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Committee for Social DevelopmentReport on the Housing
|
Mr Stephen Baird |
Department for Social Development |
1. The Chairperson (Mr Hamilton): I welcome Michael Sands, director of the housing division, and Stephen Baird and Alastair Campbell from the housing division. Sorry, Michael, I have taken you up a grade. Michael is the assistant director of the housing division.
2. Mr Michael Sands (Department for Social Development): I am quite happy with that, just pay me as director.
3. The Chairperson: You are still subject to the £250 increase. I do not know how it affects your pension rights.
4. Contained in members' packs is a letter from the Department dated 16 June 2010, a copy of the consultation document and a copy of the completed screening document. A copy of the Bill and the explanatory and financial memorandum has been tabled. Hansard is recording proceedings as part of our evidence gathering. I ask you to provide a brief run-through, after which members will ask questions.
5. Mr Sands: Thank you, Chairman. I thank the Committee as a whole for the invitation to discuss the Bill's contents in advance of its Second Stage next week. When I last briefed the Committee on 18 February 2010, we were towards the end of the public consultation phase on proposals for a Bill. The Department received over 40 responses to the consultation exercise, and almost all stakeholders were supportive of the proposals that are now in the Bill.
6. Members will have noticed that the Bill is somewhat slimmer than the Department's consultation document. As well as reflecting feedback from consultees, the main reasons for the reduction in size are the tight timescale that is available to progress the Bill through the Assembly and the limited Office of the Legislative Counsel resources that are available for drafting the Bill. A larger Bill would have been unlikely to make it through the Assembly during the current mandate. Therefore, in the final analysis, a decision was taken to focus proposals on areas where there is a clear and pressing need for new legislation. The Department may return to the remaining proposals during the next Assembly mandate.
7. Chairman, would you like me to deal with particular sections, stopping to allow members to ask questions, or would you prefer that I run through the entire Bill?
8. The Chairperson: Run through the entire Bill, because when we try to deal with Bills in sections, it ends up all over the show.
9. Mr Sands: I turn to the Bill's contents. The Bill's main focus remains on improving regulation of the private rented sector in support of the Department's private rented sector strategy. The 'Building Sound Foundations' strategy was published in March 2010, and it contains several proposals that are included in the Bill. The most significant of those involve the creation of powers for the Department to create schemes in subordinate legislation for the mandatory registration of landlords and to safeguard tenants' deposits.
10. Responses to the consultation indicated that the majority of stakeholders were in favour of those developments as, respectively, the most effective way of improving the regulation of the private rented sector and a means of protecting tenants' deposits and resolving disputes. In each case, the Bill provides the broad powers to make such schemes, and the detail will follow in subordinate legislation, which will be subject to close Assembly scrutiny through the draft deferment of resolution procedure. The Department is already working with a wide range of stakeholders to develop both schemes, including landlord representatives, district councils, the Housing Rights Service, Citizens Advice, the Housing Executive and the Chartered Institute of Housing.
11. In addition, the Bill creates offences for breaching the requirements of those schemes, and it introduces a system of fixed penalties as an alternative to court action. It also aims to improve the effectiveness of existing measures for regulating the private rented sector by making a number of amendments to the Private Tenancies (Northern Ireland) Order 2006.
12. The proposal on houses in multiple occupation (HMOs) is intended to improve the operation of existing legislation for regulating houses in multiple occupation by placing responsibility for providing evidence of family relationships on owners and operators of privately rented accommodation. That would come into effect where it is claimed that the occupants of the accommodation are members of two or fewer families. In such a case, the accommodation would be exempt from the regulatory regime that is prescribed for HMOs. Failure to provide adequate evidence would result in a requirement to register the house as an HMO.
13. On the issue of antisocial behaviour, the Department has taken on board the view that the Committee expressed on 18 February 2010 and broadened the power to share information regarding antisocial behaviour to cover all housing allocations, eligibility decisions on homelessness, exchanges and house sales. The Bill also contains provisions to enable the Housing Executive and registered housing associations to withhold consent to an exchange of tenancies on the basis of antisocial behaviour.
14. On the issues of fuel poverty and energy efficiency, the Bill will provide widely supported powers for the Housing Executive to broker energy at a discounted price for tenants. It also formalises the role of district councils in promoting energy efficiency in their districts.
15. As regards homelessness and persons from abroad, there is an anomaly in existing legislation with regard to certain persons from abroad who lose their eligibility for homelessness assistance after having been assessed as full duty applicants. That can put the Housing Executive in a difficult position as it then owes a duty to a person who is not eligible for assistance because of their changed immigration status. The Department proposes to correct that inconsistency and to clarify the law by bringing to an end the Housing Executive's homelessness duty where an applicant ceases to be eligible for homelessness assistance. The proposed change will not impact negatively on the small number of people involved because, even at present, a social housing allocation cannot be made to them lawfully.
16. Other consultation proposals have not been contained in the Bill, and I will now try to address those. Constraints imposed by time and limited resources mean that we have had to scale back the original scope of the Bill. We are now proceeding with the proposals for which there is the greatest and most pressing need. With respect to the private rented sector, the Department had originally planned to take forward proposals relating to raising the fitness standard and extending the notice to quit period for tenants. Although work on the former has begun, it is a complicated issue and is not yet at a stage at which legislation could practically be made. A stakeholder group has been established to take forward those proposals in the interim.
17. The proposal to extend the notice to quit period was welcomed by the majority of stakeholders at consultation, but it is not really required urgently. In view of the limited time and resources that are available to the Department, we felt that priority should be given to ensuring that the most vital proposals relating to registration of landlords and tenancy deposit schemes were developed and introduced. We hope to progress the relevant extensions to the notice to quit period at the next opportunity for primary legislation.
18. Unfortunately, we have been forced to postpone some of the proposals relating to antisocial behaviour that were mentioned in the consultation paper. During the consultation process, it became clear that a number of stakeholders felt that those could have significant equality implications and should be the subject of further research before being considered for legislation. It would simply not have been possible to complete the necessary detailed work that was highlighted by stakeholders within the time available. The following topics have not, therefore, been included in the Bill: new form of injunctions against antisocial behaviour regarding illegal use of premises and breach of tenancy agreement; introductory tenancies and extension of the trial period; demoted tenancies; matters to be taken into consideration in proceedings for possession; and limitation of homelessness duty in cases of antisocial behaviour.
19. As I mentioned, the main reason that we are unable to take forward those proposals is the very tight timescale for progressing the Bill through the Assembly. Any delay could result in the Bill failing to make it through the Assembly in this mandate and none of the proposals going forward. Therefore, we have had to make some difficult decisions in prioritising the areas in which legislation is required more urgently and can be introduced readily. However, I assure members that the proposals that have been omitted from this particular Bill will not be forgotten. They will be considered for inclusion in a new housing Bill in the next Assembly mandate.
20. I hope that this briefing has been helpful in setting out the Bill's proposals and helping the Committee to form a view in advance of the Second Stage on 30 June. We are happy to take questions.
21. The Chairperson: Thank you very much, Michael. I have two broad, outline questions. We know the timescale for the progress of the Bill, but what about its enactment? There may well be more interest today in what is not in the Bill as opposed to what is in it. It is wise and prudent to not proceed with a Bill that may not get through because of testing its equality and rights status. Will that now sit parked and be picked up this time next year, or will the Department make progress on the equality testing and so forth in order that the Bill can be picked up very early next term? I envisage members being concerned that those things are not included. They may understand why that is the case, but they will be concerned. I do not want the scenario to be that we do not pick this up again until this time next year and have to start the process again, which means we may be half way through the next Assembly term before it is done.
22. Mr Sands: I can assure the Committee that that will not be the case. As I said in my opening remarks, a stakeholder group has already been set up to take forward those proposals in the interim. It will be looking at the equality provisions and how we can finalise and get agreement on the provisions that need to be included in the Bill. We will not simply be waiting until after May of next year to start work. That is not our plan at all.
23. The Chairperson: Once the Bill gets Royal Assent, what is the timescale for enacting everything in it in terms of the subordinate legislation required?
24. Mr Sands: That depends on the stakeholder groups and how quickly we get agreement on the minutiae. There are several difficulties in getting agreement on some provisions, such as the mandatory registration of landlords, and other issues that may arise. Once we get agreement on those, the subordinate legislation should follow fairly quickly. As I said, the stakeholder groups are up and running. They are operating, talking and moving those proposals forward.
25. Mr Alastair Campbell (Department for Social Development): It is worth pointing out that that is why we have taken the approach of having it in primary legislation first, because, when the detail is worked through, it will take a lot less time to get the schemes up and running. To start by including the detail in primary legislation would add an extra six months or so onto the timescale.
26. Mr Craig: I will first deal with what has been included in the Bill. I am interested in the courts being granted the power to remove security of tenure in the case of a tenant who has been involved in antisocial or unlawful behaviour on the premises. Does granting the power to remove security of tenure enable the courts to take away the part of its remit that forces the Housing Executive to rehouse individuals in such circumstances? What exactly does that mean?
27. The Chairperson: Would that apply to one house or all houses? Is that what you mean?
28. Mr F McCann: I understand that such a law already exists.
29. Mr Craig: There is a three-strikes-and-you-are-out rule.
30. Mr F McCann: I think that people can be brought to court, but the judge rarely orders that a tenancy be removed.
31. Mr Sands: That is correct. The provision about demoted tenancies that is not included allows for the Housing Executive or a housing association to apply to the court to have a secure tenancy withdrawn because of a tenant's antisocial behaviour. It is almost a three-strikes-one-strike-and-you-are-out approach that would not require the Housing Executive or the housing association involved to go back to the court for an eviction order. They would be allowed to do that.
32. Mr Craig: Therefore, it simplifies the process for them.
33. Mr Sands: Yes, it does. That is the whole idea.
34. Mr Craig: That is good. I welcome that. Will all this apply to housing associations or will another Bill be needed in the next mandate to further improve the situation?
35. Mr Sands: It applies to social housing.
36. Mr Craig: Is that all social housing?
37. Mr Sands: Yes.
38. Mr F McCann: I am glad that that point was raised. I had an interesting conversation some weeks ago with people from housing associations who said that they still have to protect the rights of the person who has made the application for a home or is being moved, rather than those of tenants living in an area. Housing associations do not have to take on board problems that may be caused in the round. I thought that the previous Bill provided for a general agreement on the sharing of information, but the housing associations told me that there remains a major gap in the sharing of information among housing associations and between them and the Housing Executive. That, again, poses a major problem.
39. A reason for so many members raising the issue of antisocial activity is that many communities are being strangled and are in danger of going under because of the activities of a small number of people. Those who wreak havoc may live in an area or come into it as guests of people living there. I am a bit disappointed that we are not getting the full weight of what was proposed. I went to a meeting some time ago that was organised by the Housing Rights Service, and antisocial activity was a key issue raised. The representatives at that meeting argued for strong and effective legislation that allows for antisocial activity to be dealt with. It was also argued that a lightweight mandatory registration scheme will not impact greatly on landlords. Something firm is needed.
40. The other issue that concerns me is HMOs for which strong legislation by way of fines and court orders is required. Those strong measures also seem to have been taken out of the proposed Bill. At one stage, there was talk of a £20,000 fine, but that has been taken out.
41. From glancing over the briefing paper, I see those as the three main provisions that would have impacted on local communities and that would have given communities confidence and allowed them to start to deal with some of the serious problems. It is not just down to DSD; it is also down to the many Departments and organisations that have it in their heads that antisocial behaviour and anti-community behaviour is a policing matter. Such behaviour is a societal matter, and we all have a responsibility to ensure that it is dealt with. The sooner we get our heads around the impact that could be made on the problem if we worked together to make a difference, the better. People need legislation with the tools to enable them to do that, but that is not being provided in the Bill.
42. Mr Sands: Mr McCann raised three issues. As he rightly said, antisocial behaviour is a societal problem and a societal matter. It is not something that the housing sector can tackle and resolve on its own.
43. The sharing of information has been raised by the Committee before. It was also raised at the last quarterly meeting that I had with the Northern Ireland Federation of Housing Associations, which raised the difficulty associated with the lack of information that it receives and with trying to get information from various bodies. I have already started a process to set up an information sharing protocol with the PSNI, so that housing associations will be able to get access to particular information that the PSNI holds and vice versa. That will operate in the same way as the Housing Executive's current information sharing protocol with the PSNI. The protocol will also allow the Housing Executive and the housing associations to share information.
44. So, the provisions to firmly tackle the problem with sharing information are in the Bill. The provision of that information will go a long way to preventing a problem that Mr McCann raised, whereby tenants who are evicted due to antisocial behaviour move to another area and take their antisocial behaviour with them. That can happen when tenants move into housing association properties without those housing associations being informed of their previous antisocial behaviour. The Bill's provisions will stop that happening.
45. Mr F McCann: One of the crucial issues is that many of the people who apply for a transfer to another area are moving on the back of an intimidation order. Those people may have come under pressure from residents in one area. If it is accepted that those people have been intimidated, to whatever degree, they are given intimidation points, which puts them to the top of the list for housing. Other people are disadvantaged by the fact that they get first crack at moving, especially when there are so few houses available. Housing associations and the Housing Executive say that they have a clear obligation to deal with people who are at the top of the waiting list. Therefore, people who are moving following intimidation are housed ahead of others who are in clear need of housing.
46. Mr Sands: That is the situation, but it depends on the grounds of the intimidation and why it has come about. The Housing Executive is duty-bound to take the person who has the highest points off the list. That is the common selection scheme, and that is the way it works.
47. Mr F McCann: After the previous discussions that we had on the issue, I thought that the reasons why people are moving would be looked at and that that would be taken into consideration.
48. Mr Sands: Unfortunately, that sharing of information has not been available to date. This legislation enables a sharing of information, so that information on an individual who has committed antisocial behaviour will move with that individual and be passed on to the Housing Executive or the relevant housing association.
49. Mr A Campbell: We are working independently on the issue of intimidation points and the common selection scheme. That work is at an early stage, but it is looking at how people are awarded intimidation points and what needs to change in order to make the common selection scheme more effective. We are also carrying out a piece of work on the transfer of people with a history of antisocial behaviour. Stephen knows more about that.
50. Mr Stephen Baird (Department for Social Development): In transferring people who have been intimidated, it is certainly true that the intimidation carries points and can convey priority.
51. The Chairperson: It is a golden goose for many people.
52. Mr Baird: It is germane to bear in mind that the Housing Executive is not obliged to rehouse someone who has become homeless if that person has a history of antisocial behaviour. It may be a different matter when it comes to an existing tenant who has not become homeless but has applied for a transfer. However, we recently issued guidance to the Housing Executive to remind it that housing transfers are not an appropriate method of dealing with antisocial behaviour and that applications for transfer should not be accepted from tenants in certain, defined circumstances, which amount to a fairly comprehensive list of antisocial behaviour infractions. That list basically sets out that a tenant under any kind of anti-social behaviour order (ASBO), injunction or the like should not be transferred.
53. Mr F McCann: The Housing Executive says that its duty of care to the applicant supersedes everything else. I understand that there is a fine dividing line. In many cases, it is not the antisocial tenants who apply for transfers but the people living beside them, who apply to get away from them. The Housing Executive's automatic response is to first go to mediation, which highlights that a complaint has been made. It is a vicious circle.
54. Mr Baird: The revised guidance that we have issued to the Housing Executive also touches on the issue of mediation. I know that that is something about which members of the Committee have been concerned. We have emphasised to the Housing Executive that mediation must not subject victims of antisocial behaviour to further distress and should be resorted to only in circumstances in which it appears to have a reasonable prospect of success. In other words, mediation should not be seen as a box-ticking exercise or a default response. Mediation may be fine in certain circumstances, but it is not a substitute for more robust action, if that is what is called for.
55. Mr F McCann: By and large, it is a substitute for more direct action in many ways. My party will have to consider what amendments to table on that aspect of the Bill.
56. On another interesting point that you raised concerning the common selection scheme, I have said to the Committee a number of times that I met direct rule Ministers responsible for Social Development as long as eight or nine years ago to discuss the inherent unfairness of the common selection scheme. There are areas in which 190 to 200 points are needed for the allocation of a house but others in which 90 points are enough. However, that disparity is not reflected in the system allocating the points, so people try to manipulate the system to ensure that they get housed. Otherwise, they will rely on hostels and will face the prospect of not being housed for many years, which is totally unfair. During the passage of the previous Bill, we were told that those concerns would be taken on board, that a review was under way and that changes would be made, and yet, we remain in exactly the same situation. To get a one-bedroom flat where I live requires 190 points.
57. Mr A Campbell: Two pieces of work are relevant to that issue. As I said, the work on the common selection scheme is at a relatively early stage, but it is definitely being progressed and is going quite well so far. Hopefully, we should have some development on that in the next year or so.
58. A separate piece of work covers the issue of intensity of need. We recently wrote to the Committee about the strategic guidelines through which we are looking to address that issue by focussing social housing more towards areas where need is most intense. Those are the areas in which more than 70 points and up to 140 or 200 points are required. Officials from the Housing Executive should be briefing the Committee on that before the summer recess or in September. The matter is being taken forward.
59. Mr F McCann: Are you saying that it will take at least a year or two for you to have something to present to us?
60. Mr A Campbell: That is hard to say. It is almost too early to give you even a timeline, but we have done quite a lot of preparatory work, and it is a fairly comprehensive look at the common selection scheme.
61. Mr Sands: Mr McCann raised two other issues. He referred to the light touch mandatory registration scheme for landlords. As I said in my opening remarks, a stakeholder group is addressing the provisions that we have included in subordinate legislation. The stakeholder group will decide the criteria qualification and where it will cut in and what will be applied, and it will take that forward. The group is working on that now, so that once the primary legislation comes into effect, there will then be subordinate legislation. We are progressing with those matters, as I said in my answer to the Chairman's question. We are not waiting until the legislation comes in and then starting again. That work is all going on in the background at the moment.
62. Mr McCann also asked about HMO fines and their inclusion in the Bill. Perhaps Stephen can answer that.
63. Mr Baird: The HMO issue that is in the Bill has to do with the provision of evidence of family relationships. When we initially looked at that issue, we considered fining landlords who did not provide evidence of family relationships. When we thought more about it, however, that seemed to be entirely inappropriate, because we are dealing with circumstances in which a landlord is attempting to claim exemption from the HMO rules on the basis that the property is occupied by an extended family and could, therefore, be expected to be properly run and organised, with risks to the tenants minimised.
64. In such a situation, the Bill would place the onus on the landlord to provide evidence of the assertion that there is a family relationship. If the landlord fails to provide that evidence, fining him would probably not achieve a huge amount. It certainly would not do anything to protect the tenants. Therefore, we propose that, in those circumstances, the property becomes subject to regulation. It will be regulated as an HMO, and the tenants will be protected. There are possibilities of fining landlords who transgress in other circumstances, and we would not back away from that. However, in that particular circumstance in the Bill, fines would not be appropriate.
65. Mr F McCann: When I speak about fines, I am speaking about fines generally. Not all landlords are bad. As a matter of fact, a huge percentage operates good houses. However, there is a rump of landlords who provide bad accommodation, and they need to be dealt with. They cannot be mollycoddled into changing. There needs to be strict legislation and regulation, including heavy fines. My understanding is that landlords walk away from courts laughing up their sleeves because they got the minimum fine and can take that on the chin. Unless we start to deal with the matter effectively, whether in Dungannon, Derry, Coleraine or Belfast, people who run bad HMOs will still be running bad HMOs in five or 10 years' time.
66. With regard to the private rental light touch, my understanding is that, during the consultation on the private rented sector, only two respondents — one of whom may have been the Chartered Institute of Housing — called for a lightweight regulation. However, the vast majority who replied wanted more heavily weighted legislation to deal with the private rented sector. What is so annoying is the fact that community groups in all communities are tortured and harassed by different Departments in relation to their spending of maybe £30,000 or £50,000, but, when people are dealing with £85 million to £90 million of housing benefit, there are no regulations at all. There needs to be strict regulation to ensure compliance.
67. Mr Sands: It is a question of light touch, and I cannot go into it too deeply because it is subject to the stakeholder group working on it and coming up with provisions. Although it is described as a light touch scheme, it will be up to the stakeholder group to decide how far it wants to take that.
68. Mr F McCann: When will we get that information, which will input to the Committee's ability to deal with the matter?
69. The Chairperson: The Bill enables the scheme to be created. The meat will be put on the bones later.
70. Mr Sands: The regulation will be subject to affirmative resolution, so it will go through the Committee.
71. The Chairperson: As would any mandatory registration scheme of that type.
72. Mr F McCann: Yes, but does that mean that it will come into effect a year or two years into the next mandate? When I raised the issue during the passage of the first Bill, we were guaranteed that it would be dealt with in this Bill. The former Minister said that robust action would be taken to ensure compliance in the broader private rental sector. We are now being told that we can bring in legislation that allows us to do that, but it could be years down the line before it comes into effect. This is at a time when there is talk of widening the remit of the private rented sector in the provision of social housing.
73. Mr Sands: The provisions in the Bill enable the subordinate legislation to be created. Discussions are taking place at present. It depends on how quickly opinions are formulated. As I mentioned in my opening statement, various groups are involved, including the major stakeholders. We hope that there will be agreement across the board. Once agreement is reached, the subordinate legislation will follow. Of course, that will have to go through this Committee.
74. Ms Lo: A lot of my questions have been asked already. There are anomalies in immigration and homelessness law here. You are saying that the necessary adjustments are technical ones. In many ways, I agree with you. I know that people's applications are refused if they are not eligible to get benefits in Northern Ireland. There is a wider picture to consider. What are we going to do about the people who still turn up? You said that there are only about 10 people a year. The voluntary sector is saying that it is taking on the cases of a lot of people with no recourse to public funds. If we do not help those people, they are going to be sleeping rough. How will we address that issue? You are the public housing provider.
75. Mr Baird: Unfortunately, a public housing provider can provide public housing only for those who are legally eligible for it. We do not deny that there is a problem to do with people who are not eligible for housing. As Ms Lo says, they may well end up on the street. There are agencies that interest themselves in those situations, such as voluntary bodies and registered housing associations. The Department has talked to those organisations about the issue. We have told them that we are prepared to help in any way that we can, within the law, to deal with the situation. However, we cannot provide money. We are forbidden by law to provide public funds to persons who are not eligible.
76. Anything else that we can do within the law, we will do. For example, the Department can grant registered housing associations consent to provide accommodation for people who are not normally eligible, which at present they are not permitted to do, as long as the association can find funding from elsewhere to do that. That is one way in which we are prepared to help out. Nevertheless, the possibilities are quite limited.
77. The Home Office also has a responsibility in the area. It has been increasingly interesting itself in the issue of ineligible persons from abroad who are sleeping rough in various parts of the country, and it may well roll out an initiative. Unfortunately, as a public housing authority, our role is quite limited.
78. Ms Lo: In many cases, those people are not illegal immigrants. They are migrant workers who have not worked for more than 12 months under the worker registration scheme.
79. Mr Baird: That is correct.
80. Ms Lo: If they lose their job, they are not entitled to homelessness assistance.
81. Mr Baird: It is a kind of technicality as to what constitutes an illegal immigrant. Nowadays, we tend to talk about people who are undocumented, because we are talking more about a bureaucratic issue than one of people who are committing a criminal offence by their mere presence in the country. However, I should explain that, in the cases of people who are EU workers and who have lost their accommodation, they lose their eligibility because of that change in circumstance. A recent legal decision handed down by an English court said that those people ceased to be persons who are not subject to immigration control, as EU citizens normally are. Because they have lost their employment, and because they have ceased to exercise their treaty rights to be in the UK, the court has said that they have become persons subject to immigration control and that that brings them into the raft of the strict Home Office legislation and, for legal purposes, takes them out of the EU migrant worker category and puts them into a different category altogether. That situation is not even in legislation: it was a legal decision handed down by the court.
82. Mr Brady: With regard to your last point, I presume that that case would be taken to a higher appeal. The court has said that they lose their treaty rights, but the whole ethos is based on freedom of movement for work. They could be looking for work, even though they do not have it any more.
83. My point might sound simplistic, but I want it clarified. The Bill will be enabling legislation, and you referred to putting meat on the bones at a later stage. If this enabling legislation goes through but, at a later stage, the meat is not what it was initially thought that it might be, I presume that the process can be reversed. Are we putting through legislation that may enable weaker legislation to be put through at a later stage? Is that possible?
84. Mr Sands: No, that would not be the situation. Primary legislation will always create the situation and the bones to deal with a particular scenario. I have explained on previous occasions that primary legislation cannot and should not include the smaller provisions that might need to be changed or adjusted. That is why there is always the opportunity to include those in subordinate legislation. When we put the contents of that subordinate legislation through, it will be subject to affirmative resolution, it will go through this Committee and members will have all the opportunities to comment and to suggest what should be in it. If members are not content or think that it should be stronger, it is up to the Committee to require that.
85. Mr Brady: That is the point of issue. The stakeholder group is looking at how light the touch may or may not be, but, if that touch is too light and the proposed legislation on the regulation of the private rented sector is not strong enough, we can change it. I just wanted that clarification.
86. Mr A Campbell: Light touch does not necessarily mean lightweight. We are talking about a system that will not force landlords out of the market, because they are an important part of it, as you said. We want to gather information on all of them comprehensively, but it will be something that will not be too onerous and prevent landlords from being landlords. They will not have too high a regulatory burden to —
87. Mr F McCann: It is also a sector that has increased by about 40% or 50% over the past number of years. Some of the people who have come into it run fairly shoddy houses. The question is how to deal with that. The sector gets £90 million of public money each year.
88. Mr A Campbell: It is really about getting the information, so that we can enforce within the sector. That is what the registry will do.
89. Mr Brady: I came across a case recently of someone who was given temporary accommodation in a flat in Newry, which is certainly not up to standard, yet it costs £157 a month. That is the sort of thing that needs to be addressed. When we heard a presentation from the landlords sector, we were told that they are very much in favour of regulation, because they feel that the vast majority of landlords are good landlords, and I think that most people would accept that. However, there is a need to legislate for those who are not. It has been mentioned that £85 million to £90 million is paid in housing benefit each year. That is a huge amount of money to be unregulated.
90. Mr Sands: Yes, I agree with that.
91. Mrs M Bradley: I want to ask a question that relates to community safety. The issue of people keeping animals in their homes and their yards needs to be included in tenancy agreements. Animals are allowed to roam free all over estates. That is something that we have a massive problem with, and there have been a few very serious injuries. In a housing estate recently, an elderly person using a walking frame received very serious injuries when two dogs knocked her over in the street. Of course, nobody took responsibility for that. How do you build it into the tenancy agreement that only one pet is to be kept in order to control that?
92. Mr Sands: To build it into it —
93. Mrs M Bradley: For the sake of community safety, how do you put it in and apply it?
94. Mr Sands: You put the provision in the tenant's agreement, and it should be included.
95. Mrs M Bradley: But the Housing Executive does not enforce it.
96. The Chairperson: Is that sort of issue something that was going to be included in the provisions for antisocial behaviour?
97. Mrs M Bradley: I think that it has to be included, because the problem is becoming a peril.
98. The Chairperson: It is a stretch to describe having two dogs as antisocial. In some people's eyes, kicking a football is antisocial.
99. Mrs M Bradley: Does the issue come under antisocial behaviour or where does it fit in?
100. Mr Sands: Ultimately, the control of the dog is the responsibility of the owner, who may be the tenant. It is up to him to control that animal. However, I have to be honest and say that we have not thought of that.
101. Mrs M Bradley: In small housing estates, is it acceptable that everybody has to suffer because of the problem? I know that it is a difficult issue, but it is one that there are big problems with.
102. The Chairperson: Is the issue of dogs included in the guidance to the Housing Executive on antisocial behaviour?
103. Mr Baird: It does not feature in that guidance at the moment, but it may be appropriate to revisit that.
104. The Chairperson: It may well be.
105. Mrs M Bradley: Please do that.
106. The Chairperson: The poor dogs are often better behaved than the owners.
107. Mrs M Bradley: I am a dog lover; I am not against dogs. It is the people who have the problems, and they just cannot deal with dogs. No one else wants to deal with them.
108. The Chairperson: Some weeks ago, a lady asked me if we could have licensing for cats.
109. Mr F McCann: I think that Mary is barking up the wrong tree.
110. Mrs M Bradley: It would be grand if you would revisit it. The Housing Executive would need to work in conjunction with councils on that, of course.
111. Mr Sands: You are giving new meaning to the phrase that even the dogs in the street know about it.
112. The Chairperson: Mr McCann has already said that we are barking up the wrong tree.
113. Mrs M Bradley: Years ago when a person got a house from the Housing Executive, the issue of keeping animals was one of the things contained in the tenancy agreement.
114. The Chairperson: There are certain types of accommodation, such as flats, in which a person is not allowed to keep animals. However, the regulations are frequently breached, and that has to be dealt with. It may well be something that has to be looked at again.
115. Mr Sands: We will look at that.
116. Mr Brady: Will it be restricted to dogs? We should take an overarching view.
117. The Chairperson: What about people? Or tigers?
118. Mr Sands: Feral animals?
119. Mr F McCann: Badgers?
120. Mrs M Bradley: If dogs roam the streets, that is a problem.
121. The Chairperson: I think that this is getting out of hand, so I will draw it to a conclusion. Thank you very much. We are in the early stages. The Bill reaches its Second Stage next week, and I am sure that you will be back frequently throughout the process. There will be more of what we had today, I am sure. Thank you very much, and we will keep in close contact as the Bill progresses.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Alex Easton
Mr Tommy Gallagher
Ms Anna Lo
Mr John McCallister
Mr Fra McCann
Witnesses:
Mr Stephen Baird |
Department for Social Development |
122. The Chairperson (Mr Hamilton): Joining us this morning from the Department for Social Development (DSD) are Michael Sands, Alastair Campbell and Stephen Baird. You are all very welcome again to the Committee. I remind everyone that all mobile phones should be switched off, because, as you know, evidence sessions on Bills are always recorded for Hansard.
123. I invite you to brief members on the Housing (Amendment) (No. 2) Bill and on some of the issues that lie behind it. I will move to questions after that.
124. Mr Michael Sands (Department for Social Development): Good morning. I welcome this opportunity to discuss the Housing (Amendment) (No. 2) Bill once more with the Committee. As you are aware, the main focus of the Bill is on improving the regulation of the private-rented sector; providing new powers for improving energy efficiency and tackling fuel poverty; and improving the operation of some aspects of existing housing law.
125. If you are content, Chairperson, I will give a brief summary of each clause, followed by a description of the Government amendments that the Department proposes to table. There is quite a number of Government amendments, many of which the Committee has raised already. Several are quite substantial — I will deal with those in some detail — while others are purely technical. I have provided members with a briefing that sets out in more detail the purpose and rationale behind each proposed amendment. We will, of course, be happy to answer any questions at any point during the briefing.
126. Chairman, can you give me a steer as to how you want me to proceed? Will I run through the whole thing, or do you want me to stop after each clause?
127. The Chairperson: We will go through each clause and stop to see what we think. The problem with doing that is that we can sometimes get bogged down in a discussion of other matters. However, we will give it a go. If everybody is well behaved, that should work.
128. Mr F McCann: Are you talking about the officials or us?
129. Ms Ní Chuilín: I think he is talking about you, Fra.
130. The Chairperson: I thank the Deputy Chairperson for that — it saves me having to be diplomatic. I am talking about myself.
131. We will try to go through each clause and then see whether any issues arise. If that does not work, we will try something else.
132. Mr Sands: I will summarise the details and stop after each clause.
133. Clause 1 would repeal article 4 of the Private Tenancies (Northern Ireland) Order 2006. It would effectively remove some existing duplication and would ensure the amalgamation of all the relevant information into a single place for the benefit of the private landlord and the tenant. The same amount of information will continue to be provided, but in a much more straightforward way. The Department will subsequently make new rent book regulations that will set out exactly what information must be provided, together with the detail that is required.
134. The Chairperson: If members have no issues that they wish to raise, we will move on.
135. Mr Sands: Clause 2 would enable the Department to make regulations to provide for one or more tenancy deposit schemes to safeguard deposits that tenants pay in the private-rented sector. The clause would also place on landlords a number of obligations that relate to such schemes; for example, the timescale within which the deposit that is received from a tenant must be placed with the scheme and the information that they need to give to the tenant.
136. The Chairperson: Would the Housing Executive hold deposits?
137. Mr Sands: No. The proposal is that a different body or person would do that. Provisions currently exist in England, where the tenancy deposit scheme is available. We might back on to something similar. No decisions have been taken on that yet, because we always want to take on board the Committee's considerations. However, the Housing Executive would not hold deposits.
138. The Chairperson: It sounds like a good scheme. It might be useful to explain why the Department considers it necessary. I understand why, but it might be useful to refresh our memories.
139. Mr Alastair Campbell (Department for Social Development): The scheme is intended to deal with cases of disputes on deposits; for example, in disputes about how much has been paid or whether any of it is to be returned. In some cases, an independent arbitrator will hold the deposit. In other cases, a bond will be offered. If there are any disputes, those independent arbitrators will look at them and try to resolve them. In England, two schemes have fairly good rates of doing that. One of those schemes usually resolves most disputes within 46 days, and the other resolves disputes within 20 days. Therefore, it is about having an independent arbitrator to make those decisions.
140. Ms Ní Chuilín: The body that is responsible for the deposit scheme cannot be independent if it accepts deposits. Is that what happens in England?
141. Mr A Campbell: They are non-profit and are not part of government. They take deposits and hold them. However, they do not work for either the tenant or the landlord.
142. Mr Sands: In fact, they do not work for any of the housing bodies. That is what we think of as being independent.
143. Ms Ní Chuilín: Therefore, does that mean that they do not work for anyone and that they are non-profit?
144. Mr A Campbell: They will be regulated by the Department.
145. Mr F McCann: In the South, a tenancy body was established to oversee the holding of deposits and the settling of disputes. That is a good idea. There is widespread abuse in the private-rented sector. We have to ensure that any such body that is brought in is, obviously, independent and has the experience to deal with that type of issue. Plenty of organisations exist that could do that. It is a matter of getting the mix right, which means being able to represent tenants while also giving the landlord a fair deal.
146. Mr Sands: We agree totally with those comments.
147. I will deal with clauses 3 and 4 together, Chairman, if I may. Clause 3 would confer powers of entry on persons who are authorised by district councils to carry out fitness inspections under article 36 of the Private Tenancies Order. Where necessary, clause 4 would enable the Department to make regulations to modify certain provisions of the Order that relate to the determination of private sector rents. Under the existing system, that requires a change to primary legislation that would take at least 12 months to process. Rents that are determined by the rent officer remain protected, as do statutory rents and rents of unfit properties.
148. Mr F McCann: Some councils that work under the Private Tenancies Order still say that they have difficulties with it and that elements of it have no teeth to allow them to pursue landlords who rent unfit properties. They may face small fines, which they just take on the chin and walk away from.
149. Mr Sands: The devil will be in the detail, Mr McCann. We will have to make regulations to specify the Bill's provisions. That will be the opportunity to —
150. Mr F McCann: Will they be laid out clearly?
151. Mr Sands: Yes. Those provisions and penalties would be laid out.
152. Clause 5 would enable the Department to make regulations providing for the mandatory registration of private landlords. The clause would also introduce a number of offences on the provision of false information, letting of dwellings by unregistered persons and failure to provide evidence of registration.
153. The aim of the legislation is to achieve a regional landlord register, which, for the first time, would give local councils the means to communicate with private landlords, allowing the councils to work with those landlords to ensure compliance, raise standards and, where necessary, take enforcement action. The scheme will be light touch to avoid a disproportionately regulatory burden on the sector.
154. This is an appropriate point to mention that we plan to table a minor textual amendment to clause 5. There are two references in the clause to application for registration: one to "applications for registration"; and one to "applying for registration". However, as this is a mandatory scheme, there will be no need for landlords to apply for registration. Therefore, we propose that those references be removed.
155. Ms Ní Chuilín: We will wait to see the detail.
156. Mr F McCann: As Michael said, the devil is in the detail.
157. The Chairperson: The members are right. This is enabling legislation. We are not talking about the details of the scheme at this stage. Is the Department advanced in its planning for a scheme, or has it not started work on that yet?
158. Mr Sands: We have looked at the provisions that are required and at what we want to put into the regulations. Mr McCann is concerned at our reference to a light-touch approach. We want to make sure that it is fair and appropriate as far as the landlords are concerned and that it is not over-bureaucratic. You have to take cognisance of the fact that there are quite a few single household private landlords, so it is about making sure that we try to catch all of them.
159. Mr F McCann: Michael is right. Quite a number of people own one, two or three houses. They go to great lengths to ensure that they provide good properties, because it is in their interests to do so. Whenever we talk about landlords, we are, by and large, talking about those who own hundreds of houses, some of which are in very poor condition.
160. I want to talk about a couple of elements. The fact that the Bill is an enabling piece of legislation puts on the long finger the possibility of the provisions' coming in within the lifetime of this mandate. It will be left to the whim of the next Assembly. I have some concerns about that. We are not dealing with a small sector. For the first time ever, this sector is bigger than the social housing sector. There are 140,000 houses in the private-rented sector. Not all those houses are in a bad condition, but those that are give the whole sector a bad reputation. As you say, Michael, the devil is in the detail, and we need to see what we are going to do with it.
161. One issue that needs to be included is the management companies that have sprung up over the past number of years. Private landlords and others are regularly using those companies to run their businesses, and some of them do so fairly badly. Not long ago, the Assembly discussed a motion on management companies and the abuse that is connected with them. That needs to be included in any Bill.
162. I thought that we could have plagiarised the Housing (Scotland) Act 2006, because I think that it is continually being added to. There may have been problems with it at the start, but I think that those have been rounded off, and it seems to be working fairly effectively. Some stuff has come from the Scottish Parliament about how it initiated the Act. It seems satisfied that councils in Scotland are starting to find the right way to deal with the matter. We could have lifted from that Act, because it deals with compliance. They say that their scheme is "light weight", but it deals with compliance, and there is a lot more in the compliance end to allow them to deal with non-compliant landlords.
163. Mr A Campbell: There are three parts to that. I will begin with your comments on the enabling aspect of the Bill. While we have been taking the Bill through, we have been able to work on the details. The policy team expects to be able to take the regulations to the departmental solicitor as soon as the Bill receives Royal Assent. That should save us time. It is unlikely that we could have included the detail in primary legislation and then taken that through in this mandate. This way, we can get the enabling powers in this mandate and continue with the detail as soon as that happens. I hope that that answers the first part of your question.
164. Mr F McCann: On the enabling end of it, the March before last, the Minister for Social Development said in the Assembly that regulations would be introduced in this mandate to help people to be able to deal with landlords. It has been a growing concern for us, because many of us live in areas where the private-rented sector has started to overtake the residential nature of the area.
165. Mr A Campbell: I take your point, but it will be quite tight to even get the Bill through in this mandate. Therefore, we will work to get the regulations through as soon as possible afterwards.
166. With regard to your second question about management companies, the plan is to include letting agents in the register. Therefore, if a landlord employs an agent, their details will also be included in the register.
167. I think that your third point was about Scotland, and we agree that they have taken a good approach. Initially, they sensibly introduced the register for landlords, and it was only after it had been in operation for a while that they started to look at tougher compliance rules. Therefore, the first step for us is to get the register up and running.
168. Mr F McCann: I have to labour this point. There is a big difference between getting the registration scheme up and running and introducing compliance regulations. There could be years between those things happening. It has taken years to get the thing right in Scotland. If some of the regulations were lifted out of the Scottish model and introduced here, it would allow you to move at the same time. Also, from what I have read, there does not seem to be any time frame to say that, six or 12 months from the enactment of the legislation, all landlords will have to be registered. That needs to be included, because if it is open-ended, most of them will never register.
169. The Chairperson: I understand your point, which is that you would like all landlords to register. The percentage of take-up for houses in multiple occupation (HMO) registration is very low, is it not?
170. Mr F McCann: It will go on for ever.
171. Mr Sands: Just yesterday, I queried with the Housing Executive the activity rate at which it is trying to achieve the targets that were set in the Programme for Government, in the HMO strategy and in the Housing Executive plan. It is not meeting any of those targets in any of the three documents. Therefore, we have already gone to it about that.
172. Mr F McCann: That is down to the HMO landlords, but some people in the Housing Executive are trying to pursue the issue.
173. Mr Sands: We are so concerned about it that I now get a report in my monthly meeting with the Housing Executive on exactly what it is achieving. I assure you that I will check with it on that issue.
174. The Chairperson: That highlights the problem that Fra hinted at. You already have a form of registration for private sector landlords, but that is neither hitting its targets nor succeeding. There are also issues about landlords who have registered and say that they know that others have not. They also say that they feel that they are not getting a lot of out being registered. That is something that should be dealt with when we get into the detail. Undoubtedly, however, everyone who will register for the scheme will have to pay a fee, and they should feel that they are getting something for it. In fact, some people will have to pay quite large fees.
175. Mr Sands: The Department shares your concern about that. I assure you that we have pulled the Housing Executive on that to try to get it to catch up, but it has come up with all sorts of excuses.
176. Mr A Campbell: There is an amendment that we will come to later about information sharing that should give more information and address some concerns about rates and housing benefit.
177. Mr F McCann: The mandatory registration is worth nothing if it does not include compliance rules. If you bring that in nicely without having whatever restrictions you need to introduce to ensure compliance, it will go nowhere.
178. Mr Sands: We have to be careful. We will probably include in the regulations the requirement to register by a certain time. Compliance, difficulties and penalties will all be set out, and the Committee will have the opportunity to comment on all that.
179. Ms Lo: Will landlords' details be open for public access on the register of landlords?
180. Mr A Campbell: We do not plan for landlords' personal details to be made public, because there could be risks with that. Those details will be held for the registrar and for prescribed people to be able to access it, but the details of the actual properties that they own will be on a public register.
181. Ms Lo: If there were a lot of antisocial behaviour in a house and a neighbour wanted to get in touch with a landlord, how would they go about it?
182. Mr A Campbell: I suppose that is more for the detail of the Bill, but I suspect that if they approached the registrar, he may be able to help them. However, it is tricky to say, given all the data protection issues that exist. It might be an issue that can be discussed later in the process, following the introduction of the regulations.
183. Ms Lo: A lot of residents in South Belfast have problems in trying to find out who their landlord is to make complaints to them.
184. The Chairperson: I do not want to get bogged down in the detail, but that is an interesting point. The point has been made that we are making the legislation and regulations will follow. Therefore, it is worth getting our thoughts going on the matter, and this is a chance to have some input into that process. If we want registration, there would be a requirement to have and maintain standards. We were talking about fuel poverty earlier, and the strategy in that area is talking about having certain standards in accommodation. Would you see mandatory registration as a means of ensuring that standards of accommodation are maintained? I appreciate that that would probably cause some concern among landlords, but others made the point that it must have some teeth, and, even if it is light touch, it has to be worth having.
185. Mr F McCann: It has to be effective.
186. Mr A Campbell: When I was looking at the legislation, I made a list of all the compliance laws that are already available to councils. There are quite a few, but the main issue that councils are having is the lack of information that they can use to apply those laws. That came out in the consultation on the private-rented strategy. I drew up a flow chart, which I am happy to share with you.
187. The Chairperson: That would be very good. It would be useful for the Committee to have that. We know what we are doing here, and we are as frustrated as Fra. We are not adding meat to the bones at this stage, but it is useful for the Committee to start getting its head around what can be put into the scheme. We can then start to develop our thoughts on that.
188. Mr Brady: I want to make the point that we are talking about a sector that gets in the region of £80 million a year in housing benefit, yet it is totally unregulated. That would not happen in any other sector where that amount of money is being paid by the Government. That is something that needs to be addressed.
189. Mr Sands: This is the opportunity to start regulating this sector and to see how we move forward. Alastair talked about the provisions that currently exist, and we need to be careful about that, because we would not put into regulations a requirement that is already there. That would create a double standard. Therefore, if the Committee could look at the provisions that are currently in place, it would help us to see what else needs to be added to our regulations.
190. The Chairperson: If nobody else wishes to comment, we will move on.
191. Mr Sands: Clause 6 would allow landlords who have committed certain offences relating to landlord registration or tenancy deposit schemes the opportunity to discharge their liability through a fixed penalty. Although prosecution will remain an option, the provision would allow councils to effectively penalise private landlords who cannot comply with the law without resorting to costly court proceedings in all cases. Councils can use the income from fixed penalties to offset the general cost of enforcement in the private-rented sector.
192. Mr Easton: Would a fixed penalty be issued only for a first offence? What would happen if landlords kept doing it? Would you take them to court, or would you just keep issuing fixed fines?
193. Mr Sands: The fixed penalty is the option that is available for a first offence. If landlords were to continue offending, we would not keep issuing fixed penalties. The cost of the fixed penalty would be no encouragement for them to do anything because of the rent that they would be collecting. Therefore, we would then go for prosecution.
194. Mr Easton: How much would the fixed penalty fine be?
195. Mr A Campbell: It would be one fifth of the maximum fine. It would depend on the offence, but it is helpful to have a fixed penalty. It is a good way of putting sanctions in place without having to resort to expensive court proceedings. It also means that, in essence, there is a minimum fine, which is one fifth of the maximum penalty. If the issue went to court proceedings, it is unlikely that the court would instruct that a fine be less than that.
196. Mr F McCann: I was reading about a level 4 fine. Am I right in saying that that is £2,500?
197. Mr A Campbell: That is right.
198. Mr F McCann: We are talking about one fifth of that, so the fixed penalty would be around £500. People who deal with HMOs have told me that landlords from that sector were getting a £1,000 fine, taking it on the chin and just going back to their bad habits. Therefore, a level has to be brought in to ensure compliance, because at the end of the day, in many ways, we are dealing with people's lives.
199. Mr A Campbell: An amendment will be proposed to the Bill to increase the maximum fines for failing to register an HMO to £20,000.
200. Mr F McCann: That is in the HMO sector. We are also talking here about the general private rented sector.
201. Mr A Campbell: There is a difference between them.
202. The Chairperson: We raised that issue about HMOs before.
203. Mr Sands: Clause 7 would ensure that regulations relating to tenancy deposit schemes, landlord registration and determination of rents are subject to the draft affirmative resolution procedure. That will give the Committee the chance to have an input.
204. The Chairperson: Therefore, that means that the Assembly will also have an input into that.
205. Mr Sands: Clause 8 would provide that where the Housing Executive believes that a house is occupied by two or more qualifying persons who are not members of the same family, it may require evidence of a family relationship. Where such evidence is not forthcoming, the house would be treated as a house of multiple occupation and would be subject to the regulatory regime that applies to such accommodation.
206. The Chairperson: What sort of evidence are you talking about, and what would constitute evidence?
207. Mr Sands: Proof will be required that the inhabitants have a family connection, such as being brother and sister, for instance. That could be proven by birth certificate, driving licence, passport or whatever is available.
208. The Chairperson: One way to prove it is by blood test. [Laughter.]
209. Ms Ní Chuilín: Why do we not go for DNA?
210. The Chairperson: I am not advocating those methods, by the way.
211. Mr Stephen Baird (Department for Social Development): We are talking about documentary evidence.
212. The Chairperson: That is fine. I did not want to think of teams of people in the Department running around after others.
213. Ms Ní Chuilín: What about cohabitation? Is that regarded as a family relationship?
214. Mr Baird: There are different legal definitions of family relationships for different purposes. Broadly speaking, a cohabiting couple would be treated as a married couple. On that basis, I think that it is likely that theirs would be treated as a family relationship.
215. Ms Lo: I think that it extends to uncles and aunts; it applies not only to immediate family.
216. Mr Baird: It would extend to what would be called an extended family, because we recognise that some households comprise an extended family. Essentially, any household that is occupied by a number of different adults is a house of multiple occupation. However, in instances in which those adults are related, whether that is through immediate family or extended family, the family should be capable of looking after its own affairs without government interference. That is why we would back away from cases in which the house is occupied by members of a family unit; we would not subject it to regulation. There is potential for disorganisation, hazards and non-compliance with the rules in those cases where a house is shared by adults who may never have met each other before, who may have no connection with one another and who may be leading independent lives. That is where regulation is required.
217. Ms Lo: It can still lead to overcrowding.
218. Mr Baird: Overcrowding is a separate issue, but my understanding is that there are mechanisms for dealing with overcrowding in houses in multiple occupation.
219. Ms Lo: Some families have a number of aunts and uncles in the same place. There could be 40 or 50 people in one place. Look at Roma families, for example. They are closely related and closely knit. If all that is allowed, you could be talking about 40 or 50 people in a house, without any regulations.
220. Mr Baird: That is true, but overcrowding will have to be looked at outside the scope of houses in multiple occupation.
221. Mr F McCann: Why would that be? Anna's point is fairly valid. Why not capture it all together?
222. Mr Baird: There are situations where there is an extended family that could be classed as a family home or as a house of multiple occupation. On the other hand, you could have a nuclear family, where there are two parents who have a very large number of children. There could be more children than is suitable for the house. That is in no sense a house in multiple occupation. Arguably, it is overcrowded, and it is also arguable that there is a case for regulation in that situation. However, HMO regulation would not catch it in any circumstances.
223. Mr Sands: Clause 9 would insert a new ground for social landlords to withhold consent to an exchange of tenancies where certain orders or injunctions relating to antisocial behaviour are in force or are pending before any court. Housing Rights Services pointed out that, for the purpose of new ground 2A, the relevant orders listed in the clause should relate to antisocial behaviour. Therefore, we propose to amend the reference to injunctions against breach of a tenancy agreement to make it refer specifically to breaches that involve such behaviour. Again, the Committee raised that matter previously.
224. The Chairperson: Members have no comment to make on that, so please continue.
225. Mr Sands: The aim of clause 10 is to prevent the spread of antisocial behaviour. It allows a person to disclose information about the orders or injunctions mentioned in clause 9 to either the Housing Executive or to a registered housing association where such information is required to enable the landlord to make a decision about an exchange of tenancies or the right to buy. The clause also allows a person to disclose information about the above mentioned orders or injunctions to the social landlord where it is required to enable the landlord to make a decision about either the allocation of social housing accommodation, including transfers, or the provision of homelessness assistance.
226. The Chairperson: The Committee has spoken about antisocial behaviour a lot in the past, especially when it was discussing the Housing (Amendment) Act (Northern Ireland) 2010. I think that all members experienced or witnessed particular problems with antisocial behaviour both in their own constituencies and through the work that they do. One such problem was the sharing of information. Will information sharing between social landlords be permitted under the Bill? The old feeling was always that someone may have got rid of a problem but passed it on, and the first that the new social landlord knew that there had been a problem was when another developed.
227. Mr Sands: When the 2010 Act was proceeding, I think that we agreed that it was not the right place for such provisions. We have now included them and are changing the housing association guide and the Housing Executive management statement on financial information systems so that there will be information sharing. I have started discussions with the PSNI about developing an information-sharing protocol with housing associations. One such protocol exists at the moment with the Housing Executive, and we are now introducing another one to allow housing associations to share information. That will mean that there will be total information sharing between the social housing sector and the PSNI, especially on antisocial behaviour.
228. Mr F McCann: It is good to see that that will be included. Having talked to representatives of a number of housing associations, I know that they still have not taken that issue on board. There is still a duty of care to the applicant, more so than to the people who live in the surrounding area. The sooner that that is dealt with, the better. As I have said before, it is hard to believe that one bad tenant can destroy an area. Therefore, the question is how to legislate against that.
229. Unfortunately, I think that we will be coming back to subjects like this time and again. Therefore, all of us need to put our heads together to ensure that legislation is in place sooner rather than later to deal with anything that is to do with antisocial activity in a wider context.
230. Mr Sands: We would have no difficulty at all with that.
231. The Chairperson: I do not think that members have anything to add to that.
232. Mr Sands: Clause 11 would end a legislative anomaly by providing that the Housing Executive's duty to homeless persons shall come to an end if the applicant ceases to be eligible for assistance. The purpose of that change is simply to make it clear that the Housing Executive has no statutory duty under homelessness legislation to persons to whom it cannot legally allocate accommodation due to immigration-related legislation. Again, that is another issue that the Committee raised previously.
233. The Chairperson: It is. However, as matters presently stand, the Executive faces the choice as to which law it wants to break. Therefore, this will take away one of those choices.
234. Mr Sands: It will force it down a particular route.
235. The Chairperson: Yes, it will. There are understandable issues and concerns with the matter. However, it has to be done.
236. Mr Sands: It is Home Office legislation. Therefore, we cannot actually change the provision. I think that the Minister is well aware of that issue.
237. The Chairperson: I do not think that any member has any further comment to make on that.
238. Mr Sands: We touched on the subject of clause 12, which enables the Housing Executive to submit for departmental approval a scheme for brokering arrangements with energy providers for the supply of energy to the Executive's tenants. The intention is to give the Housing Executive the powers to try to drive down the cost of energy for tenants. We propose to table another minor amendment to clause 12. The Housing Executive has indicated that it could be useful for it to have a broader definition of energy. We, therefore, propose to amend the clause to enable the energy-brokering arrangements to include other means of producing heat or any other form of energy that is capable of producing heat, such as sustainable energy provisions, etc.
239. The Chairperson: I think that this is very good stuff. It is something that starts to empower consumers much more. Initially, I thought that it was a bit fanciful. In truth, however, anything that empowers people to drive down energy prices is exactly what the system in which we operate is about. It is about trying to give consumers a helping hand. The issue that I have with the clause is that it does not give all consumers in social housing the power. The Housing Executive is OK; it has 90,000 properties. Housing associations are a significant section and are increasingly so. Are they not included in this?
240. Mr Sands: They already have that power. Under article 15(3) of the Housing (Northern Ireland) Order 1992 registered housing associations have powers to undertake energy brokering. As you know, we pushed them down the procurement route and asked them to brigade together in three groups. We have got them moving as far as the newbuild provision is concerned, and our intention is to move that down to maintenance and energy brokering and so forth. That will ensure that they are using "Tesco power", as we refer to it, with them.
241. The Chairperson: I have seen no evidence of it, but that does not mean that it has not happened. Is there no evidence of them using that power?
242. Mr Sands: Not at this point.
243. The Chairperson: How long have they had the power?
244. Mr Sands: It is in the 1992 Order.
245. The Chairperson: We have been badgering on about fuel poverty and measures to address it. We have 30,000 homes in a sector, and the power exists already. We have been talking about bulk buying from one supplier, but the report in which the Housing Executive and the Department were involved and which was published recently, talked about preferential schemes through which a 10% discount could be given by a named gas supplier or a named electricity supplier. It is something as simple as that. It does not need to be bulk buying; it can be a discount according to usage, for instance.
246. Mr Sands: The difficulty is that, since 1992, there was no competition for energy suppliers, because there was one electricity supplier and one gas supplier. We are getting two gas suppliers in the Province next year.
247. The Chairperson: There are a lot of oil suppliers.
248. Mr Sands: There are two electricity suppliers now. Therefore, the scope exists for them to do it now. It is our intention, along with the Housing Executive, to play one off against the other. We will ask the supplier what discount it will give if we move 10,000 clients to its company. That is the bargaining power that was not available previously.
249. Mr F McCann: Was there already a discount for electricity supply between the Housing Executive and NIE?
250. Mr Sands: I am not sure.
251. Mr F McCann: I thought that there was a 10% discount.
252. Mr Sands: I am not sure, but I will check that for you.
253. The Chairperson: Recently, I saw that the Ulster Farmers' Union had done a deal for preferential rates with one of the gas companies. Therefore, farmers' organisations are doing that, and I thought that it would be more obvious for housing associations to be doing it.
254. Mr Sands: We now have that scope. Previously, they were acting independently. They are now brigaded into three procurement groups. Now that we have got the newbuild up and running, one of the elements that the Minister is keen to push the idea of pooling them together for anything at all that housing associations have to procure in their own right, such as maintenance and legal services, so that they can do so collectively.
255. Mrs M Bradley: You mentioned that some of the housing bodies were under that 1992 Order and that none of them had acted on it.
256. Mr Sands: There has not been the scope. We introduced the provisions, but there was only one electricity supplier and one gas supplier, so they did not have to give any discount. Now that there is competition in the market, we can play one off against the other.
257. Mrs M Bradley: They will have to do it.
258. Mr S Anderson: Is it intended to move into the private sector eventually? Many people who live in fuel poverty rent in the private sector. Would that be a way to encourage registration in that sector? If such a scheme were set up, would private landlords want to come on board and register? We discussed that earlier. There could be some sort of system that would feed into that sector as well.
259. Mr Sands: We cannot legislate for the private sector in that regard. However, where we have already provided or negotiated successfully a deal with a certain company, there may perhaps be an opportunity for private landlords to do so voluntarily —
260. Mr S Anderson: That could be encouraged.
261. Mr Sands: Yes. To encourage further use —
262. Mr F McCann: Perhaps that should be in the Bill.
263. Mr S Anderson: Perhaps it should. We discussed getting landlord registration. Perhaps there is no better way to do that than through a provision in the Bill for the Housing Executive and housing associations. Perhaps that would encourage private landlords to come on board.
264. Mr Sands: It is the old story with that — the more the merrier. The more who are involved, the bigger the attraction to negotiate —
265. Mr S Anderson: A better deal.
266. The Chairperson: I am sorry; it is impossible to compel landlords.
267. Mr Sands: Exactly. You cannot compel them.
268. Mr F McCann: Sydney raised a good point. Can you imagine the negotiating power of a body that represented the private-rented sector, where there are 140,000 houses? That would have great benefits for tenants.
269. The Chairperson: It could include some of the bigger landlords.
270. Mr Sands: Yes. Perhaps we could look at the Landlords Association to see whether there is sufficient interest. You cannot force landlords, however. If costings were attractive enough —
271. Mr F McCann: Did I hear you say, "not yet"?
272. Mr Sands: No. I do not think so. [Laughter.]
273. Mr S Anderson: Good try.
274. The Chairperson: We are close to the time when we will have to take a break for the remembrance service. Perhaps we can get through the rest of the clauses. We will park it and then come back to the other amendments.
275. Mr Sands: There is only really one clause left to discuss; the rest are more technical provisions. Clause 13 would grant district councils the authority to promote energy efficiency in residential accommodation in their own districts. That recognises that a number of councils have undertaken a range of actions on energy efficiency and fuel poverty, and it seeks to formalise that position. As the Housing Executive is Northern Ireland's sole home energy conservation authority, councils will also be required to take account of its work in that area and provide it with information as required. Again, it is pushing the same themes on energy efficiency.
276. The Chairperson: Is that fair enough, members? Am I right to say that the next few clauses are quite technical?
277. Mr Sands: Clauses 14 to 17 set out the repeals in the Bill. They would enable the Department to make provision on the commencement of clauses 1 to 14, provide definitions for terms that are used in the Bill and establish the Bill's short title.
278. The Chairperson: OK. Fair enough. Do you want to talk about the other amendments quickly?
279. Mr Sands: Yes, certainly. During the Second Stage debate on the Bill, the Minister indicated that we would examine the scope for tabling amendments to cover issues that were included in the consultation paper but were excluded from the Bill due to lack of time. Members have raised that issue.
280. Of those, there are a variety of technical amendments that it may now be possible to take forward and that we feel will help to improve existing legislation. They include the repeal of the rent surplus fund, which removes the requirement for housing associations to carry out certain accounting procedures for which there is no longer any need. The amendment that relates to the service of documents simply ensures that there is clear legal cover for the Housing Executive to serve legal documents by post. There are amended procedures for dealing with abandoned tenancies, and those will allow the Housing Executive and other registered social landlords to regain possession of abandoned houses that are let under secure and introductory tenancies without being required to enter the premises, which they are currently required to do. There is the introduction of indemnities for Housing Executive staff, whose duties require them to be involved in the governance of housing-related institutions and bodies that are outside the Housing Executive. There are improved partnership arrangements that would allow the Housing Executive to work in partnership with other persons and bodies if the arrangements are likely to lead to an improvement in the way in which certain functions are exercised.
281. I mentioned a number of minor technical amendments on energy brokering, community safety and landlord registration provisions that better reflect the policy intention. The Housing Executive will also be granted the power to enhance community safety. As you know, from time to time, the Housing Executive participates in crime prevention initiatives, but it has no legislative power to do so. The amendment would provide the Housing Executive with statutory authority to take action to enhance community safety.
282. I do not propose to go into those in detail. I will, of course, be happy to answer any specific questions that members may have. The written briefing also contains more details on each of the amendments that are being taken forward. Do you want me to continue?
283. The Chairperson: I think that members are happy enough with all that. Is there anything else left to do?
284. Mr Sands: There are other, more significant amendments that I want to focus on. That would give you the opportunity to discuss them.
285. The Chairperson: In that case, we will have to take a break.
286. Mr F McCann: I want to make one point. I noticed that the Housing Rights Service paper actually mentions two old friends of ours: "may" and "shall". We need to come back to that.
287. The Chairperson: We can come back to that later. We will suspend the meeting now and come back at around 11.15 am. Thank you very much.
288. The meeting was suspended at 10.35 am.
289. The Chairperson: Michael, when we left it, we had gone through the other amendments, and you said that you had some more substantive points to raise.
290. Mr Sands: As you said, before the break, I covered a variety of technical amendments. There are some more significant government amendments that focus on the private-rented sector and dealing with antisocial tenants. The provisions that they cover include extending the notice to quit. The lack of security of tenure can be a problem for tenants who are seeking a long-term housing solution in the private-rented sector. The amendment will offer increased protection where a tenancy has lasted for more than five or 10 years. Tenancy of accommodation that has been lived in for over five years will be given eight weeks' written notice, and those whose tenancies have lasted for more than 10 years will be given 12 weeks' notice.
291. The private-rented sector can be relatively short-term transitional tenure for some tenants. Therefore, where a tenancy has lasted for less than five years, the notice period will remain as four weeks. The amendment will provide greater security of tenure for longer-term private sector tenants, along with a more reasonable period in which to find alternative accommodation, should their tenancy be brought to an end.
292. The maximum fine for non-compliance with HMO registration will be raised to £20,000 to ensure that it will stand as an effective deterrent. The current fine for non-compliance cannot exceed £2,500, and, given that landlords may obtain rental income for each tenant of at least £200, operating illegally is currently worth the risk of a fine. We mentioned that in the Committee this morning. The amendment will make the penalty for non-compliance with the HMO registration process a much more effective deterrent.
293. The proposals for structured guidelines to apply in repossession cases involving antisocial behaviour are intended to ensure that, where the court is considering making an order for possession on the grounds of antisocial behaviour, judges will consider not only the effect that making the order could have on the tenant but the effect that the tenant's behaviour has on their neighbours. That will help to ensure balanced and consistent decision-making.
294. Where legal advice is concerned, the Department hopes to table an amendment to provide for the creation of an information gateway. The private-rented sector strategy highlighted a lack of information on the identification and location of private landlords. That currently makes compliance and enforcement activity difficult for local councils. Although landlord registration would help the Department to build up that information, the availability of existing information in government could significantly assist that. The amendment would enable information relating to housing benefit and the payment of rates, held by the Northern Ireland Housing Executive and Land and Property Services, to be shared with the Department and other relevant bodies to assist the enforcement of private sector housing functions under the Private Tenancies (Northern Ireland) Order 2006 and the Rent Order (Northern Ireland) 1978.
295. The Department seeks to table an amendment to provide for the payment of deposits to tenants. The legislation currently penalises landlords who fail to meet certain requirements relating to a tenant's deposit. The amendment would ensure that, as well as being penalised for committing an offence, the landlord in question would also be compelled to return deposits to the tenant.
296. The written briefing with which we provided the Committee indicates that we were seeking legal advice on all those issues. I am happy to say that we have received that advice and are now working through any relevant issues. We are now confident that that will enable the amendments to be included in the Bill.
297. I hope that I have provided a decent overview of the Bill and the proposed government amendments. We look forward to answering any further questions that you may have, and we hope that the evidence sessions over the coming weeks are productive.
298. The Chairperson: Thank you, Michael. Do members have any questions?
299. Mr Easton: I have a question on the eight weeks' notice for tenants of over five years. Would that be given if the Housing Executive was chucking somebody out?
300. Mr Sands: It would be for private tenants.
301. The Chairperson: Everybody seems satisfied. There must be something wrong; we will find it yet. [Laughter.]
302. Mr Sands: We do not normally get off so lightly.
303. Mr F McCann: We have not finished yet. You still have to come back. [Laughter.]
304. Mr Sands: The devil is in the detail, Mr McCann.
305. Mr F McCann: Whether it is "may" or "shall".
306. Mr Sands: On that, we are happy to go with whatever the Committee sees fit.
307. The Chairperson: We can look at the wording when we go through the clauses.
308. Michael, Stephen and Alastair, thank you very much for your time. We appreciate your help.
11 November 2010
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mr Mickey Brady
Mr Jonathan Craig
Mr Alex Easton
Mr Tommy Gallagher
Ms Anna Lo
Mr Fra McCann
Witnesses:
Ms Fiona Douglas |
Housing Rights Service |
309. The Chairperson (Mr Hamilton): The next item is a briefing from the Housing Rights Service on the Housing (Amendment) (No. 2) Bill. Members have been provided with a copy of the Housing Rights Service's paper on the Bill, and all other relevant information is included in members' information packs. Joining us from the Housing Rights Service are Nicola McCrudden and Fiona Douglas. You are both very welcome back to the Committee.
310. I remind members and witnesses that they should switch off their mobile phones and that proceedings are being recorded for Hansard.
311. Nicola and Fiona, I invite you to make some opening remarks on the Housing (Amendment) (No. 2) Bill and to highlight any amendments that you may wish to propose.
312. Ms Fiona Douglas (Housing Rights Service): Good morning. I want to express our thanks to the Committee for inviting us to give oral evidence on the Housing (Amendment) (No. 2) Bill. We are happy to learn that the Department has taken on board some of the issues that we raised in our written evidence to the Committee and that it will be taking forward amendments to address them. My presentation will focus on the ongoing issues of concern that we highlighted to the Committee in our written evidence. I will distil those as best I can for the Committee and put forward recommendations for addressing them.
313. Clause 1 will effectively abolish the requirement under article 4 of the Private Tenancies (Northern Ireland) Order 2006 for private landlords to provide tenants with a separate statement of tenancy terms. The Department states that it intends to make subordinate legislation to require landlords to include all necessary information about the terms of the tenancy in the tenant's rent book.
314. We agree that there is a need to simplify the arrangements regarding the information that a landlord is required to make available to the tenant. However, the rent book regulations are currently subject to negative resolution. We feel that that warrants thorough scrutiny, given that the Department is doing away with the statement of tenancy terms and is introducing tenant rent book regulations that will amalgamate the statement of tenancy terms into the rent book regulations. The regulations relating to the statement of tenancy terms contain important provisions, and it would be a great loss to tenants and landlords if they were not to be captured in the rent book regulations.
315. To achieve that level of scrutiny, we recommend an amendment to clause 7. Clause 7 would amend article 72(3) of the Private Tenancies (Northern Ireland) Order 2006, which deals with the regulations that are subject to affirmative resolution. The Bill would amend that article to include resolutions relating to tenancy deposits and landlord registrations. We recommend that that amendment be extended to include regulations relating to a tenant's rent book to ensure that the rent book regulations are also subject to affirmative resolution.
316. Clause 2 relates to tenancy deposit schemes. It would insert a new article into the Private Tenancies Order on that. We have concerns about the way that that proposed new article is drafted. There is no statutory requirement on the Department to introduce a tenancy deposit scheme. We know that that is a policy intention of the Department's; therefore, to ensure that it meets that policy objective, we recommend either replacing the word "may" at proposed new article 5A(1) with the word "shall" or including a time frame in the legislation by which the publication of the regulations must be introduced.
317. Our written evidence to the Committee highlights a further point on tenancy deposit schemes. It relates to proposed new article 5B(6), which would cover the requirements relating to a tenancy deposit scheme. There is a discrepancy with the time frame in which the process must be completed. In England, it is 28 days, but the way that the legislation is drafted in Northern Ireland means that the process is required to be completed within 14 days. It is a minor point, but we felt that we should bring it to the Committee's attention.
318. Clause 5 would insert in the Private Tenancies (Northern Ireland) Order 2006 a new article 65A, which would enable the Department to make regulations providing for the registration of private landlords. It is our view that landlord registration is the foundation for improved regulation of the private-rented sector. Our concerns about clause 5 mirror those that we expressed on clause 2, which deals with tenancy deposit schemes. As it currently reads, the requirement is discretionary, and we recommend that it be made an inescapable statutory duty either by replacing the word "may" at proposed new article 65A(1) with the word "shall" or by including a time frame in the legislation by which the publication of the regulations must be introduced.
319. We also highlighted for the Committee that consideration should be given, where appropriate, to extending the register to cover agents and managers. That might apply to, for example, landlords who are resident outside this jurisdiction. They are known as absentee landlords. The level of sanctions by way of fines for a landlord who does not comply with registration is set at a maximum of £2,500. We consider that to be inadequate when compared with the fine of £20,000 for non-compliance with certain elements of tenancy deposit schemes. Our only experience of landlord registration in Northern Ireland has been the houses in multiple occupation (HMO) scheme. There are widespread significant problems with getting landlords to register to that scheme. The Northern Ireland Housing Executive called for an increased fine of £20,000, and the Housing Rights Service supports that. Therefore, if the fine is to act as a deterrent, we believe that it needs to be raised to that level for landlord registration. We believe that that will ensure that the message goes out to landlords that non-compliance is a serious offence.
320. I must point out to the Committee that the explanatory text that relates to clause 6, which is on page 5 of our written evidence, is misleading. It should actually state that a proposed new article 68A, which would allow the landlord who appears to have breached the registration regulations or tenancy deposit schemes the opportunity to avoid prosecution by way of a fixed penalty, should be inserted into the Private Tenancies (Northern Ireland) Order 2006.
321. Clause 6 would introduce a new system of fixed penalties similar to that that is in place for parking offences. To avoid being prosecuted and incurring the associated fine, an opportunity would be given to pay a fixed penalty. As it currently stands, we do not consider that the fixed penalty of £500 for non-compliance with landlord registration is adequate. Therefore, we recommend either one of two things. The fine for non-compliance with certain elements of landlord registration should be appropriate, so we recommend that it be raised to £20,000. That would have the effect of increasing the maximum fixed penalty charge that can be imposed by the council from £500 to £4000. Alternatively, a repeat fixed penalty system could be introduced for persistent offenders whereby they have an opportunity to rectify the situation and are given a time frame within which to do so. If they do not comply, the fixed penalty charge will then be repeated against them.
322. I discussed clause 7 when I dealt with clause 1. Clause 7 would amend article 72 of the Private Tenancies (Northern Ireland) Order 2006 to provide that regulations that are made on tenancy deposit schemes, determination of rents and landlord registration will be subject to the affirmative resolution procedure. Given the proposals to do away with statements of tenancy terms and the risk of losing the extremely important information that they contain, which needs to be captured in the new rent book that will be provided to tenants, we recommend that that amendment is extended to cover regulations that relate to the rent book.
323. Clause 9 would insert into schedule 3A to the Housing (Northern Ireland) Order 1983 a new ground for landlords to withhold consent to exchange of tenancies. We appreciate that the Department has taken on board our concerns and that it is taking forward the necessary amendment.
324. Clause 10 relates to disclosure of information as to orders, etc, where antisocial behaviour is concerned. We consider that the clause's scope, as it is drafted, is quite wide on the basis that the term "Any person" is included. To narrow that scope, we recommend that that is changed to "prescribed persons". The basis of our concerns is that there may be an opportunity for anybody to contact a landlord and make unfounded accusations. It could lead to the landlord being influenced unfairly against a tenant. Therefore, we recommend that that change be made to the clause.
325. We consider that there are ongoing issues in those areas. We are happy to take questions from the Committee.
326. The Chairperson: That is very helpful. Is it fair to summarise your view as being quite supportive of the Bill? Effectively, you mentioned a few of Fra's favourites, such as the terms "may" and "shall", and a couple of minor amendments to ensure that things are done rather than left hanging. It seems that you have no major or significant objections to any element of the Bill.
327. Ms Douglas: No; we broadly support the measures in the Bill.
328. Ms Ní Chuilín: I appreciate that the definition of clause 10, as it is drafted, is fairly wide. It should be prescriptive, and, although we do not want anyone being subject to allegations, we need to be fair across the board. You are not being prescriptive just about housing officers, so could you envisage someone from, for example, a community safety partnership, being involved?
329. Multi-agency meetings are held in the area that I live in north Belfast, and, although some social housing landlords attend those meetings, most do not, with the exception of the Housing Executive, which always attends. When complaints are persistently made, the housing officers at the meetings take information back to people. Private landlords have started to attend those meetings, and they use that forum when there is both evidence and a persistent trail of complaints to deal with. If it is only housing officers who are involved, the process will be frustrated. I appreciate that we need to be fair, but it should not be too prescriptive.
330. Ms Nicola McCrudden (Housing Rights Service): I completely agree, which is why we suggested that "Any person" be amended to "prescribed persons", such as a housing officer, for example. However, that person could also be a member of the PSNI, a council official or a community representative on those bodies that you talked about. We are concerned that "Any person" was too wide a definition and that the person involved should be a legitimate person working in the sector. We would not want it to be a neighbour, for example, as disputes can arise and unfounded allegations can be made.
331. The Chairperson: That is a fair point. It is about testing to make sure that we have the right choice of words so that the provision is neither too inclusive nor too exclusive.
332. Mr F McCann: My question is on tenancy deposit schemes and how you feel they should operate in practice. By the time that this process is over, there will be a number of suggestions about who should actually hold the money. Should a committee be set up to oversee it, or should it be handled by a bank, a credit union, or should an amalgamation of different people be involved? Do you have any ideas on that?
333. Ms McCrudden: My understanding is that the Department is thinking of having a system that is along the lines of what currently operates in England, where two different schemes operate. First, there are custodial schemes in which deposits are paid in and held by non-profit making bodies that are responsible for paying that money back and negotiating with the landlord and the tenant. Secondly, there are insurance-based schemes whereby the landlord can put the money into a private company to cover any losses. Our preference would probably be the custodial scheme, but we can see the merits in landlords having a number of options available to them.
334. We are currently working with the Department and other organisations on the detail. That process has only just begun, but we are engaging with the Department and the councils to come up with models that suit the circumstances here.
335. Mr F McCann: There was some talk a while ago that deposits could be put into a central fund and the interest used for training purposes in the private-rented sector. That suggestion may have been made about HMOs; I cannot remember. If the custodial route is not taken, the scheme will be wide open, and landlords could go to any private company through the insurance route.
336. Ms McCrudden: That is a fair point. The custodial scheme in England worked very well because it built up a bank of money, and interest levels meant that it was almost self-financing. Obviously, in the current economic climate, not as much interest is gained on that money. However, that is still a fair point.
337. Mr F McCann: You will have heard the earlier debate on mandatory registration, and you know that the Bill is now an enabling piece of legislation. The Department seems to be moving ahead with making legislation for mandatory registration, yet it is leaving compliance restrictions to another time. What are your thoughts on that?
338. Ms McCrudden: Fiona talked through the issues and concerns that we have about the level of fines and sanctions that would be imposed. As the old saying goes, the devil will be in the detail of the regulations, the conditions that are attached to registration, and what would happen if a landlord does not comply with those conditions. I am not sure what the thought process is on that or whether those details have been further developed.
339. In our original submission to the Department, we suggested that perhaps a code of practice or guidance could be attached to the registration scheme. Therefore, when a landlord registers, he would be supplied with information outlining all the current legal requirements with which he is obliged to comply. Similar information could also be given to tenants. Currently, there is a lack of information, and a lot of problems occur because landlords and tenants are simply unaware of their rights. Therefore, that recommendation would be one way round that.
340. If a landlord fails to comply, that could then be brought to the attention of the enforcement body. Again, the devil will be in the detail, but that will not be in the Bill. A bit of work needs to be done on that.
341. Mr F McCann: Over the past year or so, there has been some talk — it has probably been more than talk — that the Department and the Executive are moving down the road of using the private-rented sector to ease the housing waiting list. From your experience, do you think that it would be better to ensure that a registration scheme is in place before going down that road?
342. Ms Douglas: Given the level of social housing stock and the issues with its ability to meet need, the registration scheme is a priority for our clients who are renting in the bottom end of the market. There is going to be a greater reliance on the private-rented sector. Therefore, the scheme is a big priority for our clients.
