The Housing and Planning Act 2016 received Royal Assent in May 2016 and is gradually being commenced.

A number of items affecting the private rented sector in England will – over time – be introduced through the Act including:

• banning orders
• database of rogue landlords and agents
• rent repayment orders
• procedure for recovering abandoned premises

The Housing and Planning Act 2016 (Commencement No. 5, Transitional Provisions and Savings) Regulations 2017 begins this process of introduction for the private rented sector by commencing rent repayment orders and a few other elements from 6 April 2017.

Rent repayment orders

Most of Part 2, Chapter 4 of the Act is commenced from 6 April 2017 which allows the First-tier Tribunal (FtT) to make a rent repayment order against a landlord after an offence has been committed by a landlord (whether convicted or not of the offence).

The offences which can allow a rent repayment order are ¹:

• using violence to secure entry contrary to section 6(1) Criminal Law Act 1977
• unlawful eviction or harassment of occupiers contrary to sections 1(2), (3) or (3A) Protection from Eviction Act 1977
• failure to comply with an improvement notice served by a local authority under the Housing Health and Safety Rating System (HHSRS) as governed by the Housing Act 2004
• failure to comply with a prohibition order under the HHSRS
• operating a HMO or property without a licence (if the property requires a licence).

In respect of a failure to comply with an improvement notice or prohibition order under the HHSRS, the failure to comply must be in relation to a hazard on premises let by the landlord so does not apply to common parts for example ².

The offence (or alleged offence) must have been committed on or after 6 April 2017 for a rent repayment order to be available.

Who can apply for a rent repayment order?

Either a local authority or tenant can apply to the FtT for a rent repayment order.

Application by tenant

A tenant may only apply for a rent repayment order if the offence relates to housing that, at the time of the offence, was let to the tenant. Furthermore, the offence must have been committed in the period of 12 months ending with the day on which the application is made.

Application by local authority

A local authority may only apply for a rent repayment order if the offence relates to housing in their area and the authority have served a notice of intended proceedings beforehand.

A notice of intended proceedings must:

• inform the landlord that the authority is proposing to apply for a rent repayment order and explain why,
• state the amount that the authority seeks to recover, and
• invite the landlord to make representations within a period of not less than 28 days.

The authority must consider any representations made during the notice period and must wait until the notice period has ended before applying for a rent repayment order.

A notice of intended proceedings may not be given after the end of the period of 12 months beginning with the day on which the landlord committed the offence to which it relates.

When deciding whether to apply for a rent repayment order, the authority must consider any guidance issued.

Making the rent repayment order

In order for the FtT to make a rent repayment order, it must be satisfied beyond reasonable doubt that a landlord has committed one of the offences listed earlier. The landlord does not have to have been convicted through the courts though for a rent repayment order to be made.

Amount of order made in favour of a tenant

Where an order is made in favour of a tenant, the amount must relate to rent paid during a specified period depending on the offence:

• if the offence is using violence to secure entry or unlawful eviction/harassment, the amount ordered will be up to the period of 12 months ending with the date of the offence
• if the offence is one of the HHSRS or operating an unlicensed HMO, the amount ordered will be up to a period, not exceeding 12 months, during which the landlord was committing the offence.

The amount must not exceed the rent paid in respect of that period, less any universal credit paid (to any person) in respect of rent under the tenancy during that period.

When the FtT is determining the amount, they must in particular, take into account:

• the conduct of the landlord and the tenant,
• the financial circumstances of the landlord, and
• whether the landlord has at any time been convicted of an offence as listed earlier.

Amount of order made in favour of a local authority

The amount that can be ordered by the FtT after an application by a local authority can only relate to universal credit paid during the periods outlined below depending on the offence:

• if the offence is using violence to secure entry or unlawful eviction/harassment, the amount ordered will be up to the period of 12 months ending with the date of the offence
• if the offence is one of the HHSRS or operating an unlicensed HMO, the amount ordered will be up to a period, not exceeding 12 months, during which the landlord was committing the offence.

The amount ordered in respect of a period must not exceed the amount of universal credit that the landlord received (directly or indirectly) in respect of rent under the tenancy for that period.

When the FtT is determining the amount, they must, in particular, take into account:

• the conduct of the landlord and the tenant,
• the financial circumstances of the landlord, and
• whether the landlord has at any time been convicted of an offence as listed earlier.

Landlord convicted of offence

If the landlord has actually been convicted of the offence for which the rent repayment order relates, the FtT must order the maximum amount as outlined above³.

If a local housing authority becomes aware that a person has been convicted of an offence as outlined above in relation to housing in its area, the authority must consider applying for a rent repayment order.

Financial penalty as alternative to prosecution under Housing Act 2004

In addition to rent repayment orders, some other changes are made affecting landlords.

The Housing and Planning Act 2016 also introduces from 6 April 2017, an ability for a local authority to offer a financial penalty to a landlord as an alternative to a criminal prosecution for certain offences.

The offences are outlined in schedule 9:

• failing to comply with improvement notice under HHSRS
• operating an unlicensed HMO or house
• failure to comply with an overcrowding notice
• failure to comply with management regulations in respect of HMOs

Before offering the penalty as an alternative to prosecution, the local authority must be satisfied beyond reasonable doubt that the offence has been committed.

The penalty offered must not exceed £30,000. Given that the offences listed can carry unlimited fines if successfully prosecuted, the amount of up to £30,000 to avoid prosecution could be an attractive option.

A notice of intent must first be served by the local authority and the person receiving the notice may make representations within 28 days. Those representations must be considered by the local authority.

After the 28 day period, a final notice must be served which can be appealed by the recipient to the First-tier Tribunal against the decision to impose the penalty, or the amount of the penalty.

A local authority must consider any guidance issued when deciding whether to impose a financial penalty.

Tenancy deposit information

From 6 April 2017, the Housing Act 2004 is amended by the insertion of a new section 212A.

All approved tenancy deposit scheme providers will be required to provide a local authority in England upon request, information that relates to a tenancy of premises in the local authority’s area.

Information obtained by a local authority under this provision may only be used:

• for a purpose connected with the exercise of the authority’s functions under any of Parts 1 to 4 of the Housing and Planning Act 2016 in relation to any premises, or
• for the purpose of investigating whether an offence has been committed under any of those Parts in relation to any premises.

An explanatory booklet for Local Housing Authorities has been produced including a sample form for applying for information.

1. A rent repayment order will also be available for a breach of a banning order but as banning orders are not in force yet, that offence is not one taking effect from 6 April. ↩︎
2. Section 40(4) Housing and Planning Act 2016 ↩︎
3. There are conditions before the maximum can be made for which see section 46 Housing and Planning Act 2016 ↩︎