03/09/2015

Right to Rent – just how bad is it?

We though it would be bad. And thanks to the JCWI, we can now have an evidence based stab at an answer. JCWI co-ordinated an evaluation of the West Midlands pilot of ‘Right to Rent’ and have published the report (summary here, and full report here).

Notably, the Home Office has not released its evaluation of the pilot, despite the announced commitment to a national roll out.

As well as various meetings and evidence from organisations on observed impact, the evaluation involved questionnaires for completion by both landlord/agents and tenants. These were received in roughly 40/60 proportion.

Headline figures

42% of landlords said that the Right to Rent requirements have made them less likely to consider someone who does not have a British passport.

27% of landlords are reluctant to engage with those with foreign accents or names.

Checks are not being undertaken uniformly for all tenants, but are instead directed at individuals who appear ‘foreign’. (Only one British citizen in the pilot area who responded to the survey had been asked by their landlord whether they had permission to be in the UK. It is noteworthy that they did not describe their ethnicity as ‘White British’.)

50% of respondents who had been refused a tenancy felt that discrimination was a factor in the landlord’s decision. (Evidence has been received through the survey and submissions of cases where individuals with valid leave to remain or a pending Home Office application have been refused tenancies despite having legal status in the UK and, therefore, the Right to Rent.)

65% of landlords are much less likely to consider tenants who cannot provide documents immediately. (So anyone, possibly including the 17.5% of the British population who do not have a passport, who cannot immediately provide adequate docs may be rejected. The ’48 hour response’ promised by the Home Office on queries, does not impress landlords enough to wait).

57% of landlords and agents nationwide and 40% in the pilot area feel they have not effectively understood the Right to Rent changes or remain unaware of them. (Confusion is greater among landlords who are not a member of a professional body and those who own fewer properties. 72% of landlords who were not members and 70% who leased less than five properties felt that they had not understood or were unaware of the changes.)

Confusion in undertaking the checks is also widespread. Data obtained through a Freedom of Information request shows that 86% of enquiries to the Home Office Online Checking Tool related to individuals with valid leave to remain in the UK, who therefore had the Right to Rent.

65% of landlords have not read or feel they have not fully understood the ‘Code of Practice on preventing illegal immigration’ or the ‘Code of Practice on Avoiding Discrimination’.

56% of tenants in the ‘pilot’ area remain unaware of the Right to Rent scheme. 81% have not received any advice on how to prepare for the checks when applying for a tenancy or their rights in relation to the Equality Act 2010.

44% of tenants within the pilot area had not been asked for identity documents. This shows that the checks are not being undertaken by all landlords and agents in the ‘pilot’ areas.

One third of respondents from the ‘pilot’ area had been charged a handling fee of over £50 in order to process their application, including undertaking the Right to Rent checks. 20% had been charged a fee of over £100. One landlord also stated that he charged over £100 to undertake the checks.

69% of landlords do not feel that they should be made to undertake these checks. 77% are not in favour of a national roll out.

In two out of the three cases where a survey respondent from within the pilot area did not have valid leave to remain or an outstanding application with the Home Office at the time of applying for a tenancy (and therefore did not have the Right to Rent) they stated that they had subsequently found a property and were renting privately.

Data received through a Freedom of Information request also demonstrates that enforcement during the ‘pilot’ has been very low. Between 1 December 2014 and 22 May 2015, only two landlords were issued with a civil penalty notice as a result of renting a property to someone who does not have the Right to Rent. Data from JCWI’s Irregular Migrant Advice Line shows that the majority (66%) of irregular migrants who have contacted the advice line rarely enter into private tenancy agreements, instead staying with friends or ‘sofa-surfing’.

Comment

While based on a smallish data set, there seems to be no reason to believe that the results are unrepresentative, particularly on the landlord responses, which included larger and smaller landlords, members of landlord organisations and non-members.

The results are actually even worse than I expected.

The majority of landlords not being prepared to accept the 48 hour delay for a Home Office check shouldn’t have surprised me, but the 65% is higher than expected. And there will be a very significant effect resulting – regardless of immigration status, or indeed nationality – not being able to produce obviously acceptable documents right away will lose people tenancies.

