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Unlawful eviction and harassment

The MP for Ilford South and a teachable moment

31/08/2024

In what can only be described as a deeply embarrassing, indeed humiliating turn of events, the new Labour MP for Ilford South, Jas Athwal, has provided a clear lesson in poor practice in the private rented sector. (BBC report here, and Guardian report here.)

Mr Athwal MP is a landlord, with some 15 rental flats (apparently making him the largest landlord in the House of Commons. A former Tory MP had 16 properties, but he was defenestrated at the last election).

Seven of those flats are in one block. A BBC investigation found the following:

  • At least three of the flats suffered mould growth to bathroom ceilings, despite frequent cleaning.
  • Flats had ant infestations.
  • Fire detectors and CO detectors were not operational, with a fire detector in the communal corridor hanging from the ceiling by a wire.
  • A washing machine was dumped in the communal access and the communal lights didn’t work.
  • One tenant reported having been threatened with eviction by the managing agent when reporting issues.

To make matters worse, while the BBC reporter was there, the managing agent, having apparently been tipped off, started calling the tenants:

While I was at the block, the property manager was tipped off about my visit and tenants started to get calls from him. After receiving these calls they became hesitant about talking to me. This appeared to me to be intimidation.

One resident who had spoken on camera about problems with their flat later asked that we not use the interview and another asked me not to use images of the mould two days after allowing me to take pictures of it.

Then, as the icing on the cake, it appears that the flats were in LB Redbridge’s selective licensing area and there was no licence for any of the flats on the council register. Mr Athwal MP was the former leader of LB Redbridge, and was when the selective licensing scheme was introduced.

Mr Athwal MP’s initial response to the BBC is one to file under ‘might have been better not said’.

“My properties are managed by an agency, selected for their quick response times and excellent customer service. This is evidenced by the long tenure of the tenants – over 87 years across 15 properties.

“I pride myself on being a good landlord and no tenants have ever been evicted. Repairs and improvements have been made to properties as recently as two weeks ago.

“To ensure tenants enjoy a secure, long-term home, rents are kept below market rate and, in many cases rents are frozen at the rate first agreed.”

He added he did not take on tenants on housing benefit to avoid conflicts of interest with his role as the local council leader.

So, managing to add another potentially unlawful act to the list. We’ll come back to the list below, but for now, the idea that there could be any ‘conflict of interest’ in taking tenants on housing benefit is ludicrous. It would be LHA/Universal Credit, administered by the DWP, not the council, but even if it were housing benefit, the idea that the leader of the council would have had any part in the administration of housing benefit is daft. I suspect what he meant is it would have been potentially embarrassing if anyone found out his tenants’ rent was paid by the local authority. That is not the same thing.

By the next morning, Mr Athwal MP had clearly had a rethink. He acknowledged that the properties were in a poor state, blamed the managing agents and said it would be sorted immediately.

Mr Athwal described himself as a “renters’ champion” who is “proud” to rent out homes with secure tenancies at below-market rents and who wants every one of his tenants “to have excellent accommodation”.

“I’m shocked at the reported condition of a number of the properties and have asked the managing agent for an explanation and immediate action to rectify any issues,” he said.

“I know it’s my responsibility to have issues addressed as soon as they arise and have met the property management company to understand failures in communication.

“I’m profoundly sorry that tenants have been let down and will be reviewing the property management and how matters are escalated going forward.”

On the licences, Mr Athwal said: “It was my understanding all the licences for my properties were up to date, but I have recently seen an email which shared that licences are due to expire. I am in the process of renewing all licences.”

We have to take it that this last bit means the properties were indeed unlicensed at the time.

Calling oneself a ‘renters’ champion’ while actually apologising for the state of the properties takes some chutzpah, too.

Now for the teachable moment. How many breaches of legal and regulatory obligations can we identify and what are the possible consequences?

Lack of required licences – there is no grace period at the expiry of a previous licence (if there was one), the property requires licensing at all times. An application must be made at or before the point of expiry (though the licence may take a little while to process, the application if the key point). Not having a licence is an offence.

Consequences? Potentially a prosecution (unlikely) or imposition of a civil penalty of up to £30,000 by the local authority for each offence. Each flat here would need a licence. No section 21 notice can be served when a property that requires a licence is not licensed.

Also, tenants can apply for a rent repayment order for rent paid during the period for which the property was unlicensed of up to 12 months (this is likely to be doubled in the Renters’ Rights Bill). This can be for up to 100% of rent, though a lower award is more common.

It is not a defence to either a penalty or a rent repayment order application that you thought your managing agents would do the licensing.

Pest infestation/mould/non functional fire and CO2 alarms/possible blockage of fire escape route – these are all obvious hazards causing risk to health under the Housing Health and Safety Rating System (HHSRS). If the local council found these hazards on an inspection, they would be able to serve one of a variety of notices. Most likely would be an improvement notice, requiring the hazards to be remedied within a specific period of time.

Breach of an improvement notice is an offence, which could lead to prosecution or civil penalty, as above, and is also a relevant offence for a rent repayment order application. No section 21 notice can be served for 6 months after an improvement notice.

