Consultations and ATRO replies

12 October 2007

 Response to the Law Commission consultation paper

Encouraging Responsible Letting

The Association of Tenancy Relations Officers (ATRO) represents local government officers across England and Wales who as part of their work role investigate allegations from private rented sector tenants of unlawful eviction and harassment. Members also seek to negotiate and mediate to resolve landlord and tenant disputes. The association’s members work in the front line of housing advice and enforcement services and have wide experience and knowledge of housing disputes. ATRO welcomes the opportunity to respond to the above consultation paper.  This response concentrates on the issues of unlawful eviction and harassment, which are the main concern of ATRO members. 

Response  The Commission and perhaps Central government appear to be of the opinion that Tenancy Relations Officers only engage in active enforcement and prosecution to the exclusion of methods of encouragement, education and evaluation. ATRO members are aware of and work to, the Enforcement Concordat. In recent years the number of formal prosecutions by Tenancy Relations Officers (TRO) (and Environmental Health Officers) has fallen as emphasis has changed. Both professions see their role as firstly educative and informative – and only lastly by enforcement and criminal prosecution, if encouragement fails.  Elsewhere in the paper the low level of prosecutions under the Protection From Eviction Act 1977 across the country is cited as a reason why perhaps a different approach is required to manage the private rented sector.  It is perhaps illogical to cite prosecution as being a disincentive to landlords engaging with local authorities and also to the low level of prosecutions as indicating that formal enforcement does not work. An analysis of the number of prosecutions is not an accurate figure of the work of TRO’s nor of the effect of the provisions of the Protection From Eviction Act 1977. Experience shows that many tenants are satisfied that intervention by and support from the TRO, such as being at the property at a time when the landlord was threatening to evict, has prevented an offence. Tenants often do not want to pursue a prosecution.  The interventions required following a report of a potential illegal eviction would include an immediate telephone call to the landlord or agent; attendance at the property; a faxed letter warning of a potential offence.  This will be followed by formal interviews under caution even if a case does not proceed to prosecution.  ATRO is currently in the process of launching a new protocol agreement with the police.  It is our experience that it is not uncommon for a tenant who seeks assistance from the police during a dispute with the landlord to be arrested for a breach of the peace or criminal damage thus allowing the landlord to gain access to the property.  Some police officers believe that the landlord/tenant dispute is purely a civil rather than a criminal matter.  TRO’s find that it is often only when they inform a landlord that an eviction may be a breach of the Protection from Eviction Act (PFEA) and is a criminal offence for which they may be sent to prison, that they begin to reflect on their intended actions. Members report that it is not only at the lower end of the private rented sector market that unlawful evictions and harassment occur. Examples from Newcastle City Council and Birmingham City Council show that prosecutions have been taken against landlords who were letting properties at what would be considered the upper end of the market. It is members experience that attempted unlawful activity by landlords occurs across all parts of the sector. This has been exacerbated by the increase in the prevalence of buy to let mortgages.  It is difficult under present arrangements to produce accurate national figures for incidences of harassment and unlawful eviction. Local Authorities could be given a duty of recording and reporting this information so that an accurate understanding of the problem can be reached.  During 2006/2007, Birmingham City Council recorded approximately 750 reported cases on unlawful eviction and harassment that required intervention by a TRO.   The point to be drawn from the figures available across England and Wales is that whilst, even with a fairly active, prosecuting TRO service, PFEA77 prosecutions are the tip of the iceberg, in terms of number of cases, the 1 -2 % that are prosecuted are vital to the effectiveness of the interventions in the other 99% of cases. The important point is that PFEA action is a crucial part of the toolkit in the more serious of cases.   ATRO’s experience is that putting unlawful eviction and harassment into the criminal sphere is itself a significant deterrent.  The prospect of getting a criminal record is a major deterrent for most landlords and the fact that formal procedures are involved, such as an interview under caution, give gravitas and importance to the issue.  Note, how in the governments current benefit fraud advertising campaign, the prospect of an interview under caution appears in itself as a deterrent.   It is highly unusual for the Police to want to get involved in PFEA offences in so far as actually taking a prosecution.  However, I do think the fact unlawful eviction and harassment is a criminal offence means that TRO’s probably get a better response form the Police at incidents than they would if there was no criminal offence.  ATRO believes that there is still a lot of work to be done with the Police especially in terms of the revamped powers of arrest but overall, there being an offence very much helps TROs and Police to work together. ATRO believes that there is an issue to be worked through in terms of sentencing.  