343. Ms McCrudden: Chairman, this comes down to the "may" or "shall" issue. The current wording means that the registration scheme would be discretionary. As you rightly said, if there is a change following the elections, the scheme may not be brought forward. I am sure that the Assembly is behind the scheme. However, we would like registration to be a statutory duty, and, if that does not happen, we would like to see a timescale put in place so that, within perhaps 12 months of the legislation being enacted, the registration scheme would be up and running.
344. Tenancy deposits are a slightly different issue, because it is slightly more complicated to set them up. However, we would be happy to see a scheme in place up to 24 months after the legislation is enacted.
345. Mr F McCann: One of the crucial things coming through is that, although a lot of the Bill is good, some of it could be stronger. There is no real time frame attached to any of the provisions.
346. The Chairperson: I made the point earlier that HMO registration is mandatory. It may be called a mandatory scheme, but it still has its weaknesses. Although the provision is necessary and supported by everybody — some support going a bit further and others support a light-touch approach — is it fair to say that there will be inherent problems in administering the registration scheme and that we cannot expect an overnight panacea to all our problems? Is this at least a start.
347. Ms McCrudden: It is certainly a start. We have always seen the registration of landlords as the foundation. After bringing it in and making the scheme operational, only then will we be able to see what the problems are. This is enabling legislation. Therefore, further regulations can be made if we find that that is necessary further down the line.
348. Ms Lo: If I may, I want to go back to the earlier point that Fra made about the tenancy deposit scheme. We have talked about two different types of schemes: insurance or custodial. Whatever the scheme, we need one that works fast. I have received a number of complaints from Queen's graduates who have had their deposits withheld. Those graduates may be moving out of Belfast and going home, and they perhaps go to places as far as Malaysia or to other parts of the UK to get jobs. They are waiting for their deposits to be returned so that they can use that money as a deposit for their next house. If that wait drags on for months, they are going to be short a months' rent. Which scheme do you think would see deposits returned more quickly? An insurance scheme may take a long, long time.
349. Ms McCrudden: There are schemes operating across the water in which there is vast experience of that situation, so it may be that we should look overseas at how other schemes operate. I agree that the quicker that tenants can get their deposits back, the better. As you said, they are moving on and trying to find accommodation elsewhere, and that money is often needed for a down payment.
350. The Chairperson: I will almost play devil's advocate. A lot of the Bill will put an increased burden on private landlords, not least the proposals on registration, the deposit scheme and security of tenure. Those are viewed universally at this Table as positive developments, but, undoubtedly, private landlords will say that they will put greater restrictions on them. Is there any evidence that similar changes in other jurisdictions, including the introduction of mandatory registration, were a disincentive for private landlords and people moving out of that sector? We have made the point regularly, and Mickey made it earlier, that private landlords are now an essential part of the housing mix here. We need them, and, in some respects, we need them to expand. We need to be mindful of anything that might discourage private landlords.
351. Ms McCrudden: Under the current registration scheme, landlords have to provide only their details, so we do not see how that is onerous on them. Landlords should be used to handling deposits and will have to administer those deposits anyway, and, under the Bill's provisions on tenancy deposit schemes, they will have to comply with the requirement to put deposits into a scheme. They should be doing that anyway, so I am not sure how that could act as a disincentive for landlords.
352. Undoubtedly, some landlords might feel that that is too much and that they do not want to get involved, perhaps because they have only one property, which they inherited. I feel that the larger landlords will be more geared up towards the scheme, and my understanding is that there is an even bigger demand for the private-rented sector than ever before. Hopefully, it will be an expanding market, because demand has increased more than supply. I appreciate that we do not want to introduce regulations on landlords that are too onerous and that force them out of the sector, but I do not feel that the provisions, as they are currently written, will do that.
353. The Chairperson: Have you seen no evidence from other jurisdictions that such changes have led to a disincentive for private landlords?
354. Ms McCrudden: I cannot comment on that; I would need to do some research.
355. Mr F McCann: To pick up on that point, it was suggested a while ago that, because it is in the interests of landlords with only one or two houses to ensure that they provide quality accommodation, they would be excluded from any registration scheme. Do you have any thoughts on that?
356. Ms McCrudden: We have always supported the need to introduce mandatory registration for all landlords. The fact that someone is a tenant does not mean that they should be treated differently, regardless of whether their landlord has one property or 40 properties on their books.
357. Ms Douglas: One of the biggest issues with compliance is knowledge and awareness. Registration is a way of targeting effectively the information to landlords, and, when dealing with issues on which the tenant needs some sort of redress, having the landlord's details is essential. As Nicola said, if mandatory registration were not applied to landlords, it would lessen the rights of the tenant whose landlord is not registered compared with the rights of a tenant whose landlord is registered.
358. Mr S Anderson: How big is the problem of landlords who are registered outside the jurisdiction? You said that you wanted the register extended to cover agents and managers. If a landlord outside the jurisdiction were to rent their property through an agent, do you think that they should give the name of the agent or just their name as the landlord?
359. Ms McCrudden: The councils experience difficulties in trying to enforce requirements on landlords who live outside the jurisdiction. It is not impossible, but it makes their job extremely difficult, given the administrative and staff time that is involved. It can also be quite difficult to get landlords into court if they live in a different jurisdiction.
360. We have proposed a form of registration that is similar to that for HMOs. For example, a landlord living in the South of Ireland or in a completely separate country, such as Spain, France or wherever, could appoint an agent to manage the property, and enforcement action could be taken against that person. Therefore, the landlord pays an agent who lives in the country where the property is, and that agent takes on landlord responsibilities. We propose the introduction of such a system here.
361. The Chairperson: Finally, and moving off the Bill, the Committee will shortly consider homeless review regulations. Does the Housing Rights Service have a view on that?
362. Ms McCrudden: We have pushed for homelessness reviews for a number of years. There has been neither a right to review nor a right to take an appeal on a decision on homelessness to the County Court. We welcome and support the proposed change and look forward to seeing the details in the regulations.
363. The Chairperson: That is everything. Thank you. Your evidence has been very useful and helpful.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Jonathan Craig
Mr Alex Easton
Mr Tommy Gallagher
Ms Anna Lo
Mr John McCallister
Mr Fra McCann
Witnesses:
Mr Declan Boyle |
Landlords Association of Northern Ireland |
364. The Chairperson (Mr Hamilton): This evidence session on the Housing (Amendment) (No.2) Bill is with the Landlords Association of Northern Ireland (LANI). As part of the Bill's Committee Stage, we will hear evidence from various witnesses. I welcome Marnette Lyons, the chairperson of LANI, Joe Nugent, Declan Boyle and Dairmid Laird. Members will have a copy of LANI's submission on the Bill, and another paper has been tabled today.
365. I remind everybody, including myself, to ensure that their mobile phone is switched off. Today's proceedings are being recorded by Hansard. I invite the witnesses to make a brief presentation, after which I will open proceedings to the floor, when I am sure members will have some questions.
366. Ms Marnette Lyons (Landlords Association of Northern Ireland): Good morning everyone, and thank you for inviting us.
367. The private rented sector offers a diverse range of accommodation, as I am sure several of you know. We provide short- and long-term accommodation to a range of tenants who can be retired, professional, students and families, and which includes those receiving housing allowance. We are told that there are almost 40,000 people on the housing waiting list, with almost 20,000 people in housing need. It is apparent to us that government's main interest is in ensuring that the demand for social housing is met, and our emphasis this morning may be more or less on that.
368. We are aware that it makes good sense to government to encourage the private rented sector to meet as much as possible of the demand for social housing. That is because the private sector provides the capital outlay, in that it provides the house. It provides the management and the maintenance and repair. The public sector then pays the tenants their housing allowance. On the other hand, if the public sector provides the accommodation, it has the capital outlay, the maintenance and repair bills and the management, in addition to paying the housing allowance.
369. We have no doubt that the private rented sector is more cost-effective than the public sector. It generally does not have large staff; swanky offices, like some housing associations have; or glossy brochures, etc. Accordingly, it is more cost-effective for the private rented sector to provide accommodation, and it therefore makes good, sound economic sense for government to work to encourage a stable and healthy private sector. That is appreciated by Governments around the world.
370. Mr Dairmid Laird (Landlords Association of Northern Ireland): I would like to make just two small points to the Committee. One of the amendments to the Private Tenancies (Northern Ireland) Order 2006 is around powers to determine certain private sector rents. When the last major piece of legislation came in prior to the 2006 Order, which was the Rent (Northern Ireland) Order 1978, the initial reaction was a withdrawal from investment in the market. Landlords were reluctant to spend money on their properties because they felt that the money that they spent would not necessarily be reflected in the rent. Fortunately, at the time, the Housing Executive introduced its improvement grants, and one offset the other. Obviously, in the position that we are in, further improvement grants are unlikely to be forthcoming, and therefore powers to affect private sector rents should be treated with caution.
371. The other aspect is the provision for sharing of information regarding antisocial behaviour of tenants. A lot of the problems regarding antisocial behaviour tend to be the responsibility of the tenants rather than the landlords. It seems slightly bizarre, therefore, to consider a register of landlords as opposed to a register of antisocial tenants. It is the tenants who tend to cause the problems.
372. If antisocial tenants are removed from their property in the public sector — if they are thrown out or evicted — they have to be picked up by somebody, and that is invariably the private sector. We end up having to house them, maybe by putting them into a stable community and destabilising it. It would be handy if we were able to find out whether they were subject to an injunction or some sort of anti-social behaviour order (ASBO). It seems slightly strange, as I said, that the information will be shared among housing associations so that they will have the opportunity to refuse the tenant's application, yet the private landlord will stumble into it, pick up the financial and other costs, and possibly lose other good tenants.
373. Ms Lyons: Before we go into the specifics of the Bill, I would like to say that when the Government published 'Building Sound Foundations: A Strategy for the Private Rented Sector', we were very encouraged by the Minister's objective of:
"encouraging the development of a healthy private rented sector capable of responding more effectively to housing need in Northern Ireland."
Unfortunately, that objective has been totally ignored in the Housing Amendment (No.2) Bill, the purpose of which is:
"to enable better regulation of the private rented sector".
In other words, the bureaucrats take over.
374. With regard to the economics of providing housing in the private sector, we have distributed a copy of the actual costs based on a £100,000 three-bedroom house, as it might be today, and £200,000, which might have been a reasonable cost at the peak. It is apparent that the rents received from the tenants through housing allowance do not cover the true cost of providing accommodation. Former Governments in the UK and Ireland encouraged people to become involved in the buy-to-let market in order to secure their financial status for later in life. It is not entirely surprising, therefore, that a University of Ulster survey, which was carried out not so many months ago, indicated that 50% of landlords in Northern Ireland entered the market in the past five years, and most of them probably did so in the past three or four years.
375. It is apparent from that survey that 50% of landlords are now sitting on quite substantial amounts of negative equity and will inevitably face grave financial hardship. This is the true picture, which is very different from the Government's apparent perception that landlords are very wealthy; it is quite the reverse. Many people who rent out accommodation are not landlords and do not own their properties, because they took out interest-only loans. However, they are still responsible for all their losses.
376. Mr Declan Boyle (Landlords Association of Northern Ireland): On that point, a £50,000 deposit is now required for a house costing £200,000. The game has changed, because all of the financial institutions now want interest-only to be changed to interest and repayment. Very often, landlords are teachers, civil servants or other averagely paid people, who now have to feed this product called investment property out of their paid employment. Those people thought that they could make money and move on, but they were. They are now in something that is going to take a long, long time to get out of. They might never get out of it. Investment properties have been seized by financial houses all round the place. That is a very real concern.
377. [Inaudible.] — public landlord registration. Our concerns range from the nuisance caused to the undesirables. [Inaudible.] People who have multiple properties can see their names on a public register, and that is a real concern. The other aspect is that that they would not get any enjoyment from their "house", because people would be calling to say that the washing machine was not working or ask whether there was a house to let. People are arriving at your front door on these issues, so the need for a public register — [Inaudible.]
378. The agencies need to get a hold of somebody. If there was a service level agreement or something along those lines whereby agencies and departments could work through and with each other between the Housing Executive, environmental health, the rates office and the Land Registry, the amount of properties that would not be available after going down through those people to find out whether they are available from the owner is tiny; there is nothing to suggest to me that that would be a large number. The register will have a cost implication attached that will be passed on to tenants, who are struggling to pay their rents at the minute. We are going to have a cost now, and — [Inaudible.]
379. Mr Joe Nugent (Landlords Association of Northern Ireland): I want to talk about the proposed tenancy deposit scheme. We believe that the Government has not really studied the statistics, which we gave to the Department for Social Development (DSD) during our consultation. For example, 98·9% of deposits are returned amicably. It does not take a genius to work out that 1·1% of deposits are disputed. In fact, a trading standards officer came out and told one of our general meetings that he had only one complaint of a dispute last year, out of 28,000 complaints.
380. We also argue against the very high fees that will be added to taking a deposit. At the moment it is £57·50 per deposit, plus £15 each. That will obviously increase, and inevitably this will be passed on to tenants, increasing their costs.
381. We also want to address the tenancy deposit scheme with regard to social housing with housing benefit. Nowadays, most landlords take a deposit and a guarantor. Some may decide not to take a deposit and not bother with unnecessary bureaucracy, because it is quite a bureaucratic process, so they take just a guarantor. That leaves vulnerable tenants, who are not able to provide a guarantor, having difficulty finding accommodation. That is a major concern in light of the fact that the private rented sector is being asked to increase the uptake in demand for social housing.
382. Mr Laird: The public sector has shrunk considerably over recent decades, with properties sold off and less money being put into it. The private sector is picking up the slack. We are housing a lot of vulnerable tenants who would, perhaps, be better suited to public housing. There does not appear to be any bridging mechanism for those tenants. It would be good if some assistance or mechanism could be put in place for them, because a number almost fall between two stools. Most of the ones in the private sector are probably fine. They understand everything and can comply with everything. However, there will be a percentage at the bottom end who are not as fortunate, and they very much seem to have been cast to one side by the public sector.
383. Ms Lyons: In the private rented sector, the landlord is the primary stakeholder. We have invested capital, time and effort. We have also provided information, and met government officials and politicians, at no expense to government. Yet we can conclude only that we are not being listened to and understood.
384. It would appear that government has its own agenda and a total disregard for our views. Nor does it seem to have direct experience and understanding of the true problems in the private rented sector. That is such a pity, because there is a real housing need. With government intervention through the introduction of unnecessary legislation, the provision of housing by the private sector to social tenants could completely collapse. That is a real concern.
385. The coalition Government in the United Kingdom appears to have understood that. Minister Grant Shapps, on 10 June, in Parliament, announced that he was going to scrap all plans to introduce new legislation on private landlords. That included the national register of landlords. He said:
"With the vast majority of England's three million private tenants happy with the service they receive, I am satisfied that the current system strikes the right balance between the rights and responsibilities of tenants and landlords."
Why, then, is the Government proposing to introduce more legislation in Northern Ireland, especially when, as we heard from Joe, tenant satisfaction is much higher than in England? We do not understand why the Government here feels that it knows better than central Government and those who are the stakeholders in providing the service.
386. Needless to say, we feel totally let down, ignored and burdened by the threat of more bureaucracy. For us, it is hard to imagine a more effective way of discouraging and undermining the long-term investment that people in the private rented sector here have made than by imposing some of the provisions in the Bill, which we feel is not properly thought through. As you can appreciate, we have genuine concerns about the Bill. We thank the Committee for listening to us this morning.
387. The Chairperson: I want to pick up on your final remarks. You asked why the Government here think that they know better than the Government in Westminster. It is the right of this Assembly to decide what it thinks is best for Northern Ireland and its people. That is the nature of the devolved system, so I do not take particularly kindly to being lectured about what —
388. Ms Lyons: I apologise about that.
389. The Chairperson: I accept that. The Committee and the institution here have the right to decide what we think is best. Up to that point, I agreed with a lot of the principles that you put forward, and I value incredibly the work that the private rented sector does. It has been greatly undervalued in the past, and its contribution to housing has not been particularly recognised. It has a huge role to play in the future.
390. You said at the end that you are not particularly supportive of the Bill and indicated that you think that the current regulatory system for the private rented sector is pretty much OK. However, given the huge role that the private rented sector plays — I and others here want it to play an even greater role in the future — and given the sheer levels of public money that are poured into private rented accommodation, do you not accept that the public sector needs to keep a careful watch on the money that the sector spends and ensure that the money goes to a sector that is fit for purpose and delivers high standards for the people who are in the most need?
391. Mr Laird: People tend to forget that the housing allowance money that is paid is not the landlord's rent; it is the tenant's housing benefit. In effect, it is being paid to the tenant. The tenant may decide to have that passed on to the landlord. However, the idea that we are putting x million pounds into landlords' pockets is incorrect. The landlord is providing the service. If landlords do not have the houses and make the properties available, the rent will not flow from that. There is a misconception that we are putting money into landlords' pockets; we are not doing that. The Government does not pay rent to landlords. They pay it to tenants, who pass it on to landlords. There is a difference between those two concepts.
392. The Chairperson: There is a difference all right. Your perception of what happens is different to my perception and that of several other members.
393. Mr Laird: The position is that the Housing Executive pays every tenant their housing benefit direct. The landlord has no call on it.
394. The Chairperson: It is specifically there for a purpose.
395. Mr Laird: With due respect, the tenancy agreement that I put in place is between me and the tenant, not between me and the Housing Executive. If the Housing Executive does not pay, I have no call against it for that.
396. The Chairperson: Of course you do not; that is not the point. The point is that millions and millions of pounds from the public purse that is provided to people in need —
397. Mr Laird: The service is being provided —
398. The Chairperson: Hold on a second. It ends up with landlords in the private sector. That is the fact. That is what happens. That is the trickle-down.
399. Mr Laird: But we are providing a service —
400. The Chairperson: Hold on a second. We can have a semantic discussion all we want, but that is a fact. Public money goes to private landlords, and my point is that there is a duty on those in the private sector to adhere to a certain standard. We are having a discussion about what those standards should be and about what government and private landlords need to do to maintain the necessary standard across the board.
401. Ms Lyons: A person needs food and water to survive, and the next most important thing is shelter. When people have that shelter, the most important thing is their safety, yet the Bill does not even attempt to address that. Tenants must be safe in their homes, yet there is no legislation to say that they must have smoke alarms, fire alarms or carbon monoxide monitors. Tenants must be kept safe, yet that is not addressed.
402. The Chairperson: No one would disagree with that, but that is not a provision that the Department for Social Development could bring forward. That is entirely the responsibility of another Department, and although colleagues and I can make that point elsewhere, it is not something that can be included in the Bill.
403. Mr F McCann: There are a couple of things. Where landlords have houses, I would have thought that it is not up to the Government to bring forward legislation to deal with fire alarms or carbon monoxide alarms. I would have thought that landlords would have put them in to ensure the safety of their tenants. I have been in quite a number of homes that are owned by landlords, the conditions of which leave a lot to be desired. Like Simon, I have said on a number of occasions that much of the private rented sector provides decent homes. However, there is a substantial part of it which provides homes that are in bad condition. I represent and live in an area in which I face that on a daily and weekly basis, and I sometimes find landlords difficult to deal with.
404. Between £80 million and £90 million of Government money goes into housing benefit each year. That is a substantial amount of money that goes through the Assembly to the Housing Executive to pay landlords. I understand what you say about the setting of rents, but I deal with people on income support who are below the poverty level, yet when their get their housing benefit they must come up with at least another £100 a month to subsidise their rents. They then have to eat into their already meagre benefits to put bread on the table
405. The first time that I met a representative of LANI was three or four years ago. At that stage the argument was that the market should be allowed to control the destiny of the private rented sector. However, we saw the mess that the market made of housing and of the entire economy. The last time that some of you were before the Committee, I detected a shift. You said that you did not fear the introduction of a registration scheme, and I thought that that was a recognition from the sector that we could start to manage the bad landlords through some form of legislation. However, we have seen a complete reversal of that this morning. In your report, there seems to be a complete walk away from any type of legislation or regulations that the Department might bring in. I have a number of major difficulties there.
406. I looked at the Scottish example the other night and found it to be fairly reasonable. It has developed over a period of years from what people felt would have been a hard and difficult scheme for landlords to what is now generally thought of as a soft touch agreement by the Scottish Parliament. Even that scheme goes far beyond what the Department is looking to do here.
407. Ms Lyons: I could not agree with you more. It is important to raise the standards of rented accommodation, and we want to do that. However, the Bill does not do that; it does not give us that opportunity.
408. Mr Boyle: You talked about the mess that the housing market made in the past, but it would have been considerably worse if those who had bought properties had not rented them out. The private sector is now 120,000 strong.
409. Mr F McCann: Yes; it is bigger than the social sector. However, there is total control of the public sector, which is not the case for the private sector.
410. Mr Boyle: If the private rented sector had only 80,000 private landlords rather than 120,000, there would be a lot more on the housing list and nowhere for them to go.
411. Mr F McCann: You are missing the point. We are trying to build in protections for people, and you are arguing against those protections.
412. Mr Boyle: No, I am not. I am asking how a public register would enhance property. Through these other mechanisms — the Housing Executive, payments of housing benefit or HMO registration, which is already in place, environmental health, rates — how many properties do you have issues with for which you cannot find the landlord? I would say that the number is minimal.
413. Ms Ni Chuilín: There are a lot.
414. Mrs M Bradley: A lot.
415. Mr Boyle: Well, I will ask the next question: have you tried all these other mechanisms?
416. Ms Ní Chuilín: Yes, we have.
417. Mrs M Bradley: Yes, we have.
418. Mr Boyle: And nobody knows anything?
419. Mrs M Bradley: No.
420. Ms Lyons: Those inter-government service arrangements —
421. Mr Boyle: I think what is needed is an interaction between agencies. First, any time a property is sold now it is put on to the Land Registry. You are trying to tell me that nobody is paying a rates bill in these properties. That may or may not be the case, but if it is, then the rates people are not doing their job. Also, fitness certificates have to be issued for properties if they are after 1945, so there is another mechanism. If the tenant gets housing benefit paid, the landlord's name and address is on the paperwork, so I honestly do not know how there can be a significant number of people who are not engaged with one of those departments somewhere along the line.
422. If the rates people have not had a bill paid for 10 years, then someone is failing in the rates division. If somebody has not issued a fitness certificate for properties, then someone is failing there. If the property has been sold and it has not been put on the register, there is a failure there, but those mechanisms are in place. Even if the landlord is approached to talk about issues of tenant behaviour and so on, there is only so much you can do. The point I am making is that there are other avenues. Local knowledge is another good thing; everybody knows that Mrs Jones lived in that property for 40 years before it was sold to X, and at that point, agents or solicitors must be involved and information recorded.
423. Mr F McCann: One of the only things that you have said from the start that I agree with is that it would be helpful if information was shared in a way that would allow LANI to tap into Housing Executive and housing association records, especially in the movement of antisocial tenants. However, Declan, your houses must be in a place very different to where I live. I know that you are talking about the growth of the private rented sector, but let us face it: most of the growth came through the property boom when people were buying houses. They were not buying them for the health of people wanting social housing; they bought them to make a profit.
424. Mr Boyle: I accept that. Profit is not a bad word.
425. Mr F McCann: I am not saying that it is a bad word, but let us face facts —
426. The Chairperson: Hold on a second.
427. Mr Boyle: The fact of the matter is that the private sector is housing people now in greater numbers than the public sector; that is my point.
428. Mr F McCann: That makes it more essential that we have some type of scheme brought in to control the sector. It is totally unaccountable; it is not transparent in any shape or form. When a community group in my area got £30,000, they were pestered and crucified by accountants and auditors. There is around £90 million going into the private rented sector with no controls whatsoever.
429. Mr Boyle: Is £90 million going into the private rented sector or into housing benefit?
430. Mr F McCann: That is in housing benefit going into the private rented sector.
431. Mr Boyle: How much is going into —
432. Mr F McCann: In west Belfast, £25 million a year goes into the private rented sector.
433. Mr Boyle: The point I am making is that the need must be there.
434. Mr F McCann: We are not arguing about the need; what we are arguing about is the condition of some of those properties. There is no control over the sector.
435. Mr Boyle: If the property is in bad condition, the city council are the people, they issue notices to —
436. The Chairperson: Hold on a second. I am not going to let this descent into a row back and forth here.
437. Mr F McCann: You have already had that at the start.
438. The Chairperson: I started it, yes, and I am going to finish it as well. Let us not bat back and forward like this; it is not helpful in getting to the nub of the issue. In fact, we are well away from that now.
439. Mr Laird: The way the system used to work was that, if someone was applying for housing benefit in the private rented sector, the Housing Executive would come out and do an inspection and assess what rental value the property had. That took into account the location, the type of furniture and the condition of it. That was phased out, I assume, as a money-saving issue. It used to be that an awful lot of tenants receiving housing benefit had a pre-tenancy inspection carried out, which specifically assessed the amount of rent that they were going to pay. That would almost obviate some of the concerns that Mr McCann has about there not being any control. If a property is only worth £500, that is what it is assessed at. If it is worth £700, it is assessed at £700. Therefore, tenants and landlords knew what it was assessed at before the tenant moved in.
440. Mr F McCann: I do not disagree. However, I have seen, under rent legislation, in the middle of west Belfast, somebody coming out and declaring that they believed — this is four or five years ago — that the rent was only worth £1 because the flat was in such a bad condition. I immediately dealt with the tenant, and the landlord told the tenant to leave the house because he could put another tenant in there without losing housing benefit. He was not concerned about clearing the conditions up or dealing with the problems there.
441. Mr Laird: One problem is that, when one introduces any sort of register, the good landlords put their hands up and join it. They are not the problem. The problem is the bad landlords.
442. Mr F McCann: I agree with you 100%.
443. Mr Laird: Even now, after the best part of eight or nine years, some landlords are still not on the register.
444. Mr Craig: I will try to calm the situation down. Fortunately, Lagan Valley does not suffer to the same extent as some of my colleagues' areas. The private rented sector provides a very important service in Lagan Valley. We are almost at the top of the list in terms of shortage of public housing. Therefore, I will put on record that, if there was no private rented sector in Lagan Valley, we would be in dire straits. There is no other way to put that. However, the flipside is that there needs to be recognition that the private rented sector receives huge sums of money from the public purse. There is no getting away from that. Without the input from the public purse in Lagan Valley, the private rented sector would be in huge difficulties, and a lot of properties would be lying vacant. There needs to be a recognition that both sides benefit.
445. I looked at your paper, and I found it fascinating that you seem to be totally and utterly against a tenant deposit scheme. We are trying to achieve some form of reasonable protection for the tenant, and I am afraid that, even in Lagan Valley, my experience of deposits is quite simple. There are 15 million excuses as to why tenants never get deposits back. Some of them are legitimate, and some of them are not. However, when people try to make the argument that it is not legitimate, it falls on deaf ears and goes nowhere. We are trying to introduce a scheme to give some form of protection to the tenant under those circumstances. You have completely ruled that out. Can you explain to me why you have completely ruled that out?
446. I listened with interest to what you had to say about people looking for guarantors. Your sector is already looking for guarantors in a lot of this and, when it comes to the most vulnerable in society, you will not get those guarantors. I personally believe that that is a deliberate ploy by some people who do not want those people in their houses. They have a legitimate right to do that, but they are hiding behind a smokescreen. Will that increase or decrease with the introduction of the scheme? If it does increase, is the private sector not shooting itself in the foot because, in areas such as Lagan Valley that do not have that public sector investment in private sector rental, the housing market will, quite frankly, collapse on them?
447. Mr Nugent: I will reiterate the figures that we gave you, which come from the Northern Ireland Housing Executive and from the National Landlords Association. They say that 98·9% of deposits are returned amicably. I do not know what more to add to that. No tenant will like some of the deposit being kept, for example, for a damaged bed. There is always an argument, and maybe that is what you are hearing. However, all the members of our association met about three months ago and said that they did not have a problem with deposits. They returned them amicably.
448. We advise landlords to take a deposit and a guarantor. Remember, you are giving a property worth £120,000 or £200,000 over to someone you do not know and have never met before. You do not know where they are coming from, and you are giving it over to them for £500 or less. So, it would be reasonable to ask them for a guarantor as well.
449. In order to avoid the whole bureaucracy of the tenancy deposit scheme, some landlords may insist on a guarantor and no deposit. That would impinge on the social sector, because a lot of vulnerable people in the social sector are not able to provide a guarantor.
450. The Chairperson: You are recommending a guarantor, is that right?
451. Mr Nugent: Yes, we are recommending a deposit and a guarantor.
452. The Chairperson: That may move to just a guarantor, which is not substantially different. I understand your point, but you are already recommending that landlords seek a guarantor, and you are saying that, if a deposit scheme comes in, some landlords may say:
"Give me just a guarantor."
453. Mr Nugent: Yes. We are totally opposed to a deposit scheme, which will cause a problem in the housing market.
454. The Chairperson: Yes, but you are already asking those vulnerable people for a guarantor.
455. Mr Laird: The point is that a lot of those vulnerable people will say that they cannot get a guarantor, but can provide a deposit. At that stage, the landlord may continue with the letting and say, OK, you have a deposit.
456. What we are saying it that landlords may decide that there is too much red tape. The obligations of the landlord with the tenancy deposit scheme are such that if the money is not transferred into the scheme within 10 days, they are liable to a fine of three times the amount of the deposit. For agents such as us, who look after 400 or 500 properties, the majority of which are probably not housing benefit tenants, we would have to try to get 500 deposits into the scheme within 10 days of receiving them. At the same time you are also changing locks and getting old tenants' deposits back out because they have to get their deposits back within that time frame, and the time frames are very tight.
457. Joe is saying that the landlord who previously would have said he would take a deposit and forgo the guarantor is now going to say that he will not bother taking a deposit because of the hoops that he has to jump through, but will be insisting on a guarantor. That is how that proposal may have an impact.
458. The Chairperson: That makes a bit more sense.
459. Mr Craig: I understand what you are saying, but we need some form of understanding about what exactly you mean when you recommend that there be a guarantor. Is that someone who just says:
"Yes, I know that person, and they're OK", or is a legal obligation then put on the guarantor?
460. Mr Boyle: There is a legal obligation; there is no question of that. It is not enough to say: "I know that person." Would you hand the keys of a £200,000 house over to somebody or other and say: "Well, I know that fella."? There is a legal obligation — [Inaudible.]
461. Mr Craig: I accept the logic behind what you are saying, but we now have an issue that will be a huge problem. If you ask someone to be a guarantor, especially for someone who is unemployed and has lost his job through no fault of his own — and the families of a lot of those people are not well-to-do — they will not take on a legal obligation like that. Those people are being sidelined in that private market, and that will be a difficulty. Maybe it is something to highlight for the Minister and let him look at.
462. The Chairperson: Yes, that is one for the Minister.
463. Mr Laird: It is actually worse than that. The guarantor is normally required to be a homeowner in full-time employment, because there is no sense in having one without means.
464. Mr Boyle: The issue of a wait at the end of a tenancy will still be there. I do not know where the deposit scheme is going to operate from —possibly England. If it operates from there, paperwork between landlord and tenant will have to go back and forward, whereas you could walk round at the end of the tenancy and agree — [Inaudible.] You are there at the end of it and can amicably sort it out on the day. The deposit scheme will not speed things up, and the issues of debate will always be there.
465. Ms Lo: I accept many of the views that have been expressed by my colleagues. Do you not accept that, while the majority of landlords are good landlords, there is an element of rogue landlords who cannot be contacted? I will give you one example in south Belfast — in South Parade. Declan probably knows this. He is one of the good landlords. We meet regularly —
466. The Chairperson: I am worried where this is going. [Laughter.]
467. Ms Lo: We meet regularly at Partners And Community Together (PACT) meetings. Declan and another landlord always come to those meetings and face the wrath of tenants and residents.
468. That house in south Belfast has been in a state of disrepair for years. There is a bath in the front garden among grass that is very high. No one, including ourselves, can find the landlord.
469. I am sure that you accept that the standard of the sector could be raised through all of the measures that we hope to put into the Bill, but there are a couple of points that I want to pick out. I have dealt with a number of complaints from students who have just graduated and either want to leave the area to take up jobs in other parts of the UK or are overseas students who must leave the country as their student visas have run out. Landlords are holding on to their deposits, which is causing them a great deal of grief and difficulty.
470. I think that Joe mentioned the point about landlords not being able to do anything about antisocial behaviour which is instigated by tenants. Landlords can do something about antisocial behaviour. They can put conditions into their contracts that if tenants behave badly then they can be chucked out, but a lot of them still do not.
471. Ms Lyons: We can do that, and most landlords do. However, the problem is that it takes a long time to go through the eviction process, and the antisocial behaviour continues. We seem to be dwelling on bad tenants, but an awful lot of tenants are good, law-abiding citizens.
472. Landlords fear the bureaucracy and legislation that will come in. However, it will also cost landlords more money, and, in the current economic climate, there is a fear that they will not be able to afford it. I was in a housing estate in west Belfast on Monday and I met a young man who is trying to better himself. He became a landlord a few years ago, but could not afford to buy a house in Northern Ireland and rent it out, so he bought in England instead. There are quite a few new and existing landlords who are buying and managing property in England. They may even group, and so on. That is happening, and it is not helping our situation here.
473. It is vital that we work together to try to solve the problem in Northern Ireland. However, I do not think that the Bill will do that. We need to find some way of getting to the bottom of it. You mentioned not being able to find the bad landlords. However, those landlords will not register, and that is one of the problems. As Joe said, that is what they are finding in Scotland.
474. Mr Nugent: Just to bring the point up, Fra, that issue came up at a meeting in England with the previous Minister. How do we get a rogue landlord to register?
475. Mr F McCann: We put in place strong legislation to force them to register.
476. Mr Nugent: But they will avoid that, Fra.
477. Mr F McCann: They are talking about £20,000 fines for landlords in the HMO sector. There are plenty of ways you can do it.
478. The Chairperson: We cannot have witnesses starting to chair the meeting and calling in other people. Anna has the floor. Do you have any other questions?
479. Ms Lo: No, that is fine.
480. Mrs M Bradley: A lot of things have already been said. However, I want to make it clear that I do not take any pleasure in talking about good and bad landlords. However, I am very aware of bad landlords with private buildings. Marnette, you said that some of them are in groups where they live in England, Scotland the South of Ireland or somewhere. They can never be contacted. Even when landlords give the name of an agent who is looking after the house, sometimes even the agent cannot contact the landlord, and he cannot do anything without the landlord's say-so. People who rent houses in the private sector are on a hiding to nothing.
481. You were talking a minute ago about getting someone to be a guarantor. That is a non-starter, because nobody will be fit to take on a private house. There are a lot of difficulties with private lets and private landlords that have to be dealt with. I do not know how the Department can deal with it, because we are confused here today, listening to what you are telling us. It will be difficult for the Department as well. A lot of work needs to be done. The private rented sector is really needed, and nobody here denies that. It is about how we work with them.
482. A minute ago, you mentioned that there are good tenants. Indeed, there are very many good tenants, but there are also very many good landlords. They are getting the black mark now the same as those who are just doing it for the sake of getting money and who are not bothered once you go in there, should the ceiling fall down round you. I have seen that happen. They do not want to know. I had an incident about four months ago in the area that I represent. There was water running from a tank in the roof, and the people who were in the place were forever reporting it. They had to move out, and they were still out of the house, and the ceiling fell in two days later. The house next door was affected, and it, too, had to be repaired. It took months and months to get that done. It should not be like that at all for people; they should be able to live contented lives.
483. Sometimes the hands-on landlord who comes himself once a month and visits the place is the best landlord that you can have, because he sees what state his property is in and how his tenants are either abusing or enjoying it. We have to get something done about it, because we need the private rented sector.
484. Ms Lyons: I agree entirely with Councillor Bradley. Every tenant has a right to decent accommodation. However, as I said before, the legislation does not solve the problem. That is our major concern. At the same time as not solving the problem, it will add extra expense for landlords, because we will have to pay for registration and one thing and another. At the moment it might be quite a low cost. We hope that it will be, entering with a soft touch. However, look at the HMO register of properties: initially, it was not very expensive, but now prices have jumped very substantially. It is important that we work together and that we get this right and get a good solution, because the present situation is not satisfactory. As I said, I do not think that this Bill will improve that.
485. The Chairperson: You raised HMO registration, which I think is a good point to raise, because that is the only experience that we have to date of any sort of registration scheme. You probably agree that that experience has not been particularly satisfactory in some respects. What is your experience of that? Perhaps you can share that with us now, because it has some bearing. It is a form of registration, and there is cost and bureaucracy. I think we all agree here that it is a good thing, and we all know the particular problems that there are. What have you got out of that as a sector?
486. Mr Laird: The major aspect of the HMO registration is that it is not just about registering property. First, it is not a public register, and secondly, it is about safety. Safety was meant to be the main driver for the HMO register, with the result that it is not registering someone for registration's sake. It is not so that we can have a list of landlords; it is about bringing the individual properties up to standard. It is a register of houses; it is not a register of landlords. Safety is the driver. Once you register the property, everything else swings into line and you have a specific period within which to bring that property up to standard. If you do not, you then fall foul of various regulations, and then there are impositions and fines and so on.
487. The Chairperson: Do you think that, if it were functioning entirely appropriately, it would be the focus on safety that would make it worthwhile?
488. Mr Laird: The focus is on safety and on the property. The focus is not on the landlord. If you want to click onto a house, say 47 Jerusalem Street, and find out whether it is a safe house, you are able to find out that, yes, it is. It is not a matter of its being a safe landlord; the house is the issue. That is the aim of that register.
489. The Chairperson: I always worry when I hear about safe houses. [Laughter.]
490. Mr Laird: Perhaps it is an inappropriate term.
491. The Chairperson: Somebody knows them, anyway. They have a register.
492. Mr Boyle: On the HMO issue, the registration fees started off being reasonable but, within three years, there was a 67% hike. That is five years in advance, so it is very costly, and, as a landlord, you get nothing out of it. It is a cost that I have to pass on to the tenant coming in, who is unemployed, unwaged, in my case, or a student at university, and I will not go into the issue of fees there. My point is that it is an increasing cost, and if the house is fit for purpose, it is a good, safe property. That is the priority, then if you had an issue with any of that — [Inaudible.] — name of the landlord.
493. Mr Brady: First, thank you for your presentation. Mr Laird, you seem to have a very altruistic view of the role of a private landlord. It seems to me that the bottom line is that it is a business to make money. As Declan said, it is about profit. There is nothing wrong with that, because you provide a very useful service. I think that most, if not all, of us appreciate that.
494. You talked about housing benefit belonging to the tenants, people on benefit and that, but when legislation was introduced in Britain which meant that housing benefit would be paid directly to the tenant, we proposed in the Committee that is should be paid directly to the landlord, mainly to prevent the tenant from getting into debt because of the circumstances that that person is in. You said that there would be no problem for good landlords in being registered or regulated. As someone who worked in the voluntary sector for a long time, which is heavily monitored in terms of the funding it gets and the amount of bureaucracy, which has been mentioned several times today, it seems to me that any sector that gets approximately £90 million of public money without being regulated needs to be regulated.
495. My other point is about the landlord agent; there seems to be some confusion in terms of who is responsible. If an agent is acting for a landlord, who do they go to? Is it the agent, who then passes it on to the landlord? Who becomes responsible in that respect? I would like some clarification on that.
496. Mr Laird: It would be helpful if everybody was aware of who is responsible. As an agent, as opposed to being purely a landlord, I take responsibility for probably 99% of our properties. About 1% of landlords might be builders and will tell me to come to them when work needs done. In that instance, I respond to them. If they do not do it within a reasonable period of time, my obligation to the tenant is to step in and do it or decide to no longer act for that landlord.
497. We look after about 2,500 tenants, and we hand out all our deposits within, hopefully, two to three weeks. They come in bulk, because the tenants are mainly students. I have 15 letters of appeal from 2,500 tenants. To be fair, probably half of those appeals were right, and I wrote back to them and gave them the additional moneys. There had been a bit of confusion, or whatever. However, as Declan says, a lot of those tenants were able to get their money back within days. That is one of the problems: if a tenant is moving from one house to another, they need that deposit from this house straight away to move to the next house. If part of the deposit is in dispute, that will push it out to three or four weeks. That is one of the reservations about it.
498. Mr Brady: You made the point well that the private rented sector provides much-needed social housing. However, to put that into context, that is because of the historical failure to provide proper public housing. Our public housing body, the Housing Executive, is now a collection agency. It does not build any more. In fact, it last built in our constituency 15 years ago. That has to be put into context. We all accept that you provide a much-needed service, but regulation is still necessary because the system is unregulated, and you made the point that good landlords will have no problem.
499. You quoted Housing Minister Grant Shapps. Yes, he talked about good landlords and bad landlords. However, it must be pointed out that, in Britain, local authorities have a lot more legislative power that they have here. The councils here do not really have the legislative power. That will possibly happen eventually under RPA. I am surrounded by councillors, and I am probably the only member who is not a councillor.
500. Mr McCallister: I am not.
501. Mr Brady: That is because you have all stood down, but that is another story.
502. Mr Boyle: I still do not have a problem with being registered. My issue is with a public register. That is not the same thing. I do not object to the Housing Executive or councils having my information.
503. Mr Brady: Is that because of the security aspect?
504. Mr Boyle: Yes.
505. Mr Brady: You have made that point.
506. Mr Boyle: I do not have an issue with that. It is the public register that I am arguing about. The Housing Executive, the councils, the rates office and other agencies all have that information. There is no problem with that, and we promote that.
507. Mr Brady: If I were devil's advocate, I would make the point that a really good landlord would not have to worry.
508. Mr Boyle: I accept that point, but my issue is not with the register. My issue is with the public register. Most landlords are exactly the same; they do not have an issue with receiving a phone call from the council requesting them to meet to discuss an issue. The vast majority of landlords are absolutely fine and do not have an issue with that. It is the public —
509. The Chairperson: At this stage, it is important to point out that the Bill only creates the power to create a register. The detail of that register is yet to be decided, and that is why today's discussion is very useful. We can get your perspective on what would make a good or bad register, and we can feed that back into that process at a later stage. The discussion is helpful.
510. Ms Lyons: One of our major concerns is that there could be leaks of information from a register, and, given the criminal element in society, that worries us. Landlords were attacked by the criminal sector not so long ago, and we worry that somebody could look at the register or get into it, particularly if it was leaked, and find out where you have properties and how many you have. If you are collecting rents and things, you can easily become a target. We are beginning to fear that criminal element more, given the economic situation. That is a genuine problem of security. Again, many landlords worry about the cost of providing it, because it has been made quite clear that landlords will pay for such a register.
511. Mr F McCann: We have had a lot of toing and froing. I have no doubt that the four of you provide quality accommodation for your tenants, although I do not recognise a lot of the stuff that you were saying from the area that I represent. I have listened to Anna, and I have listened to others. However, you have to admit that there is a sizeable rump in the private rented sector who do not treat their tenants well and do not provide the type of accommodation that is required. How do we deal with that?
512. Ms Lyons: That concerns us a lot, because it ruins the reputation of the private sector. We need a bit more time to work together on that. We are not going to come up a solution, and I do not think that you are, but we will work together on it, and I would appreciate having time to do that. We have the same objective, if we go back to the Minister's original objective as opposed to the way it has been changed.
513. Mr Boyle: One fundamental thing it that there must be a tenancy agreement in place for the tenants.
514. Mr Laird: By law.
515. Mr Boyle: They can bring it to you and say that there house is in a poor state, and show the agreement between them and the landlord, whoever the landlord is. We can move from there. However, tenants can sometimes be their own worst enemies, and it may be through a lack of education in that field. Some young people are not au fait with that, and I totally appreciate that. Sometimes they are taken advantage of. I totally appreciate that as well.
516. I accept what you are saying, but I am simply saying that if there is a case, the first port of call is the tenancy agreement, which must be in place. We can look at that and see whether it is an agent or a landlord. We can meet at the property, go around it and see what the issues are. That should not take a terrible long time, and should be able to be done. If there is no tenancy agreement in place at the start, then we are all over the place.
517. Mr F McCann: How do you deal with landlords who do not abide by a tenancy agreement?
518. Mr Laird: Fra, would it be fair to say that what we really need is a register of bad landlords? We do not need a register of good landlords, because they are not the problem. We spoke about landlords in the private sector being aware of tenants who continually go down the antisocial behaviour route, and said that we want a register of bad tenants so we do not put them into an area. We do not need a register of good tenants. The bad landlords are the problem. However, if we are to make the 99% jump through the hoop so that we can try to penalise the 1% who are bad, is there no way that we can focus our attention on the bad landlords?
519. Mr Nugent: Julie Rugg did a huge report on the private rented sector and the way forward in England. She suggested selective licensing to address the problem of an area with a lot of bad landlords and rundown properties. That is a worst first scenario, and we support that.
520. Mr Boyle: That could be done on a street-by-street basis, similar to the HMO legislation. If a particular street is not great, and nobody is acknowledging you, then that could be an avenue for you. It would not be a broad, blanket approach to a whole area, but it could be done selectively and would pick up an area.
521. The Chairperson: Thank you everyone; that was very useful. We appreciate that the Bill has the potential to have a huge effect on private landlords, particularly if we are to create a list for registering landlords. If that passes, it is important for us to know what would constitute a workable and good list. There is absolutely no detail about that at this stage, but it was useful to tease out what you thought might be good, positive and helpful, and what could be damaging to the sector. Thank you very much for your time, and I appreciate your coming along to give evidence.
522. Ms Lyons: Thank you very much for giving us the opportunity to meet you again.
18 November 2010
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Jonathan Craig
Mr Alex Easton
Mr Tommy Gallagher
Ms Anna Lo
Mr John McCallister
Mr Fra McCann
Witnesses:
Mr Gerry Flynn |
Northern Ireland Housing Executive |
|
Mr Stephen Martin |
Department for Social Development |
523. The Chairperson (Mr Hamilton): Members have a copy of the Northern Ireland Housing Executive's submission on the Bill and all the other documentation. I welcome Gerry Flynn from the Housing Executive and Stephen Martin from the Department for Social Development. The standard warning about mobile phones and the session being recorded by Hansard applies. I invite you to give a bit of an introduction, and then we will see if members have any questions.
524. Mr Gerry Flynn (Northern Ireland Housing Executive): Good morning. I am assistant director of housing policy for the Housing Executive. Thank you for the opportunity to come here this morning and explain the proposals as they affect the Housing Executive. Broadly speaking, we welcome them. We have worked very closely with the Department — in particular, I have worked very closely with Stephen Martin — in the drafting of this.
525. In the main, the Bill provides the Housing Executive with a number of powers. There are three aspects to that. One is powers to carry out new things for the first time — for example, energy brokering. Secondly, there are powers to perform some of our activities more efficiently and effectively. Lastly, there are powers which bring a degree of clarity to some of the grey areas in our business that may have caused us problems in the past.
526. The Bill covers five or six functional aspects of our business. I want to turn first to community safety and antisocial behaviour. There are four provisions in the Bill that cover that. The first is the introduction of new powers to allow greater discretion in terms of transfers through exchanges. This is around antisocial behaviour. We have fairly strict policies governing the behaviour of our tenants, but there is the possibility that people can exchange tenancies. There are certain rules around how people do that, but those do not cover antisocial behaviour. They can have an exchange, and we cannot control that. This Bill gives us the power to formally stop an exchange where we have evidence of antisocial behaviour.
527. Secondly, there is the ability to share information with others. I listened carefully to the discussion this morning about people getting access to information. In many respects, we have informal protocols with housing associations, the police, etc in terms of sharing information. The Bill formalises that. Recently, the Information Commissioner's Office gave out guidance that, where you enter an arrangement with people with the specific purpose of sharing information, providing you include that broad declaration in the literature that you issue, then you can do so. For example, in housing benefit you have a declaration that you are going to share information with others. That will certainly help the efficient and effective running of our business.
528. Thirdly, the Bill gives us formal powers to promote community safety. We have been doing a lot of that for years. We have been managing crime prevention activities such as lockout schemes for the elderly and protection of properties at interfaces. The Bill formalises that legal arrangement and gives us the formal powers to do so. It sits quite well with the Justice Bill, which is more or less asking us to do all that we reasonably can in the promotion of community safety.
529. Lastly, the Bill gives the legal system structured guidelines around how to come to decisions in dealing with people who have caused antisocial behaviour. There have been some legal cases where inconsistent decisions have been made, based on the evidence that has been presented. Basically, the thrust of this is that a judge should not only take cognisance of the issues of antisocial behaviour caused by the tenant but should look at the impact on the wider community and the impact that the decision might have on the perpetrator, in terms of having their home repossessed. We welcome that.
530. There is one proposal in the Bill that relates to homelessness. It is a technical thing; an amendment that allows us to cease having responsibility for our homelessness duty in respect of immigrants. It was an anomaly in the legislation that a person could come from abroad and be refused access to normal housing assistance, but if we had already made a decision on their homelessness duty they could remain on our register as a homeless applicant with full duty of assessment. The Bill will regularise that, and it will mean that if people are not entitled to government assistance we will be able to discharge that duty by taking them off the homeless register.
531. The next area is the general area of housing, and there are two aspects to that. First, there is an amendment to the existing powers for managing abandoned tenancies. We have had to operate a fairly rigorous regime, whereby, in order to secure an abandoned tenancy, officers had to access the property, which involved employing contractors to break down doors and then to re-secure the property and so on. That is a long process, and, if we failed to satisfy the legal requirements of the process, the attempts to secure those properties failed. The Bill means that we will no longer have to do that. We will merely have to serve a formal notice on the individuals who, for the most part, have moved on. The second aspect is the servicing of legal documents. In the past, we have had to serve notices directly or by registered post. The proposal in the Bill is that those notices are served through the normal first class post. We welcome that, and it will certainly help us in the efficient running of our business.
532. The next aspect — it is one about which there has been a lot of discussion this morning — is HMOs, and there are two parts to that. The first of those is clarity about the definition of "family" and the requirement to produce evidence to the Housing Executive. People can no longer cause a grey understanding of who is living in the house, and we will empower people to provide us with documentary evidence to demonstrate that there is not one family or an extended family but two or more families living in an HMO. The second power in that area relates to the penalties for those who commit the offence of failing to register an HMO. The Bill will increase that penalty to £20,000. Our experience is that a quite significant effort is required to take people to court and to fine someone a small amount of money, such as £150 or £200, does not fit that effort.
533. I want to touch on energy brokering. As I indicated earlier, that is a new power that will allow us to broker energy with electricity, gas and oil suppliers. The Housing Executive has 90,000 tenants, and if we can secure arrangements to reduce tariffs for our tenants that is to be welcomed, particularly in the current climate when we are trying to deal with fuel poverty. The mechanics of how that will work have yet to be determined. We could offer incentives to tenants by reducing the tariff if they move to another provider, and the Housing Executive would earn a commission on that and use it to reinvest in its stock. We could also secure arrangements with suppliers whereby every time that we have a change of tenancy — we have some 7,500 changes of tenancy each year — we change the supply. The details have yet to be worked out, but we welcome the approach of trying to lever reduced tariffs for our tenants.
534. There are two final general powers in the Bill. The first are formal powers to provide indemnity to Housing Executive staff to sit on other bodies. We have a raft of people who manage the governance of other institutions, yet they have no legal indemnity. If those institutions were to become insolvent, individuals could be made liable. Therefore, we welcome the powers to protect them when representing our organisation. The final power is the formal power to allow the Housing Executive to work in partnership with others. We have worked with councils, the Probation Board and the health sector for years, but the Bill will give us legal powers to continue to do so.
535. That is a quick walk-through of the mains aspects of the Bill and how they will affect the Housing Executive. I am happy to try to deal with any questions that members may have.
536. Mr Craig: I have a simple question. I was puzzled by the issue of guarantors. When the Housing Executive houses someone in the private rented sector, purely because of the lack of housing stock, does the Housing Executive act as a guarantor or does it negotiate a deal so that a guarantor is not required?
537. Mr Flynn: No, we do not. I listened to the very interesting conversation that the Committee had with the previous set of witnesses. We rely heavily on the growth of the private rented sector, which, as discussed this morning, is bigger than the social sector. There are 120,000 properties in the private rented sector. The Housing Executive has between 60,000 and 65,000 — I am not sure of the exact figure — housing benefit claimants in the private rented sector. You can see how heavily we rely on that sector.
538. We do not provide any guarantees. What we do is that people have to provide evidence that they are in there. Generally, there is evidence that the properties are broadly fit for habitation. I was interested in the proposals across the water, where it was suggested that we would inspect all those properties. We have centralised a lot of our business, in terms of the mass processing of housing benefit. Those people are accounting-type people; they are not technical environmental health people. To try and introduce some sort of regime whereby someone would get a claim in the private rented sector and we would go out and inspect that would need the right skill set. Maybe that is something that needs to be looked at.
539. We do not do guarantors, and we do not provide the wherewithal. It is up to the individual to find accommodation themselves. Our role, in terms of managing the public sector aspect, is to make sure that the individual is actually living in the property and that the rents being levied are reasonable. Our housing benefit is geared on the basis of the local housing allowance; we look at a range of rents in the private sector and pick the median point. That is likely to change under the new proposals.
540. Mr Craig: It is definitely an issue, and we are probably all a bit worried about this scenario. I have dealt with it recently, and there is no resolution to it. If someone demands a guarantor, they legally can and do. I cannot help but feel that it is a formalised way of keeping social tenants out of the private rented sector. It is something that I think only the Executive can address. It will cause a massive difficulty in social housing if this is allowed to grow.
541. Mr Flynn: We are doing some other work on the private rented side of our business with the Department on trying to engage with agents. We know that we are increasingly going to rely on them. How do we go about the provision of guarantees? How do we go about the provision of deposits? Are there more innovative ways of coming up with a deposit? We are talking about vulnerable people who do not have £100 or £150 or £200. There are some examples where people are building up that deposit over a period of time by giving an extra £5 a week, which in some cases is still a significant sum to find. They build that over a period of time, so that if anything does happen down the track, they have saved that up to make a contribution to a deposit. So we are trying to do some work.
542. We acknowledge that this is an area that has changed radically over the past 10 or 15 years. Standards have improved radically. You heard some of the discussions this morning. There is less money available in the public sector to invest in the provision of new social housing. The figures that were quoted this morning were absolutely right: 40,000 people on the waiting list and 20,000 in housing stress. We are going to build only 1,200 to 1,500 new units this year; other accommodation has to be found, and the standard of that accommodation is critical.
543. Mr Stephen Martin (Department for Social Development): I did not recognise the slightly scary situation that was being portrayed this morning in relation to tenancy deposit. What we are talking about is not something bureaucratic. It is about a neutral third party holding the deposit and, if there is a dispute about that deposit, negotiating between the two parties. The figure of 98·5% tenant satisfaction is not a figure that I recognise from the Housing Executive's research. In fact, deposits are the most significant area of dispute in the private rented sector.
544. This is not designed to be bureaucratic, and it is not going to be expensive. Frankly, I thought that it was very disappointing that there was the threat of people withdrawing from the system. There is no research evidence to support that. Tenancy deposits, let us not forget, have been in place in England for several years. We are not aware from colleagues in England that there have been particular issues, as portrayed this morning. I caution the Committee against being overly concerned about this as an issue. The evidence does not support the argument that was made this morning.
545. The Chairperson: I know that you cannot work it out like this, but if there are 120,000 properties, even 1·5% is still more than 1,500 people. I know that it is not as simple as that, but it is still a significant amount.
546. Ms Ní Chuilín: That is the question that I was going to ask Stephen. I thought that that figure was very high. Not to put you on the spot, but I saw your body language when that figure was thrown out.
547. Mrs M Bradley: I saw it too.
548. Ms Ní Chuilín: That indicated to me that you were not really concurring with that analysis.
549. Mr F McCann: We should have called you up to the table at the same time.
550. Ms Ní Chuilín: You might as well have joined in anyway, given the way that it was going. It is almost as if we are being held to ransom by one-point-something percent, and that is not the experience that I have had in my area. If you have any figures, it would be helpful if you could provide them.
551. Is the power to provide indemnities just to protect people who are sitting on boards? I understand and appreciate the work that the Housing Executive has done through multiagency meetings. The Housing Executive is one of the very few bodies at those meetings that have statutory powers. I understand that the Justice Bill may result in the amalgamation of district policing partnerships (DPPs) and community safety partnerships (CSPs) to put them on a statutory footing. However, from the multiagency approach, the big gap is still private landlords.
552. One other gap that exists is the disparity between the rights of tenants, even in social housing. With housing associations, tenants' rights vary according to the association. I think that they should be standardised. It is glaring that, even for tenants with private landlords who get substantial amounts of money for housing benefit, tenants' rights and access to repairs, and so on has been a constant theme. You heard what Mary said, and we have all got horror stories. I live in an area that was blighted. It is now under the urban renewal area (URA) scheme, but we could not find landlords.
553. You have partly answered this question, Stephen, but is there any cost to a third party involved in holding a deposit and looking for resolution? We have heard that that may mean another £70 or £57 being passed on to a tenant. Fra spoke earlier about tenants already having to make up around £100 out of their benefit each month. We are arguing for protection for tenants, but I think that there are some scare tactics going on here. Some clarity would be really helpful.
554. There were other aspects to your presentation, Gerry. We have received lots of presentations, and I am sure that we will received more by the time the Bill goes through further stages, even from the Housing Rights Service. I am not going to ask you what your opinion is. I know that you work with them, and there will be variations depending on where you sit and how you feel about that, but, in general, you have agreed. The HMO fine was not worth anything until it was cranked up. Mandatory registration will mean that the good landlords have nothing to fear. I think that we agree on that.
555. If there is a potential for cost in relation to the third party stuff or disputes around deposits, what are the figures? There is also the issue of rights, because housing benefit is made up of public funds. Do you agree, from a policy end, that rights are attached to the payment of those funds?
556. Mr Martin: The costs for the registration scheme are being considered, but it is likely to be a relatively modest amount. As I understand it, the cost is for each landlord. A landlord could have 50 properties but will have to register only as a landlord, so there should not be any significant cost there. We are talking about a periodic re-registration of possibly around every three years and sums in the region of £30. That is not significant.
557. There are two types of tenancy deposit scheme that operate in England, and, therefore, there are two that we are considering here. One is a custodial scheme, whereby a third party holds the deposit. The second is an insurance-based scheme, whereby the landlord basically insures the deposit. There is a cost in the insurance-based scheme, because it entails buying insurance. In the custodial scheme, the money is paid to a third party. That third party earns bank interest from the sum and that goes to fund the scheme, so there is no additional cost for either landlord or tenant. In an insurance-based scheme, there may be some cost. Our preference at this stage is probably for a custodial scheme, in which case there is no cost to either party. I fail to understand the issues around cost. It was a picture that I did not recognise.
558. You raised some issues around the amount of housing benefit, and Gerry mentioned that 65,000 households in the private rented sector are receiving housing benefit. I do not know the figure off the top of my head, but it is likely to be a multiple of the figure that was mentioned this morning. Therefore, in our view, there is a case for regulation. That regulation must be balanced, and that is why we have gone for a light-touch approach. It is not onerous, and we regard the landlord registration scheme as a case of joining up the dots. As we promised last week, we hope to provide the Committee with an outline of the existing regulation of the private rented sector next week. To us, landlord registration ties all that together, and the light touch is deliberate.
559. I have a final point about the figures. The Housing Executive is doing a suite of research on the private rented sector. That was mentioned this morning. As part of the tenant survey, a question was asked about unhappiness or happiness with landlords and deposits, and so on. I will attempt to forward copies of that to the Committee in the next few days, because I think that members will find it very informative.
560. Mr F McCann: I have a couple of questions. It is interesting that 65,000 people, over half the capacity of the private rented sector, are in receipt of housing benefit. Therefore, it is in the private rented sector's interest to ensure that it keeps in touch with tenants who draw down housing benefit. That is important. We were dealing this morning with fear tactics that would leave us in a position of worrying about what will happen. However, we should not be put off trying to deal with what has been a long-running problem.
561. I agree that a deposit scheme is crucial. Will people consider using credit unions or such bodies to hold deposits? That may be a good avenue, because they deal with financial issues all the time.
562. A while ago, a report on HMOs came out, which said that money could be raised through the payment of licences to ensure that an education process is put in place for landlords and tenants. A lot of the administration that they consider burdensome would be covered by the cost of that. You should not rule out any money from the mandatory registration, when it comes in, being fed back in again to ensure that that is covered.
563. This morning's witnesses made a couple of good points about antisocial behaviour. It would be crazy for a sector that is now bigger than the social sector to not be open to some of the information flow that we are trying to ensure exists under the legislation. I know from the area that I represent and live in that one tenant can destroy an area. They also recognise that. We need to ensure that everybody is able to tap into whatever information is available.
564. On the question of the abandonment of homes, does that include giro drops?
565. Mr Flynn: Not specifically. I thought that Mr McCann might raise that. An abandonment notice is served when it is brought to our attention that a property has been left and that no one has been about. It could end up being a case of what Mr McCann terms "giro drops".
566. Mr F McCann: That is the term that most people use.
567. Ms Ní Chuilín: Yes.
568. Mr Flynn: I could not possibly call them that until I have established the evidence. To put it into context, we served notices on 350-odd abandoned properties last year. That represents a small percentage of the 90,000 properties. However, it takes a huge effort to secure that small number of properties because of the procedures that we have to follow. That is why we welcome the opportunity to speed that process up, and, if we identify a property that has been abandoned and is not occupied, we simply serve notice on that. In most cases, we do not get a reply to that notice. Once the notice has expired, we can take possession, and the stock can be recycled to those who are in much need.
569. There has been an issue with giro drops, and we have been working with NIE, in particular, because the electricity consumption in a property is a fair indication of whether someone lives there. NIE has worked with us to provide addresses that we can then follow up. That work is in its early days, but it is starting to provide evidence and to have success.
570. Mr F McCann: I have two further points. The condition of some houses in the private rented sector has been discussed. Although the Private Tenancies Order was welcomed, many people, including some in councils, believed that it lacked the teeth to allow you to deal with some of the serious problems that existed. We would phone the environmental health people, who would go out and slap an order on the property, but all that really happened was that a small fine may have been issued. That does not force landlords to deal with the problems.
571. Finally, from the outset, when it was first spoken about on the Floor of the Assembly, through to now, the discussion on the registration of landlords has taken on many different shapes. At the start, it seemed that there was going to be a fairly robust registration scheme. However, following whatever discussion took place in the Department with the Minister, a very light touch is being gone for.
572. The Scottish model has taken years to settle in. That was introduced mostly to deal with antisocial activity. I know from what I have read that the Scottish Parliament is fairly happy and satisfied now that people are starting to get the feel for that model. It has attached compliance legislation to ensure registration. I have questioned whether a registration scheme is completely useless unless it has some compliance regulations to ensure that people register. Why was the Scottish scheme not lifted and tweaked to deal with the situation that we have here, given that there has been a four or five year run-in?
573. Mr Martin: It is partly due to evidence. Here, the evidence shows that we have a greater number of small landlords. My colleague Angela Clarke, who is sitting behind me, has been doing a lot of work on landlord awareness. She has been going around Northern Ireland and holding evening seminars and so on for landlords to try and educate them. There is a lot of regulation of the private rented sector. The problem is exactly what the Committee mentioned earlier around knowing who landlords are and being able to join up the dots. This legislation attempts to do that. It will be light-touch in the sense that the registration scheme itself will not be onerous, but what it will allow us to do is to more effectively use the regulations that are already there.
574. The Scottish model has evolved over time. It evolved, as you rightly say, because of a different set of circumstances. Originally, the Scottish Bill was introduced in 2004 to tackle problems in particular parts of Glasgow through selective licensing. There was an amendment that applied the landlord registration scheme Scotland-wide, but the original purpose was to tackle antisocial behaviour. We are talking about making our existing regulation more effective. Our system may well evolve in the future, but this is a good starting point. It is balanced regulation. The Committee has already heard from landlords about their fears. We have tried to achieve a balance that does not put an unfair onus on those smaller landlords but attempts to identify who they are. We will target them with education and awareness, but, if they do not comply with existing regulation, we have an information source to pursue them through the court system.
575. Mr F McCann: Mary Bradley said earlier that she would have more faith in the individual landlords who may own one or two houses and have a vested interest in ensuring that they have good properties. However, there are sizable landlords who do not buy into the idea that they have to provide quality, safe accommodation for their tenants.
576. Mr Craig: Fra raised a point about giro drops. I had the dubious pleasure of a tour of the fraud department of the Social Development Department yesterday, and it was quite an eye-opener. With regard to the reporting of those properties, do you immediately pass that information on to the fraud department for investigation? I was surprised at the extent of its powers. For example, it has the legal ability to investigate the accounts of individuals who own such properties. Some of that has led to major prosecutions. Is it automatically reported? People come to me regularly to complain about those issues. I report that to the local area manager, and I would like to think that that is passed on to the fraud department.
577. Mr Flynn: Our first port of call in dealing with what have been termed giro drops is to gather the evidence to make sure that people are not out of the property for a time because of illness or whatever. If, having gathered the evidence, we find that it has become a giro drop we seek to terminate the tenancy. It is a long process. Once we have secured the property, if those people then demonstrate that they have been on benefits, for example, we have a relationship with the Department whereby we work directly with it to follow those cases through. It is a two-way street. We identify cases to be followed up for fraud, and the Department identifies a sample of cases every year for us to investigate when it has been brought to its attention that people are accessing multiple benefits, for example. We work very closely.
578. Housing benefit overpayments is a big issue for us to manage. That is where money has been paid out incorrectly either because of officials making an error or claimants providing information in error or because of fraud. We have generated almost £2 million to date this year through our work on fraud. That is as a result of our increased efforts in detection of fraudulent claims and the fieldwork that both parties carry out. That will remain with us. You can see the potential for introducing a single benefit and cutting out all the multiple benefits. A lot of work is being done. Both parties work together closely, and the proof of the pudding is in the evidence that we have collected.
579. Mr Craig: I am glad to hear that.
580. Ms Lo: I have a question about the power to indemnify officers. A lot of residents' groups and similar bodies highly value input from housing officers. However, a lot of them already have indemnity insurance. For example, neighbourhood renewal partnerships often have indemnity insurance, or they have made themselves into companies limited by guarantee so that liability is very restricted. Sometimes, the way round it is to regard the housing officer as an observer, not a member. So, they do not vote, but they give advice. There certainly are ways round it. However, I see that there is a gap. Someone might unknowingly become a member of a board or committee and become liable.
581. Indemnity insurance is very expensive. Can you give us a figure for the cost and tell us how you are going to go about it? How many members of staff do you have?
582. Mr Flynn: I have no idea what the cost would be. I will do my best to find out and get back to the Committee on that.
583. Ms Lo: You can let us know. Are there currently ways of covering them?
584. Mr Flynn: I am not sure whether you end up paying a premium for that. I think the idea is that, to formally give us cover, we would indemnify any member of staff in the unlikely event that anything might go wrong. If that presented in legal costs, we would pick it up. I am not sure whether there is a premium attached to that cover. I will do my best to find out.
585. Ms Lo: Another area is fuel brokering. That is an excellent idea, if we can do it. It makes economic sense. However, what about EU law? If we pay one supplier all the time for all the housing tenants, will we break EU directives?
586. Mr Flynn: Absolutely not. We are given the powers to broker. To do that, we would advertise in the Official Journal of the European Union to seek expressions of interest from all those who want to provide. Say, for example, we advertised for the provision of gas. At present, Phoenix and Firmus provide gas. If other providers wanted to do so using the existing network, it would be an open competition, and that would be fully compliant with EU procurement legislation.
587. Ms Lo: OK. During the negotiations, is there any merit in also talking to suppliers about social tariffs, for example, for older people?
588. Mr Martin: We had some early discussions with the Northern Ireland Authority for Utility Regulation. Its view on the proposal is that it could act as a magnet factor. On any given Housing Executive estate, there will be a number of properties that are now in the private rented sector or are owner-occupied. If the Housing Executive is attracting a new gas supplier to Northern Ireland, there is absolutely nothing to stop that gas supplier knocking on doors and looking to extend. In fact, it would be in its economic interest to do so. If it works, it should attract additional competition into the Northern Ireland energy market, which is something that the regulator welcomes.
589. Ms Lo: But what about talking about social tariffs when we are negotiating?
590. Mr Martin: That is a different issue. The Department for Social Development has no statutory authority to do that. That is a matter for the Department of Enterprise, Trade and Investment and the Utility Regulator. Unfortunately, the Housing Executive would not be able to enter into that through the legislation.
591. Mrs M Bradley: My question has already been asked, thank you.
592. The Chairperson: During the previous evidence session, the issue of government control of private sector rents was raised. Will you explain what the Bill will do in respect of that?
593. Mr Martin: It is very little. I think that there was a misunderstanding about that. The only rents that government control are rents for properties that are unfit or rents that are statutory or protected. The Committee may remember that we brought regulations before it. We are talking about a very small number of properties — a few thousand — for which rent is controlled, either for historic reasons or because of unfitness. All that we are doing with clause 4 is bringing together a range of powers and giving the Department the power to amend those by subordinate legislation. We are not actually changing the policy in any way. We are not enlarging rent control or bringing more properties within the scope of that control. It is just a different way of keeping the powers updated for those properties for which the Department already exercises rent control. It is not a proposal to extend, expand or do anything further with rent control.
594. The Chairperson: That is helpful.
595. Mr Gallagher: I want to make a quick point in relation to the energy brokering. It should save money. Do you have any idea of how much money it will save?
596. Mr Flynn: Absolutely no idea. I do not know how you would translate that. You go to the market and test the response, but it is very hard to predict. We could probably dig out some comparative studies. Some work has been done in Newcastle upon Tyne on [Inaudible.] so we can get you some comparison with what was achieved there.
597. Mr Gallagher: That would be useful. I am raising the point because I have visited some Housing Executive properties that have old storage heaters and ancient energy contraptions, which are very ineffective. For people in those circumstances, energy brokering is only going to widen the gulf in the quality of housing available from the Housing Executive. Energy brokering is a fine idea, but not everybody in Housing Executive properties will get any benefit out of it. The people who are in the substandard accommodation will be in much worse circumstances. If it is saving money, I would like to think that someone will think about using that money to raise the energy standards in places where they are low.
598. Mr Flynn: Where are the areas of potential benefits? First, there is electricity. There are 90,000 tenants, all of whom consume electricity. Any saving made by introducing competition into the electricity market would be welcome to those people. Secondly, around 30,000 of our properties are heated by gas, so there is huge potential in introducing competition to that part of the market. Some 30,000 properties are heated by oil, which is a bit more difficult to broker, and the rest have some form of individual heating or Economy 7, which is pretty expensive.
599. There is potential to secure reductions, and even the smallest reduction in tariff could be of considerable benefit, given that more than 70% of our tenants are on benefits. They are the people who are caught up in the fuel poverty trap. A small reduction might not seem a lot on paper, but, for the individual, any saving [Inaudible.] is considerable. I will try to pick up some of that information from Newcastle on the savings that they achieved. It is hard to predict.
600. Mrs M Bradley: It would be interesting to know how many homes are still using Economy 7. They would really need to benefit from the savings.
601. Mr Flynn: It is in the region of 10,000, but I will confirm that for you.
602. Mr S Anderson: It is good that you are coming with an idea of maybe getting a bigger pool here for tapping into better pricing of energy. Have you made any initial contact with the energy providers? Have you been speaking to any of them in a roundabout way to see what ideas there are?
603. Mr Flynn: I think that there have been informal discussions with the energy providers. They all know that competition is coming down the track. It is, in many ways, a two-way street.
604. Mr S Anderson: Do they give encouraging signs that they are interested?
605. Mr Flynn: It is easy to give encouraging signs; the proof of the pudding is delivering on it. However, it is a two-way street. If you are an energy provider, and you are coming to someone who has the potential to give you a huge part of the market, it would be in your interests to have discussions with them. If they were not negotiating with us in respect of 90,000 tenants, they would have to put people and resources in the field to knock on doors to explain their service to people and to sell their wares. There is benefit in talking to us, particularly as we are working in the public sector. Early indications tend to be positive.
606. Mr S Anderson: Would that be more on the gas suppliers' side?
607. Mr Flynn: Yes.
608. Mr Easton: The Landlords Association of Northern Ireland's letter seems to suggest that, under the new legislation, the Assembly would be able to control and determine private sector rents. Is that just a load of nonsense?
609. Mr Martin: Yes. I mentioned earlier that clause 4 is a minor provision. I reiterate that there is no intention to increase rent control.
610. The Chairperson: OK. Thank you very much, Gerry and Stephen, for your time.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Jonathan Craig
Mr Alex Easton
Mr Tommy Gallagher
Ms Anna Lo
Mr John McCallister
Mr Fra McCann
Witnesses:
Ms Monica Wilson |
Disability Action |
|
Mr Ian Giboney |
Northern Ireland Local Government Association |
611. The Chairperson (Mr Hamilton): As part of the Committee Stage of the Housing (Amendment) (No 2) Bill, the Committee agreed to hear evidence from Disability Action. Joining us from there is Monica Wilson. Monica, you are very welcome. Members have copies of Disability Action's submission, along with other relevant documentation.
612. I remind everyone that mobile phones must be switched off as today's proceedings are being recorded by Hansard. We will use that evidence as part of our report into the Bill. Monica, you are very welcome. I have to leave at 10.15 am, so please do not take anything bad out of my departing. You have known me long enough to know when I am really being rude.
613. Ms Monica Wilson (Disability Action): I will try my best to be speedy as well as effective. Thank you for the welcome. It is good to see all the members again. I will start by saying that we in Disability Action are not law writers, so the points that I am trying to make are broad ones that we consider to be of major concern to people with disabilities. I thought that the best way to do that was to mention the four points raised in our submission and give a bit of background to them. Sorry, I am at the stage where I have to take my glasses off to read things, so please forgive me.
614. The first point that we were trying to make was about the potential under proposed new article 5A(3)(c) to insert some kind of sub-paragraph about elements of a scheme; for example, a bond scheme, which would protect the interests of people with disabilities, people in low-income houses and other vulnerable people. We know that 17% of the housing stock is in the private sector now, and that figure is increasing. What members may not know is that, of that housing profile, 9% of tenants are permanently sick or disabled people. As 70% of disabled people live on or around the poverty line, there are real issues there.
615. That links to the current welfare reform debate and the movement of people from employment support allowance to jobseeker's allowance, and to the issues around cutting back on housing benefit for people who have been on jobseeker's allowance for one year. All those things come together to create real issues of affordability for people with disabilities. For example, the payment of a deposit or of rent in advance is a significant issue for people with disabilities. An average deposit payment is £350 or £400, and the average rental payment is around £80 a week. If housing benefit is restricted or restrained, people will have to pay the shortfall. Landlords have an expectation that people will pay the difference, usually from their own benefit income. That will be a big issue.
616. Scotland and Wales have good examples of bond schemes and protections for people with disabilities. There are a number of ways to do that. Some local authorities have funded voluntary and community sector organisations to hold a bond and to work with landlords on a contractual basis to provide safeguards. That might be a scheme worth considering as the situation gets worse, particularly as welfare reform cuts happen. We suggest that the Committee strongly considers that.
617. The second point relates to proposed new article 65A(3), which gives one of the few opportunities to develop some kind of accessible housing register. It is very difficult for disabled people. I know that most of you have asked questions about the length of waiting lists for housing adaptations and those kinds of things. More and more, people are moving into the private rented sector needing specific adaptations and are having to wait for long periods, which often leads some people with disabilities and some older people into homeless status. A register of accessibility would be eminently sensible. Such a register would compare accommodation with the lifetime homes standard, not the decent homes standard. The lifetime homes standard provides for additional accessibility; for example, width of corridors, level entrances, or having a bathroom on the ground floor. Although we have some difficulties with those standards, that would, at least, be a move forward.
618. We suggest that the Bill should provide for a register of the accessibility of properties that provides simple, not complex, information. There are certain things that people need to know. Can I get in the front door? Can I go down the corridor? Can I get to the toilet? Can I use the kitchen? Those are all very simple things. A broad register, as an indicator, would be a real starting point and would be really important for people with disabilities.
619. Our third point relates to clause 10. We make the general point that, often, some antisocial behaviour cannot necessarily be judged and decided upon, because people with learning disabilities or mental ill health may have behavioural issues. There needs to be some consideration of the potential for the disclosure of information about people. The good side of it is that, if somebody has cause for their behaviour, such as a mental health disorder, that might be a good thing to communicate. However, who that information is communicated to, how it is communicated and how confidentiality is kept are important.