But the hazards would also be a breach of the landlord’s obligation under section 9A Landlord and Tenant Act 1985 to keep the property fit for human habitation during the course of the tenancy. This is an obligation implied into the tenancy agreement and the tenant can bring a county court claim for works and damages on the breach. (This would be separate from and additional to any rent repayment order that might be made).

Again, it is not a defence that you expected your managing agents to carry out this obligation for you.

If this had have been a House in Multiple Occupation (HMO) rather than flats, there would have been a number of other offences.

Having a blanket policy of not letting to tenants on ‘housing benefit’ – as announced by Mr Athwal himself? Well, that is highly likely to be currently unlawful as indirectly discriminatory. A potential embarrassment as a council leader would not be a justification defence. A blanket ‘no benefits’ policy will also almost certainly be prohibited under the forthcoming Renters’ Rights Bill.

The suggestion of intimidation and threats of eviction from the managing agent? If that is true, then it is arguably harassment for the purposes of the Protection from Harassment Act 1997 by the agent.  It would take a lot more to make the landlord responsible for this, and it does not look like harassment for the purposes of the Protection from Eviction Act 1977 or section 29 Housing Act 1988, because not intended to cause the occupier to give up occupation.

What the managing agent’s obligations to Mr Athwal MP were would be a matter of the contract between them. If the managing agent has failed, then the landlord may have a claim in breach of contract against the agents, but – as emphasised above – having an agent who was supposed to do X, Y and Z is not a get out for the landlord for any breach of their legal and regulatory obligations.

[Update 1 September, Mr Athwal MP has indeed doubled down on blaming his managing agents, who he is now sacking.]

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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 Bluesky. (No longer on Twitter). Known as NL round these parts.

20 Comments

  1. Richard

    Bit of an oversight..oh dear ….rro incoming hopefully

    Reply
  2. Mohan Ramcharan

    Ha… I see it unlikely that the local authority will follow through on any action.

    Reply
  3. Bryan R

    I’d ask when Redbridge Council last undertook a review of the Private Rented Stock in the Borough. Perhaps if this had been done, these issues may have been discovered. Redbridge as you know Mr Peaker, have a duty under Part 1 of the Housing Act 2004 to keep housing conditions (private rented sector) under review and identify actions needed in their local area. My LA have never undertaken a review and I know of many others in the South East who have not done this.

    I know of Councils in the South East who have promised Tenants they’ll undertake an RRO and then never followed through, leaving tenants to navigate this difficult and stressful process themselves. Just recently Folkestone & Hythe DC promised to do this for a tenant and capitulated. Luckily the tenant had found help and begun the process with support.

    LAs are loathe to use their enforcement powers as has been made clear in the NRLA Enforcement Lottery report – Feb 2022; the HoC Library Housing conditions in the private rented sector (England) – Dec 2022; and the GMTU Tackling Disrepair report – Aug 2023.

    It is time for a new Renters Reform Bill. However, if the Act ever comes into force, LAs will need the people and the will to actively enforce the provisions within it. But given this new elected administration appears to have opted for Austerity 2.0, I do not think much will change as the money to act and enforce will not be there.

    Reply
    • witstert

      Are they not ‘twixt a Rock and a “hard place”? Bite the hand that feeds them to bite the hands that feed them?

      Reply
  4. Richard Percival

    A small nuance re RROs and managing agents – it is just possible for a landlord to rely on a failure to act by a managing agent, but jolly difficult. Aytan v Moore [2022] UKUT 27 (LC), [2022] H.L.R. 29, [40], “a landlord’s reliance upon an agent will rarely give rise to a defence of reasonable excuse. At the very least the landlord would need to show that there was a contractual obligation on the part of the agent to keep the landlord informed of licensing requirements; there would need to be evidence that the landlord had good reason to rely on the competence and experience of the agent; and in addition there would generally be a need to show that there was a reason why the landlord could not inform themself of the licensing requirements without relying upon an agent, for example because the landlord lived abroad.”

    Reply
    • J

      I worry that case is liable to be taken too far. As the UT keeps emphaising (in particular, via the Deputy President), a reasonable excuse is simply one that is reasonable in all the circumstances. Moreover, there is further UT dicta about the desirability of small landlords using professional agents, as one would expect that to lead to an improved service etc. And, at the risk of being pedantic, if the landlord is a body corporate then, of course, it can only act via agents.

      What I think the UT was worried about in Aytan was dodgy landlords seeking to deflect blame for their failings (see, e.g.[27] – tenancy did not reflect the reality of the letting; [28] – no evidence of agents ever actually agreeing to take any responsibility for any aspect of licencing). And that’s fair enough. All those of us who work in this field know there are such people. That can’t mean that there is any sort of higher burden on a reasoanble excuse defence when bringing the agent into the fray. It’s just whether, in all the circumstnaces, it’s a reasonable excuse.

      Reply
    • Giles Peaker

      Rather hard to argue there was a reason not to inform oneself of licensing requirements when you were the leader of the council that imposed the requirements…

      Reply
      • J

        Yes – I would imagine that the s249A penalty and RRO would be towards the higher end of the spectrum in this particular case

        Reply
  5. Ralph

    It was probably all just a big misunderstanding….. compounded by an unintentional infringement of the 11th commandment.

