In which the Nearly Legal team gain exclusive access to a (highly) fictionalised account of one man’s inside view of legislation currently going through Parliament, insofar as it relates to housing
Morley Peckwitch, Member of Parliament for Dunny-on-the-Wold, leaned against the bar in the Smoking Room. It was a little after 11pm on 2 November and he was halfway down his fourth glass of port. The last vote on the Housing and Planning Bill had finished at 10:50pm, as it passed its second reading and went off to committee.
MPMP (as he liked to imagine he was affectionately nicknamed by the bigger boys in the 1922 Committee), noticed a copy of the Bill that he had just voted for lying around and thought that he might as well read it for a giggle. He skipped past Part 1, which related to planning, because he had some strange sense that if the third-person account of his evening ever came to the attention of a housing law blog they would be more interested in Parts 2-5.
He rifled through to Part 2, downing his port and swiftly ordering another. “Rogue landlords and letting agents”, eh? What was that all about? Oh, look, cl.12 helpfully summarised it all:
“(1) This Part is about rogue landlords and letting agents.
(2) In summary—
(a) Chapter 2 allows a banning order to be made where a landlord or
letting agent has been convicted of a banning order offence,
(b) Chapter 3 requires a database of rogue landlords and letting agents to
(c) Chapter 4 allows a rent repayment order to be made against a landlord
who has committed an offence to which that Chapter applies or who
has breached a banning order, and
(d) Chapter 5 contains definitions.”
Seems like local housing authorities will be able to apply to the First-tier Tribunal for an order banning someone from letting housing in England, engaging in English letting agency work, or engaging in English property management work. According to cl.15, the FTT can make such an order where someone has been convicted of a banning order offence and they were a residential landlord or a letting agent at the time of the offence. MPMP wondered what a “banning order offence” might be, then saw that the Secretary of State would be given power to specify offences.
MPMP turned the page and saw that a banning order would have to be for a minimum of six months and that cl.17 provided that breaches of a banning order would be dealt with by the local housing authority imposing a financial penalty of up to £5,000.
Time for another snifter of port and then on to cl.22:
“Database of rogue landlords and letting agents
(1) The Secretary of State must establish and operate a database of rogue landlords and letting agents for the purposes of this Chapter.
(2) Sections 23 and 24 give local housing authorities in England responsibility for maintaining the content of the database.
(3) The Secretary of State must ensure that local housing authorities are able to edit the database for the purpose carrying out their functions under those sections and updating the database under section 28.”
MPMP could barely contain his guffaws. Government and databases just never worked. When would they learn? He shook his head sadly and then remembered that his uncle’s IT consultancy would have to make sure that they tendered for the database. His uncle was really good at Access for Windows 95, so it should be a doddle.
What else was there? MPMP turned to Chapter 4 of Part 2 – Rent Repayment Orders. He was vaguely aware that FTTs could already make rent repayment orders under Housing Act 2004 (although he was not aware of the learned commentary on them here, here and here). It looked like a FTT would be able to make a rent repayment order where the landlord had let housing in breach of a banning order or had committed some offences. MPMP checked the list of offences in cl.32. There was violence for securing entry (Criminal Law Act 1977, s.6(1)); eviction or harassment of occupiers (Protection from Eviction Act 1977, ss.1(2), (3), (3A)); failure to comply with improvement notice (Housing Act 2004, s.30(1)); failure to comply with prohibition order etc (Housing Act 2004, s.32(1)); control or management of unlicensed HMO (Housing Act 2004, s.72(1)); and control or management of unlicensed house (Housing Act 2004, s.95(1)).
MPMP breathed a sigh of relief. It looked like the “unpleasantness” with the au pair was not included. He read on.
Hold the phone, what’s this? FTTs can make an order if satisfied “beyond reasonable doubt” that the landlord has let housing in breach of a banning order (cl.35(1)) or committed one of those offences (cl.37(1)). MPMP chuckled to himself at the thought of the Tribunals grappling with the criminal standard of proof.
MPMP ploughed on and turned through to Part 3 – Recovering abandoned premises in England. According to cl.49:
“A private landlord may give a tenant a notice bringing an assured shorthold tenancy to an end on the day on which the notice is given if—
(a) the tenancy relates to premises in England,
(b) the unpaid rent condition is met (see section 50),
(c) the landlord has given the warning notices required by section 51, and
(d) neither the tenant nor a named occupier has responded in writing to any of those notices before the date specified in the warning notices.”
He decided he’d better look at cll.50 & 51 too.