620. I am sorry that I have no answers for the Committee. However, I do have a number of questions, and this may be the ideal opportunity for the Committee to consider those. It is important to consider that an increasing number of people have mental ill health; that there are links between mental ill health and homelessness; and that there are issues around suicide and broader community-related issues.
621. Our final issue is around clause 11. We are saying that mental ill health is, in particular, a fluctuating condition. Someone could be "cured", or their mental health behaviours could improve significantly and their status could be changed, but they may go into a trough and have another episode. It is a question of how to protect the status of an individual with a fluctuating condition.
622. That was a very quick run through our concerns, but I realise that the discussion will probably be more important.
623. The Chairperson: That was useful; thank you, Monica. The point that you made about clause 10 and antisocial behaviour is one that we have to be mindful of. It can sometimes be too easy to look at a problem in the social sector or in the private rented sector and say that that person is antisocial. There may be underlying factors, although it does not make the behaviour any more acceptable or ease the problem.
624. Ms M Wilson: Absolutely, but the behaviour could be better managed if people knew what the cause was, and it could be better understood in a community where people are trying to live together.
625. The Chairperson: You made the point that it is difficult to word a clause to do that; we may be able to get assurance from the Department on guidance and how that might be implemented. We may get some assurance that those issues would be taken into consideration.
626. Ms M Wilson: Absolutely; in the first instance, it is important that people know that the matter has been discussed at this level and that we are trying to find a route that offers reassurance both to people with disabilities and the people who share that community.
627. Ms Lo: It is good to see you, Monica. My problem is the opposite of yours; you take off your glasses to read and I usually wear mine, but I have left them at home, so I am struggling to read.
628. The Chairperson: You should do a job share with them. [Laughter.]
629. Ms Lo: You mentioned a bond system. I do not know much about that. Can you explain that to me?
630. Ms M Wilson: Yes; that is basically where a sum of money is protected. That service is usually delivered in GB by the local authority. It holds a sum of money that it can use to work with the landlord and the prospective tenant who may not have the money to pay for, say, a month's rent in advance or the deposit. There are a number of ways in which that can be done. From our brief research, it mostly seems to be that local authorities hold that bond and develop a contract between themselves, the prospective tenant and the landlord. Normally, the tenant repays the sum over a fixed period, so it is basically a loan system. It ties the local authority to the landlord, so that is a form of protection, which is particularly important for vulnerable people. I can provide more information on that if members would like me to.
631. Ms Lo: Is that linked to a deposit scheme?
632. Ms M Wilson: Yes. It gives the tenant a chance to get started and to begin the longer-term pay back of the deposit and start-up costs. It also gives the private landlord reassurance that that payment will be made.
633. Ms Lo: OK, I understand.
634. Mr F McCann: Monica, you are welcome. Thank you for your presentation. It is interesting that some of the issues that we have been dealing with over the past number of weeks are around deposits. Paying deposits is an issue that affects everybody; it probably jumps out at people in the private rented sector all the time. The problem is finding a way that deposits can be paid so that tenants are protected and to provide the training that is required to bring the private rented sector up to a level where it can work with its tenants and with others.
635. I understand what you are saying about antisocial behaviour involving people with disabilities, particularly those suffering from mental ill health. In the area that I represent, I have been dealing with a number of people with mental health difficulties who have been targeted by antisocial elements because they are mentally ill. What we are trying to do is find a happy medium and a mechanism that protects those who are vulnerable but at the same time allows the severe antisocial activity to be tackled. I know that you are saying that you have no answers, but there may be a mechanism that your organisation could tap into directly so that people with mental health problems can be identified by those who deal with housing.
636. Ms M Wilson: The Committee might consider getting some research on the interface between the work of the Department of Justice and that of this Committee, because the issue of hate crimes is a growing concern for people with disabilities and we need to do something about it. I think that I was trying to facilitate the Chairperson too much and spoke too quickly. There are two issues. There are vulnerable people living in the community who need protection, but I was saying that many of the people who are declared to be antisocial actually have behavioural issues and need protection. There is a real dilemma about whether the confidential information pertaining to those individuals — for example, their medical information — should be shared with people, so that those in the community know the reason for the behaviour, without necessarily excusing it, or whether that confidential information should be completely and absolutely protected. That is where the stress is.
637. There is a way of giving some control to the individual with a disability who is in the middle of that by doing a wee bit of extra work with that person in order to prepare the ground. Disability Action works with around 45,000 people a year, and supports roughly 600 of them in work. That is a big issue; it is about how we prepare their colleagues and prepare the ground to make it easier for somebody coming into a workplace. That is the kind of dilemma that I wanted to talk about.
638. Mr F McCann: The Committee has led the charge about the sharing of information, especially when antisocial tenants are moving into a property. How to deal with people with mental disabilities is an issue that could be looked at. The sharing of information is essential. At the moment we are dealing with information being shared among housing associations and the Housing Executive, but last week there was some talk about how we could widen that to include the private rented sector, which, as you rightly said, equals the number of houses in the social sector.
639. I know that many of the new houses that have been built by housing associations are built by and large to a lifetime homes standard, but, because there is now more reliance on the private rented sector, many of the houses that are being offered were built pre-1950 or pre-1960, and there is nothing in those houses to facilitate anybody with any disability.
640. Ms M Wilson: Part of that is about working out the demographics. Only about 4% of any population of disabled people are permanent wheelchair users, and they need specific and parallel provision. There are low-cost things that can be done. One's first thought might be that it is such a big issue, it cannot be tackled at all. I think that it can be tackled. It might be possible to have small pilot projects and to work with landlords and the disability sector to work through the technicalities of provision. I am generally an optimist. I know that it is difficult, but I think that we can find a way around it.
641. The Chairperson: It is good that that point has been raised now. The Bill will give the Department the power to create a registration system for private sector landlords, but the detail of that is still being worked on, so we could pick up that point about including in a register of landlords an identification of suitable properties. We can ask that that be considered.
642. Ms M Wilson: That would have a real life-changing impact. Of all of the things that I have said, that would really help people.
643. The Chairperson: Has your organisation ever looked at working with landlords or landlord associations away from government to get a scheme that they are accrediting?
644. Ms M Wilson: As the Committee knows, the funding for our access officers scheme has been withdrawn. Part of their work was to build those co-operations and to explore those kinds of issues. We talk most regularly to disabled people, but we try to talk to other people as well. That does not happen consistently yet, but that is a good idea.
645. The Chairperson: Failing any avenue involving a register, that might be the best backup. We can certainly take the issue forward.
646. Mr Brady: Thanks for your presentation, Monica, and for recognising me this time.
647. Ms M Wilson: That is not a problem, Mickey.
648. Mr Brady: You mentioned the antisocial aspect and made a valid point about identifying people with mental health problems. It seems to me that, given the so-called welfare reform that is being put in place and the migration of people from incapacity benefit to jobseeker's allowance, the interviewers will have to identify people with specific problems, particularly mental health problems. That is a huge problem area, particularly for people with conditions such as bipolar disorder, who will be fine during an interview on one day and, on the next day, may not be.
649. It seems to me that, if a person gives permission and housing benefit is involved, liaison could be set up between the Social Security Agency and the Housing Executive to identify people with particular problems. That may help to educate those organisations about particular mental health problems. That seems to be one way to address the problem. It may not suit everybody, but there will be an initial interview to establish what a person may or may not be capable of. Those problems could be drawn out with good medical evidence, and so on.
650. Ms M Wilson: Absolutely. People know our position on employment and support allowance and the difficulties that people with disabilities have with it. I have focused on mental ill health, but there are growing numbers of people with autism. It is about "strange behaviours". Therefore, greater identification of people's conditions will be a massive problem.
651. Mr Brady: It might be a way to pass information on initially.
652. Ms M Wilson: There would need to be a lot more training.
653. Mr Brady: Obviously, that should happen within the confines of confidentiality. One issue with welfare reform is that of staff training. On one hand, we are told that they will be trained up to certain standards, but, on the other hand, we are told that there will be huge reductions in front line services. That is a total dichotomy, and we need to look at that very closely.
654. Mrs M Bradley: Hello Monica; it is nice to see you again. You talked about the identification of people with mental health problems. Sometimes they do not want to be identified, and sometimes their families do not want them to be identified. The Carnhill estate was built about 39 years ago; it is a large estate with 700 houses. One row of houses there is completely for people with mental health problems. The houses look the same as the other houses in the area, but they are different indoors, and there is proper access. Some people have lived there for the best part of 39 years. Two older people remain now, and the rest of the residents are new. However, they do not have any trouble from anybody, and nobody even recognises that they have problems.
655. I have to declare an interest; I worked there for 19 years. Therefore, I can tell you exactly what happens there. I always thought that it was a great scheme, and I have spoken to the Housing Executive on many occasions about repeating that scheme in other places. That could be done, and we should take note of that. It is a fabulous scheme, and the residents have every facility that they need. Mental health nurses visit them, and they have access to anything that they need. It is a good idea and we could look at having something similar somewhere else.
656. The Chairperson: Monica, thank you very much for coming along and for giving evidence. You have given us a few points to think about and to pick up with the Department. If we need anything else, we will get in touch.
657. Ms M Wilson: Thank you all very much for your time.
(The Deputy Chairperson
[Ms Ní Chuilín] in the Chair)
658. The Deputy Chairperson (Ms Ní Chuilín): Our next evidence session on the Housing (Amendment) (No. 2) Bill is with the Northern Ireland Local Government Association (NILGA). Copies of its submission on the Bill and other relevant documentation can be found in members' packs. I welcome NILGA's representatives: Donal McLaughlin from Lisburn City Council; Claire O'Neill from Belfast City Council; Ian Giboney from Omagh District Council; and Karen Smyth from NILGA. You are very welcome. In case you were not in the Public Gallery when the initial warning was given about interference from mobile phones or other electrical devices, I ask you to turn yours off, please. I remind everyone that the session is being recorded by Hansard. Without further ado, I invite you to give your overview of the Housing (Amendment) (No. 2) Bill and, indeed, any amendments that NILGA would like to propose.
659. Ms Karen Smyth (Northern Ireland Local Government Association): Thanks very much, Chairperson, for inviting NILGA to give evidence on these important proposals. First, I want to apologise on behalf of Councillor Jenny Palmer and Councillor Joan Baird, who are our lead members on housing. They are unable to attend the meeting. I understand that Councillor Palmer intended to contact the Chairperson, Mr Hamilton, in that regard.
660. Housing standards and conditions are key issues for councils. Our environmental health officers have built up a wealth of experience in that area of work. District councils are generally supportive of the measures that are contained in the Bill. We have a number of points to make on specific clauses. Before we do that, I want to point out that NILGA hopes to begin a study in the near future on councils' ability to cover costs with all legislation. That piece of work would cover all of our functions and include fees, charges, fines and fixed penalties. We will comment further, particularly on the Magistrate's Court rules, later in our presentation. I will hand over to my colleagues, who will give a brief clause-by-clause presentation, after which we will be happy to try to answer any questions that members might have.
661. Ms Claire O'Neill (Northern Ireland Local Government Association): Clause 1 deals with the abolition of statement of tenancy terms. NILGA has no issue with the abolition of article 4 of the Private Tenancies (Northern Ireland) Order 2006, provided that tenants are furnished with the statement of tenancy terms through another means and that any associated costs are paid by the landlord and are not passed on to the tenant.
662. Clause 2 deals with tenancy deposit schemes. NILGA welcomes the proposal to introduce safeguards for deposits that are paid by tenants in the private rented sector. In the experience of local government, environmental health professionals often get drawn into disputes about the withholding of tenancy deposits. We recommend the establishment of a formal dispute resolution service in this jurisdiction that is similar to those that have been in force in England and Wales since 2007. NILGA queries which authority would regulate and enforce the rent deposit scheme in Northern Ireland, as that has not been made clear in the legislation.
663. Clause 3 deals with power of entry to inspect dwelling houses. Power of entry by persons who are authorised by district councils to carry out fitness inspections are welcomed. It is important that district councils are provided with the tools to ensure that housing for low-income families in the private rented sector is comparable with social housing. It is suggested that the current fitness standard no longer provides a suitable means by which to assess housing conditions. It is recommended that the Department should seek to standardise the assessment of housing conditions with the rest of the UK, where the housing health and safety rating system applies. It is further recommended that the Department should convene a stakeholder forum, with local government involvement, to look at alternative standards. It is suggested that the decent homes standard be used as a target for all housing and that that be given legal and enforceable standing.
664. It appears that there is a gap in the legislation, as there is no ability for a council to require a specialist report from the landlord in cases in which the environmental health officer has reason to believe that there is a hazard; for example, an electrical test, a chimney test or a structural engineer's report to ascertain the safety of the element in the structures or fittings. The matter must be addressed in any amendments to ensure that councils have the ability and the legislation to address such matters in cases in which the council's initial inspection indicates safety concerns that require further in-depth examination.
665. Mr Donal McLaughlin (Northern Ireland Local Government Association): Clause 5 deals with registration of landlords. We welcome the requirement to register all landlords of dwelling houses let under a private tenancy, as it will help to encourage landlords to apply an appropriate standard of management and aid enforcement for district councils. However, we are concerned that the legislation should state that the Department "shall" make regulations rather than, as is stated in the present draft, "may" make regulations.
666. Mandatory registration will also help councils to be more proactive, target priority cases and discharge their regulatory functions consistently, as they will have information on previously unknown private tenancies. For the registration scheme to be effective, we recommend that councils have a common IT and registration scheme, to ensure clarity for landlords and uniformity for councils. NILGA also suggests that, if the scheme is to work, information, such as housing benefit information, must be shared between statutory bodies. We note that such a measure will have a financial implication.
667. As regards good accounting and value for money, we believe that housing benefit should be tied to registration, so that less well-off tenants on housing benefit do not have to suffer unfit housing conditions and lesser standards and so that unscrupulous landlords are not rewarded for substandard housing. NILGA also believes that the process of registration will fail to register those landlords who reside outside the UK jurisdiction, such as those who reside in the Republic of Ireland. The registration scheme must be self financing, and the fee structure should be delivered on a cost-recovery basis.
668. Sufficient resources must be identified to ensure an appropriate, wide-reaching advertisement of the registration requirements. At present, there are some properties that councils believe should be within the remit of the Private Tenancies (Northern Ireland) Order 2006. However, through the Housing Executive's policy decisions, those are being manipulated to remain outside the regime. I refer to what are commonly known as single lets, which will remain unregistered.
669. Clause 6 is entitled "Fixed penalty for certain offences". Penalties associated with non-compliance must be sufficiently high to encourage uptake of the scheme, and councils should be able to recover the costs of legal intervention. The Magistrate's Court rules of 1988 are restrictive, in that councils can only recover £75 in legal costs. That discourages many councils from initiating costly prosecutions. We suggest that the level of fines and fixed penalties should be reviewed after two years.
670. We welcome, in principle, the proposals of clause 8, which is entitled "Houses in multiple occupation: evidence of family relationship". However, we have concerns regarding how it would be implemented in practice. Local government knowledge of the houses in multiple occupation (HMO) sector indicates that, for some types of HMO, unscrupulous landlords may suggest that unrelated tenants claim that a family relationship exists between them. NILGA, therefore, recommends that comprehensive guidance is developed on what would be acceptable as appropriate evidence.
671. Mr Ian Giboney (Northern Ireland Local Government Association): Clause 12 deals with the powers of the Executive in relation to energy brokering. NILGA welcomes any proposals that may help to ease fuel poverty, and we encourage the expansion of the scheme to cover all social landlords.
672. Clause 13 deals with the functions of councils in relation to energy efficiency. NILGA welcomes greater partnership working between key agencies to prevent duplication and provide an efficient service. We welcome the proposals to provide councils with powers to promote domestic energy efficiency as an element in the drive to address fuel poverty. However, although some councils currently carry out a number of initiatives, we recommend that, to promote energy efficiency, the Department undertakes a formal consultation on the extent of resource provision for explicit powers for councils to assist in the management of heating costs in residential accommodation.
673. We note that a number of councils administer fuel stamp schemes. In order for all councils to facilitate that type of support to the fuel poor, NILGA advocates a more explicit inclusion in the Bill, to ensure that councils have clear powers for schemes that are designed to assist the management of heating costs in residential accommodation.
674. NILGA advocates the incorporation of energy efficiency into the housing fitness standard. It is believed that that could be done in the short term by modifying statutory guidance without having to amend primary legislation. It could be one way of increasing standards and could be achieved at little or no cost to the public purse. As was stated earlier, we would like to see a housing health and safety rating system, but this could be an interim measure. Since our submission was written, we have learned that the Department will shortly commence a consultation process on housing standards.
675. The Bill does not address the issue of resources for councils in delivering compliance under the Private Tenancies (Northern Ireland) Order 2006. District councils were given responsibility for enforcing that Order, but other than being able to charge for certain notices and certificates, no additional resources were available for carrying out the remaining statutory functions. The present charging regime needs to be updated, as the inspection charges were set in 2006, before the legislation commenced, and are based on historical charges to the Housing Executive for fitness inspections. There should also be a recognised process by which the fee can be reviewed, as it should represent cost recovery to councils.
676. Finally, we would prefer to see the insertion of the word "shall" instead of "may" in clause 2, tenancy deposit schemes, and clause 5, registration of landlords.
677. The Deputy Chairperson: Thank you for your presentation. You can see that mention of the word "shall" has prompted a bit of interest. The words "may" and "shall" are best friends of the Social Development Committee. We are well used to that couple entering our conversations.
678. Mr Craig: I was very interested in what you had to say. A couple of points fascinate me. You mentioned statutory bodies passing information between each other. I take it that you feel that something needs to be included in the Bill to force that issue, and I am curious to know what level of information is required to be transferred between you to implement that.
679. Ms C O'Neill: We would not require any tenants' information; we are talking about housing benefit information. Councils would like to know where the tenancies exist — by that I mean the address of the tenancy — whether a new tenancy has commenced and whether housing benefit is being paid there. The problem that councils have is detecting new tenancies and finding out where they exist. We would not require the tenant's personal information, just the location of the rental property so that we can make further inquiries as to whether it needs a certificate of fitness, whether the person has been given the correct information with a rent book, and so on. It is to help us to detect where tenancies exist.
680. Mr Craig: I am glad to hear that being highlighted now, because there have been occasions in the past, perhaps not so much with this Committee but with others, where information just has not been passed between statutory bodies. That is lamentable. The other interesting point is the power to inspect dwellings. You are looking for a pretty draconian power. What would trigger an inspection? What would the normal process be? I am really asking how we can ensure that it would not be abused.
681. Ms C O'Neill: Normally, there are various methods through which someone can contact a district council to request an inspection of a private rented property. It can be triggered by a tenant who is unhappy with the conditions that they are living in, and they can contact us under the old Public Health (Ireland) Act 1878 about nuisances in the property. The landlord can contact us to apply for a certificate of fitness if it fits the specific criteria, or a family member or concerned person can say that a tenant needs help. A wide range of mechanisms can trigger a visit from the council, instigated either by the tenant or the landlord.
682. Mr Craig: That power would be essential to make it workable.
683. Mr F McCann: Thank you for your presentation. When the Disability Discrimination Order 2006 was made, we had been arguing for strong compliance laws to go along with it. The Committee is constantly being told that the 2006 Order allows people in organisations such as yours, particularly those from an environmental health housing background, to deal with all eventualities. The only thing that it lacked was serious teeth to allow people to deal with issues. I am one of the people who use the services of the environmental health housing division in the Department. Once a compliance order is issued, that is near enough where the process stops. People walk into court, get a slap on the back of the hand and walk out again, and do very little about their houses. There needs to be robust compliance legislation to ensure that people follow through.
684. There are many councils in England, Wales and Scotland that use different methods of dealing with deposits. We have the luxury of having a single agency that could deal with that issue. As I said earlier, such a body could take on a multitude of functions, such as training and protection of tenants, and could also allow us to tap into the resources that it builds up to deal with some of the issues that you have raised. We need registration, but the registration is not worth the paper it is printed on unless there are robust compliance regulations to ensure that people follow through. The HMO legislation taught us that people take a fine on the chin, walk away from it and do little else. There are number of issues to consider. Although the 2006 Order changed some of the outdated legislation, it did not go far enough to allow us to deal with some of the serious housing problems that remain.
685. Mr Gallagher: You said that some amendments to clause 3 are necessary to deal with obtaining specialist reports from landlords in cases in which there is a risk with a property; for example, from an appliance. How it can be proven that that has happened? What do you feel is required of the legislation in that regard? I represent Fermanagh and South Tyrone, and in view of the tragedies in Irvinestown — I understand that one happened in a private property, but the other may have been in a rented property, although that is not clear yet — what reassurances do you envisage can be provided by amending clause 3?
686. Ms C O'Neill: Currently, if an environmental health officer enters a property and feels that a report is required, that is compiled at the council's cost. We feel that the landlord, as a professional business operator, should submit such reports to the council. However, there is no legal requirement to make them do that. Landlords must provide annual reports and records of inspection of Gas Safe registered appliances to the Health and Safety Executive. However, there is no legal requirement on landlords to carry out regular electrical testing or chimney testing, or testing of oil-fired boilers, which are also potential sources of carbon monoxide.
687. Gas is a very well regulated area, but there is no requirement for landlords to produce reports on a regular basis. Therefore, environmental health officers and councils have to commission reports if they are doing a risk assessment and feel that there is a risk that an appliance could be defective. Ratepayers are bearing the cost of that instead of the landlords who are running the businesses. We feel that something similar to the gas safety regime could be used for other high risk appliances and electrical installation. In England, it is a requirement that landlords carry out regular testing. However, that is not a requirement here in Northern Ireland.
688. Mr Giboney: In HMOs there is already a requirement for electrical safety certification. It may, possibly, be an equality issue that a tenant in a private single letting does not have the same safety afforded to them. As my colleague stated, officers go out and find situations about which they may have grave reservations. If those officers have to seek specialist advice, that is at the burden of the ratepayer and not the business operator.
689. Mr Gallagher: What do you mean by a specialist report?
690. Ms C O'Neill: For electrical installations we ask for a periodic inspection report from a NICIEC approved electrician, which is a test of the full installation. NICIEC is an independently monitored body and its test meets the current regulations. A British standard chimney test is carried out by chimney contractors to look for any blockages in the flue and at the integrity of the flue. We commission that test from private companies.
691. Mr Giboney: Throughout the Province, approved operators use CCTV to look at chimney flues.
692. Mr Gallagher: If environmental health staff recognise a risk, they identify what that risk is to do with; for example, fuel or the electrics. Quite clearly, it is not enough for a landlord to just sign something to say that that is all right. An authentic piece of paper is required from a particular organisation with expertise.
693. Mr Giboney: We would prefer so. The three main concerns are electrical safety, flues and carbon monoxide from heating appliances. If we have reservations and causes for concern about situations that we go out to, we have to seek and pay for specialist reports. Obviously, we much prefer reports from a recognised contractor or similar, rather than self-certification.
694. Mr Craig: Claire, I agree that gas is highly regulated. Chimneys are built and tend not change, although there can be building issues. Unfortunately, however, when it comes to the electrics, a lot of tenants end up doing their own modifications in a house, some of which, quite frankly, can be downright dangerous. I foresee a difficulty in differentiating between a landlord's original specification and what someone else may have done. Have you any idea as to how you would manage that aspect? I agree that the cost should not be on the council. However, in a case such as that, the cost should not be on the landlord either, but how do you prove that?
695. Ms C O'Neill: I agree. To cover themselves, our recommendation is that every landlord carry out an installation check at the end of every tenancy or before a new tenancy. Those tests provide documentation as to the state of the electrical installation in a property. If the tenant subsequently decided to do all his own modifications, that would be identified at the end of the tenancy and — to return to the tenancy deposit disputes — could justify why some deposit could be withheld, because of the interference with the installation. We always say that it is good practice, and in HMOs it is done regularly, but, again, the private rented sector has been ignored. I know that in England and Wales a documented check is done, I think at the end of every occupancy. That protects the landlord as well.
696. Mrs M Bradley: My question is along similar lines. I declare an interest as a councillor in Derry City Council. I should have done that before the witnesses came to the table; sorry, I forgot.
697. The Deputy Chairperson: It is always handy, Mary, particularly when members are reminded at the start of the meeting, during the meeting and after the meeting. Thanks, Mary. [Laughter.]
698. Mrs M Bradley: I agree with what you are saying about the powers that need to be given to councils. Both building control and the Public Health Agency need the powers to be able to carry out their work right. Jonathan said that chimneys never change; chimneys do change. The last fire in a housing estate in Derry was in a house that was built 40 years ago, and the chimney brace had cracked internally. Is "chimney brace" the right term? I am not good at this building stuff. The chimney brace cracked and went through to the bedroom, and that is where the fumes were coming from. It was a major job. I think that they need to be checked as well. At the moment we are hearing about so many horrific deaths from fumes. Every investigation needs to be made, and people need to have the proper powers to be able to carry out what they are responsible for, because it will backfire to the council if it comes out that something could have been done by the council. I agree that they should get the proper powers that they require in order to do their work properly.
699. Mr F McCann: I want to make just a small point.
700. The Deputy Chairperson: Do not be taking liberties, Fra. I know what he is like.
701. Mr F McCann: In relation to clause 5 you spoke about a light-touch scheme. There is a huge difference between what the Minister and the Department are saying about a soft-touch registration and what is called a light-weight scheme in Scotland. You also spoke about robust compliance legislation; what do you mean by that?
702. Mr D McLaughlin: We have asked for a lighter-touch registration scheme, as that will bring landlords into the scheme. Our problem at the moment is that we have been slightly criticised for the amount of work that we are doing on the pre-1945 houses, in that we are not able to find out where they are. Registration will obviously help us to find out where those properties are and do our job, which is to determine whether those properties are fit or unfit. All we really need is the name and address of the property, although other details may be provided on top of that. Claire has already alluded to housing benefit. All we need is the address of the property and we can then go and deal with that property; we do not need anything else. A light-touch scheme is enough to get us in the door.
703. Mr F McCann: In Scotland, there is fairly robust legislation that forces landlords into a position where they have to register. I think that there is a series of fines if they do not abide by the registration requirement. Do you see that as part of the light-touch scheme?
704. Ms C O'Neill: I know that, in Scotland, there have been very few prosecutions under the article that you are talking about. There has been very little enforcement; I do not know why. Perhaps it is difficult to find the landlords who are operating outside the scheme, which is our problem at the moment. We cannot find the bad landlords. We know where all the good landlords are; the problem is trying to reach out to the landlords who will not register. If you make it quite draconian, they will not register anyway. We have found that you have to try to incentivise the landlords to come into the scheme. Again, that relates to housing benefit.
705. We have been in discussions with the Department about trying to create links. If someone is not on the register, the housing benefit will be slowed down in the process. The housing benefit cannot be stopped, but a light-touch, easy scheme could slow down the process. If we try to link it with the housing benefit regime, more landlords are likely to come onto the scheme. Our problem is that we have never been out to many of the houses that receive housing benefit. We have never received a certificate of fitness for those houses, and they have not been inspected or regulated. We need to try to bring them in.
706. Mr F McCann: When we talk to the Housing Executive, it is clear that the amount of people who have registered does not add up in comparison with the amount of HMOs out there. We need strong compliance regulation to ensure that they are forced into a position where they have to register.
707. Mr D McLaughlin: Through our public health work, we come across a lot of those tenancies for other reasons. In those instances, we force landlords to register.
708. The Deputy Chairperson: Good stuff. The Department will send us a copy of the compliance flow chart for council tenancies. The evidence from NILGA has been very good, and I commend you on behalf of the Committee for that. We will certainly use that evidence during our clause-by-clause scrutiny. Do we require any other information from NILGA at this stage?
709. Ms Smyth: If the Committee requires other information at a later stage, the Committee Clerk can contact me, and I will send that.
710. The Deputy Chairperson: That is very helpful, Karen. Thank you very much.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Jonathan Craig
Mr Alex Easton
Mr Tommy Gallagher
Ms Anna Lo
Mr John McCallister
Mr Fra McCann
Witnesses:
Mr Stephen Baird |
Department for |
711. The Chairperson (Mr Hamilton): We move to our informal review of the clauses of the Housing (Amendment) (No.2) Bill. Given the time, we will spend around an hour on this and do as much as we can. The Committee agreed to informally scrutinise the clauses and proposed amendments. To facilitate the process, Eleanor Murphy from Research Services briefed the Committee on recent developments in landlord registration schemes in other jurisdictions.
712. Officials will brief us on recent departmental responses on the clauses and proposed amendments. Joining us are Alistair Campbell, Stephen Baird and Angela Clarke from housing division. You are very welcome.
713. Members have a copy of a clause-by-clause scrutiny table for the Bill, Eleanor's paper on landlord registration, recent correspondence from the Department, including its tenancy compliance flow chart; and a copy of the Housing Executive's report entitled 'Living in the Private Rented Sector: The Experiences of Tenants'. Members should also refer to their Bill folder, which includes other submissions received during Committee Stage.
714. In this session, the Committee will go through each clause in the table. Members will be asked to discuss the clauses and proposed amendments. The brief has appropriate and key questions, and it is important that the Committee agrees all amendments it wishes to table before formal clause-by-clause scrutiny of the Bill can begin.
715. Mr F McCann: Will you clarify that what we are doing today does not prevent us from tabling amendments as a party?
716. The Chairperson: For the Bill that we dealt with in September, we gathered ideas, took a lot of evidence and heard a lot of things. We perhaps have not gone through each clause methodically. This is nearly a refresher course to stake out any definite positions that there are.
717. The Committee Clerk: Before we start formal clause-by-clause scrutiny, we want to have all of the Committee's amendments in front of us, and, preferably, drafted. For example, we will ask whether members are happy with a clause, and we will know all of the amendments that we want to make to that clause before we agree to it.
718. The Chairperson: For example, Fra might want to table an amendment on which the Committee is massively supportive. If he were to do that, we would vote on it.
719. The Committee Clerk: Of course, if the Committee do not to agree to an amendment, the member will be free to table it himself.
720. The Chairperson: Clause 1 deals with the abolition of statement of tenancy terms. It abolishes the requirement for landlords to provide tenants with a statement of tenancy terms. Stakeholders who commented on the clause generally welcomed it but wanted assurances on the level of information that would be supplied to tenants in their rent books. The only amendment proposed would add additional Assembly scrutiny to the regulations relating to the provision of rent books. Does the Department wish to comment on proposed amendment A?
721. Mr Alastair Campbell (Department for Social Development): Before I start, I point out that we have a different line-up today. We are joined by Angela Clarke, who heads up the private rented section.
722. Ms Angela Clarke (Department for Social Development): The amendment is proposed in this way because most of the provisions in the Private Tenancies Order (Northern Ireland) 2006 are passed on negative resolution. This follows that same process, because it is not seen as a new provision but an amalgamation of two existing things. It does not propose any dilution or reduction in the information; it is just to simplify and amalgamate the existing information. From experience with landlords and tenants, we have seen that requiring numerous different documents complicates everyone's understanding of what they should have and what landlords should be doing.
723. Mr F McCann: From the research briefing this morning, Scotland seems to have a tenant's pack containing all the documentation. Was any consideration given to doing that?
724. Ms A Clarke: This will be very similar to a tenant's pack. The kind of things that Scotland is proposing should be in a tenant's pack will be covered. In fact, they are covered in the statement of tenancy and the information required in the rent book. What should be provided is just not generally known or recognised by tenants or landlords. We are trying to make it clearer.
725. The Chairperson: So, you are going to issue definitive guidance about what should be there and what is optional.
726. Ms A Clarke: Yes, it will be very clearly specified in regulations and in the guidance that is going to go out to landlords. This is partly what we doing now through our informal landlord awareness sessions.
727. The Chairperson: You say that the process will be through negative resolution. Does that mean that the Committee will see the regulations before they are tabled?
728. Ms A Clarke: Yes.
729. The Chairperson: That is OK. Is there anything else, folks? Are we content? We are not stating a definitive position, but we are probably not going to supporting amendment A; is that correct?
Members indicated assent.
730. The Chairperson: Clause 2 refers to tenancy deposit schemes. It allows the Department to make regulations to establish a tenancy deposit scheme to safeguard the deposits of tenants in the private rented sector. As members will recall, the private landlords' group opposed the provisions, indicating that they felt that such measures were unnecessary and might prove expensive and bureaucratic. Other stakeholders welcomed the clause but suggested amendments.
731. Proposed amendment B would change the wording of the clause to make the requirement to establish a tenancy deposit scheme a duty, not just a power — "may" will become "shall". I did not know that Fra had made a submission. Proposed amendment C would include a time frame for the establishment of the scheme of 12 months. Proposed amendment D would set the time period for the provision of information to tenants at 14 days, as in Great Britain.
732. Proposed amendment E would require that tenant deposits be held in secure accounts. Proposed amendments F and K relate to the addition of dispute resolution mechanisms to the scheme. Proposed amendments G and H would identify councils or another authority as being responsible for the scheme. Proposed amendments I and J would withdraw the scheme or at least limit the fees associated with disputes. Proposed amendment L would include a bond scheme to protect the interests of vulnerable people and those on low incomes.
733. Quite a few amendments have been proposed. What is the Department's view on their benefits and practicality?
734. Ms A Clarke: Would you like me to respond to each of the amendments?
735. The Chairperson: Yes, it would be helpful for us to get that feedback. It might be slow or laborious, but even a general response would be useful.
736. Ms A Clarke: The mechanism for the resolution of disputes is already included in clause 2. There is a requirement that the scheme includes a mechanism for dispute resolution. That will be part and parcel of any scheme approved by the Department. It has to be there, and it is there already.
737. District councils will have a role in enforcement; they will be responsible for enforcing the legal provision. As regards regulation, we imagine that it will be private companies that will deliver this scheme, either insurance companies or a scheme to hold the money, and provide independent arbitration. The Department will have role in approving them. It will set out what they must deliver, and to what standard. The companies will have to demonstrate that they can do that before we can give approval. Councils will be responsible for the enforcement of the whole thing.
738. Mrs M Bradley: Is that the reason why district councils have two departments — public health and environmental health? The building control section will also have a role to play.
739. Ms A Clarke: Yes. The environmental health department will lead on enforcement, as it does for most provisions in the Private Tenancies (Northern Ireland) Order 2006.
740. As to the word "may" and whether our intention is to make this a power as opposed to a duty; our intention is clearly to bring this in. We have already begun work on the scheme and we have held stakeholder meetings, involving people in issues such as what the scheme should look like and what the needs of Northern Ireland are. As soon as the Bill gets Royal Assent, we can start formally developing the regulations and laying them. If the Committee's view is that this should be a duty as opposed to a power, I cannot see that it would be a major problem. We need to take the mind of the Minister on the issues but, in principle, it does not seem to be a big issue.
741. As to the time frame, there is a difference. Our proposals for Northern Ireland are that the initial requirement is that the landlord must protect the deposit within 14 days, and that is exactly the same as in England and Wales. However, what we have said is that the information that the landlord must give to the tenant must be provided within 28 days. The reason for that is that all the other information that a landlord has to provide for the tenant has to be done within the 28-day period. In an effort to make it clear to both landlord and tenant, as opposed to setting many different timescales, we have said that the landlord must give the tenant his rent book, a statement of tenancy terms, and so on, all within 28 days. This is exactly the same. The landlord must give the tenant the information about the scheme in which the deposit is protected in that same timescale. That is our thinking. We know Scotland thinks the same, though they talk about allowing 30 days for the provision of that kind of information.
742. The Chairperson: Would the landlord still have to protect the deposit within 14 days?
743. Ms A Clarke: Absolutely.
744. The Chairperson: What other information, besides rent book and tenancy statement, would landlords pass to tenants about the tenancy deposit?
745. Ms A Clarke: It would be just to tell them the scheme in which the tenancy deposit is protected.
746. The Chairperson: OK.
747. Mr F McCann: I want to ask about the deposits. You met some private companies. Has consideration been given to non-profit-making companies, the likes of credit unions or other institutions, which will not only protect the money but pour whatever interest there is back into them?
748. Ms A Clarke: We have not got to that stage yet. It will be for the detail of the scheme. We are thinking about potential providers and talking to other parts of Government about the rules we have to observe and the processes we have to go through to find potential providers. It would not be a procurement process, because no money changes hands and no public money goes is involved.
749. We intend to be very clear about what the providers must furnish, what standards and timescales they must meet and what they must have in place. We will tender and see which providers express interest. As long as companies satisfy our requirements, there is no reason why we cannot approve them. We do not rule anyone in or out. There may be infrastructure costs that providers will have to meet, so it might be expensive for some. However, we do not know that as yet.
750. Mr F McCann: When we were discussing this, it was said that a private company would be involved in order to get as much profit as possible from the scheme. My difficulty with that is that we will be building into the deposit scheme money that may be used for training purposes, or dealing with eventualities that may arise. Most companies that look at this will submit a tender that is as low as possible in the hope that they will make it up in profit down the line. It would be better to look to financial institutions such as credit unions that will safely protect the money.
751. Ms A Clarke: The Department has an approval role and will have to approve all things associated with the scheme. Fees may be charged. Some schemes do not have fees, and some custodians will not charge. The Department will still control all those things. It would not be a free-for-all for people to make money.
752. Mr F McCann: In the area of maintenance, or any other, companies tender low and get their money in other ways. The issue is just how we protect the money.
753. Ms A Clarke: The Department will not be paying anybody to do this; there will be no money coming from the Government on this one. Ultimately, it is a business opportunity. Companies will need departmental approval to operate the service. In England, under the custodial-based service, the landlord taking the deposit does not pay any fee; he hands the money over to the custodial scheme, which then invests it. That is how the company covers its running costs and the tenancy deposit is protected. On the other hand, some schemes in England are insurance-based, in which the landlord pays an insurance premium to protect the deposit. However, the Government does not put any money into this. Companies do not make any money out of the Government.
754. Mr F McCann: But, they are making money out of the people who pay their deposits.
755. Ms A Clarke: For the insurance-based schemes, yes; there is an insurance premium.
756. Mr F McCann: But, the people who run the schemes make a profit. I know that we are not making any decision on this, but I think that if you cast the net wide enough, you could get a non-profit organisation that would be able to do it.
757. Ms A Clarke: We certainly want to be very clear about our specification, and then offer it to people who feel that they want that opportunity.
758. The Chairperson: A couple of weeks ago, we heard that this idea is still being developed. Am I right in saying that, when that work is concluded, it will come back to the Committee through regulations?
759. Ms A Clarke: Absolutely.
760. Ms Lo: I was just going to ask whether we should be thinking more about non-profit-making organisations like the Ulster Community Investment Trust (UCIT). That would be giving out grants to voluntary and community organisations. Can we be more in favour of such companies, without impinging on business law, EU law, or whatever?
761. The Chairperson: Again, that is something that we can work through.
762. Ms Lo: You said that, apart from putting in the deposit, the landlord still has to put in money to pay for insurance.
763. Ms A Clarke: No. If a landlord wants to use an insurance-based scheme to protect the deposit, he pays an insurance premium. If anything happens to that money, the insurance company covers it.
764. Ms Lo: OK.
765. Ms A Clarke: There are two types of schemes. Our intention, having discussed it with stakeholders, is to try to give landlords the choice, as they have in England, between insurance-based and custodial-based schemes. It will be up to them to choose the scheme in which they want to participate.
766. Ms Lo: OK, but that is going to be quite different. There is a slight change in nature. It becomes like an insurance scheme.
767. Ms A Clarke: The landlord can choose whether he wants an insurance-based approach. The basic difference in how landlords might see this is that, with an insurance-based scheme, he will hold on to his deposit as he does now. If I am a landlord and take a deposit, I can keep it. It is the tenant's money, but I can keep it until the tenancy ends. With the custodial-based scheme, the landlord has to hand over the deposit straight away. That is the difference: the landlord would not have the benefit of that money.
768. The Chairperson: An amendment was suggested about having a time frame for the establishment of a scheme. What is the Department's view on that? My instinct is that that would be quite restrictive. If you go from a power to a duty and say that it must be done, we may end up with a scheme that has not been entirely worked through properly or tested, be it six months, 12 months or whatever.
769. Ms A Clarke: To be fair, that was our first reaction as well. We want to make sure that we have a soundly based effective scheme, rather than rushing in. We have taken some preliminary legal advice on this, and if we were required to go with a duty rather than a power, the legal advice is that we could not have an unqualified duty. We would have to link it to some kind of time frame. I am sure that one could develop a reasonable time frame in which one could be assured of delivery.
770. The Chairperson: The Committee might be interested in a duty, rather than a power. You are saying that that might require a timescale, so we might have to work up amendments on that.
771. I want to go through the other amendments. Members can express views if they have any. Proposed amendment D provided for the time period for the provision of information to tenants to be 14 days, as in Great Britain. We have the explanation as to why it should be 28 or 30 days. Do members support an amendment along those lines and are they content with the explanation that has been given?
Members indicated assent.
772. The Chairperson: Proposed amendment E concerns the holding of tenant deposits in secure accounts.
773. Ms A Clarke: If one joins a custodial-based arrangement, the money is put into a secure account. The same goes for insurance — one buys the insurance cover for that. In essence, the scheme covers that.
774. The Chairperson: Proposed amendments F and K concern dispute resolution mechanisms. Proposed amendments G and H concern the identification of a council or another authority as responsible for the tenant deposit scheme. You said that the councils would have a role, but would not be responsible. The responsibility lies with whatever company is set up to deal with that.
775. Mr Easton: What is meant by regulating the system through the councils for every landlord? That could be a huge task.
776. Ms A Clarke: It would be an independent provider; there is not regulation from a council point of view. Councils will adopt an enforcement role and ensure that landlords comply with the law. When they are found not to be complying, councils will take appropriate action by fixed penalties or by taking a person to court.
777. Mr A Campbell: It would happen on the basis of tenants going to the council and saying that their landlord has not put their deposit in the account. The tenant would have to bring the case to the council.
778. Mr Easton: Why a council, and not the Housing Executive?
779. Ms A Clarke: It is because the council is the regulator and enforcer of the provisions for private tenants. They are the policemen within the private tenancies regime.
780. The Chairperson: It is an additional duty on top of those already being exercised by building control or enforcement officers.
781. Ms A Clarke: They have that legal responsibility at the moment.
782. Mrs M Bradley: Not in respect of keeping the money. Surely, when councils are called in to inspect houses at the beginning, they have the power to tell people not to put a deposit on a dwelling because it is not fit to live in.
783. The Chairperson: That is a very narrow aspect of the matter. This is more about people not getting information within 28 days.
784. Ms A Clarke: Yes. The council would take the appropriate action with the landlord. It would not hold any money, nor would it be involved in resolving any type of dispute about how a deposit is returned.
785. Mr F McCann: On private tenancy, we have heard from NILGA that councils have no teeth to impose anything on landlords. All that happens is that a landlord goes to court, gets a £100 fine, takes it on the chin, and walks away. There needs to be something that forces action. Perhaps the Housing Executive is the body to do that.
786. The Chairperson: This is a power to establish something on which we do not have detail. The detail would surely include enforcement and penalties.
787. Ms A Clarke: That is specified in the Bill.
788. The Chairperson: Is that in the schedule?
789. Ms A Clarke: No. The penalties in relation to tenancy deposits are set out in clause 5. On Fra's point, there has been an issue with enforcement in the past, which is why we are taking a different approach this time and are introducing fixed penalties for the first time in the private rented sector. Landlords should be hit immediately. They do not necessarily have to be taken to court; they can be penalised by councils immediately.
790. Mr Easton: My concern is how councils are going to cope with hundreds of landlords. Where are the resources to cope with that? I am not against what you have outlined; I am just concerned that councils will not be able to cope.
791. The Chairperson: The Department can correct me if I am wrong, but the hundreds of landlords you speak of already exist. They are being monitored on matters such as whether there is a staircase, or fire exit, in houses of multiple occupation, or whether there is proper signage, etc. Councils already monitor them and are responsible for ensuring compliance on all sorts of issues. This is just an additional power.
792. Ms A Clarke: Yes. The difference with this one, I suppose, is that for the first time, where councils find that a landlord is not complying, they can issue fixed penalties — and they can keep that money, which will help to offset the cost of enforcement. They have never been able to do that before.
793. The Chairperson: They can keep that money? Oh, very good. They should be welcoming it, then.
794. Ms A Clarke: It is a big incentive to defray their costs.
795. Mr Craig: I like that.
796. The Chairperson: It will help the rates.
797. Mr S Anderson: It will encourage fixed penalties.
798. The Chairperson: It is worth drilling down into this. That is what it is about: drilling down so that we are comfortable or uncomfortable with the provisions. Does anybody need further clarity on this, or are we content with councils' role?
799. Ms Lo: Was proposed amendment G suggested by NILGA?
800. The Chairperson: Yes.
801. Ms Lo: It is very vague. I agree with Alex.
802. The Chairperson: They do have a role, which we have heard. It satisfies, in part, their desire as expressed through amendment G.
803. Mr S Anderson: As Alex said, councils may be a wee bit worried about the workload.
804. The Chairperson: The amendment is coming from NILGA, looking for a role in the regulation, which would be much more than what is really in place. I take your point, Sydney. I am sure that NILGA has probably not consulted all 26 councils as to whether they want a huge power of regulation. What they are getting is only slightly —
805. Ms A Clarke: The councils have been part and parcel of our stakeholder forums. Initially, they were reluctant to have any kind of role in this. We had to say that they had to have an enforcement role, and they were content with that. They were certainly uncomfortable about any kind of regulation.
806. Mr S Anderson: Maybe NILGA was happy, but were the councils happy?
807. The Chairperson: That is a whole other story.
808. Mrs M Bradley: They have not told the councils yet.
809. The Chairperson: Council officials are doing this work day in and day out — this type of work, not this work. If we were to say that we did not want councils to do this, we would have to establish an arm of the Housing Executive to do it, which would be a cost and a burden.
810. Ms A Clarke: That would add further confusion, because councils enforce all the other aspects of the 2006 Order. It would be very confusing, and probably not very effective. It might be important to point out that, in all our work with them, councils have been very clear that they currently do a lot of informal, ad hoc arbitration between landlords and tenants. Quite often, tenants pay a deposit, there is a problem, and landlords refuse to return the deposit. Councils are actively involved in a lot of those cases now, informally; so they are spending a lot of time doing work on this but not getting any recognition for it, and they cannot really do anything very much besides persuade people's better judgement. This will give councils a very clear way of securing some money to cover their costs.
811. Ms Lo: But with the new deposit scheme, they are not going to do that.
812. Ms A Clarke: They will just have enforcement.
813. Mrs M Bradley: As they have anyway.
814. Ms A Clarke: Except that we do not have a scheme at the moment, so they have no enforcement from that point of view. However, they are involved in disputes around deposits.
815. Mrs M Bradley: As Alex said, with the number of landlords that they will have to be dealing with, will the councils have the resources? We do not know.
816. Ms A Clarke: We will need to do a huge campaign before any of this becomes law, to make sure that landlords are fully aware of what they need to do and tenants know what they should expect from their landlords. A lot of work will have to be done around that.
817. Mrs M Bradley: And what to expect for the councils, as well.
818. Ms A Clarke: Obviously with councils as well, yes.
819. Mr F McCann: I would be interested to see how many people go to councils to ask for mediation. In the area that I represent, they are few and far between.
820. Mrs M Bradley: You are very lucky.
821. Mr F McCann: They take it on the chin and walk away when they lose their deposits or make complaints. It would be interesting to see that. Also, the Housing Executive has control over the HMO sector, which is probably an extension of the private rented sector anyway.
822. Ms A Clarke: The HMO sector is different. The Housing Executive does regulate in that regard. That is where it is complicated.
823. Mr F McCann: It is still private rented accommodation.
824. The Chairperson: I sense that there is no desire to go back to proposed amendments G and H. We seem content with how far it has gone and do not want to go any further. Proposed amendment I is the abandonment of the tenant deposit scheme, and J is the limitation of the fees associated with disputes. The Landlords Association wanted the scheme to be scrubbed completely. Am I right to assume that there is no support for that?
Members indicated assent.
825. The Chairperson: If we opt for the custodial system, there will be no fees at all.
826. Ms A Clarke: The arbitration service is free. It is part and parcel of the scheme, and there is no charge.
827. The Chairperson: That is if we go along those lines. However, if we go for —
828. Ms A Clarke: Either.
829. The Chairperson: Yes. The systems are not mutually exclusive. You could have two systems running, with landlords picking and choosing which they want.
830. Ms A Clarke: Absolutely.
831. The Chairperson: An insurance-based scheme would clearly involve fees.
832. Ms A Clarke: The fees would come in the form of insurance premiums. However, arbitration is part and parcel of the scheme, and there is no charge for it.
833. The Chairperson: Is that a fair enough explanation, members? One system involves no fees.
834. Ms Lo: That was my point. A change to an insurance-type scheme will be very different to a custodial scheme, into which people put money like a bank.
835. Ms A Clarke: We have talked to landlords and other stakeholders. We want to be able to offer landlords in Northern Ireland the choice between a custodial and an insurance-based scheme. Some landlords will be happy with a custodial system, because there is no charge. However, they will have to hand over the deposit, which will be a change for them. Those who opt for the other system will keep the deposit but will have to pay an insurance premium. It will be up to the landlord to choose.
836. Ms Lo: The people who apply to operate the scheme will be quite different. A voluntary organisation, for example, will not have the money to run like an insurance-type company. However, the Ulster Community Investment Trust (UCIT) or other smaller organisations will be able to operate a custodial system.
837. Ms A Clarke: Absolutely. There will be huge issues for those organisations, and we have to be very careful about that. If they take money and invest it, they will need to provide all kinds of safeguards in case anything happens to that investment.
838. The Chairperson: We are not getting very far. Disability Action put forward proposed amendment L: that the tenant deposit scheme should include a bond scheme to protect the interests of vulnerable people and those on low incomes. That is a reasonable suggestion. Everyone understands the sentiment, but it seems potentially difficult on a practical level.
839. Ms A Clarke: Those kinds of schemes already operate in Northern Ireland. The Housing Executive funds a large part of them to help vulnerable families. They are operated, mainly by SmartMove, in different parts of Northern Ireland and provide a rent-guarantee service. No legislation is needed as those schemes operate already. We are trying to develop them and make them more widely available, but there are obviously cost issues associated with that.
840. The Chairperson: Do members have any views on that?
841. Ms Lo: Are we saying that we do not need to include this?
842. The Chairperson: If the Department was to give us information about what is in place and detail on how much is being taken up, we could decide then.
843. I will give a summary. Proposed amendment B concerns the replacement of the word "may" with "shall", and C is about time frame. If, after considering those, the Department were to come forward with an amendment, that would be useful for us to look at. We said that we did not support proposed amendment D: 14-day time period for the provision of information to tenants. Clarification was given on proposed amendment E, which is the requirement for landlords to hold tenant deposits in a secure account.
844. Proposed amendments F and K relate to the dispute resolution mechanisms already in the Bill. Proposed amendments G and H concern councils, and we got some clarity on their role. We do not support proposed amendments I and J, which are the total abandonment of the scheme and the limitation of fees respectively. As regards proposed amendment L, we are to get information from the Department about what is in place to protect those on low incomes. Is that a fair summary?
Members indicated assent.
845. The Chairperson: Clause 3 provides the power of entry to inspect a dwelling-house.
846. It:
"confers powers of entry on persons authorised by district councils to carry out fitness inspections."
847. Stakeholders welcomed this clause but suggested the following amendments. Proposed amendment M suggests an extension of powers of entry to include Part IV of the Private Tenancies (Northern Ireland) Order 2006, which refers to certificates of fitness and rent control. Amendment N suggests a change of fitness standard to replicate the GB standard, which is based on a health and safety rating. Amendment O is that the decent homes standard should be a legally enforceable standard for all public and private housing. Amendment P is that district councils should be able to require a specialist report on a health and safety hazard in a privately rented home.
848. Those four amendments are extensive and differing. What are the views of the Department on them?
849. Ms A Clarke: With respect to the first, this clause already provides for an extension of the power. It is extending the power, so the amendment is covered completely.
850. The Chairperson: So Part IV of the Private Tenancies (Northern Ireland) Order 2006 is about certificates of fitness?
851. Ms A Clarke: This clause will amend the 2006 Order to allow powers of entry to council officers going in to inspect for fitness.
852. Mr F McCann: My understanding of the Private Tenancies Order 2006 is as follows. When councils go out to inspect, certainly in my area, and they find a property unfit, they will slap an order on the property but, at the end of the day, it is up to the landlord to decide whether he wants to fix it.
853. Ms A Clarke: This particular clause is about determining whether a dwelling-house is fit for human habitation. If the council issues a certificate of fitness, that is fine, and the landlord can charge a market rent. If it is unfit, rent control is applied. Rent is controlled until the property is made fit, and the landlord cannot charge a market rent for it.
854. Mr F McCann: You say that that provision is there already?
855. Ms A Clarke: Yes. It is.
856. Mr F McCann: I would like to see statistics on its implementation.
857. Ms A Clarke: It only applies to certain properties, not to every property in Northern Ireland.
858. Mr F McCann: Even in the past few weeks, I have dealt with cases, and council officers will tell you that they have gone into dwelling-houses, seen serious problems and instructed the landlord to comply but have been totally ignored. Court proceedings start, but the landlord will get only a £50 or £100 fine and that is all. That is the landlord off the hook.
859. Are you telling me that this clause tightens the law to ensure compliance by landlords to a standard of fitness?
860. Ms A Clarke: This is not tightening the law. It is just making sure that council officials have a power of entry to make an inspection. This is a power similar to that which exists already in Part III of the Private Tenancies (Northern Ireland) Order 2006, and this clause puts it into Part IV.
861. I understand the member's issue about fitness, but it is one about fitness generally, and it is a separate issue. I entirely agree that it has been troubling the Department for some time. It is a part of the strategy but, in the 'Building Sound Foundations' consultation, we gave a commitment to look at and enhance the statutory fitness standard that will apply to private rented properties. That is what we are doing.
862. Mr F McCann: Why not do it in this Bill?
863. Ms A Clarke: It has not been possible to do it in this Bill. There is a lot of work attached to that, but we are doing it, and the idea is that we will bring forward separate legislation in the new Assembly mandate. A stakeholders' group is working on it as we speak. It is recognised that the standard is not fit for purpose any more in the private rented sector. It has been around for a long time.
864. The Chairperson: The second of these amendments, proposed amendment N, suggests a change of fitness standard to replicate the GB standard, which is based on a health and safety rating.
865. Ms A Clarke: That is the separate issue about fitness standard. We want to enhance the statutory fitness standard. At the moment we have a very low fitness standard, and we can carry out fitness inspections and issue certificates of fitness for certain properties. We want to move to a situation where any landlord who is renting any kind of private-rented sector property must clearly demonstrate that he meets the new enhanced standard. We are trying to work to a new enhanced standard.
866. Mr A Campbell: With regard to the comment on fitness, I have just checked, and it might be worth pointing out that there is actually a repeat offence provision. If a landlord fails to carry out a repair, he or she repeatedly commits an offence until the work is carried out. Therefore, if the work is not done by a certain date, he or she has committed an offence. If it is not done within the same period again, he or she has committed another offence. Therefore, it keeps building up. It is an ongoing offence.
867. The Chairperson: We are talking about different standards. For example, proposed amendment O deals with the decent homes standard and applying it to public and private housing. At present, does it apply to all newbuild public housing?
868. Ms A Clarke: The decent homes standard is an administrative standard, not a statutory one. The only statutory standard that is in place across all tenures is the fitness standard.
869. The Chairperson: Right. Is that standard developed by the Department or the Housing Executive?
870. Ms A Clarke: Yes. It is really developed by the Department. As I said, it applies across all tenures. I am not sure how long it has been in place — perhaps, 20 years. My responsibility is the private-rented sector. Because of the issues that exist in that sector, we want to increase that standard. We said that we would do that in our strategy. However, we need legislation to enable us to do it. Work needs to be done on what the standard should be.
871. The Chairperson: There has been discussion. I must say that I am not convinced by the argument to extend the decent homes standard to private housing. That would require legislation, then?
872. Ms A Clarke: At present, the decent homes standard is not a statutory standard. Therefore, if you want to extend it, legislation would be required.
873. The Chairperson: Yes, because if we desired to do that, it could not be enforceable any other way. I understand that, recently, the Housing Council produced a paper. Although it might look nice on paper, there is a huge debate to be had on how applicable that standard is.
874. Ms A Clarke: I think that that is why our focus is really on the private-rented sector.
875. The Chairperson: Yes. You say that work is ongoing on the fitness standard. A conclusion will be reached. It will come back, and, if required, legislation will be brought forward.
876. Ms A Clarke: It will require primary legislation.
877. The Chairperson: OK. Therefore, if work is ongoing, a conclusion will be reached and there will be future legislation. That seems to be a reasonable approach to take. Notwithstanding concerns that members have expressed, which, it seems, are being addressed, at least, is the Committee happy? It seems reasonable not to support proposed amendments M to O at this stage in anticipation of what might come forward, at least with regard to fitness.
878. Ms Lo: Does that clause give councils additional power? I understand that they already have power of entry.
879. Ms A Clarke: They already have power of entry for certain purposes. Carrying out an inspection to see whether a house is fit for habitation would normally be done in response to an application. Therefore, if a property was built before 1945, and the landlord wants to rent it out, he or she needs to obtain a fitness certificate for that property from the council. That means inviting the council to examine the property and determine whether it is fit. However, that was not explicit. The view was taken that if a landlord applies for a fitness certificate, he or she will, obviously, let someone in to carry out the inspection. Since the operation of the Private Tenancies Order 2006, a few situations have arisen where we felt that that was not sound. We want to be clear that, in fact, a council officer has power of entry and cannot be stopped from going in. Therefore, if a landlord, or, equally, a tenant, decides that he or she does not want to let an officer in, the provision will give the officer the power legally to go in and carry out an inspection. The inspector cannot be stopped.
880. Previously, we relied on the Local Government Act (Northern Ireland) 1972. Local councils have told us that they were not entirely happy that it gave them a sound basis. The provision, basically, ensures that councils have a legal basis on which to go into houses. That is simply all it does.
881. Mr F McCann: I disagree with that. Do you not believe that there are opportunities now to deal with unfitness and that it can probably be done? Proposed amendment O states that the decent homes standard should be a legally enforceable standard for all public and private housing. Does the Department oppose that?
882. Ms A Clarke: No. Certainly, with regard to the private-rented sector —
883. Mr F McCann: It would be put on a statutory footing.
884. Ms A Clarke: Yes, but we need to be satisfied as to whether the decent homes standard is appropriate for the private-rented sector. There are issues, some of which emerged recently, around fire safety and carbon monoxide poisoning and so on. We want to have a standard that is fit for purpose for the modern age. That is the work that we are doing now. The standard is likely to be very much akin to the decent homes standard, or it might go further than that.
885. Mr F McCann: What is wrong with the decent homes standard?
886. The Chairperson: Surely there is a practical issue in applying the decent homes standard to private housing. For one thing, there is a cost.
887. Ms A Clarke: Absolutely.
888. The Chairperson: It is a very difficult time for that market anyway. For example, if I were to buy an apartment and I wished to live in it, a different standard applies. No one builds a private-rented home, they build a home. It can become the owner-occupier's permanent residence, or he or she could rent it out to many different people over a 10-year period.
889. Mr F McCann: There are 40,000 people on the housing waiting list. If there are 20,000 a year, 10,000 or 11,000 are forced into the private-rented sector because they are not accepted as being homeless. There is nowhere else for them to go. We are trying to create legislation that ensures that, when those people turn to that sector, they will be going into homes that are of a standard in which they can live. All members have been in homes where we cannot understand how they have been passed by the Housing Executive. The Private Tenancies Order 2006 has no teeth to allow councils to deal with the matter effectively. To say that we will introduce some other legislation or deal with it in a different mandate sends out the message to people,
"Do not worry, we will come to it somewhere down the line."
890. The Chairperson: Let us be sure about what the suggested amendment says. A differently drafted amendment might tackle the issue differently. Amendment O talks about "all" private housing. If I were to buy a site and build a house, which I wish to occupy and, when I depart this place, pass on to a family member, it would have to be built to the decent homes standard. I might not want to do that; I might not have the money to do that. If I were to buy a site and build a bungalow, I probably would be able to. However, we would be enforcing standards on individuals who are never going to be in the position that you are talking about.
891. I accept that there is a difference when the public purse is paying money into the pockets of private landlords — even though they do not like that terminology — and that housing has to be to a certain standard. However, the debate is surely about whether it must be the decent homes standard or another standard.
892. I accept that the current standard is perhaps not high enough or appropriate for the present day, but I think that the Department is saying that it is looking at that standard. My difficulty in proposing an amendment is that I do not know what that standard should be, so I do not know what to put in the amendment.
893. Mr F McCann: That is fine. However, along with that, we are talking about widening the remit of the private-rented sector. We take great pride in the fact that our social housing is above the decent homes standard. Therefore, we are saying that people should be housed by the private-rented sector, but we will not afford them the same rights as those who are housed in social housing.
894. You used an analogy, Chairperson, of someone leaving a house to their children. However, at the end of the day, those children are not renting the house privately; they are living in it as the owners. We are talking about people who are putting houses up for rent that are not up to the appropriate standard.
895. The Chairperson: You are now making the point that I made. The amendment says "all" housing. That is not appropriate.
896. Mr F McCann: I am talking about the —
897. The Chairperson: What you are talking about, and what I think we should be homing in on, is the standard of private-rented sector accommodation. If somebody is going to rent a house, particularly if he or she is being paid housing benefit to do so, the house should be of a high standard. I think that everybody agrees with that. However, the suggested amendment is about all private housing.
898. Mr F McCann: Well, could we put in the words "private-rented housing"?
899. The Chairperson: What is private-rented housing? There is no such thing as a private-rented house. A house can be owner-occupied today, rented out tomorrow and back in private ownership next week.
900. Mr F McCann: But we expect certain standards to be met.
901. The Chairperson: This is the blind talking to the blind. Maybe the Department could outline briefly the standard that is currently in place and what it is looking at to try to enhance that standard to something equivalent to the decent homes standard.
902. Ms A Clarke: At the moment, the statutory standard that applies across all housing across Northern Ireland is the statutory fitness standard. It has been around for some time, and it is very low. For example, to meet the standard on heating, the house simply needs to have one electrical socket. There is nothing in the standard about energy efficiency. Fuel poverty is a big issue in the private-rented sector, and, when devising the standard for the private-rented sector, we want to minimise the impacts of fuel poverty and safety, because there are issues with gas safety and fire safety. The HMO sector is different, because there are clear standards that those properties must meet, and they only apply to HMOs —
903. Mr F McCann: Most of them do not abide by those standards anyway.
904. Ms A Clarke: All of those who register abide by those standards. However, not everyone has registered and your point is a fair one. It is about determining an appropriate standard for the private-rented sector. That will need to be consulted on before it can become legislation, and that work is ongoing.
905. The other thing is that there is a very low fitness level, and most properties meet the fitness standard. You made the point that you were surprised that some properties were deemed to be fit, but that is due to very low standards. Unfitness is not the issue that it used to be, because it is measured against such a low standard, and we want to raise that standard. We will develop the legislation through consultation with stakeholders and provide a lead time, because there will obviously be a cost involved.
906. The Chairperson: Yes; there will be a cost.
907. Mr F McCann: We are obviously not going to agree on this.
908. The Chairperson: I think that you and I agree, it just sounds as though we do not agree. [Laughter.]
909. Ms Lo: You are so diplomatic.
910. Mr F McCann: I will have to work that one out.
911. The Chairperson: You and I and the rest of the Committee want to head in the same direction; it is the means of travel that is in dispute. I think that the decent home standard is a costly and blunt instrument to achieve the ends that you want to achieve. The Department's actions may seem frustratingly slow to you and others, but at least it is travelling in the right direction.
912. Ms A Clarke: It is also worth pointing out that not all social homes meet the decent homes standard.
913. The Chairperson: All newbuilds would be up to, if not beyond, that standard.
914. Ms Lo: Do the majority of social homes meet the decent home standard?
915. Mr F McCann: That is what we are being told anyway.
916. The Chairperson: Fra has a position, whereas other Committee members are more cautious and are prepared to allow the Department to trundle along with what it is doing. Does the Department want to take that away and come back to the Committee?
917. Mr F McCann: The Department will return to the Committee for further discussion or with amendments. We will hold back until then, but we reserve the right to —
918. The Chairperson: That is fine. Therefore, is it the Committee's position that we should not propose an amendment at this stage? Are members agreed?
919. Members indicated assent.
920. Mr Craig: We need to be cautious. I have a great deal of sympathy with you both in your attempts to increase the standards in the private-rented sector. However, we may create a difficulty in the market if we set a standard that costs many owners in the private-rented sector more than half the price of the property to comply with. They will just — [Inaudible due to mobile phone interference.] Where will that leave the Housing Executive with the shortfall in housing that that will create? We must bear that in mind that if the private-rented sector was to disappear that would create a monumental difficulty for government. We can bring those properties up to the correct standard eventually, but it will be longer drawn-out process.
921. The Chairperson: At this time, it is about who will invest the money that is required, and many will choose not to invest.
922. Mr Craig: Where will they find a bank that will give them the money?
923. Mr F McCann: I have said all along that sizeable sections of the private-rented sector provide high quality accommodation. However, the sector has almost doubled in size during the past few years, and there are quite a lot of substandard properties. That is what we need to capture.
924. We have come through this before. We waited five years for the Department even to indicate that it was going to move on the housing selection scheme, despite all the promises that it made. All we are told is that a review is ongoing and that changes will be made soon. As Angela said, the standards are so low at the moment that many substandard houses slip through.
925. The Chairperson: Amendment P was suggested by NILGA. If adopted, district councils would be able to require a specialist report on a health and safety hazard in a privately rented home.
926. Ms A Clarke: We are looking at that with our council colleagues, and we do not see the need for legislation on that. We do not see any reason why that could not be required now in order for a council to fulfil its functions, and some councils do that already and require specialist reports. There are probably two ways to deal with the issue. First, we could consider the fees. There is a view that the fee for fitness certificates is too low and does not cover the costs. We are working with council colleagues and looking at whether we need to increase the fees to cover the cost of procuring those certificates. The other issue is raising the standard and building that in. I appreciate that that is a longer-term process.
927. The Chairperson: Notwithstanding the comments that have been made, we will not pursue proposed amendments M, N and O at this stage. We do not think that there is any need to back proposed amendment P. Are members happy with that?
Members indicated assent.
928. The Chairperson: We move on to clause 4, which deals with powers to modify articles 42 to 45 of the 2006 Order. Clause 4 allows the Department to modify provisions that relate to the determination of private sector rents. There was very little comment on the clause. The Landlords Association of Northern Ireland (LANI) expressed opposition to the principle of rent controls by government. The Department advised that the rent controls apply to very few private properties in Northern Ireland. LANI suggested proposed amendment Q, which states that all rent controls that refer to the private sector should be removed. Are there any views on that? I suspect that it is not supported.
929. Ms A Clarke: We have found that rent control, where appropriate, is quite effective, and, because of rent control, a lot of unfit properties have been made fit. The proposed amendment will not extend the scope of rent control.
930. The Chairperson: Yes. That point had been made. I will backtrack a little bit. Fra raised the point about registered rents, and we had some figures on that some time ago. An update on how many properties that affects and where they are would be useful.
931. Ms A Clarke: I think that there are about 1,100 properties on the rent register at the moment. We can certainly write to the Committee with an update on that.
932. Mr F McCann: Most Committee members have, in the past, raised the need for some type of rent control in the private-rented sector. It is all right for Angela to say that there are enough regulations to deal with that. However, £90 million a year comes in from housing benefit, and many people who are charged £400, £500 or £600 have to come up with the extra money from their benefits. The landlord expects them, under the threat of not getting the house, to pay an extra £100 or £150 on top of their housing benefit. There is no control whatsoever. If people do not pay, they will not get the house. There is nothing to tell landlords when they are overstepping the mark.
933. Ms A Clarke: It is very difficult for government to intervene in the private sector and say —
934. Mr F McCann: It is also very difficult for people to come up with the money, Angela.
935. Ms A Clarke: I appreciate that. It is a very difficult area, and we share members' concerns.
936. The Chairperson: It seems that there is no support for that amendment.
Members indicated assent.
937. The Chairperson: Clause 5 is about the registration of landlords. If we start to discuss this now, we will probably be here until teatime. I propose that we stop at this stage and come back. We might need to slot in an extra session next week. We made slow but useful progress today and teased out pretty definitive positions on most of the amendments. Are members happy to suspend the meeting?
Members indicated assent.
938. The Chairperson: I had hoped to make a bit more progress, but at least we have sorted out a lot of the problems. Today's questions should not be repeated. Thank you very much for your time, Alistair, Stephen and Angela, and I apologise for not getting through it all.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Tommy Gallagher
Ms Anna Lo
Mr Fra McCann
Witnesses:
Mr Stephen Baird |
Department for Social Development |
939. The Chairperson (Mr Hamilton): We are joined by Alastair Campbell, Stephen Baird and Avril Hiles from the housing division of the Department for Social Development (DSD). You are all very welcome.
940. In this session, the Committee will work through the clause-by-clause table, and members will be asked to discuss the clauses and proposed amendments. The Department will brief us on key questions as appropriate. It is important that the Committee identifies all the amendments that it wants to table during this session before formal clause-by-clause scrutiny can begin.
941. We will begin with clause 5, which is on the registration of landlords. It proposes to allow the Department to make regulations to provide for the registration of private landlords. The regulations will create new offences on the provision of false information or on the failure to provide evidence of registration in the letting of houses by unregistered persons.
942. Mr F McCann: I have gone through the document a number of times, and the registration of the private-rented sector has been discussed on several occasions in Committee in recent months. The Scottish example has been used as one of the better ways to try to draft regulations.
943. It was indicated a couple of times that, in Scotland, it had not really worked and that the issue was being reconsidered. From that, I took the impression that it would be scaled down. However, my understanding is the complete opposite and that the registration scheme is being strengthened across a number of issues because of the fact that people who do not register still provide bad accommodation. It is the same in the South in that people have used the scheme that was there to ask what the use is of bringing it in, given that it has not worked anyway. Concern that the scheme may have no teeth is being addressed, and we have an opportunity right at the beginning to deal with that.
944. The legislation is directed towards the bad landlords who continuously provide bad accommodation and who have to meet only the minimum standards for accommodation. We will have failed if we if we do not introduce a registration scheme that is subject to a number of compliance orders. Last week, I raised my concern that landlords are continuously brought to court and are given a fine of £100, which they take on the chin and walk away, leaving people with poor accommodation or dealing with overcrowding. That applies not only to this sector but to houses in multiple occupation (HMOs), and I do not see much difference because both of those provide private-rented accommodation. Research Services mentioned earlier a case of a person who was fined £65, which highlights that issue.
945. We have an opportunity not to make the mistakes that were made in Scotland and in the South but to draw from both with our additions to ensure that we have a quality registration scheme with strong compliance regulations to ensure that it works.
946. The Chairperson: Fra's comments were quite useful because they scope out where others are. He mentioned the teething problems that other jurisdictions have had, the steps that they are taking to correct them and how we should not be precipitous in moving ahead with a particular idea. Clearly, mistakes have been made in other jurisdictions.
947. Mr F McCann: In Scotland, the scheme was also classed as lightweight.
948. The Chairperson: It was described as a light touch, not lightweight.
949. Mr F McCann: From the stuff that I was reading, there is a difference between our scheme and Scotland's scheme. It was thought to be fairly light.
950. Mr S Anderson: Fra mentioned the £65 fine. Whatever scheme is put in place for unregistered landlords ought to encourage them, but as Research Services said earlier, it takes between £2,000 and £3,000 to bring a case to court. Surely that will not encourage anyone to bring a case to court. A £65 fine does not equate to between £2,000 and £3,000 in costs.
951. The Chairperson: That is a bit like what is happening with anti-social behaviour orders (ASBOs).
952. Mr S Anderson: That is correct. Something better than that will have to be put in place.
953. The Chairperson: We will continue with our scrutiny of clause 5 and look at the various amendments. The private landlords group, the Landlords Association of Northern Ireland (LANI), opposed the provisions. It was pretty much opposed to most of them, although at some stages I was not sure whether it was for a proposal or against it. It felt that such measures were unnecessary and may be expensive and bureaucratic. Other stakeholders welcomed the clause but suggested amendments, which I will take us through.
954. Proposed amendment R is a technical departmental amendment, which proposes to remove the words "apply to register". What is the need for that?
955. Ms Avril Hiles (Department for Social Development): There is really no need to apply for registration. Landlords will be compelled to register, and there will be no assessment of whether they can or cannot. They will be obliged to register, so that proposed amendment will remove the words "apply to register" and change them to "must register".
956. The Chairperson: We welcome that.
957. Proposed amendment S —
958. Mr F McCann: I want to put down a marker. I take it that, from the Department's point of view, the highlight of the whole scheme is the change from a situation in which landlords "may" register to it being compulsory for them to register.
959. Mr Alastair Campbell (Department for Social Development): I think that that was a drafting mistake. The intention was always for registration to be mandatory. It is simply that we did not pick up on that initially. We noticed the mistake, so it is simply a case of now removing the words. There is no application to register; landlords must register.
960. Mr F McCann: How do you back that up and ensure that landlords register?
961. Ms Hiles: As landlords are obliged to register, the information will be fed to local councils, which will enforce the compliance that is already there. The existing legislation has no teeth because we do not know the properties that landlords rent out. When they are obliged to register, they must give the Department details of the properties that they rent out. That will be in the regulations. The information will be passed to councils, which will see that landlords are complying with current regulations.
962. Mr F McCann: Do you honestly think that landlords will do it?
963. Ms Hiles: It is a first step to try to make them do it.
964. Mr F McCann: What is the difference between this scheme and the HMO regulations? The Housing Executive already says that only a small number of HMO landlords register, even though it has been mandatory for them to do so for a while.
965. Ms Hiles: The same issues have also been encountered in other jurisdictions. There are still thousands who are not registered. You will see that other amendments have been tabled in an attempt to gain information about those landlords from whatever source it is available. That information will then be passed to the enforcers.
966. Mr A Campbell: Tenants will also have a role to play in that they need to be aware that their landlords should be registered. If a tenant approaches a council and his or her landlord is not registered, the council will be able to enforce. It is partly about making tenants aware of all their rights and of their landlords' responsibilities.
967. Mr F McCann: Some tenants live in fairly squalid conditions but will not approach the council because they would end up out on the street. Therein lies the big difficulty.
968. The Chairperson: We were talking about fines earlier. What is the fine for not registering?
969. Ms Hiles: We will come to it later, but the proposed fine is a fixed penalty notice of £500. If a landlord is still not registered after 28 days, that will be a new offence and will incur a further fine. There is also the opportunity for the landlord to have his day in court. A court will then be obliged to award at least the amount of the fixed penalty notice. There will no longer be £65 fines for an offence.
970. Mr S Anderson: There could be court costs.
971. Mr A Campbell: I think that the maximum fine is £5,000.
972. The Chairperson: Members, are we content with the amendment and what it does? I take on board the points about enforceability, compliance, and so forth, but are we happy enough?
973. Mr F McCann: We reserve our right to bring amendments.
974. The Chairperson: Absolutely. I think that this proposed amendment is more desirable than what is currently in the Bill, which is that landlords "may" register.
975. Mr F McCann: It does not make a big difference in that, as Sydney said, if someone is fined £500, it could cost £3,500 to take that person to court. We could be sitting here in four years' time asking how we missed the opportunity to do this.
976. The Chairperson: Without trying to open all that up again, to whom is the fine paid?
977. Ms Hiles: It is paid to a council. A council will keep that money.
978. The Chairperson: Proposed amendment S is a change in the wording of the clause that would make the requirement to establish a register of landlords a duty and not just a power, so "may" would become "shall". That was suggested by the Housing Rights Service. Does the Department have a view on changing it from a power to a duty?
979. Ms Hiles: Since last week's discussion on tenancy deposits, the Department intends to bring forward an amendment to make this a duty rather than a power.
980. The Chairperson: It would be good to see that. Proposed amendment T is the inclusion of a time frame for the establishment of the register.
981. Ms Hiles: That is the same thing.
982. The Chairperson: Therefore, it will be allied to that. Are members content?
Members indicated assent.
983. The Chairperson: Proposed amendment U is that fines for non-compliance of registration be a maximum of £20,000. That was suggested by the Housing Rights Service. That is drawing on experience from elsewhere, where there is a maximum fine. It includes HMOs.
