[2023] UKUT 118 (LC)

Part 2 of the 2016 Act is said by section 13(1) to be “about rogue landlords and property agents in England”, although the headline term “rogue landlord” is not defined in the Act.

By section 15(1), a local housing authority in England may apply for a banning order against a person who has been convicted of a banning order offence.

Section 14(1) contains a definition of “banning order” which explains that such an order may, amongst other things, ban a person from “letting housing in England”. For this purpose letting includes the grant of a licence but excludes the grant of a tenancy or licence for a term of more than 21 years (section 56).

Section 14(3) creates a power for the Secretary of State to define “banning order offence” by regulations. The Housing and Planning Act 2016 (Banning Order Offences) Regulations 2018 came into force on 6 April 2018. Regulation 3 and Schedule 1 prescribe 14 different categories of banning order offences, the first five of which are specifically housing offences, including fire and gas safety offences. Offences under section 72, 2004 Act in relation to licensing of HMOs and offences under section 234(3), 2004 Act in relation to compliance with the HMO Management Regulations are prescribed as banning order offences unless the sentence imposed on the person convicted of the offence is an absolute discharge or a conditional discharge.

The HMO Management Regulations include detailed provisions requiring a person managing an HMO to maintain the common parts and external amenities, to ensure that means of escape from fire are free from obstruction and are in good order and repair, and to take all reasonable measures to protect the occupiers from injury. It is an offence to fail to comply with those requirements, but it is a defence that a person had a reasonable excuse for such a failure. On conviction a person is liable to an unlimited fine.

Other banning order offences listed in Schedule 1 to the 2018 Regulations include unlawful eviction and harassment of occupiers, the use of violence for securing entry, and failure to comply with an improvement notice, as well as a very wide range of non-housing offences when committed by a landlord against a tenant including immigration offences, fraud, violence and sexual assault, drugs offences, anti-social behaviour, criminal damage and theft.

Before applying for a banning order a local housing authority must give the person concerned notice under section 15(3) of their intention, inform her of their reasons for doing so and invite her to make representations. The authority must then consider any representations it receives during the notice period (section 15(4)). A notice of intended proceedings under section 15 may not be given more than six months after the date of the conviction to which the notice relates (section 15(6)).

The jurisdiction to make a banning order is conferred on the FTT by section 16, 2016 Act, which is in these terms:

It is common ground in this appeal that the power to make a banning order is discretionary and arises only if the three conditions in section 16(1)(a) and (b) and (2) are met. It is also agreed that while the four matters listed in section 16(4) must be considered, they are not the only matters which may be taken into account. In deciding whether to make an order, and what order to make, the FTT must therefore in every case consider the seriousness of the offence, any previous convictions for a banning order offence, whether the respondent has been included in the database of rogue landlords and property agents, and the likely effect of the banning order on the respondent and on any other person who may be affected.

A banning order must specify the length of the ban being imposed, which may not be less than 12 months (section 17(1)-(2)). A banning order may include exceptions to the ban for some or all of the period to which it relates (section 17(4)). Some examples of possible exceptions given in section 17(4):

“A banning order may, for example, contain exceptions –

(a)

To deal with cases where there are existing tenancies and the landlord does not have the power to bring them to an immediate end, or

(b)

To allow letting agents to wind down current business.”

Section 28(1) requires the Secretary of State to operate a database of rogue landlords. An entry must be made in that database whenever a banning order is made against a person and maintained for so long as the order remains in force (section 29).

Once a banning order is made it has a number of important consequences for the person concerned. They are banned from letting housing and publicity is given to that ban by the inclusion of their name in the public database of rogue landlords, which may be consulted by prospective tenants or local housing authorities. They may also be banned from being involved in any company that carries out the same activity (section 18(1)). They will commit a criminal offence if they breach the order (section 21) and will be liable to imprisonment or a fine, to repeated financial penalties under section 23, and to rent repayment orders under section 40. A banned person may not transfer an estate in land to an associated person unless authorised by the FTT (section 27).

A person subject to a banning order cannot be granted an HMO licence or a licence in respect of a house subject to selective licensing (sections 64(3), 66(3C) and 88(3), 89(3C), 2004 Act). The further consequence of these prohibitions is that the same person may not give notice to terminate an assured shorthold tenancy under section 21, Housing Act 1988 (sections 75(1), 98(1), 2004 Act).

If a property is let in breach of a banning order, a local housing authority will generally be required to take over management by making an interim management order under Part 4, 2004 Act. When determining whether a property is let in breach of a banning order exceptions permitted under section 17 are to be disregarded (section 101(6C), 2004 Act).

There is a right of appeal to this Tribunal against a banning order made by the FTT (section 53, 2016 Act). The FTT itself has power to revoke or vary a banning order if the underlying convictions have been overturned on appeal or have become spent (section 20).