely to be unnecessary and burdensome. New burdens should be provided to councils for any mandatory data return requirements.
NC24 – NC46
These new clauses introduce a range of new investigatory powers for councils.
LGA view:
We broadly support the clauses that seek to increase councils’ investigative powers to support the targeting of criminal landlords.
However, effective investigation and enforcement is reliant on having the right number of trained and qualified staff, which councils are facing significant challenges in recruiting. A recent LGA workforce survey showed that 45 percent of councils were having difficulties recruiting environmental health officers and 25 percent were having difficulties retaining housing officers.
New regulatory responsibilities will exacerbate existing pressures in skills capacity and recruitment. We want DLUHC to urgently work with sector experts to develop a skills and capacity building strategy to ensure that local authorities can support effective implementation of the reforms. This also needs to take into account the cumulative impacts of new responsibilities/duties falling on councils relating to oversight and enforcement activity in the PRS in recent years.
Contact: Elliot Gregory
Public Affairs and Campaigns Advisor
Email: [email protected]