It would be interesting to compare the level of mandatory compensation for non compliance with the Tenancy Deposit Scheme requirements (3xamount of deposit), say £1500 - £2000, with that typical in Magistrate Court for a PFEA offence involving loss of the home. In terms of numbers of prosecutions, funding and resources are a major issue; especially given that there hasn't been a lot of direct encouragement for local authorities to prosecute in recent years.  For local authorities to effectively prosecute it is likely that they will need to have officers in post with up to date knowledge of both housing security of tenure issues and enforcement procedures and for those officers to have the time and support to follow work through. Since the default tenancy has become an assured shorthold tenancy, tenants have had less security of tenure, which is a barrier to tenants exercising their right to complain about either harassment and unlawful eviction and disrepair. ATRO believes therefore that there is significant underreporting of the issues of unlawful eviction and harassment. The Citizens Advice Bureau research project (The Tenants Dilemma by Debbie Crew, 2007) has identified a significant link between tenants reporting disrepair and retaliatory ending of a tenancy either lawfully or unlawfully by a landlord.   ATRO members report that the existence and/or the detail in a tenancy contract does not always relate to the actual implementation of the contract by the landlord.  Furthermore, it is not uncommon that a tenant has not actually read or understood the nature of the agreement they have signed. It is also not uncommon for landlords to not understand their obligations under the tenancy agreement and to be uniformed of the legal process to follow in order to lawfully evict their tenant. These issues remain relevant to the concept of responsible lettings and consumer friendly lettings not withstanding that they are subject to other legislative proposals.  TRO’s regularly come into contact with landlords who use bona-fide contracts but then fail to abide by the contract terms. TRO’s also find a number of landlords or agents who have been previously advised on correct procedures for ending a tenancy or appropriate method of dispute resolution who repeatedly revert to previously advised incorrect procedures (e.g. 7 days or 28 day notices).   The Commissioners suggest that central regulatory oversight would be feasible if there were substantial organisations who were to act as a limited number of membership organisations.  Paragraph 7.63 of the paper also suggests that membership of an organisation would promote a compliance culture rather than compliant outcomes.  Furthermore, it is suggested that amateurism or inadvertence would also be replaced by membership of organisations.  There is no available evidence to suggest that there is any lack of either existing information services (see note 2 on page 68 of the main paper) or that individual landlords are necessarily amateur.  As has been indicated both large and top end of the market providers have been shown to be unwilling to change practice or procedure by Local Authority encouragement.  The limited scope of the mandatory licensing system has enabled the Authority to monitor landlords’ or agents’ practices.  As an example, in Newcastle a major participant agent has been successfully persuaded to alter their practice of gaining access to tenants’ homes without notice by using their own keys as a part of the review of their procedures.  The particular agent, whose principal officer holds a Law degree, had been advised many times in previous years that their practices were in breach of the covenant of quiet enjoyment.  However, the act on its own did not enable tenants to enforce their rights.  The new licensing regulations have now made that possible to do.  The particular agents describe themselves as being a professional body that are members of various national organisations concerned with lettings. The Commissioners have identified what they consider to be contradictory laws concerning harassment in paragraph 8.32 in connection with the Protection from Eviction Act 1977 and the Protection from Harassment Act 1997.  It is suggested that some rationalisation is needed to simplify and clarify their effect.  It is clear, however, that the 1997 Act that is enforced by the Police or by private civil claim, may be used by any person who is subject to harassment.  It is not intended to be used solely between landlord and tenant.  It was introduced as the new law to control stalkers.  To suggest that the two laws need clarification seems to be misguided. It is noted that the Office of Fair Trading has been able to suggest or recommend that some items in tenancy contracts may be unfair.  However, although some standard contract providers have revised their standard, the implementation of those contracts is still subject to legal proceedings. Some landlords’ use of computers and the cut and paste facility shows that although they may use a standard form as a base, it is copied and amended.  It is not uncommon to find that legal minimum periods of notice and removal are substituted for less advantageous terms.  Tenants are often surprised to find out that they have the right to challenge what they have been told by a landlord. Encouraging compliance can only be part of the strategies in the sector rather than the main method of seeking to improve standards. New procedures must complement and be in addition to existing systems. It is naïve to assume that self-regulation would raise standards in itself. It could however bring the benefit of allowing regulatory resources to be directed towards the less responsible landlords. However it is also member’s experience that some landlords who are members of known landlords associations do not act responsibly. Therefore reliance on such membership cannot be used exclusively to promote responsible renting.

