First-tier Tribunal Grants Five-Year Banning Order Against Rogue Landlord

OUTCOME: Allowed

© CROWN COPYRIGHT 2019

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : CHI/29UE/HBA/2019/0001

Applicant : [redacted]

Representative

:

[COUNSEL]

Respondent: [redacted] : Application for a banning order – section 15(1) of the Housing and Planning Act 2016

Tribunal Member : Judge Tildesley OBE

Date of Decision : 9 December 2019 On the papers

DECISION

2 SUMMARY OF THE

DECISION THE APPLICATION FOR A BANNING

ORDER FOR FIVE YEARS IS GRANTED.

BACKGROUND 1. On 20 September 2019 the Applicant applied for banning order against the Respondent who has been convicted of a ‘banning order offence’ under section 15(1) of the Housing and Planning Act 2016 (2016 Act).

2. A ‘banning order’ is an order made by the Tribunal, banning a person (for a period of at least 12 months) from: (i) letting housing in England; (ii) engaging in English letting agency work; (iii) engaging in English property management work; or (iv) doing two or more of those things.

3. On 2 October 2019 the Tribunal sent a copy of the Application together with directions to the Respondent at the two addresses given by the Applicant. The Tribunal also sent the documents to the Respondent’s e- mail address. The documents have not been returned to the Tribunal Office.

4. The directions required the Applicant by 23 October 2019 to send three copies of its case to the Tribunal together with one copy to the Respondent. In turn the Respondent by 13 November 2019 was ordered to send three copies of its case to the Tribunal together with one copy to the Applicant. A right of reply was given to the Applicant to be exercised by 27 November 2019.

5. The Tribunal directed that the Application would be heard on the papers unless a request for an oral hearing was made within 28 days of 2 October 2019. No such request was made by the parties.

6. The Respondent did not participate in the proceedings.

7. The Tribunal decided that the Respondent had been notified of the proceedings by sending the relevant documents to his last known address including e-mail and that it was in the interests of justice to determine the application.

8. In respect of the interests of justice the Tribunal had regard to the contents of application which showed that the Respondent had not co-operated with the Applicant to render the properties safe and had failed to comply with an emergency prohibition order. The Tribunal inferred from the Respondent’s past conduct that his non-participation was a calculated act to frustrate the proceedings.

3

Consideration 9. Under section 16 of the 2016 Act a Tribunal may make a banning order against a person who has been convicted of a banning order offence preventing him from letting housing in England, engaging in English letting agency work; engaging in English property management work; or a combination of these.

10. Banning orders were introduced into legislation as part of a package of measures directed at rogue landlords who do not meet their legal obligations, sometimes exploiting their tenants by renting out substandard, overcrowded or dangerous accommodation.

11. Lord [NAME] of Aberystwyth explained in the House of Lords Debate on Housing and Planning Act 2016 (Banning Order Offences) Regulations 2017 (2017 Banning Order Regulations) that

“These landlords often do not respond to legitimate complaints made by tenants. Some would even prefer to be prosecuted rather than maintain their properties to a decent standard”.

“The purpose of banning orders is to target the most prolific offenders who have been convicted of serious housing, immigration and other criminal offences connected to their role as landlords. The Orders will prevent rogue landlords and property agents earning income from renting out properties or engaging in letting agency or property management work, forcing them either to raise their standards or to leave the sector entirely”1.

12. Before the Tribunal can consider making a banning order under section 16 of the 2016 Act it must be satisfied of various matters.

Whether the Respondent has been convicted of a banning order offence? 13. The Applicant produced evidence that on 31 January 2019 the Respondent was convicted of on 12 November 2018 of failing to comply with an emergency prohibition order contrary to section 32 (1) of the Housing 2004 and of control or management of an HMO without a licence contrary to section 72(1) of the Housing Act 2004. The Respondent was fined £100 for each offence.

1 See Hansard 22 January 2018 Volume 788 HL Debate on Housing and Planning Act 2016 (Banning Order Offences) Regulations 2017

4 14. The Tribunal observes that the Offences of section 32 (1) and section 72 (1) of the Housing Act 2004 are named as Banning Order offences in item 3 of the Schedule to the Banning Order Regulations 2017.

