A couple of years back the government announced to a fanfare of welcome from rogue landlord enforcement teams everywhere, plans to introduce a database of offenders and a set of specific offences that would see the little tykes banned and placed on the list.
A long time coming
This notion has been doing the rounds for years and a range of organisations had sought to get something similar off the ground, I attended several steering group committees in different projects to give my two pennies on it.
The problems in practice
These, as all acknowledged was:-
- Who would host it?
- Who would populate it?
- What would see a landlord or agent placed on it?
- For how long?
- What could they do to challenge it?
- Who would have access to it?
Probably a couple of other issues too but as you can see, as is the case with all good ideas, the basic idea of having a list of bad apples is only simple at inception stage. Making it work is quite another.
Government backing and delays
Once government nailed their colours to the mast back in 2015 things started moving forward for a national database.
I sat on the consultation panel at the Home Office and we worked through the big questions of who would host and populate it, and who would have access to it.
But other issues remained – what kinds of offences would see a landlord or agent placed on it?
Banning order list now online
A list of banning order offences was to be brought out in early 2017, then it got put back to October, then put back again to April 2018 but finally the list of banning order offences is out. But this time to a more muted fanfare amongst enforcement types. I’ll tell you why in a minute.
The list is long
The list is longer than I was expecting. Given my job, I was pleased to see offences on the harassment and illegal eviction side of things.
But there are also offences where landlords let to illegal immigrants and offences under the Fraud Act, the Misuse of Drugs Act, the Proceeds of Crime Act plus blackmail, burglary, stalking and even:-
“Prohibition of certain offences relating to Opium”.
Gas safety breaches are also in the mix, as are offences committed by company officers.
Quite a toolbox I’m sure you will agree.
So why the more reserved fanfare?
It’s in this passage from the Act’s explanatory notes:-
“Section 15 of the Act confers power on local housing authorities in England to apply to the First-tier Tribunal for a banning order against a person who has been convicted of a banning order offence”.
The landlord or agent has to be convicted first.
There are more effective ways
Whilst it is a decent safety net that only those already convicted in a criminal court will end up on the database, it does add an extra layer of procedure at a time when, most council enforcement types are looking at civil penalties and Rent Repayment Orders as the more effective way forward, where the perpetrator doesn’t have to be convicted in a criminal court before action can be taken.
These tools were given to enforcement teams at the same time that the database and banning orders were first touted in 2015 but the world has moved on in the past 2 years.
Money drives rogue landlords and agents
With rogue landlords and agents, it’s all about the money, period. If they can make more money by renting dangerous, overcrowded properties and harassing and illegally evicting tenants when they complain or bring the council to their door then they will do it.
Talking from experience
I have been criticised even by other TROs for not being enthusiastic about prosecutions brought under the Protection from Eviction Act, but it’s not that I don’t see the point of prosecuting, far from it.
I am zealously enthusiastic in fact but I just see the PFEA as one of the least effective legislative tools to deal with rogue landlords, when there are alternative routes that will cost the landlord or agent more money, which is the real penalty to them.
Personally, I don’t think that councils use Interim Management Orders anywhere near enough and the use of ‘Works In Default‘ machinery to rectify disrepair and charge the landlord is virtually unknown, which is an insane wasted opportunity.
Civil and criminal prosecutions
Civil and criminal prosecutions at the same time have always been available but from a local authority point of view the criminal route was always the main one until Rent Repayment Orders were expanded and the civil penalties brought in – and it is these new options that are changing the thinking of enforcement officers.
On the positive side of things
Civil penalties and RROS are faster, they aren’t hide-bound by the Regulation of Investigatory Powers Act, the tenants get compensation or even 12 months rent returned, the council gets to keep the penalty and the rogue landlord or agents gets a serious financial headache.
However…
Yes criminal prosecutions will still happen and thanks to these new banning orders the perpetrators will be entered on to the database, but I don’t think it will be the main point of focus that it was expected to be, and I am all too familiar with the tendency of rogue landlords and agents to use alias’s fake companies and a variety of smokescreens to hide their identities, once brought to book.
In reality
In fact, about 30% of my time spent on any case is in tracking names, companies, addresses, and aliases just to find out who the real landlord is and where they can actually be found.