“50 The unpaid rent condition
The unpaid rent condition is met if—
(a) rent is payable weekly or fortnightly and at least eight consecutive weeks’ rent is unpaid,
(b) rent is payable monthly and at least two consecutive months’ rent is unpaid,
(c) rent is payable quarterly and at least one quarter’s rent is more than three months in arrears, or
(d)rent is payable yearly and at least three months’ rent is more than three months in arrears.
“51 Warning notices
(1) Before bringing a tenancy to an end under section 49 the landlord must give the tenant and any named occupier two warning notices, at different times, in accordance with this section.
(2) Each warning notice must explain—
(a) that the landlord believes the premises to have been abandoned,
(b) that the tenant or a named occupier must respond in writing before a specified date if the premises have not been abandoned, and
(c) that the landlord proposes to bring the tenancy to an end if neither the tenant nor a named occupier responds in writing before that date.
(3) The date specified under subsection (2)(b) must be after the end of the period of 8 weeks beginning with the day on which the first warning notice is given to the tenant.
(4) The first warning notice may be given even if the unpaid rent condition is not yet met.
(5) The second warning notice may be given only once the unpaid rent condition
has been met.
(6) The second warning notice must be given at least two weeks, and no more than 4 weeks, after the first warning notice.
(7) In this Part “named occupier” means a person named in the tenancy as a person
who may live at the premises to which the tenancy relates.”
Well, that all seemed jolly sensible and very unlikely to lead to problems. It seemed that there was an opportunity for an ex-tenant to apply for their tenancy to be reinstated (cl.52) and then, hello, what now?
“53 Methods for giving notices under sections 49 and 51
(1) A notice under section 49 or 51 may given by delivering it to the tenant or named occupier in person.
(2) A notice under section 49 or 51 that is not delivered to the tenant or named occupier in person must be given by—
(a) leaving it at, or sending it to, the premises to which the tenancy relates,
(b) leaving it at, or sending it to, every other postal address in the United Kingdom that the tenant or named occupier has given the landlord as a contact address for giving notices, and
(c) sending it to every email address that the tenant or named occupier has given the landlord as a contact address for giving notices.”
Delivering notices to the tenant of abandoned premises in person? Those clever chaps really had thought of everything!
MPMP (and, therefore, us) moved on to Part 4, which was headed “Social Housing in England”. “I didn’t think there was any left”, he muttered. He read on. “Oh, there won’t be. Jolly good wheeze.” Chapter 1 of Part 4 was introducing a right to buy for housing association tenants. And get this – it was being introduced on a “voluntary basis”, just like that time that Cuauhtémoc went along with that nice Cortés on a “voluntary basis”. He remembered seeing something about the right to buy somewhere. It had seemed a dashed good idea when they thought that they might need more votes back in May, but it all seemed a little daft now.
And anyway how was this all going to be funded? Ah, here it was in Chapter 2 of Part 4. Local housing authorities will have to sell of their high value housing when it becomes vacant and give the money to the Secretary of State. Well, that ought to keep Paymaster Gideon happy.
In his haste, MPMP almost missed Chapter 3 of Part 4:
“The Secretary of State may by regulations amend Part 2 of the Housing and Regeneration Act 2008 for the purpose of reducing regulatory control over private registered providers of social housing or their affairs.”
He was a little worried about this. There was clearly too much regulation of private landlords, something he had recently learned, but he thought that this was just a fancy name for housing associations and he wasn’t sure that they could be trusted as some of them let all sorts have a say on what was going on, even tenants.
Now, Chapter 4 of Part 4 looked interesting – “High income social tenants: mandatory rents”. He had thought that this didn’t matter quite so much after Bob Crow died, but there was still Frank Dobson to think about. Clause 74 gave the Secretary of State power to make regulations about “about the levels of rent that a registered provider of social housing must charge a high income tenant of social housing in England”.
“Clever chaps”, thought MPMP, “always leaving the detail for the regulations”. And look at cl.79! More regulations, and this time so that local housing authorities would have to pay any extra money over to the Secretary of State. Oh, Gideon really would be happy.
Still, apparently some people liked the idea of social housing and there had been that whole brouhaha about tax credits. In hindsight they should have realised that when people voted to cut benefits they obviously didn’t mean their benefits. What if there were problems about this whole “pay to stay” thing too? MPMP recalled that discretionary “pay to stay” had led to some housing associations advertising properties for rent by households with annual income that fell within a range of around £100 or so and that if the threshold was set too low, it might lead to lots of unhappy voters (and they are proposing thresholds of £40,000 in London and £30,000 everywhere else).
He paused to consider what would happen if that new bloke in charge at Labour was able to make a really good song and dance over this. If the chap with the sandals could get the media to back him, MPMP feared that his dream/nightmare headline might become a reality: Corbyn Trousers Press.