984. Mr F McCann: [Inaudible]
985. The Chairperson: The Bill proposes an increase to £20,000. The suggested amendment is that, similarly, the fines for non-compliance of registration go up to £20,000. What are your thoughts on that?
986. Ms Hiles: The reason why the fine is £20,000 is not only to mirror what is happening in England as far as tenancy deposits are concerned but to reflect the amount of money that a landlord takes from a tenant. As far as registration is concerned, we are minded to keep the maximum fine at £2,500 and the fixed penalty notice at one fifth of that. That is more in keeping with the registration fee that landlords will pay and seen very much as a first step and a light touch.
987. The Chairperson: Do members have any thoughts on that?
988. Mr F McCann: I think that a maximum fine is essential, but it will work only if the courts buy into the system.
989. The Chairperson: That is the problem with £20,000 fines. If a court does not buy into it and does not levy it, it is only a number on a page. We are saying that the maximum fine would be £2,500 and a fixed penalty would be £500.
990. Ms Hiles: Yes, and if it goes to court, a court must award a penalty of at least £500.
991. Mr F McCann: During the period in which this is going to court, are landlords suspended from renting out accommodation?
992. Ms Hiles: It would not be our intention to suspend or revoke a licence because of the effect that that would have on a tenant. If a landlord got nasty, a tenant would have to find other accommodation. If an individual did not become a registered landlord after 28 days, he or she would be guilty of a new offence and, therefore, a new fixed penalty notice could be issued.
993. Mr F McCann: All that depends on landlords being brought to court. Most people will shy away from it, because they will have to pay £3,000 or £4,000 for a fine of £500. Therefore, the perpetrators will get off scot-free.
994. Ms Hiles: A council can bring a fixed penalty notice again and again until such time as the registration fees are paid.
995. Mr S Anderson: Who stands the loss of the costs if the district council brings it to court?
996. Ms Hiles: The councils stand the loss.
997. The Chairperson: However, courts can award costs.
998. Mr S Anderson: They can, but will they? It goes back to some things that we already see. I declare as an interest my membership of Craigavon Borough Council. Different issues will be brought to court, and we will see whether a court awards those costs. If it does not, it will be an expense to councils.
999. Mr F McCann: Every time that an individual is brought to court.
1000. Mr S Anderson: If, as you say, an individual will be fined £500, it will not equate to the costs incurred.
1001. The Chairperson: A fixed penalty notice will be £500; it is £2,500 for a maximum fine.
1002. Mr S Anderson: You are saying that a court will be looking for the fixed penalty limit as a minimum. That would be no less than £500. However, we have no level of control over costs and what that will be. It is unfortunate.
1003. Mr F McCann: There is an amendment that states that costs should be awarded against the landlord.
1004. Ms Hiles: I am sure that the Committee has heard this before, but it may be worth pointing out that we have approached the courts with regard to minimum fines. However, we have been told to butt out and that it is not for us to fetter judges' decisions. That is one reason why councils are very much in favour of fixed penalty notices; at least they will get some sort of recompense.
1005. Mr S Anderson: Could it be that, if a case does go to court, the minimum would be the fixed penalty plus costs?
1006. Ms Hiles: Again, I do not think we can fetter how much the court decides.
1007. The Chairperson: I do not know whether someone can say to a court —
1008. Mr S Anderson: Can you even say the minimum fine of the fixed penalty? You cannot even say that.
1009. Ms Hiles: We can say the minimum fixed penalty. If there is a fixed penalty regime in place, a court must award higher than the fixed penalty. That is the only way that we can see of getting around the issue.
1010. The Chairperson: It is a nonsense.
1011. Mr F McCann: Is there any way that we can connect with the Department of Justice to find out if anything can be done? If DSD is negotiating or discussing the issue but is more or less being told to butt out, it leaves us in a difficult position. We are trying to come to an agreement on a Bill when we have no power over what happens at the end of it.
1012. The Chairperson: We can certainly do that when we look at that. Although we back a £20,000 fine, I am not convinced that any court in the land will actually grant a fine up to that level. I look forward to seeing what happens, as long as I am not the landlord who receives it. I doubt that it will ever happen. We are trying to get a fine that covers the costs, is a disincentive not to register but is not so ludicrous that it will not be enforceable. I sense, and I think the Committee senses, that a £2,500 fine and a £500 fixed penalty are a bit low. We are not convinced that that will work. It is not that it could not work, but we are not convinced. We will reserve our position on that until we have some dialogue. It is more about the cost issue. We can see how it would work.
1013. Mr S Anderson: The first time it will be £500. If it comes back to court again, could that be increased to £1,000? Is it a staged process?
1014. Mrs M Bradley: Subsequently, it could be £1,500.
1015. Ms Hiles: Fixed penalty notices are set at one fifth of the maximum fine.
1016. The Chairperson: Therefore, if we want the stick to be a bit bigger, we need to change the maximum fine.
1017. Mr A Campbell: The difficulty with £20,000 is that a large number of landlords in Northern Ireland are small landlords. When we bring the system in, they may fail to register by accident, and if the fine is £20,000, one fifth of that fine — this is common practice with fixed penalty notices —would be £4,000. For a small landlord with perhaps only two properties, that is a huge fine to pay for a fixed penalty notice. There are definitely difficulties with £20,000.
1018. Mr Brady: Surely there is no point in bringing it in if it cannot be enforced. A serial offender may be fined £500 every 28 days, and it will cost £2,500. That does not make sense. You are right about small landlords, but the registration scheme is about compliance. Last year or the year before, the Landlords Association told us that they were totally in favour of the proposals, and now they are not — some of them may be or may not be. It is all about compliance.
1019. The issue is that one sector gets £90 million a year in housing benefit, but there is no regulation whatsoever. It is ludicrous, and it should not happen. If landlords do not want to register, they should be punished for not registering. I am not sure what legislative powers of enforcement councils have, but, as a ratepayer, I am sure that people in Newry and Mourne District Council, Craigavon, or anywhere else, are not going to carry on shelling out for court cases that are totally ineffective. There is no point; they might as well not bother.
1020. Mr A Campbell: The Department's view is that the most important thing initially is to get people registered. At this stage, many small landlords will make mistakes and not get things done. Until the system beds in, it is perhaps not wise to go with a very large fine initially.
1021. Mr Brady: I accept that, but the issue is getting it out into the public domain that people have to register. There has to be an outlay on that. Landlords have to be made aware, and then they do not have any excuse. It is like everything else: if people are made aware but do not comply, that is their problem. Simple.
1022. Ms Hiles: The Department has already started to engage with landlords across the Province on the issues that are laid out in the private-rented sector strategy. Plans for landlord registration and tenancy deposits have already been mentioned to landlords. The Department sees landlord registration as the teeth behind the legislation that is already there. At the moment, the fine for harassment and illegal eviction is £5,000. However, that has no teeth because we do not know who the landlords are. Once we get landlords on to a register, environmental health officers will have landlords' addresses. They will have the ammunition to go out, knock on doors and make landlords comply as regards all the information that is supposed to be given to the tenant, the fitness of the property and so on.
1023. Mr F McCann: There was a debate here last week about the acceptable level of fitness. We operate on a minimum level of fitness of houses. However, we expect a maximum level of fitness for our social stock and are told that that is probably the best around. You operate at two different levels, so none of that works. I, and all the other members, deal with councils. They get people out and slap a notice on a house to get work done, but it is just ignored. People get brought to court, receive a £100 fine and walk away.
1024. Mrs M Bradley: This is mind-boggling. A landlord is a landlord. I accept what Alastair said about not wanting to hit the smaller landlord who has two or three houses rather than the landlord with 30 houses. However, a landlord is a landlord. Surely, each and every landlord will be made aware that they are liable to the same penalties, regardless of whether they own two houses, 20 houses or 40 houses. That is the only way to do it. A penalty of £500 seems very little.
1025. Ms Lo: Refresh my memory, Avril. How do we know who are the landlords who have not registered and give them fixed penalties?
1026. Ms Hiles: We do not. This is the first step in trying to make inroads on that. There is also an amendment, which we will come to later, about accessing information that is held by other parts of government, such as information about housing benefit, which Mr Brady mentioned. There will be an information-sharing gateway so that information can be shared with councils to allow them to track down the landlords and to enforce the provisions that are already in legislation.
1027. Ms Lo: There are many other landlords who do not have tenants who are on housing benefits.
1028. The Chairperson: If it works, the focus will narrow over time.
1029. Mr F McCann: Does that work for HMOs too?
1030. Ms Hiles: Yes.
1031. Mr F McCann: Is it working now?
1032. Ms Hiles: That information cannot be shared at the moment either, but this will open it up.
1033. The Chairperson: As we heard from Research Services earlier, the Irish are looking at registering tenancies rather than landlords. That is interesting as it allows a clear comparison of the two.
1034. Ms Hiles: The idea is that, although it is a register of landlords, a landlord will also be obliged to give the scheme administrator details of all the properties in his or her portfolio. That will be on the public register.
1035. Mr Brady: You made a good point about housing benefits. However, how many of us have seen the words "no DHSS need apply"? That is usually done for the landlord's tax purposes. Those are the people who will go out of their way to avoid registration. Housing benefit would be a start because that information is readily available. There are private housing estates in the Newry area in which 90% of houses are owned by private landlords and only 10% are owner-occupied. Those are big estates in which the majority of people are on housing benefit. That is a start. However, compliance has to be enforced. There is no point in having it otherwise.
1036. Mr S Anderson: Did I pick up earlier that you intend to carry out a publicity drive to get landlords, estate agents and others on board? Great work needs to be done to get as many of those people on board as possible. That might be a help, but there will still be rogue landlords who will not bother. However, work needs to be done to try to get as many to register as possible.
1037. Ms Lo: Can we encourage the tenants to tell on the landlords?
1038. Mrs M Bradley: They would be thrown out of the houses; they would be on the street.
1039. Mr Gallagher: You mentioned the district council going out and seeing the landlords. Suppose that the landlord resides in another council area or in another country. Are you satisfied that the legislation provides for that landlord to be found? If only an agent is found, he or she will say that it is not him or her who should be spoken to.
1040. Ms Hiles: It is the intention to have in legislation the regulations that landlords must provide a Northern Ireland address.
1041. Mr F McCann: A lot of people have their own agents; some of them run hundreds of houses.
1042. The Chairperson: The Department has heard the Committee's views and concerns, if I can describe them as strongly as that. We take the point about this being very much a first stage, trying to get the registration process right and building it up as needs be. Equally, we have heard the concerns about whether the £500 fixed penalty notice or a maximum fine of £2,500 is sufficient to achieve the aims that we want to achieve.
1043. I take the point about repeat offenders. After one offence, I do not care whether a landlord has a small amount of property. They should be dealt with fairly stiffly. Perhaps one way round it would be to have stepped fines for offences. Could the Department look at the viability of that? If it is viable, we might run with it. We could take a look at that. As an idea, it encapsulates everything. For a first offence, we would enter low, but repeat offenders would be hit that bit harder. That deals with your point, Alastair, about the small guy who makes a mistake. He gets a small fine, and he will probably not do it again. However, the bad boys, who only Fra seems to deal with, would be treated harshly.
1044. Mr Brady: In his rural constituency.
1045. The Chairperson: He is going to hide up in the mountains, you see.
1046. Mr F McCann: Some 35% of West Belfast is rural.
1047. The Chairperson: Would it be worth taking a look at my suggestion? It may not be workable, but is it worth looking at?
1048. Ms Hiles: I am not sure that we have not already attempted that with the Department of Justice. This is a new venture for housing, and I stand to be corrected, but I do not think that fixed penalties are part of any other piece of housing legislation. We are treading tentatively. From memory, I think that the Department of Justice said that, if a fixed penalty is a fixed penalty, it is one fifth of what the maximum fine would be and that is the parameter within which you must work. That is not to say that we cannot go back and try again.
1049. The Chairperson: Let us go back and get that old NIO mindset out of the way.
1050. Mr F McCann: Is there a problem with looking at some of the other schemes that exist? Could we not draw from the Scottish scheme and the scheme in the South when suggesting amendments? We seem to have excluded everything that they are doing in Scotland and some of the measures that they are trying down South.
1051. Ms Hiles: The detail will be in the regulations. We have taken on board what has been happening down South and across in Scotland. Hopefully, you will see some of those things in the detail of the regulations.
1052. The Chairperson: I want to skip along, because we are not making much progress. We are not devising a scheme at this time. We know that work is ongoing with that. Following our session with Research Services, we are keen that best practice from elsewhere is drawn upon so that we have a good scheme from the start. If any of the proposed amendments are delving into that aspect of it whereby it seems as though we are almost writing the scheme, please say so, because I do not think that that is what any of us wants to do. We do not want to be too prescriptive at this stage.
1053. Mr F McCann: People may think that the scheme that is coming through, or being proposed, may not fit what they require, and they may try to add to the scheme through a series of amendments.
1054. The Chairperson: Who might do that?
1055. Mr F McCann: If the Committee were to take a stand on a number of amendments, the right is reserved to try to include amendments on the Floor of the Assembly or wherever.
1056. The Chairperson: Yes. Members still have that opportunity when the final scheme is presented.
1057. Mr F McCann: As they say, the devil is in the detail.
1058. The Chairperson: The Housing Rights Service and others have suggested amendment V, which is that the register should record managing agents, property managers and owners. What is the Department's view on that?
1059. Ms Hiles: Again, that will be in the detail of the scheme.
1060. The Chairperson: Is it envisaged that that provision will be included?
1061. Ms Hiles: Yes.
1062. The Chairperson: OK. Amendment W proposes that a dispute mediation scheme be linked to the register, as suggested by the Chartered Institute of Housing. It is the early stages, but has any thought been given to that?
1063. Ms Hiles: The Department's view is that that is not absolutely necessary. In so far as there is an obligation to register, there would be no chance of that registration being revoked. A landlord registers online and that is it — the registrant then gets a number that they must display.
1064. The Committee Clerk: The background is that the Chartered Institute of Housing described the register as "a missed opportunity" and said that the Department should consider a dispute mediation scheme, so that disputes between tenants and registered landlords would automatically enter an arbitration scheme.
1065. The Chairperson: So, it is not a dispute about registration.
1066. Mr F McCann: Is that instead of a registration scheme?
1067. The Committee Clerk: No, the institute suggested that it would be part of the registration scheme.
1068. The Chairperson: Yes, that is something entirely different.
1069. Mr A Campbell: It is worth my pointing out that deposits are the most common area of dispute, and there is the dispute resolution procedure in the tenancy deposit scheme, so at least deposit dispute is covered.
1070. The Chairperson: Do members have any other views? No.
1071. Proposed amendment X, which is again suggested by the Chartered Institute of Housing, would impose minimum housing fitness and quality standards as a requirement for registration. Has the Department any thoughts on that?
1072. Ms Hiles: Again, we have debated housing standards and the fact that landlord registration underpins the compliance and enforcement powers that environmental health officers already have in securing minimum standards. So, that provision is already there.
1073. The Chairperson: Will the Bill allow them to do that part of their job much better?
1074. Ms Hiles: Yes.
1075. Mr F McCann: But, again, those powers do not work.
1076. Ms Hiles: At a previous meeting, figures were requested for what rent control did for unfit properties, and that information will be provided to the Committee. Members will see that in 50% of cases in which a landlord renting out unfit property has had his rent reduced, the property involved was subsequently made fit. I take Mr McCann's point that the standard is basic, but at least minimum standards are being met for the tenant and the rent is controlled until the landlord complies. That applies only to older houses, but at least it is a step.
1077. The Chairperson: We were told last week that work was being done on the new fitness standard.
1078. Ms Hiles: That is right.
1079. The Chairperson: Will any resultant legislation be brought forward after this Assembly mandate?
1080. Ms Hiles: Yes, in the next mandate.
1081. The Chairperson: The point was made in a presentation that the Department is trying to get something that is quite revolutionary for Northern Ireland off the ground in this Bill. To start to add bits and bolts of compliance onto that makes the initial task even more difficult. We may regard introducing registration as quite simple, but it will actually be quite difficult in itself. Is there almost an argument that, although we may want to see certain fitness standards enforced, that is for another phase of the process? Is it a case of establishing the register and then moving on to set fitness standards, energy efficiency standards, and so on — building up the regulations from a small base, rather than trying to do it all at once?
1082. Ms Hiles: Yes, and, as we take each step, we learn. Even when it comes to fines, the Department will be reviewing the situation on an ongoing basis. We meet regularly with environmental health officers, who tell us what does and does not work. If councils are telling us that fixed penalties do not seem to be working, we can look at that again as part of the review of the new legislation.
1083. Mr F McCann: I do not want to prolong the meeting any more than necessary, but, as I said last week, I cannot understand the reluctance to look at standards of fitness that afford people the luxury of moving into a house that is comfortable, is not damp, does not have bad electrics and has proper and working water systems. Many of the houses, including older houses, do not meet those standards, so I cannot understand the reluctance to set some standard.
1084. Again, I refer to the housing selection scheme issue, which I raised four years ago at this Committee and six years ago with direct rule Ministers with responsibility for social development. Every time I raised that issue, I was told that there would be a review. However, it has never been dealt with.
1085. Ms Lo: Fra, the problem is that a lot of private landlords may be pushed out of the market because they cannot be bothered spending so much money to upgrade their premises. There is a danger in that. I support there being minimum standards, but there is supply and demand. Houses that are not of good quality are rented cheaply, which may suit some people.
1086. Mr F McCann: We should not condemn people to living in houses that we would not live in ourselves, Anna.
1087. The Chairperson: I do not think that anybody disagrees with having an acceptable, indeed a higher, fitness standard for housing. The difficulty, in addition to the point that Anna makes, which is very valid, is identifying what that standard should be. If a standard is agreed, does anybody know how quickly it can be achieved in working with the stakeholders? That is the conundrum. You may want to get to a certain place, but if you have stakeholders in the private-rented sector saying that they cannot reach the standard in the timescale that you are talking about, you may as well not do it, because it will be counterproductive and people will pull out of the market.
1088. Mr F McCann: If you do not set a standard, landlords will never work towards it.
1089. The Chairperson: Up to a point, I am comfortable with what the Department is doing on an ongoing basis. If I take at face value what I am told, the Department is working in the sector to try to get a standard that is higher than the one at present and can be achieved. That is the best way to achieve a standard, rather than drawing the line and telling landlords that they have to reach that standard. Otherwise, as Anna said, some landlords will not even bother.
1090. Mr S Anderson: Councils have a standard and an environmental health check for houses that date back to 1945.
1091. The Chairperson: There is a standard.
1092. Mr S Anderson: That should be a start and the minimum standard for all homes.
1093. Mr F McCann: That is the standard in operation at present.
1094. We sat here a couple of weeks ago with representatives from LANI, the people who run the sector, and everything that we suggested was rejected. They would not accept anything. Mickey said that that was a complete change in their attitude from that a year or two ago.
1095. There is no movement at all in the sector. I keep saying this, but if a community group behaved in the way that landlords behave in the provision of some housing, it would be brought to court, especially in the terms of finance.
1096. Ms S Anderson: At present, how old does a house have to be to need a certificate of fitness?
1097. Ms Hiles: The certificate of fitness applies to properties that were built before 1945 for which a new tenancy has been created after 2007.
1098. Mr S Anderson: After that, anything goes.
1099. The Chairperson: We are getting bogged down in an argument that we have been over before. Although there is support for the principle, there is no support for an amendment along those lines.
1100. Proposed amendment Y was suggested by NILGA representatives when they gave oral evidence. That amendment states that the enforcement authority should provide advice and training for landlords. I think that that is a detail for any scheme.
1101. Ms Hiles: Environmental health officers are already doing that.
1102. The Chairperson: Proposed amendment Z is that all statutory bodies should be required to share tenancy information. That was suggested by NILGA and LANI. I am not sure what sort of information they are talking about.
1103. The Committee Clerk: This is what the departmental officials were talking about earlier when they talked about housing benefit information. LANI's argument was that there was no need for a registration scheme, because all the information is there. It said that all statutory bodies could work together, share the information and identify the tenants who are at risk etc.
1104. Ms Hiles: It is not only housing benefit information but, possibly, Land and Property Services information. It holds information on landlords.
1105. The Chairperson: You are saying that there is provision for the greater sharing of housing benefit information elsewhere in the Bill. Is that included in the Bill?
1106. Ms Hiles: It is included; it is one of the Department's amendments.
1107. The Chairperson: Proposed amendment AA is that costs associated with enforcement actions should be recoverable from landlords. That was suggested by NILGA. I think that we are supportive of that principle. [Inaudible.] The Department could look at that when it is looking at the other one. It would give a lot of comfort. If I am reading the Committee correctly, the Committee would buy the lower levels of maximum fine, if the cost was tagged to the landlord. It is one or the other. If we can get one, we do not need to have the other.
1108. We move to proposed amendments BB and CC. LANI proposed the complete withdrawal of provisions relating to landlord registration and the minimisation of costs associated with the register. I do not think that any member is calling for that.
1109. Proposed amendments DD and EE are from LANI. It reflected its members' concerns and suggested that the register should not be in the public domain or include landlords' home addresses. That is an operational matter for the scheme. They were in for some criticism that day, not least because of their attitude. However, I have sympathy with the point about landlords' home addresses.
1110. Mr A Campbell: The Department is sympathetic to that as well.
1111. Mr F McCann: Who registers the details?
1112. Mr A Campbell: The registrar will be in the Department. Is that right?
1113. Ms Hiles: We have not decided who will hold the register. It is possible that a council will operate it for all other councils, but that has not yet been decided. It is an operational issue. Although the register is a public register through which a tenant or a member of the public can see whether a landlord is registered, only a tenant would be able to have direct access to the landlord's telephone number and address. The landlord's address would not be on the public part of the register.
1114. Mr F McCann: Would it be on any part of the register?
1115. Ms Hiles: The landlord will have to give his contact number and home address, and he must include that when he registers. However, that information will not be made public. The scheme administrator and the environmental health officers in the councils will have that information.
1116. Mr F McCann: What about the landlords' agents?
1117. Ms Hiles: Their details will be there as well.
1118. The Chairperson: There are different levels. It is like access to the electoral register. People can buy one that has basic information, and there is one with additional information.
1119. Mr S Anderson: It was said that they have to give a Northern Ireland address.
1120. The Chairperson: I appreciate that it is an operational matter for the regulations, but there is a point about the home addresses not being included. If landlords are using a letting agent, they could use a care of address. That could be public; that is not going to be a secret.
1121. We move to proposed amendments FF and GG. NILGA suggested that the councils would operate the register and that it should be based on a single IT system to facilitate information-sharing.
1122. Ms Hiles: That will be given consideration. It is a possibility.
1123. The Chairperson: It is a possibility, but it is not an issue for the Bill. It is a regulatory matter.
1124. Proposed amendment HH is that the register should include an indication on the level of disability access and compliance with the lifetime homes standards for each property owned by landlords who are on the register. That was suggested by Disability Action. I appreciate that that is an issue for regulation as opposed to the Bill, but it is something that the Committee was supportive of. There is a sector of people who are disabled and have particular needs, and they have difficulty in finding suitable property. Disability Action feels that having a register of landlords and their properties could give such people who are looking for a property an opportunity to find something suitable. If the Department could consider that in its ongoing deliberations about what the register might look like, I would appreciate that. It is something that we would be supportive of. Members, am I right in saying that?
Members indicated assent.
1125. The Chairperson: That deals with clause 5. The Committee has expressed its views.
1126. Mary, do you need to leave?
1127. Mrs M Bradley: I really do, Chairperson. Will that leave the Committee inquorate?
1128. The Committee Clerk: Yes. It is tricky. We must decide what to do.
1129. Mr S Anderson: How many members constitute a quorum?
1130. The Committee Clerk: It is five members. We can hear evidence with four members, but we need five to take decisions. It is unfortunate.
1131. The Chairperson: Aye, but, Mary, if you have to go, that is fine. I know that you have a particular problem. It would be nice for you to get home tonight after not getting there last night. You may have to turn around and come back to these meetings. There is not much more to do, is there?
1132. The Committee Clerk: Not really, the Committee should get through it.
1133. The Chairperson: I must close the meeting. Thanks to the departmental officials for their attendance. We knew that clause 5 would take a long time; however, at least it is now dealt with. We will return to deal with the remainder of the Bill on Thursday 9 December 2010.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Jonathan Craig
Mr Alex Easton
Ms Anna Lo
Mr Fra McCann
Witnesses:
Mr Stephen Baird |
Department for |
1134. The Chairperson (Mr Hamilton): The Committee did not conclude its informal review of the clauses and proposed amendments to the Housing (Amendment) (No.2) Bill. I hope that we can do so in this session.
1135. We are joined by Alastair Campbell, Stephen Baird and Angela Clarke from the Department's housing division. Members' papers include a revised copy of the clause-by-clause scrutiny table for the Bill. Members should refer to their Housing (Amendment) (No.2) Bill folder which includes other submissions received during the Committee Stage.
1136. In this session, the Committee will step through the remaining clauses in the clause-by-clause scrutiny table, and members will be asked to discuss the clauses and proposed amendments. The Department will brief, as appropriate, on key questions. It is essential that the Committee identifies all the amendments that it wishes to bring forward before formal clause-by-clause scrutiny can begin.
1137. Clause 6 relates to a fixed penalty for certain offences. It allows landlords who have breached the registration regulations or the tenancy deposit scheme to avoid prosecution by paying a fixed penalty. There are a few proposed amendments, which I will read. We will have comment from the Department and take a view from the Committee on each of them.
1138. Proposed amendment II is that the maximum fine should be increased from £400 to £5,000. That was suggested by the Housing Rights Service. Further to Tuesday's meeting, the Committee Clerk has written to the Department of Justice and to the Department for Social Development in respect of fixed penalties and the awarding of costs.
1139. An increase from £400 to £5,000 makes the maximum fine £25,000. Is that not what we said? That is even higher than the £20,000. We had a lengthy discussion on Tuesday about what the fixed penalty and maximum fine should be. We have sought clarity. Are we happy to leave it at that at this stage and to await a response? We cannot really take a position until we know the lie of the land.
1140. The Committee Clerk: The Department indicated at Tuesday's meeting that it had run into some difficulties with the Department of Justice (DOJ) on changing the financial penalty scheme. I have already written to DOJ and the Department on the matter. It is best to wait for an answer, unless there is anything that the Department can tell us.
1141. The Chairperson: Is there anything additional from the Department?
1142. Ms Angela Clarke (Department for Social Development): No. I have discussed the matter with officials in the Department of Justice, and I have written to them to put it more formally and to seek their advice. Unfortunately, I was not here on Tuesday, but the Committee discussed whether a stepped approach to fixed penalties could be taken. There might be a way around that. The Department of Justice is developing new policy on fixed penalties, because there is not a lot of policy on that. It is certainly a new area for DSD in relation to private tenancies. So, a lot of thinking is going on at the moment.
1143. We suggested to the Department of Justice that, the first time a landlord is found not to have registered and a fixed penalty is appropriate, the fixed penalty would be set at one fifth of the maximum fine because it is a warning. The Department of Justice did not see it being a great problem, subject to further consideration, for us to step that up if it were to happen again. We suggest doubling it to two fifths of the maximum fine. There may be an issue beyond that about continuing to use fixed penalties. That might not be seen as the right approach, and it may then be appropriate that the person be taken to court.
1144. There are a number of issues to do with taking a person to court. One is the discretion of the court and the fact that there is really no control over what fine may be awarded. The court might award the maximum fine, but it has discretion to make the fine any amount.
1145. The Chairperson: We will await that clarity from the Department of Justice on the stepped approach, although I accept the point that it gets to a level at which it is not desirable to do it.
1146. Ms A Clarke: Absolutely.
1147. The Chairperson: We will park that one in some respects.
1148. Proposed amendment JJ calls for rent penalty notices, which allow tenants to pay no rent for a period, to be applied in place of or as well as fixed penalty notices. That was suggested by the Housing Rights Service. Are there any views from the Department on that proposed amendment?
1149. Ms A Clarke: We are looking at that area with a view to moving to that. It would be quite a policy change for us, but we are certainly looking at using rent penalty notices. They are probably more related to landlords' properties not meeting standards as opposed to landlords just not registering, but it is certainly under consideration. It would require a lot more discussion with tenants and landlords. There are lots of issues about the protection of the tenant and the need for processes to be put in place in the case of a rent penalty notice being issued. There are issues for district councils because they would probably have to issue them. There are lots of issues to be considered. We are looking at the area, but not at this stage for the Bill.
1150. Mr F McCann: We are, by and large, stepping into areas into which we have never stepped before. We are trying to create a situation in which there is registration with which landlords comply, so, when we are dealing with that, the stricter, the better. It will be interesting to see the Department's response in writing.
1151. The Chairperson: We are content not to pursue that amendment, but we need an assurance that the Department is looking at the matter. I appreciate that the idea needs to be developed and refined. It is probably wisest to abandon that proposed amendment.
1152. Proposed amendment KK is that the penalty levels should be the same as those that are applied by district councils for non-compliance with tenancy regulations. That was suggested by NILGA. I am not quite sure what it is getting at.
1153. The Committee Clerk: NILGA indicated in oral evidence to the Committee that it was concerned about the resource issues. I think that it wanted to ensure that the penalties associated with non-registration and so on would be significant and in line with what the councils would —
1154. The Chairperson: It is a cost issue.
1155. The Committee Clerk: Yes. Significant penalties, associated with the new tenancy regulations that are coming in with the Bill, would allow councils to recover their costs.
1156. Ms Lo: At what level?
1157. The Chairperson: It was not specific about that.
1158. The Committee Clerk: Perhaps it is linked to proposed amendment II and the wider fixed penalty regime.
1159. The Chairperson: It is an issue of costs.
1160. Mr F McCann: I think that that was one of the questions that Sydney raised the other day. Some of that may end up being prohibitive and result in councils stepping back and not pursuing it. It would be interesting to see the penalties that councils have.
1161. The Committee Clerk: I will obtain that information.
1162. The Chairperson: Proposed amendment LL, which was also suggested by NILGA, was for penalty levels to be subject to a statutory review in about two years' time. I understand why it would want that to be kept under review in case costs start to increase. Is there any mechanism for reviewing that or any intention to do so?
1163. Ms A Clarke: We do that with all aspects of the Private Tenancies (Northern Ireland) Order 2006, which is why we are getting into that area. We receive information from the councils and we talk regularly with them about how effective things are. There is ongoing monitoring of that, so we will certainly be evaluating.
1164. The Chairperson: Therefore, there is no need for that amendment.
1165. Are members content to move on from clause 6?
Members indicated assent.
1166. The Chairperson: Clause 7 requires that regulations relating to tenancy deposit schemes, determination of rents and landlord registration should be subject to draft affirmative resolution. The Housing Rights Service suggested an amendment that is duplicated in clause 1, which is that rent book regulations should also be subject to draft affirmative resolution. The Committee has already informally indicated that it is content that those regulations remain as negative resolution. Do members have any comments on the clause? It gives the Assembly power. Are members content with the clause?
Members indicated assent.
1167. The Chairperson: Clause 8 relates to houses in multiple occupation and evidence of family relationship. It allows the Housing Executive to require residents of a house believed to be a HMO to provide evidence of family relationship. Where the evidence is not supplied, the Housing Executive is empowered to treat the house as a HMO.
1168. There are three suggested amendments to the clause. I will go through them and seek the views of the Department and members. Proposed amendment NN, which was suggested by Supporting Communities Northern Ireland, is that the HMO regulatory regime should require houses to conform with fitness and other standards. Is that not the case?
1169. Ms A Clarke: That is currently the case.
1170. The Chairperson: Is that through the Private Tenancies Order?
1171. Ms A Clarke: No, I think that it is through the Housing Order, because a different set of regulations applies to HMOs.
1172. The Chairperson: Are members content with that?
Members indicated assent.
1173. The Chairperson: Proposed amendments OO and PP, which were suggested by NILGA, call for guidance to be provided as regards the type of evidence that can be accepted in respect of family relationships. At one time, I flippantly suggested that blood tests and so forth should be provided.
1174. Ms Ní Chuilín: I remember that we got into DNA and all the rest.
1175. The Chairperson: Taking hairs out of people's heads.
1176. Mr F McCann: You are still remembered for that in NILGA.
1177. The Chairperson: Flippancy aside, has thought been given to what is relevant?
1178. Ms A Clarke: It certainly has. It is a difficult one, and we have to allow for individual circumstances. However, the Department intends that guidance will be provided to the Housing Executive to help it to make those sorts of decisions. We have precedence, because the Social Security Agency and the UK Border Agency sometimes have such decisions to make. We will look at that to help us to develop the guidance.
1179. Ms Lo: Apart from relationship, would you take into account the number of people in a house?
1180. Ms A Clarke: The number will determine whether the house is a HMO. If the numbers are there, and the Housing Executive cannot be given evidence that satisfies it that it is a family relationship, it will determine that house to be a HMO, and it will, therefore, be subject to higher levels of regulation.
1181. Ms Lo: Even if they say that they are all families.
1182. Ms A Clarke: Just to say that will not be enough.
1183. Ms Lo: If there were 30 of them, would that be considered a HMO?
1184. Ms A Clarke: Oh, absolutely.
1185. Mr S Anderson: That is a big family. That is a hotel.
1186. Ms Lo: A Roma family could easily tell you that there are three families, each with 12 children.
1187. The Chairperson: OK, members. Are we happy enough with clause 8?
Members indicated assent.
1188. The Chairperson: Clause 9, "Withholding of consent to mutual exchange of secure tenancies", inserts a new ground for social landlords to withhold consent to exchange tenancies. Again, there are a couple of proposed amendments. Proposed amendment QQ is a departmental amendment that would restrict the grounds for withholding exchange to antisocial behavioural issues. Will you please explain the proposed amendment to the Committee?
1189. Mr Stephen Baird (Department for Social Development): We do not have a difficulty with the suggestion that the withholding of tenancy exchanges should relate to only antisocial behaviour. That is very much in keeping with the spirit of the proposed legislation. However, we do not agree that the best way to achieve that is to remove the references to injunctions against breaches of tenancy agreement altogether from the Bill. We would prefer to make an amendment that expands that reference, so that it is clear that we are only talking about injunctions against breaches of tenancy agreement that specifically involve antisocial behaviour.
1190. An injunction against breach of tenancy agreement can be granted on a number of grounds, not all of which would refer to antisocial behaviour. However, because that is specifically an antisocial behaviour provision, we can specify in the legislation that the breach must be about antisocial behaviour.
1191. The Chairperson: Solely about antisocial behaviour?
1192. Ms A Clarke: Yes.
1193. The Chairperson: How is that defined?
1194. Mr Baird: There is no single statutory definition of antisocial behaviour. For the purposes of the amendment, we would probably look to define it in terms of the sort of behaviour for which an antisocial behaviour injunction could be granted.
1195. The Chairperson: I do not want to open up a can of worms, but one could envisage other areas in which the withholding of consent may be sensible. I have experienced the development of serious problems in my constituency, for example, when someone on the sex offenders register is moved into an area. That really does open up a can of worms. Perhaps there is no legal ability to withhold consent in such cases. I am sorry; we are changing the legal ability here. Has that ever been considered as an issue? That sort of information is probably governed by other legislation so that certain bodies, such as the Housing Executive or housing associations, cannot have sight of it. It struck me that we were being restrictive. Clause 9 inserts into the Housing (Northern Ireland) Order 1983, as a relevant order, an injunction against breach of a tenancy agreement. That is extremely broad. We are, as you say, keeping with the spirit of the Bill in reducing that to injunctions against antisocial behaviour. That is one area in which, I thought, there might be an argument for the withholding of consent for an exchange of a tenancy. There are other areas as well; in restricting it to antisocial behaviour are we being too limiting?
1196. Mr Baird: I do not think so. Ultimately, that will be the Housing Executive's call. The power simply enables the Housing Executive to withhold consent on specific grounds, which are going to be specified in the legislation. The Housing Executive may not wish to withhold consent in every case. It is a housing management consideration. There may be a range of different circumstances in which the Housing Executive may or may not feel that, for housing management reasons, it is advisable to allow someone to transfer. It is fairly clear, at this stage, that it would not be advisable to allow people who have engaged in antisocial behaviour to transfer, because of the risk of spreading such behaviour to other areas. That is what we are targeting in the Bill. If there is a case to be made for withholding consent to transfer in other circumstances, we will be glad to hear about it and we will look at it.
1197. The Chairperson: That is the most acute problem, and the Committee has called for such a power before. It may not happen now, but, over time, it may be that we will identify other circumstances that will require extending the powers of the Bill. I am not suggesting that we add this or that and be too prescriptive. There is as much danger in being specific as there is in being too general.
1198. Mr F McCann: I agree with you; the Committee has been pushing for such a change. Initially, when the Bill was introduced, it was seen as being too wide-ranging. We were asked to consider people with mental-health difficulties who may get caught up in that and who may need assistance. That is why the provision to withhold consent was narrowed down to apply only to people who engaged in antisocial behaviour.
1199. The Chairperson: It is also a matter of testing a change such as that in practice. We need to be specific and determine whether that works. I do not want to sound cynical, but we will see how robust that provision is in practice and whether the Housing Executive exercises that power.
1200. Mr F McCann: You mentioned robust powers. On Tuesday, we were arguing against the robustness of the Scottish legislation. However, during the debate this morning on the Charities (Amendment) Bill, Scottish legislation was being mentioned because of its robustness.
1201. The Chairperson: Robustness is not universal.
1202. We are quite supportive of proposed amendment QQ. Proposed amendment RR was suggested by the Northern Ireland Federation of Housing Associations. NILGA also asked for guidance to be provided on the interpretation of the clause and the development of robust procedures. I take it that that will happen. Again, it is a question of what constitutes antisocial behaviour. I take it that there will be clear guidance for the Housing Executive and housing associations about what they should or should not be doing.
1203. Mr Baird: The Department does, in fact, issue guidance on antisocial behaviour, and that is regularly updated, particularly to take account of any changes in the legislation. I can confirm that we will be doing that.
1204. Mr F McCann: In the past, when I have raised questions with the Minister in relation to the Housing Executive's ability to deal with antisocial activity, I have been told that that ability is wide and varied and that it has powers to cover all eventualities. Yet, there seems to be no teeth attached to allow the Housing Executive to deal with it. I have read through the Housing Executive's policy on antisocial behaviour, and it is wide and varied. Housing associations should abide by something such as that but be given more teeth. Everything depends on getting a local resident to come forward, name a person, go to court, and stand up and identify them. In many areas, that is just not going to happen. In many ways, it is used as a cop out for no action at all.
1205. Mr Alastair Campbell (Department for Social Development): We recently did a piece of work on antisocial behaviour and the powers available. We hope to publish that at some point. One of the findings is that a lot of the authorities do not actually know what powers they have. We think that some kind of seminar system for communicating what powers are available might be helpful.
1206. Mr F McCann: It is also the case that those that know what powers they have available do not act on them. That is the problem.
1207. The Chairperson: Does anyone wish to add anything else?
1208. The Committee Clerk: Members have a copy of the performance guidance for the Housing Executive on antisocial behaviour in their Bill folders.
1209. The Chairperson: OK. Are members content with proposed amendment QQ and with the assurance about the guidance in relation to proposed amendment RR?
Members indicated assent.
1210. The Chairperson: Clause 10 is entitled "Disclosure of information as to orders, etc. in respect of anti-social behaviour". The clause inserts a new ground for social landlords to withhold consent to exchange tenancies. There are several suggested amendments. Proposed amendment SS is that only prescribed persons should be allowed to disclose information to a landlord. That was suggested by the Housing Rights Service. As I recall, its argument was that we could not have just anybody disclosing that somebody is antisocial and then that going against them. It happens every day that people accuse people for their own purposes. The suggestion was that that should be narrowed down to housing officers and certain individuals. What thought has the Department given to that?
1211. Mr Baird: The Housing Rights Service expressed concern about the possibility of malicious allegations being made. It is worth bearing in mind that, under the existing legislation, there is absolutely nothing to prevent any person from making a malicious or unfounded allegation to a landlord about a tenant. However, landlords are under no obligation to pay any attention to those kinds of allegations. There is certainly nothing in our proposal that would require landlords to pay attention to malicious or unfounded allegations being made by improper persons, if you like.
1212. The purpose of the clause is to allow persons who hold relevant information, which, at present, cannot be disclosed for data protection reasons, to disclose that information to the Housing Executive or a registered housing association. It really hinges on the definition of "relevant information". For the purposes of the legislation, "relevant information" will be information about certain orders or injunctions relating to antisocial behaviour — in other words, factual information that individual A or B is the subject of an antisocial behaviour injunction, an anti-social behaviour order (ASBO) or an order for possession. It must be one of the specific court orders that would be made in a case of antisocial behaviour. That is the only type of information that we are talking about.
1213. The only persons who would be in a position to state categorically that somebody is the subject of one of those orders would be either somebody within the legal system or a housing officer. There is absolutely no question of throwing the doors open to having malicious individuals in the community making unfounded allegations about people.
1214. The Chairperson: What is the relationship between clause 9 and clause 10?
1215. Mr Baird: Clause 10 deals with the disclosure.
1216. The Chairperson: What I am getting at is whether you must have information disclosed under the auspices of clause 10 in order to withhold consent under clause 9.
1217. Mr Baird: Clause 10 will operate in support of clause 9. It will probably support a number of other initiatives, too. However, it will certainly support the new provisions around transfers.
1218. The Chairperson: I want to be clear about whether that information must be disclosed. Say, for example, that I am an antisocial tenant, which I probably am.
1219. Ms Lo: Have you been having many parties lately?
1220. The Chairperson: It is that time of year, Anna.
1221. Say, for example, that I am an antisocial tenant, must information about me be disclosed under clause 10 in order for me not to be allowed, under clause 9, to swap with Carál. What I am getting at is whether that is the only way in which the mutual exchange of tenancies can be withheld.
1222. Mr Baird: A landlord can withhold consent to a mutual exchange on only very specific grounds, which are set out in legislation. We are proposing to add to those statutory grounds. Clause 9 refers to relevant orders being in force, and clause 10 refers to the relevant information about those relevant orders specifically.
1223. The Chairperson: I am sorry for labouring the point, but let me paint a scenario. A tenant wants to move from one house to another, and we know that they are antisocial, even though they do not necessarily have an anti-social behaviour order or charge against them. If we all know that that person is a difficult tenant and that their moving would simply move the problem and create new problems elsewhere, I would not want it to be that that person could not have that exchange withheld. I am speaking for myself, but I am sure that others agree. Are you saying that consent can be withheld even if no order has been made against that tenant or information has not been disclosed under that clause?
1224. Mr Baird: No, consent can be withheld on only very specific grounds. Simply a perception that somebody is an antisocial individual would not satisfy the legal requirement.
1225. The Chairperson: OK. I do not agree that consent should be withheld in those circumstances either. However, there are antisocial tenants in Housing Executive properties up and down this land who do not have ASBOs or injunctions against them. In fact, if this were restricted to only ASBOs, about five people in Northern Ireland would have their tenancies withheld, because so few people actually have them.
1226. Mr Baird: ASBOs are a very small part of this.
1227. The Chairperson: What else are we talking about?
1228. Mr Baird: We are also talking about injunctions against antisocial behaviour; breach of a tenancy agreement, where the injunction relates specifically to antisocial behaviour; and orders for possession on the basis of antisocial behaviour. That is the range of sanctions that a landlord may take against an antisocial tenant.
1229. The Chairperson: If I were an antisocial tenant in a Housing Executive property who had done this, that and the other, and the local district office had been preoccupied with complaints about me from Anna, Fra and all my neighbours, but none of those injunctions or orders had been made against me, could I — bad luck — still be moved?
1230. Ms Ní Chuilín: That is not the experience on the ground.
1231. Mr Baird: If a tenant asks and applies for a transfer, the landlord can withhold consent to that transfer if that tenant has been sanctioned in one of those specific ways. However, if the tenant has not been sanctioned in any of those ways, the landlord cannot withhold consent.
1232. The Chairperson: I am now concerned that the legislation is not as robust as the Committee had hoped. It does not matter whether you are from north Belfast, west Belfast, the leafy suburbs of Strangford, or wherever, there are problems day in and day out with tenants who are antisocial.
1233. I have asked questions about the number of anti-social behaviour orders issued. We should also find out from the Department how many of the various qualifying categories have been issued over the last number of years. I have asked about ASBOs and antisocial behaviour contracts, because they are the popular ones. The number issued by the Housing Executive is woefully low. However, I understand and have sympathy as to why, because it goes back to cost. We just do not do it. An ASBO is unenforceable and, in many cases, is worn as a badge of honour.
1234. If we are hearing that the exchange of a tenancy can be withheld only on the basis of a couple of boxes that relate to legal processes having been ticked, the legislation is not as robust as I thought. I understand why it is drafted in the way that you said, Stephen. However, that is dissatisfying to me and probably to other members, because we were probably under the impression that social landlords — housing associations or the Housing Executive — could withhold a tenancy on the basis of knowledge that somebody is a problem tenant and on the basis of a history.
1235. I always imagine that ASBOs and injunctions are issued for some of the worst type of antisocial behaviour, such as physical manifestations of antisocial behaviour. Partying and noise sometimes do not in themselves warrant or elicit a legal procedure being undertaken. Nonetheless, that is antisocial behaviour, those people will have a record the length of their arms, and the district housing office will be bombarded with complaints on a regular basis. I am worried that we are selling this legislation as one thing, when in fact it will not be what we thought it was going to be.
1236. Mr F McCann: It was probably me who raised this initially, because it all boiled down to a duty of care. Social housing providers were not exchanging information about tenants who they were moving into an area, even though they knew that those people were heavily involved in antisocial activity in another area. We were told that the duty of care was to the person who was being moved, the applicant, rather than to the residents who lived in that area. That formed the basis of the Committee's concern.
1237. If a family is noted for antisocial activity in one area, common sense says that they will continue when they are moved to another area and will have an impact there. There needs to be something in the legislation to allow for the exchange of information between social landlords. In fact, LANI told the Committee that it wanted to be included in any legislation that allowed it to deal with antisocial activity, because many of those people also move into the private-rented sector.
1238. The Chairperson: Fra is hitting the nail on the head. Can somebody's record be disclosed, or is that prohibited?
1239. Mr Baird: For the purposes of this legislation, it would be information specifically about one of those injunctions, ASBOs, or possession orders. It would be specifically about that aspect of their record.
1240. The Chairperson: Not about a record of antisocial behaviour or complaints about the person?
1241. Mr Baird: Not about complaints from neighbours or anything such as that. No.
1242. The Chairperson: I am trying to think through how the legislation might be amended to include that that be revealed. It would be useful for a housing association, for example, at least to know that it is receiving tenants who have a lengthy list of complaints against them. We may stop short of saying that that is enough in itself to withhold agreement, but it would be nice for them to know that information so that they could manage the problem.
1243. If I was your neighbour, I could complain about you every day, and that would be malicious. However, relevant information would be attached to that. Housing officers in housing associations or the Housing Executive would say when they think that it is a neighbours' dispute or a falling out of personalities and is not valid. There would be some discernment. I still think that it would be useful for that information to be exchanged because at least the housing association, the Housing Executive, a different district office or whoever it might be has an understanding of what they are getting, whereas at present they do not. People have to wait for the jungle drums to beat to tell them who is coming. That is what happens.
1244. I am not barking up the wrong tree here, am I?
1245. Ms Ní Chuilín: No, you are not.
1246. Mr F McCann: Far from it.
1247. Mr Baird: The Department would accept that there is probably a basis for expanding the types of information that can be shared for the purposes of dealing with antisocial behaviour. That is legislation that could probably be built upon. However, as regards the legislation on transfers, what we are proposing deprives individuals of an existing right, which is their right to apply for transfer. The grounds on which we do that have to be proportionate. Essentially, we have to be in a position to show that this is an antisocial individual who has been accepted as such by the courts. Therefore, the level of proof is the fact that a court has seen fit to make an order against that individual because of his or her antisocial behaviour.
1248. The Chairperson: I am not trying to whip the Committee up to opposing the clause or the previous clause. It is grand, insofar as it goes. We will bank that and build on it. However, it might be worthwhile exploring whether it can be done in this Bill, or some assurance can be given that it will be considered at a later stage whether other types of information — outside of injunctions or orders — could be disclosed, if not actually having a bearing on the exchange of a tenancy.
1249. I accept the point that a tenancy cannot be withheld on the basis of 50 complaints about a person from the same individual. That would not be right. The Housing Executive may have no right to withhold the tenancy, but, out of natural courtesy to whoever is getting the new tenant, such information should be made available in order that they understand what they are getting and what they will be dealing with. That is the problem. We hear that from housing associations. They get a problem, and it comes like some sort of parcel wrapped up and sent in the post: "Goodbye, you deal with it." It would be good if that could be looked at.
1250. Ms Ní Chuilín: In north Belfast, three families had injunctions taken out against them, and they were removed from the area. In one case, it took two and a half years for that to happen. Untold, unbelievable damage was done in that period.
1251. Mr F McCann: They were probably all moved to the Falls.
1252. Ms Ní Chuilín: No, you sent them from the Falls to the New Lodge, but we will say nothing about that.
1253. Community Restorative Justice Ireland (CRJI) and alternatives have been used by the Department to verify claims. Complaints may be malicious, but such cases are the exception rather than the rule. Complaints are made instead by whole communities and streets. In some areas, multi-agency meetings are held at which a series of statutory providers, residents, community groups and political representatives meet. They could spend an hour every Friday afternoon for six months talking about two families. It starts to feel like déjà-vu. Even the Department has accepted that as a way of gathering evidence, because it appreciates that it takes so long to get to court.
1254. There are other ways to verify the claim that individuals are antisocial. Residents are given incident diaries to log complaints and the times of incidents. They are also given answer service numbers for the Housing Executive and social services to log complaints. It is not the case that no work is done outside of going to court. That makes me think that the clause is so weak that I would have difficulties with it. I do not mean to overstate the case, but the clause does not reflect what we need to do about protecting people's rights.
1255. If someone is being antisocial, they must be given an opportunity to make amends. It is about getting in the right support and making reparation, where possible, at the start. Recourse to the court should be not the first but the last choice of option. All those steps and processes are triggered, and, if they do not work, court is most definitely the last option. Recognition between housing associations and even among private landlords is already happening. The legislation is lagging behind what is happening on the street. My fear is that, if passed, that may allow statutory bodies, which have made commitments, to walk away from the table because the legislation is not there to support them.
1256. Mrs M Bradley: I do not want to waste time by expressing opinions that are similar to Carál's. I could relate several situations that are exactly the same. The legislation must be robust and of benefit to the people. If we cannot do much better with this Bill, we must look to see what we can get that is robust and can be acted on. I have a case that is two and a half years old and is not being dealt with. The couple who are most affected are senior citizens who have to ring their daughter at 3.00 am to come and get them out of their own house because of what is going on in their street and in the houses next door. We need something that can deal with such situations. Those people have kept a record of what is happening. They have been given a diary by the Housing Executive and have received one from the housing association that is the landlord of the family that is causing the problem, but that is not working, and it needs to work.
1257. Ms Lo: In a way, it is an operational matter for the Housing Executive to work more quickly. The law requires evidence, and the tenants in question have a right to justice. An injunction or an order is based on evidence, but where there is no such evidence one cannot stand up in court and say that someone is not allowed to transfer. The Housing Executive and the police must work quicker to get to court and obtain an injunction or order.
1258. Mr F McCann: Chairperson, you and Carál touched on the question of the protection of rights. However, this Bill protects only the rights of those who are antisocial rather than the rights of the tenants who have to live with it. The housing associations and the Housing Executive are playing a game in which, although it may be commonly known that a family or individuals have been involved in widespread antisocial activity that terrorised an area, the first that you know that they are on the move is when they are put into a house beside you, and no other housing association nor the Housing Executive has been informed. We need to clear that up.
1259. The Housing Executive and most of the housing associations will tell you that they have brought X amount of people to court. However, the judges put them back for six weeks, six months or 18 months to give them a chance to mend their ways. In many of the cases that I have seen, it is because they get that chance that their behaviour gets even worse. That has a detrimental effect. It is about the flow of information. Surely, if one housing association is dealing with a particularly bad person or family in an area, that association should be forced to let other housing authorities know that that family is going to be moved. We must remember that such people are only being moved out of an area because local people have demanded that they be moved. Before they are moved to another area, the relevant housing authorities should be informed about it.
1260. When we raised that issue during the scrutiny of the first Housing Bill, we said then that we would let things run into the next Bill to see whether anything could be done. I worry that we will bypass the issue again. We all go around the doors, and the vast majority of people say that antisocial activity affects them.
1261. The Chairperson: I agree with you. I do not think that there is anything wrong with clauses 9 and 10 per se and with what they are trying to do. It is a foundation on which we can build. The question is when we should build on it. Do we try to build on it now or at some later stage?
1262. I am uneasy about legislation that allows for the sharing of information and potentially for the blocking of an exchange of tenancies on the basis of particular orders and injunctions alone. In my experience, those are not taken out by social landlords — the Housing Executive or housing associations. That is the evidence that I see and that others see. There may be valid reasons why the Housing Executive does not seek an ASBO or does not take out an injunction. Society at large does not want that to happen because it stigmatises individuals or families, and that is to be avoided. However, if that is the only information that can be exchanged, we are limiting the power and ability of this clause. There may be good reasons for doing that. However, if I take the temperature of the Committee correctly, we should ask the Department to look at framing an amendment that may allow additional information to be shared and to explore the possibility of how that information may be used in making the assessment about withholding tenancies. I accept that it may not be possible for such information to be so used. It may not come to anything, but the Committee would be happier that it has at least explored that.
1263. Ms Ní Chuilín: That is fair enough.
1264. Mrs M Bradley: When families that cause trouble move house, their name goes before them. People living in other estates know that they are getting them, and they complain about them before they arrive. It is so unbelievable. It is crazy stuff. We need a way to deal with it all, so that the families are given help if they need it, as well as everything else. I do not know how we can do that, but we have to find a way.
1265. The Chairperson: There are some families that move around like a rock concert.
1266. Mrs M Bradley: Yes. Their name goes before them.
1267. The Chairperson: I appreciate that this is not as straightforward in practice and it may not have any impact on withholding tenancies, but I think that there is scope at least for sharing information. It would be good if that could be looked at.
1268. Mr A Campbell: We are happy to look at that. We also acknowledge that there is work to be done on antisocial behaviour in general.
1269. The Chairperson: I will go through the other amendments. Proposed amendment TT is that information should be subject to checks and guarantees in respect of accuracy. We have dealt with that.
1270. Proposed amendment UU, suggested by Supporting Communities Northern Ireland, is that people about whom information is disclosed should be made aware of that disclosure and given the opportunity to rebut accusations. As the clause stands, those people have had the opportunity to rebut because a legal process has been gone through.
1271. Mr Baird: I agree. That is implicit in the clause. That said, the Department supports the principle that people should be made aware of allegations against them and given every opportunity to rebut those. If anything further is required, we will certainly address it in guidance.
1272. The Chairperson: Good. Say, for example, I was to apply for a change of tenancy, but consent is withheld because I have had an injunction taken out against me. Will the guidance say that I have an opportunity to appeal? Will that be considered?
1273. Mr Baird: Certainly if somebody was notified that their application to exchange tenancies had been refused on the basis that they were the subject of an ASBO, and that individual said that the ASBO was never made against them and that, therefore, the information was incorrect, they should have an opportunity to say that, and our guidance will reflect that.
1274. The Chairperson: Good.
1275. Proposed amendment VV, suggested by the Federation of Housing Associations, is that information-sharing should comply with existing social landlord information protocols.
1276. Mr Baird: Our understanding is that the clause, as drafted, will already support those protocols.
1277. Ms Lo: Is it sharing between private landlords?
1278. The Chairperson: No, it is between social landlords.
1279. Proposed amendment WW is that guidance should be developed to protect tenants suffering from mental health problems from unfair or inaccurate disclosures. In some ways, restricting it to antisocial behaviour assists in doing that. There is a particular concern here, which Fra mentioned earlier, that some people who have mental illness will behave in a way that is antisocial. It is not acceptable, but there is a better reason for it than somebody drinking too much or being on drugs.
1280. Mr Baird: The guidance that we have issued makes it clear that when somebody's behaviour is the outcome of a vulnerability or health issue, it has to be looked at in that context. It has also been drawn to the Housing Executive's attention that someone must not be evicted because of a disability. That is illegal under disability discrimination legislation. So, there are safeguards for the mentally ill.
1281. With regard to information-sharing, I emphasise again that we are talking about relevant information, which, for the purposes of this legislation, is about those specific court orders etc. It is not about clinical information about mental illness. There is no proposal at this stage to allow information-sharing about that sort of thing.
1282. The Chairperson: Are members happy enough?
Members indicated assent.
1283. The Chairperson: Proposed amendment XX, suggested by LANI, is that disclosures should be made to private landlords in respect of antisocial tenants of social landlords. We have touched on that. Speaking personally, I think that on the face of it that makes sense, particularly as we are using private landlords so much to compensate for a lack of social housing. Can that be done, is it being done, or is it impossible?
1284. Mr Baird: The Department has no objection in principle to that. Simply from a legal point of view, we would be moving into unfamiliar territory there, and we would want to discuss any possible data protection issues with the Information Commissioner. However, we would certainly be very happy to take that forward.
1285. The Chairperson: We talked about that favourably when LANI raised it and before that. As there are now many thousands of people in private-rented properties, a substantial portion of them on housing benefit, who are there because they cannot get a Housing Executive or housing association property, is that an amendment that we are keen for the Department to pursue?
Members indicated assent.
1286. Mr A Campbell: Antisocial behaviour was found to be a controversial area in the consultation. The only difficulty would be whether it would be worth taking it forward fully in future legislation, rather than putting something in the Bill. However, we are happy to look at that now.
1287. Mr F McCann: At a point when we are trying to bring the private-rented sector more into line with other social housing providers, that makes sense.
1288. The Chairperson: Yes. Given that LANI suggested it, and it feels somewhat hard done by, rightly or wrongly, by aspects of the Bill, that may improve its position —
1289. Mr A Campbell: Stephen has just whispered in my ear: "definitely for future legislation". There may be quite a few difficulties around the whole issue.
1290. The Chairperson: OK. Will the Department come back to the Committee during the passage of this Bill with an explanation for why that cannot be done now and an assurance that it will be looked at?
1291. Mr A Campbell: Sure; absolutely.
1292. The Chairperson: I appreciate that there are minefields with aspects of the proposal, but that would at least allow the Committee to go back to LANI and say that we took that suggestion on board.
1293. Mr F McCann: One of the worst problems in many areas is heavy vandalism. There seems to be an impression that there is a policy of not pursuing people who cause millions of pounds of damage each year. There is nothing in the Bill about that. I know that the Housing Executive has procedures for that, but it just seems that it is thought to be natural for vandalism to take place. Has any consideration been given to how to pursue vandals in areas where they make life hell for people and cause substantial damage to communities?
1294. Mr Baird: The sanctions that the Housing Executive, as a housing authority, can impose on people are bound up with housing issues. That means that it can deny people access to housing and remove people from social housing. It can deny such people certain facilities, such as the right to buy or to exchange or transfer. Essentially, however, legal sanctions and punishing people through the law are a police matter. I suspect that vandalism is a matter for the police rather than the housing authority.
1295. Mr F McCann: Obviously, the police will say that they have a duty to deal with such matters. However, if Housing Executive or housing association property is being continually damaged — some people knock walls down with hammers in front of PSNI and Housing Executive personnel — the people doing that should be pursued. They should be forced to pay for the damage or their families should be made aware of what they are doing. Not even the Housing Executive's mediation network deals with such incidents.
1296. Mr Baird: There is scope in the legislation for the Housing Executive to deal with any kind of behaviour that affects its property or its tenants. If an individual is damaging Housing Executive property or making life uncomfortable for other tenants, the Housing Executive has scope to take certain actions against that individual, such as an injunction. A wider range of housing-related sanctions is available to the Housing Executive if the individual concerned is a Housing Executive tenant, including denying access to housing or housing services. Those sanctions are, perhaps, more appropriate for that kind of behaviour than bringing the individual to court and fining or imprisoning them.
1297. Mr F McCann: That does not really answer the question. You say that the power is there, but in my experience, and certainly where I live, the Housing Executive has never used it. For example, where I live, two blocks of flats are being demolished. A man was murdered in one of those blocks. The bin chutes were demolished two or three times, and the Housing Executive refused to put them back up again because it was costing too much. The Housing Executive knew the people who were responsible but took no action against them. It wanted someone from the flats to stand up in court and identify the people responsible, but that was not going to happen.
1298. Mr A Campbell: I do hear from housing officers that it is very difficult to get evidence to back a case legally.
1299. Mr F McCann: We need to look at other ways of doing that. There is such a thing as a professional witness, whereby local community people or Housing Executive wardens can stand up and say that local tenants have told them that certain people were involved in vandalism, but that option has never been used.
1300. The Committee Clerk: Amendment PPP is a departmental amendment that the Housing Executive be empowered to promote community safety. Perhaps we can continue this discussion when we come to that amendment.
1301. The Chairperson: Clause 11 is "Duty to persons found to be homeless". It allows the Housing Executive's duty to homeless people to come to an end where applicants cease to be eligible for assistance. Stakeholders commented that they wanted to see clear referral procedures in place whereby ineligible applicants would be referred to a health trust. Stakeholders also sought a review of the impact of the clause.
1302. Disability Action suggested the only amendment. Proposed amendment YY would require the Housing Executive to have a continuous duty to provide homelessness support to people with fluctuating mental illness. That is a very specific amendment. Do you have any comment to make on that?
1303. Mr Baird: My understanding of what the stakeholder is getting at is that there are possibly some people who have mental illness issues but are not eligible for social housing. That may be where Disability Action is coming from. The answer is that if somebody is not eligible for housing assistance, they cannot be assisted through housing legislation. However, there is social welfare provision that allows for people who are particularly vulnerable to be provided with support. That is something that we are working on with our colleagues in the Health Department to ensure that people who are not eligible for the normal range of housing services will get support if they have some kind of severe impairment, such as mental health issues.
1304. The Chairperson: Is that irrespective of whether they are eligible for assistance?
1305. Mr Baird: If they are vulnerable to that extent, even if they are not eligible for the normal range of services and benefits, human rights considerations kick in. A welfare duty exists.
1306. Ms Lo: This is essentially correcting an anomaly in immigration law in respect of homelessness. It is really nothing to do with the mental health of local residents. Even with fluctuating mental health problems, a person can get homelessness assistance.
1307. The Chairperson: If you are eligible, you get it.
1308. Ms Lo: This is about people who become homeless and have also lost their jobs. Migrant workers have no recourse to public funds. If they have not worked for the full year, they do not get housing assistance.
1309. Such people can be helped in ways other than by referring them to social services. There is now a range of voluntary sector organisations that can help them. Yesterday, I was at the launch of a new project under the Northern Ireland Council for Ethnic Minorities (NICEM). It is like a one-stop shop for migrant workers. So, please think about voluntary sector assistance as well.
1310. Mr Baird: We will certainly take that on board.
1311. Mr F McCann: Mickey and I were at a Mencap event at which the Minister spoke about two months ago. It was said that a substantial number of people with learning difficulties are turned down for homeless status because of their inability to explain themselves. That should be taken into consideration, as should the way in which we can follow those people up and find out where they went.
1312. The Chairperson: Do members have anything further to say on that clause? No.
1313. We move to clause 12, which is entitled "Functions of Executive in relation to energy brokering". This clause allows the Housing Executive to develop a scheme for the provision of electricity, gas or oil to its tenants, subject to departmental approval. Proposed amendments ZZ and BBB, suggested by the Public Health Agency, are that the scheme should be available to tenants of other social and private landlords. Last week, the Minister commented that housing associations should be involved in the scheme, because they have not done anything in relation to that yet.
1314. Mr A Campbell: Actually, we did a bit of research and found that they have done some work. Some of them clubbed together. In sheltered housing especially, they made some progress and achieved in the order of 7p off in the pound. We hope that with the Housing Executive and housing associations working together it will be a much bigger sector.
1315. The Chairperson: That is happening organically without there being legislation on it.
1316. Proposed amendment AAA is about introducing a national home-heating oil fuel stamps scheme. That was suggested by the Chief Environmental Health Officers Group for Northern Ireland.
1317. Mr A Campbell: The difficulty with that is that the responses to the consultation on the fuel poverty scheme indicate that there is not agreement in councils as to whether they prefer a national scheme to the regional one. We have no objection in principle, but we would like to work with the councils to find out what their position is.
1318. The Chairperson: Is it really more relevant to the Department's fuel poverty strategy?
1319. Mr A Campbell: It does tie in with the amendments on heating. We are just not sure that there is a single council position. We are sympathetic to the idea, but we would like to do more work on it.
1320. The Chairperson: Proposed amendment CCC is a technical departmental amendment.
1321. Mr A Campbell: It is quite a simple amendment. The clause refers to oil, gas and electricity. The Housing Executive said that it wanted to do something about renewable energies, so we propose to expand the definition of energy to allow for that.
1322. The Chairperson: Fair enough. Are members happy with that amendment?
Members indicated assent.
1323. The Chairperson: Clause 13, "Functions of district councils in relation to energy efficiency", allows district councils to promote energy efficiency in residential accommodation in their districts. Proposed amendments DDD, FFF and GGG, suggested by NILGA, call for a clearer statement of councils' vires in the promotion of energy efficiency and in the development of energy brokering schemes to be included in the Bill.
1324. Mr A Campbell: Again, we are sympathetic to that idea but think that we need to consult and to confirm what councils feel about that, rather than rush in at this stage.
1325. The Chairperson: Proposed amendment EEE, also suggested by NILGA, is that fitness standards should include energy efficiency measures.
1326. Mr A Campbell: Work is ongoing, specifically in relation to the private-rented sector. However, we hope to expand that in the future.
1327. The Chairperson: To the social sector as well?
1328. Mr F McCann: So, that will not be part of this Bill?
1329. Mr A Campbell: No.
1330. Mr F McCann: Again, I reserve a right to come back on that.
1331. The Chairperson: Is the Committee generally content to leave that?
Members indicated assent.
1332. The Chairperson: No stakeholder comments were received in respect of clauses 14, 15, 16 and 17 or the schedule. Those parts of the Bill are largely technical in nature. The Department has nothing to add.
1333. A large number of other amendments were proposed. Proposed amendment HHH is that landlords should be required to be part of a redress/ombudsman scheme. That was suggested by the Chartered Institute of Housing. Has the Department given any consideration to that?
1334. Ms A Clarke: With regard to private landlords, because we will have a registration scheme and a dispute resolution service as part of the tenancy deposit scheme, the Department felt that those provide a fair degree of protection. Besides, there is no ombudsman scheme in Northern Ireland, so we would be starting from scratch. However, we think that we have a means to deal with those issues.
1335. The Chairperson: The tenancy deposit and registration schemes probably address the most significant problems.
1336. Ms A Clarke: I think that they do. Councils, in their role as enforcers, also work with the tenant and landlord.
1337. The Chairperson: Are members happy enough with that?
Members indicated assent.
1338. The Chairperson: Proposed amendment JJJ is that additional resources should be provided for councils to enforce the Private Tenancies Order. No prizes for guessing that that was suggested by NILGA.
1339. Ms Lo: Chair, you missed out proposed amendment III.
1340. The Committee Clerk: Sorry, you are right. I beg your pardon, Chairperson. I left that one out. I am sorry about that.
1341. The Chairperson: Well done, Anna. There are too many pieces of paper.
1342. Proposed amendment III is for provisions to be added to ensure that all vulnerable 16- and 17-year-olds have access to homelessness support. What is the position with that?
1343. Mr Baird: We looked at the possibility of including that sort of provision in the legislation, but the legislative draughtsman drew it to our attention that there is an existing power in housing legislation to specify by subordinate legislation groups of people that have priority need for homelessness assistance. An Order under the relevant housing legislation has been drafted, and that draft Order is with the Office of the First Minister and deputy First Minister.
1344. The Chairperson: Very good.
1345. Proposed amendment JJJ, suggested by NILGA, is that additional resources should be provided for councils to enforce the Private Tenancies Order. I am not sure how you can legislate for additional resources.
1346. Ms A Clarke: I wish that we could. We have attempted to address that concern in a number of ways, because we do want that Order to be properly enforced. The fixed penalty regime will be a significant help to councils in enforcement. The introduction of landlord registration, which we hope will be paid for by the landlords through the fee that we will charge, will give councils ready information about who and where landlords are. That makes enforcement so much easier. The Bill also includes information-sharing requirements across government about landlords, and so forth. We will come to those in due course. We are trying to make things easier for councils and, in doing so, reduce costs.
1347. The Chairperson: A simpler, streamlined regime with fixed penalties, in different respects, should lessen the burden.
1348. Ms A Clarke: It should.
1349. Mr Easton: Will landlords have to register annually or just once?
1350. Ms A Clarke: That issue is part of our ongoing consultation with stakeholders. It will be taken forward in regulations. The current thinking is that registration should be renewable, perhaps every three years, rather than a lifetime registration.
1351. The Chairperson: Proposed amendment KKK will permit the Housing Executive to serve tenancy documents by ordinary post. That amendment was proposed by the Department. We have been discussing the Bill for so many weeks that I cannot remember when we talked about it, but I heard an explanation of this amendment that sounded pretty sensible. Was the intention of the amendment simply to serve documents more quickly?
1352. Mr A Campbell: It is a question of resources.
1353. The Chairperson: There were no issues with proposed amendment LLL. I think that we are happy enough to support that amendment.
1354. Ms Lo: What happens if people say that they never received the mail? That happened to one of my constituents, who lost several passports and a visa stamp. Royal Mail offered £34 in compensation.
1355. Mr Baird: The legislation will state that the document is deemed to be served if it has been sent by ordinary post. That means that, as far as the law is concerned, it was served whether the individual received it or not. There is no argument to say that it was not received. When it is posted, it is served.
1356. Ms Lo: There are genuine cases, and post can be lost.
1357. Mr A Campbell: It is an issue that has come up in relation to speeding fines. The court can consider a situation in which a document was served but the person concerned did not receive the notice. The fact that that person was not available to receive the document would be considered by the judge or the magistrate as part of the proceedings.
1358. The Chairperson: I have heard that one piece of mail in every million genuinely goes missing. Tens of millions of pieces of mail are posted every day, and it is funny that the piece of mail that no one wants to receive is the one that goes missing. It is never the junk mail that you do not want that goes missing.
1359. Ms Lo: The Home Office sent that family six passports and all were lost.
1360. The Chairperson: Someone has them.
1361. Ms Lo: Exactly. Someone has noticed that the mail came from the Home Office and that it was bulky. It is not just about reissuing the passports; the family had to resend the original documents to the Home Office so that it could stamp the visas.
1362. Mr F McCann: Most of the letters go by second-class post, and, in some instances, mail can be tracked. Anna is right; whether we like it or not, there are occasions when mail goes missing. There has to be a mechanism that allows people to track what happened to the mail.
1363. Mr Baird: As Alastair says, that would be a matter for the court. As far as the legislation is concerned, the documents are deemed to have been served if sent by ordinary post. If something happens at the other end, the court will address that.
1364. The Chairperson: Proposed amendment LLL will allow the Housing Executive to provide indemnities for its officers to become involved in the governance of other organisations. What is the background to that amendment?
1365. Mr Baird: For various reasons, Housing Executive staff become involved with various outside bodies that carry out housing-related functions. Some of those bodies have the nature of a company and, under company law, should a company become insolvent, people who sit on the board can find themselves personally liable for that company's debts. That became an issue in England when a local authority employee was saddled with a huge bill when the company that he was working with became bankrupt. All we are trying to do is replicate the legislation brought in in England to provide cover in such circumstances. That is to ensure that members of Housing Executive staff do not find themselves charged with the debts of a company that they are working with.
1366. The Chairperson: It is difficult. One the one hand, we want to encourage district managers to become involved in tenants' and residents' associations. However, we do not want them to be left carrying the can.
1367. Ms Lo: I was a member of the South Belfast Partnership Board. The way to get around the problem is not to make the Housing Executive officer an office bearer, but to keep him or her as an observer, giving advice. That is preferable to incurring the indemnities.
1368. Mr F McCann: That already exists.
1369. Mr Baird: In some instances, that is how it is done. Not all the organisations that they are involved with are companies that can incur debts. However, in a small percentage of cases, the Housing Executive, for one reason or another, is obliged to have its staff sitting on the board of a company that theoretically can become bankrupt.
1370. The Chairperson: That makes sense.
1371. Let us move to proposed amendment MMM, which proposes that the requirement to gain entry before repossessing an abandoned social tenancy should be removed. To what purpose is that proposed by the Department? In some cases, there is no need to gain entry. The person is gone, but I presume that it would speed up the process.
1372. Mr Baird: It does speed up the process. For some reason, when the relevant legislation was drafted, there was a requirement that a landlord would have to make an entry, probably a forcible entry, into the home in order to secure it before he or she could start the procedure for repossession.
1373. In practical terms, it means that the Housing Executive would have to break down doors for no purpose and then replace the doors so that it can serve an abandonment notice. The Housing Executive says that, in such cases, it is obvious that the property has been abandoned, and unless it is obviously insecure, there is no need to enter the premises. It only slows down the procedure and incurs additional expenditure.
1374. The Chairperson: Are members happy enough with that?
Members indicated assent.
1375. The Chairperson: Let us move on to proposed amendment NNN. The Northern Ireland Federation of Housing Associations has proposed that the rent surplus fund for housing associations be repealed. What is that all about?
1376. Mr Baird: The rent surplus fund is a relic of the days when different kinds of funding arrangements applied to registered housing associations. Nowadays, there is no benefit to be gained from showing those funds in an association's accounts. It is a bureaucratic burden that serves no purpose. The associations have asked us to have that repealed.
1377. The Chairperson: I am sorry; it is actually a departmental amendment that housing associations have supported. Are members happy enough?
Members indicated assent.
1378. The Chairperson: In proposed amendment OOO, the Department wants to enable the Housing Executive to work in partnership with other bodies. Does it not do that already? Why is there a need for an amendment?
1379. Mr Baird: The Housing Executive does, from time to time, work in partnership with other bodies, whether for regeneration, health or welfare purposes.
1380. The Chairperson: Does that amendment put that partnership on a legal footing?
1381. Mr Baird: Essentially, it is to put those arrangements on a legal footing, because the Housing Executive feels that it does not have statutory cover for that sort of activity.
1382. The Chairperson: Are members content?
Members indicated assent.
1383. The Chairperson: In proposed amendment PPP, the Department proposes that the Housing Executive be empowered to promote community safety.
1384. Mr Baird: The Housing Executive has been working in that area for a number of years. For example, the Housing Executive will contribute to schemes that provide security measures for elderly or vulnerable people. However, it feels that it does not have any specific statutory authority to do so. The amendment is simply to provide the Housing Executive with cover.
1385. There is another element. As a result of the recently introduced Justice Bill, there will be a duty on bodies, including the Housing Executive, to promote community safety in their areas. We feel that the power to do that will sit well with that new duty that will be imposed on the Housing Executive.
1386. Ms Lo: It is good to see joined-up working.
1387. The Chairperson: Yes, it is. I will believe it when I see it. Are members happy enough with that?
Members indicated assent.
1388. The Chairperson: In proposed amendment QQQ, the Department proposes to bring forward guidance for the courts on how tenants' antisocial behaviour should be taken into account in connection with secure social tenancy repossession proceedings.
1389. Mr Baird: We initially included that in our consultation on the Bill. The Housing Rights Service felt that our proposals were one-sided, in that we were initially suggesting that judges would be required to have regard to the outcomes if a court failed to make an order for possession. In other words, a court was going to be required under the new legislation to take account of the interests of other tenants or, indeed, other people living in the area who were on the receiving end of that antisocial behaviour and what life would be like for them if a court did not make an order for possession against an antisocial tenant.
1390. The Housing Rights Service made the point that if courts were going to be required to have regard to such circumstances, they should also be required to have regard to the interests of a tenant and a tenant's family. In practice, any court would look at that as part of the proceedings, so we saw no harm in amending our original proposals to incorporate that.
1391. In fact, a recent legal decision in England emphasised the importance of the courts having regard to the impact that a possession order would have on a tenant or any vulnerable members of his or her household. Therefore, we feel that that amendment will work well with the law as it is now interpreted.
