Private Renting Archives

By Jamie McGowan

On 15 April 2019 the Government pledged to abolish Section 21 evictions. Four Prime Ministers, three Housing Ministers, and 52,800 Section 21 eviction notices later… the Renters (Reform) Bill 2023 is here. For tenants this is broadly good news, but as Matthew Pennycook, Shadow Minister for Housing & Planning, observed last week^[1], “As drafted, the Bill contains numerous loopholes that disreputable landlords can use to exploit tenants and jeopardise their security of tenure.”

The proposed Bill would be the most significant overhaul of the private rented sector in over 40 years. It includes provisions for a landlord database and portal, the establishment of a private rented sector Ombudsman, and restores tribunal reviews of private rents. The Bill proposes to provide a prescribed way for tenants to request a right to keep a pet which a landlord cannot then unreasonably refuse. This might seem like one of the more frivolous points, but there are more households in the UK (62%) with pets, than without, and this will be a welcome development for many.

The Bill has several parliamentary stages to go through and Labour will have ample opportunity to make calls for it to be strengthened. All of the proposals mentioned above will require substantial scrutiny, in particular the operation of the ‘Private Rented Sector Database’ and the Redress Scheme which are certainly worthy of dedicated future blog posts! However, the most significant headlines relate to security of tenure and grounds for possession and this is what I have focused on in this post. I have briefly set out what the Bill does (or enables to be done later by secondary legislation), what it doesn’t do, and what it could (and should) do better.

Possession grounds

So the flagship achievement of the Renters (Reform) Bill, if passed, would of course be the abolition of Section 21 notices. These are currently the most common way in which people become homeless in England. The Bill also simplifies the types of tenancies so that (nearly) all private tenancies will be periodic assured tenancies. It does this by abolishing fixed-term assured and assured shorthold tenancies. Although ‘periodic’ might actually sound like it offers less permanence, what really affects the security afforded by a tenancy is the reasons it can be ended by a landlord. These are known as possession grounds.

It is worth pointing out that abolishing Section 21 would not, as it is widely being reported, mark the end of ‘no fault’ evictions. There will still be grounds for possession which involve no ‘fault’ from a tenant such as a landlord wanting the property back for a family member to live in. It would however, be the end of ‘no reason’ evictions which, notwithstanding the notable loopholes discussed further below, represents a major landmark on the road to a private rented sector that can provide genuine stability for tenants.

Alternative grounds

The Bill preserves, alters and creates a whole raft of alternative possession grounds. Some proposed changes are subtle but their interpretation could prove significant. For example, amending the existing anti-social behaviour ground 14 to apply, not where something is ‘likely to’ cause nuisance or annoyance, as is the case currently, but where behaviour is simply ‘capable of’ doing so.
All of the remaining possession grounds need to be scrutinised carefully to ensure they can only be used for their intended purposes and when it is fair to do so. Here I have addressed the two which appear to be the most open to abuse by landlords in undermining the removal of Section 21s.

Grounds 1 & 1A ‘Landlord requires property’

These are two separate grounds which enable a landlord to recover possession of a rented property because they require it as accommodation for themselves or a close family member (there’s a list) or because they intend to sell. The inclusion of both of these grounds was inevitable but there are big problems with the proposed mechanisms.

The first problem is that the proposals in the Bill would simply require a landlord to demonstrate an ‘intention’ to use the property to live in or sell before they are able to gain possession. It does not stipulate what evidence should be used to demonstrate this. Once possession has been obtained on these grounds, a landlord is prohibited from re-letting the property for three months or could face a fine of up to £5000.

In Scotland, where ‘no reason’ evictions were abolished in 2017, a similar ground has been abused by landlords and research from last year^[2] found that nearly one third of landlords who had obtained possession in order to sell the property had not actually done so within a year.

The second main problem is that these are mandatory grounds, which means that if the criteria are met, a judge hearing the case would have no discretion to consider the tenant’s circumstances and a possession order for the property would have to be made. So, for example, even if a tenant could prove that a landlord had relied on this ground to regain possession from multiple successive tenants at the same property, waited three months on each occasion, and then simply re-let the property, a judge would not have the power to decide ‘perhaps this is disingenuous’ and refuse possession.

So the first and most simple improvement which could be made to these grounds is to make them discretionary so that the courts can consider all the circumstances of a case before making an order. It would also be less open to abuse if there were greater up-front evidential requirements, *before* an order could be made. Otherwise we very much risk seeing the same misappropriation of such grounds, as in Scotland.

Grounds 8 & 8A ‘Rent arrears’

Currently, Ground 8 entitles landlords to a possession order if the tenant was in two months’ arrears when notice was served, and remains at two months’ arrears (or more) at the date of the Court hearing. This ground for possession is both modified and extended by the Bill.