So whilst I wave a flag in welcome of the new banning order offences, it is a smaller and less colourful flag than it would have been 2 years ago. Perhaps more of a pennant. The colleagues I have spoken to this morning feel the same way.
PostScript
In advance of any comments that may appear in response, please be clear that normal Landlord Law Blog readers won’t ever encounter civil or criminal penalties. You really have to go some to be on the wrong end.
These new offences, RROS and civil penalties have been brought in to help enforcement teams tackle rogue operators, who occupy a world far removed from the vast majority of normal landlords just going about their business.
Nobody will ever end up on a database or subject to an RRO by accident, none of these sanctions is like handing out a parking ticket.
Both Section 15 and Section 16 of the Housing and Planning Act do indeed state that the First-Tier Tribunal may only make a banning order after a conviction.
That’s eminently reasonable.
That it is eminently reasonable is not my point Romain, as I freely acknowledge in the piece, it provides a safety net and I am not anti the data base either, I’m all for it…..as one tool among others.
My point was, having spoken to other enforcement colleagues when the banning order offences were published earlier this week, that our beady little eyes are becoming more focussed on RROs and penalties these days, as swifter and more effective sanctions.
Being a rogue landlord is all about the money, so for sanctions to be effective they too need to be about the money and being forced to pay back 12 months rent or housing benefit under an RRO also has the added bonus of being poetic justice.
I’ve been prosecuting cases of harassment and illegal eviction under the PFEA for just under 28 years now, only to watch violent thugs walk away with fines of a few hundred pounds. There are better ways to work and better deterrents.
Still, one of the good things about these rules is if you have someone who is a convicted criminal (say for violence or receiving stolen goods or a drugs offence) the Local Authority will be able to apply for a banning order on that alone.
They won’t (presumably) have to wait for him to commit a housing-related offence as well.
Yeah it doesnt have to be the council that prosecutes but it will rely on a close relationship between the local authority and the police and those things arent always smooth. It takes a concentrated effort to build links and to be honest most councils are pretty sh*t on that front, it takes a big picture approach.
It would take more than lifting articles from local papers and not all council officers think outside the box and make the connection between say a Heroin conviction and the database possibilities.
Its a mindset approach as much as a procedural one. That will take time but its what I do now I work across different boroughs
I suppose it will be largely down to enforcement. Can you just go in and close it down and change the locks? What are your powers?
Well there’s two points there, the first is whether or not the police will share conviction information and the second is about council powers.
On the first I dont know of a single database where you can get Police conviction info. If anybody does know then seriously, I would genuinely love to know, bearing in mind that we would be looking for banning order offences only.
In reality I have been given information by police on occasion that probably wouldnt pass data protection muster but its not guaranteed.
I once had summonses ready to go on a letting agent who threatened a woman and her kids with a gun who the police were prosecuting for rape. I couldn’t find him anywhere, despite numerous trips around London on my motorbike but a detective slipped me his real address, otherwise I would never have found him. (This was before RIPA came in) It’s a different legal landscape nowadays.
On your second point the only legal machinery that allows a council to take over a property is interim and Final Management orders, which allows a local authority to take over but the conditions for doing so are very prescriptive and given that these new banning order offences are hot off the press we would all need to sit down and see if they would trigger the council’s powers.
For instance there are health and safety issues which can trigger and I notice that there are certain issues in the banning order list but all this will need to be tested. I wouldnt want to speculate at this stage
I think it’s also important to note that a local authority has the power to add a rogue to the database if they have been convicted of a banning order offence (so a banning order itself is not essential for database inclusion), or has received 2 civil penalties for banning order offences.
You make a good point. Criminal landlords do what they do for the money & there needs to be a real and credible likelihood of them being caught & penalised to disincentivise them. Appearing on a naughty list isn’t likely to have a huge effect on their behaviour as they routinely operate outside the law. Hitting them hard in the pocket will have a much greater effect assuming you could wrangle the money out of them…at least they have an asset to go after (unlike most rogue tenants).
That’s right Steve. Councils are under a ‘Duty’ to place offenders on a database where a criminal conviction has been secured and the ‘Power’ to do so where 2 penalties have been received within the previous 12 months but my point again is not one of legislation but simply that the conversations between myself and my fellow enforcement officers indicates that our focus is on RROS and penalties.
