One of the lesser-known effects of the Housing and Planning Act 2016, alongside allowing tenants easier access to RROs, was to place upon local housing authorities a new duty and power. These are contained in s.48 and s.49, and provide, respectively:
48. Duty to consider applying for rent repayment orders
If a local housing authority becomes aware that a person has been convicted of an offence to which this Chapter applies in relation to housing in its area, the authority must consider applying for a rent repayment order.
49. Helping tenants apply for rent repayment orders
(1) A local housing authority in England may help a tenant to apply for a rent repayment order.
(2) A local housing authority may, for example, help the tenant to apply by conducting proceedings or by giving advice to the tenant.
To establish the extent to which councils have been acting in accordance with these sections, Flat Justice has issued a Freedom of Information Act request to every local housing authority, using a targeted set of questions to acquire the information needed. The full data may be found here: London-wide or outside London
From the data gathered, several themes emerge.
Variable levels of knowledge
Different councils seem to be aware of radically different numbers of relevant offences. Of course, this can at least be partly accounted for by the fact that different numbers of housing offences are being committed in different parts of the country, particularly regarding HMOs, due to differing numbers of HMOs in different areas.
However, the disparity in the data cannot be explained by this alone. Councils may be adopting different approaches to finding out about relevant offences; some may be seeking out information on convictions while others may take a more relaxed “wait-and-see” approach. Further research will be needed in this area.
The data we sought also included CPNs, and it is apparent from the responses received (which often broke CPNs out from other kinds of conviction) that councils are making use of their CPN powers to very different extents. This is even more evident from the range of policies we received through this exercise, which set out very different thresholds for the issuing of a CPN.
s.48 only imposes a duty in cases where the local authority becomes aware of a conviction; it imposes no duties in relation to seeking information about convictions in a given authority’s housing area.
Variable compliance with the duty in s.48
The second area of note from the figures is that different councils have complied with the duty to consider an RRO to markedly different extents. Some councils have considered an RRO in every case of which they are aware, while some have considered an RRO in no cases. A little caution is needed with these figures however; many councils replied that they had only “considered” cases in which the tenants paid their rent in whole or in part with housing benefit or Universal Credit. Of course, the process of determining whether the tenants paid rent in whole or in part with housing benefit/Universal Credit, and declining to apply for an RRO where that is the case, must in itself be consideration for the purposes of s.48. Where councils gave an answer along this line, the figures were updated to reflect this, but it could be that several councils who replied they had considered 0 convictions for RROs in fact also operated such a policy, and for whatever reason took the view this first-stage consideration did not count as “considering”.
The more concerning possibility is that a number of councils are either unaware of, or do not put significant effort into complying with, their duty under s.48. The vast majority of councils answered “0” to all three statistical questions.
Also of note was the varying level of formality applied to this consideration process; some councils have very full policies which set out in detail the circumstances in which an RRO should be applied for and which have been subject to scrutiny and approval by councillors. Others had shorter policies which appeared to be closer to understandings within the housing department as to how to deal with assessing a case for an RRO application, and others responded they had no policy at all.
Manchester City Council, for example, has a policy detailing the steps which will be taken by Council officers in determining whether to apply for a Rent Repayment Order, the amount the Council will apply for, and the kinds of assistance the Council will give to tenant applicants for RROs.
Extremely low levels of applications for RROs
The council with the highest number of RRO applications made was the London Borough of Newham, with 6 RRO applications made. Interestingly, this also represents 100% of the offences of which Newham said they were aware and had applied for RROs.
The London Borough of Waltham Forest was aware of the largest number of offences committed, with 201. Of these, they stated 0 had been considered for an RRO and, in consequence, 0 RRO applications had been made. At the time of their response, Waltham Forest indicated they were looking to engage an organisation to both assist tenants with RROs and make RROs on behalf of the Council. This seems a sensible policy; Council housing officers are already very stretched and as Flat Justice well know, Rent Repayment Orders are an increasingly specialist area of the law where specific expertise is often vital.
Unfortunately, neither of these are representative of the majority of councils. The most common response by far was “0” to all three of the numerical questions, and even those councils which did indicate an awareness of offences for which an RRO would have been available regularly indicated they had neither considered nor prosecuted those offences.
At the time of writing this blog, 1795 offences were known about nationally. Of these, 621 were considered for an RRO and only 26 RROs were issued. This is particularly stark when considering these numbers do not reflect only one year, but the entire period since the Housing and Planning Act 2016. Of the offences known about, 576 of them were from London councils, accounting for 32% of the total. While London has a significantly larger private rental market, it is still notable how disproportionately London is represented in the statistics. Further investigation will be necessary to determine if this is an artefact of better knowledge by councils of offences in their area or of vastly more offences actually being committed.
This data-gathering exercise has shown that many councils do not understand their obligations under s.48, and that the vast majority could be doing more to assist tenants under s.49.
Flat Justice will direct our attention to informing councils of their duties and look to work with councils to make it easier for them to help tenants as suggested by s.49.