The proposed amendment is that any amount of Universal Credit which is owed but not yet paid to a tenant, should be disregarded when calculating the level of rent arrears. This would be a welcome development, although it should be clarified whether those on legacy benefits and in receipt of Housing Benefit are intentionally excluded by this. This overturns the effect of a very disappointing Court of Appeal decision in 2004 that, even though a tenant was in arrears because of Housing Benefit delays, the Court should make a possession order and not adjourn.

Then there is the new mandatory rent arrears Ground 8A. This entitles a landlord to a possession order when a tenant has fallen into eight weeks’ arrears on three separate occasions during the previous three years. Although the same Universal Credit disregard applies, this new ground wouldn’t even allow for the order to be avoided by reducing the arrears by the day of a hearing, as the existing Ground 8 does. This, coupled with the fact that it is mandatory, makes Ground 8A particularly harsh.

Discretionary grounds do not prevent a Court from making a possession order, they simply allow it to consider the right outcome for both landlord and tenant in all the circumstances. Most importantly, discretionary grounds allow the Court to make suspended orders. These provide landlords with nearly all the reassurance of immediate possession, but if the tenant repays the arrears at an agreed rate, they keep their home and the landlord recovers the rent owed. Labour has called for the mandatory Ground 8 to be made discretionary in the past and hopefully these efforts will be resumed in respect of both of these grounds now.

Beyond the Bill

The substantive content of the Bill aside for one moment, there is the small question of how the protections afforded by it will actually be enforced. Councils are expected to do a huge amount of the enforcement legwork, yet local government has seen the biggest cuts of all the public sector over the past 13 years. The fact that Environmental Health budgets have been reduced by over 50% under the Tories limits their ability to use existing powers. For example, DLUHC research[3] from last year found that very few local authorities were utilising ‘Rent Repayment Orders’ (a potentially significant sanction for certain landlord offences), citing constraints on resources as a factor.

Enforcement by individuals through the justice system will also be significantly hampered if nothing is done about the huge backlogs many courts are facing, which last year reached an all-time high for civil cases[4]. Tenants in some areas will also face huge difficulty in accessing a lawyer for advice and representation. Sustained cuts to the level and scope of legal aid have resulted in only 41% of the population having access to a housing legal aid provider[5]. The effectiveness of the Bill will be significantly dampened without wholesale improvements to access to justice and Labour should ensure this point is made.

And finally, as Matthew Pennycook has been quick to point out, there are various other anticipated provisions which are entirely absent from the Bill. A legally-binding Decent Homes Standard for the private rented sector, a ban on landlords refusing to rent to those in receipt of benefits or with children (‘No DSS’ practices), and measures to strengthen councils’ enforcement powers have all been promised. Labour needs to ensure that, if these are not included in the Bill, the Government is kept to the task of bringing these measures in elsewhere and, ideally, in less time than honouring their Section 21 pledge has taken.

Jamie McGowan is a member of the Society of Labour Lawyers, works for a Labour MP, and is a Young Legal Aid Lawyers co-Chair. This blog was supported by contributions from other members of the SLL Housing & Levelling up Group.

^[1]https://twitter.com/mtpennycook/status/1659216248776036352?ref_src=twsrc%5Egoogle%7Ctwcamp%5Eserp%7Ctwgr%5Etweet

^[2]https://www.scottishhousingnews.com/articles/a-third-of-scottish-landlords-evicting-tenants-to-sell-up-fail-to-make-a-sale

[3] https://www.gov.uk/government/publications/local-authority-enforcement-in-the-private-rented-sector-headline-report/local-authority-enforcement-in-the-private-rented-sector-headline-report#use-of-enforcement-tools-and-powers-to-address-poor-standards-and-conditions-in-the-private-rented-sector

[4] https://www.lawgazette.co.uk/commentary-and-opinion/delays-in-our-civil-courts-have-now-reached-crisis-point/5113664.article

[5] https://www.lawgazette.co.uk/news/laa-fails-to-attract-sufficient-bids-for-housing-legal-aid-contracts/5115133.article

Students often experience some of the worst housing conditions in the country, yet their voices are often marginalised and ignored. The issue has worsened, to the extent that student housing has essentially become a joke, with various popular culture depictions portraying the often disgusting conditions in which students are forced to live.

Fresh Meat provides a prime example of this; while it might seem hyperbolic at first glance, for those who didn’t go to university or who were privileged enough to be able to spend extortionate amounts on purpose-built student accommodation. Even students who can afford this, still face problems with the standard of accommodation and value for money available.

However, slug trails, mould, broken windows, burglaries and malfunctioning boilers are all issues that students are faced with regularly. This is not hyperbole, it is reality.