MPMP started to feel a bit unsteady after all the port. “Better stop”, he thought and ordered a sherry instead. He noticed a miscellany of odds and ends in Part 5, including a bit of monkeying around with the duties of local housing authorities in relation to gypsies and travellers (and those living on houseboats). There was also a bit of jiggery pokery with Housing Act 2004 (and tenancy deposits – AGAIN!) as well as something about premiums for lease extensions, which made MPMP’s head hurt. Although as it could have been the sherry, he decided to order a gin next. He did not pay much attention to rentcharges in cl.91, but then he hadn’t paid any attention to the technical discussion paper on them either.
(Editor’s note: the Public Bill Committee has called for written evidence on this Bill)
That jolly romp through the Housing and Planning Bill started MPMP thinking about the Immigration Bill, which also had some housing stuff in it and was currently going through committee. Part 2 would amend the Immigration Act 2014, which had introduced the “right to rent”. The idea was to keep all of those foreigners out of good old English houses. Yes, so there had been a rather negative review of the pilot that had been run in the West Midlands, but these things all sort themselves out in the long run. And anyway, Theresa May had said that she thought that the Bill was compatible with that blasted European Convention of Human Rights, so it must all be ok.
(Editor’s note: see our earlier post when the current Immigration Bill was introduced and our comment on the report from the Joint Council for the Welfare of Immigrants; as our fictional(ish) Parliamentarian noted, the Bill has passed second reading in the Commons and has now had about eight days in committee)
MPMP was also dimly aware that there was Crown Tenancies Bill due to have its second reading on 6 November. It seemed that Schedule 1, para.11 of the Housing Act 1988 meant that a tenancy could not be assured if the interest of the landlord belongs to “Her Majesty in right of the Crown or to a government department or is held in trust for Her Majesty for the purposes of a government department”. This had been an issue in a case called Nicholas v Secretary of State for Defence  EWCA Civ 53, because it meant that there was no security of tenure. This Bill had been put forward by Mark Pawsey MP and would mean that most Crown tenancies were assured tenancies, but would be subject to mandatory possession grounds where possession was needed either for operation reason in connection with Her Majesty’s forces (new Ground 8A) or in connection with the exercise by the Welsh Ministers of functions under the Welsh Development Agency Act 1975 or the Highways Act 1980 (Ground 8B). But by this point, MPMP was slumped over the bar following a rapid series of gins with brandy chasers.
(Editor’s note: the final bill we shall consider with the assistance of the Hon. Member for Dunny-on-the-Wold is the Homes (Fitness for Human Habitation) Bill, introduced by Karen Buck MP; We should declare an interest – during second reading Karen Buck acknowledged support given in drawing up the Bill by our very own Giles Peaker and by friend-of-the-blog Justin Bates (an all round good man, even if he is a Liverpool fan); we take the following account from Peckwitch’s diaries, which he has optimistically slated for publication in 2026 with the intriguing title MPMP’s diaries 2010-2025: From coalition to the second coming of Blair)
Friday 16 October 2015
Bit of a rum day in the chamber today. Old Filibuster Phil talked both hind legs off of the proverbial donkey and then proceeded to propose that the donkey be prosecuted for the hitherto unknown offence of being a beast of burden with less than three legs, anticipating that the poor creature would plead guilty in order to avoid the criminal courts charge.
Anyway, he talked out some private Member’s bill that was designed to make landlords responsible for ensuring that any properties they let out as homes are fit for human habitation. Apparently something called s.8 of the Landlord and Tenant Act 1985 provides that it is an implied term that properties let for human habitation are fit for such at the start of the tenancy and will be kept that way throughout. The slight problem is that it only applies to properties with a maximum annual rent of £80 in London or £52 elsewhere. This Bill would have removed those rent limits and added in some reference to a thing called a Category 1 hazard.
Perhaps the gout is making me a bit soft, but I didn’t see too much wrong with those proposals. Fortunately, clever Phil realised that it was “very difficult for a landlord … to keep tabs on every dot of the i and cross of the t that hon. Members seem to want to impose on landlords, as though they had nothing to do but wade through legislation generated by this House.”
The sly cove started speaking at 2:08pm, with the rather excellent observation that there was not “a great deal of time left” and then managed to keep going for a full 22 minutes. He also trotted out that old line about being an accidental landlord. He’s such a card. I don’t know how he manages to keep a straight face.
Apparently the Bill is coming back in January next year, but I’m sure that either Phil or old Chopey will bring the telephone book along to read out. Parliament really is the best.
Anyway, it is nearly time for bed and I still need to source an orange from somewhere, so I will leave you, dear diary, until tomorrow.
Finally, if you are that way inclined, the Secret Barrister has another view on the Philip Davies approach to law, this time in relation to crime.