[2023] UKUT 118 (LC)

In April 2018 the Department of Housing, Communities and Local Government issued non-statutory guidance entitled “Banning Order Offences under the Housing and Planning Act 2016 (the Guidance). The Guidance is aimed at local housing authorities, but paragraph 5.2 correctly notes that tribunals may also have regard to it.

In a Foreword to the Guidance the object of the new legislation is said to be to “crack down” on rogue landlords and “disrupt their business model”. The view is expressed that “… the small minority of rogue landlords […] who knowingly flout their legal obligations, rent out accommodation which is substandard and harass their tenants should be prevented from managing or letting housing”. Paragraph 1.7 explains that the government expected banning orders “to be used for the most serious offenders”, an expectation repeated elsewhere in the document.

Local housing authorities are required by the Guidance to develop their own policies on banning orders. To assist that task factors are identified at paragraph 3.3 which should be taken into consideration when an authority is considering whether to apply for an order. Unsurprisingly they include the factors identified in section 16(4). When considering the seriousness of an offence the Guidance also refers to the sentence which will already have been imposed following conviction and suggests: “the more severe the sentence imposed by the Court, the more appropriate it will be for a banning order to be made”.

Other considerations identified in paragraph 3.3 as relevant to the authority’s decision to apply for a banning order include previous convictions or civil penalties for banning order offences; inclusion on the database; a history of non-compliance with obligations and legal responsibilities; harm to the tenant; punishment of the offender; and deterrence of the offender and others. The view is expressed that the length of a ban should be proportionate to the severity of the offence and whether there is a pattern of previous offending”, and that the order should have a “real economic impact on the offender”.

The Council has introduced its own policies on banning orders, including a general Private Housing Enforcement Policy in 2016, and a specific policy on applications for banning orders in March 2020. The FTT considered those policies and concluded that the Council had acted in accordance with them in this case.