1392. The Chairperson: In proposed amendment RRR, the Department proposes to amend the Bill to extend the notice to quit for certain private tenancies. When a tenancy is less than five years, for example, the notice to quit will be four weeks; when it is between five and10 years, the notice will be eight weeks; and when a tenancy is over 10 years, the notice to quit will be 12 weeks. What is the thinking behind that?
1393. Ms A Clarke: When we were developing our strategy for the private-rented sector, we found that security of tenure was an issue that concerned many people. We discussed that at length and decided that what we could do easily was to give tenants a decent time to find alternative accommodation if they had been living in a private tenancy for a long time, and the landlord needed to repossess the house. That seemed to be a matter of sense and justice. The notice to quit is generally 28 days for private tenancies. We thought it only fair to extend that period and recognise the length of tenancies in an attempt to help security of tenure. The amendment does not deal with the entire issue, because it is a difficult area.
1394. The Chairperson: Do members have any thoughts on that?
1395. In proposed amendment SSS, the Department proposes to alter the maximum fine for failing to register an HMO to £20,000. That brings us into line with other jurisdictions. Do members support that increase?
Members indicated assent.
1396. The Chairperson: Proposed amendment TTT states that the Department proposes to amend the Bill to housing benefits and rates information to be shared with relevant bodies.
1397. Ms A Clarke: Through that amendment, the Department aims to put a duty on the Department of Finance and Personnel's Land and Property Services and the Housing Executive to provide information to district councils about rates and housing benefit for private tenancies. That will help with enforcement.
1398. The Chairperson: Is all of that legally enforceable?
1399. Ms A Clarke: That would make the information gateway in legislation. Provided the information is properly protected and managed, there should be no difficulty with it.
1400. The Chairperson: Are members happy enough?
Members indicated assent.
1401. The Chairperson: Proposed amendment UUU states that the Department proposes to amend the Bill so that tenancy deposits will automatically and immediately be repaid to tenants "where landlords breach tenancy legislation".
1402. Ms A Clarke: That proposed amendment is being discussed with the Department of Justice, and we hope to bring forward an amendment to ensure that tenants get their deposit back, or it is paid into, and repaid from, a scheme.
1403. The Chairperson: Therefore, is it a possible amendment?
1404. Ms A Clarke: We hope to get that sorted out quickly.
1405. The Chairperson: Are members content?
Members indicated assent.
1406. The Chairperson: Are there any further comments from the Department? We will probably return to this in the formal clause-by-clause scrutiny. I thank the departmental officials. That was very useful; we discussed many good subjects. Are members content to commence formal clause-by-clause scrutiny of the Bill next week?
Members indicated assent.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Alex Easton
Mr John McCallister
Witnesses:
Mr Stephen Baird |
Department for Social Development |
1407. The Chairperson (Mr Hamilton): The Committee concluded its informal review of the clauses and proposed amendments to the Housing (Amendment) (No.2) Bill on 9 December 2010. At that meeting, the Committee also agreed that it was content to begin formal clause-by-clause scrutiny of the Bill.
1408. Joining us are Alastair Campbell, Stephen Baird and Angela Clarke from the Department's housing division. You are all very welcome back.
1409. Included in members' papers is a revised copy of the clause-by-clause scrutiny table for the Bill and a copy of the report from the Examiner of Statutory Rules on the associated subordinate legislation. Is the Committee content to note the Examiner's report?
Members indicated assent.
1410. The Chairperson: The Department has tabled a response to some of the queries that were raised by the Committee during its informal review of the clauses. Members should refer to their Bill folder, which has been updated with all the submissions received during Committee Stage.
1411. During this session, the Committee will step through the clause-by-clause table, and members will be asked to give their final views on the clauses and proposed amendments. If consensus cannot be reached on a clause or an amendment, the Committee will divide. In some cases, we may have to park it in order to get clarification and to come back to it. We all have everything that we need. Therefore, we shall begin.
Clause 1 (Abolition of statement of tenancy terms)
1412. The Chairperson: Clause 1 abolishes the requirement for landlords to provide tenants with a statement of tenancy terms. Stakeholders who commented on the clause generally welcomed it, but they wanted assurances in respect of the level of information that would be supplied to tenants in their rent books. Thus, the only amendment that was proposed would add additional Assembly scrutiny to the regulations relating to the provision of rent books. The Committee agreed informally that it did not support the amendment, which would change the level of Assembly scrutiny associated with the provision of information in rent books from negative to affirmative resolution.
1413. Does the Department have any further comment to make on the clause? Do members wish to raise any matter or query? No.
Question, That the Committee is content with the clause, put and agreed to.
Clause 1 agreed to.
Clause 2 (Tenancy deposit schemes)
1414. The Chairperson: Clause 2 allows the Department to make regulations to establish a tenancy deposit scheme that will safeguard the deposits of tenants in the private-rented sector. Members will recall that a private landlords group opposed the provisions and its representatives indicated that they felt that such measures were unnecessary and may be expensive and bureaucratic. Other stakeholders welcomed the clause but suggested some amendments. Those include proposed amendments B and C. The Committee agreed informally that it supported amendments that would make the establishment of a tenancy deposit scheme a duty, not just a power, and would include a time frame for the establishment of the scheme. The Department has not provided the wording of the amendment, which replaces "may" with "shall" and incorporates a time frame. Does the Department have any further comment to make?
1415. Ms Angela Clarke (Department for Social Development): No, Chairperson. It has been agreed in principle. We will submit the draft clause as soon as possible.
1416. The Chairperson: OK. We cannot formally consider the amendment at this stage. If members are content, we will move on and come back to it when we get the wording.
Members indicated assent.
1417. The Chairperson: The Committee agreed informally that it would not support a number of other suggested amendments. Members did not support proposed amendment D, as a change to the time period for the provision of information to tenants on deposits schemes would lead to a mismatch with other tenancy legislation. Members also rejected proposed amendments E, F, J and K, as the Department advised that those proposals, which include dispute resolution and the use of secure accounts, were already included in the Bill. Members also noted the Department's assurances that it will regulate the scheme and that district councils will enforce it. Consequently, the Committee agreed informally not to support proposed amendments G and H. The Committee informally expressed its support for the scheme and, thus, rejected proposed amendment I, which was to throw out the entire tenancy deposit scheme.
1418. Does the Department have any further comment to make?
1419. Ms A Clarke: As regards regulation, I clarify that the Department will not regulate but will approve scheme providers.
1420. The Chairperson: OK. Therefore, perhaps "regulation" is the wrong term. What about "monitoring"?
1421. Ms A Clarke: We will certainly be monitoring; absolutely. However, because the companies are private companies, they will be regulated separately. The Department will approve and, certainly, monitor them.
1422. The Chairperson: Fair enough. Is there a need for formal regulation?
1423. Ms A Clarke: I suppose that, because they are handling money, they will be subject to the normal regulation of any company or body that handles money. Certainly, the Department will set down its requirements. Companies will have to demonstrate that they can meet those requirements. We will then monitor how they are meeting them. Companies can operate only when they have our approval.
1424. The Chairperson: Do members wish to raise any queries or issues? No.
1425. Is the Committee content to state formally that it does not support amendments D, E, F, K, G, H, I and J?
Members indicated assent.
1426. The Chairperson: The Department has tabled a response on proposed amendment L that sets out information on the SmartMove bond scheme for vulnerable tenants who find it difficult to pay a deposit. Will the officials give us some information on that for the record?
1427. Ms A Clarke: SmartMove currently provides a number of schemes across Northern Ireland, working with landlords and providing bond or rent guarantee schemes. It also provides practical tenancy support for vulnerable or low income tenants. It is funded through the Housing Executive. At the moment, we are seeking to formalise that a bit more, to be clear about the services that we want for those vulnerable people, and to make those services more widely available. That was indicated as part of our strategy for the private-rented sector as well.
1428. The Chairperson: Are members happy enough with that explanation?
Members indicated assent.
1429. The Chairperson: Do members wish to raise any further points? No. We are content with that assurance about SmartMove and what it does. Therefore, is the Committee content not to support an amendment?
Members indicated assent.
1430. The Chairperson: The Department has not tabled the wording of proposed amendment UUU, which would allow tenants to recoup their deposit where a landlord breaches tenancy legislation. Is the Committee content to defer consideration of that amendment until the wording is available?
Members indicated assent.
1431. The Chairperson: Is the Committee content to defer consideration of clause 2, pending responses on amendments B and C, which is the "may" to "shall" amendment, and amendment UUU, which we have just spoken about?
Members indicated assent.
Clause 3 (Power of entry to inspect dwelling-house)
1432. The Chairperson: Clause 3 confers powers of entry on persons authorised by district councils to carry out fitness inspections. Stakeholders welcomed this clause but suggested some amendments. Those are proposed amendments M, N, O and P.
1433. The Committee agreed informally that it did not support proposed amendment M, which would extend powers of entry to Part IV of the Private Tenancies (Northern Ireland) Order 2006, as the Department advised that that was already included in the Bill. The Committee also agreed informally that it would not support proposed amendments N and O, which would change or give legal force to certain housing fitness standards. The Committee noted the Department's assurances that consultation on fitness standards for private housing is ongoing and that legislation could well be expected in the next mandate. Furthermore, the Committee agreed informally that it would not support proposed amendment P, as the Department is consulting with district councils on the cost of specialist reports.
1434. Does the Department have any further comment to make? Is that a fair summary?
1435. Ms A Clarke: That is fine.
1436. The Chairperson: Do members wish to raise any points about the proposed amendments or the clause? No.
Question, That the Committee is content with the clause, put and agreed to.
Clause 3 agreed to.
Clause 4 (Power to modify Articles 42 to 45)
1437. The Chairperson: Clause 4 allows the Department to modify provisions relating to the determination of private sector rents. There was little comment on this clause. The Landlords Association of Northern Ireland (LANI) expressed opposition to the principle of any private rent controls by Government. The Department advised that the rent controls apply to a very few private properties in Northern Ireland. The Department has tabled information, which we asked for, on the number and type of private tenancies subject to rent control. The Committee agreed informally that it would not support an amendment suggested by LANI that would remove all rent controls in the private sector.
1438. The Department has already given a response. Does it wish to comment further?
1439. Ms A Clarke: No.
1440. The Chairperson: Does any member wish to comment? No.
1441. Is the Committee content not to support the suggested amendment to the clause?
Members indicated assent.
1442. The Chairperson: Do members wish to express any other views on clause 4? No.
Question, That the Committee is content with the clause, put and agreed to.
Clause 4 agreed to.
Clause 5 (Registration of landlords)
1443. The Chairperson: Clause 5 allows the Department to make regulations to provide for the registration of private landlords. The regulations create new offences in relation to the provision of false information, failure to provide evidence of registration and the letting of houses by unregistered persons.
1444. There were some suggested amendments. The Committee agreed informally to support proposed amendment R, which is a technical amendment that ensures that landlord registration is compulsory. Does the Department wish to comment?
1445. Ms A Clarke: No.
1446. The Chairperson: Is the Committee content to support amendment R?
Members indicated assent.
1447. The Chairperson: We move to proposed amendments S and T. The Department has not tabled the wording of an amendment that would make the establishment of a landlord registration scheme a duty, not just a power, and would set out a related time frame. Is the Committee content to defer consideration of those proposed amendments, pending receipt of the wording of the amendment?
Members indicated assent.
1448. The Chairperson: On proposed amendments U and AA, the Committee asked the Department to explore an alternative fines structure and a possible mechanism whereby district councils can recover court costs associated with tenancy prosecutions. Does the Department have any comment to make?
1449. Ms A Clarke: Unfortunately, Chairperson, we are still discussing that with the Department of Justice. We have not been able to resolve it completely yet, but we hope to do so very shortly.
1450. The Chairperson: OK. Are members content to defer consideration of those proposed amendments until we get that information?
Members indicated assent.
1451. The Chairperson: We move to proposed amendments V, DD, EE, FF, GG and HH. The Committee informally rejected a number of proposed amendments that would have stipulated the information to be recorded in the register and set out the degree to which the register would be in the public domain and which authority would manage it. The Committee noted departmental assurances that those matters would be dealt with in regulations. Does the Department have any further comment to make?
1452. Ms A Clarke: No.
1453. The Chairperson: If there are no comments from members, is the Committee content not to support those amendments?
Members indicated assent.
1454. The Chairperson: We move to proposed amendment W. The Committee informally rejected an amendment that would link the register to a dispute resolution mechanism. The Committee noted that such a mechanism is to be in place for the tenancy deposit scheme.
1455. On proposed amendment X, the Committee informally rejected an amendment to link the register to a housing fitness standard. The Committee noted departmental assurances that work is ongoing in respect of the development of a revised private dwelling fitness standard.
1456. On proposed amendment Y, the Committee informally rejected an amendment to require councils to provide training and advice for landlords, as the Department advised that that already occurs.
1457. On proposed amendment Z, the Committee informally rejected an amendment relating to the sharing of tenancy information, as that is the subject of a separate departmental amendment, TTT, which we will come to later.
1458. On proposed amendments BB and CC, the Committee informally rejected amendments from LANI that would lead to the removal of the landlord register or the elimination of registration costs for landlords.
1459. Does the Department wish to comment on any of those proposed amendments?
1460. Ms A Clarke: No.
1461. The Chairperson: As members do not have any comments, I take it that we are not supportive of any of those proposed amendments.
Members indicated assent.
1462. The Chairperson: Is the Committee content to defer consideration of clause 5, pending responses on amendments S, T, U and AA?
Members indicated assent.
Clause 6 (Fixed penalty for certain offences)
1463. The Chairperson: Clause 6 would allow landlords who have breached registration regulations or the tenancy deposit scheme to avoid prosecution by paying a fixed penalty. Stakeholders suggested a number of amendments.
1464. We will address proposed amendments II and KK first. The Committee agreed informally that it would defer consideration of changes to the level of fixed penalties associated with tenancy offences, pending a detailed response from the Department on that issue. As a detailed response is awaited, are members content to defer consideration of those proposed amendments until we get that information?
Members indicated assent.
1465. The Chairperson: On proposed amendment JJ, the Committee agreed informally that it would not pursue an amendment to introduce rent penalty notices, as that was the subject of consultation by the Department with stakeholders. Is there anything further on that from the Department?
1466. Ms A Clarke: That work is ongoing.
1467. The Chairperson: If there are no comments from members, is the Committee content to confirm that it will not support that amendment?
Members indicated assent.
1468. The Chairperson: On proposed amendment LL, the Committee also informally accepted departmental assurances that penalties would be the subject of ongoing review and that an amendment to introduce a statutory review was unnecessary. If there are no further comments from the Department, are members content not to support that amendment?
Members indicated assent.
1469. The Chairperson: Is the Committee content to defer consideration of clause 6, pending a response on amendments II and KK, which relate to the fines and costs issue?
Members indicated assent.
Clause 7 (Regulations)
1470. The Chairperson: Clause 7 requires that regulations relating to tenancy deposit schemes, determination of rents and landlord registration be subject to draft affirmative resolution. A stakeholder suggested an amendment, which is duplicated in clause 1, that rent book regulations should be subject to draft affirmative resolution rather than negative resolution. Does the Department have any further comment to make?
1471. Mr Alastair Campbell (Department for Social Development): We might have to make a minor amendment consequential to that, to ensure the inclusion of the duty and power mentioned, but it will be a technical change.
1472. The Chairperson: I understand. If there are no comments from members, I suggest that we defer consideration of clause 7, pending receipt of any consequential amendment.
Members indicated assent.
Clause 8 (Houses in multiple occupation: evidence of family relationship)
1473. The Chairperson: Clause 8 allows the Housing Executive to require residents of a house that is believed to be an HMO to provide evidence of family relationships. Where evidence is not supplied, the Housing Executive is empowered to treat the house as an HMO. Stakeholders suggested some amendments.
1474. The Committee agreed informally not to support proposed amendment NN, which would require HMOs to comply with fitness standards and other standards. The Committee felt that, pending a revision to the private housing fitness standard, the current HMO standard was sufficient.
1475. The Committee informally accepted assurances from the Department that guidance would be provided in respect of the type of evidence that can be accepted to establish family relationships. Thus, the Committee agreed informally not to pursue proposed amendments OO and PP.
1476. Does the Department have any further comment to make?
1477. Ms A Clarke: No.
1478. The Chairperson: If there are no comments from members, is the Committee content not to support those amendments?
Members indicated assent.
1479. The Chairperson: Therefore, I seek the Committee's agreement that it is content with clause 8.
Question, That the Committee is content with the clause, put and agreed to.
Clause 8 agreed to.
Clause 9 (Withholding of consent to mutual exchange of secure1 tenancies)
1480. The Chairperson: Clause 9 inserts a new ground on which social landlords can withhold consent to the exchange of tenancies. The Committee has asked the Department to consider amendments that might allow the use of a wide range of non-antisocial behaviour information to be used in decision-making. The Department has made a response to the Committee's suggestion in which it indicates that the Bill is to be amended to allow convictions for offences that relate to the use of a home for immoral or illegal purposes to be considered in the evaluation of requests for the mutual exchange of social secure tenancies.
1481. Having looked at the Department's response, I welcome the fact that the scope has been widened. I presume that the phrase "immoral or illegal" comes from somewhere. We have discussed lots of weird and wonderful things in the Committee, and I do not want a discussion about what is moral and what is not moral, because we could be here for a long time. However, where does that phraseology come from?
1482. Mr Stephen Baird (Department for Social Development): It is lifted straight from the existing grounds for the possession of a secure tenancy. That phraseology is used in existing legislation.
1483. The Chairperson: What does it mean in practice if the clause is amended?
1484. Mr Baird: Essentially, we are talking about convictions for certain offences, namely any offence that involves using the accommodation for illegal or immoral purposes, and convictions for any indictable offence. Those will be additional grounds on which a landlord can withhold consent to a mutual exchange of tenancies.
1485. The Chairperson: We talked last week about records of behaviour. Is that included in the Department's proposal?
1486. Mr Baird: That type of thing probably lies outside the parameters of what we are looking at. We need to be in a position to demonstrate that there has been antisocial behaviour. The best way to do that is through a conviction or some kind of judicial order of the court, because such behaviour will have been proven beyond any argument.
1487. Ms Ní Chuilín: There was an acceptance at one stage that complaints that have been upheld or recognised by, for example, the Housing Executive that are pending court proceedings may also be acceptable. In my experience, such court cases can take over two years and are constantly put back.
1488. Mr Baird: Those situations should be catered for by the existing legislation, which states that the landlord can withhold permission to an exchange of tenancies where an order for possession is in force or is pending.
1489. Ms Ní Chuilín: So, those that are pending come under the existing legislation.
1490. Mr Baird: Yes, they do. We should be all right there.
1491. The Chairperson: I am going back to this, because it is too tempting. What is an immoral offence?
1492. Ms Ní Chuilín: You should be delighted that Fra McCann is not here, because he could give you examples — for the Hansard report: I am not saying that Fra is immoral.
1493. The Chairperson: I am not someone who has come up the Lagan in a bubble this morning. I am just curious.
1494. Mr Baird: I suspect that the legislators had in mind the running of a disorderly house or brothel, or possibly the trafficking of illegal drugs.
1495. Ms Ní Chuilín: Steady on, Chairperson.
1496. The Chairperson: I was going to ask whether those properties would have to be registered separately, but we will move swiftly on.
1497. Do members wish to raise any further points? We recognise that the Department is moving in the direction that the Committee asked it to. We appreciate what has been done and that it is not a simple or straightforward issue with which to deal. Nevertheless, that has assuaged some of the concerns that I and others had. We await the drafting of an amendment.
1498. Are members content to defer consideration of clause 9 until we are in receipt of the wording of the Department's amendment?
Members indicated assent.
1499. The Chairperson: We are happy enough with where that amendment is going.
Clause 10 (Disclosure of information as to orders, etc. in respect of anti-social behaviour)
1500. The Chairperson: Clause 10 provides for the disclosure of certain information about antisocial behaviour, which may then be used in connection with an application to buy a social home; an application to exchange a tenancy; the allocation of accommodation; or homelessness assistance. As I said when we discussed clause 9, the Committee has asked the Department to consider amendments that might allow the disclosure of a wide range of non-antisocial behaviour information to be used in decision-making. As with clause 9, we need to defer consideration of the amendment, pending receipt of the wording of the Department's amendment. Are members content to do that?
1501. Mr A Campbell: I do not think that we need to change clause 10. Clause 9 is the driver, and, as we discovered, the information mentioned in clause 10 is already available, so we do not need to legislate in order to make it available. We can already access it via the changes to clause 9.
1502. The Chairperson: Oh yes, I understand.
1503. The Committee also asked the Department to consider amendments that would permit the sharing of information on antisocial tenants with private landlords. The Department responded citing data protection issues and offering assurances that that would be considered for the next housing Bill. Do officials want to explain that a bit more?
1504. Mr Baird: Simply to say that the Department does not object to that in principle and that it is happy to pursue it.
1505. The Chairperson: Are you saying that it needs more work?
1506. Mr Baird: It may need a considerable amount of work.
1507. The Chairperson: Nevertheless, having sought assurance, we can safely say that the Department is travelling in that direction.
1508. Mr Baird: Yes.
1509. The Chairperson: OK. So, can we agree clause 10 because it does not need to be amended?
1510. Mr A Campbell: It is clause 9 that needs to be amended.
1511. The Chairperson: I suggest that, to be on the safe side, we park this one and defer consideration. We can tidy it up when we have the wording.
Members indicated assent.
1512. The Committee Clerk: Other issues were raised, such as a suggestion about prescribed officers. If the Committee is content with information about injunctions and such like being shared, although there will probably be no need to do so, it might take the view that prescribed persons should have such information, which is in the public domain anyway. However, if the Committee decides that it wants other sorts of information to be shared, it might not want that information to be available to prescribed persons. The amendment to clause 9 is a paving amendment for the others.
1513. The Chairperson: We will just park it anyway.
Clause 11 (Duty to persons found to be homeless)
1514. The Chairperson: Clause 11 allows the Housing Executive's duty to homeless people to come to an end where applicants cease to be eligible for assistance. Stakeholders commented that they wanted to see clear referral procedures in place whereby ineligible applicants would be referred to a health trust. Stakeholders also sought a review of the impact of the clause.
1515. On proposed amendment YY, members noted assurances from the Department in respect of referral procedures for homeless people with mental illnesses. Consequently, the Committee agreed informally that it would not support an amendment setting out that the Housing Executive was to have a continuous duty to provide homelessness support to people with fluctuating mental illness. Is that still the Committee's position, and are we content to confirm that we do not support that amendment?
Members indicated assent.
1516. The Chairperson: If members do not wish to comment further, I will seek the Committee's agreement that it is content with clause 11.
Question, That the Committee is content with the clause, put and agreed to.
Clause 11 agreed to.
Clause 12 (Functions of Executive in relation to energy brokering)
1517. The Chairperson: Clause 12 allows the Housing Executive to develop a scheme for the provision of electricity, gas or oil to its tenants, subject to departmental approval. Stakeholders suggested some amendments, which are listed as proposed amendments ZZ, AAA and BBB. The Committee noted that housing associations are already undertaking limited energy brokering for the benefit of their tenants and that there was not unanimous support among councils for a national home-heating oil saving stamp scheme. Therefore, the Committee agreed informally that it would not support amendments relating to those issues. Are members still happy with that position, and are we content to affirm that we do not support those amendments?
Members indicated assent.
1518. The Chairperson: We move to proposed amendment CCC. The Committee agreed informally that it would support a technical departmental amendment to ensure that all types of energy could be part of a brokering arrangement by the Housing Executive. Are members content to support proposed amendment CCC?
Members indicated assent.
1519. The Chairperson: Do members wish to express any other views on the clause? No.
Question, That the Committee is content with the clause, subject to the Department's proposed amendment, put and agreed to.
Clause 12, subject to the Department's proposed amendment, agreed to.
Clause 13 (Functions of district councils in relation to energy efficiency)
1520. The Chairperson: Clause 13 allows district councils to promote energy efficiency in residential accommodation within their own districts. Stakeholders suggested amendments, including DDD, FFF and GGG. The Committee noted departmental assurances that the Department is continuing to consult on energy efficiency measures with councils. Therefore, the Committee agreed informally that it would not support amendments to alter councils' vires in that regard. On proposed amendment EEE, the Committee agreed informally that, pending departmental consultations on fitness standards and anticipated legislation in the next mandate, it would not support an amendment to revise the fitness standard to incorporate energy efficiency measures. If the Department or members do not wish to comment further, are members content to affirm the position that we do not support those amendments?
Members indicated assent.
Question, That the Committee is content with the clause, put and agreed to.
Clause 13 agreed to.
Clauses 14 to 17 agreed to.
Schedule
1521. The Chairperson: As with clauses 14 to 17, no stakeholder comments were received on the schedule to the Bill, which is also largely technical in nature. The Department proposed amendment NNN, which would repeal the provisions relating to the rent surplus fund for housing associations. The Committee agreed informally to support that amendment. The Department said that that was an obsolete fund, and that is fair to say. The amendment was also supported by the Federation of Housing Associations. Are members content to support the amendment, in line with the wording in the clause-by-clause scrutiny table?
Members indicated assent.
Question, That the Committee is content with the schedule, subject to the Department's proposed amendment, put and agreed to.
Schedule, subject to the Department's proposed amendment, agreed to.
1522. The Chairperson: There are a slew of other proposed amendments, which we will now go through. There are nearly as many other amendments as those that are attached to the clauses in the Bill.
1523. On proposed amendment HHH, the Committee noted that the tenancy deposit scheme is to include a dispute resolution mechanism. Therefore, it agreed informally that it would not support an amendment that would introduce a redress/ombudsman scheme for private tenancies. Are members content to reaffirm the position that we will not pursue that amendment?
Members indicated assent.
1524. The Chairperson: On proposed amendment III, the Committee noted that a statutory rule has been drafted to ensure that all vulnerable 16- and 17-year-olds have access to homelessness support. That is currently being considered by the Executive. Therefore, the Committee agreed informally that it would not support a related amendment to the Bill. Are members content to affirm that the Committee is not supportive of that amendment?
Members indicated assent.
1525. The Chairperson: We move to proposed amendment JJJ. The Committee agreed informally that it would defer consideration of amendments that would alter the resources available to district councils to enforce tenancy legislation, pending a response from the Department to related queries on fines, legal costs and the recovery of those. There is nothing further on that at this stage. Are members content to defer consideration until we get the response?
Members indicated assent.
1526. The Chairperson: We move to proposed amendment KKK. The Committee agreed informally, with some reservations, to support a departmental amendment that would allow the Housing Executive to serve tenancy documents by ordinary post. Are members content to reaffirm that position and to support that amendment, in line with the wording in the table?
Members indicated assent.
1527. The Chairperson: We move to proposed amendment LLL. The Committee agreed informally to support an amendment that would allow the Housing Executive to indemnify its officers involved in the governance of other institutions and bodies. A response from the Department on the costs of that proposal has been tabled. The costs are estimated to be around £10,000 to £15,000 per annum.
1528. Mr A Campbell: It is a very rough estimate, based on an estimated number of people involved in the organisations and their estimated costs.
1529. The Chairperson: Are members content to support that amendment, in line with the wording in the table?
Members indicated assent.
1530. The Chairperson: We move to proposed amendment MMM. The Committee agreed informally to support an amendment that would allow the Housing Executive to repossess abandoned tenancies without first gaining entry. Are members content to support that amendment, in line with the wording in the table?
Members indicated assent.
1531. The Chairperson: The Committee considered proposed amendment NNN as part of its consideration of the schedule to the Bill, which we have just completed.
1532. We move to proposed amendment OOO. The Committee agreed informally to support an amendment that would allow the Housing Executive to work in legal partnership with other organisations. The wording of that amendment has yet to be received. I suggest that we defer consideration of that amendment, pending receipt of the wording from the Department. Do members agree?
Members indicated assent.
1533. The Chairperson: We move to proposed amendment PPP. The Committee agreed informally to support an amendment that would allow the Housing Executive to promote community safety. Are members content to affirm their support for the amendment, in line with the wording in the table?
Members indicated assent.
1534. The Chairperson: We move to proposed amendment QQQ. The Committee agreed informally to support an amendment that would allow the Department to develop further guidance for the courts on antisocial behaviour. Are members content to support the amendment, in line with the wording in the table?
Members indicated assent.
1535. The Chairperson: We move to proposed amendment RRR. The Committee agreed informally to support an amendment that would allow the Department to extend the notice to quit period for certain private tenancies. Are members content to support the amendment, in line with the wording in the table?
Members indicated assent.
1536. The Chairperson: We move to proposed amendment SSS. The Committee agreed informally to support an amendment that would allow the Department to increase the maximum fine for failure to register a house of multiple occupation to £20,000 for each property.
1537. Ms Ní Chuilín: Was an element of that being referred to the Justice Committee?
1538. The Chairperson: That was in respect of the failure to register, whereas this is for failure to register a property as an HMO. We dealt with that clause earlier, and we are awaiting a response from the Department, which is awaiting confirmation from the Department of Justice.
1539. Ms Ní Chuilín: OK; no worries.
1540. The Chairperson: We talked about £20,000 being the figure.
1541. The Committee Clerk: The Department clarified that the fine of £20,000 for HMOs is £20,000 for each property that is not registered. The fixed penalties that might be associated with non-registration would be for each landlord, not for each property.
1542. The Chairperson: Are members content to support that amendment, in line with the wording in the table?
Members indicated assent.
1543. The Chairperson: We move to proposed amendment TTT. The Committee agreed informally to support an amendment that would permit information on domestic rates and housing benefit to be shared by Land and Property Services and the Housing Executive with district councils to facilitate the enforcement of tenancy legislation. Are members content to support the amendment, in line with the wording in the table?
Members indicated assent.
1544. The Chairperson: We move to proposed amendment UUU. The Committee agreed informally, subject to further departmental advice, to support an amendment that would require landlords to repay deposits to tenants where the landlord is in breach of tenancy legislation. We discussed that briefly earlier. It was agreed to defer consideration of that amendment, pending receipt of the wording from the Department.
1545. Does the Department have any further comment on the Bill as drafted or on the proposed amendments or any further amendments? I am as surprised as everybody else that we raced through that. We have to catch our breath.
1546. Ms A Clarke: We will need to bring forward the amendments that were agreed. We will pursue those quickly.
1547. The Chairperson: Are there any other amendments that anybody wishes to introduce? No.
1548. Are members content to continue the formal clause-by-clause scrutiny of the Bill at our next meeting?
Members indicated assent.
1549. The Chairperson: Perhaps some colleagues could ensure that Fra is not here then, either. [Laughter.]
1550. Alastair, Angela and Stephen, thank you for your assistance today. You have been with us nearly throughout the festive season. I wish you and all of your colleagues in the division all the very best for Christmas and the new year. We will see you in the new year.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Mickey Brady
Mr Jonathan Craig
Mr Alex Easton
Mr John McCallister
Mr Fra McCann
Witnesses:
Mr Stephen Baird |
Department for Social Development |
1551. The Deputy Chairperson (Ms Ní Chuilín): I remind members that the Committee commenced formal clause-by-clause scrutiny of the Housing (Amendment) (No.2) Bill on 16 December 2010.
1552. Officials will brief the Committee on recent departmental responses and the clauses and proposed amendments to the Bill. With us today are Alastair Campbell, Stephen Baird and Angela Clarke from the Department for Social Development's housing division. Members have a revised copy of the clause-by-clause scrutiny table for the Bill.
1553. The Royal Institution of Chartered Surveyors has written to comment on the Bill. Are members content to note that correspondence?
Members indicated assent.
1554. The Deputy Chairperson: The Department has tabled the text of the outstanding proposed amendments. Members should refer to their Housing (Amendment) (No.2) Bill folder, which has been updated with all submissions received during Committee Stage. In this session, the Committee will continue to step through the clause-by-clause table. Members will be asked to give their final views on the clauses and proposed amendments, and the Committee will divide when a consensus cannot be reached. Have members received up-to-date copies of all relevant documentation?
Members indicated assent.
Clause 2 (Tenancy deposit schemes)
1555. The Deputy Chairperson: OK. We will start the clause-by-clause scrutiny, beginning with clause 2, "Tenancy deposit schemes". Clause 2 allows the Department to make regulations to establish a tenancy deposit scheme, which will safeguard the deposits of tenants in the private-rented sector.
1556. The Committee agreed at its previous meeting not to pursue amendments D to L. That, therefore, leaves amendments B, C and UUU for consideration. The Committee agreed informally that it supported amendments B and C, which would make the establishment of a tenancy deposit scheme a duty, not just a power, and would include a time frame for the establishment of the scheme. The Department has tabled the text of the proposed amendment, which replaces "may" with "shall" and incorporates a time frame of 18 months. That amendment is to clause 7. Are members content to defer discussion of this issue until clause 7 is agreed?
1557. The Committee Clerk: Members were concerned about the "may" and "shall" aspect and the time frame. I thought that that would be an amendment to clause 2, but the Department advises that it will be an amendment to clause 7. We could bank the issue for now, if members are content to do so, and move on to the other issues around clause 2.
1558. The Deputy Chairperson: Are members happy to do that and to move on to other issues?
Members indicated assent.
1559. The Deputy Chairperson: Those other issues start with amendment UUU. The Committee informally agreed, subject to further departmental advice, to support an amendment that would require landlords to repay deposits to tenants where the landlord is in breach of tenancy legislation. The Department has not tabled the text of the proposed amendment, so we need to discuss that further. Angela, will you lead on that?
1560. Ms Angela Clarke (Department for Social Development): We had hoped to have been able to provide a draft, but we have had a number of legal difficulties that we are very close to resolving. However, we have been unable to have them resolved for today. We are hopeful that we can have that done within a day or two; certainly by the end of the week. It is not a controversial clause; there have just been a few difficulties in drafting it. I appreciate that that poses difficulties for the Committee.
1561. The Committee Clerk: The Committee may want to indicate how it feels about the amendment generally. As the text is not available, the Committee may want to defer the decision on the clause entirely until it has that text in front of it.
1562. Mr Craig: That would be advisable.
1563. The Deputy Chairperson: Does the Department anticipate that the text will be with us next week?
1564. Ms A Clarke: I am hopeful of that. If we can provide it before the end of the week, we will. I hope that it will be before next week.
1565. The Deputy Chairperson: Will that amendment affect any other clauses?
1566. Ms A Clarke: No.
1567. The Deputy Chairperson: Are you sure about that?
1568. Ms A Clarke: Yes; absolutely.
1569. Mr F McCann: Are clauses 1 and 7 deferred?
1570. The Committee Clerk: It is only clause 2 that we are talking about.
1571. Mr F McCann: Sorry; clauses 2 and 7. Was everything not reliant on clause 7?
1572. The Committee Clerk: We will come to clause 7.
1573. The Deputy Chairperson: To recap: my understanding is that consideration of this part of clause 2 cannot proceed until next week when we get the text, but it will not have an impact on the rest of the items that are pertinent to clause 7.
1574. Mr Alastair Campbell (Department for Social Development): No; it is completely separate.
1575. The Deputy Chairperson: OK, so we can proceed. Is it fair to ask that that information be forwarded to the Committee Clerk as soon as possible, so that we have an opportunity to scrutinise it?
1576. Ms A Clarke: Yes; absolutely.
1577. The Deputy Chairperson: Are members happy with that?
Members indicated assent.
1578. The Deputy Chairperson: We are deferring the decision on clause 2, and we move on to clause 5.
Clause 5 (Registration of landlords)
1579. The Deputy Chairperson: Clause 5 allows the Department to make regulations to provide for the registration of private landlords. The regulations create new offences in relation to the provision of false information, failure to provide evidence of registration and the letting of houses by unregistered persons.
1580. At its previous meeting, the Committee agreed that it would not support amendments V through to Z or BB through to HH. The Committee agreed to support the Department's technical amendment R. That, therefore, leaves amendments S, T, U, AA and a further amendment proposed by the Department.
1581. As regards amendments S and T, the Department has tabled the wording of an amendment that will make the establishment of a landlord registration scheme a duty and not just a power. It includes a related time frame of 18 months. That amendment is also to clause 7. Are members content to defer discussion of this issue until clause 7 is agreed? It is very similar to the last piece of —
1582. Mr F McCann: There was a lot of discussion in and around clause 3 about amendment O, which is that the decent homes standard be made a legally enforceable standard for all public and private housing. We seem to have gone past that. Will that be coming up again?
1583. The Committee Clerk: I remind members that, at the meeting on 16 December, the Committee agreed a number of the Bill's clauses, including clause 3. The Committee agreed at that time to accept the Department's assurances that it is undertaking consultation with stakeholders on the development of a new fitness standard and expects to bring forward legislation in the next mandate. The Committee accepted that and agreed the clause.
1584. Mr F McCann: If my memory serves me right, I said in relation to a number of clauses that we would be coming back with amendments to different elements of the Bill. Can we check? The issue of standards was certainly one of the things that Simon and I had a lengthy debate about. I would not have accepted the present standards, regardless of what the Department is going to do, because I was arguing about coming back in the next mandate.
1585. The Deputy Chairperson: As with all legislation, Committee members have a right to bring their own amendments.
1586. The Committee Clerk: Yes. However, to be clear: the Committee, as a whole, agreed clause 3 and accepted the assurances that the Department gave. I understand that the member will probably bring forward his own amendment.
1587. The Deputy Chairperson: We will defer discussion until we reach clause 7.
1588. We are at amendments U and AA. The Committee asked the Department to explore an alternative fines structure and a possible mechanism whereby district councils can recover court costs associated with tenancy prosecutions. The Department indicates that there are some difficulties with the proposed amendments. Again, we ask the departmental officials to brief us on those issues. We will then determine our views on the proposed amendments. We will hear the views of the officials and then take our counsel from whatever information we receive.
1589. Ms A Clarke: We have consulted with the Department of Justice on whether there is any way in which we can legislate so that court costs can be recovered. The Department of Justice has given clear advice. Currently, there is provision in the legislation for prosecutors to have costs awarded, but those costs are set. The level of those costs is very low. Those are Magistrate's Court rules. They are made by the Magistrates' Courts Rules Committee, which is currently reviewing them and is minded to carry out some consultation on them. The matter is out of our hands at the moment. There is some provision to recover costs, but it is very low: £75 for a solicitor and £75 for counsel, if it is necessary. However, the issue is being looked at through the Department of Justice.
1590. In relation to looking at a different structure for penalties, we were very hopeful when we initially talked to the Department of Justice about the possibility of having a stepped approach to fixed penalties. However, when we got into detailed discussion with that Department, we found that it has also been looking closely at fixed penalties and is developing policy for what is still quite a new area. The Department of Justice felt that a fixed penalty in relation to landlord registration being one fifth and working out at £500 was high as it was. Certainly, it was the highest fixed penalty in the system. The Department of Justice was not entirely happy with that. However, because this is new and because we put up a good argument, it decided to accept that £500 fixed penalty. It was very reluctant to see any kind of stepped increase on that.
1591. Part of the rationale for that view is that fixed penalties are used as a means of getting someone to accept the responsibility and pay the liability and of moving on and avoiding court. If we increase that fixed penalty, we increase the risk of people saying that it is much too high, asking why they should pay it and deciding to take their day in court. The evidence from the courts is that the fines given there are much lower. Therefore, to increase the fixed penalty could be self-defeating. That was the view of the Department of Justice, and it was very unhappy and reluctant to see anything like that happening.
1592. The Deputy Chairperson: What are members' views?
1593. Mr F McCann: On the back of that evidence, what is the sense in going through with things like that? We are trying to legislate to ensure that the private-rented sector abides by whatever regulations are laid out. Having fixed penalties is one way to do that. We are being told that the magistrates will review it, but we do not know when that review will be done or at what level the fine will be afterwards. At the end of the day, they may still just give a very small fixed penalty fine for the private-rented sector.
1594. The Deputy Chairperson: Has a date been given for that review? Has it started?
1595. Ms A Clarke: Do you mean the review in relation to court costs?
1596. The Deputy Chairperson: Yes.
1597. Ms A Clarke: The Department of Justice has been unable to give me a fixed timescale. It is looking at it.
1598. In relation to fixed penalty levels, we must also bear in mind that, as the Department of Justice argues, it is all about proportionality. Is the fixed penalty proportionate to the crime of failure to register? The Department of Justice's view is that £500 is in line with that. It is the highest fixed penalty in the whole system at the moment.
1599. Mr Craig: I understand where the Department of Justice is coming from on that one. However, I share the cynicism that, if someone just cannot be bothered to register, he or she gets off with a £500 fine. Is that a one-off fine or will it be renewed after a period and imposed on the landlord again and again until he or she registers? If that is not the case, surely it will be completely ineffective?
1600. Ms A Clarke: We had similar concerns. The fixed penalty can be applied once if the landlord pays it. If that person remains unregistered, the council can give them another fixed penalty. Again, the Department of Justice would not be happy for more than two fixed penalties to be applied within a year. Its view is that the landlord should be taken to court. The Department will prepare guidance for councils to advise them on how to deal with landlords who persistently fail to register.
1601. We have proposed another amendment. That provision will allow a council to take to the civil court a landlord who is given a fixed penalty and pays it but remains unregistered. We can require that the civil court gives an order to that landlord to register. We could not do that through the criminal court because we are not allowed to fetter judges or magistrates.
1602. The Deputy Chairperson: We need to determine whether there will be ministerial intervention or a statement with regard to when the review will take place and what its outcomes and terms of reference will be.
1603. Ms A Clarke: I am advised by the Department of Justice that the Magistrates' Courts Rules Committee is looking at court costs. Apparently, the Department of Justice does not make those rules; the magistrates' committee makes them. It is in control on that issue.
1604. Mr Brady: The success of any legislation depends on how it is enforced. If this legislation is enforced properly and landlords are made aware that it will be enforced, that should, by definition, cut back on the number of landlords who do not register or comply. I have never been a councillor — thankfully or, perhaps, not thankfully. I am sure that many colleagues could comment on that. However, I cannot imagine that councils would necessarily want to spend time, energy and even money in pursuit of errant landlords, which is really what that amounts to. If the legislation is properly enforced initially and people are made aware that it will be enforced and that there could be two fixed penalties, hopefully, that will cut out that necessity for councils. I cannot imagine that they will necessarily want to pursue those cases.
1605. Mr Craig: They will not want to do so through the civil courts, especially.
1606. Mr Brady: That can be quite a long, costly and drawn-out process.
1607. The Deputy Chairperson: I suspect that that is similar to the point that you were going to make, Sydney.
1608. Mr S Anderson: That is my point exactly. We are waiting for the Department of Justice to come back about the recovery of costs through the criminal court. Obviously, there will be costs through the civil court.
1609. Mr Brady: Perhaps, I should have been a councillor. [Laughter.]
1610. Mr F McCann: You are too old now.
1611. Mr S Anderson: You were good to pick up on the fact that councils do not like to spend ratepayers' money on such matters. I should perhaps declare an interest as a member of Craigavon Borough Council.
1612. The Deputy Chairperson: I suspected that that would have been your argument.
1613. Mr S Anderson: Another point is that that should be tied down before it even reaches the point at which a case is taken to court.
1614. Ms A Clarke: From our work with council officials, we feel that fixed penalties are the way to go for matters such as non-registration and that court should be avoided if possible. There are other means by which to punish landlords who do not comply with other aspects of the law. The fixed penalty simply applies to registration. Therefore, we believe that fixed penalties are the best way to go. Furthermore, councils felt that £500 was actually quite an effective deterrent. As it is new, we do not know that. However, the fact is that to apply a £500 fine when someone is found not to have registered — the register will be publicly accessible — is quite hefty. Of course, a further fine can be applied, although we are restricted in the number of fines that can be applied.
1615. We feel that that is an effective way forward. As with any new scheme, we must have arrangements in place as soon as it gets off the ground in order to monitor its effectiveness. We work day and daily with councils. We review all the information that they collect. We will do exactly the same with regard to the new scheme. If it is seen not to be effective, we will need to move quickly to make it more robust if necessary. A lot of work will be done in advance to ensure that landlords are aware of the scheme. We will want to work with councils to ensure that they act swiftly when they discover that landlords are not registered, so that it is not seen to be an easy touch.
1616. The Deputy Chairperson: I think that it would be fair to assume that the Committee is not content. First, it has not received any assurances from the Minister as such, not even vis-à-vis the Department. You are saying that the matter is down to the magistrates' committee.
1617. Ms A Clarke: I clarify that the magistrates' committee relates to whether we can move the boundaries in relation to the recovery of court costs. One of the issues that the Committee asked us to look at was whether we could do anything to legislate that councils can recover some of the court costs if they take a case to court. The advice, and the provision that is in law already, is that councils can recover some of those costs, not an awful lot and not the full costs. Right across government, people are saying that it is very expensive to bring a case to court and that there must be a better way of recovering costs. That is why the issue is being looked at by the magistrates' committee.
1618. Mr Craig: I share our colleagues' fear that councils will not go down the civil court route. I could nearly predict that now, given the costs and implications of something going wrong and councils losing their costs. Is the Department of Justice being very clear that this is the largest fixed penalty that we can introduce? Is it adamant that it will not increase the penalty to £1,000?
1619. Ms A Clarke: The Department of Justice's argument is that most people will not pay a fixed penalty of £1,000 and will choose to go to court instead. If they go to court, the odds are that they will get off with a £50 or £60 fine. Therefore, it is cheaper, and the bulk of the costs are paid out of the public purse. There is a balance to be struck between introducing a fixed penalty that people will pay and that is effective and people not paying the fixed penalty and letting the public carry the cost. It is very unlikely that anyone will pay £1,000. People will choose instead to have their day in court.
1620. Mr Craig: What is the follow on? What happens if someone refuses to pay the £500 fixed penalty?
1621. Ms A Clarke: If someone takes the fixed penalty and then does not pay it, that person has to be taken to court for non-payment of a court fine. The Enforcement of Judgements Office gets involved in that.
1622. The Deputy Chairperson: Is that a civil court rather than a Magistrate's Court?
1623. Ms A Clarke: The non-payment of a court fine is handled through the criminal court.
1624. Mr Craig: Who bears the cost of that?
1625. Ms A Clarke: I imagine that the council will bear that cost.
1626. Mr Craig: It is a vicious circle.
1627. Mr F McCann: The Committee will know that this is one of the issues that I have been running at. We are opting for a light-touch registration over and above a registration scheme for all landlords. For me, a £500 fixed penalty fine is not enough. It makes a nonsense of the whole scheme, and it is in stark contrast to amendment SSS, which states that: "The Department proposes to amend the Bill to increase the maximum fine for failing to register a HMO to £20,000."
1628. As I have said before, I do not see any real difference across the whole private-rented sector. I would like to see a fixed penalty in the order of £5,000 for landlords who refuse to register. That will force landlords in the private-rented sector to register, because they will know that they will face a heavy fine if they do not.
1629. Ms A Clarke: Someone could decide not to pay a £5,000 fixed penalty because it is much too high and choose to go to court instead. All the evidence is that maximum fines are rarely, if ever, applied.
1630. Mr F McCann: Yes, but it could be a minimum fine. If we legislate, do magistrates have to abide by what is laid out in law?
1631. Ms A Clarke: It is very difficult to get even minimum fines. We are not allowed to fetter magistrate or court decisions. We tried for minimum fines previously but did not get anywhere with those either.
1632. The Deputy Chairperson: Fra, we could elongate this argument, but we need to come to a decision as a Committee. We need to establish whether the Committee is content to accept ministerial assurances of a review instead of the proposed amendments. Given the way that the conversation has gone, the Committee does not seem to be content with that. The other aspect is that, unfettered or otherwise, there is still the option of writing to the magistrates' committee to express this Committee's views. Furthermore, the Committee should have the facility to table its own amendment to the clause. From the Department's point of view, is there any legal reason why the Committee cannot do that?
1633. Mr A Campbell: There is a big difficulty around fines. Angela mentioned the fact that we cannot set a minimum fine. A fixed penalty notice is intended to get around that slightly because, in practice, magistrates tend not to award less than the amount of the fixed penalty notice. If we raise the amount of the fixed penalty notice, magistrates are well within their rights to say that they do not think that it is proportionate and to award a smaller fine. If they do think that the agreed amount of £500 is proportionate, that will not definitely act as a minimum but will be likely to, in practice, be a minimum for the fines. If we take that away, there will be no such minimum in practice.
1634. The Deputy Chairperson: So, it is arbitrary. One person could get a £50 fine, and another could get a different fine.
1635. Mr A Campbell: It may also be worth saying that the council keeps the £500 from the fixed penalty notice. Therefore, the fixed penalty notice puts funds into the council. That could take away a bit from the argument about the lack of costs. It will put money in councils' pockets.
1636. Ms A Clarke: We have been doing some work to determine the average fines from Magistrate's Courts. In 2006, the average fine was £172. That is the highest in the past four or five years.
1637. Mr S Anderson: The sole purpose is to encourage landlords to register. If someone goes to court and is fined, can that person walk away, pay the fine and still not register?
1638. Ms A Clarke: That is why we put the other provision in. We were concerned that landlords may still decide to remain unregistered. They can be subject to another fixed penalty, which would probably mean £1,000 in total.
1639. Mr S Anderson: Can the Bill do anything to encourage or ask the Magistrate's Court to issue a fine — if it issues a small fine — on the condition that the person registers at that time? Otherwise, that person will take the slap of a bigger fine. If they walk away with a small fine, they will keep doing that.
1640. Mr F McCann: They already do that in respect of HMOs.
1641. Mr S Anderson: Yes. Can we do anything to encourage what I suggest? Do you know where I am coming from?
1642. Ms A Clarke: Absolutely. That was exactly the line that we took. We said that, whenever they go to court, the fine should be a certain amount and they should be required to register. However, we were not able to do that.
1643. Mr S Anderson: Providing they register.
1644. Ms A Clarke: Yes; we said that they must be required to register within a certain period. However, we were not allowed to do that because it fetters the judge or the magistrate. That is why we had to develop another approach whereby a council can take a person to a civil court and the magistrate can give an order that that person must register. If they do not register in that instance, they are in contempt of court. We are trying absolutely everything.
1645. The scheme that we are trying to put in place is fairly straightforward and does not involve large fees. We are trying to minimise the reasons why a landlord would not register. This is only the first stage in the regulation of private landlords. The next stage is rent penalties. We have talked about that. We want to move to develop legislation through which we can issue rent penalty notices to stop landlords who consistently do not comply with the law being able to lift any rent. Ultimately, that will be the most effective way. That is the next thing that we need to do in a staged process. The scheme is about trying to get landlords registered in the first place. It is important to emphasise that it is only the first stage.
1646. The Deputy Chairperson: I will invite the Committee Clerk to give a view of where we are at. We seem to be a bit stuck on this issue. As you can gather, members are not content. At the same time, we are very much constrained because magistrates need to act with independence. However, the way in which they have acted has not particularly made people content. It is almost as though we have been handed a fait accompli. We need to get some advice on how to proceed.
1647. The Committee Clerk: I have been having a brief chat with the Bill Clerk, and there may be difficulties. I understand that members want a minimum fine in place in order to make sure that, where landlords fail to register or where they do things that they should not do, they do not walk away with a fine of £50 or £172. Members want an actual deterrent. I will seek advice on that, but there may be difficulties in fettering the discretion of the courts and setting a minimum fine. I will explore that, and, if it can be done, we will come back with an amendment accordingly. It seems that members are interested in doing that, but I have been advised that it might be very difficult.
1648. The Deputy Chairperson: We need to make a decision to put this off until we get advice about whether we can do that.
1649. Mr F McCann: My point goes back to the discussion about HMOs and increasing the fine for non-registration to £20,000. Even if we were to do that, would magistrates still ignore it and apply the minimum fine?
1650. Mr Craig: Yes.
1651. Ms A Clarke: We have evidence that maximum fines are rarely applied.
1652. The Deputy Chairperson: So, the legislative process sets best standards, but magistrates can really do what they want?
1653. Ms A Clarke: I suppose that it depends on the case that is made.
1654. The Deputy Chairperson: OK. We need to seek legal advice.
1655. Mr F McCann: From magistrates? [Laughter.]
1656. The Deputy Chairperson: Striking off Fra's last comment, we need to agree to get legal advice before we proceed.
1657. Mr Brady: On a technical point, if a magistrate is a landlord, do they have to declare an interest?
1658. The Deputy Chairperson: They do.
1659. Ms A Clarke: I imagine so.
1660. Mr Brady: That might seem to be a simplistic question, but I am sure that quite a lot of magistrates can afford to be landlords. That is just a personal observation.
1661. The Deputy Chairperson: OK. We need to move on.
1662. The Committee Clerk: Before we do so, in addition to seeking legal advice and seeking information on a possible amendment, does the Committee want the Clerk to write to the Department to see if it will give an assurance that the fines and penalty structure will be subject to a review in a couple of years' time? Is the Committee interested in seeing how that works out, regardless of whether we get an amendment through?
Members indicated assent.
1663. Ms A Clarke: We have said that we want to review other areas from day one, and, within two years of operation, we want to have a proper review of the whole system. Therefore, that is very much in keeping with our own desire.
1664. The Deputy Chairperson: It would be advisable if the Minister could set that out at Consideration Stage, because we need to have it put on the record that the issue was raised. We need to have it on the record that it goes beyond someone's intention that that will be pursued. In the meantime, we will get legal advice and take it from there. Is that fair enough?
1665. Are we happy to proceed with the next bit of business, which is that the Department has tabled an amendment that will allow the courts to require unregistered landlords to register within 28 days and will allow councils to apply to the civil court? Do the departmental officials have any further comment on that amendment?
1666. Ms A Clarke: The intention was to try to close as many doors as possible to ensure that we force landlords who did not register to do so.
1667. The Deputy Chairperson: Notwithstanding the comments regarding the concern about ratepayers' money being used should that be pursued, it is fair to say that that should be taken on board. Are there any other views from members regarding this amendment?
1668. The amendment states:
"Clause 5, page 4, line 42, at end insert—
'(7) If on an application made to it by a district council, the county court is satisfied that—
(a) a person has been convicted of an offence under subsection (4)(b), and
(b) that person is continuing after that conviction to contravene subsection (4)(b),
the court may make an order requiring that person to register under this Article within such period (not being less than 28 days from the date of the order) as the court may specify.'"
1669. It may go back to the point that Sydney and Fra raised about what happens if the fixed penalty kicks in and a person still does not register. Are you content that this would kick in?
1670. Ms A Clarke: This would be after a fixed penalty. Even if a landlord had not paid the fixed penalty —
1671. The Deputy Chairperson: This would still stand.
1672. Ms A Clarke: Yes, it would.
1673. The Deputy Chairperson: Are there any views from members, or are we happy to proceed with the amendment?
1674. Mr S Anderson: It goes back to "may" and "shall" again.
1675. The Deputy Chairperson: Oh, Sydney, please. [Laughter.]
1676. Mr F McCann: In relation to clause 5, I take it that —
1677. The Deputy Chairperson: We do not need "shall"?
1678. The Bill Clerk: No, you do not.
1679. The Deputy Chairperson: Sorry. I am just getting assurance that we do not, on this occasion, need "shall". "May" makes it law, which becomes "shall" at the end, in essence.
1680. The Bill Clerk: It means what you think it does.
1681. Mr F McCann: Although there are penalties, in many ways, this probably goes to the crux of registration. We wished to put down several amendments in relation to that. I can be guided and advised on whether or not those amendments are proper. I do not know whether to do that now. One amendment that we wish to put down is that the Department shall make regulations for the mandatory registration of the private-rented sector to be completed within one year of the legislation coming in.
1682. The Committee Clerk: The way in which the Department is responding to the Committee's suggestion that there be a timescale is through an amendment to clause 7. Its amendment is for an 18-month timescale from Royal Assent. That amendment relates to the "may" or "shall" wording and the timescale.
1683. The Deputy Chairperson: That relates to clause 7.
1684. Mr F McCann: In going through this, I see that most of it relates to clause 7.
1685. The Deputy Chairperson: Yes. This amendment is about adding an insert at the end of clause 5 to amend the clause as it stands. You "may" want to come in — I am sure that Fra "shall" come in — on the amendments to clause 7. If Fra is happy to proceed to that end, and if there are no other views, we will move on.
1686. Are members happy to agree the wording of the amendment, which I read out, to clause 5?
Members indicated assent.
1687. The Committee Clerk: As we have some issues to do with fines, we cannot agree clause 5.
1688. The Deputy Chairperson: That is exactly right. As we have issues with clause 5, we cannot agree it in its entirety; we agree only the amendment as it stands.
Clause 6 (Fixed penalty for certain offences)
1689. The Deputy Chairperson: Clause 6 would allow landlords who have breached registration regulations or the tenancy deposit scheme to avoid prosecution by paying a fixed penalty. As members will recall, at its previous meeting, the Committee agreed that it did not want to pursue amendments V to Z, nor would it support amendments JJ and LL. That, therefore, leaves amendments II and KK.
1690. Previously, the Committee informally agreed that it would defer consideration of changes to the level of fixed penalties associated with tenancy offences pending a detailed response from the Department on the issue.
1691. The Committee Clerk: Sorry to interrupt, Deputy Chairperson, but, given the previous discussion, I think that we will have to park clause 6 as well.
1692. The Deputy Chairperson: We will park clause 6 pending legal advice, because it directly relates to a previous discussion and there is no point going through it all again. Do members agree to defer a decision on clause 6 on the basis of any additional legal advice?
Members indicated assent.
Clause 7 (Regulations)
1693. The Deputy Chairperson: As previously indicated, the Department has tabled an amendment to clause 7 that would make the establishment of a tenant deposit scheme and a landlord registration scheme a duty and not just a power — it replaces "may" with "shall". The amendment also adds a timescale of 18 months after Royal Assent for the regulations relating to the deposit and registration scheme to be laid before the Assembly.
1694. I invite members to comment on the amendment.
1695. Mr F McCann: I want to ask the Department, why 18 months?
1696. Ms A Clarke: It is "not later than 18 months". That timescale is to make sure that we have sufficient time in which to develop the scheme, get a provider and make sure that the scheme is sound and workable. We do not want to be associated with a scheme that is not capable or that collapses when we start to register landlords. The 18-month timescale is to make absolutely sure that the scheme is robust. The timescale is within 18 months. However, we hope that it would happen long before that.
1697. Mr F McCann: John will perhaps come in on this point. We had the same argument about whether it should be six months, a year or 18 months when we dealt with the Caravans Bill, and, at that stage, the Department recommended that it should be a year rather than 18 months.
1698. The Deputy Chairperson: Is the Department saying that it should be no more than 18 months?
1699. Ms A Clarke: Yes. Draft regulations must be laid not later than 18 months after Royal Assent.
1700. Mr F McCann: They could be seen to be similar. I want to propose a couple of amendments to the clause. However, if other members —
1701. The Deputy Chairperson: I want to take the views of other members before we go through Fra's suggested amendments. We also need to look at the tabled amendment to clause 7. I am opening this up for other members to comment.
1702. The Committee Clerk: As the Deputy Chairperson rightly said, we need to look at the tabled amendment that begins: "Clause 7, page 6, line 13, at end insert—
'(4) The Department must lay before the Assembly—".
1703. As the Deputy Chairperson indicated, the amendment refers to the landlord registration scheme and the tenant deposit scheme. It changes the "may" to "must" and sets a timescale of not more than 18 months. The Committee needs to decide whether it is content with the wording of that amendment.
1704. The Deputy Chairperson: I will read out the wording of the amendment before I seek agreement from the Committee.
"Clause 7, page 6, line 13, at end insert—
'(4) The Department must lay before the Assembly—
(a) a draft of regulations under Article 5A, and
(b) a draft of regulations under Article 65A,
not later than 18 months after the date on which the Housing (Amendment) Act (Northern Ireland) 2011 receives Royal Assent.'"
1705. Are members content with the wording of that amendment? Are members, therefore, content with clause 7 as amended?
1706. The Committee Clerk: Does the member have a proposed amendment to clause 7?
1707. Mr F McCann: It relates to the timescale, which I had initially wanted to amend to six months. However, I am willing to go with it being done within 12 months of the legislation becoming law.
1708. The Committee Clerk: Sorry, are you content with 18 months?
1709. Mr F McCann: No. I want it lowered to 12 months.
1710. The Deputy Chairperson: We need to either agree to or divide on this amendment. If there is a division, —
1711. Mr Craig: Before we think of going to a division, I want to know whether there is any reason why it cannot be 12 months.
1712. Ms A Clarke: We are devising a completely new registration scheme for Northern Ireland, and we need to find a provider. When we bring forward the regulations, we need to be in a position to implement the scheme. Notoriously, IT systems and databases pose problems. We want to ensure that, when we go forward with this, we have a scheme that is robust. The timescale is to give us enough time to develop it properly. The tenancy deposit scheme will probably be less of a problem, because we hope to be able to use schemes that are already in operation. The timescale is "not later than 18 months" because we expect it to happen sooner than that. However, we just want to ensure that we can actually meet that timescale.
1713. Mr F McCann: Are you convinced that an 18-month timescale is required? I am thinking back to the last debate that we had.
1714. The Deputy Chairperson: It says "not later than 18 months".
1715. Mr F McCann: It was less than 12 months in the Caravans Bill.
1716. Ms A Clarke: To be fair, the Caravans Bill was doing something very different from what this is doing. We are devising a registration scheme, which is something completely new for Northern Ireland, and we have to have a system that supports that. We have quite a number of private landlords — we are not sure of the exact number — and quite a lot of work will be involved in setting up a scheme that allows all those landlords to be registered and provides the level of information that we will need to collect the fees. It is just to be absolutely sure. If we rush in something that collapses and has no credibility, we will all suffer.
1717. Mr Brady: I want to ask a question on the data available. Some £90 million of housing benefit is paid every year to private landlords. Is there no way of allying the two?
1718. Ms A Clarke: To date, we have not been able to do that. However, there is a provision in the Bill to do so. Once it becomes law, we can start to match information from housing benefit and also from rates. That will take a bit of time, but we will do that.
1719. Mr F McCann: Based on what you have said, I accept the 18 months.
1720. The Deputy Chairperson: It cannot go beyond 18 months, and the preference is that it is done sooner rather than later.
1721. I read out the Department's tabled amendment. Do members agree to that amendment?
Members indicated assent.
Question, That the Committee is content with the clause, subject to the Department's proposed amendment, put and agreed to.
Clause 7, subject to the Department's proposed amendment, agreed to.
Clause 9 (Withholding of consent to mutual exchange of secure tenancies)
1722. The Deputy Chairperson: Clause 9 deals with the withholding of consent to mutual exchange of secure tenancies.
1723. Mr F McCann: When we started this process this morning, a lot of issues related to clause 7. One was the mandatory registration. I take it that we are moving beyond that now.
1724. The Committee Clerk: Now that we have agreed clause 7, we have agreed that the wording of the Bill be changed so that the Department must bring forward regulations; it has a duty, not just a power, to have landlord registration and to produce a tenant deposit scheme; and those actions must be completed within 18 months.
1725. Mr F McCann: We had debates about who should control the tenant deposit scheme.
1726. The Committee Clerk: When we considered the issue on 16 December, it was agreed that that was going to be the subject of consultation and regulations from the Department. The Department indicated that the councils would enforce and the Department would monitor. The word regulation was not used. The Committee accepted that on 16 December.
1727. Mr F McCann: Are we saying that deposits should be paid to councils or into a separate scheme?
1728. The Deputy Chairperson: It was a third party, was it not?
1729. The Committee Clerk: The Committee accepted the Department's assurance that, again, that would be the subject of regulations. If I remember correctly, there would be an option of a custodial scheme or an insurance scheme, and the third party had not been identified. The Committee accepted that.
1730. The Deputy Chairperson: But provision for it should be made.
1731. Mr F McCann: Will we have any say in what it will be?
1732. The Committee Clerk: I anticipate that the regulations will be subject to Assembly scrutiny.
1733. Mr A Campbell: Yes, to affirmative resolution.
1734. The Deputy Chairperson: The Order will be made, and the regulations will be brought forward on the basis that that is made for the third party.
1735. Mr A Campbell: The regulations will contain the detail, and they will be debated by the Assembly.
1736. The Deputy Chairperson: So, members will still have the opportunity —
1737. Ms A Clarke: Absolutely.
1738. Mr F McCann: Since we are asking the councils to enforce the scheme, could we also say that deposits can be paid into councils?
1739. Ms A Clarke: Do you mean tenancy deposits?
1740. Mr F McCann: Yes.
1741. Ms A Clarke: The principle is that we will have two schemes — the custodial and insurance-based schemes. The insurance-based scheme will require an insurance-based company to manage it, because it is based on insurance.
1742. The Deputy Chairperson: In that case, it is not the council.
1743. Ms A Clarke: That is not a council role.
1744. Mr F McCann: Councils do not fit that role.
1745. Ms A Clarke: It would get them into all kinds of areas that they would not be covered for. A custodial-based scheme is another option. There is a possibility that the provider that, backed by lots of investment, runs the scheme in England might put up its hand and say that it would like to deliver this. A fair degree of financial competence, expertise and money is required to back it.
1746. We want to devise the specifications in which we set out what we want and what providers will have to demonstrate to us, because we have to watch the money situation. It will be open to people to say whether they can meet our requirements.
1747. The Deputy Chairperson: Technically, if councils feel that they fit the criteria, there is nothing to prevent them applying to provide the custodial-based scheme.
1748. Ms A Clarke: If they want to develop the expertise, they can apply. There will be costs. We would not be ruling anybody out.
1749. The Deputy Chairperson: So, you are setting down criteria for people under the third-party arrangements, and if councils feel that they meet the criteria, they will be at liberty to apply.
1750. Ms A Clarke: To date, councils have been clear that, although they would be responsible for enforcing the scheme, they do not want to get involved in the money situation.
1751. Mr F McCann: There obviously needs to be some type of mediation between the landlord and the tenant.
1752. Ms A Clarke: Yes. Each of those schemes will have to have its own independent arbitration service, as is currently the case in England, where it is part and parcel of the scheme.
1753. Mr F McCann: Who provides that?
1754. Ms A Clarke: The schemes provide that independent arbitration at no cost.
1755. The Deputy Chairperson: OK? We will go through the rest of the amendments. Members should indicate when they have any queries.
1756. Clause 9 inserts a new ground for social landlords to withhold consent to the exchange of tenancies. The Committee asked the Department to consider amendments that might allow the use of a wide range of non-antisocial behaviour information to be used in decision-making. The Committee accepted departmental suggestions that the Bill is to be amended to allow convictions for offences relating to the use of a home for immoral or illegal purposes to be considered in the evaluation of requests for the mutual exchange of social secure tenancies. The Department has tabled an amendment to clause 9 that sets that out.
1757. That amendment is included in the tabled items. We need members to comment on that; perhaps the Department should comment on it first.
1758. The Committee Clerk: As members can see, the amendment reads: "Clause 9, page 7, line 38, at end insert—
'Ground 2B".
1759. Members should note the square brackets at the end:
"(b) an indictable offence [committed in, or in the locality of, that dwelling-house.]'."
1760. If the words in the square brackets are included, social landlords may consider only indictable offences committed in or in the locality of the social home. If the words in the square brackets are excluded, social landlords will be able to consider indictable offences regardless of where they were committed when giving consent to an exchange of tenancy. The Department may wish to comment on that, but members can decide today which of those options they would like to adopt. If I understand it correctly, members can choose to include either indictable offences committed in the vicinity of the social home or any serious indictable offence. I am sure that members can think of examples of those.
1761. The Deputy Chairperson: We have to consider the Department's suggested amendment and the contents of the square brackets. Concerns were raised, including the point that the Committee Clerk made, that it is not just about what happens in or in the vicinity of a dwelling; it is about convictions that people carry when they are trying to secure a tenancy. Is that a correct understanding of the issue? Could the departmental officials advise us on that? You are well used to some of the concerns that members have raised on previous occasions.
1762. Mr Stephen Baird (Department for Social Development): The Committee Clerk has given a fair summary of what the proposal is about. There are two elements to it. The first deals with convictions for offences involving the use of a dwelling-house for immoral or illegal purposes. Most of those would involve fairly low-level antisocial behaviours. The second element deals with indictable offences, which are of a much more serious nature. There is the option of looking only at indictable offences that have been committed within the locality of the dwelling-house. In other words, in cases where there is some kind of immediate concern to neighbours. On the other hand, any indictable offence committed anywhere in Northern Ireland could be considered, which would reflect on the character of the individual concerned rather than his conduct as a neighbour. We would appreciate the Committee's opinion on which option to take.
1763. The Deputy Chairperson: I assume that you do not consider the use of houses for illegal purposes as an example of low-level antisocial behaviour.
1764. Mr Baird: Sometimes, there can be fairly low-level antisocial behaviour in such properties. There is such a thing in law as a disorderly house. In extreme conditions, that could be a brothel, but it could simply be a house that people are coming and going from at all hours of the night and its presence is causing a nuisance or is damaging the morals of the area.
1765. Mr Craig: I want some clarification on what is meant by an "indictable offence". More importantly, we are getting into funny territory. For example, if someone from Londonderry who lives in rented accommodation in Belfast was convicted of an "indictable offence" in their early teens, does that mean that you have the right to throw them out of the property because of something that they did when they were a teenager?
1766. Mr Baird: It may not be desirable to do that. This is not a completely novel concept. The wording is based on the existing grounds for the possession of a secure tenancy, which means that landlords already have the capacity to evict somebody for having committed an indictable offence. At the end of the day, whether it is appropriate to do that is a judgement call for landlords.
1767. The Deputy Chairperson: That is usually not done retrospectively.
1768. Mr Baird: The Department has issued guidance to the Housing Executive explaining how it feels the particular provision should be operated when it comes to grounds for possession. The offence really has to be something that affects the tenant's suitability to continue living in the area. In other words, if it is an offence that makes the person unacceptable to his neighbours, there may well be grounds for possession. On the other hand, the guidance makes it very clear that if somebody committed an offence that is not relevant to his conduct as a tenant a long time ago and has mended his ways, there would be no grounds for possession.
1769. So, we see this provision being operated in the same way and will probably want to issue similar guidance for it.
1770. Mr Brady: With regard to the indictable offence, are you saying that the person involved has to have been indicted for that offence? It seems to me that, although the majority of antisocial behaviour may be indictable, the perpetrators have not been indicted.
1771. Mr Baird: An indictable offence is technically any offence that can be tried by jury. It simply means a more serious type of criminal offence.
1772. Mr Brady: For people living in Housing Executive houses, for example, a lot of the antisocial behaviour can be subtle. It is not immediately obvious, and the PSNI might not be involved. It would be very useful for us to have the guidance.
1773. Mr Baird: Sure.
1774. The Deputy Chairperson: The provision needs to be based on cases for indictable offences going through courts and having judgements made on them.
1775. Mr Brady: The point that I am making is that a lot of people would argue that for a lot of antisocial behaviour, such as that caused by drinking dens, the PSNI does not want to come out. I know of an episode over Christmas concerning a house that is used as a drinking den; people were kicking in the door at 4.00 am and the neighbours were complaining. That is the type of thing that I am talking about. The people involved could have been indicted if charged for disorderly behaviour, but that was never followed through.
1776. Mr Craig: It is important that we see the guidance on how this would be implemented, but I am fairly content with the provision. I would not be content with the wording in the brackets being added, because criminals are not stupid. If they know that they can get away with something, all they would have to do is to move away from the locality of their house. If they rent in Belfast, they could commit a crime in, say, Lurgan, where it would not be an issue. However, it could be a very serious issue. Therefore, it would be sensible to leave it as "an indictable offence". For our own contentment, obtaining a copy of how this would be implemented would be useful.
1777. The Deputy Chairperson: It would delay the legislation, but members do want to have a look at those guidelines.
1778. Mr F McCann: There is a happy medium to be achieved in dealing with antisocial activity and impacting directly on people's rights. I am not saying that members have not read it, but I was amazed when I went through the guidance — the antisocial behaviour booklet — to the Housing Executive. It is fairly strong. It lacks only teeth to deal with some such activities. So, if we get a copy of the Housing Executive's guidelines on dealing with antisocial activity, along with a copy of the guidance that we want, members will be surprised by the powers that it has but does not follow through with.
1779. Mrs M Bradley: I agree with what Jonathan said about the brackets. So many people move from one area to another —
1780. The Deputy Chairperson: They do it deliberately.
1781. Mrs M Bradley: And, sometimes, the people in the area where they move from have already sent the message ahead of them. I would like to see the legislation being solid and the issue being dealt with properly, so I have a problem with the bracketed text.
1782. The Deputy Chairperson: Are members content to defer agreement on the amendment until we see the guidance? Or, are members happy enough to agree it but would like to see that guidance?
1783. Mr Craig: I am happy enough to agree it. To content ourselves, I would just like us to see the guidelines on how this would be implemented.
1784. Mr F McCann: If we are to see guidance on it, our decisions may depend on what is in that guidance.
1785. The Deputy Chairperson: OK. Is it our position that members agree it as it is or on the basis that we see the guidance?
1786. Mr Brady: I make the point that "locality" is a nebulous thing. How far away does someone have to be? Is it the same street, two streets away or three streets away?
1787. The Deputy Chairperson: The consensus seems to be that we opt to take out the wording in brackets, leaving it as "an indictable offence". However, before I read out the proposed amendment, we need to make a decision on whether we agree it today. Is there anything in the guidance that will go against the amendment's intent?
1788. Mr Baird: I would not have thought so, Deputy Chairperson.
1789. Mr F McCann: Deputy Chairperson, I would prefer to see the guidance before making a decision on the amendment.
1790. The Committee Clerk: We have to come back to the scrutiny of the Bill anyway to consider clause 2.
1791. The Deputy Chairperson: We will include a request for the guidance in the list of things that we need to receive advice on before we can reach agreement. Are members content with that?
Members indicated assent.
1792. Mr Craig: I am happy enough with that approach. We have deferred a number of things on which we are seeking further evidence, so we can park this as well.
1793. The Deputy Chairperson: Mary, we have agreed to defer a couple of items on the basis that we need additional advice. That is in relation to clauses 2, 5 and, now, 9.
1794. Mrs M Bradley: When will we get that?
1795. The Deputy Chairperson: We hope to have it by next week.
1796. Mrs M Bradley: We are never going to get through the Bill if we keep — it is unfortunate that we have to —
1797. The Deputy Chairperson: Yes, but it is important that we get good rather than iffy legislation.
1798. Mrs M Bradley: It is indeed, but we need to get it soon.
1799. The Deputy Chairperson: We will have that information next week.
1800. Mr F McCann: The whole question of ASBOs is relevant to a lot of the stuff here. ASBOs seem, to all intents and purposes, to be on their way out in other jurisdictions. I take it that that would probably be [Inaudible.].
1801. Mr Baird: ASBOs are a matter for the Department of Justice, rather than the Department for Social Development. We are, basically, in its hands.
1802. The Deputy Chairperson: In this case, therefore, the Department reacts to what another Department does in relation to law, rather than having its own policy and legislation.
1803. Mr Baird: In this case, the Department of Justice is responsible for legislation that was made by the NIO originally. That legislation specified the Housing Executive as one of the bodies that could apply for an ASBO, and it did not involve the Department for Social Development, even though we are the parent Department for the Housing Executive.
1804. The Deputy Chairperson: We move to proposed amendment QQ. Previously, the Department tabled an amendment that was suggested by the Housing Rights Service and which would limit the withholding of consent in respect of the exchange of tenancies to antisocial behaviour. Is there any contradiction between proposed amendment QQ and the previous proposed amendment?
1805. Mr Baird: No, there is no contradiction.
1806. The Deputy Chairperson: Does the Department have any additional views on proposed amendment QQ?
1807. Mr Baird: No.
1808. The Deputy Chairperson: Are there any other views from members that we need to consider before agreeing to the amendment?
1809. The Committee Clerk: To clarify: the wording of the amendment is on page 33 of the table. As the Department indicated previously, the amendment came from the Housing Rights Service. The Department has indicated that there is no contradiction between it and the previous amendment, with which the Committee is quite happy. It is a question of the Committee's being happy with the wording.
1810. The Deputy Chairperson: Are members happy with the wording? We have already debated the amendment, so we just need to agree on the wording. Are members content with the amendment as worded in the table?
Members indicated assent.
1811. The Deputy Chairperson: We move to proposed amendment RR. Previously, the Committee decided to defer consideration of that proposed amendment, which relates to the guidance on antisocial behaviour, pending a resolution of the issues that we have just discussed. Is that another piece of information that we need to get before we move on?
