Government to act on Right to Rent
- Published: Thursday 19 March, 2020
- Updated: Tuesday 05 May, 2020
- By: Nicola Eaton
On 1st March 2020, the High Court ruled that Right to Rent checks breached human rights. However, on 21st April 2020, the Court of Appeal overturned this ruling.
Lord Justice’s Davis, Henderson and Hickinbottom, presided.
Whilst the outcome reached fell in support of the Home Office, it was acknowledged by the three judges that the Right to Rent scheme had led to discrimination amongst landlords.
A charity called the Joint Council for the Welfare of Immigrants (JCWI), presented findings during the proceedings which showed that prospective tenants with “no ethnically British attributes” and no British passport, are discriminated against by nearly half of landlords.
However, Lord Justice Davis vehemently disagreed that the Right to Rent scheme itself was responsible for the discrimination:
“Essential to these proceedings is the proposition that the scheme itself has caused and is responsible for the asserted discrimination.
“I simply cannot and will not accept that. The whole essence of the scheme – by the primary legislation, by the code, by the available guidance, by the applicability of the discrimination provisions and remedies available under the Equality Act 2010 and so on – is precisely to contrary effect.
“Thus so far from encouraging or incentivising discrimination, as is asserted, it seeks to do the opposite.”
Chris Philp, Under-Secretary of State for Immigration Compliance and the Courts, issued a written statement in response to the findings in the High Court. He acknowledged the criticism around discrimination resulting from Right to Rent:
“The Right to Rent Scheme forms an important part of our immigration policy. However, as my Rt hon Friend, the Home Secretary said in this House, we are carefully reviewing and reflecting on the recommendations in the Lessons Learned Review report, including those relating to the compliant environment. We will bring forward a detailed formal response in the next six months”
In his statement, Philp asserted that the checks were ‘straightforward’ to conduct and that the process had been adjusted for the circumstances of Coronavirus, with scanned documents now acceptable in place of originals.
Mr Philp also underlined that the Right to Rent Scheme was not intended to result in discrimination:
“We have always been absolutely clear that discriminatory treatment on the part of anyone carrying out these checks is unlawful. Furthermore, the Right to Rent legislation provides for Codes of Practice which sets out what landlords are expected to do and how they can avoid unlawful discrimination.”
Furthermore, Philp confirmed that a ‘full evaluation’ of the Right to Rent Scheme is underway, which includes ‘a call to evidence to tenants, landlords and letting agents; a large mystery shopping exercise; and surveys of landlords.’
Based on the six-month timeframe placed on the evaluation period, any further measures should be apparent by October 2020.
Six-month extension for safety certificates?
Data from the National Residential Landlords Association (NRLA) shows that 38% of landlords are facing difficulties in completing gas and electrical safety checks, leading to a call for certificate extensions.
38% of landlords can’t secure contractors to help them. A similar number of landlords cannot proceed with work because either the landlord or tenant is self-isolating as a result of the Coronavirus.
Tenants are also voicing concerns about letting third parties into their homes, given the social distancing guidance in force.
For this reason, the NRLA has proposed to the government to extend existing certificate expiry dates by 6 months, by which time it is hoped the risks around Covid-19 have reduced.
Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020
From 1st July 2020, these new regulations are due to come into force.
They require landlords in England to undertake new, routine checks on electrical installations on a regular basis - at intervals of no more than five years.
The NRLA is also calling on the government to delay the introduction of the legislation, as the necessary works would require electrical contractors to enter every room in a property in order to inspect the wiring.
Accessing every room in property clearly has implications given current health and safety guidance, and the time required to do the inspection is expected to be significant.
Chief executive for NRLA, Ben Beadle, acknowledged that whilst urgent work should proceed, steps to delay routine work was a logical step for the good of all involved:
“Whilst landlords should ensure that urgent work to ensure properties are safe for tenants is carried out, routine maintenance and checks need to be delayed to prevent the spread of coronavirus.
“Extending the life of gas and electrical safety certificates will protect landlords and tenants from unnecessary contact and provide landlords with legal protection from enforcement action where they are simply unable to get such work undertaken through no fault of their own.”
Call for evidence on impact of Covid-19 on PRS
The Housing, Communities and Local Government Committee (HCLG) is investigating the impact of Covid-19 on homelessness, rough sleeping and the private rental sector (PRS) and is calling for evidence to be submitted to them.
The investigation seeks to answer concerns about the short- and long-term impact of strategies put in place, to support people within these groups.
For those within the PRS, this means actions such as the 3 month ban on evictions and the increase of the Local Housing Allowance rate.
The fear is that, once support from these measures comes to an end, there may be significant fall-out.
By investigating this and seeking evidence from those directly impacted, the government hopes to plan and put in place further strategies to address arising issues.
Clive Betts MP, chair or the HCLG, said:
“It is vital that those in precarious living situations are supported by the Government. We must ensure that people without homes and those sleeping rough are protected during this health crisis. Equally, people cannot be forced to leave their homes at a time when finding a new place to live simply isn’t possible
“However, we must also look at what will happen a month from now and beyond. Where will those currently housed in hotels go when the Everyone In scheme expires? What happens in three months time [sic] when the eviction ban lapses for people who have no job and now owe three months [sic] rent?”