Conclusions The regulatory performance of local authorities should be reviewed after a suitable period to allow a proper review of how the provisions of the Housing Act 2004 have been implemented. It is submitted that no regulatory changes should be made until such a review has taken place. An amendment to the Protection from Eviction Act could be introduced to make it a duty of a Local Authority to create a Tenancy Relations Service and further to create a duty rather than a power to investigate and also intervene to prevent offences under the Act. Local Authorities could be given a duty of recording and reporting information concerning reports of unlawful eviction and harassment so that an accurate understanding of the problem can be reached.  ATRO would suggest that there is a return to the assured tenancy being the default tenancy in the private rented sector. This would allow greater security of tenure and as well as benefiting landlords through more stable occupation. Private renting however cannot be seen as a profession in the same way that an electrician or a surveyor is considered a profession.  A person may become a landlord by purchasing or inheriting a single property. That person may immediately seek advice from their solicitor; be directed to the local authority and the HSE and follow the advice given. There is no correlation between being a member of a trade association and following legal advice or guidance that a person is given.   It is submitted that there is no indication or evidence that enforced self-regulation could effectively work, either based on a willingness of the industry to implement a system nor that landlords would voluntarily pay sufficient fees to run the system.  Furthermore, there is no evidence to suggest that a national regulator administered by the Office of Fair Trading would have sufficient resources to police a system that Local Authorities have been challenged to implement currently. For all the reasons set out above, ATRO does not believe that the option of enhanced self regulation is likely to sufficiently act as a mechanism to improve both physical and management standards in the private rental sector.  The combination of current practice of the enforcement bodies providing information and advice and encouraging improvements along with voluntary accreditation, in the absence of a full mandatory licensing system is considered to be best able to contribute towards improved standards.  

Submitted by Andrew Greathead, Secretary, For the Association of Tenancy Relations Officers

 28 September 2007

 Response to the Law Commission consultation paper

Housing: Proportional Dispute Resolution  -the role of tribunals

Response to consultation paper from the Association of Tenancy Relations Officers

The Association of Tenancy Relations Officers (ATRO) represents local government officers across England and Wales who as part of their work role investigate allegations from private rented sector tenants of unlawful eviction and harassment. Members also seek to negotiate and mediate to resolve landlord and tenant disputes. The association’s members work in the front line of housing advice and enforcement services and have wide experience and knowledge of housing disputes. 

Question 1.11

Question 1.13

Question 1.14

Question 1.15

Question 1.16

Question 1.17

Question 1.18

Question 1.19

Question 1.20

Question 1.23

ATRO’s members are mainly involved with the investigation and prosecution of criminal offences under the Protection From Eviction Act 1977 i.e. unlawful eviction and harassment. ATRO believes that these prosecutions should still be heard in the Magistrates and/or Crown Courts. The deterrent effect of a potential prison service, community service or fine is an essential part of our member’s toolkit for preventing unlawful eviction and harassment. ATRO will develop these comments further in our response to the Law Commissions consultation paper “Encouraging Responsible Renting” ATRO would suggest that the following cases are transferred: Possession claimsHousing disrepair claimsPre-tribunal decisionsSuccession rightsDemotions of tenancies in ASB; tribunal should be able to refer cases to magistrate courts for later.HB appealsHomelessness cases.Caravan and mobile homes. 