1812. The Committee Clerk: It is a piece of information to which members have just referred. It is the guidance that the Department will issue to the Housing Executive and, indeed, the —
1813. The Deputy Chairperson: The Housing Executive's policy on antisocial behaviour. We will defer a decision on proposed amendment RR until we get the guidance and the information. Thus, we will have to park clause 9.
Clause 10 (Disclosure of information as to orders, etc. in respect of anti-social behaviour)
1814. The Deputy Chairperson: Clause 10 provides for the disclosure of information about certain antisocial behaviour information that may then be used in connection with an application to buy a social home; an application to exchange a tenancy; and the allocation of accommodation or homelessness assistance. The Committee agreed previously that it would not pursue amendment XX. Subject to the information that we get, we are likely to agree to clause 9. We need to talk about the provisions in clause 10, which is on the disclosure of information. We need to agree on the categories that we have already discussed.
1815. The Committee Clerk: Yes, proposed amendment SS is to do with prescribed persons.
1816. The Deputy Chairperson: It may be handy to look at the issue of prescribed persons now.
1817. The Committee Clerk: That amendment may also have come from the Housing Rights Service. It suggested that the legislation should prescribe that only prescribed persons would be able to disclose relevant information to a landlord. The Committee may wish to ask the Department to comment on that, and members may wish to debate whether they consider the amendment to be necessary, given that the information that is to be disclosed is on such matters as indictable offences.
1818. The Deputy Chairperson: That comes up in clause 9.
1819. The Committee Clerk: Since all that information is in the public domain anyway, is there a need to have the disclosure of that information restricted to prescribed officers? The Department's argument is that the information is in the public domain anyway.
1820. The Deputy Chairperson: So the information is in the public domain anyway, and, if we agree clause 9, it will be strengthened and added to. Therefore, we are asking whether there is a need to agree the amendment to clause 10, given that, if we agree clause 9, in addition to what is there already, it would all be there.
1821. Mr A Campbell: We were able to change clause 9, which took effect [Inaudible.], so there is no need for it.
1822. The Deputy Chairperson: We need to decide whether we agree that there is no need for the amendment to clause 10.
1823. Mr F McCann: Are we saying that clause 9 would cover the sharing and flow of information, especially with respect to the exchange of tenancies, and allow the flow of information between —
1824. The Deputy Chairperson: My understanding is that it is about restricting disclosure to prescribed persons. We are asking whether we need to restrict disclosure, given that there would be disclosure as a result of clause 9.
1825. The Committee Clerk: Given that the information referred to in clause 9 is in the public domain, the Department's argument is that there is no need to restrict who discloses information to prescribed officers. Anybody could disclose it, because, after all, it is in the public domain. That is the Department's argument. The question is: does the Committee accept that?
1826. Mr F McCann: That is OK.
1827. Mr Craig: I certainly accept it.
1828. The Deputy Chairperson: Are members happy to accept that there is no need for amendment SS?
Members indicated assent.
1829. The Deputy Chairperson: We move to proposed amendments TT, UU, VV and WW. The Department advises that the information to be disclosed is to be subject to accuracy controls and that a right of reply is to be provided through the courts. The Department previously provided assurances in respect of guidance to limit discrimination against vulnerable groups. We need to determine whether, on the basis of those assurances, the Committee is content not to pursue those amendments. Members may wish to look at pages 38 and 39 of the table to refresh their memories.
1830. The Committee Clerk: It has been a long time, so I will remind members what those amendments were about. Some stakeholders raised concerns about making sure that the information to be disclosed is accurate and is subject to the protocols that housing associations use already. However, as we just heard from the Department with respect to clause 9, the information in question will be around indictable offences.
1831. The Deputy Chairperson: So it will be in the public domain anyway. That being the case, is the Committee content not to pursue any of those amendments?
Members indicated assent.
1832. The Deputy Chairperson: We now need to secure agreement for clause 10 as drafted.
Question, That the Committee is content with the clause, put and agreed to.
Clause 10 agreed to.
Clause 15 (Commencement)
1833. The Deputy Chairperson: The Department advises that it must make changes to clause 15 — the commencement clause — that are consequential to other amendments. The amendment to clause 15 has been tabled. It states: "Clause 15, page 10, line 25, at beginning insert 'Except as provided by subsection (1A),'
Clause 15, page 10, line 26, at end insert—
'(1A) Sections 2, 5 and 7 come into operation on Royal Assent.'"
1834. Will the Department explain the amendment?
1835. Mr A Campbell: Those changes will simply allow the regulations on landlord registration and tenancy deposits to commence on Royal Assent. Everything else will be commenced by a commencement Order. So, it is just to make sure, as the Committee wanted —
1836. The Deputy Chairperson: So, it is nothing other than a technical amendment. Do members have views on that or questions or queries on clause 15?
1837. The Committee Clerk: I should clarify that the Committee agreed clause 15 previously. However, as amendments have been tabled subsequently, members have to decide whether they are happy to revisit their decision and agree to the amended clause 15.
1838. The Deputy Chairperson: We need to re-agree clause 15 as amended.
1839. Question, That the Committee is content with the clause, subject to the Department's proposed amendment, put and agreed to.
Clause 15, subject to the Department's proposed amendment, agreed to.
1840. The Deputy Chairperson: A large number of other amendments were proposed. Members should refer to pages 54 to 70 of the table. The Committee agreed to support KKK, LLL, MMM, NNN, PPP, QQQ, RRR, SSS, TTT and UUU. The Committee also agreed that it would not support HHH and III. I will not go through what all of those are, but that leaves us with proposed amendments JJJ and OOO.
1841. With regard to proposed amendment JJJ, the Committee previously agreed that it would defer consideration of amendments that would alter the resources available to district councils to enforce tenancy legislation, pending a departmental response to related queries on fines etc. We also subsequently agreed to support a review of fines that generate resources for councils.
1842. The Committee Clerk: As the fines issue is subject to legal advice, it may be best to park it.
1843. The Deputy Chairperson: We will park proposed amendment JJJ, pending the list, which goes back to the issues that were raised previously. Do members agree that the Committee should park the issue on the basis that information relating to fines and fixed penalty notices is to be received, as was debated earlier?
Members indicated assent.
1844. The Deputy Chairperson: We proceed to proposed amendment OOO. The Committee informally agreed to support an amendment that would allow the Northern Ireland Housing Executive to work in legal partnership with other organisations. The wording of a new clause that brings that into effect has been tabled. It is the lengthy amendment that begins, "After clause 12 insert—". Do I have to read it out?
1845. The Committee Clerk: You are not obliged to; as long as members are clear where it is.
1846. The Deputy Chairperson: Is everyone clear where that text fits into clause 12? It is after clause 12, so it will be clause 12(a). Are members happy that that text will come in after clause 12? Does the Department have any views? Do members have any views? Are we happy to secure agreement?
1847. Are members content with the new clause?
Members indicated assent.
1848. The Deputy Chairperson: Is there anything that the Department wants to tell us in relation to any of the rest of this? Is there any additional information that we need? Are there any views that the Department wishes to share?
1849. Mr A Campbell: The amendments are fairly technical.
1850. The Deputy Chairperson: OK. Does anyone else have any comments? I am looking at you, Fra.
1851. Mr F McCann: We will come back to most of the stuff that I wanted to raise.
1852. The Deputy Chairperson: Are there any other views from members? No.
1853. I advise that the Department has not yet drafted proposed amendment UUU. The clause-by-clause scrutiny will conclude at a subsequent meeting. The rest of the clauses will be agreed pending the additional information that we need.
1854. I thank the departmental officials for persevering with us again. I am sure that you will be back.
Members present for all or part of the proceedings:
Mr Simon Hamilton (Chairperson)
Ms Carál Ní Chuilín (Deputy Chairperson)
Mr Sydney Anderson
Mrs Mary Bradley
Mr Jonathan Craig
Witnesses:
Mr Stephen Baird |
Department for Social Development |
1855. The Chairperson (Mr Hamilton): I welcome Alastair Campbell, Stephen Baird and Angela Clarke from the Department for Social Development to what I hope will be our last go at the clause-by-clause scrutiny of the Housing (Amendment) (No. 2) Bill.
Clause 2 (Tenancy deposit scheme)
1856. The Chairperson: The Committee agreed an amendment to clause 7 that makes the establishment of a tenancy deposit scheme a duty and not just a power; it requires regulations to be brought forward 18 months after Royal Assent. The Committee agreed to defer consideration of clause 2 pending receipt of the text of an amendment that would allow tenants to recoup their deposit where a landlord is in breach of tenancy legislation. It is understood that the Department is unable to draft the amendment in question. Can you give us an update on why that cannot be done?
1857. Mr Alastair Campbell (Department for Social Development): There are complications around the issues with courts. The draftsman felt that he needed longer to consider the detail. We want to take it forward in future, but we cannot fit it in at the moment.
1858. The Chairperson: It is not that the issue is a dead duck that will be abandoned.
1859. Ms Angela Clarke (Department for Social Development): It is a timing issue.
1860. The Chairperson: It is for the next mandate.
1861. Ms Ní Chuilín: I find that strange.
1862. The Chairperson: A great deal has been added to the Bill; partly because of pestering from us. We spoke earlier about building things up; the Bill has been built up since it started out. However, the Committee has been assured that the issue has not been dropped.
1863. It is also understood that the Department wishes to table some technical amendments to clause 2. Can you outline them for us?
1864. Mr A Campbell: The two amendments contain definitions under new article 5A that need to apply to new article 5B. The draftsman spotted that there was no reference to "and article 5B".
1865. The Chairperson: That seems straightforward. Are members content with clause 2 as amended?
Question, That the Committee is content with the clause, subject to the Department's proposed amendments, put and agreed to.
Clause 2, subject to the Department's proposed amendments, agreed to.
Clause 5 (Registration of landlords)
1866. The Chairperson: The Committee suggested an amendment to clause 7 to make the establishment of a landlord register a duty and not just a power and to require the relevant regulations to be brought forward within 18 months of Royal Assent. The Committee accepted a technical amendment from the Department that was designed to ensure that landlord registration will be compulsory. The Committee agreed to defer further consideration of clause 5 pending receipt of advice on the setting of minimum fines for breaches of tenancy legislation. Does the Department have anything to add?
1867. Ms A Clarke: We had further discussions with the Department of Justice, and I know that the Committee would like to see minimum fines. The advice from the Department of Justice was that minimum penalties or sentences are not generally written into legislation; there is a reluctance to do so. The Minister of Justice is certainly very much against it. It would not be achievable. We do not have minimum penalties anywhere.
1868. The Chairperson: I am aware that the Minister for Social Development is in discussions with the Minister of Justice.
1869. Ms A Clarke: The Minister has asked us to continue discussions with the Department of Justice on several issues that arise from the Bill, which we will do. However, given the timing, we had no success on this issue.
1870. The Chairperson: The Committee has discussed the maximum level of the fine as well. The Committee is content to support the Bill as it stands; however, we have a written assurance that the level will be reviewed in 18 months' time. As long as that is underscored by the Minister at Consideration Stage, the Committee is content.
Question, That the Committee is content with the clause, subject to the Department's proposed amendments, put and agreed to.
Clause 5, subject to the Department's proposed amendments, agreed to.
Clause 6 (Fixed penalty for certain offences)
1871. The Chairperson: The Committee agreed to defer consideration of clause 6 pending receipt of advice on the setting of minimum fines for breaches of tenancy legislation. The Northern Ireland Local Government Association suggested an amendment that was designed to secure resources to help councils to enforce tenancy legislation. I direct members' attention to the correspondence from the Minister in which he says that he is to follow that up with the Department of Justice in the matter of fines and costs for councils. A satisfactory resolution of the issue would be most welcome. Given that explanation, is the Committee content not to pursue that amendment?
1872. Ms Ní Chuilín: Would that prejudice any discussions?
1873. The Committee Clerk: The Committee is merely accepting the Minister's assurance that fines and costs for councils will be looked at, and for that reason the Committee is content not to amend the Bill, but only for that reason.
1874. The Chairperson: Is the Committee content with the clause?
Question, That the Committee is content with the clause, put and agreed to.
Clause 6 agreed to.
Clause 9 (Withholding of consent to mutual exchange of secure tenancies)
1875. The Chairperson: The Committee accepted an amendment to allow social landlords to withhold consent to the exchange of secure tenancies on the basis of convictions for anti-social behaviour or serious criminal offences by tenants. The Committee also accepted an amendment to allow consent to exchange to be withheld where an injunction against breach of tenancy agreement was in place and where that injunction related to anti-social behaviour. The Committee agreed to defer consideration of clause 9 pending receipt from the Department of its guidance to the Housing Executive on anti-social behaviour and possession proceedings relating to secured tenancies.
1876. We have received that. The Minister also wrote to provide the draft guidance on mutual exchange refusal that will be issued following the passage of the Bill. Has the Department any further information on anti-social behaviour guidance?
1877. Mr Stephen Baird (Department for Social Development): I do not believe so.
1878. The Chairperson: Is the Committee content with clause 9?
Question, That the Committee is content with the clause, subject to the Department's proposed amendments, put and agreed to.
Clause 9, subject to the Department's proposed amendments, agreed to.
Clause 10 (Disclosure of information as to orders, etc. in respect of anti-social behaviour)
1879. The Chairperson: I understand that the Department wishes to table some technical amendments to clause 10.
1880. Mr A Campbell: They refer directly to the amendments to clause 9; "Ground 2B" needs to be referred to in clause 10.
1881. The Chairperson: Of course. Is the Committee content with clause 10?
Question, That the Committee is content with the clause, subject to the Department's proposed amendments, put and agreed to.
Clause 10, subject to the Department's proposed amendments, agreed to.
1882. The Chairperson: Does anyone want to introduce any further amendments? Are there any johnny-come-latelys? Fra is not bursting through the door. We did put the lock on, did we not?
1883. Since we do not have the text of the Department's remaining technical amendments, I suggest that the Committee agree the long title and so conclude its clause-by-clause scrutiny.
Question, That the Committee is content with the long title, put and agreed to.
Long title agreed to.
1884. The Chairperson: I thank Angela, Alastair and Stephen for the many hours that they spent here and for all the assistance that they have given us. Sian, thank you as well.
Belfast Health and Social Care Trust
Chartered Institute of Housing
Chief Environmental Health Officers Group NI
Department for Enterprise, Trade and Investment
Equality Commission for Northern Ireland
Landlords' Association of Northern Ireland
Northern Health and Social Care Trust
Northern Ireland Ambulance Service
Northern Ireland Federation of Housing Associations
Northern Ireland Housing Executive
Northern Ireland Human Rights Commission
Northern Ireland Local Government Association
Probation Board for Northern Ireland
Royal Institute of Chartered Surveyors
Society of Local Authority Chief Executives and Senior Managers (SOLACE)
Age NI is the new force combining Age Concern Northern Ireland and Help the Aged. We work for a better later life today and tomorrow. We celebrate ageing and work to create opportunity in later life. We have a positive, forward-looking vision for our ageing society. We welcome the opportunity to submit evidence to the Committee for Social Development on the legislative framework for the Housing (Amendment) (No.2) Bill.
Age NI would like to take this opportunity to comment generally on fuel poverty in the social rented sector, and more specifically on clause 12 in relation to energy brokering powers for the Northern Ireland Housing Executive.
The Age NI response to the current fuel poverty consultation, Warmer Healthier Homes, will highlight the need for greater focus of fuel poverty measures in the social rented sector. The Department has tended to focus on the Warm Homes Scheme as the panacea to fuel poverty however, the scheme focuses solely on fuel poverty in the owner-occupied and private rented sectors.
High levels of fuel poverty in social housing, coupled with the fact that this form of housing tends to be occupied by the vulnerable sector of the community, requires that greater attention be paid to fuel poverty measures for this sector of the housing market.
The House Conditions Survey 2006, found that a high percentage (41%) of those living in Housing Executive homes were living in fuel poverty. This is, at least in some part, due to the poor standard of the Executive's housing stock. It is of concern that of all dwelling types, Housing Executive accommodation was the most likely to fail the thermal comfort element of the decent homes standard. Housing Executive properties were also found to have the highest reliance on solid fuel, with 14.2% of households dependent on this form of heating. This was substantially higher than for other household types. In addition, the same survey found that 14.4% of Housing Executive tenants were dependent on electric heating, again a substantially higher proportion than those in the private rented or owner occupier sector. Reliance on such forms of heating is known to contribute to fuel poverty.
In terms of fuel poverty measures contained within the Housing (Amendment) (No 2) Bill, Age NI would like to comment on clause 12. While Age NI welcomes any measures which attempt to address fuel poverty, we would stress the current constraints to the development of an energy brokering scheme, as highlighted in the feasibility study carried out by the Northern Ireland Housing Executive, the Consumer Council and Bryson Charitable Group:[1]
'There are some constraints to the development of an energy brokering scheme. Although both gas and electricity markets are now open to domestic competition, with the current systems there is a technical restriction to the number of consumers who can switch to alternative suppliers. It is estimated that 6,000 electricity customers (1% of households) are able to switch suppliers per month. This includes only 600 pre-payment consumers. Current gas switching systems will only allow 1,000 consumers to switch per month and only a minority of these can be on pre-payment meters. This situation must improve if an effective energy brokering system is to take place.
New suppliers, which will be necessary to support brokering schemes, will not enter the market until the appropriate switching mechanisms are in place. This has to be a priority action for everyone concerned with the domestic energy market in Northern Ireland.'
Therefore, whilst we welcome the introduction of brokering powers to the Housing Executive, they will be of little value unless they are considered within the wider energy context for Northern Ireland.
[1] Energy Brokering Report: Feasibility Study, Northern Ireland Housing Executive, the Consumer Council and Bryson Charitable Group
Chief Executive's Department
Democratic Services
Your reference
Being dealt with by Miss Lisa Hillick
Ext. 6310
Our reference LH/SB
Date 2nd September, 2010
Mr Peter McCallion,
Committee Clerk,
Committee for Social Development,
Northern Ireland Assembly,
Room 412,
Parliament Buildings,
Ballymiscaw,
Belfast
BT4 3XX
Dear Mr McCallion,
I refer to your letter of the 23rd June, 2010 to Belfast City Council's Chief Executive with regard to the Housing (Amendment) (No. 2) Bill.
The provisions of the Bill were considered by the Council's Health & Environmental Services Committee on the 4th August 2010 and, pending ratification by the Council on the 1st September 2010, it has been agreed that the following comments be forwarded to you for the consideration of the Committee for Social Development.
The Council welcomes the Bill and would ask that the Committee notes the previous Council's responses to the consultation document "Building Sound Foundations: A Strategy for the Private Rented Sector" and the draft Housing Bill. The Council particularly welcomes the enabling powers for a mandatory registration scheme for all private landlords however there is concern that the scheme is described as "light touch". The Council would seek clarification of the practical implications of a "light touch" registration scheme and would caution against a regularity approach that did not fully protect the rights of tenants.
The Council is also concerned that the Department's commitment in its previous strategy document to raise the statutory fitness standard for the private sector is not referred to in the Bill. Also, the Bill should specify which authority will regulate the rent deposit scheme.
The Council notes that proposals for a power to allow district councils to promote energy efficiency in residential accommodation in their own districts was previously included in the Regeneration and Housing Bill and is now detailed in the Housing (Amendment) (No.2) Bill. Whilst welcoming this proposal the Council would restate their comments to the Department in response to this specific recommendation namely:-
The Council would therefore recommend an amendment to Clause 13 of the Bill – Functions of district councils in relation to energy efficiency- paragraph (1) to read:-
"A district Council may take such action as it thinks appropriate for the purpose of promoting the efficient use of energy and to assist the management of heating costs in residential accommodation in its district."
Under paragraph (2) of Clause 13 should be included:-
"provide or secure the provision of assistance in the management of domestic heating costs;"
If the Committee wishes to discuss any of the issues referred to above please contact Mr John Corkey at telephone number 028 9027 0305.
Yours sincerely,
Committee Administrator
Stephen McCrory
Democratic Services Manager
Belfast City Council, Chief Executive's Department
City Hall, Belfast BT1 5GS
Tel: 028 9027 0382
Textphone: 028 9027 0405
Fax: 028 9050 2999
Email: mccrorys@belfastcity.gov.uk
Mrs Arlene Hanna
Public Liaison Services
Belfast Health and Social Care Trust
1st Floor, Nore Villa
Knockbracken Healthcare Park
Saintfield Road
Belfast BT8 8BH
T: (028) 9096 0057
F: (028) 9056 5553
E: arlene.hanna@belfasttrust.hscni.net
Our Ref: DC/0420/1011
23 August 2010
Mr Peter McCallion
Committee Clerk
Committee for Social Development
Room 412, Parliament Buildings
Ballymiscaw
Belfast
BT4 3XX
Dear Peter
I write further to your correspondence of 23 June 2010 to Belfast Trust's chief executive in relation to the above matter.
The Trust is grateful for the opportunity to make a written submission to the committee on the Housing Bill but can advise that we view the amendments as positive and have nothing further to add.
Yours sincerely
Arlene Hanna
Public Liaison Services
This paper forms comprises the Chartered Institute of Housing's written evidence to the Social Development Committee for the Committee Stage of the Housing (Amendment) (No. 2) Bill. Consideration and passage of a housing bill in 2011 is an opportunity to introduce much needed change to the legal framework for housing. The bill amounts to the third piece of housing related legislation for consideration by the Committee since 2007. As with the previous bills, the CIH believes that there is an urgent need for a strategic review of the operation of the legal framework, and would urge the the Committee to take this into account in its consideration.
The substantial growth in the private rented sector in recent years is an indication of the continued popularity of the sector as an option of choice for many. We are supportive of the general intent of the legislation to ensure that the sector is one where high standards of management and housing quality prevail. The priority for policy makers should therefore be to introduce a regulatory framework with mechanisms to ensure high standards as a key outcome. The bill therefore falls short of introducing comprehensive regulatory reform in the sector. Instead it focuses on just two- albeit important- aspects of tenancy management; registering landlords, and managing the tenancy deposits. We believe that this is a missed opportunity to embed wide-ranging regulatory requirements on landlords.
The CIH advocates a system of regulation which would manage the relationship between the landlord and tenant and ensure good physical and maintenance standards in private rented sector housing. We would recommend amendments to the bill which would:
The CIH strongly welcomes the introduction of a tenancy deposit scheme in Northern Ireland, which is aimed at safeguarding tenancy deposits. However, we are disappointed that the bill does not make provision of the introduction of a mechanism to facilitate the resolution of disputes in relation to deposits- it had been our understanding that this was the bill's intent. We would welcome clarification in respect of same.
Further to our comments above, while the CIH welcomes the introduction of a mechanism to hold information on landlords operating in the sector, it will not be sufficient to ensure greater management of the sector more generally. The independent Commission on the Future for Housing recommended a register which would provide no barriers to entry, be 'light-touch', and have nominal cost implications for landlords, as we would concur. However, a register in itself will not guarantee standards. We are disappointed not to see that alongside the introduction of a register, are minimum requirements for basic management and housing quality standards for landlords operating in the private rented sector. Unless these are added to the bill, there is a real risk that the existence of a register will not bring meaningful reform to the sector.
The provisions in this bill relating to homelessness are to correct a technical anomaly. The CIH is very disappointed that the bill is not used as an opportunity to introduce changes to homelessness legislation that are urgently needed- chiefly, to introduce adequate protection for 16 and 17 year olds. This group have long been identified as highly vulnerable when homeless. The independent Commission recommended a change to the legislation in this area, and the CIH would strongly urge the Committee not to miss a timely opportunity to give young people in Northern Ireland similar legal protection to other jurisdictions.
We have recommended several areas where the bill could be amended to strengthen the regulatory framework for the private rented sector, and greater protection for young people who are homeless. We are happy to provide further detailed information on request.
For further information contact CIH Policy and Public Affairs Officer, Dr. Jennifer Donald on 02890 778222 or jennifer.donald@cih.org
Chairman - Barny Heywood
Western Group Environmental Health Service, Lisnamallard House,
Old Mountfield Road
Omagh
Co. Tyrone
Northern Ireland
BT79 7EG
Tel: 028 8224 5321
Fax: 028 8224 5526
Email: barny.heywood@omagh.gov.uk
23rd August 2010
Northern Ireland Assembly
Parliament Buildings
Stormont
Belfast
BT4 3XX
Dear Sirs
The Chief Environmental Health Officers Group (CEHOG) is grateful for the opportunity to comment on the above. Please find attached the agreed response of this Group which has been prepared by its Public Health & Regulatory sub-group.
Yours sincerely
Barny Heywood
CEHOG welcomes the opportunity to be able to respond to the Housing (Amendment) (No 2) Bill. Environmental Health has a long history in the private rented sector through their statutory duties under the Public Health Acts and more recently under the Private Tenancies (Northern Ireland) Order 2006.
CEHOG welcomed the Private Tenancies Order on its introduction and would agree that it was very useful in its concept of improving standards and conditions in private rented housing. We agree there needs to be the development of a long term strategy for the private rented sector and we see the proposals in the bill as part of this process.
This Bill is both timely and needed. It should improve the effectiveness of existing measures. We particularly welcome the proposals for a mandatory registration scheme for all private landlords. In our response to the DSD consultation paper "Building Sound Foundations" we indicated the development of a comprehensive register of private sector tenancies, landlords and letting agents would greatly facilitate and would be central to the whole process of regulation and enforcement. We are still of the same mind.
As requested our comments are structured to address specific clauses of the Bill. Some clauses involve areas and functions which do not impact directly on Environmental Health but we are generally supportive of all the measures.
This clause will repeal Article 4 of the Private Tenancies Order.
The PTO requires a landlord to supply their tenant with two documents. One is a rent book and the other what is known as a "statement of tenancy terms". Many landlords thought it would be simpler to combine the two items and CEHOG would have a tendency to agree. The Bill will repeal the requirement for the statement of tenancy terms to be given to every tenant and it is our understanding that subsequent regulations will then require that all necessary information is given in the tenants rent book.
CEHOG would have no objection to this new document provided it contains all the particulars and information prescribed in the Tenancy Terms Regulations of 2007 and as before the tenant is not required to make any payment for this new type of rent book.
This clause will allow the Department to make regulations on the introduction of tenancy deposit schemes including facilitating disputes arising in connection with such deposits.
In our response to the "Building Sound Foundations" consultation CEHOG indicated that Environmental Health professionals often get drawn into disputes about withholding of tenancy deposits. It seems to happen quite frequently in cases of illegal eviction. We indicated we would support the establishment of a formal disputes resolution service.
We believe such schemes have been in force in England and Wales since 2007 and we believe it is time they were introduced in this jurisdiction.
We would support any scheme which would safeguard tenants' deposits. We note the proposed regulations allow for the appointment of a body or person ("the scheme administrator") and would welcome clarification on which authority or person would be charged with administering this scheme and with which authority or body would be charged with regulating it. Our reading of Clause 6 would indicate local authorities may have a regulatory role. While we have no objection to this in principle we would welcome detail on what this may entail.
This clause inserted into Article 36 of the PTO would confer powers of entry on authorised officers of district councils to carry out fitness inspections.
This two was previously mentioned in our response to "Building Sound Foundations". CEHOG always found it odd that a Power of Entry should be conferred to administer powers available under Part 3 of the Private Tenancies Order but not for Part 4. We welcome this addition.
On the subject of the Statutory Fitness Standard, CEHOG's position on this remains the same. For some time we have been of the opinion that the current fitness standard is no longer a suitable measure of housing conditions. CEHOG would believe, that as a matter of urgency, the Department should convene a stakeholder forum to look at alternative standards. CEHOG would be willing to play their part. Our preferred option would be the adoption of the Housing Health and Safety Rating System as this standard looks at a greater range of housing hazards than the present standard and would allow for direct comparison with the rest of the UK. Surely there is a case for standardising the assessment process.
These Articles deal with the determination of an appropriate rent for a private rented sector dwelling and like matters.
These are not issues that impact on the Environmental Health profession and CEHOG would have no comment to make on this clause.
These amendments to the Private Tenancies Order will make regulations providing for the registration of private landlords. It will also allow for enforcement action for non-compliance.
As stated earlier CEHOG welcomes the requirement to register all landlords of dwelling houses let under a private tenancy. We advised this was a prime issue for local authorities in our response to "Building Sound Foundations" and we put forward our agreements favouring such a move then.
We believe it will have a two fold effect. Its effect on landlords is that it will focus their attention on their responsibilities and encourage them to apply an appropriate standard of management. It could easily be made attractive to landlords; particularly the small-scale landlords who have little idea of their rights and responsibilities. In return for registration they could receive targeted advice and appropriate training.
For the enforcement authority it is our belief that increased knowledge will greatly facilitate the whole process of regulation and enforcement. We firmly believe there are landlords out there who wilfully ignore the Certificate of Fitness process and whose tenants are either unaware of the law or are to scared to complain to their local council.
However for this to work there has to be sharing of information between statutory bodies such as the sharing of housing benefit information (it is believed that up to 50% of tenants in the private rented sector may be in receipt of housing benefit). Also the penalties applied by the Courts for non-compliance should be sufficiently stringent so as to encourage uptake.
In addition if legal intervention is necessary costs should be borne and recoverable from the landlord. Again, strangely, the power to recover costs for enforcement action is available under Article 26 of the PTO for Part 3 of the Order but no such power is available under Part 4.
Finally there may even be an equality issue. Landlords of HMOs are required to register. Admittedly the HMO sector often houses the most vulnerable people in the poorest of conditions. Abuse of tenants rights were commonplace and a case for controls on HMO management was easy to illustrate. The question comes; should the tenant of a house or flat be treated differently?
It is our understanding that this new Article would allow landlords who appear to have breached provisions of either the need for registration or of the tenancy deposit scheme the opportunity of avoiding prosecution by payment of a fixed penalty.
CEHOG would have no objections to this proposal with the provision that the penalties associated with non-compliance should be sufficiently high as to encourage compliance and that the council should be able to recover their associated costs. The legislation suggests or sets levels in article 68A(7) and (8). We would believe these should be open to review in say two years after coming into force.
CEHOG would have no comments to make on this clause.
CEHOG understanding is that, where the Housing Executive believes that a house is occupied by more than 2 persons who are not all members of the same family, the Executive may serve a notice on the owner or the persons that control or manage the house requiring evidence of a family relationship between the occupants. This obviously is to help in deciding whether HMO regulations are to be applied.
CEHOG accepts it as a fine idea in theory but would question how it would work in practice. Our knowledge of this sector would indicate that for some types of HMO (such as shared houses) unscrupulous landlords might "suggest" to unrelated tenants that they claim a family relationship exists between them. We would believe that it certainly will not be enough to put the onus on landlords not to notify or certify family relationships.
Comprehensive guidance as to what would be acceptable and appropriate evidence will be central to this issue.
CEHOG would have no comments to make on these clauses.
This power would enable the Housing Executive to set up energy brokering schemes for the supply of electricity, gas or oil with the approval of the Department.
CEHOG will welcome any proposal that may impact on the scourge of fuel poverty. There is an easily understood agreement for the promotion of any measure that might exploit economies of scale in bulk purchasing.
Our query would be how could it be expanded? As published it would appear to be confined to the Executives tenants. Could it be expanded to cover the tenants of all social landlords? Could it be expanded even wider than that again through something like a National Fuel Stamps Scheme?
CEHOG would believe that Fuel Poverty will be one of the main Public Health challenges that statutory authorities will have to face in the next decade.
These same proposals to give powers to promote energy efficiency were previously included in a draft Regeneration and Housing Bill that was circulated earlier this year. Our views would be as before.
CEHOG would welcome the proposals to provide Councils with powers to promote domestic energy efficiency as an element in the drive to reduce fuel poverty. Some authorities already have initiatives to promote home energy improvements; these proposals will formalise this position. There could however be significant resource implications. CEHOG would welcome a more extensive consultation on the resources issue.
Finally in the past CEHOG has lobbied for increased energy efficiency to be incorporated into the Housing Fitness Standard. We believed it could be done by modifying statutory guidance, primary legislation could be left untouched. It would be one way of increasing standards and it could be achieved with little or no cost to the public purse. Ultimately we wish to see the adoption of the Housing Health and Safety Rating System for the reasons previously outlined but we understand any major revision of the fitness standard could be years away. Fuel Poverty will not wait. Any initiative no matter how small will be of some benefit.
16 July 2010
Mr Peter McCallion
Clerk
Social Development Committee
Room 412
Parliament Buildings
Ballymiscaw
BELFAST BT4 3XX
Dear Peter
Thank you for your 23June 2010 letter seeking DETI's and NITB's comments on the above bill.
Please note that DETI has no comments to make on the Bill.
Yours Sincerely
David McCune
DETI Assembly Liaison Officer
Tel: (028) 90529422
Email: david.mccune@detini.gov.uk
From The Office of the Minister Of Justice
Minister's Office
Block B, Castle Buildings
Ballymiscaw
Belfast
BT4 3SG
Tel: 028 90529272
Fax: 028 90528434
Textphone: 028 90527668
private.office@dojni.x.gsi.gov.uk
Our ref: JCP\11\3
Mr Peter McCallion
Committee Clerk
Committee for Social Development
Northern Ireland Assembly
Room 412
Parliament Buildings
BELFAST
BT4 3XX
26 January 2011
Dear Peter,
You wrote to me seeking advice on two aspects of the Housing Bill both of which involved our alleged rejection of two proposed changes to the Bill: a proposal for a second and increased fixed penalty to be available in certain circumstances; and a proposal that would ensure that courts would always award appropriate costs to district councils following a successful tenancy prosecution.
Before offering advice on the two proposals it may be worth stating that the Department of Justice has at no point formally rejected the proposals. The proposals were brought to us in outline form on foot, as we understand it, of a discussion during scrutiny stage of the proposed Bill. We then offered advice to the Department on the basis of the information provided as to the issues they would need to consider were they to bring any such proposals forward. This follows what would be the normal sequence of events whereby a Department seeks our advice on offences and penalties before any formal request would be made. They can then consider the merits of their proposals in detail and in a more informed criminal justice context before making formal requests to our Minister.
In the case of legislation this would usually be carried in the form of an Executive paper. It is important therefore for the sponsoring Department to have its proposals fully developed before engaging or seeking Executive approval. In this instance DSD officials were following the normal sequence of events. As to the two proposals that were brought to us our advice was as follows.
In terms of second and increased fixed penalties, we suggested that there could be difficulties with following one failed FPN with a fresh FPN that has then been doubled. Further, an FPN of £1000 could have the effect of simply driving the perpetrator to court anyway and as a speedy justice/court diversion approach, the underlying policy could be undermined. We also thought that moving to a fixed penalty level of £1000 was a particularly significant amount. The £500 level provided in the Bill is already, as we understand it, the highest FPN available in our legislation (we agreed to it on the basis of the commercial/business policy background) however a £1000 FPN would be exceptional without, for example, court involvement. Again it could simply lead the offender to refuse the FPN for the second time. The proposals also need to consider issues of how the "failed" FPNs would be treated and whether or not a criminal record would be created.
On the subject of court costs, we advised that existing legislation around costs in criminal cases already allows a prosecutor (such as a council in the DSD proposals) to make application for costs. It is up to the prosecutor to apply for costs upon conviction and for the court to determine how much should be paid. We did advise that the Magistrates' Courts Rules Committee intended to consult on possible changes to the Rules in relation to costs and that the issue of court costs is more wide ranging than simply changing cost recovery powers in the context of a single type of case. We also advised that we were considering whether or not there was a need for a wider-ranging review of policy in relation to costs in the longer term.
I trust that the Committee for Social Development appreciates the sequence of events to date and that consultation at official level whereby we give advice to Departmental colleagues is the norm thereby allowing officials to consider our advice and bring forward proposals more formally. At this stage we have been simply advising the Department of a number of aspects of the two proposals which they would need to be alert to.
I hope that the Committee for Social Development finds this helpful.
I am also copying this letter to the Clerk to the Justice Committee who has agreed that it would be appropriate for me to reply directly to you.
JANE HOLMES
DALO
18 August 2010
Mr Peter McCallion
Clerk of the Committee for Social Development
Room 412
Parliament Buildings
Stormont
Belfast
BT4 3XX
Dear Mr Peter
Further to your letter of the 23 June 2010, Disability Action is in general agreement with the contents of the Housing (Amendment) (No.2) Bill. However, we would like to propose the following suggested amendments/additions to the Bill:
Disability Action advises that an additional sub clause be inserted stating: that the scheme administrator will develop elements of the scheme e.g. a bond system, to protect the interests of people of low income households and other vulnerable people.
A new sub clause 65A (3) (a), should be added requiring
registrants to indicate when the dwelling house is physically accessible to disabled people i.e. meeting Lifetime Homes standard.
In relation to clause 10 Disability Action would reaffirm its view that people living in the community with mental health disabilities are often misjudged by housing authorities and landlords based on their behaviour. We are unsure how to word a clause but believe the needs of such vulnerable people and the potential disclosure of information about them which may be incorrect is possible. We would ask the Committee to ensure that safeguards are placed in this or another relevant section of the Bill to protect vulnerable people.
Disability Action would express some concern about this clause as the numbers of homeless people who experience mental ill health are high and this disability is not static. People with mental ill health might cease to be eligible for assistance but at some future date may return to homeless status. The Northern Ireland Housing Executive should therefore be under a continuing duty or provision must be made to deal with this situation.
I trust the Committee finds Disability Action's suggested amendments useful. If you require any further information please do not hesitate to contact me.
Yours sincerely
Monica Wilson
Chief Executive
From: Lisa King [mailto:LKing@equalityni.org]
Sent: 17 August 2010 13:38
To: McCallion, Peter
Subject: Committee invitation to submit evidence
Dear Mr McCallion
Thank you for your letter to our Chief Executive of the 23rd June, which has been passed to me for a response. You have invited us, on behalf of the Committee for Social Development, to submit evidence on the Housing (Amendment) (No.2) Bill. The Commission will not be submitting evidence on this occasion.
Yours sincerely
Lisa King
Director - Policy
Equality Commission for Northern Ireland
Direct Line: 02890500615
Peter McCallion
Thank you for your letter addressed to Margaret Donnelly, Housing Community Network (HCN) which has been passed to me for reply. I wish to advise you I have taken over responsibility for the HCN on behalf of the Housing Executive. The HCN will not have any further meetings until September and is unable to provide written evidence to your committee.
Leonard Sproule
Community Services Manager
Middleton Buildings
10-12 High Street
BELFAST
BT1 2BA
www.housingrights.org.uk
Housing Rights Service welcomes the introduction of the Housing (Amendment) (No.2) Bill to the Northern Ireland Assembly on the 22 June 2010. Housing Rights Service broadly supports the measures contained in the Bill. In particular, we have long advocated for the registration of Private Landlords and consider this to be at the forefront of improving the regulation of the private rented sector. Getting it right in the Bill in terms of ensuring that the registration of landlords is a statutory requirement with appropriate sanctions for non compliance is, in our view, paramount. It is on this basis that we call for tougher sanctions for non compliance with Landlord Registration.
Housing Rights Service also wishes to highlight a number of other issues in relation to the Bill. In particular, there are a number of measures omitted which were contained, either in the original consultation document for this Bill or, in the Private Rented Sector strategy. We would urge the Committee to consider the inclusion of the following measures in the current Bill:
| Clauses | Housing Rights Service Response | |
| Clause 1 | Abolition of statement of tenancy terms This will effectively abolish the requirement, made under Article 4 of the Private Tenancies (NI) Order 2006, for private landlords to provide tenants with a separate statement of tenancy terms. The Department states that it intends to make subordinate legislation to require landlords to include all necessary information about the terms of the tenancy in the tenant's rent book. | Support with qualification We appreciate that there is a need to simplify the way in which information is made available to tenants however our support for this measure is conditional on the basis that tenants will not be provided with less information. The information currently contained in the statement of tenancy terms and the rent book is different. Under the regulations it is detailed that the statement of tenancy terms shall contain nineteen particulars. The regulations in relation to the rent book detail the inclusion of only ten particulars. To ensure that elected Members have the opportunity to provide the appropriate level of scrutiny in relation to the revised regulations and ensure that all the necessary information is still provided to tenants we recommend that changes to these regulations should be subject to affirmative resolution. To achieve this we recommend:
|
| Clause 2 | Tenancy Deposit Schemes
(a) Enables DSD to make legislation providing for schemes to safeguard deposits paid by tenants in the private rented sector (b) Places on private landlords certain obligations relating to such schemes. |
Support and recommend the following: Housing Rights Service wishes to ensure that a statutory tenancy deposit scheme WILL be introduced in NI. As 5A (1) is currently drafted it is a clause which enables, rather than requires, the introduction of such a scheme. To remove this element of discretion we recommend either:
|
| Clause 3 | Power of entry to inspect dwelling-houses Confers powers of entry on persons authorised by district councils to carry out fitness inspections | Support |
| Clause 4 | Power to modify Articles 42 to 45 Enables the Department to make regulations modifying certain provisions of the Private Tenancies (NI) Order 2006 relating to determination of private sector rents. | Support |
| Clause 5 | Registration of Landlords Inserts in the Private Tenancies (NI) Order 2006 a new Article 65A which enables the Department to make regulations providing for the registration of private landlords. Such regulations may create new offences in relation to provision of false information, failure to provide evidence of registration, and letting of houses by unregistered persons. | Support and recommend the following: Housing Rights Service wishes to ensure that a statutory scheme for the registration of landlords WILL be introduced in NI. As 65A (1)is currently drafted it is a clause which enables, rather than requires, the introduction of such a scheme. To remove this element of discretion we recommend either:
|
| Clause 6 | Fixed penalty for certain offences Inserts in the Private Tenancies (NI) Order 2006 to provide that regulations in relation to tenancy deposit schemes, determination of rents and landlord registration are subject to the draft affirmative resolution procedure by the Assembly. | Support conditional on implementation of recommendation made in relation to Clause 5 (above) i.e.
|
| Clause 7 | Regulations Amends Article 72 of the Private Tenancies (NI) Order 2006 to provide regulations made in relation to:
|
Support and recommend that 7 (3) is extended to include Article 5 (Tenant to be provided with a Rent Book) of the Private Tenancies (NI) Order 2006. For explanation see earlier point made in relation to Clause 1 of the Bill |
| Clause 8 | Houses in multiple occupation: evidence of family relationship Provides that where the Housing Executive believes that a house is occupied by two or more qualifying persons who are not all members of the same family, the Executive may serve notice requiring evidence of a family relationship between occupants to be provided. Where such evidence is not forthcoming, the house would be treated as a house in multiple occupation and subjected to the regulatory regime which applies to such accommodation. | No objections |
| Clause 9 | Withholding of consent to mutual exchange of secure tenancies Inserts in Schedule 3A to the Housing (NI) 1983 a new ground for landlords to withhold consent to an exchange of tenancies. | It is our understanding that the rationale supporting the introduction of Clause 9 is to allow social landlords to withhold consent to a mutual exchange where there is evidence of anti-social behaviour. Therefore, we consider that a "relevant order" in this context should relate explicitly to anti social behaviour otherwise this could lead to ambiguity in the application of this Clause. Recommend the following amendment:
|
| Clause 10 | Disclosure of information as to orders etc. in respect of anti social behaviour Provides that any person may disclose information about certain injunctions , anti social behaviour orders or order for possession where such information is required to enable landlord of a secure tenancy to decide:
|
Support with recommendation that Article 10 (1) "any" person is amended to "prescribed" persons (e.g. housing officer). |
| Clause 11 | Duty to persons found to be homeless Amends Article 10 of the Housing (Northern Ireland) Order 1988 to provide that the Housing Executive's duty under paragraph (2) of that Article to persons found to be homeless shall come to an end if the applicant ceases to be eligible for assistance. | No objections: it is our understanding that this is a technical amendment which will have no adverse impact. |
| Clause 12 | Functions of Executive in relation to energy brokering Enables the Housing Executive to submit for Departmental approval a scheme for making arrangements with energy providers for the supply of electricity, gas or oil to the Executive's tenants. | Support and recommend extension to cover housing associations (as proposed in the original consultation paper on this Bill). |
| Clause 13 | Functions of district councils in relation to energy efficiency Provides district councils with powers to promote energy efficiency in residential accommodation within their own districts. To ensure coherence with existing activity, councils will be required to take account of work undertaken by the Housing Executive and the Department for Social Development and provide information to the Housing Executive which it needs to carry out its functions as Home Energy Conservation Authority for Northern Ireland. | No objections |
| Article breached | Potential offences | Maximum fine on summary conviction | Maximum Fixed Penalty |
| Article 5B (10) (tenancy deposits) | Paragraph (7) A person must not, in connection with a private tenancy, require a deposit which consists of property other than money. | A person who contravenes Article 5B paragraph (7) is guilty of an offence and liable on summary conviction to a fine not exceeding level 4 on the standard scale (£2,500) | An amount determined by the council not being an amount exceeding one-fifth of the maximum fine payable on summary conviction for that offence (£500) |
| 5B (11) (tenancy deposits) | A landlord who receives a deposit must:
|
A person who contravenes any provision of Article 5B (other than paragraph 7) is guilty of an offence and liable on summary conviction to a fine not exceeding £20,000. | An amount equal to or three times the amount of that tenancy deposit. |
| Article 6A (4) (a) and (b) (landlord Registration) | A person commits an offence if –
(a) he provides false information in connection with an application for registration under this Article; (b) not being a person registered under this Article, he lets a dwelling house under a private tenancy. |
A person guilty of an offence under paragraph 4(a) or (b) is liable on summary conviction to a fine not exceeding level 4 on the standard scale (£2,500) | An amount determined by the council not being an amount exceeding one-fifth of the maximum fine payable on summary conviction of that offence (£500) |
| Article 6A (4) (c) (Landlord Registration) | A person commits an offence if –
(c) being a person registered under this Article, he fails to provide evidence of registration in prescribed circumstances. |
A person guilty of an offence under paragraph 4 (c) is liable on summary conviction to a fine not exceeding level 2 on the standard scale (£500) | An amount determined by the council not being an amount exceeding one-fifth of the maximum fine payable on summary conviction of that offence (£100) |
Thank you for your letter dated 23 June 2010.
The Northern Ireland Ambulance Service have no written evidence for inclusion in the Committee's Report on the Bill and therefore submit a Nil return.
Kind Regards
Liam McIvor
Chief Executive
NI Ambulance Service
Site 30
Knockbracken Healthcare Park
Saintfield Road
BELFAST
BT8 8SG
PH 028 90 400712
FAX 028 90 400901
Email - Karen.Baxter@nias.hscni.net
19 August 2010
The Northern Ireland Federation of Housing Associations (NIFHA) represents all registered and 6 of the non-registered housing associations in Northern Ireland. Collectively, our members provide around 32,000 good quality, affordable homes for renting or equity sharing. Further information is available at www.nifha.org
In general NIFHA broadly supports the contents of the Bill and welcomes the opportunity to comment on specific aspects contained therein. While we recognise that this is a condensed version of the original Bill we are disappointed that it does not contain the proposal, from the original Bill, which dealt with repealing the provisions in the primary legislation relating to the Rent Surplus Fund.
NIFHA's members are responsible for about twenty five percent of all social housing stock in Northern Ireland. Our members within the Housing Association movement are volunteer led, community focused housing businesses where financial surpluses are re-invested to produce social benefit rather than private gain.
NIFHA has a vision is for the Housing Association movement to be a powerful engine of social inclusion, drawing on its own ethos and experience of self help, community development and environmental responsibility. We therefore welcome the opportunity to brief the Social Development Committee to on the Housing (Amendment) (No. 2) Bill which will to some extent assist our members, especially with regard to managing the implications of anti-social behaviour and community safety.
NIFHA are in favour of this proposal and we agree that the registration scheme should incorporate a light touch regulatory regime. As significant amounts of money are paid to private landlords in the form of Housing Benefit, we envisage that it would be prudent, in terms of accountability for public expenditure, to develop a low cost scheme for the registration of private landlords which would allow for the identification of properties for private rental.
NIFHA are in broad agreement with the proposal to allow social landlords to withhold consent for the exchange of tenancies where an injunction or anti-social behaviour order is in force. Our members within the Housing Association movement are keen not to allow tenants who have created problems through anti-social behaviour to move to other areas, bringing anti-social behaviour problems to those areas. Housing Associations would need to have robust procedures in place to record the incidents of anti-social behaviour to ensure, where necessary, evidence could be provided and where necessary shared with other agencies.
The inclusion of powers within the draft Bill which will allow the sharing of information between Registered Housing Associations and NIHE should assist them to reduce or eradicate anti-social behaviour in the relevant communities.
NIFHA considers the sharing of information between housing providers to be fundamental in ensuring that our tenants can live in quiet enjoyment of their homes and communities. Housing Associations as responsible landlords want to assure their tenants that they are taking measures to ensure the communities they live in are safe and are free, as far as is reasonably practicable, from behaviour or the potential for such behaviour that would be in breach of their capacity to live in quiet enjoyment of their homes and communities.
NIFHA has been working with NIHE, for some time, to develop an information sharing protocol between Registered Housing Associations and NIHE. Agreement in principle to the protocol has been reached and it is anticipated that the Bill will support the protocol in facilitating the sharing of information between our sectors.
Maire Kerr
Housing Policy and Research Manager
A: 6c Citylink Business Park, Albert Street, Belfast, BT12 4HB
T: 028 9089 7695 F: 028 9023 8057
E:MKerr@nifha.org W: www.nifha.org
Mr. Simon Hamilton MLA
Chairperson
Committee for Social Development
Room412
Parliament Buildings
Ballymiscaw
Belfast
BT4 3XX
20 August 2010
Dear Mr. Hamilton,
The Commission wishes to submit the following letter as evidence to the Social Development Committee (the Committee) in advance of its consideration of the Housing (Amendment) (No.2) Bill.
The Commission refers specifically to clause 11: 'Duty to persons found homeless' which provides that the Housing Executive's duty to homeless persons comes to an end if the applicant ceases to be eligible for assistance. Please note we have not assessed the remainder of the Bill and restrict our evidence to clause 11.
The Committee will be aware from previous evidence provided by the Commission[1] of its investigation No Home from Home, which explores access to services for homeless non-UK nationals in Northern Ireland. The investigation focuses on the human rights implications of denying access to homelessness assistance to individuals who are found 'ineligible' due to restrictions imposed by UK wide immigration law. The investigation found that the legislation is unduly weighted towards regulation of immigration without due regard for the rights of homeless and potentially destitute non-UK nationals. The Commission therefore recommended legislative change so that regardless of nationality or immigration status:
The Commission's recommendations are based on domestic, regional and international human rights standards, in particular, the right to be free from inhuman and degrading treatment (Article 3 European Convention on Human Rights (ECHR)), the right to private and family life (Article 8 ECHR) and the right to an adequate standard of living (Article 11 of the International Covenant on Economic Social and Cultural Rights). While the right to an adequate standard of living is to be realised progressively to the maximum of the State's available resources, there are core minimum obligations that must be met immediately. This includes ensuring that a significant number of individuals are not deprived of essential food or basic shelter and housing.
Immigration is an 'excepted' matter and therefore any change to rules on 'eligibility' for non-UK nationals require legislative amendment at Westminster. However, the Northern Ireland Assembly (the Assembly) has an important role to play in bringing about this change. The Commission therefore questions why in light of the findings and recommendations in No Home from Home it is now proposed that the Assembly enact a legislative provision that further entrenches an immigration rule, which leaves those who are homeless and vulnerable without recourse to any form of support.
In its assessment of clause 11, we ask the Committee to consider Recommendation 18 of No Home from Home which calls upon the Housing Executive, the Social Security Agency, and the Health and Social Care Trusts to develop interagency protocols that identify gaps in service provision and provide a clear referral route so that an individual who is 'ineligible' for homelessness assistance and welfare benefits can be referred to the local Trust to establish if they are entitled to social services support. The government agencies have been working with the Commission to implement the recommendations in No Home from Home. However, to date, formal referral arrangements have not been put in place. Clause 11 does nothing to further the process of implementing the Commission's recommendations. We therefore view it as a retrogressive rather than a progressive measure for protecting the rights of non-UK nationals living in Northern Ireland. However, should the Committee be minded to include clause 11 the Commission urges members to ensure that formal referral mechanisms and protections are first in place so that those removed from the Housing Executive's remit as a result can be assessed for other possible forms of support.
During the initial consultation period for the Bill the Commission met with Department officials to discuss these concerns. Should you require further information please do not hesitate to contact me.
Yours sincerely,
Professor Monica McWilliams
Chief Commissioner
Cc Ms. Carál Ní Chuilín http://archive.niassembly.gov.uk/members/biogs_07/ni_chuilin_c.htmMLA, Deputy Chairperson, Committee for Social Development
Cc Mr. Alex Attwood MLA, Minister for Social Development
[1] The Commission provided evidence to the Social Development Committee on 24 September 2009 on the Housing (Amendment) Bill.
18 March 2010
NILGA, the Northern Ireland Local Government Association, is the representative body for district councils in Northern Ireland. NILGA represents and promotes the interests of local authorities and is supported by all the main political parties in Northern Ireland. The standards and conditions of housing are key issues for local government due to the huge part they plays in protection of health and their social and community impact. NILGA is pleased to be able to have an opportunity to comment on the proposals and we trust that our comments will be taken into account when developing the final recommendations. This response has been developed in liaison with the Chief Environmental Health Officers Group
NILGA would be happy to discuss this issue with the Committee, should an oral evidence session be planned in the future. For further information on this submission please contact k.smyth@nilga.org or call Karen Smyth at the NILGA Offices (028) 90798972
The Local Government Chief Environmental Health Officers' Group (CEHOG) made a response to the August 2009 consultation on "Building Sound Foundations – A Strategy for the Private Rented Sector". This response included a view on the Mandatory registration of Landlords, and on enforcement issues surrounding private tenancies. NILGA would endorse this response, which is also attached. A number of key issues directly pertaining to the Committee's request for information have been drawn out of the wider response and noted below.
It is the view of NILGA that mandatory registration for landlords will have the effect of focusing attention on their responsibilities and will also aid enforcement for district councils. Mandatory registration will help encourage landlords to apply an appropriate standard of management. Good landlords should have no difficulty with registration. It should also be stressed that registration schemes already exist for HMOs. The fact that income from HMO registration fees does not cover the operating costs is not a reason to preclude registration from the rest of the private rented sector. Registration schemes, which go hand in hand with robust enforcement, should be designed to ensure that they generate sufficient revenue to fund administration.
NILGA does not believe that that the mandatory registration of landlords would put an unnecessary and unfair focus on those landlords who are already complying with requirements. NILGA believes that enforcement procedures need to be improved and would suggest that the mandatory registration of landlords would provide the necessary foundation. All councils are reacting to those requests or applications that are being presented to them, but councils could be much more proactive if they had the necessary intelligence of the existence of any previously unknown private tenancies. Mandatory registration would target all landlords and only those who are operating outside the statutory standards for private renting would have cause for concern regarding such registration.
NILGA is of the view that wholesale registration and more targeted action would not be mutually exclusive. Wholesale registration will provide overarching regulatory control, but will not reduce the need for specific targeted actions where unscrupulous landlords flout the law and place vulnerable people in danger or deny them their housing rights.
The proposal for a voluntary landlord accreditation scheme is unlikely to have any impact in respect of poor landlords. Those who operate outside the law will see little benefit in signing up to a voluntary code. The suggestion that a voluntary code would provide a list of benefits to landlords such as access to legal advice, disputes advice, etc. could also form part of a mandatory scheme.
The Private Tenancies (NI) Order 2006 (PTO) provided district councils with added powers for dealing with properties in the private rented sector and, in particular, for dealing with levels of unfitness through rent control. The PTO has been demonstrated to be effective. Three-quarters of all unfit properties were made fit following rent control. The low levels of unfitness, generally limit the effectiveness of the PTO in further driving up standards.
In order to provide district councils with the tools to ensure that housing for low income families in the private rented sector is comparable with social housing there needs to be a review of existing statutory standards of fitness and their enforcement regimes. Although the Building Sound Foundations document has implied that there are varying levels of enforcement and monitoring by councils, with a lack of focused and consistent enforcement action across the council areas NILGA would be keen to point out that there is no evidence of any council not having met their statutory function in terms of reactive enforcement based on the applications received and the information available.
It is also important to stress the additional work carried out by councils, particularly, around investigations of harassment and illegal eviction. It is the view of NILGA that the development of a comprehensive register of private sector tenancies would greatly facilitate the whole process of regulation and enforcement. Whilst the Department has expressed reservations regarding the extent of public investment required to establish and maintain a register it would be the view of NILGA that such a register should be delivered on a cost recovery basis. The need for robust enforcement must go hand in hand with a complete register of tenancies and landlords. Also, district councils require information and intelligence in order to target priority cases and discharge their regulatory functions consistently.
The move from 26 to 11 District Councils is likely to facilitate more consistency in enforcement following the implementation of RPA. Currently it is standard local government practice to hold routine and regular regional and sub-regional technical meetings to ensure consistency in enforcement by members of staff from different councils.
The nature of occupancy in the private rented sector, particularly in the poorer end of the market, reflects a transient and often vulnerable section of society. These people are likely to have limited information about their rights, particularly relating to security of tenure, and they are therefore less likely to report their problems to a third party such as the Housing Rights Service (HRS). It is also unlikely that they will be aware of the availability of advice services such as HRS. The use of statistics therefore, regarding the number of enquiries from tenants to the HRS as a quasi measure of the effectiveness of landlord management, may be misleading. Tenants may also be very reluctant to complain to the HRS for fear of reprisals such as being evicted or harassed. The Department's comment in 'Building Sound Foundations' that "…a perception of bad management continues to exist" would also be the view of the local government environmental health officers who operate in this area of the private rented sector on a daily basis. This perception is likely to reflect some of the new speculative and "accidental" landlords.
The availability of guides for landlords and tenants on the Housing Executive's website is to be welcomed. This information however should also be made available on all council websites. The involvement of councils in the regulation of the private sector would make them an obvious source for this type of information.
23rd August 2010
NILGA, the Northern Ireland Local Government Association, is the representative body for district councils in Northern Ireland. NILGA represents and promotes the interests of local authorities and is supported by all the main political parties in Northern Ireland. Should the Committee wish any of the issues contained in this response, please do not hesitate to contact Karen Smyth at the NILGA offices (k.smyth@nilga.org).
NILGA is pleased to be able to have an opportunity to present evidence on the Housing (Amendment) (No. 2) Bill as the standards and conditions of housing are key issues for local government due to the huge part they play in the protection of health and their social and community impact. On the whole, NILGA is generally supportive of all the measures and have structured comments to address specific clauses of the Bill as follows:
Clause 1 repeals Article 4 of the Private Tenancies (NI) Order 2006. This effectively abolishes the requirement in regulations made under that Article for private landlords to provide tenants with a separate statement of tenancy terms.
NILGA has no issue with the abolition of Article 4 of the Private Tenancies (NI) Order 2006 provided that tenants are furnished with a statement of tenancy terms through another means.
Furthermore, NILGA would stress that the tenant should not be required to make any payment for this new type of rent book, and any associated costs would be borne by the landlord.
Clause 2 inserts in the Private Tenancies (NI) Order 2006 a new Article 5A which enables the Department to make regulations providing schemes to safeguard deposits by tenants in the private rented sector and a new Article 5B which places on private landlords certain obligations relating to such schemes.
Measures proposed to be introduced to safeguard deposits by tenants in the private rented sector are welcomed by NILGA. It is in the experience of local government that Environmental Health professionals often get drawn into disputes about withholding of tenancy deposits and would recommend the establishment of a formal disputes resolution service (similar to those that have been in force in England and Wales since 2007) in this jurisdiction.
NILGA would also seek clarification from the Department on which authority would regulate the rent deposit scheme.
Clause 3 inserts in Article 36 of the Private Tenancies (NI) Order 2006 a new paragraph (1A) which confers powers of entry on persons authorised by district councils to carry out fitness inspections.
NILGA welcomes powers of entry on persons authorised by district councils to carry out fitness inspections. It is important that district councils are provided with the tools to ensure that housing for low income families in the private rented sector is comparable with social housing.
The current fitness standard no longer provides a suitable measure of housing conditions. The level of unfitness in the private rented sector is around 2.7% (2006, HCS), which suggests that a new approach with a better measure of suitability for occupation is required. NILGA believe that the Department should be looking to standardise the assessment of housing conditions with the rest of the UK where a health and safety rating (HHSRS) applies. It is suggested that the use of the Decent Homes Standard as a target for all housing suggest that this should be given a legal, and enforceable standing. It is recommended that the Department should convene a stakeholder forum (with local government involvement) to look at alternative standards. It is suggested that the use of the Decent Homes Standard as a target for all housing suggest that this should be given a legal, and enforceable standing.
Furthermore, the legislation would appear to have a gap in that there is no ability for a council to require a specialist report from the landlord in cases where the Environmental Health Officer has reason to believe there is a hazard (for example, electrical, chimney test or structural report) to ascertain the safety of that element of the structure or fittings. This matter must be addressed in any amendments to ensure councils have the ability and legislation to address such matters in such cases where the initial inspection by the council would indicate safety concerns that require further in-depth examination.
Clause 4 inserts the Private Tenancies (NI) Order 2006 a new Article 45A which enables the Department to make regulations modifying certain provisions of that Order relating to determination of private sector rents.
NILGA has no comment to make on clause 4.
Clause 5 inserts the Private Tenancies (NI) Order 2006 a new Article 54A which enables the Department to make regulations providing for the registration of private landlords. Such regulations may create new offences in relation to provision of false information, failure to provide evidence of registration, and letting of houses by unregistered persons.
NILGA welcomes the requirement to register all landlords of dwelling houses let under a private tenancy.
Mandatory registration for landlords will have the effect of focusing the attention on their responsibilities and will also aid enforcement for district councils. Mandatory registration will help encourage landlords to apply an appropriate standard of management. It is believed that good landlords should have no difficulty with registration.
Mandatory registration will also help councils to be more proactive, target priority cases and discharge their regulatory functions consistently as they will have information on previously unknown private tenancies. It is the view of NILGA that the development of a comprehensive register of private sector tenancies would greatly facilitate the whole process of regulation and enforcement. It is recommended that in order for the registration scheme to be effective, the register would require a common IT system for all district councils to ensure clarity for landlords and uniformity for councils. NILGA would also suggest that for this to work that there must be a sharing of information between statutory bodies (such as sharing housing benefit information).
Registration schemes, which go hand in hand with robust enforcement, should be designed to ensure that they generate sufficient revenue to fund administration. It would therefore be the view of NILGA that such a register is delivered on a cost recovery basis. It is also advocated that costs associated with registration should not be passed on to the tenant but should be borne by the landlord.
NILGA believe that registration could be delivered by councils in a 'light touch', simple and inexpensive way if the legal requirement was there. Examples of this are the Food Premises Registration Scheme administered by councils and others under various bye-laws.
Finally, NILGA would recommend that sufficient resources are identified to ensure an appropriate, wide-reaching advertisement of the requirements of registration.
Clause 6 inserts in the Private Tenancies (NI) Order 2006 a new Article 68A which would allow landlords who appear to have breached the registration regulations of tenancy deposit scheme the opportunity of avoiding prosecution by payment of a fixed penalty.
The penalties associated with non-compliance must be sufficiently high so as to encourage uptake of the scheme and councils should be able to recover costs for legal intervention.
The legislation suggests or sets levels in article 68A(7) and (8). NILGA would suggest that these should be open for review 2 years after coming into force.
Clause 7 amends Article 72 of the Private Tenancies (NI) Order 2006 to provide that regulations in relation to tenancy deposit schemes, determination of rents and landlord registration are subject to the draft affirmative resolution procedure by the Assembly.
NILGA has no comment to make on clause 7.
Clause 8 provides that, where the Housing Executive believes that a house is occupied by two or more qualifying persons who are not all members of the same family, the Executive may serve notice requiring evidence of a family relationship between the occupants to be provided. Where such evidence is not forthcoming, the house would be treated as a house in multiple occupation and subjected to the regulatory regime which applies to such accommodation.
NILGA welcomes this proposal in theory, however, has concerns regarding how this would be implemented in practice. Local government knowledge of the HMO sector would indicate that for some types of HMO, unscrupulous landlords may 'suggest' to unrelated tenants to claim that a family relationship exists between them. NILGA would therefore recommend that comprehensive guidance as to what would be acceptable and appropriate evidence is developed.
Clause 9 inserts in Schedule 3A to the Housing (NI) Order 1993 a new ground for landlords to withhold consent to an exchange of tenancies.
NILGA has no comment to make on clause 9.
Clause 10 provides that any person may disclose information about certain injunctions, anti-social behaviour orders or orders for possession where such information is required to enable the landlord of a secure tenancy to decide:
Clause 10 also provides that any person may disclose relevant information to the Housing Executive where the information is required to enable the Executive to decide:
Clause 10 also provides that any person may disclose relevant information to a registered housing association to enable the association to decide whether to allocate housing accommodation to any person.
NILGA has no comment to make on clause 10.
Clause 11 amends Article 10 of the Housing (NI) Order 1988 to provide that the Housing Executive's duty under paragraph (2) of that Article to persons found to be homeless shall come to an end if the applicant ceases to be eligible for assistance.
NILGA has no comment to make on clause 11.
Clause 12 enables the Housing Executive to submit for Department approval a scheme for making arrangements with energy providers for the supply for electricity, gas or oil to the Executive's tenants.
NILGA welcomes any proposal that may help ease fuel poverty and would encourage the scheme to be expanded to all social landlords.
Clause 13 provides district councils with powers to promote energy efficiency in residential accommodation within their own districts. To ensure coherence within the existing activity, councils will be required to take account of work undertaken by the Housing Executive and the Department for Social Development and provide information to the Housing Executive which it needs to carry out its functions as Home Energy Conservation Authority for NI.
NILGA welcomes greater partnership working between key agencies in order to prevent duplication and to provide an efficient service.
NILGA also welcomes the proposals to provide councils with powers to promote domestic energy efficiency as an element in the drive to address fuel poverty. However, whilst a number of councils currently carry out a number of initiatives to promote energy efficiency, NILGA would recommend a formal consultation by the Department of Social Development in relation to the extent of resource provision for explicit powers for councils to assist in the management of heating costs in residential accommodation.
It is noted that a number of councils administer Fuel Stamps Schemes. NILGA would advocate that in order for all district councils to facilitate this type of support to the fuel poor, a more explicit inclusion in the draft Bill may be appropriate, to ensure that councils have a clear vires for schemes that are designed to assist the management of heating costs in residential accommodation.
Finally, NILGA would advocate the incorporation of energy efficiency into the Housing Fitness Standard. It is believed that this could be done by modifying statutory guidance, without amending primary legislation. This could be one way of increasing standards which could be achieved with little or no cost to the public purse.
Clause 14 provides for the repeal of the provisions set out in the Schedule to the legislation.
NILGA has no comment to make on clause 14.
Clause 15 enables the Department to make provision by order as to the day or days when clauses 1 to 14 come into operation.
NILGA has no comment to make on clause 15.
Clause 16 provides for the interpretation of certain expressions used in the Bill.
NILGA has no comment to make on clause 16.
Clause 17 Provides that when the Bill receives Royal Assent it shall be known as the Housing (Amendment) (No2) Act (NI) 2010
NILGA has no comment to make on clause 17.
The Bill does not address the issue of resources for councils in delivering compliance under the Private Tenancies (NI) Order 2006. District councils were given the responsibility of enforcing the Private Tenancies (NI) Order 2006 but, other than being able to charge for certain notices and certificates, no additional resource was made available for the remaining statutory functions.
Furthermore, the present charging regime requires updating as the inspection charges were set in 2006 and based on historical charges to NIHE for fitness inspections. There should also be a recognised process by which this fee can be reviewed, as it should represent cost recovery councils.
80-90 North Street
Belfast
BT1 1LD
T: 028 9026 2437
E: brian.mccaughey@pbni.gsi.gov.uk
W: www.pbni.org.uk
Brian McCaughey Director of Probation
16 August 2010
F.A.O. Mr Peter McCallion
Committee Clerk
Committee for Social Development
Room 412
Parliament Buildings
Ballymiscaw
Belfast
BT4 3XX
Dear Sir/Madam
Thank you for affording PBNI the opportunity to consider and respond to the above bill. PBNI welcome the Housing Amendment Bill enabling better regulation of the private rented sector.
In particular PBNI welcomes the introduction of rent deposit schemes for private tenants – similar to those in use in England and Wales. Landlords may be forced to place deposits into secure accounts from where they can draw in the event of damage being caused. This arrangement should protect tenants from having to hand over the equivalent of a months rent with no security that it will be returned at the end of the lease.
There is currently little access to rent guarantee schemes and any developments in this area would be welcome as deposits remain one of the biggest obstacles facing our ex-offenders in securing tenancies.
PBNI also welcome the removal of what is described as a "legal anomaly" in respect to the requirements for Northern Ireland Housing Executive to provide assistance to an ineligible homeless individual.
Yours faithfully
Brian McCaughey
Director
Office of the Chief Executive
18 Ormeau Avenue
Belfast
BT2 8HS
Tel: 028 9031 1611
www.publichealth.hscni.net
Mr Peter McCallion
Committee Clerk
Northern Ireland Assembly
Committee for Social Development
Room 412
Parliament Buildings
Ballymiscaw
Belfast
BT4 3XX
18 August 2010
Dear Mr McCallion
Thank you for your letter dated 23 June 2010. Please find attached response from the Public Health Agency with regard to the above.
Yours sincerely
DR Eddie Rooney
Chief Executive
Enc
Do you agree that giving social housing providers power to broker the purchase of discounted energy on behalf of their tenants would be a useful tool in alleviating fuel poverty in social housing?
PHA welcomes the opportunity to respond to this consultation on The Housing (Amendment) (No.2) Bill (Northern Ireland).
Following Royal Assent of the Health and Social Care Reform Bill on 21 January 2009 and as part of the Review of Public Administration, the Minister with responsibility for health, Michael McGimpsey launched the new PHA on 1 April 2009. The PHA incorporates the legacy Health Promotion Agency and public health and health improvement functions from within the legacy Health and Social Care Boards including Investing for Health Partnerships and Health Action Zones.
The PHA has responsibility for health protection; health and social wellbeing improvement – including addressing existing health inequalities; public health input to commissioning (including screening) and Health and Social Care (HSC) research and development. The specific functions that the PHA is responsible for in respect of health improvement as referenced in the Reform Bill are:
a) Developing and providing, or securing the provision of, programmes and initiatives designed to secure the improvement of the health and social well-being of, and reduce health inequalities between, people in Northern Ireland; and
b) Health promotion, including in particular enabling people in Northern Ireland to increase control over and improve their health and social wellbeing.
There is now consensus that there are clear links between living in fuel poverty and ill health. Although these risks apply to all people, the old, young children and those who are disabled or who have long term illnesses are especially vulnerable.
More specifically the evidence base links the effects of cold, damp and mouldy houses with: respiratory illness; increased blood pressure and risk of stroke; social isolation and adverse effects on children's education and nutrition.
DSD has also reported that some 1,360 elderly people are dying from cold weather related illnesses in Northern Ireland annually.
Progress had been made in reducing Fuel Poverty in Northern Ireland between 2001 and 2004 (from 27% to 23%) but by 2006 the rate of fuel poverty had increased to 34%, largely as a result of the very significant increases in the price of fuel. Estimates for 2009 indicate that the level of Fuel Poverty in Northern Ireland is closer to 50%.
The three factors that affect fuel poverty are (1) energy efficiency of the home, (2) income levels and (3) fuel price. Of these three factors, it is fuel price that has proved most illusive and difficult to impact upon.
Clause 12 enables the Housing Executive to submit for Departmental approval a scheme for making arrangements with energy providers for the supply of electricity, gas or oil to the Executive's tenants.
A scheme that could offer more stability with fuel prices would be highly beneficial to the most vulnerable customers, especially those on fixed incomes, by increasing their ability to budget more successfully to meet their energy needs. However the levels of fuel poverty in Northern Ireland Housing Executive properties and Housing Association properties is relatively low in comparison to other tenures. According to the Northern Ireland Housing Condition Survey 2006, it is the Owner Occupied and Privately Rented sectors which exhibit the highest levels of fuel poverty among all the housing tenures in Northern Ireland. PHA would therefore call for any initiative designed to combat Fuel Poverty to ensure complementary measures for other housing tenures, so that they could avail of any of the subsequent benefits that brokering for fuel would bring to the social housing and housing association tenants.
The three district councils with the highest levels of fuel poverty are all rural and 48% of those living in isolated rural areas are in fuel poverty. (The report of the Rural Community Network for the development of DARD's Rural Anti-poverty and Social Inclusion Framework, 2008) Many of these properties would be owner occupied or private rented and therefore unable to benefit from a scheme that targets only the social Housing sector and Housing Association dwellings.
Strict regulation and a transparent system would need to be put in place if such a scheme is to be established. Such a power has the potential to significantly impact on the cost of heating for a substantial number of households in Northern Ireland.
The duty for regulation must then fall to either the Department for Social Development (with its remit for both housing and fuel poverty) or alternatively a separate body should be established to approve any plans put forward by those who will become involved in brokering fuel.
Clause 13 provides district councils with powers to promote energy efficiency in residential accommodation within their own districts. To ensure coherence within existing activity, councils will be required to take account of work undertaken by the Housing Executive and the Department for Social Development and provide information to the Housing Executive which it needs to carry out its functions as Home Energy Conservation Authority for Northern Ireland.
Many local authorities have already started to address the challenge of energy efficiency and have initiatives to promote home energy improvements. PHA welcomes this bill that will formalise this position and will provide all councils with the powers to promote domestic energy efficiency in their local area.
While PHA welcomes the desire to have some management on fuel price for domestic customers we would like to see solutions to Fuel Poverty applied to all domestic customers in Northern Ireland, regardless of housing tenure. This Consultation proposal targets the fuel price for those living in Social and Housing Association properties only.
PHA would stress the need for a holistic approach to be adopted to combating Fuel Poverty in Northern Ireland. Indeed, whole-house solutions need to be fully implemented in terms of increased energy efficiency of the home, increased income levels and management of fuel price.
PHA welcomes the introduction of the power to allow district councils to promote energy efficiency in their own districts.
9 -11 Corporation Square
BELFAST
BT1 3AJ
Tel: 028 9032 2877
Fax : 028 9023 3465
Email : noneill@rics.org
www.rics.org/ni
13 December 2010
Mr Simon Hamilton MLA
Chairperson
The Social Development Committee
Room 412
Parliament Buildings
Ballymiscaw
Stormont
Belfast
BT4 3XX
(e) housingbill@dsdni.gov.uk
Dear Mr Hamilton
The Royal Institution of Chartered Surveyors (RICS) Northern Ireland is the principal body representing professionals employed in the land, property and construction sectors and represents some 3,000 members. Our members practice in land, property and construction markets and are employed in private practice, in central, regional and local government, in public agencies, in academic institutions, in business organisations and in non-governmental organisations.
As part of its Royal charter, the Institution has a commitment to provide advice to the Government of the day and, in doing so, has an obligation to bear in mind the public interest as well as the development of the profession. RICS Northern Ireland is therefore in a unique position to provide a balanced, apolitical perspective on issues of importance to the land, property and construction sectors.
Following our continued engagement with the Department on housing matters RICS Northern Ireland welcomes the opportunity to comment on the proposed Housing Amendment (No.2) Bill (Northern Ireland).
As stated in our original consultation response, RICS Northern Ireland welcomes the aim of this legislation which is to deliver improvements in the operation of the private rented sector for the benefit of both tenants and landlords. We also support the approach whereby further tools for tackling fuel poverty and housing need and improve the operation of current housing law around issues such as community safety and anti social behaviour.
We note that issues around a proposed register for the private rental sector have been raised during evidence sessions on the Housing Amendment (No.2) Bill. We feel that in general registration should only require basic information from landlords including name, address and addresses of rental properties. We feel, given the unique circumstances pertaining to Northern Ireland, sensitive treatment of information contained within a landlords register is required so as to avoid opening individuals up to the potential of threat or intimidation. That being the case, and while supportive of the development of a register, we feel it appropriate that consideration be made surrounding access to the register and that it not be published in full as a public document.
In our view, the landlord – in return for registering – should receive standard forms and notification of statutory requirements including tenancy deposit protection.
Landlord registration could, however, lose much of its impact if there is not effective enforcement in place. We note that a similar registration scheme in Scotland has not been effective as landlords are easily able to operate without registering and there is only limited enforcement through local authorities. This will have a particular impact at the lower end of the rental market where landlords are less likely to adhere to legal requirements. In order counter this, additional resources and funding should be made available to local authorities to ensure they can take on this extra enforcement role.