I have spoken to many of my friends and family members about student housing and nobody was surprised by my experiences of substandard housing and neglectful landlords. Everybody knows that this is happening. In my own experience, I have dealt with broken windows not being fixed for four months, mice, slugs, mould, no heating or hot water for weeks, windows with no curtains that woke me up at sunrise everyday and landlords turning up unannounced during a pandemic without masks.

Throughout this pandemic hundreds of students have posted on platforms such as TikTok, showing leaking ceilings, broken kitchen equipment and rat infestations. So it begs the question of why this is allowed to continue. It is a woeful neglect of young people and it leaves students incredibly vulnerable and living in awful conditions.

This isn’t only a problem with students privately-renting, it is also a problem with student accommodation, whether provided directly through the university or a third party provider. As the Guardian reported, student accommodation ‘doesn’t officially classify as housing…as it falls outside a specific use class, it doesn’t have to adhere to the usual standards associated with dwellings’. It means that student housing is often treated as either a hotel (C1) or residential institution i.e. care home or hospital (C2), because these types of accommodation are not intended for prolonged residence, there are far fewer regulations when it comes to space and daylight.

The responsibility for the poor conditions and facilities that students endure in purpose-built student housing lies directly with universities and third parties. Universities have, or should have, a duty of care to their students and exploiting gaps in housing regulations completely contradicts this moral obligation.

There is a huge divide in student cities, between aging university-owned student accommodation that is in dire need of refurbishment, and brand-new purpose-built accommodation often in city centres. For the majority of students, choosing their university accommodation for the first time they are faced with a dilemma: spend all or the vast majority of their student loan on quality accommodation and struggle with living costs for the year or have more money to enjoy their first year of university life, but live in poor housing.

Most students choose the latter and while it might seem like a good compromise for them, students should not have to choose between having enough student loan to survive, and living in adequate housing.

Part of this comes down to a lack of understanding about tenants’ rights among students. I’d argue that the blame for this lies with the universities themselves. They clearly understand the position that young people are in when they arrive at university. Yet, they don’t provide any real information to students about their rights with regards to renting. The vast majority of young people rent for the first time at university and so this kind of information would be crucial to these students. Why is none provided?

ACORN renter’s union has been working hard in many major student cities to provide students with more information about their rights. Additionally, they have taken action on behalf of students who are struggling with neglectful landlords, such as their recent action in Manchester when ‘over 25 ACORN members marched on the business address of Zear Property who left university student Kelsey in squalid living conditions so bad, that she was forced to move cross-country back to her hometown in the middle of the pandemic.’

While, of course, it is great that students have groups on their side in these situations and this support is clearly needed, it should be the landlords themselves and universities that are taking action. Additionally, it is clear that gaps in regulations surrounding student accommodation needs to be resolved.

It is interesting then, that when young people attempt to make their voices heard about their housing experiences they are often dismissed and deemed irrelevant or naive. The state of the housing market at present means that it will likely be decades before current university students are able to put down a deposit on a first house, and so their experiences of renting are incredibly valid.

Moreover, if young people do not know their rights with regards to tenancies and are taken advantage of during their university study, they will likely continue to be taken advantage of once they graduate. This creates more opportunities for landlords to cut corners, provide substandard accommodation and charge extortionate prices for the privilege.

The government has argued that it has introduced measures to protect students in student housing and this is woefully inaccurate. Although protections have been put in place regarding deposits, and this has been a welcome development, there is much more that needs to be done. This government announcement suggests that more has been done to make sure that landlords resolve problems quickly, yet this is just not being seen implemented in reality.

From my personal experience, I had to wait for three months for our heating to be fixed, despite being in constant contact with my landlord asking them to resolve the issue. Landlords certainly seem to exploit the lack of understanding of the rights of tenants at present and government action has done little to resolve this.

We need real, robust action from universities to provide useful information to students from the moment they apply, months before they will need to choose accommodation. Young people need to be aware of their options, realistic expectations and rights before they enter into any contracts. Some universities provide lists of approved landlords, who do not attempt to take advantage of students, while other universities actively attempt to discourage any such lists being made.

Universities need to be standing up for their student populations and working with local councils to ensure that private student housing is up to scratch. MPs also need to be raising this issue, to draw attention to the increasing disparity between aging student accommodation and modern expensive accommodation, but also to amend legislation to make sure that student housing is adequately regulated.

Greater consultation with students over their housing experiences would help to identify major problems and explore mitigation. Our experiences are valid and they represent a significant problem of landlords having too much power that is present throughout our housing sector.

Amy Dwyer

Amy is the Chair of the Young Fabians Education Network, Founder of the University of Manchester Young Fabians and Co-Secretary for Labour Doorstep.

Alongside this, Amy is also studying for her MA Politics and is standing as the Labour candidate for Longton and Hutton West in the South Ribble Borough Council By-Election.

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