    Reply
  6. Mr Chris Daniel

    Two-Tier Hypocrisy is de rigueur for this shower.
    Just makes a further mockery of the Licensing process as just a money generating scam, where Govt legislate against their financial shortfalls in Council Housing departments by allowing various councils ‘at will’ to implement ‘schemes’ ( a very apt word ) to generate income without an inspection of the properties.
    If there isn’t a requirement to inspect deemed ‘licensable’ properties, there isn’t a case to charge a license fee for the entitlement to rent such.

    Reply
    • Giles Peaker

      Licensing fees do not go to general funds, or council housing revenue accounts. This whole ‘it’s about income’ thing is nonsense.

      Reply
      • Ben Reeve Lewis

        And the whole idea of councils introducing licensing schemes “At will” is patently absurd. Permission to introduce all schemes must be sought from the Secretary of State. Every additional and selective licensing scheme put in place in the past 14 years was approved by the conservative government.

        Reply
  7. T

    Thank you for this. This case demonstrates how much we need to start enforcing existing legislation before we try to introduce yet more rules (that will not be complied with). It’s like the wild west with little/no enforcement.

    Reply
  8. Tom Makem

    I always thought that the Evening Standard, having a weekly column in their Wednesday property pull-out called, “The Accidental Landlord”, spoke volumes about the state of private provision of rented homes. The Jas Athwal case, exceptional only because it concerns a Labour MP, is similarly emblematic of a very deep seated problem that a future Renters Rights Act will utterly fail to address. Having access to a decent, affordable home is a human right, Being able to rent out a home is not.

    We should seek to get rid of accidental, hobbyist, private landlords and make sure that residential landlords (whether private or public) are institutional, in reality accountable and make the most of economies of scale.

    After all, until 2011, LAs rented out homes at (actually) affordable rents, with security of tenure, employing staff on decent terms an conditions and made a (small) profit. Between 2021 and 2026 private landlords will receive £70B (i.e, £70,000,000,000) in publicly funded HB and Housing Allowance towards their tenants’ rent liabilities (many of whom are in work). Who knows what the bill will be in the following five years?

    It must be obvious that we could get much, much more value out of that money if we really wanted to! (File under, “I wouldn’t start from here”.)

    Reply
    • Mr Chris Daniel

      On the ‘ Accidental Landlord ‘ issue, nearly 50% of landlords rent out a single property. This is usually derived from family inheritance and can include landlords with substantial salaries, to those on minimum wage, renting to supplement their finances ( maybe even Labour voters ! ) But what’s most telling, is that year after year, the largest independent Govt sponsored, English Housing survey shows circa 85% of Tenants as being satisfied !
      Such level of satisfaction is rare and can’t be found in most professions and certainly not local or national politicians.
      As the saying goes, be careful what you wish for.

      Reply
      • Giles Peaker

        i) This is a landlord with 15 properties. Not an ‘accidental landlord’. ii) There is no such thing as an accidental landlord. iii) There is such a thing as landlords who fail to acquaint themselves with their duties and obligations – they have no excuse. iv) Tenant satisfaction figures are neither here nor there (though that still means 600,000 unhappy PRS households in England. That is a lot, is it not?)

        Reply
        • Mr Chris Daniel

          There is no legal, or other acknowledged term for ‘Accidental landlord’ your correct Giles. The term is used to define a person who has come to rent out their property without that being the original intention of its purchase.
          Widely acknowledged examples are ; Single households who move out to live together with a partner, renting out their own home, or a person moving away for work for a period and renting out their property.

        • Giles Peaker

          See my points ii) and iii). It is a choice – granted sometimes a forced choice, particularly given the cladding situation, but still a choice. And it is incumbent upon people to find out what their responsibilities are. ‘Accidental landlord’ implies ‘oh it happened by chance and we didn’t know what was happening’. Sorry, no.

        • Tom Makem

          I raised the term “accidental landlord” not because I think Jas Athwal might be one, but because its existence as a term sheds light on the dominant cultural/popular/political attitude to the provision of homes in the private sector. Jas Athwal’s (fairly typical in my experience) failure to grasp the responsibilities of being a private landlord is of a one with that culture.

          I suspect that many private tenants reporting satisfaction to the annual English Housing Survey are just happy to have a roof over their head – a roof, by the way, which is twice as likely to be unfit as that of their owner occupier or social tenant neighbours (source Decent Homes data, (every annual) English Housing Survey).

          Its not that private landlords accidental or otherwise act in bad faith, it’s just that we have evolved a system (not necessarily by accident) that nudges landlords to exploit tenants and get away with it. We should stop that.

  9. AndrewM

    Another case for minimum standards and a license for let and let manage agents. This would eliminate all but the most “courageous” as Sir Humphrey would say, acting for those landlords. And for an entry on the license register for any agent appointed so that both are put on notice,

    Items one and two are arguable but the latter under the reasonable actions should have been picked up in a routine series of inspections.

    One can hope the the chief whip drags him in front of Mr Pennycook and told resolve it or face suspension.

    Reply

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