For example, the process for removal should be similar to the driving licence 'points system' to ensure that multiple breaches of regulations can lead to sanctions as well as graduate degrees of breach. However, to ensure balance and fairness within the system consideration should given for 'points' to be removed and treated as spent if landlords go for a certain period without any further breaches.
In our consultation response to the Bill we acknowledged that problems in the market have arisen with unregulated hard-to-reach landlords failing to fulfil obligations such as providing rent books or ensuring fitness standards.
As an overall approach to enforcement, we feel that complaints against landlords should be limited to enforcement agencies and advice services provided by the voluntary sector. Although there needs to be some sort of process to deal with the worst landlords there is also a need to protect landlords against malicious or unnecessary complaints. To ensure effective consumer protection there needs to be a clear and quick route for tenants to access enforcement agencies and the voluntary sector.
That's why we support the introduction of a national register of private landlords for Northern Ireland which is linked to EPC data. In this way, the register can be a dynamic tool which provides information to landlords on improving properties and accessing grants.
In regards to tenants' deposits, while RICS Northern Ireland remains supportive of the concept that fines and penalties are a necessary part of the enforcement function, we feel it is not necessarily the place of RICS Northern Ireland to suggest specific levels of fines. However, it is worth noting that the practice of fining landlords for failure to protect the deposit according to the regulations and within the required 14-day period after receipt of the deposit has been successfully challenged via the Court Of Appeal.[1]
The precedent in case law has been established whereby the point of contention within a dispute centred not around when the landlord protected the deposit, but rather on whether the deposit had in fact been protected. The Court of Appeal effectively ruled that the 14-day requirement could be set aside in circumstances whereby the principle is established that protection of the deposit had taken place.
We feel these developments should be taken into consideration by the Committee during its deliberations.
RICS welcome proposals aimed at professionalising the private rented sector as we have stated in our response to consultation for the Bill.
Yours sincerely
Geoff McGimpsey
Public Policy Executive
RICS Northern Ireland
[1] http://www.bailii.org/ew/cases/EWCA/Civ/2010/1224.html
1.1 Shelter Northern Ireland is a charity established in 1980, which works for the achievement of a decent home for everyone in Northern Ireland within a context of sustainable communities. We also provide services to vulnerable young people and to older and disabled people. We have responded to previous Government Housing Reviews and we welcome the opportunity to make a contribution to the Housing (Amendment) (No.2) Bill.
2.1 Shelter NI's comments are given in the context that this Bill underpins part of the Departments next phase of legislative changes designed to place the Private Rented Sector in the forefront of meeting housing need in particular for families and individuals who otherwise might have expected to be housed by the NIHE or housing associations. Shelter NI remains very concerned that the majority of PRS Landlords lack the capacity to service vulnerable people to assist them to sustain viable tenancies yet the families and people in greatest housing need as exemplified by the waiting list for social housing include the most vulnerable in our Society.
2.2 Shelter Northern Ireland believes that the interests of private landlords and those of their tenants are difficult to achieve successfully particularly in the areas of affordability and security of tenure. Reconciling these differences has only been satisfactorily achieved in the public rented sector where the objectives are social and the rationale is meeting need as opposed to ensuring a profitable business to provide a return to investors or enable asset growth which is the case with private landlords.
2.3 There has been significant growth in the Private Sector housing for rent. The Sector had been in decline for many decades but since 2001, the number of reported properties has more than doubled in less than 10 years from just fewer than 50,000 to over 120,000 in 2009. This phenomenon has not been rationalised fully but has managed to distort the traditional market trends here as much as the house price crash and the so called credit crunch.
2.4 Shelter NI believes that the housing strategy for Northern Ireland should be comprehensive and coherent and any review of a part of that strategy should not be carried out in isolation but should demonstrate how the promotion of or significant changes to one sector of the housing market impacts on the rest of the market. Such a comprehensive review has not been carried out by the Department before embarking on this legislative phase for the PRS.
2.5 The April 2007 review carried out by John Semple on Affordable Housing is the last government commissioned housing strategy review and while it was fairly comprehensive, the Ministers' response to it and the subsequent New Housing Agenda was set at a time when market conditions were significantly different and largely pre-dates the recession.
2.6 While these reasons are enough to justify a comprehensive housing review, the Westminster Government has announced intentions to make serious cuts in capital and revenue expenditure here alongside major impacts to Housing and other Benefits and this increases the urgency of the need for a complete housing review. An analysis of how to energise the flagging construction industry is essential as part of this review. In the absence of a Departmental Housing Strategy Review, it would be useful at the least to have a Departmental response to the more recent Independent Review of Housing
2.7 Housing is not just an important economic driver but we believe it is a fundamental right for those households and families who wish to maintain stable and supportive family lives and contribute to sustainable communities to be able to access a home of their own and that it should be of a decent standard, affordable and offer a safe and secure tenure. The Government here needs to address the fundamental problems of housing supply across the whole market.
3.1 In general terms, while understanding the pressures on the Assembly's legislative time, Shelter NI notes that some of the Ministers' apparently urgent legislative proposals are not being brought forward at this time. It is acknowledged that establishing new physical standards to replace statutory unfitness will take time to agree. However, the Bill would improve Private Tenant's rights by the inclusion of improved security of tenure regulations for example.
4.1 Shelter NI agrees with these in principle. However the Department views this initiative in the context of improved access to the PRS by enabling potential lettable properties to become more affordable.
4.2 In Shelters' view, such an isolated proposal fails to fully address the issue of Affordability. In our view, affordability is also about the levels of rent/rates payable in the PRS. According to a detailed survey of 300 PRS properties carried out by the UU and the NIHE, those tenants who had to pay the rent in full or pay a shortfall between the Housing Benefit they received and the market rent, 45 per cent found it very or fairly difficult, and 5 per cent were at least a fortnight in arrears. (Source Housing Market Review and Perspectives 2009-2012 NIHE).
4.3 More than two-thirds of tenants in receipt of Housing Benefit had to pay a shortfall between the benefit they received and the market rent. The mean shortfall was £20 per week. However, more than one fifth of those who had to pay a shortfall had to pay more than £30 per week over and above Housing Benefit. In addition, individuals under 25 have their HB or now Local Housing Allowance restricted to the equivalent of the rent for a single room.
4.4 In looking to retain affordable accommodation, Sir John Semple first developed the idea of a Voluntary Rental Scheme in his Interim Report and then recommended it in his Final Report on Affordability. The concept is that Landlords would lease property to the NIHE for a negotiated (in our view one that should be affordable) rent and the NIHE would be responsible for letting the property by way of nomination rights.
4.5 Shelter NI understands that the NIHE has attempted to pilot such leasing schemes and has been unsuccessful because Landlords were unable or unwilling to negotiate an agreement at affordable rents.
5.1 Shelter NI recognises the practical necessity of this insertion and understands that the identification and delivery of fitness inspections will function more effectively when taken in conjunction with the mandatory registration of landlords proposed elsewhere in this Bill.
6.1 Shelter NI strongly supports the mandatory registration of Private Landlords. The Westminster government now proposes to remove the compulsory registration. Shelter NI believes that the Stormont Executive and the Assembly should not follow this path.
6.2 In the proposed Article 65(A), the details of the information to be supplied by landlords in the compulsory registration process are to be prescribed in regulation. The Law Commission (England) and the Rugg reports distinguish between owner/managers and owners who use managing agents to let their property. Shelter NI recognises the distinction between owners who are not managers and owner/managers and/or managing agents. The application of the regulations should be as "Light Touch" as required to ensure protection of the tenant from exploitation or abuse by the Landlord in any way.
6.3 Shelter NI believes the opportunity should be taken to bring forward a dispute/mediation agency for Private Landlords and Tenants funded either through the Tenancy Deposit Fund or the Landlord Registration fees
7.1 This insertion into the Housing (NI) Order 1988, reinforces the states position regarding people from abroad who are not entitled to state support. Shelter NI believes that the statutory sector fails to deal acceptably with certain people from abroad who become destitute and homeless and would encourage the Assembly to support the Human Rights Commissions proposals in its proposals within its publication "No Home from Home".
8.1 Shelter NI welcomes this additional power for the Executive.
9.1 Shelter NI welcomes the legislative clarification given to district councils to get involved in the energy efficiency programmes in residential areas.
10.1 For further information, please contact.
Tony Mc Quillan
Director
Shelter Northern Ireland
Campaign for Homeless People
58 Howard Street
Belfast BT1 6PJ
Tel:(028) 9024 7752
Fax:(028) 9024 7710
e-mail: shelterni@btconnect.com
Our Ref: MW/KM
19th August 2010
Mr Peter McCallion,
Committee for Social Development,
Room 412,
Parliament Buildings,
Ballymiscaw,
Belfast
BT4 3XX,
Dear Mr McCallion,
I refer to the above and am pleased to enclose the observations and comments from the Supporting Communities NI (S.C.N.I.) staff team following staff discussions and consideration with representatives from community groups involved in the Housing Community Network.
Supporting Communities NI is an independent charitable organisation which champions community participation by developing groups, supporting active citizenship and building cohesive communities; the Housing Community Network is a unique structure which was formed in response to the need for housing related policies to be developed both with and on behalf of community groups working in partnership with NI Housing Executive and Supporting Communities NI. The most significant part of the workload of Supporting Communities NI involves working with and developing locally based multi- and inter-agency partnerships which have housing services, community participation and regeneration and related matters at their core. These observations and comments in response to the discussion document are supported by extensive experience in working with community groups by Supporting Communities NI staff over many years and, where it has been possible, following discussion with voluntary committee members.
As you know, S.C.N.I. have participated in the consultations which have preceded and accompanied the publication of the Bill and we again welcome the opportunity to comment and offer some observations on the proposals in the paper. We are pleased to offer some comments to the Committee.
We acknowledge the stated purpose of the Bill and recognize that the provisions are designed to remove anomalies and to tackle a number of issues which affect the Private Rented Sector, provide for arrangements to better tackle fuel poverty and to improve certain areas of housing management in the public and social rented sectors; we offer the following comments.
Clause 1: Abolition of statement of tenancy terms. We continue to take the view that private tenants should be provided with comprehensive information about the terms and conditions of their tenancy. Whilst we may concur with attempts to simplify requirements on landlords and tenants alike, it must be made clear that simplification of content does not lead to dilution of responsibilities.
Clause 2: Tenancy deposit schemes. S.C.N.I. is in favour of a statutory scheme for protecting tenants rent etc. deposits and for the provision of mechanism for effectively resolving disputes over such deposits.
Clause 3: Power of entry to inspect dwelling-houses. It is clear that a specific and specified purpose of entry is desirable for the exercise of any such power by District Councils and we welcome this proposal.
Clause 4; Power to modify Articles 42 to 45. No further comments.
Clause 5: Registration of landlords. S.C.N.I. continues to support the mandatory registration of private landlords; any such 'light touch' scheme should neither be lacking in rigour nor effectiveness.
Clause 6: Fixed penalty for certain offences. Whilst we have no objection to this mechanism, we would take the view that prosecution should remain an option as an effective sanction.
Clause 7: Regulations. It is proper that such regulations are subject to the draft affirmative resolution procedure by the Assembly.
Clause 8: Houses in multiple occupation; evidence of family relationship. We would still have some concerns around the standard of properties otherwise let as houses in multiple occupation which fall outside regulation on the basis of family relation of occupants. Whilst respecting ties of kinship and extended family relationship, we take the view that in such cases landlords should be responsible for standards of fitness, safety and in certain respects, privacy when letting properties on such basis. We feel that the regulatory regime should reflect this.
Clause 9: Withholding consent to mutual exchange of secure tenancies. We believe that granting social landlords the power to withhold consent to the exchange of secure tenancies where the applicant is the subject of sanctions relating to anti-social behaviour would be an effective housing management tool.
Clause 10: Disclosure of information as to orders etc in respect of anti-social behaviour. We believe that information sharing between landlords and housing providers is an important housing management tool; however there needs to be guarantees in the process that any information subject to such a process is accurate, current and appropriate. We also believe that in the interests of fairness applicants should be made aware of any such disclosures and a right of reply is added as a safeguard.
Clause 11: Duty to persons found to be homeless. We recognize the need to remove such anomalies, particularly where, for example, UK Immigration provisions have primacy over homelessness duties.
Clause 12: Powers of Executive in relation to energy brokering. There is a widespread view that NIHE is in a good position to bring forward proposals for energy brokering as a means of tackling fuel poverty; we support this enabling power.
Clause 13: Functions of councils in relation to energy efficiency. We believe that District Councils have an important role to play in promoting greater energy efficiency and we support this clause.
Clauses 14 to 17: No further comments.
If you require any further clarification on any of the points, observations or comments, please do not hesitate to contact me at the above.
Yours sincerely,
For Supporting Communities NI
Murray Watt
Policy and Information Officer
Correspondence from DSD 8 July 2010
Letter from the Minister for Social Development 16 July 2010
Letter from the Minister for Social Development 22 September 2010
Correspondence from DSD 26 November 2010
Correspondence from DSD 2 December 2010
Correspondence from DSD 7 December 2010
Correspondence from DSD 15 December 2010
Letter from the Minister for Social Development 14 January 2011
Anti-Social Behaviour: Guidance for the Northern Ireland Housing Executive
Statement of Policy and Procedures on Anti-Social Behaviour
1. This delegated powers memorandum has been prepared by the Department for Social Development.
2. The purpose of the Housing (Amendment) (No. 2) Bill is to enable better regulation of the private rented sector, provide new tools to tackle fuel poverty, promote effective housing management and clarify existing law in respect of homelessness.
3. The Bill amends existing legislation in Northern Ireland. Some of that legislation is similar to legislation which operates in Great Britain.
4. The Bill contains seven powers for the Department for Social Development to make subordinate legislation to:
Clause 2 of the Bill inserts new Articles 5A and 5B in the Private Tenancies (Northern Ireland) Order 2006. New Article 5A(1) confers on the Department for Social Development a power to make regulations which provide for one or more tenancy deposit schemes in connection with private tenancies.
The power is needed to safeguard deposits paid by tenants and to facilitate the resolution of disputes arising in connection with such deposits.
In England and Wales, requirements relating to tenancy deposit schemes are set out in sections 212-215 of, and Schedule 10 to, the Housing Act 2004 (c. 34). There is a power (Schedule 10, paragraph 11) for the equivalent authorities to amend Schedule 10 by order.
Draft affirmative resolution
While the power to make regulations to provide for one or more tenancy deposit schemes gives the Department flexibility to develop a scheme or schemes in consultation with stakeholders, it is important that that the Assembly has an opportunity to debate the detail of such schemes.
Clause 2 of the Bill inserts new Articles 5A and 5B in the Private Tenancies (Northern Ireland) Order 2006. New Article 5B(5) confers on the Department for Social Development a power to make regulations which prescribe certain information to be provided by landlords who have received deposits under a tenancy deposit scheme in accordance with regulations made under new Article 5A.
The power is needed to ensure that tenants are made aware of their rights under tenancy deposit schemes.
In England and Wales, requirements relating to tenancy deposit schemes are set out in sections 212-215 of, and Schedule 10 to, the Housing Act 2004 (c. 34). There is a power in section 213(5) for the equivalent authorities to prescribe information to be provided by landlords who have received deposits.
Negative resolution (as a result of the effect of Article 72 of the Private Tenancies (Northern Ireland) Order 2006).
The Assembly will have an opportunity to debate the regulations which provide for a tenancy deposit scheme or schemes. The Assembly may not wish to debate the detail of information about such schemes which is to be provided to tenants.
Equivalent regulations for England and Wales under the Housing Act 2004 are subject to negative resolution in Parliament.
Clause 2 of the Bill inserts new Articles 5A and 5B in the Private Tenancies (Northern Ireland) Order 2006. New Article 5A provides for tenancy deposit schemes and new Article 5B(5) provides that landlords who have received deposits under a such schemes must provide certain information to tenants and relevant persons. New Article 5B(6) confers on the Department for Social Development a power to make regulations which prescribe the form in which such information must be given.
The power is needed to ensure that tenants are made aware of their rights under tenancy deposit schemes.
In England and Wales, requirements relating to tenancy deposit schemes are set out in sections 212-215 of, and Schedule 10 to, the Housing Act 2004 (c. 34). There is a power in section 213(6) for the equivalent authorities to prescribe the form in which such information must be given.
Negative resolution (as a result of the effect of Article 72 of the Private Tenancies (Northern Ireland) Order 2006).
Regulations which do no more than prescribe the form in which information is to be provided would not normally be debated by the Assembly.
Equivalent regulations for England and Wales under the Housing Act 2004 are subject to negative resolution in Parliament.
Chapter III of Part IV of the Private Tenancies (Northern Ireland) Order 2006 makes provision in relation to tenancies subject to rent control. In particular, Articles 42, 43 and 45 make provision in relation to determination of rents by the rent officer and Article 44 and Schedule 2 make provision in relation to rent assessment committees. Clause 4 of the Bill inserts a new Article 45A in the Private Tenancies (Northern Ireland) Order 2006 which confers on the Department for Social Development a power to amend Articles 42 to 45 of, and Schedule 2 to, that Order. Regulations made using this power can also make such consequential modifications of Chapter III of the Order as appear to the Department to be necessary or appropriate. The aim is to allow the Department to amend, at short notice, the procedures for undertaking the determination of an appropriate rent, the procedure after determination, consideration by a rent assessment committee and change of circumstances.
The power would allow for the procedures relating to determination of rents and the rent assessment committee be changed quickly to reflect changes to other legislation, if necessary, or to introduce good practice.
Draft affirmative resolution.
As this power would allow the Department to amend elements of the Private Tenancies (Northern Ireland) Order 2006, draft affirmative resolution offers the most appropriate form of Assembly control.
The rent control provisions of the Private Tenancies (Northern Ireland) Order 2006 are unique to Northern Ireland.
Clause 5 of the Bill inserts a new Article 65A in the Private Tenancies (Northern Ireland) Order 2006 which confers on the Department for Social Development a power to make regulations which provide for the registration of private landlords.
A "light touch" mandatory registration scheme for all private landlords is part of the Department's new private rented sector strategy which was launched on 24th March 2010. It is envisaged that the scheme will provide comprehensive information about the private rented sector and enable councils to work with private landlords to ensure compliance, raise standards and, where necessary, take enforcement action. In Scotland, Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004 requires almost all private landlords to apply for registration with their local authority.
Draft affirmative resolution.
While the power to make regulations to provide for a landlord registration scheme gives the Department flexibility to develop a scheme in consultation with stakeholders, it is important that that the Assembly has an opportunity to debate the detail of the scheme.
Clause 6 of the Bill inserts a new Article 68A(2) in the Private Tenancies (Northern Ireland) Order 2006 which allows the authorised officer of a district council to serve a notice, in a form to be prescribed by the Department, on a person who the officer has reason to believe has committed an offence in relation to a tenancy deposit scheme or the landlord registration scheme. The notice would offer the opportunity of discharging any liability to conviction for such offences by payment of a fixed penalty.
The purpose of the fixed penalty is to offer an alternative to court proceedings where possible, while ensuring that there is an effective sanction for breaching the tenancy deposit or the landlord registration schemes.
Negative resolution.
Clause 2 of the Bill inserts new Articles 5A and 5B in the Private Tenancies (Northern Ireland) Order 2006. New Article 5B(5) confers on the Department for Social Development a power to make regulations which prescribe certain information to be provided by landlords who have received deposits under a tenancy deposit scheme in accordance with regulations made under new Article 5A.
The power is needed to ensure that tenants are made aware of their rights under tenancy deposit schemes.
In England and Wales, requirements relating to tenancy deposit schemes are set out in sections 212-215 of, and Schedule 10 to, the Housing Act 2004 (c. 34). There is a power in section 213(5) for the equivalent authorities to prescribe information to be provided by landlords who have received deposits.
Negative resolution (as a result of the effect of Article 72 of the Private Tenancies (Northern Ireland) Order 2006).
The Assembly will have an opportunity to debate the regulations which provide for a tenancy deposit scheme or schemes. The Assembly may not wish to debate the detail of information about such schemes which is to be provided to tenants.
Equivalent regulations for England and Wales under the Housing Act 2004 are subject to negative resolution in Parliament.
Clause 2 of the Bill inserts new Articles 5A and 5B in the Private Tenancies (Northern Ireland) Order 2006. New Article 5A provides for tenancy deposit schemes and new Article 5B(5) provides that landlords who have received deposits under a such schemes must provide certain information to tenants and relevant persons. New Article 5B(6) confers on the Department for Social Development a power to make regulations which prescribe the form in which such information must be given.
The power is needed to ensure that tenants are made aware of their rights under tenancy deposit schemes.
In England and Wales, requirements relating to tenancy deposit schemes are set out in sections 212-215 of, and Schedule 10 to, the Housing Act 2004 (c. 34). There is a power in section 213(6) for the equivalent authorities to prescribe the form in which such information must be given.
Negative resolution (as a result of the effect of Article 72 of the Private Tenancies (Northern Ireland) Order 2006).
Regulations which do no more than prescribe the form in which information is to be provided would not normally be debated by the Assembly.
Equivalent regulations for England and Wales under the Housing Act 2004 are subject to negative resolution in Parliament.
Chapter III of Part IV of the Private Tenancies (Northern Ireland) Order 2006 makes provision in relation to tenancies subject to rent control. In particular, Articles 42, 43 and 45 make provision in relation to determination of rents by the rent officer and Article 44 and Schedule 2 make provision in relation to rent assessment committees. Clause 4 of the Bill inserts a new Article 45A in the Private Tenancies (Northern Ireland) Order 2006 which confers on the Department for Social Development a power to amend Articles 42 to 45 of, and Schedule 2 to, that Order. Regulations made using this power can also make such consequential modifications of Chapter III of the Order as appear to the Department to be necessary or appropriate. The aim is to allow the Department to amend, at short notice, the procedures for undertaking the determination of an appropriate rent, the procedure after determination, consideration by a rent assessment committee and change of circumstances.
The power would allow for the procedures relating to determination of rents and the rent assessment committee be changed quickly to reflect changes to other legislation, if necessary, or to introduce good practice.
Draft affirmative resolution.
As this power would allow the Department to amend elements of the Private Tenancies (Northern Ireland) Order 2006, draft affirmative resolution offers the most appropriate form of Assembly control.
The rent control provisions of the Private Tenancies (Northern Ireland) Order 2006 are unique to Northern Ireland.
Clause 5 of the Bill inserts a new Article 65A in the Private Tenancies (Northern Ireland) Order 2006 which confers on the Department for Social Development a power to make regulations which provide for the registration of private landlords.
A "light touch" mandatory registration scheme for all private landlords is part of the Department's new private rented sector strategy which was launched on 24th March 2010. It is envisaged that the scheme will provide comprehensive information about the private rented sector and enable councils to work with private landlords to ensure compliance, raise standards and, where necessary, take enforcement action. In Scotland, Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004 requires almost all private landlords to apply for registration with their local authority.
Draft affirmative resolution.
While the power to make regulations to provide for a landlord registration scheme gives the Department flexibility to develop a scheme in consultation with stakeholders, it is important that that the Assembly has an opportunity to debate the detail of the scheme.
Clause 6 of the Bill inserts a new Article 68A(2) in the Private Tenancies (Northern Ireland) Order 2006 which allows the authorised officer of a district council to serve a notice, in a form to be prescribed by the Department, on a person who the officer has reason to believe has committed an offence in relation to a tenancy deposit scheme or the landlord registration scheme. The notice would offer the opportunity of discharging any liability to conviction for such offences by payment of a fixed penalty.
The purpose of the fixed penalty is to offer an alternative to court proceedings where possible, while ensuring that there is an effective sanction for breaching the tenancy deposit or the landlord registration schemes.
Negative resolution.
Clause 6 of the Bill inserts a new Article 68A in the Private Tenancies (Northern Ireland) Order 2006 which provides for liability to conviction for offences in relation to a tenancy deposit scheme or the landlord registration scheme to be discharged by payment of a fixed penalty. Amounts paid to district councils in pursuance of fixed penalty notices may only be used for the purposes of the council's functions under the Private Tenancies Order or such other of its functions as may be prescribed under Article 68A(10)
To protect the integrity of the fixed penalty arrangements, it is important that income received by councils in the form of such penalties is used for appropriate purposes. It is the Department's intention that these purposes should be linked to regulation of the private rented sector. Councils undertake a range of regulatory functions in relation to the private tenancies. While most of these relate to the Private Tenancies (Northern Ireland) Order 2006, other functions derive from other pieces of legislation. For example, powers for councils to prosecute landlords for illegal eviction and harassment are contained in Article 54(3A) of the Rent (Northern Ireland) Order 1978.
Negative resolution.
The relevant policy decisions are on the face of the Bill which makes it clear that the Department's intention is for income generated by fixed penalties to be used for the purposes of regulating private tenancies. Given this, it is felt that negative resolution is the most appropriate form of Assembly control.
Mr Peter McCallion
Your Ref: CSD/009/2008/12/ SK
Social Development Committee Clerk
Room 412
Parliament Buildings
Stormont
BELFAST
BT4 3XX
8 July 2010
Dear Peter,
You wrote to John Ball on 29th June 2010 following the briefing by officials on 24 June.
The Committee has requested information about guidance on dealing with anti-social behaviour issued by the Department to the Housing Executive and in particular the guidance covering mediation procedures and the treatment of transfer applications by anti-social tenants.
You may recall that I wrote to you on 2 November 2009 giving commitments that the Department would:
a. issue guidance to emphasise the Department's view that moving anti-social behaviour from one area to another would not be an acceptable approach to this problem;
.b invite the Housing Executive to amend the Common Housing Selection Scheme to give social landlords formal authority to refuse transfer applications where the applicant or a member of the applicant's household is subject to any form of sanction relating to anti-social behaviour such as an injunction or Anti-Social Behaviour Order;
c. develop proposals for future legislation that would enable social landlords to withhold consent to an exchange of tenancies where a potential assignee or a member of such an assignee's household is subject to any form of sanction relating to anti-social behaviour.
Regarding point (a), the Department periodically issues guidance to the Housing Executive on dealing with anti-social behaviour. On 13 January 2010 the Department issued an amendment to that guidance to emphasise that housing transfers are not an acceptable method of dealing with anti-social behaviour and that an application for transfer should not be accepted where the Housing Executive has served on the tenant a notice seeking possession on the grounds of anti-social behaviour, or is considering whether to serve such a notice, or proceedings for possession are pending. This was intended to bring transfer procedures into line with the House Sales Scheme which currently provides that a tenant cannot exercise the right to buy where the Housing Executive is seeking possession of the property on the grounds of anti-social behaviour.
The current guidance relating to transfers does not specifically mention injunctions or anti-social behaviour orders (ASBOs). However, as the Committee will be aware, clause 9 of the Housing (Amendment) (No. 2) Bill is intended to enable the Housing Executive and registered housing associations to withhold consent to an exchange of tenancies, not only where a possession order has been made or is pending but also where certain injunctions and ASBOs are in force. It is envisaged that, by the time the Bill becomes law and comes into operation, the House Sales Scheme and the anti-social behaviour guidance will have been amended to take account of relevant injunctions and ASBOs and it is also intended that the Common Selection Scheme will have been amended to ensure that tenants with a history of anti-social behaviour have no right to a housing transfer.
In addition, the guidance issued on 13 January 2010 recommends that mediation should only be resorted to where it appears to have a reasonable prospect of success and should be conducted in such a way that victims are not subjected to further distress.
Regarding point (b), as mentioned above it is intended that tenants who have been involved in anti-social behaviour will have no right to a housing transfer under the Common Selection Scheme and the Housing Executive has been invited to work up the necessary amendment to the Scheme.
Regarding point (c), as mentioned above, clause 9 of the Housing (Amendment) (No. 2) Bill would enable the Housing Executive and registered housing associations to withhold consent to an exchange of tenancies where a potential assignee or a person residing with a potential assignee is subject to any form of sanction relating to anti-social behaviour.
The effect of the above proposals would be that tenants of social housing who are subject to any form of sanction relating to their own anti-social behaviour, or such behaviour by any person residing with them, will have no automatic to buy their home, transfer to another social tenancy, or exchange homes with another tenant of social housing.
I attach a copy of the Department's guidance on dealing with anti-social behaviour which was issued to the Housing Executive on 13 January 2010. In particular, you may wish to draw the Committee's attention Annex C which deals with transfers and mediation.
Yours sincerely
Stephen Martin
cc: Michael Sands
John Ball
Billy Crawford
Gareth McKinty
Stephen Baird
Room 412
Parliament Buildings
Belfast
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
29 June 2010
Our Ref: CSD/009/2008/12/SK
Mr John Ball
Department for Social Development
Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear John
At its meeting of 24 June 2010, the Committee received a briefing from officials on the Housing (Amendment) (No.2) Bill.
Members indicated that they require further information on the recent guidance issued by the Department to the Northern Ireland Housing Executive. Members are particularly interested in how the guidance sets out mediation procedures and the treatment of transfer applications by anti-social tenants.
I would be most grateful if you could provide this information by Monday 19 July 2010.
On behalf of the Committee, I would like to pass on my thanks to the Departmental officials for their briefing.
Yours sincerely
Peter McCallion
Committee Clerk
Mr Peter McCallion
Social Development Committee Clerk
Room 412
Parliament Buildings
Stormont
BELFAST
BT4 3XX 26 November 2010
Dear Peter
Following the briefings by DSD officials and Housing Rights Service on 11 November 2010, the Committee has raised some queries on tenancy deposit schemes, regulation of the private rented sector and energy brokering. These are answered below. As agreed, I have also included a flow chart detailing the powers available to district councils in regulating the private rented sector and an accompanying table containing some narrative on these. I hope these will clarify the extent of the powers currently available to district councils and demonstrate the fact that councils do not so much require increased powers of enforcement as they do a means of enforcing the powers they currently have. Mandatory landlord registration, in conjunction with the proposed information sharing provisions, will provide councils with the evidence necessary for effective regulation of the sector.
An update on the progress which housing associations have made in brokering cost reductions or service improvements for their tenants with energy providers.
For a number of years, there have been examples of associations buying oil in bulk, particularly for sheltered schemes, and passing on the savings to tenants through lower service charges. However, due to the lack of competition in the market for gas and electricity, savings have been limited. When the legislative powers for the Housing Executive are in place and now that a greater range of suppliers has entered the Northern Ireland market, the Housing Executive and housing associations plan to work together to achieve maximum savings.
Confirmation as to whether NIHE tenants currently benefit from a bulk purchase tenancy discount with Northern Ireland Electricity.
There is no bulk purchase tenancy discount with NIE. Whilst the Housing Executive explored developing a scheme like this some years ago, it could not proceed without legislative provision.
Clarification as to the type of Tenancy Deposit Scheme which is to be introduced following the passage of the Bill.
In order to provide landlords with a choice, provision will be made for two types of scheme: custodial and insurance based. Both will require Departmental approval and both will be required to include dispute resolution arrangements free at the point of use.
With respect to custodial schemes, the landlord will pay the deposit to the scheme within 14 days of receiving it from the tenant. The interest accrued by deposits in the scheme will be used to pay for the running costs of the scheme and there will be no charge to either the landlord or the tenant. At the end of the tenancy, if the landlord and tenant agree how the deposit should be divided, the scheme will pay out within 10 days. If there is a dispute the scheme will hold the deposit until the dispute resolution service or courts decide what is fair.
In an insurance scheme, the landlord retains the deposit and pays a premium to the insurance scheme to protect the funds. At the end of the tenancy, if there is a dispute, the landlord must hand over the disputed amount until the dispute is resolved. The same requirements apply to this scheme in relation to timescales. If for any reason the landlord fails to comply, the insurance arrangements will ensure the return of the deposit to the tenant provided they are entitled to it.
The detail of the schemes will be provided for in regulations which will be subject to draft affirmative resolution. Once introduced, district councils will be responsible for enforcing the tenancy deposit provisions.
I hope this answers your queries and would of course be happy to provide any further information as required.
Yours sincerely
pp ALASTAIR CAMPBELL
DSD Housing Division
| Requirements Under Current Law |
Purpose of Law | Issues | Penalty and who can be Convicted |
| Landlord required to provide a tenant with a statement of tenancy terms within 28 days of the tenancy commencing. | The statement of tenancy terms must give details including: name and address and contact number of the landlord and agent, commencement date of tenancy, notice of termination, rent payable, rates payable, deposit, repairing obligations, inventory of furniture. | District councils do not always know when a tenancy commences and have to wait for a tenant to make a complaint about the landlord or problems with the tenancy in order to enforce legislation. | Landlord is liable on summary conviction to a fine not exceeding £2,500. |
| Landlord required to provide tenant with a rent book, free of charge, within 28 days of the tenancy commencing. | Landlord must maintain the rent book which is used as a written record of rent and other payments made in respect of the tenancy. | The information required in the rent book is also required under the above statement of tenancy terms. There has always been a requirement to provide a rent book but the requirement for a statement of tenancy terms was only a requirement from 1 April 2007. The Department is proposing to amalgamate so landlords will only be required to issue one document. | Landlord is liable on summary conviction to a fine not exceeding £2,500. |
| Property owner fails to comply with a Notice of Unfitness or Notice of Disrepair. | To ensure that an owner carries out any necessary work to make a property fit (notice of unfitness)or to bring it up to a reasonable standard (notice of disrepair). | Owner (in this case includes the landlord or agent) of the dwelling is liable on summary conviction to a fine not exceeding £2,500. | |
| Person obstructs an officer of the council from carrying out functions in relation to unfitness or disrepair. | To ensure that an owner carries out any necessary work to make a property fit (notice of unfitness) or to bring it up to a reasonable standard (notice of disrepair). | Person who obstructs is liable on summary conviction to a fine not exceeding £1,000 | |
| A landlord is required to apply to the council for a certificate of fitness where a new tenancy has commenced in a pre 1945 property within 28 days of a tenancy commencing. | To ensure that older privately rented properties are 'fit for human habitation' and where they are found to be unfit are made subject to rent control and enforcement action. | District councils do not always know when a tenancy commences. | Landlord is liable on summary conviction to a fine not exceeding £2,500. |
| Landlord is prohibited from recovering rent in excess of the rent limit for a rent controlled tenancy. | To protect tenants from paying rent in excess of legal amount of rent. | Landlord is liable on summary conviction to a fine not exceeding £2,500. | |
| Occupier or owner of a private tenancy is required to give information to a council in order for it to serve a notice. | To allow district councils to ascertain the ownership of the dwelling. | Person (in this case the owner or occupier) is liable on summary conviction to a fine not exceeding £1,000. | |
| Agent or rent collector required to give contact details of the landlord for the purposes of serving notices | Documents which are to be served on the landlord are deemed to be served on the landlord if they are served on the agent/rent collector, of the landlord. | Agent/rent collector is liable on summary conviction to a fine not exceeding £1,000. | |
| Landlord and tenant required to give a rent assessment committee information if required in relation to a controlled rent. | In order to assist a rent assessment committee to consider whether a rent determined is an appropriate rent. | Landlord or tenant liable on summary conviction to a fine not exceeding £2,500 | |
| Landlord prohibited from depriving a tenant of his occupation of a dwelling house. | To protect tenants from harassment or illegal eviction. | Landlord liable on summary conviction to a fine not exceeding £5,000. |
It is worth noting that mandatory landlord registration will provide local councils with the required information to enforce compliance against those landlords who do not meet current requirements. In parallel with landlord registration the proposed information sharing provisions will mean that information held by other parts of Government can be shared with local councils and used to detect and pursue those landlords who evade the law.
Committee for Social Development
Room 412
Parliament Buildings
BELFAST
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
16 November 2010
Our Ref: CSD/010/2010/SK
Ms Margaret Sisk
Department for Social Development
Lighthouse Building1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear Ms Sisk,
At its meeting of 11 November 2010 the Committee received briefings from Department officials and the Housing Rights Service on the Housing (Amendment) (No.2) Bill.
The Committee agreed that I should write to the Department and:
I would be grateful if you could provide this information at your earliest convenience.
On behalf of the Committee I would like to pass on my thanks to the officials for their attendance at the meeting.
Yours sincerely
Peter McCallion
Committee Clerk
Mr Peter McCallion
Social Development Committee Clerk
Room 412
Parliament Buildings
Stormont
BELFAST
BT4 3XX 02 December 2010
Dear Peter
Following evidence sessions from the Landlords' Association of Northern Ireland and the Housing Executive on 18 November 2010, the Committee has raised some queries on tenancy deposit schemes, energy brokering and indemnities. These are answered below.
The Department is not aware of any current difficulties around landlord's requirements for guarantors in the private rented sector. This issue was first raised by the Landlord's Association of Northern Ireland in response to the Department's proposals for tenancy deposit schemes which are intended to protect vulnerable tenants by ensuring more security over the return of their deposit and providing independent dispute resolution services where necessary.
It is true that a landlord would be perfectly within his rights to demand a guarantor rather than take a deposit, although in practice this is likely to limit a landlord's choice of tenants as many vulnerable tenants may find it difficult to get a guarantor for their lease. Tenancy deposit schemes in England and Wales have not found the use of guarantors a problem or noticed an increase in this requirement from landlords since the introduction of tenancy deposit schemes.
The Department is planning to develop a Northern Ireland scheme for the provision of specific support for more vulnerable individuals and families to ensure they can access private rented sector accommodation where necessary. This model will draw on the merits and strengths of the Smartmove scheme currently operating in various parts of Northern Ireland. Smartmove provides homeless or vulnerable people with comprehensive housing advice and access to good quality accommodation in the private sector. It offers landlords a rent guarantee and assists the tenant in saving for a deposit. The scheme can also provide tenants with ongoing support and advice to enable them to sustain their tenancies, as well as befriending support from volunteers for new tenants who may be living independently for the first time.
We have already provided copies of relevant research on the experiences of private sector tenants.
The Housing Executive is currently working with its insurance broker to provide an estimate of the expected cost. It has not been possible to get the information in time for this letter although we will provide an answer as soon as possible.
In Newcastle-upon-Tyne in 1999, the local District Council teamed up with two large Housing Associations to develop a scheme to procure cheaper electricity for tenants. Between the three organisations they had some 70,000 tenants. In the newly opened electricity market, they issued a tender through the European Journal to the major electricity suppliers asking for their best price if the District Council and the two Housing Associations were to make all of their tenants aware of the discount they had brokered.
The attraction for the electricity suppliers was that they secured a large market share at once and saved on the costs of having to employ sales staff to seek out individual customers with a view to changing supplier. The benefits for the District Council were that they received some of these savings as commission but the primary objective was to alleviate fuel poverty for their tenants. The scheme was entirely voluntary – no tenant could be forced to participate – the incentive to do so was the attractive discount that was procured by the landlord. The successful supplier was the local electricity supplier, Northern Electric, who offered a discounted tariff to retain market share. However, despite an attractive discount being obtained only a few thousand tenants took up the offer. This was because the tenant had to opt in to the scheme – subsequent schemes have involved landlords switching dwellings over to the preferred supplier at Change of Tenancy stage.
The Housing Executive considered replicating the Newcastle scheme in the year 2000 but ran up against two barriers. The first was the terms of the electricity privatisation contracts dating back to 1992, which meant a brokering scheme was not practical until these contracts expired in 2007. The second was that the Housing Executive needed new legislation to allow it to do such a scheme.
There are currently 10,485 NIHE dwellings on Economy 7 heating from a peak of 26,000 dwellings in 2000. This figure includes 1606 dwellings within multi storey flat blocks, where options to change the form of heating are limited. The Housing Executive plans to offer replacement heating to the remaining Economy 7 users over the next five years although it is worth noting that, in the past, significant numbers of tenants with Economy 7 have refused to switch to gas or oil. Whilst some tenants do not like Economy 7, for other tenants it seems to work well and they prefer to retain it.
I hope this answers your queries and would of course be happy to provide any further information as required.
Yours sincerely
Alastair Campbell
DSD Housing Division
Committee for Social Development
Room 412
Parliament Buildings
BELFAST
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
23 November 2010
Our Ref: CSD/010/2010/SK
Ms Margaret Sisk
Department for Social Development
Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear Ms Sisk,
At its meeting of 18 November 2010, the Committee received a briefing from the Northern Ireland Housing Executive and the Department on the Housing (Amendment) (No.2) Bill.
The Committee agreed that I should write to the Department seeking the following:
I would be grateful if you could provide a response by Tuesday 7 December 2010.
On behalf of the Committee, I would like to convey my thanks to the officials for their briefing.
Yours sincerely
Peter McCallion
Committee Clerk
Mr Peter McCallion
Social Development Committee Clerk
Room 412
Parliament Buildings
Stormont
Belfast
BT4 3XX 7 December 2010
Dear Peter
Following evidence sessions from Disability Action Northern Ireland on 25 November 2010, the Committee has raised some queries. These are answered below.
An assurances that there will be guidance for social landlords on the appropriate use of information relating to people with mental health problems who may be victims of anti-social behaviour or who may be wrongly perceived as being anti-social tenants.
Clause 10 of the Bill would allow any person holding relevant information which at present cannot be disclosed for data protection reasons to disclose such information to the Housing Executive or a registered housing association. In the case of this clause, "relevant information" means, specifically, information about certain court orders or injunctions relating to anti-social behaviour. It is not envisaged that any clinical information about mental health issues would be disclosed under clause 10.
Members may be aware that the Department has already issued guidance to the Housing Executive advising them to be conscious of the difference between anti-social behaviour which is deliberate and behaviour which is the result of illness or some other form of vulnerability and needs to be addressed through the provision of support by the appropriate agencies. The guidance emphasises that the Disability Discrimination Act 1995 prohibits eviction on the basis of a person's disability and that the Executive should ensure that procedures are in place to facilitate the provision of suitably-tailored support packages for vulnerable tenants.
The guidance also cautions the Executive that it should not take a decision on an applicant's eligibility for housing accommodation without first considering whether any unacceptable behaviour is due to a physical, mental or learning disability. If this appears to be the case, the Executive should consider whether the applicant would be able to maintain a tenancy with appropriate care and support. The guidance advises that, in considering such cases, the Executive needs to consult with relevant agencies, including social services, health professionals and providers of suitable housing, care and housing-related support services.
I can confirm that further guidance will be issued to the Executive in respect of the information-sharing provisions of the Bill
Details of the level of information to be included in the register of landlords, e.g. whether the register will record if a house meets the Lifetime Homes Standard and other information regarding disabled access.
The Department is still developing the detail of the landlord registration scheme and this will be provided in subordinate legislation which will be subject to full Committee and Assembly scrutiny as part of the draft affirmative procedure.
At this stage the Department's priority is to capture the most essential information (such as a landlord's name and address and also the property addresses) in order to provide Councils with the data they need to enforce the law governing the private rented sector.
However, the Department will work with stakeholders to ensure that the detail of the landlord registration scheme is as effective as possible without being so onerous for landlords that it could discourage them from registering.
I hope this answers your queries and would of course be happy to provide any further information as required.
Yours sincerely
Alastair Campbell
DSD Housing Division
Committee for Social Development
Room 412
Parliament Buildings
BELFAST
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
1 December 2010
Our Ref: CSD/010/2010/SK
Ms Margaret Sisk
Department for Social Development
Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear Ms Sisk,
At its meeting of 25 November 2010, the Committee received a briefing from Disability Action on the Housing (Amendment) (No.2) Bill.
The Committee agreed that I should write to the Department seeking assurances that there will be guidance for social landlords on the appropriate use of information relating to people with mental health problems who may be victims of anti-social behaviour or who may be wrongly perceived as being anti-social tenants.
The Committee also sought details of the level of information to be included in the register of landlords, e.g. whether the register will record if a house meets the Lifetime Homes Standard and other information regarding disabled access.
I would be grateful if you could provide this information at your earliest convenience.
Yours sincerely
Peter McCallion
Committee Clerk
Mr Peter McCallion
Social Development Committee Clerk
Room 412
Parliament Buildings
Stormont
Belfast
BT4 3XX 15 December 2010
Dear Peter
In the course of the Committee's informal review of clauses, a number of issues have been raised. This letter contains a response to the queries contained in your letters of 07, 08 and 10 December.
The Committee suggested the Department should draft an amendment placing a duty on the Department to introduce tenancy deposit schemes and a landlord registration scheme within a defined timeframe.
The Minister is content to table this amendment. We will send the text of the amendment, along with the additional outstanding amendments, when drafted.
Further information on tenant deposit bond schemes that may be used to protect the interests of vulnerable people and those on low incomes.
Smartmove, which has been operating in Northern Ireland for just over 10 years, is a scheme which houses individuals and families with a wide range of support needs. Initially, the scheme offered landlords a 'bond' to cover the cost of any damage caused by a tenant. However, over the years, the services offered by Smartmove have developed significantly. It now includes a private sector housing advice service, tenancy support, mediation and the offer of good quality private sector accommodation to people who are homeless.
Through the Housing Executive, Smartmove receives annual grant funding of £200k. In addition, Smartmove secured a three year grant totalling £568k from the Oak Foundation (a group of charitable and philanthropic organisations) which will help expand their business.
Smartmove currently has a database of almost 400 landlords and 800 tenants living in the scheme. 250 tenancies which have been in the scheme for 4 years or more have been handed over to the landlord and tenants, with Smartmove ready to move in should difficulties arise. Smartmove will also assist those referred from hostels or temporary accommodation and the Housing Rights Service/NIHE Prison project.
With current funding, the aim of Smartmove over the next two years is to enable those who are homeless or in housing difficulty to acquire accommodation and live independently in communities, through developing good working relationships with private sector landlords, providing good quality accommodation.
Information on the number of properties subject to rent control and which may not comply with the fitness standard.
The table below sets out the total number of properties currently subject to rent control.
| Tenancy type | Total |
| Protected/statutory | 1119 tenancies of which 170 tenancies are unfit |
| Pre-1945 non-protected tenancies unfit | 124 |
Rents of protected/statutory tenancies are always subject to rent control
Rents of tenancies which have commenced on or after 1 April 2007 in properties built pre-1945, and which are found on inspection by an environmental health officer to be unfit, are subject to rent control for as long as the property remains unfit.
The Committee asked the Department to consider revising the penalties associated with non-compliance by landlords. While members were generally content with a fixed penalty of £500 it felt that fixed penalties should increase so as to effectively deter non-compliance with tenancy legislation.
The Department feels that the fixed penalty of £500 is sufficient for non compliance with landlord registration but it has written to the Department of Justice (and awaits a response) about increasing the fixed penalty where a landlord fails to comply (£500 for first offence and £1000 for a subsequent offence).
Members asked the Department to consider an amendment to the Bill ensuring that courts would award appropriate costs to district councils following a successful prosecution.
Again the Department has written to the Department of Justice for a view on this and we await a response.
Information on the penalties that councils may currently apply in connection with non-compliance with tenancy legislation.
The Housing (Amendment) (No.2) Bill will introduce fixed penalties for failure to comply with tenancy deposit and landlord registration requirements. Councils currently have no powers to issue fixed penalty notices under private tenancy law. Any enforcement action at present is taken through the criminal courts.
Clarification as to the availability of anti-social behaviour related information (ASBOs, relevant injunctions or orders for possession).
The courts may grant Anti-Social Behaviour Orders ("ASBOs") on application by the PSNI, a district council or the Housing Executive. Where an ASBO has been made on an application by the Housing Executive, the Executive will hold details of the order on its own record system. Otherwise, the Housing Executive would have to request information about ASBOs from the Department of Justice. Registered housing associations have no powers in relation to ASBOs and would have to request such information from the Housing Executive (if appropriate) or the Department of Justice.
The courts may grant injunctions against anti-social behaviour or breach of tenancy agreement on application by the Housing Executive, a registered housing association or a private landlord. Where an injunction has been made on an application by the Housing Executive, the Executive will hold details on its own record system. Otherwise, the Housing Executive may request information from the relevant housing association. Housing associations can seek information about injunctions from other associations or from the Housing Executive as the case may be.
The courts may grant orders for possession of secure tenancies on application by the Housing Executive or a registered housing association. Where an order for possession has been made on an application by the Housing Executive, the Executive will hold details on its own record system. Otherwise, the Housing Executive may request information from the relevant housing association. Housing associations can seek information about orders for possession from other associations or from the Housing Executive as the case may be.
The Housing Executive has developed protocols with the PSNI and registered housing associations for sharing information about anti-social behaviour and aims to develop similar links with the Department of Justice.
The extent to which it expected that this information will be used in decision-making related to tenancy exchange.
Where the Housing Executive or a registered housing association receives an application to exchange tenancies, there may be good housing management reasons to withhold consent if either of the parties have a record of anti-social behaviour. Article 32A of the Housing (NI) Order 1983 provides that a landlord can only withhold consent on the grounds set out in Schedule 3A to that Order, which include circumstances where proceedings for possession have begun against one of the parties or an order for possession has been made. Clause 9 as drafted would insert a new ground in Schedule 3A to allow landlords to withhold consent where a range of orders etc. relating to anti-social behaviour are in force or are pending. Given that an application for such an exchange would come from one or more of the landlord's own tenants, the landlord should be aware of any history of anti-social behaviour on the part of the applicant. It is however possible that an ASBO or an injunction against anti-social behaviour may have been made against the tenant on application by another party without the landlord's knowledge. In such cases, the information-sharing provisions of clause 10 of the Bill should help to support the provision in clause 9 for landlords to withhold consent to applications for exchange of tenancies.
The Committee asked the Department to consider an amendment permitting the disclosure of other types of relevant information either directly or indirectly related to anti-social behaviour. The Committee also suggested an amendment to allow such information to be used in decision making related to the exchange of tenancies.
Decisions taken by social landlords to deny access to social housing or homelessness assistance, or to facilities such as transfers, exchanges and the right to buy are currently only taken only where there is objective evidence that the individuals concerned have been guilty of anti-social behaviour. Ideally such evidence would be based on a decision by the courts, which is why the relevant information specified for the purposes of clause 10 includes a range of injunctions and other judicial orders. There is a strong risk that attempting to use subjective or unsubstantiated evidence could undermine these decisions and leave landlords highly vulnerable to legal challenge.
The Department has given consideration to including information about convictions for indictable offences in the description of relevant information specified for the purposes of clause 10. It appears that information about convictions held by Criminal Records can be accessed by public authorities and others under statutory procedures in the Police Act 1997. As this information is already available, it is not therefore necessary to make additional provision for this in clause 10.
However, given that existing legislation provides that convictions for offences involving the use of tenants' homes for immoral or illegal purposes or indictable offences committed in or in the vicinity of the tenant's home are grounds for possession of secure tenancies, and that information about such convictions is already accessible, the Department proposes to follow the Committee's suggestion and amend clause 9 to allow the Housing Executive and registered housing associations to withhold consent to an exchange of tenancies where the tenant or the proposed assignee or a person residing with either of them has been convicted in connection with an offence which involves the use of tenant's or assignee's home for immoral or illegal purposes, or for an indictable offence committed in or in the vicinity of the tenant's or assignee's home (this would include serious sexual offences and trafficking illegal drugs).
The Committee asked the Department to consider an amendment to allow information on tenants' antisocial behaviour to be shared with private landlords in certain circumstances.
The Department supports this proposal in principle. However, there are data protection implications and it would be necessary to discuss the proposal with the Information Commissioner. While time constraints would rule out such an amendment to the Bill at this stage, the Department will consider including the necessary provision in the next Housing Bill.
In an earlier letter, the Committee had asked about the cost of providing indemnities to Housing Executive staff involved with the governance of other bodies.
The purpose of the legislation is to ensure that individual members of Housing Executive staff are not made personally liable where they are involved with the governance of bodies which subsequently encounters financial or other difficulties. Where such bodies are government funded, there will be no cost. However, assuming 50 members of staff sit on boards and these boards are funded 50% by government and 50% from other sources, the additional premium would be approximately £10,000 to £15,000. This would however be subject to actual quotations at the time cover is taken.
I hope this answers your queries and would of course be happy to provide any further information as required.
Yours sincerely
Alastair Campbell
DSD Housing Division
Room 412
Parliament Buildings
Belfast
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
7 December 2010
Our Ref: CSD/010/2010/SK
Ms Margaret Sisk
Department for Social Development
Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear Ms Sisk,
At its meeting of 2 December 2010, the Committee informally scrutinised the clauses and proposed amendments to the Housing (Amendment) (No.2) Bill.
The Committee informally agreed that the Department should draft an amendment which would:
The Committee further agreed that I should write to the Department seeking further information on tenant deposit bond schemes which may be used to protect the interests of vulnerable people and people with low incomes.
The Committee also sought information on the number of properties that are subject to rent control and which may not comply with the fitness standard.
I would be grateful if you could provide this information at your earliest convenience.
On behalf of the Committee I would like to convey my thanks to the officials for their briefing.
Yours sincerely
Peter McCallion
Committee Clerk
Room 412
Parliament Buildings
Belfast
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
8 December 2010
Our Ref: CSD/010/2010/PM
Ms Margaret Sisk
Department for Social Development
Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear Ms Sisk,
At its meeting of 7 December 2010, the Committee continued its informal scrutiny of the clauses and proposed amendments to the Housing (Amendment) (No.2) Bill.
The Committee agreed that I should write to the Department suggesting that consideration be given to the revision of the penalties associated with non-compliance by landlords as set out in the Bill.
Members generally supported the principle that the first fixed penalty that a landlord received should probably not exceed £500. Members felt however that subsequent fixed penalties should certainly increase so as to deter non-compliance with tenancy legislation by landlords.
Members also expressed concerns in respect of the difficulties experienced by district councils in recovering the costs associated with court action against non-compliant landlords. Members agreed that the Department should consider an amendment to the Bill which would ensure that courts would award appropriate costs to district councils following a successful tenancy prosecution.
As indicated at the meeting, I will also correspond with the Department of Justice on this matter.
I would be grateful if you could respond at your earliest convenience.
On behalf of the Committee I would like to convey my thanks to the officials for their briefing.
Yours sincerely
Peter McCallion
Committee Clerk
Room 412
Parliament Buildings
Belfast
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
10 December 2010
Our Ref: CSD/010/2010/PM
Ms Margaret Sisk
Department for Social Development
Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear Ms Sisk,
At its meeting of 9 December 2010, the Committee continued its informal scrutiny of the clauses and proposed amendments to the Housing (Amendment) (No.2) Bill.
The Committee agreed that I should write to the Department seeking information on the penalties that district councils may currently apply in connection with non-compliance with tenancy legislation.
The Committee considered the types of information that will be disclosed in respect of anti-social behaviour e.g. injunctions, orders or orders for possession related to anti-social behaviour. The Committee sought clarification as to the availability of such information and the extent to which it is expected that this information will be used in decision-making related to tenancy exchange.
The Committee agreed that I should write to the Department suggesting that consideration be given to the development of amendments which would permit the disclosure of other types of relevant information either directly or indirectly related to anti-social behaviour. The Committee further requested that the Department consider amendments to permit such information to be used in decision-making related to the exchange of tenancies.
The Committee also informally agreed that the Department should give consideration to amendments to the Bill to permit the sharing of anti-social behavior information in respect of social tenants with private landlords in certain circumstances.
I would be grateful if you could respond at your earliest convenience.
On behalf of the Committee I would like to convey my thanks to the officials for their briefing.
Yours sincerely
Peter McCallion
Committee Clerk
ANNEX A: Introductory tenancies
ANNEX B: Grounds for possession of secure tenancies
ANNEX C: Proceedings for possession of secure tenancies
ANNEX D: Injunctions
ANNEX E: Eligibility (allocations)
ANNEX F: Eligibility (homelessness)
ANNEX G: Anti-Social Behaviour Orders & Acceptable Behaviour Contracts
This guidance which is issued by the Department for Social Development ("the Department") to the Northern Ireland Housing Executive ("the Executive") is intended to help the Executive in dealing with anti-social behaviour which affects or involves its tenants. It should be read in conjunction with the guidance on the preparation and publication of policies and procedures for dealing with anti-social behaviour issued by the Department on 27 September 2004.
There is no statutory definition of anti-social behaviour. However, for the purposes of this guidance anti-social behaviour may be construed as:
This guidance replaces the guidance on dealing with anti-social behaviour issued on 30 April 2008.
1. The Executive may elect to operate an introductory tenancy regime under Chapter II of Part II of the Housing (Northern Ireland) Order 2003 ("the 2003 Order") The Executive should inform the Department in writing if it elects to operate such a regime.
2. The purpose of an introductory tenancy regime is to allow the Executive to assess the suitability of an applicant for housing accommodation to hold a secure tenancy.
3. Where the Executive has elected to operate an introductory tenancy regime, all new tenants of the Executive's housing stock who would otherwise have been awarded secure tenancies must be awarded tenancies on an introductory basis. Secure tenants of registered housing associations who transfer to Housing Executive accommodation will, however, retain their security of tenure. A secure tenancy cannot become an introductory tenancy.
4. An introductory tenancy normally lasts for 12 months ("the trial period"). Only periods spent as a tenant of another introductory tenancy or a qualifying shorthold tenancy count towards the trial period.
5. While introductory tenants have limited security of tenure, in most other respects they enjoy the same rights and entitlements as secure tenants.
6. At any time during the trial period, the Executive may apply to the court for an order for possession in respect of the tenancy. The court will be required to grant the order provided that the Executive has complied with the notice requirements set out in Article 10 of the 2003 Order unless the decision-making process was obviously unfair. If the decision was demonstrably flawed then the court may adjourn the possession proceedings to allow the tenant to make an application for judicial review.
7. Judicial review proceedings are not an appeal against the Executive's decision and the court will not require a complete rehearing of the facts. However, judicial review proceedings will look closely at the Executive's decision- making process. For example:
8. Possession proceedings in relation to a secure tenancy are subject to a test of reasonableness ie the court may not grant an order for possession if it considers that it would be unreasonable to do so. Because the court has a very limited discretion in proceedings in relation to possession of an introductory tenancy, the Executive has a responsibility to ensure that, in seeking possession of such a tenancy, it is acting reasonably. This means that the Executive should make a balanced judgement having regard to its own interests as a landlord, the interests of the public, and the interests of the tenant and his household.
9. Introductory tenancies enable social landlords to identify and remove individuals who have demonstrated their unsuitability to become secure tenants. The non-secure nature of introductory tenancies allows such removals to be conducted without protracted legal proceedings, thereby minimising (a) trauma to neighbours and (b) waste of the landlord's resources. However, introductory tenancies are not a housing management tool designed to allow social landlords to rid themselves of awkward tenants. The objective standard by which an individual's unsuitability to hold a secure tenancy must be measured is that the tenant has been guilty of behaviour that would be grounds for possession of a secure tenancy. While the Executive is not required to prove that any such grounds exist when it applies for possession of an introductory tenancy, Article 10(3) of the 2003 Order requires that the Executive must state, in the notice of proceedings, its reasons for seeking an order for possession. The Department expects that the reasons given in any notice of proceedings for possession of an introductory tenancy will normally relate to behaviour which would, if the tenant was a secure tenant, fall within:
As outlined in paragraph 9 above, introductory tenancies are intended to address the problem of serious anti-social behaviour. Where an introductory tenant has fallen into arrears of rent, the Executive should undertake appropriate recovery procedures for recoupment of the outstanding amount using the normal arrangements under the terms of the tenancy agreement. The fast-track possession procedure available in respect of introductory tenancies should only be used in serious cases of rent arrears where repossession would be warranted if the tenancy was a secure tenancy ie where Ground 1 in Schedule 3 to the 1983 Order would apply. While it is appropriate that cases of rent arrears should be referred to the Citizens Advice Bureau for debt counselling, good practice suggests that such referrals should be made before cases become so serious that repossession is contemplated.
10. Eviction should always be a last resort. The implications for a person who is deprived of his home are no less grave if the individual concerned happens to hold an introductory rather than a secure tenancy. A decision to seek possession of an introductory tenancy should not be taken lightly but should be reasonable in the circumstances (see paragraphs 7 and 8) and in accordance with the principles of natural justice.
11. Where it appears that the behaviour of an introductory tenant would, if he were a secure tenant, be in breach of Grounds 1, 2 or 3 in Schedule 3 to the 1983 Order, the Executive should:
12. Before instituting possession procedures in respect of an introductory tenancy, the Executive should:
13. Article 10(7) of the 2003 Order requires that the notice of proceedings for possession must inform the tenant where he should take the notice if he needs help or advice about it. Tenants should be advised to take the notice to a solicitor or to the Housing Rights Service at Middleton Buildings (4th Floor), 10-12 High Street, Belfast.
14. If requested to do so, the Executive must review any decision to seek an order for possession of an introductory tenancy in accordance with the relevant regulations made by the Department- the Introductory Tenants (Review) Regulations (Northern Ireland) 2003 (S.R. 2003 No. 410).
15. The review will be carried out by a person who was not involved in the decision to apply for an order for possession and senior to the person who made that decision.
16. A review will normally be prompted by a written request for such a review from the tenant. Any written representations made by the tenant in connection with the review must be considered by the person carrying out the review. If the Executive requests written information from the tenant, it must inform the tenant of the date by which such information must be received (not less than five clear days after the tenant is informed of that date). The result of the review will be communicated to the tenant in writing.
17. As mentioned above, a review will normally take the form of an exchange of correspondence. However, the tenant is entitled to an oral hearing if he requests such a hearing within 14 days of the notice of proceedings being served.
18. Where a tenant has requested an oral hearing, the Executive has discretion to decide the procedure. However, the Executive must give the tenant notice of the date, time and place of the hearing (not less than five days after the receipt of the request for a hearing). If the tenant has not been given such notice, the hearing may only proceed with the consent of the tenant or his representative. The person or persons hearing the review will not have been involved in the decision to apply for an order for possession and will be senior to the person who made that decision.
19. A tenant who has requested an oral hearing has the right to-
20. A tenant may apply to the Executive requesting postponement of a hearing and the person hearing the review has discretion to grant or refuse such a request. A postponement should normally be granted if there appears to be good reason for it.
21. If the tenant, or his representative, or any other person, fails to appear at the hearing the review can proceed in that person's absence if the person hearing the review considers this would be reasonable. Alternatively, the person hearing the review may decide to postpone the hearing.
22. A hearing can be adjourned at any time by the Executive, and the person hearing the review has discretion to adjourn a hearing if the tenant or his representative request such an adjournment. Where a hearing is adjourned having been partly heard, and a different person or persons are to hear the review, the case must be re-heard in its entirety (there is, however, no such requirement where the hearing had been adjourned because the tenant, his representative, or some other person failed to appear).
23. Where more than one person is conducting the review, a hearing may only proceed in the absence of one of those persons if the tenant or his representative consents.
1. Chapter III of Part II of the Housing (Northern Ireland) Order 2003 ("the 2003 Order") extends the existing grounds for possession of secure tenancies set out in Schedule 3 to the Housing (Northern Ireland) Order 1983 ("the 1983 Order") and creates new grounds. In particular, the 2003 Order amends the grounds for possession to enable the courts to grant orders for possession on the basis of:
The 2003 Order also enables the courts to grant orders for possession where:
2. Ground 2 in Schedule 3 to the 1983 Order enables the courts to grant an order for possession on the basis of nuisance caused by a person visiting the tenant's home. This reflects similar provision made for England and Wales in the Housing Act 1996. While that provision was introduced with the primary aim of targeting tenants who were trafficking in drugs and whose "customers" were creating a nuisance in the area, there will also be a wider application to other forms of nuisance. For example, misbehaviour by party guests could fall within the extended Ground 2. However, any proceedings for possession in respect of nuisance caused by visitors should have their basis in the fact that the tenant has invited the nuisance-causing individual to his home or has otherwise deliberately encouraged that person's presence in the area. Tenants should not be held responsible for the actions of unwelcome or unpredictable visitors.
3. Tenants are responsible for the members of their households and should be held accountable for the conduct of visitors or guests invited by other household members if they have tolerated or accepted such individuals in their homes. However, the Executive should be aware that the link between a tenant and a person visiting a member of that tenant's household will be, at best, tenuous if that visitor's anti-social behaviour takes place in the "locality" of the tenant's home (see paragraph 13) rather than in the home itself.
4. Where the Executive wishes to seek possession on the basis of nuisance caused by visitors or guests, a "one-off" incident would be unlikely to provide sufficient grounds. There should be evidence of persistent nuisance eg rowdy parties being held on a regular basis.
5. Where a tenant is being harassed by a violent ex-partner, this can cause considerable nuisance to neighbours. While the tenant should not be held responsible for the actions of such a "visitor", it would be reasonable to expect the tenant to co-operate, insofar as it is safe to do so, with any attempts the Executive may make to abate the nuisance, for example by seeking an injunction against the offender (see Annex D).
6. Ground 2 in Schedule 3 to the 1983 Order covers conduct "likely to cause" nuisance or annoyance. This means that the court does not have to be satisfied that the conduct in question actually caused nuisance or annoyance to any particular person.
7. The Executive should be conscious of the difference between anti-social behaviour which is deliberate and behaviour which, while it may have an adverse effect on neighbours etc., is the result of illness or some other form of vulnerability. Behaviour which falls into the second category needs to be addressed through the provision of support by the appropriate agencies. The Disability Discrimination Act 1995 prohibits eviction on the basis of a person's disability and the Executive should ensure that procedures are in place to facilitate the provision of suitably-tailored support packages for vulnerable tenants. The Executive should also be aware that the Race Relations (NI) Order 1997 and its associated Code of Practice may have a bearing on behaviour which is related to culture or lifestyle.
8. Ground 2 in Schedule 3 to the 1983 Order covers conduct causing or likely to cause nuisance or annoyance to persons "visiting or having lawful business in" the locality. This makes it possible for witnesses such as police officers and members of the Executive's staff to give evidence in court and it is not necessary to rely exclusively on the evidence of local residents, who may be vulnerable to intimidation.
9. As well as giving evidence of nuisance or annoyance they have personally experienced, members of the Executive's staff may be called as "professional" or "expert" witnesses to give their opinions as to matters within their professional expertise. Expert witnesses may also be called upon to provide a statement on behalf of a witness who wishes to remain anonymous. Such hearsay evidence is admissible in civil proceedings. Expert witnesses must take care to ensure that their evidence does not enable vulnerable witnesses to be identified, eg by revealing their addresses.
10. The courts have discretion to decide if an individual's conduct amounts to "nuisance" or "annoyance". However, the Executive should treat "Hate Crimes" such as racial or sectarian harassment, or harassment connected with a person's perceived sexual orientation, gender identity or disability as "nuisance or annoyance" for the purposes of Ground 2 in Schedule 3 to the 1983 Order.
11. The grounds for possession mentioned above relate mainly to behaviour causing or likely to cause "nuisance" or "annoyance" to people in their homes or neighbourhoods. Such behaviour may not, in itself, fall within the scope of the criminal law and would not therefore be amenable to action by the police. In such circumstances, it may be reasonable for persons who are suffering the consequences of this kind of behaviour to look to their landlord, or to the perpetrator's landlord, for a remedy. This could take the form of a warning, an injunction (see Annex D) or an Anti-Social Behaviour Order (see Annex G). Only as last resort should the Executive seek an order for possession in cases of this sort. However, there will also be cases of more serious ie criminal behaviour where it would not be appropriate to permit the perpetrator to remain in his accommodation, and/or unreasonable to expect other people living in the area to tolerate that individual's presence in their midst. For example, this might be the case where the individual has been convicted in connection with the illegal trafficking of drugs, or sexual offences. In these circumstances, the Executive should consider seeking an order for possession in addition to whatever penalty may have been imposed by the courts in respect of the criminal offence(s).
12. The 2003 Order amended Ground 2 in Schedule 3 to the 1983 Order to refer to arrestable offences committed in, or in the locality of, the dwelling house by the tenant or a person residing with him or visiting him (see paragraph 13 for the definition of "locality"). The Police and Criminal Evidence (Amendment) (NI) Order 2007 has amended the 1983 Order so that Ground 2 now refers to indictable offences (an indictable offence is an offence that can be tried by jury).
12A The Executive will wish to exercise judgement when seeking possession on the basis of an indictable offence. However, such offences tend, by their nature, to be "anti-social" and it may be appropriate to seek possession where the offence has had a detrimental impact on the quality of life of persons living in the area (see paragraph 11). Where the Executive wishes to seek possession on the basis of an indictable offence committed by a visitor, it would probably be necessary to show that the tenant was, to some extent, implicated in the commission of the offence.
12A. It should be noted that breach of an Anti-Social Behaviour Order (see Annex G) is, in itself, an indictable offence.
13. Ground 2 in Schedule 3 to the 1983 Order covers nuisance etc caused "in the locality of the dwelling house". The interpretation of "locality" will be a matter for the courts. However, case law in England suggests that "locality" includes communal areas and walkways, and can extend to areas such as shops and other facilities likely to be used by tenants.
14. Ground 2A in Schedule 3 to the 1983 Order provides that there are grounds for possession where a member of a married couple, or a same same-sex couple who have formed a civil partnership, or a couple living together as husband and wife (including same-sex partners), has left accommodation because of violence or threats of violence by the other partner. Such violence or threats could be directly aimed at the partner or at other family members living with him/her. It should be noted that "domestic violence" is not, in itself, a ground for possession. The Executive can only seek possession in such cases where the victim of the violence has actually left the family home. This enables the Executive to address issues of under-occupation, as it is likely that partners who leave because of domestic violence will take other members of the household with them. For this reason, the court will not grant an order for possession on Ground 2A unless it is satisfied that the partner who has left is unlikely to return while the perpetrator of the violence continues to occupy the accommodation.
15. In cases of domestic violence, the Executive should liaise with the Domestic Violence Officer for the relevant PSNI District Command Unit.
16. As mentioned in paragraph 14, Ground 2A is contingent on the unwillingness of victims of domestic violence to return to the family home while the perpetrator remains in residence, rather than any particular desire to return if the perpetrator is removed. However, where the Executive has gained possession on the Ground of domestic violence, it may wish to offer the tenancy to the former partner who left the family home (bearing in mind that individuals may have good reasons for not wishing to return). Those who do not wish to return to the family home should not be penalised as a result eg treated as intentionally homeless.
16A. Where it is clear that the partner who has left does not intend to return while the perpetrator remains in occupation and the Executive therefore proposes to seek an order for possession under Ground 2A, it is good practice to seek the views of the partner who has left. However, the Executive has power to seek such an order whatever the views of the partner who has left may be. It is essential that any action taken by the Executive does not endanger the partner who has left and, bearing this in mind, perpetrators should not be given the impression that the partner who has left has any influence over the Executive's decision to seek an order for possession.
17. Ground 5 in Schedule 3 to the 1983 Order covers false statements made by persons acting at the tenant's instigation. This enables the Executive to seek an order for possession where it is in a position to satisfy the court that a tenancy was awarded on the basis of a false statement by a third party eg where there is evidence that a family member misrepresented the applicant's circumstances in order to gain priority for the applicant on the waiting list.
1. Chapter III of Part II of the Housing (Northern Ireland) Order 2003 ("the 2003 Order") amended the procedures for seeking an order for possession of a secure tenancy under the Housing (Northern Ireland) Order 1983 ("the 1983 Order"). In particular, the 2003 Order:
2. Where the Executive intends to seek an order for possession under the 1983 Order on the grounds of anti-social behaviour, possession should be gained as soon as possible in order to minimise the nuisance being caused to other parties. A notice of intention served under Article 28 of the 1983 Order will specify that, where the grounds for possession include Ground 2 in Schedule 3 to the 1983 Order (nuisance or other anti-social behaviour), proceedings may begin immediately. The Secure Tenancies (Notice) Amendment Regulations (Northern Ireland) 2003 (S.R. 2003 No. 411) prescribes the amended form of notice.
3. Where the Executive intends to seek an order for possession under the 1983 Order, it is normally required to serve on the tenant a notice of intention which complies with Article 28 of that Order. However, there may be circumstances where serving such a notice would be inappropriate or could cause undue delay. The Executive may ask the court to waive the requirement to serve notice, if it would be just and equitable to do so.
4. Where the Executive intends to seek an order for possession under the 1983 Order on grounds relating to domestic violence, it is important that the former partner who has left the dwelling house is aware of the proceedings, as they may wish to return to the family home when the perpetrator of the violence has been removed (see paragraph 16 of Annex B). Where the grounds for possession include Ground 2A in Schedule 3 to the 1983 Order (domestic violence), the Executive should therefore take all reasonable steps to serve a copy of the notice of intention on the partner who has left.
5. Repossession should be regarded as a last resort and the Executive will normally attempt to resolve issues of anti-social behaviour by other means before it seeks an order for possession (although it is recognised that in some circumstances it will be appropriate for the Executive to seek an order an order for possession at the outset).
6. In cases of neighbourhood dispute, there may be a role for mediation. However, the Executive should ensure that mediation is:
7. Rule 72 of the Housing Selection Scheme provides that transfers should be made as fairly and impartially as allocations to waiting list applicants. However, it must be emphasised that housing transfers are not an appropriate method of dealing with anti-social behaviour. An application for transfer should not be accepted from a tenant where, due to anti-social behaviour:
1. An injunction is an order of the court which tells a person not to do certain things. A person who breaches the terms of an injunction will be held to be in contempt of court and will be subject to the penalty imposed by that court.
2. Chapter IV of Part II of the Housing (Northern Ireland) Order 2003 ("the 2003 Order") enables the Executive to seek an injunction restraining any person from
a) engaging in or threatening to engage in conduct causing or likely to cause a nuisance or annoyance to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises or in the locality of such premises (for the Executive's purposes, "residential premises" means dwelling houses held under secure or introductory tenancies and temporary accommodation provided for homeless persons);
b) using or threatening to use such residential premises for immoral or illegal purposes, or
c) entering, or being found in the locality of, such residential premises.
3. It will be noted that the prohibited behaviour described in a) and b) above is similar to the behaviour which would be grounds for possession under Ground 2 in Schedule 3 to the Housing (Northern Ireland) Order 1983. In relation to the expressions "conduct causing or likely to cause a nuisance or annoyance", "persons visiting or otherwise engaging in lawful activities" and "locality", the Executive may wish to refer to the guidance on grounds for possession at Annex B.
4. The court will not grant an injunction against anti-social behaviour unless it is satisfied that there is a significant risk of "harm" to a person residing in, visiting or otherwise engaging in a lawful activity in residential premises to which Article 21 of the 2003 Order applies or in the locality of such premises. "Harm" is defined in Article 27 of the 2003 Order. For the purposes of Article 27, "ill-treatment" will include racial or sectarian harassment if such harassment is likely to cause impairment of health or, in relation to a child, is likely to cause impairment of health or development.
1. Chapter II of Part IV of the Housing (Northern Ireland) Order 2003 ("the 2003 Order") amended the Housing (Northern Ireland) Order 1981 ("the 1981 Order") and, in particular, Article 124 of the 2003 Order inserted a new Article 22A in the 1981 Order which requires that the Executive shall not allocate housing accommodation (ie select a person to be a secure or introductory tenant) except to an "eligible person".
2. Article 22A(6) of the 1981 Order allows the Executive to treat an applicant for accommodation via the statutory Housing Selection Scheme as ineligible for such accommodation if the applicant, or a member of his/her household, has been guilty of unacceptable behaviour serious enough to make him/her unsuitable to be a tenant of the Executive and, in the circumstances at the time his/her application is considered, he/she is unsuitable to be a tenant by reason of that behaviour. It is not necessary for the applicant to have actually been a tenant of the Executive when the behaviour in question occurred.
3. Given that the Executive has the power to treat applicants as ineligible for housing accommodation by reason of their unacceptable behaviour, the Executive should not apply blanket exclusions against particular classes of applicant, such as ex-prisoners, where individual cases could be considered on their own merits under Article 22A(6).
4. It must be emphasised that an applicant's suitability to be a tenant should not be assessed on the basis of past conduct alone. The Executive must have regard to the circumstances at the time the application is considered. For example, it would not be appropriate to treat an applicant as ineligible because of a past conviction if he/she has subsequently led a blameless existence.