Question 1.24 In relation to criminal jurisdiction, please see our comments in 1.23 above

 Question 1.25 ATRO agrees that there should be an appeal on all cases on a point of law as in currently the case in county courts. Appeal should be with permission from the First Tier Tribunal The structure for appeals should be straightforward under the Tribunals and Upper Tribunals. 

Question 1.26

Question 1.27

Question 1.28

Question 1.29

Question 1.30

Question 1.31

Question 1.32

Question 1.33

Question 1.34

 ATRO would agree with all three questions. Technology must be made use of wherever possible.   

  Question 1.35 ATRO believes that advice given by tribunal staff should be restricted to procedure and should not touch on the substance of the case.A properly resourced duty desk at tribunals must provide independent advice. The county court duty scheme has proven its worth and is an invaluable asset to the court and to appellants and defendants and the Law College’s rep scheme at the LVT is well regarded.A consortium of willing local advice agencies with representatives who are trained and accredited to deliver this service best staffs representation schemes. 

Question 1.36

 There should be no formal bar to the use of legal representation.

Question 1.37 The current system of Legal Aid should be available

Question 1.38 There should be restrictions on lay people representing landlords whether in the private or public sector. There is no reason to treat landlords any differently from tenants. We believe that proper training in procedures and processes as for the duty desk and accreditation of representatives will serve the purpose of keeping professional standards.  

Question 1.39

Question 1.40

Question 1.43

Question 1.44

Question 1.45

We agree that tribunals could issue a warrant of possession. The tribunal should be allowed to decide how many times a warrant could be suspended.      

10/2/03 Tenancy Deposits
The ODPM is consulting on options for tenancy deposits.

Click here to see our draft response - any comments to Kathryn Greig by email please by 14 February.

18/7/02

ATRO response to Law Commission consultation paper 'Renting Homes - Status & Security'

(written by Kathryn Greig)

1. I have been asked to formulate the response to the consultation paper on behalf of the Association of Tenancy Relations Officers (ATRO) which is the national body representing local government officers who deal with the landlord and tenant relationship in the private rented sector.

2. Local authorities have the power, not the duty, to prosecute under the Protection from Eviction Act and the Landlord & Tenant Acts. Because of this, enforcement has been extremely patchy around the country. Knowledge of local authority powers is also patchy. It is interesting, however, to note the increased interest in private sector housing issues in areas which historically have had a large social rented sector often linked to issues around perceived housing benefit fraud anti social behaviour.

3. ATRO welcomes the review of housing law, which is currently so complex. We also see this review as a major opportunity for reminding/strengthening the local authority strategic role in the private rented sector, and for advertising these powers more widely among the general population.

Principles
4. As far as the four principles are concerned, we remain concerned that no fundamental changes are proposed to the current limited security experienced by most private sector tenants, and that the assured shorthold scheme is the model proposed for new tenancies. Although there are many private sector tenants who only want accommodation for a few months or years, current homelessness legislation acknowledges the need for families with children for long term accommodation.

5. However, unless social housing is considerably expanded, there will remain large numbers of people requiring long term housing whose only option is the private rented sector. Conspicuous among these will be non-priority adults on low incomes.

6. At present, with the limited security given by the assured shorthold regime, landlords have less cause to resort to harassment and unlawful eviction when they desire vacant possession. Similarly, when tenants have such limited rights to defend, they are reluctant to take action. However, with the increasing transfer of social housing out of local authority control, it may be that local authorities should expand their private sector enforcement activities so that the RSL sector is adequately policed.

The scheme
7. As above, we feel that there needs to be some mechanism to encourage private sector landlords to offer Type I agreements. We support the view that the decision on repossession in these cases should lie with the courts, but perhaps there could be a simplification of the process which would make it easier for the smaller landlord to prove their case on breach of tenancy agreement and rent arrears grounds.