The discriminatory impact is also obvious and very significant. Of course, refusing tenancy because someone does not have a British passport or has a ‘foreign’ accent or name is straightforwardly unlawful/illegal discrimination under Equality Act 2010, but unless or until there are some discrimination claims brought (pour encourager les autres), this is hardly likely to register with landlords and agents who, and let’s face it understandably, see problems and potential prosecution under Right to Rent as the alternative to the ‘easy’ route.

Add in the lack of comprehension amongst both landlords and tenants, the lack of any actual results and, of course, the unsurprising fact that most of those without immigration status do not take on formal tenancies, and this policy is going to have to take some quite astonishing justification in any Home Office evaluation to take forward nationally. It is, on a purely practical basis, a fiasco.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

23 Comments

  1. simplywondered

    ‘pour encourager les autres’

    that sounds foreign. are you sure you’re allowed to be here?

    Reply
  2. Tony Blurt

    Great piece of research, demonstrating what is self evident.

    Given that most landlords don’t yet understand “statutory periodic tenancies”, (which have been around since 1989), of course they will flounder with these new regulations and in doing so discriminate against folks on grounds of perceived race and ethnicity.

    And given the current world crisis with refugees if this is rolled out nationwide it will send out all the wrong signals about what sort of nation Britain wants to be.

    Reply
  3. Ben Reeve Lewis

    In the last few years working in Lewisham Council’s rogue landlord enforcement team I can categorically say that the persons occupying the worst most unsanitary and dangerous conditions are people who for one reason or another do not have recourse to public funds.

    The landlords who rent to them are often gangs and those involved in people trafficking, in short, not a group of landlords who give a toss about fines, penalties or a bad name.

    So the right to rent will simply push things further underground (in some cases literally in my experience) and the most desperate will be exploited even more by those with no moral compass.

    If, given today’s news, we do go down the route of accepting a few thousand Syrian migrants I wonder what their status will be? specifically if they will be allowed to have a tenancy at all?

    Reply
  4. Paul

    Is there no way that a challenge can be brought against the legislation as a whole? (aside from voting differently next time). As the pilot report concludes this legislation encourages discrimination. The legislation does not state this directly, however the ignorance of landlords demonstrated in the pilot and the discrimination displayed should lead to the government to clarify (or better scrap) the requirements prior to national rollout.

    If this fails to happen prior to national rollout, is there any challenge that can be made against the legislation / government? I.e. rolling out ill drafted legislation in which the pilot has the demonstrated effect of discrimination against foreign nationals. I was thinking of something similar to the EU investigation into the discrimination of people with disabilities affected by the bedroom tax?

    Reply
  5. kjetilniki

    quite apart from this the HO will be unable to tell in many cases whether there is a RTR and the person may have extreme difficulty in providing evidence where the RTR arises from community law.
    eg zambranos, ibrahims, 3rd party nationals separated from their spouse esp if on bad terms.

    Reply
  6. Chris S

    But will no one think of the Headlines!!

    Well it was a stupid idea to start with, it’s still a stupid idea and there is evidence now to back that up.

    It will become legislation. Now how can we lawyers make money out of this?

    The landlords own property and will either discriminate and therefore we bring a claim against them or they’ll need advice.

    hmm will legal aid be available for this type of discrimination?

    Well I think I will be subtitling this legislation as:

    How I Learned to Stop Worrying and Love the legislative Diarrhea

    Reply
    • Giles Peaker

      There is legal aid for discrimination cases. The trouble is finding someone with a Discrimination contract to do it…

      Reply
  7. Paul

    OK, So I have read this a few times… what about mixed households ie couples with differing immigration status. If one has indefinite leave, however the other has no leave or is an overstayer.

    Does the landlord have to check all potential inhabitants in the property or just the tenancy holder? If so just issuing a sole tenancy for the property would bypass the other occupier?

    Similarly if couples with differing status as above were occupying the property, would the landlord be undert he same obligation to evict the whole family – even the “legal” tenant?

    Anyone?