15. The Tribunal is satisfied that the Respondent has been convicted of Banning Order Offences. Whether the Applicant has given the Respondent a notice of intended proceedings in compliance with section 15 of the 2016 Act, and whether it has otherwise complied with the procedural requirements of that section? 16. On 26 April 2019 the Applicant issued the Respondent with Notice of intent to Apply for a Banning Order for a period of 24 months. The Respondent was given the opportunity to make representations by 30 May 2019. The Respondent made no representations. The Application for the Banning Order was made on 20 September 2019.

17. The Tribunal finds that (1) the Notice of Intent was issued within 6 months of the Respondent’s conviction for banning order offences; (2) the Notice of intent stated that the Applicant was applying for a Banning Order for a period of 24 months because he had been convicted of offences of failing to comply with a prohibition order and managing an HMO without a licence; (3) the Respondent was invited to make representations within period not less than 28 days; (4) the Application to the Tribunal was made after the closing date for receipt of representations.

18. The Tribunal is satisfied that the Applicant has given the Respondent a notice of intended proceeding and has complied with the procedural requirements of section 15 of the 2016 Act.

Whether, at the time the offence was committed, the Respondent was a ‘residential landlord’ or a ‘property agent’? 19. The Applicant stated that the Respondent’s sole business is the leasing of accommodation, and that the Respondent was the HMO licence holder of [ADDRESS], 25/26 East Cliff Dover which is where the various banning order offences had been committed.

20. The Tribunal is satisfied that at the time the offences were committed the Respondent was a residential landlord.

Whether a Banning Order should be made? 21. Having regard to the above findings the Tribunal is satisfied that it can make a banning order. The next question is whether the Tribunal should exercise its discretion to do so.

5 22. Under section 16(4) of the 2016 Act the Tribunal must consider the following factors in deciding whether to make a banning order. (a) the seriousness of the offence of which the Respondent has been convicted; (b) any previous convictions that the Respondent has for a banning order offence; (c) whether the Respondent is or has at any time been included in the database of rogue landlords and property agents (pursuant to section 30 of the 2016 Act); and (d) the likely effect of the banning order on the Respondent and anyone else who may be affected by the order.

23. The Applicant stated that the Respondent was the HMO licence holder of [ADDRESS] which was inspected by the Applicant’s officers on various occasions in 2017 and 2018. The Officers found that the property had numerous defects including broken or non-working fire alarms, inadequate fire safety measures and accumulations of waste including foul water discharging into the rear yard. The Officers despite their best efforts were unable to persuade the Respondent to deal with the numerous hazards associated with the property. In August 2018 the Applicant decided to issue an emergency prohibition order to prohibit the use of the property for occupation because of serious defects with the fire alarm system and electrics. Following the making of the emergency prohibition order the Applicant discovered in November 2018 that the Respondent had allowed parts of the property to be occupied in breach of the prohibition order and had allowed the HMO licence to lapse.

24. The Respondent was also convicted on 31 January 2019 of 20 housing offences under section 72 (3) and section 234 (3) of the Housing Act 2004 contravening HMO and Management Regulations over the period September 2017 to February 2018. These Offences are Banning Order offences but do not qualify as such for the purposes of section 15(1) of the 2016 Act because they were committed before 1 April 2018 which was the date that the Banning Order Regulations 2017 came into force.

25. On the 31 January 2019 the Respondent was fined a total of £5,400 for the 20 housing offences and the two Banning Order offences, and ordered to pay costs of £5,000 and a victim surcharge of £50.

26. The Applicant also stated that in the past the Respondent had let other sub-standard properties to vulnerable tenants in the Dover district.