The agreement
8. We agree with the proposed statutory form of agreement, divided into 3 sections. We are concerned that these statutory agreements must be easily available and also must be the only agreements used. In order to encourage compliance, They should generally be provided free of charge. There will need to be a major initial and continuing information campaign. This might also be the opportunity to really expand the availability of advice services for landlords and tenants and strengthening the duty on local authorities to respond to the needs of residents in and providers of private rented accommodation.

9. We do not see the need for separate fixed term and periodic Type II agreements. With the proposed 3 sections, section B would be common to all tenancies: section A would give the specific property-related information and could also be used to indicate whether a letting is to be fixed term or periodic. We would like to retain a moratorium on possession action on Type II grounds, and would suggest a 12 month period.

10. We would like to see specific provision for rent review (possibly annual) the statutory agreement. In order to avoid excessive charges, we would suggest that a statutory form of agreement be included as part of the tenancy agreement documentation. We would like to see provision for referral to the RAC or similar for determination of a market rent where the parties were unable to agree. This procedure might also be used for other proposed variations.

11. We do not see the need for the production of a complete new agreement if there is a variation. Perhaps occupiers could be provided with an up-dated Part A or Part C depending on where the variation arose. Any requirement for replacement of the agreement could give landlords and/or agents an excuse for levying disproportionate charges.

12. We would also like a statutory requirement that an inventory/condition report be included in the agreement.

13. We welcome the proposals that the landlord be required to keep a full and understandable record of all rent payments, and that failure to keep such a record would be understood to mean that all rental liability had been met. We do not see that there should be any exception for payments by direct debit or standing order.

14. We are pleased that the archaic and patchily enforced requirement that tenancy agreements be stamped is to be discontinued.

Enforcement
15. We feel strongly that agreements should be provided before the occupancy begins.

16. No rent would be lawfully due unless/until an agreement was provided up to a certain limit, possibly two months. Where no agreement has been provided, the default provisions would apply and either party could apply to an appropriate body for determination of the Part A terms.

17. Failure to supply statutory agreements should be a criminal offence, and the local authority would have a duty to investigate and prosecute where it was in the public interest. In order to avoid confusion over whether an offence was summary or not, it should be made a continuing offence. The maximum fine should be at least £5,000.

18. We are somewhat concerned at the retaliation that could arise against occupiers who refused to pay rent, so would suggest that following appropriate intervention, any rent already paid could be set against future rent liability. If court action was taken, including criminal action, there should be a power to award the refunding of any rent paid in addition to any punishment.

19. Ultimately, we would like to see greater professionalism on the part of both landlords and their agents. The level of ignorance regularly demonstrated is frightening, and there is no easy way to find either private tenants or their landlords unless housing benefit is being claimed. Accreditation schemes are working in some areas, but there are problems in persuading landlords to join up where there is high demand for rented property. If licencing or registration became compulsory, it would go a long way towards achieving this professionalism and as a result improving the standard of private rented accommodation, which is generally held to include the worst of the housing stock.

20. One possible way of encouraging compliance with the new regime might be through the local authority grant regime for repairs and improvements to private sector housing. Perhaps this might be further considered under the umbrella of the next consultation paper.

Notice provisions
21. We see no reason why occupiers (and landlords) should not be legally required to confirm their intentions towards the end of a fixed term agreement.

22. The Commission has proposed a possible increase to three months notice for applications for automatic possession when there is no defence. The initial reaction might be to sympathise with this. However, residents who acted immediately on the notice would not be able to secure alternative accommodation without a considerable period of double rent. Tenants who waited until the end would have an extended period of uncertainty. Those who might be eligible for local authority assistance because of vulnerability would particularly suffer. We therefore feel that as long as there is a moratorium on repossession on the type ll ground of at least six but preferably twelve months, there is no need for a longer period of notice.

23. If necessary, most landlords could surely be persuaded to allow further time before commencing possession proceedings. And then perhaps the place for a statutory extended time limit could be in deferring the date for possession where the tenant could demonstrate serious efforts at finding alternative accommodation and had been unable to negotiate with the landlord.