Three key questions that the investigation is seeking evidence for are:
- How effective has the support provided by MHCLG and other Government departments in addressing the impact of COVID-19 on those in the private rented sector, rough sleepers, and the homeless?
- What problems remain a current and immediate concern for these groups?
- What might be the immediate post-lockdown impacts for these groups, and what action is needed to help with these?
Evidence can be submitted, with a deadline of Friday 1st May 2020, online here.
London Mayor seeks triple-lock tenant protection
Sadiq Khan, Mayor of London is asking the government to go further with their support for tenants. He describes his plans as ‘triple-lock protection’.
The trident of proposals, suggested by Mr Khan, are as follows:
1. On welfare
- Increase welfare support for renters
- Suspend the benefit cap
- Restore the Local Housing Allowance (LHA) to median market rents
- Cover any private tenant rent payment shortfalls, where Covid-19 is the cause (including tenants with no access to public funds)
Achieve this by “setting aside LHA rates for those who are affected by coronavirus”.
2. On unpaid rent evictions
- Prevent evictions for unpaid rent, where Covid-19 was the cause, by making the Section 8 arrears ground for eviction discretionary in court proceedings.
3. On Section 21 evictions
- Scrap Section 21 evictions to ensure this route couldn’t be used in place of Section 8.
The mayor has suggested that these measures would protect 3 million private tenants based in the UK capital.
Section 21 is due to be scrapped by the government, but has not yet been withdrawn from legislation.
Speaking on his proposals, Mr Khan said:
“The government must urgently put in place measures that will prevent private landlords from evicting tenants who go into arrears as a result of COVID-19.
“Failing to bring in more support for renters will not only result in widespread financial hardship, but risks increasing the public health crisis, as renters may feel forced to return to work too soon with increasing debt and arrears hanging over their heads.”
Statistics from the National Residential Landlords Association (NRLA) suggest that the issue may only be affecting a small proportion of all tenants. Chief Executive of the NRLA, Ben Beadle shared the data:
“Recent polling has indicated that just two per cent of private tenants have had to stop paying rent due to the pandemic whilst 78 per cent have not had to make any changes to their living situation.”
He went on to urge the government to make changes to Universal Credit:
“In addition, we repeat our call on the Government to scrap the five-week wait for the first payment of Universal Credit immediately and ensure tenants can have the housing element of the Credit paid directly to their landlord if they wish.
“This would provide tenants and landlords with the confidence that rents are covered and debts will not arise.”
Covid-19 support for Welsh landlords and tenants
The Welsh government has published a comprehensive Covid-19 information for landlords and tenants, available via their website.
The overarching advice echoes wider advice on staying at home.
Welsh landlord health and safety obligations
Welsh landlords are reminded that they still have an obligation to their tenants throughout the crisis, where it comes to ensuring “properties are kept in good repair and free from hazards”. But, that non-urgent visits should be postponed examples given include:
- Property viewings
- Cleaning services
- Non-urgent repairs/maintenance (where there is no urgent health and safety issue)
Urgent visits to properties
Where landlords or contractors have to visit occupied tenant properties, for matters of urgency, it is recommended that tenant health be established, before the visit.
Whether the tenant has Coronavirus symptoms, or not, or is self-isolating will affect how to proceed, based on the latest Coronavirus health advice available via Gov.Wales.
Urgent visits are described using the following examples:
- Problems with the fabric of the building – e.g. leaking roof
- Broken boilers – e.g. where heating/hot water is unavailable
- Broken plumbing – e.g. where washing or toilet facilities are unavailable
- Broken white goods (where responsibility lies with the landlord) – e.g. washing machine
- Security-critical issues – e.g. broken external door or window
- Equipment for the differently-abled requires repair or replacement
Electrical and gas safety
Inspection and maintenance for gas and electrical safety is still a requirement, whilst following health and safety procedures relating to Covid-19. For more information on gas safety, visit these pages of the Gas Safe Register website on Covid-19 and HSE advice.
Properties of tenants hospitalised with Covid-19
If a tenant is hospitalised with Covid-19, landlords are advised to clean the property in line with current guidance.
Landlords having to self-isolate
Where landlords themselves are self-isolating, it is advised that tenants should be made aware of alternative arrangements for their care, should they require it.
Minimum Energy Efficiency Standards
The Welsh Government has issued guidance to local authorities in Wales that they do not expect them to enforce the minimum EPC rating of “E” for rental properties, whilst conducting other emergency work during the Coronavirus pandemic.
Overarching guidance for visiting properties includes that landlords should document attempts to access property including related correspondence with tenants, where access to property has not been possible.
Welsh Government information for Welsh landlords or landlords with property in Wales can be found here.
This information should not be interpreted as financial advice. Mortgage and loan rates are subject to change.