CLG Private Rented Sector Inquiry

Communities and Local Government Committee

Private Rented Sector Inquiry

 

Written evidence from:

Association of Tenancy Relations Officers (ATRO)

 

Executive Summary

ATRO submits that:

  • Harassment and illegal eviction is a significant aspect of rogue landlord behaviour.
  • Fear of harassment or eviction is a major barrier to tenants reporting property condition and licensing issues.
  • Insufficient attention has been given to ensuring that local authorities tackle serious harassment and illegal eviction effectively.
  • Local Authorities should have an unambiguous duty to consider the investigation and prosecution of cases of illegal eviction or harassment leading to the loss of the home.
  • The investigatory powers of officers investigating Protection from Eviction Act allegations should at least be brought into line with the powers of other Local Authority investigators.
  • Steps should be taken to bring more consistency to the sentencing of Protection from Eviction prosecutions.Introduction
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  1. The Association of Tenancy Relations Officers (ATRO) represents local government officers who have, as at least part of their duties, the investigation and prosecution of cases of unlawful eviction and harassment of private rented sector tenants. The duties of many members also include the provision of advice and information about the law to tenants and to landlords. The Association’s members work in the front line of housing advice and enforcement and have wide experience and knowledge of landlord – tenant problems.
  3. The expertise and focus of ATRO relates especially to the enforcement of the Protection from Eviction Act 1977, and it is especially with reference to that area of enforcement activity that this submission wishes to address the following points of the terms of reference:

Do local authorities have the powers and capacity required to enforce standards in the private rented sector and deal with ‘rogue landlords’?

What are the main obstacles to effective intervention in the private rented sector?

How effective are complaint mechanisms for tenants in the private rented sector?

Our submissions are relevant mainly to the first two questions above, which we would like to address together.

 

Do local authorities have the powers and capacity required to enforce standards in the private rented sector and deal with ‘rogue landlords’?

 

What are the main obstacles to effective intervention in the private rented sector?

 

    1. We believe that unlawful eviction, the threat of unlawful eviction, and harassment or intimidation from a landlord are amongst the very worst experiences that a private tenant can have, and we submit that putting tenants through this experience constitutes the worst kind of rogue landlord behaviour. As such, we believe that measures to deter this behaviour should play a key part in dealing with rogue landlords.
    3. Enforcement of the Protection from Eviction Act 1977 falls almost invariably to the Local Authority, rightly so in the view of ATRO. Whilst the police are sometimes called to attend extreme incidents of harassment, case law has established that Police Officers cannot be expected to have the knowledge to deal with the complex legal issues often involved in enforcing security of tenure issues (Cowan v Chief Constable of Avon and Somerset, CA, 2001) and in practice Police prosecutions have been extremely rare with the overwhelming majority of prosecutions being taken by Local Authorities. Local Authorities are often already dealing with other issues to do with bad management by the landlord, and with licensing schemes becoming more widespread, the local authority should in any event be taking account of serious breaches of landlord and tenant law in order to assess the fit and proper status of landlords for licensing purposes (Housing Act 2004, ss.66, 89). Property based issues are often entwined with harassment and illegal eviction issues.
    5. Whilst under reporting makes the extent of the problem difficult to measure, there is a good reason to think that the increase in the size of the private rented sector has at least been matched by a commensurate rise in the incidence of harassment and illegal eviction, especially given that more and more vulnerable tenants find themselves reliant on the private rented sector.
    7. Indeed there is evidence that the problem may have increased more than the growth of the sector would account for. On 8 July 2016, Citizens Advice reported a 47% increase nationally in the number of people asking for help after being threatened with illegal eviction and Gillian Guy, Chief executive of Citizens Advice said ‘Landlords who break the law shouldn’t be able to hide. It’s a crime to throw people out of their homes without a court order, but more and more people are coming to Citizens advice with this problem.’
  • On 26 September 2016 a survey of over 3,250 renters by Shelter and YouGov found (by extrapolation) that:

 