24. We agree with the "use it or lose it" approach to landlords' notices, and would suggest that notices could have a life of 6 months. We are aware that there is some precedent for using a one year notice, but we feel this again creates an excessive period of uncertainty for the resident.

25. The current system of varying lengths of notice depending upon the reason for requiring possession is confusing, especially seeing as there is a requirement on periodic tenants to give notice which again is of a different length.

26. We would therefore propose that as long as the moratorium either remains or is extended, all notices, from landlords or tenants, be of 4 weeks or a calendar month, depending on the rental period, with the exception of the type ll notice which should remain at two months as with the current assured shorthold ground. Most people do understand that notice should fit with a rental period, but this could be more broadly drafted than at present where disputes about last day or rent day only provide scope for further confusion and distress. Perhaps a statutory notice form could be included in part B of the tenancy agreement, for completion as appropriate.

27. We would also like to see a defence to possession proceedings where it appears that any notice or legal action is in retaliation to the resident exercising their statutory rights. Alternatively, there could be a right of application to a revised Rent Assessment Panel or similar for the deferment of a notice to quit if the application was made before the notice expired.

Exclusions
28. We agree that the categories of occupier to be excluded from the current proposals should be kept to the absolute minimum.

29. We would suggest that people sharing with their landlords, and accommodation with a high level of support/personal service should be the principal exclusions. We see no justification for excluded residents in educational establishments, or the Crown Estates, although we would assume that they might wish to use Type II agreements.

30. We believe that most temporary accommodation, including that for homeless families and asylum seekers, could also come under type II tenancies.

31. We believe that due process should apply to all occupancies included in the scheme, without exception. We believe that repudiatory eviction should be a defence to possession proceedings in type II tenancies. We believe that the court should have the discretion to defer possession where the occupier can show a real chance of obtaining alternative accommodation within a reasonable time.

32. We believe, however, that which ever court or tribunal hears possession actions, the system needs to be drastically speeded up.

Abandonment
33. The Protection from Eviction Act provides a landlord with a statutory defence that s/he "believed, and had reasonable cause to believe, that the residential occupier had ceased to reside in the premises". We feel that this phrase more than adequately protects the honest landlord from criminal action where an honest mistake has been made a and see no reason for anything further. Attempting to draft something more specific, or to insert statutory time scales for notices, etc, would increase opportunities for litigation.

Anti Social Behaviour by Residents
34. We believe the anti social behaviour provisions and grounds for possession should apply to the private sector as well as the public sector. However, many landlords would not have the resources to deal effectively with anti social residents. We therefore propose that the landlord have a duty to report problem residents to the local authority, and that the local authority have a duty to investigate and take action where appropriate.

35. We would also like to propose that local authorities have a duty to maintain a public register of residents evicted for anti social behaviour.

Landlord convictions
36. Similarly, the local authority should maintain a public register of landlords convicted of offences under any new legislation, the Protection from Eviction Act 1977, Housing Act 1985 and Environmental Protection Act 1990.

Specialist courts/tribunals
37. This seems an ideal opportunity to explore the possibility of dedicated housing courts or tribunals. We understand that the Law Commission is already examining the role of the Rent Assessment Panels. Currently the Independent Housing Ombudsman has a role in the pilot schemes on deposits. In other Commonwealth countries, deposit schemes generate sufficient revenue to provide advice and dispute resolution services for the rented home sector, and this should be actively explored. Of particular interest is the fact that these dispute resolution services seem to be able to act very quickly. Housing is essential, and anything that interferes with someone's housing and their quiet enjoyment of it needs to dealt with speedily - something the courts do not do, and that the RAC/LVT has not to date been able to achieve, although the Independent Housing Option does act quickly.

Deposits
38. We are aware that among other things, the next paper will look at the question of deposits. We note that the civil servant in the ODPM who has been dealing with the pilot schemes has now left the department, and wonder if it would be appropriate for the Law Commission to take over his role as well.

Conclusion
39. We reiterate our overall welcome for this review. While regretting that the consultation period is so brief, we acknowledge the need to proceed according to the Parliamentary timetable. We look forward to the seeing the results of this consultation and participating when the other papers are produced.