27. The Tribunal accepts the Applicant’s evidence.

28. The Tribunal finds that (1) the Respondent’s disregard of the health and safety of the tenants and his willingness to put their lives at risk by not attending to the serious deficiencies in fire safety and to the dangerous

6 electrics; (2) the Respondent’s deliberate disobedience of the emergency prohibition order; (3) the Banning Order offences were the culmination of a continuing course of offending stretching over one year from September 2017 to November 2018 were aggravating features of the Banning Order offences for which the Respondent was convicted.

29. The Tribunal considers that the fine of £100 for each Banning Order offence must be seen in the context of the totality of the penalty imposed on the Respondent on 31 January 2019 which was £5,400 plus costs of £5,000 and a victim surcharge of £50. The Tribunal is satisfied that a fine of £5,400 is a significant punishment.

30. The Tribunal concludes having regard to the aggravating features and the totality of the penalty that the offences were serious.

31. Although there was no evidence that the Respondent had previous Banning Order offences, the Tribunal is satisfied that the Respondent has a history of letting sub-standard accommodation to vulnerable tenants.

32. The Tribunal is not aware that the Respondent has been included in the database of rogue landlords.

33. The Respondent did not participate in the proceedings. The Tribunal has no information on the likely effect of a banning order on the Respondent and of any tenants that may be living in properties let by him. The Tribunal, however, observes that a banning order does not invalidate any tenancy agreement held by occupiers of a property let by the Respondent.

34. The Tribunal concludes on the facts found that the Respondent was a rogue landlord who had failed to meet his legal obligations and who had exploited tenants by renting out substandard and dangerous accommodation.

35. The Tribunal, therefore, grants the application for a banning order. What should be the terms of the Order? 36. The Applicant requested an Order for five years on the basis that this corresponded with the usual term for an HMO Licence. The Tribunal notes that the Applicant in its Notice of Intention proposed a period of two years for the Order.

37. The Applicant informed the Tribunal that the Respondent had a company called [RESPONDENT] which was involved in property letting and management. The Tribunal was not aware of any properties currently let by the Respondent or his company.

38. The Tribunal considers the seriousness of the Respondent’s offending and the Respondent’s disregard of his legal obligations and the safety of his tenants justifies an Order for a term of five years. Further the Tribunal is satisfied that the Order should prevent the Respondent from letting

7 houses and in engaging in letting agency and property management work. Finally the Tribunal holds that as an anti-avoidance measure the Respondent should be banned from acting as an officer of any company that lets housing or is engaged in property management or letting agency work in England and from any involvement in the management of such a company.

8 RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.

First-tier Tribunal (Property Chamber) Residential Property

Case Reference: CHI/29UE/HBA/2019/0001

Applicant:

[redacted] Respondent: [redacted]

(Section 16 of the Housing and Planning Act 2016)

By this Order, [RESPONDENT] of [NAME] [POSTCODE] is banned from

1. letting housing in England; 2. engaging in English letting agency work; and 3. engaging in English property management work.

Mr [RESPONDENT] is also banned from being involved in any [NAME] that carries out any of the above activities. He may not act as an officer of such a [NAME] or directly or indirectly take part in, or be concerned in, its management.

These bans take effect from 6 January 2020. They will last for a period of five years from 6 January 2020.

Judge Tildesley OBE Date: 9 December 2019

© CROWN COPYRIGHT 2019

NOTES:

1. A person who breaches a banning order commits an offence and is liable on summary conviction to imprisonment for a period not exceeding 51 weeks or to a fine or to both. Alternatively, a local housing authority may impose a financial penalty of up to £30,000 on a person whose conduct amounts to that offence.

2. A person who is subject to a banning order that includes a ban on letting may not make an unauthorised transfer of an estate in land to a [NAME]. Any such transfer is void (see section 27 of the Housing and Planning Act 2016).

3. A breach of a banning order does not affect the validity or enforceability of any provision of a tenancy or other contract.

4. A person against whom a banning order is made may apply to the Tribunal for an order under section 20 of the 2016 Act revoking or varying the order.

5. The expressions “English letting agency work” and “English property management work” have the meanings given to them by sections 54 and 55 of the 2016 Act respectively.

6. The reasons for making this banning order are set out in a Decision issued separately by the Tribunal.