  • the equivalent of over 64,000 renters reported that a landlord has cut off their utilities without their consent
  • almost 50,000 said their belongings had been thrown out of their home and the locks changed
  • over 600,000 renters have had their home entered by a landlord without permission or notice being given
  • over 200,000 reported having been abused, threatened or harassed by a landlord.
  1. ATRO welcomes the introduction of Rent Repayment Orders for Protection from Eviction Act offences in April 2017, but we submit that the value they have, rests very much on effective enforcement by way of prosecution.
  3. ATRO’s experience is that some Local Authorities currently tackle harassment and illegal eviction robustly and effectively, but that there is a striking lack of consistency across authorities which cannot credibly be explained by local factors other than a lack of will, commitment or knowledge. Neither is it evident to ATRO that it is only the larger authorities who are willing and able to prosecute cases. In the last year we are aware of successful prosecutions by smaller authorities such as Stoke, Tendring and Telford, but equally that some of the larger authorities, have not prosecuted a case under the Protection from Eviction Act for some time.
  5. There is a strong argument that authorities are already under an obligation to tackle harassment and illegal eviction as a result of their licensing and homelessness prevention duties, but the lack of clarity as to whether a duty exists, often means that it is a problem that authorities find easier to side-line than areas of private sector enforcement work where the statutory obligation is less ambiguous. ATRO can see no reason why authorities should be more obliged to deal with a lower end of the range category one hazard, or HMO management breach, than a landlord suddenly, traumatically, and unlawfully evicting a tenant so that they are without any place to stay, and as a result of which, the tenant is likely to be exposed, we submit, to far more potential harm.
  7. ATRO’s view is that it is right that harassment and illegal eviction is an indictable offence as the criminal process sends a clear message, and for many landlords, the threat of a criminal record is in itself a significant deterrent. Indeed, in our experience engaging a suspected landlord in a criminal investigation, can itself, be a useful deterrent when this includes, for example, a formal interview under caution.
  9. It is our submission that, as things stand, the major barriers to effective deterrence are:
  • lack of consistent enforcement
  • inadequate investigatory powers
  • lack of consistent deterrence in sentencing by Magistrates and Crown Courts.
  1. Protection from Eviction Act investigations and prosecutions are quite different from more, purely regulatory, private rented sector offences, in that in terms of evidence, some allegations can be challenging to investigate. However, ATRO believes that the best way to ensure that private tenants are treated fairly and consistently across the country, is for there to be a clear statutory obligation upon Local Authorities to consider investigation and prosecution wherever there is good reason to suspect that an offence may have taken place. These considerations, it is submitted should be focused on the strength of the prima facie evidence, and the extent of the public interest in any successful prosecution with regard to deterrence and the protection of tenants.
  3. Whilst a modest level of extra resource will be required to assist authorities with these duties, the cost, we submit is mitigated to a degree by factors such as: the savings from reduced emergency homelessness, the significant contribution to driving troublesome and resource demanding rogue landlords from the sector (especially once Banning Orders are introduced) and the money which can be recouped in costs from the court and Rent Repayment Orders.
  5. It should be noted that the Protection from Eviction Act makes harassment an offence only in so far as it causes loss of the home, or causes the tenant not to make a complaint or pursue a right. ATRO believes that this is the right threshold at which the Local Authority should have enforcement involvement.
  7. In relation to investigatory powers, ATRO members are frustrated that Local Authority Officers charged with investigating Protection from Eviction Act offences do not have the same powers as officers investigating health and safety and licensing offences, such as those in Housing Act 2004 s.235-7, that is, the right to require documents to be produced and the right to use Council Tax and Benefit information. Similarly, it was disappointing that the provision introduced by the Housing and Planning Act 2016, for Local authorities to be entitled to access data from authorised Tenancy Deposit Schemes, was limited to matters relating to Housing Act 2004 contraventions, rather than including Protection from Eviction Act investigations.
  8. ATRO submits that clearer sentencing guidelines are needed for the courts in relation to Protection from Eviction Act offences, perhaps along the same lines as for the Protection from Harassment Act. We have recently seen some very good sentences in both Magistrates Court and the Crown Court and these are excellent in sending a clear message to rogue landlords, but we know from our detailed knowledge of the cases we prosecute, that there is also significant and unjust inconsistency in sentencing for Protection from Eviction Act offences which do not reflect the consequences for the victim of the loss of their home. Similarly, whilst our members have seen some improvement in the award of costs for prosecutions generally, we would like clearer direction to the Courts that cash strapped LAs need to be awarded the full costs of their investigations.

 

How effective are complaint mechanisms for tenants in the private rented sector?

  1. In the experience of ATRO members, fear of retaliatory eviction (lawful and unlawful) remains a significant factor in deterring tenants from making complaints about the standard and safety of their homes.

 

  1. The attempt in the Deregulation Act 2015 to prevent landlords from evicting complaining tenants was certainly a step in the right direction, but unfortunately, the wording of section 33 of the Act leaves the legislation significantly flawed, and may actually give tenants a false sense of security. The main area of vulnerability for the tenant is the time between raising any kind of complaint with the landlord and the Local Authority serving the landlord a relevant notice. Section 33(2) of the Deregulation Act seeks to deal with this, but there are a number of scenarios still in which the tenant appears to be left without protection including where they approach the Local Authority without putting a complaint in writing to the landlord, and there is lack of clarity where the tenant complains to the Local Authority within 14 days of writing to the landlord, and where the landlord responds positively to the complaint, but still does not do work to rectify the matter complained of. In these situations, the wording of section 33 leaves the tenant vulnerable, especially between the time of making the complaint to the Local Authority and any relevant Notice being served by the Local Authority on the landlord.

 

  1. Additionally of course, there is no protection for the tenant where no relevant notice is served by the Local Authority at all, which is often because the landlord does the work after contact from the Local Authority, but before the service of relevant notice (in our experience landlords still ‘retaliate’ in these circumstances).

 

  1. ATRO believes that greater security of tenure for private tenants may be required to provide tenants with the degree of confidence they require to take issues up with their landlord more consistently and would ask that:
  • loopholes in the Deregulation Act are closed at the next legislative opportunity
  • the effects of the recent change in law in Scotland in relation to security of tenure are monitored closely

 

  1. In relation to harassment and illegal eviction, ATRO submits that inconsistent enforcement is likely to deter tenants from complaining to their local authority and lead to significant under reporting of issues to Local Authorities, with less reports likely where there is a perception that the Local Authority does not act on, or even record, such reports.

 

  1. Equally, where tenants do not feel protected from harassment and illegal eviction, there is a very significant deterrent to reporting health and safety and licensing issues to the Local Authority. The Protection from Eviction Act specifically makes it an offence for a landlord or agent to use harassment to deter tenants from reporting problems. ATRO members work very closely with colleagues who enforce property standards in the private rented sector and we submit that fostering greater confidence in the likelihood of the Local Authority tackling harassment and illegal eviction, will increase the likelihood of private tenants reporting health and safety, and property condition issues.