And the Elephant in the room should also be noted that although the banning order offences have been issued there is still no database as yet to put people on. An invitation to tender for the contract would have to be issued, the selection process completed and then the design of the thing will have to happen. I don’t know how close we are to this at the moment but I doubt it is anywhere near immanent, unless anyone has any updates.
While the world waits with baited breath I and my colleagues will be concentrating on making rogue landlords pay financially, which is the only sanction they care about.
@Kate, yes thats right. For many rogue landlords a database amounts to no more than a naughty list, as does a criminal offence. The ordinary landlord would be horrified to know their name was on a database of dodgy old lags and most normal individuals would be horrified to know they had a criminal offence but this is 21st Century rogue landlords we are talking about here.
When I began this nonsense in 1990 the average rogue was a dodgy geezer down the Old Kent Rd called Ron. Now I’m dealing with people traffickers, Eastern European and Triad gangs, brothels, cannabis farms, 10 people in a 3 bed house, which constitutes 90% of my cases these days.
They know they are breaking the law and they dont care. When you damage them financially you are having an effect.
I’m sure this will be a good thing, but I’m more concerned (thro personal experience) as to why there is not a ‘Rogue Tenants’ database, particularly within each Council for Housing Benefit tenants. I tried to help the housing crisis situation by taking in HB tenants last year, got my fingers burned extremely badly by a whole family of ‘conmen’ and yet they are free to simply move on to the next poor unsuspecting/good hearted landlord trying to do their bit for mankind in the UK without so much as losing a penny or turning a hair. This surely cannot be fair or just?
Of course a rogue landlords database is not going to be very effective, other than as a way for politicians to be seen to be doing something.
And of course the vital principal of innocent until proven guilty must apply to putting names on the list. Though mine will almost certainly appear being so common, so there must be more than just a name.
There are databases of tenants – http://www.landlordreferencing.co.uk/ and TenantID from http://www.callcredit.co.uk/ . The governments suggestion of getting tenant payment histories made available to credit agencies would help.
‘And of course the vital principal of innocent until proven guilty must apply to putting names on the list’
Well, yes by definition this will apply to the landlord database since the only names on the list will be those convicted of the specified criminal offences or having had two or more civil penalties for banning order offences.
Does the same apply to the tenants database’s you’ve mentioned (i.e. that all the tenants named have been convicted of criminal offences such as fraud, misuse of drugs, violent or sexual assault)?
Could be worse Peter. I once dealt with a landlord called Mustafa Mustafa, man doesnt stand a chance haha
I was recently detained at the border in Calais for half an hour, initially without explanation, because someone with my name and date of birth was wanted by the police. It took half an hour to determine that the wanted individual had a different passport number. Guilty until proven innocent, I missed my boat and was given no apology save the explanation that they were only doing their job.
@Annabelle, Bryan has a valid procedural point. The issue of a rogue tenant database comes up whenever the subject of a rogue landlord database does but it is not and can never be a simple emotive issue for either side .
Generalising the point, if a person defaults on anything or breaches a law then they can be brought to book but the process in UK law and many other countries is a strictly legal one. If it were otherwise then anyone could be sued by anybody else for whatever they like, without having to present an evidentially supportive account of the issue.
In PRS terms an enforcement officer could blacklist a landlord simply because they dont like them and a landlord could blacklist a tenant because they owe them rent, when in actual fact it might not have been proven and I dont mean to diss the personal experience you talk of. There are rogue tenants as well as landlords.
I once defended a possession case where the landlord accused the tenant of owing £2,000 in rent arrears but his accounting was so bad it was proven in court that she had actually overpaid by £900 which, even though he lost the case, the landlord refused to believe.
A rogue tenant database, if it were possible, should be subject to the same legal principals as a rogue landlord one.
The legal machinery is there to allow the landlord to secure a money judgement against a defaulting tenant.
That a landlord may choose not to do so, for practical reasons, which I well understand, is neither here nor there. A rogue tenant database would only fulfil basic legal principals if an accusation were proven either in court or, as is the case with the 2 landlord penalty notices, quoted directly from the legislation “the First-tier Tribunal will need to be satisfied beyond reasonable doubt that the landlord has committed the offence.”
Sounds like easy words but you have to then translate that to serious legal interpretations.
As I said above. The idea is easy but the implementation is not.