    Reply
    • Giles Peaker

      All potential occupiers – section 22(6) Immigration Act 2014

      Reply
      • Paul

        Wow. So potentially parents would be separated from each other and children if both don’t have RTR?

        Reply
        • D Norton

          And these tenancies are to be ended (somehow) without a court order? I don’t look forward to the first case of a tenant with a RTR being evicted without court order because the landlord claimed they had family member who didn’t have a RTR.

          Suppose we’ll have to see what the govt actually do about the PFEA1977 and RTR before proper speculation can be had there.

        • Paul

          Well if the PFEA is removed and the person with no RTR has no legal right to accommodation… off to the HPA for a homeless application. If partner is actually evicted no contest -unreasonable for a family to reside separately – Peterborough v Carr. Assuming there is one partner with RTR – the household is eligible for a part VII application. If there are kids who are eligible – PN. Cant be intentional, so s.193 duty. Council seek to discharge duty. Whoops no private rental for them as none would be reasonable… therefore the only duty that could be discharged is by a part VI allocation.

          I wonder if that was the intention? Wait for those headlines.

        • Chris S

          The very idea that they are thinking at all over this legislation is laughable. The idea that they would think though it’s interaction with other legislation is fantasy land.

          I mean just take the logical inconsistency that if the illegal immigrant had money he could just lawfully purchase the freehold and live there.

          Also what is to stop people claiming that it is a licence and not a tenancy? We have the strange situation where both landlord and tenant would be wanting it to be a licence as the legislation only effects tenancies. So landlord just needs to go round and clean every so often.

          Oh and it appears long leases (over 7 years) are excluded.

          I am just going to make the popcorn and watch the car crash

  8. Colin Lunt

    The thing that the government has not dealt with is what are they going to do after they have told the landlord that the person with no RTR, (0r be a member of the household), with the person themselves.

    Are they going to detain them pending deportation? If there are children involved then presumably the duty of the LA kicks in to secure their welfare and a roof over their head as they cannot be left at risk.

    Reply
  9. Giles Peaker

    Chris S – ‘tenancy’ includes licences under Immigration Act 2014. See
    https://nearlylegal.co.uk/2014/05/the-ukip-ification-of-law/

    Paul – yes, so long as the homeless applicant has RTR. Complication comes in if the person without RTR (and/or children without leave to remain) is necessary to establish priority need. Currently that means a private sector offer only. Ooops.

    Colin – the evidence from the pilot is that immigration enforcement was, unsurprisingly, very low. LA responsibilities to a family depend on a lot of things, including eligibility. Govt has been reasonably happy to detain children with parent(s) in the past.

    Reply
    • D Norton

      Well in fairness, the law on restricted cases obliges the authority to accommodate privately so far as is reasonably practicable. I’d hope that “it isn’t actually legally possible to accommodate them privately” would be a decent argument that it isn’t reasonably practicable.

      Although thinking about restricted cases, I have dim memories of that depending on the applicant themselves being a UK citizen, an EEA national or having a right of abode because of the way s.184(5) HA1996 is worded, so if the applicant is eligible but subject to immigration control… ugh, hope I’m misremembering. Either way, as I said I’m not looking forward to when these sorts of cases actually come up.

      Reply
  10. Chris S

    oops skim reading not good on this type of legislation.

    So long lease it is then.

    Or trying to get around the residential use bit.

    Reply
    • Giles Peaker

      Long lease registrable at Land Reg and, of course, breach of BTL mortgage terms…

      Reply
      • Chris S

        Just pointing out that this is about stopping poor illegal immigrants. the rich illegal immigrants can stay.

        I am just looking forward to the mess as there is no way common sense, reason or logic is going to stop this.

        Reply
  11. Paul

    Where’s all this long term TA going to be found then? Cant be (within reason) longer than 6 weeks with (eligible) kiddies. #TAheartattack #gladitsnotmyjob

    Reply
    • Giles Peaker

      No, 6 weeks is B&B limit. Not TA generally.

      Reply
  12. Paul

    Yeah, 6 weeks in B&B then into TA until … well some way to discharge is found. As you say. Oops into Private… Wait I feel we have been here before.

    Reply

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