5. Where the Executive receives an application and has reason to believe that either the applicant or a member of his/her household has been guilty of behaviour that may make him/her unsuitable to be a tenant, the Executive must take the following steps:
i. It must satisfy itself that behaviour has occurred which falls within the definition of "unacceptable behaviour" ie the applicant or a member of his/her household has behaved in a manner that would, if the applicant were a secure tenant, entitle the Executive to a possession order under Article 29 of the Housing (Northern Ireland) Order 1983 in relation to Ground 2 or Ground 3 in Schedule 3 to that Order. These are fault grounds and include behaviour that is likely to cause nuisance or annoyance and use of the premises for illegal or immoral purposes. In considering whether a possession order would be granted in the circumstances of a particular case, the Executive will have to consider whether, having established the grounds, the court would consider that it was reasonable to grant a possession order. In England, case law has established that, when the court is deliberating, "reasonable" means having regard to the interests of the public and the interests of the parties. Therefore, in deciding whether it would be entitled to a possession order, the Executive should consider those interests, including all the circumstances of the applicant and his household. The Executive should also bear in mind that the court would not grant a possession order without a good standard of evidence.
ii. Having concluded that the individual's behaviour would have resulted in an order for possession being granted, the Executive must satisfy itself that the behaviour was serious enough to make the person unsuitable to be a tenant of the Executive. For example, the Executive will need to be satisfied that, if a possession order had been granted, it would not have been suspended by the court.
iii. The Executive will need to satisfy itself that, in the circumstances at the time of the application, the applicant is unsuitable to be a tenant by reason of the behaviour in question.
6. Only if the Executive is satisfied in all aspects of steps i-iii above should it consider using its discretion to decide that an applicant is ineligible for an allocation. In reaching such a decision, the Executive will have to act reasonably. That means it will have to consider all the relevant matters. These will include all the circumstances relevant to the applicant, including health, dependants and other factors. In practice, the matters before the Executive will include the information provided on the application form. All cases must be thoroughly investigated and all decisions based on established facts.
7. Where an applicant has been guilty of unacceptable behaviour but is working with a helping agency (for example, PBNI or a CAT team) in an attempt to address that behaviour, the Executive's should take account of the agency's views in considering whether the applicant is unsuitable to be a tenant.
8. Rule 9A of the Housing Selection Scheme provides that an applicant is ineligible to apply under the Scheme if he is a person who cannot be allocated accommodation by the Executive because of the terms of Article 22A of the 1981 Order. This means that, where the Executive has decided that an applicant is an ineligible person, the applicant's name will not appear on the Waiting List. However, applicants who are treated as "ineligible persons" are entitled to be given reasons, in writing, for the decision.
9. The Executive should not take a decision on eligibility without first considering whether any unacceptable behaviour is due to a physical, mental or learning disability and, if this appears to be the case, the Executive should consider whether the applicant would be able to maintain a tenancy with appropriate care and support. In considering such cases, the Executive will need to consult with relevant agencies, including social services, health professionals and providers of suitable housing, care and housing-related support services.
10. As mentioned in paragraph 6, the Executive must carry out an assessment of an applicant's circumstances before deciding that the applicant is ineligible to be allocated housing accommodation by reason of his unacceptable behaviour. If the assessment indicates that the applicant is homeless, the Executive should proceed in accordance with Annex F (Eligibility for Homelessness Assistance).
11. An applicant who has been treated as ineligible to be allocated housing accommodation is entitled to make a fresh application at any time. However, unless there has been a considerable lapse of time since the previous application, it will be for the applicant to show that his circumstances or behaviour have changed. This means that the Housing Executive is not obliged to entertain successive applications from individuals who have been informed that they are ineligible to be allocated housing accommodation by reason of their unacceptable behaviour unless:
(a) the applicant can provide clear evidence that his circumstances or behaviour have changed, or
(b) there has been a "considerable lapse of time" since the previous application (6 months to a year may be reasonable, depending on the circumstances).
12. If the Executive decides that an applicant is ineligible to be allocated housing accommodation via the waiting list, or is to be treated as ineligible, the Executive must notify the applicant of its decision and the grounds for it.
1. Chapter IV of Part IV of the Housing (Northern Ireland) Order 2003 ("the 2003 Order") amended the Housing (Northern Ireland) Order 1988 ("the 1988 Order") and, in particular, Article 137 of the 2003 Order inserted a new Article 7A in the 1988 Order which provides that certain descriptions of persons are not eligible for assistance under Part II of the 1988 Order (Housing the Homeless).
2. Article 10 of the 1988 Order requires that, where the Executive is satisfied that an applicant is unintentionally homeless and in priority need, the Executive shall secure that accommodation becomes available for that person's occupation. The Executive interprets this as a duty to provide a secure tenancy in its own housing stock ("the full duty").
3. While the Executive normally meets its duty under Part II of the 1988 Order by providing a secure tenancy in its own housing stock, it would not be appropriate to provide this form of assistance to individuals who are unsuitable to hold tenancies and could, by virtue of Article 22A of the Housing (Northern Ireland) Order 1981, be treated as ineligible to be allocated housing accommodation. Article 7A(5) of the 1988 Order therefore allows the Executive to decide that an applicant is ineligible for assistance under Part II of the Order if he, or a member of his household, has been guilty of unacceptable behaviour serious enough to make him unsuitable to be a tenant of the Executive and, in the circumstances at the time his application is considered, he is unsuitable to be a tenant by reason of that behaviour.
4. Where the Executive has reason to believe that a homeless applicant or a member of that applicant's household has been guilty of unacceptable behaviour, the Executive must take the same steps that it would take in relation to a waiting list applicant who appears to be guilty of such behaviour (see Annex E- Eligibility to be Allocated Housing Accommodation via the Housing Selection Scheme). Only if the Executive is satisfied in all aspects of those steps should it consider using its discretion to decide that an applicant is ineligible for the full duty. In reaching such a decision, the Executive will have to act reasonably. That means it will have to consider all the relevant matters before it ie all the circumstances relevant to the applicant, including health, dependants and other factors. In practice, the matters before the Executive will include the information provided on the application form. All cases must be thoroughly investigated and all decisions based on established facts.
5. Where the Executive has decided that an applicant is ineligible for the full duty, it must then consider if the applicant is in priority need. If the Executive is satisfied that the applicant has a priority need, it must treat him in the same way that it would treat an applicant in priority need who became homeless intentionally ie it must-
6. If the Executive is not satisfied that the applicant has a priority need, it must treat him in the same way that it would treat an applicant who became homeless intentionally and is not in priority need ie it must furnish him with advice and such assistance as it considers appropriate in the circumstances in any attempts he may make to secure that accommodation becomes available for his occupation.
7. While there is no legal requirement to provide notification of decisions that applicants are ineligible for homelessness assistance, the Executive should provide notification in writing of such decisions, and of the grounds on which they are based.
1. This guidance on the use of Anti-Social Behaviour Orders (ASBOs) and Acceptable Behaviour Contracts (ABCs) is intended to supplement detailed guidance on the operation of ASBOs issued by the Northern Ireland Office.
2. The Anti-Social Behaviour (Northern Ireland) Order 2004 ("the 2004 Order") which came into operation on 25 August 2004 enables the Executive to apply to the courts for an ASBO having consulted the police and the relevant district council.
3. An ASBO is an order made by a magistrate's court to protect the public from behaviour which causes harassment, alarm or distress. Although ASBOs are civil orders, breach of an ASBO is a criminal offence which carries a maximum penalty of 5 years imprisonment and/or an unlimited fine. An ASBO is not a punishment. It is designed to prevent the kind of behaviour that can ultimately lead to a criminal conviction.
3A. The 2004 Order allows the PSNI, the Executive and district councils to apply for ASBOs. The Criminal Justice (Northern Ireland) Order 2005 has amended the 2004 Order to allow the Secretary of State to specify other bodies which can apply for ASBOs. At the time of writing the Secretary of State has not specified any other bodies.
4. ASBOs are similar to injunctions against anti-social behaviour under Chapter IV of Part II of the Housing (Northern Ireland) Order 2003, in that they prohibit individuals from doing certain things. However, ASBOs have the potential for much wider application and the penalty for breach of an ASBO is likely to be more stringent. Unlike injunctions, ASBOs can be used in the following circumstances:
i. causing nuisance or annoyance in relation to the Executive's property;
ii. using the Executive's property for illegal or immoral purposes, or
iii. entering or being found in the vicinity of the Executive's property;
4A. It should also be noted that breach of an ASBO is an indictable offence ie the police may arrest an individual who breaches the terms of an ASBO without applying for a warrant.
5. The Executive should consider applying for an ASBO where an injunction against anti-social behaviour is not appropriate or is unlikely to be effective (see paragraphs 4 and 4A). The Executive should be in a position to demonstrate that an ASBO is necessary to protect the public and to prove, beyond reasonable doubt, that the individual concerned has, during the last 6 months, been persistently acting in an anti-social manner which has caused or is likely to cause harassment, alarm or distress to one or more persons not of the same household.
6. A sense of proportion is important. While certain behaviour (eg groups of youths congregating) can be perceived as "anti-social" by some individuals, it may be not be appropriate to seek an ASBO in every case.
6A. While an ASBO can be used to exclude the individual concerned from certain areas, ASBOs are not orders for possession and would not normally be used to exclude individuals from their own homes.
7. It is essential that ASBOs are seen to be a credible deterrent to serious anti-social behaviour. This means that:
a) the Executive should only seek an ASBO where it has good reason to believe that the court will grant it, and
b) any apparent breaches of the ASBO must be dealt with rigorously ie the individual concerned should be reported to the police, arrested and dealt with by the court.
7A. Because ASBOs are designed to prevent offending behaviour, they should be obtained sooner rather than later. An ASBO is not a "last resort".
8. An ASBO prohibits whatever behaviour is specified within it. Prohibitions should, however, be:
a) reasonable;
b) proportionate;
c) realistic, and
d) practical.
9. The terms of an ASBO should be as specific as possible. Where an ASBO is intended to prevent an individual from being in an area at certain times, those times must be clearly specified. Similarly, where individuals are to be prohibited from engaging in certain behaviour in particular areas, or excluded from those areas altogether, the geographical boundaries must be made clear (using street names where possible).
10. An ASBO will normally last for a minimum of two years, although the court may specify a longer period. An ASBO can be "discharged" (ie terminated) at any time if the Executive and the defendant agree.
11. The Executive and the defendant are both entitled to apply to the court to have the terms of an ASBO varied at any time.
12. In urgent cases, the Executive can ask the court to make an interim order for a fixed period where the main ASBO application has not been determined.
13. Where an individual has been convicted of a criminal offence, the court may decide to make an ASBO in respect of that individual's future conduct. This is the court's decision and no action by the Executive is required.
14. The court will not grant an ASBO unless it is satisfied that the Executive has consulted with the PSNI and the relevant district council (it is not necessary from the court's point of view for either of these bodies to agree to support the application).
15. It is particularly important that the Executive liaises closely with local police in respect of ASBOs, given the role of the police in dealing with breaches.
16. Consultation should ensure that the Executive is not seeking an ASBO in respect of behaviour which is already the subject of criminal proceedings.
17. The Executive should consider having realistic Service Level Agreements with all relevant agencies (not only the PSNI and district councils).
18. Because ASBOs are civil orders, hearsay and professional evidence is admissible. This means that members of the Executive's staff can give evidence of events which would illustrate that the behaviour in question would be likely to cause (for example) harassment to anyone subjected to it.
19. An ASBO is a public document. ASBOs are granted to protect the public and members of the public have a legitimate interest in ASBOs made in respect of the areas in which they live.
20. An ASBO represents a tangible result in the drive against anti-social behaviour. The granting of an ASBO can provide a measure of reassurance to the public which, in itself, can help to stabilise blighted communities. At the same time, perpetrators should be deterred by the knowledge that ASBOs are available and that they have real "teeth".
21. From the perpetrator's point of view, there may be a strong deterrent in being publicly named as the subject of an ASBO. It should also be borne in mind that local communities will have a role in "policing" ASBOs eg bringing alleged breaches to the attention of the proper authorities.
22. In the light of the above, the Executive may wish to consider publicising individual ASBOs in the form of leaflets. However, to ensure compliance with Human Rights requirements, any evidence mentioned in such a leaflet must have been admitted by the subject of the ASBO in court, distribution of leaflets must be confined to the geographical area covered by the ASBO and the Executive must have regard to the vulnerability of the subject and community tension in the area. The Executive should consult the police and obtain the consent of the court in writing before publicising individual ASBOs.
23. Anything can be printed in the press that the law does not expressly prohibit. However, it should be noted that the courts have the power to impose reporting restrictions in respect of ASBOs. Where the court is dealing with procedures for an ASBO against a child, it may direct that the child's name, address or school, or any details that might identify the child (including photographs) must not be published.
24. ASBOs are intended to be preventative rather than punitive. The primary aim of any publicity should therefore be protection of the public rather than "naming and shaming" of the subject.
25. Where the Executive is considering treating an applicant as ineligible for housing accommodation by reason of his unacceptable behaviour, the fact that an ASBO has been made in respect of that applicant may be regarded as evidence of unacceptable behaviour. However, an applicant must not be automatically treated as ineligible for housing accommodation because he is subject to an ASBO or because an ASBO has been made in respect of him in the past.
26. The Executive will wish to use ASBOs to deal with nuisance behaviour and low-level disorder rather than the type of criminal activity that will be of interest to the police. However, it should be understood that the same individuals are often involved in both kinds of conduct. An ASBO which excludes the subject from particular areas and prevents him from associating with named individuals can, by disrupting gang activity, have the effect of preventing serious crime.
27. An ABC is a voluntary written agreement between a person who has been involved in anti-social behaviour and one or more local agencies whose aim is to prevent such behaviour. There is no statutory provision for ABCs and they are not legally enforceable "contracts". ABCs are mainly intended to be used for young people but can be used for adults as well.
28. Restorative cautioning and youth conferencing are only available where a criminal offence has been committed and normally involve the victim to some extent. However, an ABC can be used where no particular offence has been admitted or proven and individual victims are not expected to be parties to the agreements.
29. ABCs are successful in some cases and not in others. They are most likely to work for young people if parents are fully committed to the process and there is an individually-tailored support package including some form of diversionary activity. The provision of such support is likely to lie outside the Executive's remit, which highlights the desirability of including other agencies in the agreement. Where there is reason to believe that an ABC will be effective, the Executive should consider this option before resorting to an ASBO. Resorting to enforcement does not represent a "failure" on the executive's part if the enforcement is effective.
Committee for Social Development
Room 412
Parliament Buildings
BELFAST
BT4 3XX
Email: peter.mccallion@niassembly.gov.uk
Tel: 028 9052 1864
Fax: 028 9052 1667
14 January 2011
Our Ref: CSD/010/2010/SK
Ms Margaret Sisk
Department for Social Development
Lighthouse Building
1 Cromac Place
Gasworks Business Park
Ormeau Road
Belfast BT7 2JB
Dear Ms Sisk,
At its meeting of 11 January 2011, the Committee continued scrutiny of the clauses and proposed amendments to the Housing (Amendment) (No.2) Bill.
The Committee agreed that I should write to the Department seeking advice as to whether the Bill could be amended to include a minimum level of fines which could be applied in respect of breaches of tenancy legislation.
The Committee further agreed that I should write to the Department seeking assurances that following the passage of the Bill, it is to undertake a formal review of fines and penalties associated with tenancy legislation and of district councils' ability to recover court costs associated with the enforcement of tenancy legislation.
The Committee also sought assurances as to whether the Department is to issue guidance to the courts on the level of fines to be imposed.
The Committee also agreed that I should seek a copy of its guidance to the Housing Executive on anti-social behaviour and possession proceedings for secure tenancies.
I would be grateful if you could provide this information at your earliest convenience.
On behalf of the Committee I would like to convey my thanks to the officials for their briefing.
Yours sincerely
Peter McCallion
Committee Clerk
Assembly Research 'Housing Amendment No.2 Bill'
Assembly Research 'Key NI Housing Reviews: A Quick Reference Tool'
1. I have considered this Bill, in conjunction with the Delegated Powers Memorandum submitted by the Department for Social Development, in relation to powers to make subordinate legislation.
2. The Bill contains powers to make subordinate legislation. They are as follows:
3. Noting that the more significant powers to make subordinate legislation in new Articles 5A, 45A and 65A of the Private Tenancies Order (see clause 7/Article 72(3) of the Private Tenancies Order) are subject to draft affirmative procedure, all the powers to make subordinate legislation in the Bill seem to be subject to an appropriate level of Assembly scrutiny. Accordingly, there are no matters to which I draw the attention of the Committee for Social Development in this regard.
Gordon Nabney
Examiner of Statutory Rules
29 October 2010
The Housing (Amendment) (No.2) Bill was introduced to the Northern Ireland Assembly on 22 June 2010. The Bill contains provisions to facilitate better regulation of the private rented sector by conferring powers on the Department for Social Development to make regulations in respect of a 'light touch' landlord registration scheme and statutory tenancy rent deposit schemes. The Bill also contains provisions to promote more effective housing management through information sharing in respect of anti-social behaviour; introduces new tools for tackling fuel poverty; and clarifies existing legislation in respect of homelessness.
Paper 88/10 NIAR 307-10
1. The Housing (Amendment) (No.2) Bill was introduced to the Northern Ireland Assembly on 22 June 2010 and received its Second Stage[1] on 30 June 2010. This Bill constitutes the second housing amendment Bill introduced to the Northern Ireland Assembly during the current mandate. The first Bill (introduced 9 June 2009), which is now the Housing (Amendment) Act (Northern Ireland) 2010, received Royal Assent on 13 April 2010.
2. The purpose of the current Bill is to further enhance the legislative framework for housing in Northern Ireland in four main areas. That is, to enable better regulation of the private rented sector; to promote effective housing management around issues such as community safety and anti-social behaviour; to clarify existing law on homelessness; and to provide the local Councils with further tools to tackle fuel poverty.
3. The Department has undertaken two main consultations to inform the content of the Housing (Amendment) (No.2) Bill, i.e. a consultation on "Building Sound Foundations – A Strategy for the Private Rented Sector, and a consultation on the 'Housing Bill (Northern Ireland)'. The provisions of the Housing (Amendment) (No.2) Bill relating to district councils and the promotion of domestic energy efficiency was originally intended for the Housing and Regeneration Bill.
4. Initially the scope of the Bill was much wider than as introduced. However, many of the proposed provisions, particularly those relating to anti-social behaviour and community safety, will now be subject to further consideration for potential inclusion in future legislation.
5. In summary, the Bill (as introduced) contains the following provisions:
Abolition of Statement of Tenancy Terms (Clause 1)
Tenancy Deposit Schemes (Clause 2)
An Overview of Tenancy Deposit Protection Schemes in England and Wales
Power of Entry to Inspect Dwelling Houses (Clause 3)
Regulations in Respect of Private Sector Rents (Clause 4)
Landlord Registration (Clause 5)
Landlord and Tenancy Registration Schemes in Other Jurisdictions
A Landlord Registration Scheme for Northern Ireland
Fixed Penalty for Certain Offences (Clause 6)
Regulations and the Draft Affirmative Regulation Procedure (Clause 7)
Houses in Multiple Occupation: Evidence of Family Relationship (Clause 8)
Withholding of Consent to Mutual Exchange on the Grounds of
Anti-Social Behaviour (Clause 9)
Information Sharing in Respect of Anti-Social Behaviour (Clause 10)
Duty to Persons Found to be Homeless (Clause 11)
Functions of the Housing Executive in Relation to Energy Brokering (Clause 12)
Functions of District Councils in Relation to Energy Efficiency (Clause 13)
As the title of the Bill suggests, this is the second housing amendment Bill introduced to the Northern Ireland Assembly during the current mandate. The first Bill (introduced 9 June 2009), which is now the Housing (Amendment) Act (Northern Ireland) 2010, received Royal Assent on 13 April 2010. This Act introduced a range of measures aimed at enhancing the legislative framework in a number of areas, for example, it places a statutory duty on the Northern Ireland Housing Executive to publish a homelessness strategy and its policies and procedures on anti-social behaviour, it amends the legal definition of a House in Multiple Occupation (HMO), and increases the powers of the Department for Social Development in respect of its role in monitoring and regulating Registered Housing Associations.
The purpose of the current Housing (Amendment) (No.2) Bill[2] is to further enhance the legislative framework for housing in Northern Ireland in four main areas. That is, to enable better regulation of the private rented sector; to promote effective housing management around issues such as community safety and anti-social behaviour; to clarify existing law in respect of homelessness; and to introduce further tools for tackling fuel poverty. The Bill was introduced to the Northern Ireland Assembly on 22 June 2010 and received its Second Stage[3] on 30 June 2010.
In summary, the Bill contains the following provisions:
Clause 1 enables the introduction of subordinate legislation to require landlords to include all necessary information about the terms of the tenancy in the tenant's rent book.
Clause 2 enables the Department for Social Development (DSD) to make regulations in respect of tenancy deposit schemes, the purpose of which is to safeguard tenancy deposits paid in connection with private tenancies. The Bill also places on private landlords certain obligations in relation to such schemes.
Clause 3 confers on district councils the power to enter dwelling houses to carry out fitness inspections;
Clause 4 permits DSD, through subordinate legislation, to modify the procedures involved in determining certain private sector rents (i.e. rents that are subject to rent control).
Clause 5 enables DSD to make regulations providing for a 'light touch' landlord registration scheme and Clause 6 contains details regarding the imposition of fines in connection with a failure to register or the provision of false information in connection with an application for registration.
Clause 7 provides that regulations in relation to tenancy deposit schemes, determination of rents and landlord registration are subject to the draft affirmative resolution procedure by the Assembly.
Clause 8 relates to Houses in Multiple Occupation (HMOs). Where the Housing Executive believes that a house is occupied by two or more qualifying persons who are not all members of the same family, the Bill will enable the Housing Executive to serve notice requiring that evidence of a family relationship between the occupants be provided.
Clause 9 enables social landlords to withhold consent to an application for an exchange of tenancies where an injunction or anti-social behaviour order is in force.
Clause 10 enables any person to disclose information to the Housing Executive or a Registered Housing Association about certain injunctions, anti-social behaviour orders or orders for possession where such information is required to enable these social landlords to make decisions on the exchange of tenancies and the house sales scheme.
Clause 11 facilitates the removal of a technical anomaly in current legislation in order to clarify that the Housing Executive cannot legally allocate accommodation due to immigration-related legislation.
Clause 12 enables the Housing Executive to submit for Departmental approval a scheme for making arrangements with energy providers for the supply of electricity, gas or oil to the Executive's tenants (there is already existing provisions in law for Registered Housing Associations in relation to energy brokering on behalf of housing association tenants).
Clause 13 provides district councils with powers to take any action it thinks appropriate for the purpose of promoting the efficient use of energy in residential accommodation within its district. This includes the provision, or securing the provision, of advice and information and the production of energy efficiency action plans. It also includes the provision of financial or other assistance to any body whose functions include the promotion of energy efficiency in residential accommodation. To ensure coherence with existing activity, councils will also be required to take account of work undertaken by the Housing Executive and DSD in the area of energy efficiency, and to provide the Housing Executive with any information it may require in its capacity as the Home Energy Conservation Authority.
The Department has undertaken two main consultations to inform the content of the Housing (Amendment) (No.2) Bill, i.e. a consultation on "Building Sound Foundations – A Strategy for the Private Rented Sector, and a consultation on the 'Housing Bill (Northern Ireland)'.
The provisions of the Housing (Amendment) (No.2) Bill relating to district councils and the promotion of domestic energy efficiency was originally intended for the Housing and Regeneration Bill. The draft Housing and Regeneration Bill was published for consultation in March 2010.
The first consultation on 'Building Sound Foundations – A Strategy for the Private Rented Sector' was launched on 15 May 2009 and ran until the 7 August 2009. The consultation paper represented the first stage of DSD's plans to encourage the development of a healthy private rented sector capable of responding more effectively to housing need in Northern Ireland. The paper consulted on a number of issues including, for example:
To facilitate discussions on the proposals the Department also hosted three public consultation workshops in Dungannon, Coleraine and Belfast. In addition to these, three consultation seminars were hosted by the Chartered Institute of Housing. The Housing Rights Service also hosted two separate consultation workshops attended by community and voluntary representatives, housing association and council staff. In addition to feedback from the workshop and seminars, a total of 39 responses to the consultation were received from a wide range of bodies including councils, landlord and tenant representatives, voluntary organisations and political parties[4].
The Department published the final Strategy and action plan for the private rented sector in March 2010[5]. Many of the proposed actions in the Strategy which required legislative intervention are contained within Housing (Amendment) (No.2) Bill.
The Department launched its consultation paper[6] on proposals for a further Housing Bill on 7 December 2009, the consultation period ran until the 26 February 2010. Over 40 responses to the consultation were received. The Department highlights that most of the proposals were well-received by stakeholders, with almost universal support for the proposals on fuel poverty and considerable support for a number of the measures relating to the private rented sector.
It is evident that many of the initial proposals for legislation contained within the housing bill consultation paper will not be brought forward in the Housing (Amendment) (No.2) Bill. The Department has stated that the proposals for a Housing Bill have been trimmed considerably partly in response to the extent of the Assembly's legislative programme during the remainder of the mandate, but also as a result of some of the issues raised during the consultation process[7]. These concerns primarily centred on the potential equality implications and the need for further research on a number of the proposals relating to community safety and anti-social behaviour.
The Minister for Social Development further commented upon the Department's rationale for the reducing the size of the Bill during the Second Stage of the Bill on 20 June 2010:
"…..Time constraints mean that it is not possible at this time to take forward all the proposals outlined in the consultation paper. It is only fair to the House that I explain why that is the case. It is due to the demands on the parliamentary draftsman, which were made more acute by the fact that there were six separate pieces of legislation relating to the possible local government reorganisation. In view of the urgency around that matter and given the potential for reorganisation by 2011 and the short time frame between then and now, the parliamentary draftsman was overloaded. Consequently, other legislation would not have had the full due diligence of the parliamentary draftsman in ensuring that the legislation coming before the House was all that it should be. Consequently, opportunities to include other matters in the Bill were frustrated because of the time available to the parliamentary draftsman's office.
Nevertheless, I acknowledge the work of the parliamentary draftsman. Executive approval had been given to the Bill only at the end of April 2010. The Department and the parliamentary draftsman have done good work to ensure that we have legislation before the House at Second Stage. The turnaround time, from the end of April to the introduction of the Bill in the middle of June, was very short".[8]
Outlined below are a number of the proposals which were initially consulted on for inclusion in the Bill, but which may be subject to further consideration for potential inclusion in future legislation. These include:
During the second stage of the Bill the Minister for Social Development indicated that that there may be potential for some of these issues to be included in the Bill via amendment, i.e. the extension of the notice to quit for long-term tenants and providing the Housing Executive with statutory authority to take part in crime prevention initiatives:
"…..The proposal to extend the notice of quit period for tenants in the private rented sector was welcomed. There seems to be a consensus on the proposal, which does not appear to be controversial. Given that and the fact that it only seems appropriate to give tenants of long standing a longer notice of quit period, it seems that that area of the Bill might be open to amendment. I look forward to amendments coming forward, and I will share in that conversation. Given that the issue seems to have been consulted on, has no specific equality implications and stacks up against all political and legislative standards, it could be one that we take further…."
" …..I have some sympathy with the views on the fact that the consultation document tested a number of proposals on community safety. I do not intend to go through all those proposals. However, there is some early possibility of amendment to enable the Housing Executive to participate in crime prevention initiatives. It so happens that it does already. My Department funds the Housing Executive to fund community restorative justice schemes in Belfast. I think that the Housing Executive funds six separate schemes in respect of alternative measures and a number of other schemes involving Restorative Justice Ireland.
It may be appropriate to confirm that the Housing Executive is so entitled to fund by putting on a statutory basis the Housing Executive's ability to make contributions to community safety initiatives. That would require a more technical amendment of confirmation than one that would move things further along. However, I am certainly prepared to look at that."[10]
This section provides a broad overview of the contents of the Housing (Amendment) (No.2) Bill (as introduced). For ease of reference the section is divided as follows:
Article 4 of the Private Tenancies (Northern Ireland) Order 2006 requires that in all private tenancies which have commenced on or after the 1 April 2007, a statement of tenancy terms must be drawn up by the landlord and provided to the tenant within 28 days of the tenancy commencing. Article 5 of the 2006 Order also requires that the landlord provide the tenant with a rent book within 28 days of the tenancy commencing. Therefore, there is currently a requirement for the landlord to provide two sets of documents to the tenant.
Clause 1 of the Housing (Amendment)(No.2) Bill aims to simplify this process for both landlord and tenant by repealing the requirement for statements of tenancy to be given to every tenant, whilst enabling the Department to make subordinate legislation to require landlords to include all necessary information about the terms of the tenancy in the tenant's rent book. The Bill's Explanatory and Financial Memorandum states "that this requirement would, in theory, apply to all private tenancies created on or after 1 April 2007, the Department recognises that landlords of such tenancies need not be required to issue new rent books when the subordinate legislation comes into operation, providing that they have already given their tenants a statement of tenancy terms in the existing format"[11].
Research conducted by the University of Ulster and the Northern Ireland Housing Executive in 2006, found that an overwhelming majority of tenants (89%) stated that they were on good terms with their landlord or agent. However, the research revealed that almost three quarters of tenants (73%) had not been provided with a rent book although almost two thirds (62%) had a written tenancy agreement[12]. Tenant's lack of awareness regarding their legal rights to tenancy statements and rent books was an issue raised by the Housing Rights Service in response to the 'Building Sound Foundations' consultation. Housing Rights Service highlights that one of the main problems experienced by their clients is the tenant's lack of awareness of their legal entitlement to statements of tenancy terms and rent books[13].
The private rented sector in Northern Ireland has increased substantially in Northern Ireland over the last number of years. The 2009 House Conditions Survey estimates that there are around 125,000 occupied dwellings in Northern Ireland's private rented sector (17% of total housing stock), a significant increase from 81,000 (12% of total housing stock) in 2006[14]. It is perhaps now, more than ever, appropriate that the Department for Social Development takes "a more strategic and focused programme of awareness and appreciation of the law relating to the private rented sector, particularly the Private Tenancies (Northern Ireland) Order 2006".[15] This includes building knowledge and raising awareness amongst both landlords and tenants with respect to legal obligations relating to tenancy terms and rent books.
The Strategy for the Private Rented Sector in Northern Ireland's Action Plan has set the following targets in relation to raising knowledge and awareness[16]:
| Action 1: Knowledge and Awareness (a) to ensure the timely and ongoing provision of relevant information to all private landlords; and (b) to provide tailored guidance and awareness to appropriate council staff. |
| Timeframe: (a) the Department's website at www.dsdni.gov.uk/housing includes a wide range of leaflets, factsheets and practical advice which are enhanced and updated at regular intervals. A series of awareness sessions began in December 2009 with further sessions planned for April 2010 when a new programme will be put in place; and a rolling programme of awareness sessions to be delivered across council areas during 2010/11. The impact of this awareness alongside compliance and enforcement activity undertaken by councils will be continually monitored. |
Most landlords or letting agents require tenants to provide a deposit of at least one months rent as security against damage or non-payment of rent. Private rented sector tenants experience two main problems in respect of tenancy deposits and these are often inter-related, i.e. affordability and unauthorised deposit retention. In terms of affordability, an increasing number of low income households are looking to the private rented sector to meet their housing needs. The proportion of privately rented properties occupied by lone parents had, for example, doubled from 10% in 2001 to 20% in 2006[17].
For many prospective tenants the affordability of advanced rent or deposits for private rented property is a significant problem, as illustrated in the consultation paper on 'Building Sound Foundations':
"A recent survey undertaken by the Northern Ireland Housing Executive[18], provides a valuable insight into this affordability issue…..In all 53% had to pay a deposit and/or rent in advance and the average amount that tenants had to pay upfront to secure accommodation was £439. Two thirds of these were in receipt of Housing Benefit. As approximately 60% of households living in the private rented sector receive housing benefit, their ability to find the necessary deposit and rent in advance is extremely limited. In addition a large proportion of the same group of tenants are also required to pay a top-up between the level of grant charged and the amount of Housing Benefit received."[19]
In addition to the issue of affordability, there is also an identified need to address the handling of disputes between tenants and landlords. According to the Housing Rights Service many disputes arise due to the retention of the deposit by the landlord:
"The problem of tenancy deposit retention has long been a major concern for many private tenants. In our experience as availability of private rented accommodation has proliferated so too has the prevalence of deposit retention by landlords. The only recourse available to tenants at present is through the small claims court. We are aware that seeking redress through the court system can prove to be a hindrance and deter many tenants from pursuing what they believe to be a bone-fide claim on their deposit. Therefore Housing Rights Service believes that a tenancy deposit protection scheme should be devised to ensure deposits are safely managed and not withheld unreasonably.
….Having researched the various tenancy deposit schemes, Housing Rights Service recommends a custodial type scheme similar to the one legislated for in England and Wales. This scheme would be preferential as there would be no cost to either landlords or tenants for its use. The scheme is financed by the interest generated on deposits which are held in a designated bank account."[20]
Clause 2 of the Housing (Amendment) (No.2) Bill enables the Department to make regulations providing for schemes to safeguard deposits paid by tenants in the private rented sector. It also places certain obligations on private landlords (and any person acting on behalf of a private landlord) relating to the tenancy deposit schemes. Under Clause 2 of the Bill these regulations:
Under Clause 2, paragraph 7, a landlord (or any person acting on their behalf) can only require a monetary deposit and not any other form of property as a deposit. Contravention of this may lead to a fine not exceeding level 4 on the standard scale (i.e. £2,500). A person who contravenes any other provision of Clause 2 could be liable on summary conviction to a fine not exceeding £20,000.
The Department state that with exception of one landlord group and two individuals, all other respondents to the 'Building Sound Foundations' consultation supported the proposals in principle for a rent deposit scheme and an associated disputes handling scheme. In supporting the proposal local councils also suggested that this service should be linked to landlord registration requiring that the dispute service be used before any referral to the Courts Service. Councils also believed that they should be given access to data held by the disputes service to assist them in investigations in to harassment and illegal evictions[21].
However, the National Landlords Association stated that it was not supportive of the introduction of tenancy deposit protection in Northern Ireland:
"Unfortunately the NLA cannot support the introduction of tenancy deposit protection in Northern Ireland…..The NLA considered the introduction of tenancy deposit protection to be a legislative sledgehammer to crack a nut and subsequent analysis has proved that to be true….Nonetheless, should tenancy deposit protection be introduced into Northern Ireland, the NLA would recommend that a scheme akin to the UK model, be developed, ensuring that both a custodial based and insurance-based provider be included. Having two options would allow landlords to choose which scheme benefits their business better and ensures competition between providers to guarantee the best value for money for customers.[22]
Tenancy deposit protection for assured shorthold tenancies in England and Wales were introduced as part of the Housing Act 2004. Since 6 April 2007, all deposits (for rent up to £25,000 per annum) taken by landlords and agents for assured shorthold tenancies (AST) in England and Wales have had to be protected by an authorised tenancy deposit scheme. In the first two years of operation over 1.5 million deposits have been protected, totalling nearly £1.4 billion with an average deposit of £906[23].
There are two types of tenancy deposit protection schemes available for landlords and letting agents, i.e. insurance based schemes and custodial schemes and all schemes provide a free dispute resolution service. The table below provides a brief illustration of how the schemes operate[24]:
| Insurance-Based Schemes | Custodial Schemes |
| ¦ The tenant pays the deposit to the landlord ¦ The landlord retains the deposit and pays a premium to the insurer Within 14 days of receiving a deposit: The landlord or agent must give the tenant the details about how their deposit is protected including: ¦ The contact details of the tenancy deposit scheme selected; ¦ The landlord or agents contact details; ¦ How to apply for a release of the deposit; ¦ Information explaining the purpose of the deposit; ¦ What to do if there is a dispute about the deposit. At the end of the tenancy: ¦ If an agreement is reached about how the deposit should be divided, the landlord or agent returns all or some of the deposit. ¦ If there is a dispute, the landlord must hand over the disputed amount to the scheme for safekeeping until the dispute is resolved. ¦ If for any reason the landlord fails to comply, the insurance arrangements will ensure the return of the deposit to the tenant if they are entitled to it. | ¦ The tenant pays the deposit to the landlord or agent ¦ The landlord or agent then pays a deposit into the scheme. Within 14 days of receiving a deposit: The landlord or agent must give the tenant the details about how their deposit is protected including: ¦ The contact details of the tenancy deposit scheme selected; ¦ The landlord or agents contact details; ¦ How to apply for the release of the deposit; ¦ Information explaining the purpose of the deposit; ¦ What to do if there is a dispute about the deposit. At the end of the tenancy: ¦ If an agreement is reached about how the deposit should be divided, the scheme will return the deposit, divided in the way agreed by both parties. ¦ If there is a dispute, the scheme will hold the deposit until the dispute resolution service or courts decide what is fair. * The interests accrued by deposits in this scheme will be used to pay for the running of the scheme and any surplus will be used to offer interest to the tenant, or landlord if the tenant isn't entitled to it. |
The UK Government has awarded contracts to three companies to run the tenancy deposit schemes:
There have also been calls for a tenancy deposit protection scheme in Scotland. In June 2010, the Scottish Housing Minister Alex Neil stated that Regulations governing approval of tenancy deposit schemes in Scotland would be introduced by means of a Scottish Statutory Instrument. These regulations will be subject to affirmative procedure which will require to give its approval before it can come into effect[28]. The Scottish Government are currently working with a group of key stakeholders to finalise the regulations[29].
The Private Tenancies (Northern Ireland) Order 2006 provides local councils with powers to inspect tenancies for fitness. In response to the consultation on the strategy for the private rented sector, district councils highlighted the need for a power to enter dwelling houses to carry out fitness inspections under Article 36 of the 2006 Order. The Bill's explanatory memorandum highlights that it could be argued that councils already have the powers of entry under section 98 of the Local Government Act (Northern Ireland) 1972. However, councils who responded to the consultation identified a preference for a stand-alone power of entry attached to their power to conduct fitness inspections. Clause 3 inserts in Article 36 of the 2006 Order to confer powers of entry on persons authorised by district councils to carry out fitness inspections.
One of the primary aims of the Private Tenancies (Northern Ireland) Order 2006 was to improve standards in the private rented sector by linking the fitness of the property with rent control, thereby encouraging landlords to bring properties up to the fitness standard. The Department for Social Development has power under the 2006 Order to determine certain private sector rents[30], an appropriate rent for the property is determined by the Rent Officer[31] based on, for example, the general condition and state of repair of the property including any notice fitness or disrepair.
| Tenancies subject to rent control – Article 40, Private Tenancies (Northern Ireland) Order 2006 40. —(1) A tenancy of a dwelling-house is subject to rent control if the tenancy is for the time being a protected tenancy or a statutory tenancy. (2) A tenancy of a dwelling-house is subject to rent control if– (a) the tenancy– (i) is not a protected tenancy or a statutory tenancy, but (ii) is a private tenancy granted on or after the commencement of this Order; and (b) the dwelling-house– (i) was constructed before 6th November 1956 or was provided by conversion of a building that was constructed before that date, and (ii) does not meet the appropriate standard of fitness. (3) A dwelling-house does not meet the appropriate standard of fitness unless– (a) it is a prescribed dwelling-house, or (b) a certificate of fitness is in effect in respect of it. (4) A tenancy which is subject to rent control is referred to in this Chapter as a "controlled tenancy". |
Clause 4 of the Housing (Amendment) (No.2) Bill inserts a new article into the 2006 Order to enable the Department to make regulations modifying certain provisions of the Order which relate to the determination of private sector rents. The Bill's Financial and Explanatory memorandum states that is a necessary step because where changes to the detail of the procedure for amending rents are identified, an amendment to primary legislation must be made and this normally takes around 12 months. The Bill will enable the Department to make subordinate legislation to modify the relevant provisions of the 2006 Order (i.e. Articles 42 to 45). Having due regard to the need for Assembly control over the determination of private sector rents, this subordinate legislation would be subject to the draft affirmative procedure.
Clause 5 of the Housing (Amendment) (No.2) Bill enables the Department to make regulations registration scheme for private landlords in Northern Ireland. The introduction of a mandatory landlord registration scheme for private rented sector landlords has received significant attention in recent years. Factors such as increases in the social housing waiting list and housing affordability for first time buyers has stimulated awareness and debate on the private rented sector and its regulation.
Mandatory landlord registration has, for example, been the subject of two recent debates in the Assembly (see Northern Ireland Assembly Official Report 1 October 2007 and 13 October 2008). It was also consulted upon via the "Building Sound Foundations" consultation process. In an analysis of the consultation process the Department highlighted that there was significant support for a registration scheme in Northern Ireland:
"With the exception of landlord groups, lenders and the University of Ulster, the majority of respondents provided overwhelming support for a mandatory Northern Ireland register of landlords, complemented by voluntary accreditation. Most respondents felt that this should be proportionate, light touch in nature, not intrusive and inexpensive in order to minimise the burden on landlords. Local councils advised that such a register should have inbuilt data protection allowing relevant information to be used to facilitate good information sharing, better tenancy management and enforced as necessary, but restricted to designated bodies to protect the personal information of landlords. Councils also felt that Housing Benefit should be paid only to registered landlords."[32]
It is evident from the 'Building Sound Foundations' consultation document that the Department initially had not been in favour of a mandatory landlord registration scheme. In the consultation paper, the Department maintained that a mandatory registration scheme would not provide the most effective means of targeting those landlords who do not comply with the law and that such landlords are likely to continue to evade registration schemes.
Instead the Department favoured targeting resources at schemes which would support and promote good tenancy management, encourage landlord professionalisation and improve monitoring and enforcement procedures. The Department also proposed that a longer term solution to improving landlord/tenancy management was via voluntary landlord accreditation scheme with incentives to join such as access to legal advice, competitive insurance and advice on tenancies and tenancy disputes[33]. Nevertheless, on the 24 March 2010, the Minister for Social Development announced that plans for a mandatory landlord registration scheme for Northern Ireland would progress[34].
The move towards mandatory registration of landlords will bring Northern Ireland into line with landlord and tenancy registration schemes in other jurisdictions. For further detailed information on the various schemes see Assembly Research Paper 'An Overview of Landlord and Tenancy Registration Schemes in the Private Rented Sector' (2009)[35].
In Scotland, for example, almost all private landlords must apply for registration with their local authority under Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004. The registration scheme came into effect on the 30 April 2006 and it was intended that the scheme should be as 'light touch' as possible in order to minimise its impact on the majority of landlords who provide good services to their tenants[36]. The scheme has a number of aims: to improve private renting in Scotland by enforcing minimum standards in letting; to oblige those not providing a minimum service to improve, or leave the sector; to allow tenants, neighbours and local authorities to identify and contact landlords and agents of private rented property; and to provide information on the scale and distribution of the private rented sector in Scotland.
Recommendations for a 'light touch' mandatory licensing scheme for landlords within the private rented sector were contained within the independent Review of Private Rented Sector Housing (published in 2008 and known as the 'Rugg Review')[37]. On 13 May 2009 the Labour Government Housing Minister, Margaret Beckett announced that the Department for Communities and Local Government (DCLG) would consult upon proposals to introduce a 'light touch' national register for private landlords with a view to increasing protection for vulnerable tenants and good landlords[38].
It was envisaged that the national register would run by an independent organisation and landlords would be required to register for a nominal fee to cover administration costs. It was also anticipated that the register would be web-based and would require minimal information such as the name of the landlord, their address and addresses of the properties being let. In return, the web-based system would offer landlords other services such property advertising and free documents (e.g. draft tenancy agreements).
However, on 10 June 2010 the new Housing Minister, Grant Shapps announced that he would scrap the previous Government's plans for a national register of landlords on the grounds that it would introduce 'too much additional red tape'. The Minister further confirmed that the Government has no additional plans into introduce further regulation of the sector as it was already governed by a well established legal framework[39].
Legislation introducing the mandatory registration of tenancies in the Republic of Ireland was based on recommendations made by the Commission on the Private Residential Sector (the Commission's report published was July 2000)[40]. The recommendations included the establishment of a Board to deal with landlord/tenant disputes and the compulsory registration of tenancies.
There is a requirement under the Residential Tenancies Act 2004 on landlords to register the details of their tenancies within one month of their commencement. The register is maintained by a body known as the Private Residential Tenancies Board (PRTB). The register is available for public inspection, however, the published register does not contain any information that could lead to the disclosure of the landlord or tenant. It is the responsibility of the landlord to register the details of the tenancy with the Board and both landlord and tenant are entitled to a copy of their details entered on the register. Once a tenancy is registered it remains a registered tenancy for as long as the tenancy remains in existence. Once the tenancy has terminated any new tenancy must be registered with the Board. If a tenancy has not previously been terminated it will be deemed to be terminated when it has lasted four years, a new tenancy must commence between the parties and this must be registered.
One of the other main functions of Board is to offer a dispute resolution service between landlords and tenants. This involves mediation, adjudication and tribunal hearings. Landlords can only avail of the dispute service if the tenancy has been registered, tenants can avail of the service regardless of it being registered providing it is not an exempt property.
Clause 5 of the Housing (Amendment) (No.2) Bill permits the Department to make regulations for a landlord registration scheme. Work relating to the regulations is currently being taken forward by a stakeholder group[41]. The regulations may make provisions for the following:
The registrar must make the register available for public inspection without charge "at such place and at such times as the registrar considers appropriate".
(a) A person will commit an offence;
(b) If they provide false information in connection with an application for registration.
(c) For letting a house under a private tenancy but failing to register.
For failing to provide evidence of registration in prescribed circumstances.
A person found guilty of an offence under (a) or (b) is liable for a fine on summary conviction not exceeding Level 4 on the standard scale (£2,500) and for (c) a fine not exceeding Level 2 (£500).
Clause 6 inserts a new Article in the Private Tenancies (Northern Ireland) Order which would allow landlords who appear to have breached the registration regulations or a tenancy deposit scheme the opportunity of discharging liability to conviction for the offence by payment of a fixed penalty. The fixed penalty is payable to the district council whose officer issued the notice.
The fixed penalty payable to a district council with respect to certain offences relating to tenancy deposits is an amount equal to three times the amount of that tenancy deposit. The fixed penalty payable with respect to landlord registration will be an amount determined by the council but should not exceed one-fifth of the maximum fine payable on summary conviction of that offence. A district council may use the amounts payable to it "only for the purposes of its functions under this Order or such other of its functions as may be prescribed".
Clause 7 provides that regulation in relation to tenancy deposit schemes, determination of rents and landlord registration will be subject to the draft affirmation resolution procedure by the Assembly.
Houses in Multiple Occupation (HMOs) are an important housing option for many groups including migrant workers, students and young single people. As such the Government has sought to regulate HMOs more fully than other parts of the private rented sector with a focus on fitness standards and health and safety[42].
The definition of a House in Multiple Occupation was amended by the Housing (Amendment) Act (Northern Ireland) 2010. An HMO is defined as a house occupied by more than two qualifying persons who are not all members of the same family. Under the Housing ((Northern Ireland) Order 2003 a person is considered to be a member of another's family if he/she is that person's spouse (or living together as husband and wife), parent, grandparent, child, grandchild, brother or sister[43]. The 2010 Act amended this definition to include uncles, aunts, nephews and nieces.
Under Clause 8, where a house is occupied by more than two qualifying persons and the Housing Executive reasonably believes that those persons are not all members of the same family, it may serve notice requiring that evidence of a family relationship between the occupants is provided. This notice may be served upon the owner of the house, the person managing the house or the person 'having control over the house'. The purpose of Clause 8 is to minimise the scope for abuse of the newly amended definition of an HMO by requiring, where appropriate, clarification of the relationships within a house. If no evidence is provided to the Housing Executive that proves a family relationship or the evidence is insufficient, the house will be treated as a House in Multiple Occupation, and therefore subject to appropriate regulation.
There is similar scope within English housing legislation, under Section 235 of the Housing Act 2004, which provides local authorities with general enforcement powers to obtain information and documents necessary the authority carrying out its housing function. It is suggested that this power is useful where the local authority suspects dishonesty, stalling tactics or where it needs more evidence or help it decide whether an offence has been committed. This power can be used to obtain documents to prove whether or not the occupiers are family members (e.g. tenancy agreements, passports)[44].
The Local Government regulation website (for England and Wales) highlights the particular problems faced by migrant workers in relation to HMO. Importantly it highlights that it is not always the landlord who culpable of overcrowding in HMOs:
"Accommodation is often provided by the employer, or someone closely connected to them, so migrant workers, who may not speak English, can be reluctant to talk to local authority officers as they fear losing not only their home, but also their job. Cases have been reported where landlords have moved their tenants out of a house, as soon as a private sector housing officer has got involved.
Migrant workers tend to be poorly paid and sometimes there is not enough work, so their income drops further. One way of increasing their income is to sublet and share their accommodation with other migrant workers. So when enforcing overcrowding standards, it is worth considering that the tenants rather than the landlord may be causing overcrowding"[45]
The Housing Rights Service has identified a number of difficulties relating to the requirement to provide evidence of a familial relationship, particularly for non UK nationals:
"We believe it could be difficult to evidence some family relations within a household particularly extended relations such as uncle, aunt, nephew and niece. Required documentation should be official and in some cases, birth or marriage certificates may suffice. However, this could prove problematic for some HMO occupants in particular for non UK nationals who may not have such paperwork in this country.
There are other situations, in housing law and other statute, where proof of family relations is required. We suggest that the DSD make enquiries with, for example the Housing Executive, social services and enforcement authorities in other jurisdictions to determine what systems they have in place to evidence family relations."[46]
The Housing Executive and Registered Housing Associations have a duty of care to protect tenants from crime and other anti-social behaviour (whether caused by tenants of social housing or not), as well as a duty to protect other people from anti-social behaviour caused by tenants of social housing[47]. The consultation on the second housing amendment bill set out a wide range of proposals to update the powers of the Housing Executive and Registered Housing Associations for dealing with anti-social behaviour.
The Department's consultation on the housing amendment bill originally contained a wide range of proposals. However, only two of the proposals (relating to restrictions on mutual exchange and the disclosure of information relating to anti-social behaviour) have been included in the Housing (Amendment) (No.2) Bill. The other measures proposed in the consultation document will now be considered for future housing legislation. In evidence to the Committee for Social Development in June 2010, the Department indicated that it became clear during the consultation process that stakeholders felt that many of the proposals could have significant equality implications and should be the subject of further research before being considered for legislation[48]. Therefore the following proposed measures are not included within the Bill:
A report on the outcome of the Bill's consultation highlights that with respect to these proposals:
"…the Department received a wide and diverse range of views. Some stakeholders identified the impact of anti-social behaviour and asserted that, in the light of this, the measures proposed were not sufficiently robust and wide-ranging, while others expressed concern about measures which, in their view, weakened security of tenure or strengthened existing sanctions. Of particular concern to these latter stakeholders were the use of demotion orders and the proposal to enable the Housing Executive to treat individuals as ineligible to be provided with social housing under the homelessness legislation where evidence of their anti-social behaviour does not emerge until the Executive has completed its assessment of their housing circumstances. Some stakeholders expressed a concern that such measures could have a detrimental impact on young people and, in particular, people with disabilities.
A few stakeholders questioned whether there was evidence to support the need for all the measures proposed and one suggested that other jurisdictions had adopted a mixture of sanctions and support to address a range of anti-social behaviour and suggested that the Department consider moving to such an approach."[49]
The remainder of this section will provide an overview of the two proposals on ant-social behaviour that are included within the Bill.
Secure tenants of the Housing Executive and registered housing associations may, with the written consent of the landlord, exchange houses on the basis of mutual assignment of their tenancies. Landlords cannot withhold consent except on one or more of the grounds for refusal under current legislation. For example, under existing law, social landlords can refuse consent to an exchange of tenancies where an order for possession on the grounds of anti-social behaviour has been made against an applicant (or a member of the applicant's household), or where proceedings for possession have been commenced[50].
However, landlords have no authority to refuse to consent to an exchange where an applicant is the subject of other sanctions relating to anti-social behaviour such as an injunction or anti-social behaviour order. Clause 9 of the Bill outlines new powers to enable social landlords to withhold consent to an application for exchange of tenancies where an injunction or anti-social behaviour order is in force. The Department maintains that for housing management reasons, it may be undesirable to permit individuals with a history of anti-social behaviour to move to other areas[51].
A number of specific points relating to this proposal where raised during the consultation process, these points along with the Departments response are outlined below[52]:
| Point Raised | DSD Response |
| Will landlords have discretion to treat each application for an exchange of tenancies on its own merits? | Landlords can withhold consent to an exchange of tenancies on certain grounds. The Housing Bill will amend existing legislation to include anti-social behaviour as a new ground on which landlords will be able to withhold consent to an exchange. Landlords will retain scope to consider each case on its merits. |
| Will this ground (in terms of permitting the withholding of consent to an exchange of tenancies) cover all members of the household or just the tenant? | Social landlords will be able to take into account acts of anti-social behaviour by any member of either household which is party to the prospective exchange of tenancies. |
This proposal would bring Northern Ireland into line with arrangements in other jurisdictions in relation to mutual exchanges and anti-social behaviour. Since June 2005 for example, social landlords in England have been permitted to refuse an application for mutual exchange if a relevant injunction or possession order, granted on the grounds of nuisance behaviour, is in force, or if a court action to obtain such an order or a demotion order is pending against the tenant, the proposed assignee or a person who resides with either of them[53].
The Bill's explanatory memorandum states that for data protection reasons, social landlords and others are often reluctant to share information about sanctions imposed on individuals for anti-social behaviour. It further maintains that the lack of proper legal provision in this area creates a risk of tenancies being awarded to persons who habitually engage in anti-social behaviour.
The provisions under Clause 8 of the Bill provides that any person may disclose information about certain injunctions, anti-social behaviour orders or orders for possession where such information is required to enable the landlord of a secure tenancy to decide:
This clause also provides that any person may disclose relevant information to the Housing Executive where the information is required to enable the Executive to decide:
The clause also provides that any person may disclose relevant information to a registered housing association to enable the association to decide whether to allocate housing accommodation to any person.
There were some concerns arising from the consultation that the information shared needs to be handled responsibility. In response the Department has stated that,
"the Housing Bill will open a data gateway under the Data Protection Act 1998 which would allow the sharing of information in certain defined circumstances. Arrangements for handling and managing this information will continue to be governed by the Data Protection Act"[54]
The Department's consultation paper on the proposed provisions of Housing (Amendment) (No.2) Bill states that existing legislation requires that, where an eligible person is unintentionally homeless and in priority need (i.e. a 'full duty applicant'), the Housing Executive shall secure accommodation for the applicant. However, legislation also provides that certain persons from abroad are not eligible to be assisted under homeless legislation (depending upon certain factors such as their immigration status and employment history).
Housing legislation in England, for example, provides that a local authority's homeless duty will come to an end if a person's eligibility ceases because of a change in their circumstances. However, there is no such provision in Northern Ireland legislation. The Department maintains that this legislative anomaly means that the Housing Executive may find itself with a duty (under homelessness legislation) to provide accommodation for individuals who (under immigration legislation) must not be provided with accommodation because they no longer meet the eligibility criteria[55]. Clause 11 of the Housing (Amendment) (No.2) Bill proposes to address the anomaly by bringing the Housing Executive's homelessness duty to an end where the applicant is no longer eligible for assistance.
The Housing Executive estimates that this measure will impact on less than 10 applicants per year and that this number will decline further after April 2011 when the UK's transitional arrangements in relation to A8 nations (from countries which joined the European Union in 2004) ends[56].
Some stakeholder responses to the consultation questioned UK immigration policy which determines the entitlements to social assistance for non-UK nationals. The Department has stated that it acknowledges the points made by consultees but highlighted that it is important to note that immigration is an excepted matter with is outside the statutory competence of the Northern Ireland Executive and Northern Ireland Assembly[57]:
"the Housing Executive has no legal means of allocating accommodation to persons ineligible for such accommodation by virtue of immigration-related legislation. In practice, this proposal will do nothing to alter this position. Instead, it aims to recognise this position by bringing the Housing Executive's homelessness duty to an end in these limited circumstances".[58]
In 2008, the Minister for Social Development established a Fuel Poverty Task Force to examine ways of alleviating increasing levels of fuel poverty caused by the rising costs of home heating fuels in Northern Ireland. Around the same time, the Consumer Council for Northern Ireland, the Housing Executive and Bryson House Charitable Group initiated a feasibility study of an energy brokering scheme in Northern Ireland, whereby social landlords could attempt to secure cheaper energy for their tenants[59].
The subsequent energy brokering report, 'People Power' was published in June 2010 and made five key recommendations[60]:
| 1. Low consumer switching capacity in natural gas and electricity is a physical barrier to full domestic competition and there must be a push for swifter development by energy companies and the Utility Regulator in this area. The main obstacle to lower domestic energy prices is lack of alternative suppliers in the market. New suppliers, which will be necessary to support brokering schemes, will not enter the market until the appropriate switching mechanisms are in place. This has to be a priority action for everyone concerned with the domestic energy market in Northern Ireland. 2. In the short term, housing bodies would find it a valuable option if they could enter into Preferred Supplier Arrangements or Affinity Deals. The current Energy Saving Trust Tool Kit and knowledge from previous experience from Great Britain could be used to develop a working group to test and develop such arrangements. 3. In the medium to long term, these arrangements could be developed to allow the bulk buying of energy to provide lower prices to the consumer. This could be further facilitated if local and central government procurement bodies could link their energy purchasing, in particular the government estate, as a base load to leverage a better deal for domestic consumers under one contractual tariff arrangement. 4. Task a working group to develop a pilot project for vulnerable customers to bulk order and spread payment for their home heating oil using support organisations such as the Credit Union. 5. Commission a fully costed business plan to support and guide the development of the initiatives recommended above. |
Clause 12 of the Housing (Amendment) (No.2) Bill contains powers to enable the Housing Executive to broker energy at a discounted price for tenants. It is believed that economies of scale would make energy more affordable for tenants of social housing and would contribute to the alleviation of fuel poverty in social housing. The Department further maintains that the proposal also has the potential to generate wider benefits for energy consumers in Northern Ireland as it may encourage more energy providers to enter the local domestic energy market[61].
The report 'People Power' provides examples of how such brokering schemes operate in other jurisdictions (e.g. such as Dundee City Council's brokerage scheme for its housing tenants). The report maintains that there are two forms of brokerage that may be viable for the Northern Ireland market:
The follow extracts from the report provides illustrative examples of how energy brokering operates both Scotland and the Netherlands[62]:
| Dundee City Council Dundee City Council has established Preferred Supplier Arrangements with Scottish and Southern Energy (SSE) for the supply of gas and electricity to empty and newly connected Council properties. The scheme went live in January 2001 and the Council entered into a second, three year contract with SSE in January 2004. SSE pays a commission payment to the Council for every new customer signed up. A loyalty payment is also made each year that a tenant remains as an SSE customer following the initial signing. The income is used to provide grant funded energy efficiency measures for those in greatest need and a free energy advice service for all tenants. Dundee City Council hopes to expand the service provided to help meet the targets of the Dundee Fuel Poverty Strategy. At the time of the review a forecast indicated that Dundee City Council would receive income of £70,000 per year over the three years (from a housing stock of 14,000 properties). WoonEnergie WoonEnergie is an organisation based in the Netherlands which acts as an energy broker for housing association tenants. The organisation was established by the Dutch federation of housing associations (Aedes) which was concerned that the competitive energy market was not bringing tangible benefits to social housing tenants. The WoonEnergie concept works with the housing associations offering their tenants cheaper energy and then WoonEnergie takes over the marketing and customer service. The housing association tenants authorise WoonEnergie to act on their behalf in contracting an energy supplier who then invoices tenants directly within the terms of the contract. |
The report suggests that the benefit of using a broker is that they have expertise and existing relationships within the market and experience of energy trading and highlights that the success of energy brokering is dependent on the amount of energy and combination of sources (gas and electricity) to be supplied and that the greater the volume the better the chance of negotiating the best tariff deal[63].
The proposal in relation to energy efficiency recognises that a number of councils have undertaken a range of actions on energy efficiency and fuel poverty and seeks to formalise this position in legislation. An illustrative example of recent council activity in relation to energy efficiency and fuel poverty includes the Belfast City Council 'Be Warm' saving stamp scheme which helps householders save for home heating oil. Participants can purchase special oil stamps from a range of retailers, collect them on a savings card and then use the value of the stamps to pay for all or part of the home heating oil[64].
Under Clause 13 of the Bill, district councils may take any action it thinks appropriate for the purpose of promoting the efficient use of energy in residential accommodation in its district. It may, in particular:
[1] Northern Ireland Assembly Official Report, 20 June 2010, archive.niassembly.gov.uk/record/reports2009/100630.htm
[2] Housing (Amendment)(No.2) Bill, archive.niassembly.gov.uk/legislation/primary/2009/nia32_09.htm
[3] Northern Ireland Assembly Official Report, 20 June 2010, archive.niassembly.gov.uk/record/reports2009/100630.htm
[4] Information extracted from Department for Social Development. A Strategy for the Private Rented Sector, pp15-17. www.dsdni.gov.uk/hsdiv-private-rented-sector-strategy-2010.pdf
[5] Department for Social Development (2010) Building Sound Foundations – A Strategy for the Private Rented Sector. www.dsdni.gov.uk/hsdiv-private-rented-sector-strategy-2010.pdf
[6] Department for Social Development (2009) The Housing (Northern Ireland) Bill: A Consultation Document. www.dsdni.gov.uk/index/consultations/archived__consultations2/consultation-housing-bill.htm
[7] Department for Social Development (2010) The Housing Bill (Northern Ireland) Consultation Report, p2.
[8] Northern Ireland Assembly Official Report, Housing (Amendment)(No.2 Bill) Second Stage, 30 June 2010. archive.niassembly.gov.uk/record/reports2009/100630.htm#d
[9] The Housing Bill (Northern Ireland) Consultation Report, p27.
[10] Northern Ireland Assembly Official Report, Housing (Amendment) (No. 2) Bill, Second Stage, 20 June 2010. archive.niassembly.gov.uk/record/reports2009/100630.htm#d
[11] Housing (Amendment) (No.2) Bill. Explanatory and Financial Memorandum. archive.niassembly.gov.uk/legislation/primary/2009/niabill32_09_efm.htm
[12] Northern Ireland Housing Executive (2009) Housing Market Review and Perspectives 2009-2012, p15.
[13] Housing Rights Service (2009) Response to Consultation Document: Building Sound Foundations, p5. www.housingrights.org.uk/policy/private-rented-sector.html
[14] Northern Ireland Housing Executive (2010) Northern Ireland Housing Market Review and Perspectives, 2010-2013. www.nihe.gov.uk/housing_market_review_and_perspective_2010-13.pdf
[15] Department for Social Development (2010) Building Sound Foundations: A Strategy for the Private Rented Sector, p4.
[16] Department for Social Development (2010) Building Sound Foundations: A Strategy for the Private Rented Sector, p4.
[17] Northern Ireland Housing Executive (2010) Housing Market Review and Perspectives 2010-2013.
[18] Northern Ireland Housing Executive. Living in the Private Rented Sector: the experience of tenants.
[19] Department for Social Development (2009) Building Sound Foundations: A Strategy for the Private Rented Sector, pp38-39.
[20] Housing Rights Service (2008) Policy Briefing: Promoting Responsible Letting in the Private Sector, p10.
[21] Department for Social Development (2010) Building Sound Foundations: A Strategy for the Private Rented Sector in Northern Ireland, p16.
[22] National Landlords Association. Consultation response to Building Sound Foundations. August 2009. www.dsdni.gov.uk/nat_landlords_assoc_response.pdf
[23] Department for Communities and Local Government, www.communities.gov.uk/housing/rentingandletting/privaterenting/tenancydepositprotection/
[24] Information in this table section extracted from Directgov, www.direct.gov.uk/en/TenancyDeposit/DG_066383
[25] See www.depositprotection.com/
[26] See www.mydeposits.co.uk
[27] See www.thedisputeservice.co.uk/
[28] Scottish Parliament Question S3W – 34355, Claire Baker MSP, "To ask the Scottish Executive whether it plans to consult Parliament on plans for a tenancy deposit scheme. Answer on 18 June 2010. www.scottish.parliament.uk/Apps2/Business/PQA/default.aspx?pq=S3W-34355
[29] Scottish Parliament Question S2W-34354, Claire Baker MSP, "To ask the Scottish Executive when it will bring forward detailed plans for a tenancy deposit scheme". Answered on 18 June 2010. www.scottish.parliament.uk/Apps2/Business/PQA/Default.aspx
[30] For further information on rent control see www.nidirect.gov.uk/index/property-and-housing/buying-selling-and-renting-a- home/private-renting/rent-control/what-is-rent-control.htm
[31]For further information on the Rent Officer see www.dsdni.gov.uk/index/hsdiv-housing/the-role-of-the-rent-officer-ni.htm
[32] Department for Social Development (2010) Building Sound Foundations: A Strategy for the Private Rented Sector, p16.
[33] Department for Social Development (2010) Building Sound Foundations: A Strategy for the Private Rented Sector in Northern Ireland consultation, p27.
[34] Department for Social Development News Release. 'Landlords to be regulated for the first time announces Ritchie'. 24 March 2010. www.northernireland.gov.uk/news/news-dsd/news-dsd-240310-landlords-to-be.htm
[35] Northern Ireland Assembly, Research and Library Service (2009) An Overview of Landlord and Tenancy Registration Schemes in the Private Rented Sector. archive.niassembly.gov.uk/researchandlibrary/2009/7709.pdf
[36] Scottish Executive (2005) Regulation of Private Landlords under the Antisocial Behaviour etc (Scotland) Act 2004, p1. www.scotland.gov.uk/Resource/Doc/55971/0015379.pdf
[37] Rugg, J. & Rhodes, D. (2008) The Private Rented Sector: its contribution and potential. www.york.ac.uk/inst/chp/publications/PDF/prsreviewweb.pdf
[38] Department of Communities and Local Government Press Release. 'Real Help for Tenants – Margaret Beckett'. 13 May 2009. www.communities.gov.uk/news/corporate/1230528
[39] Department for Communities and Local Government. News Release. 'Shapps promise to landlords: no more red tape'. 10 June 2010.
[40] See www.environ.ie/en/DevelopmentandHousing/Housing/PrivateRentedHousing/PublicationsDocuments/FileDownLoad,1994,en.pdf
[41] Northern Ireland Assembly Official Report, Housing (Amendment) (No. 2) Bill, 24 June 2010. archive.niassembly.gov.uk/record/committees2009/SocialDevelopment/100624_HousingAmendmentBill.htm
[42] Department for Social Development (2009) The Housing Bill (Northern Ireland) consultation document, p10.
[43] A relationship be marriage is treated as a relationship by blood, half-blood relationships are treated as relationship of the whole blood, and the stepchild of a person is treated as his/her child.
[44] See Local Government Regulation www.lacors.gov.uk/lacors/ContentDetails.aspx?id=16818
[45] See www.lacors.gov.uk/lacors/ContentDetails.aspx?id=16604
[46] Housing Rights Service (2010) Consultation to the Housing Bill (Northern Ireland)
[47] Department for Social Development (2009) The Housing Bill (Northern Ireland) A consultation document, p28.
[48] Northern Ireland Assembly Official Report. Minutes of Evidence to the Committee for Social Development, 24 June 2010. archive.niassembly.gov.uk/record/committees2009/SocialDevelopment/100624_HousingAmendmentBill.htm
[49] Department for Social Development (2010) The Housing Bill (Northern Ireland) Consultation Report, p14.
[50] Housing (Amendment) (No.2) Bill. Financial and Explanatory Memorandum.
[51] Ibid.
[52] Department for Social Development (2010) The Housing Bill (Northern Ireland) Consultation Report, pp14-15.
[53] House of Commons Library (2010) Anti-Social Behaviour in Social Housing, p21. www.parliament.uk/documents/commons/lib/research/briefings/snsp-00264.pdf
[54] Department for Social Development (2010) The Housing Bill (Northern Ireland) Consultation Report, p15.
[55] Department for Social Development (2009) The Housing Bill (Northern Ireland) Consultation Document, p21.
[56] Department for Social Development (2010) The Housing (Amendment) (No.2) Bill, Consultation Report, p9.
[57] Department for Social Development (2010) The Housing (Amendment) (No.2) Bill, Consultation Report, p8.
[58] Department for Social Development (2010) The Housing (Amendment) (No.2) Bill, Consultation Report, p9.
[59] Northern Ireland Housing Executive, the Consumer Council for Northern Ireland and Bryson House Charitable Group (2010). 'Energy Brokering Report: People Power, Feasibility Study', p3 www.consumercouncil.org.uk/publications/
[60] Ibid, p6.
[61] Department for Social Development (2010) The Housing Bill (Northern Ireland) Consultation Report, p24.
[62] Northern Ireland Housing Executive, the Consumer Council for Northern Ireland and Bryson House Charitable Group (2010). 'Energy Brokering Report: People Power, Feasibility Study', pp6-8.
[63] Northern Ireland Housing Executive, the Consumer Council for Northern Ireland and Bryson House Charitable Group (2010). 'Energy Brokering Report: People Power, Feasibility Study', p8.
[64] See www.belfastcity.gov.uk/bewarm/index.asp
Eleanor Murphy
Research Officer
Research and Library Services
Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.
1. The introduction of a mandatory landlord registration scheme for the private rented sector in Northern Ireland is an issue which has received significant attention in recent years. It has, for example, been the subject of two debates in the Assembly, i.e. on the 1 October 2007 it was resolved that, "this Assembly calls upon the Minister for Social Development to legislate for the mandatory registration of all landlords in the private sector"[1]; and on the 13 October 2008 the Assembly resolved to recognise "the intention of the Minister for Social Development to bring forward legislation to regulate private landlords; and calls on the Minister to ensure that these regulations tackle unfitness in the sector, whilst ensuring that unnecessary bureaucracy is avoided'[2]. Importantly the issue has also been subject to recent consideration in the Department for Social Development's consultation on a Strategy for the Private Rented Sector (see 'Building Sound Foundations – A Strategy for the Private Rented Sector')[3].
2. In order to assist with deliberations of the various registration schemes, the purpose of this briefing paper is twofold, firstly it will provide a broad overview of the schemes in Great Britain, Northern Ireland and the Republic of Ireland and secondly it will provide an overview of DSD's private rented sector strategy consultation and subsequent consultation responses in respect of landlord registration.
3. In short, the position of the various jurisdictions in respect of mandatory registration or tenancy registration schemes for the private rented sector is as follows:
4. Almost all private landlords in Scotland must apply for registration with their local authority under Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004 and the scheme came into effect on the 30 April 2006. It was the original intention that the scheme should be as 'light touch' as possible to minimise its impact on the majority of landlords who provide good services to their tenants[6]. The scheme has a number of aims: to improve private renting in Scotland by enforcing minimum standards in letting; to oblige those not providing a minimum service to improve, or leave the sector; to allow tenants, neighbours and local authorities to identify and contact landlords and agents of private rented property; and to provide information on the scale and distribution of the private rented sector in Scotland[7].
5. In terms of who must register, the onus is placed upon the owner of the property to register and they must declare any agents (e.g. a professional letting agent) that they use to manage the property. Private landlords can register the property via a central online system[8]. Landlords must register with each local authority in whose area they let property. However, if a landlord owns property in more than one local authority area they can use the online system to register in all authorities in one application thereby reducing the registration fee applicable.
6. There are a number of exemptions from registration, for example, properties used solely as holiday lets, properties regulated by the Care Commission, or properties owned by a religious organisation and occupied by a leader or preacher of that faith. Properties subject to an HMO licence must also be included on the register, however, licensed HMO landlords will automatically be entered on the register by the licensing authority.
7. In order to be registered landlords must be 'fit and proper' to let residential tenancies. To assess this, local authorities will use any relevant information available to them to reach a decision as to whether a landlord is fit and proper and they must take into account any evidence of fraud, dishonesty, violence or drugs; unlawful discrimination; breaches of law relating to housing; and failure to act in relation to anti-social behaviour. If a local authority decides that a landlord does not meet the 'fit and proper test' the local authority may provide advice as to how they can improve in order to be registered[9]. If a landlord lets property in more than one local authority area, the authorities will share information to ensure that they have all the relevant details but each authority will make its decision independently[10].
8. In respect of registration costs, each landlord and agent applying for registration should pay a principal fee of £55 to each local authority in which they apply and, in the case of landlords, a property fee of £11 for each property registered. There are a number of exemptions to these fees, e.g. charities, current HMO licence holders. A discount of 50% is available for applications made to multiple local authorities. Where an application is made using the online system a 10% discount is provided[11]. Registration lasts for three years starting from the date it was approved by the local authority.
9. A landlord who fails to register can be fined up to £5,000. As an alternative, or in addition to seeking prosecution, the local authority can also serve a Rent Penalty Notice which means that landlords will not be able to collect any rent until they successfully register with the local authority.
10. The landlord registration scheme is not funded by fees alone but receives grant funding from the Government, the table below provides an example of grant distribution from 2005-06 to 2007-08[12].
| Local Authority | Grant Distribution 2005-06 (£) | Grant Distribution 2006-07 (£) | Grant Distribution 2007-08 (£) |
| Aberdeen City Council | 68,585 | 108,365 | 108,365 |
| Aberdeenshire Council | 50,540 | 79,853 | 79,853 |
| Angus Council | 33,896 | 53,556 | 53,556 |
| Argyll and Bute Council | 35,701 | 56,407 | 56,407 |
| City of Edinburgh Council | 182,337 | 288,093 | 288,093 |
| Clackmannanshire Council | 12,516 | 19,775 | 19,775 |
| Comhairle nan Eilean Siar | 12,646 | 19,980 | 19,980 |
| Dumfries and Galloway Council | 51,825 | 81,884 | 81,884 |
| Dundee City Council | 56,576 | 89,390 | 89,390 |
| East Ayrshire Council | 18,954 | 29,948 | 29,948 |
| East Dunbartonshire Council | 13,773 | 21,762 | 21,762 |
| East Lothian Council | 21,463 | 33,912 | 33,912 |
| East Renfrewshire Council | 13,097 | 20,693 | 20,693 |
| Falkirk Council | 19,283 | 30,466 | 30,466 |
| Fife Council | 63,493 | 100,319 | 100,319 |
| Glasgow City Council | 149,911 | 236,859 | 236,859 |
| Highland Council | 60,424 | 95,470 | 95,470 |
| Inverclyde Council | 19,782 | 31,255 | 31,255 |
| Midlothian Council | 16,808 | 26,557 | 26,557 |
| Moray Council | 34,006 | 53,729 | 53,729 |
| North Ayrshire Council | 23,965 | 37,864 | 37,864 |
| North Lanarkshire Council | 26,624 | 42,065 | 42,065 |
| Orkney Islands Council | 12,536 | 19,807 | 19,807 |
| Perth and Kinross Council | 51,032 | 80,631 | 80,631 |
| Renfrewshire Council | 29,221 | 46,169 | 46,169 |
| Scottish Borders Council | 41,360 | 65,349 | 65,349 |
| Shetland Islands Council | 11,791 | 18,630 | 18,630 |
| South Ayrshire Council | 25,551 | 40,370 | 40,370 |
| South Lanarkshire Council | 31,326 | 49,496 | 49,496 |
| Stirling Council | 25,393 | 40,121 | 40,121 |
| West Dunbartonshire Council | 13,842 | 21,870 | 21,870 |
| West Lothian Council | 21,743 | 34,354 | 34,354 |
| Total | 1,250,000 | 1,975,000 | 1,975,000 |
11. A review of the Private Rented Sector in Scotland was published in March 2009 which looked at, amongst many other issues, the landlord registration scheme. The review stated that the majority of landlords accepted the principle that risks to tenants should be minimised but they were highly critical of schemes such as Landlord Registration and HMO Licensing. A number of specific criticisms were raised during focus groups, i.e. the registration process was unnecessarily cumbersome; that registration had increased in complexity for those trying to run their businesses responsibly; and landlords argued that whilst local authorities collected large amounts of data from landlords they were unprepared to share data about tenants when landlords wanted to chase rent arrears or find out if a tenant had left their property permanently so that they could reclaim possession[13]. The review also highlighted that only around three in ten tenants had heard of the registration scheme (a particular problem in rural areas and that further work needed to be done to promote a more effective communication of the scheme to tenants[14].
12. The DSD consultation paper on a Strategy for the Private Rented Sector in Northern Ireland, has outlined what it sees as the main difficulties with the Scottish Registration Scheme:
"No comprehensive evaluation of the Scottish arrangements in terms of their impact on improving tenancy management has yet been completed. Since 2006 to date the focus has been on completing registration rather than on improving tenancy management. Action to enforce the registration provisions is still in the very early stages…..It is fair to say that significant problems and deficiencies have been identified with the current arrangements. Start up costs in Scotland of £5.2m for the period February 2006 to March 2008, were provided by the Scottish Government, with the intention thereafter that the scheme would be self funded through fees. However, there have been a number of problems with the IT system, which initially cost £500,000 and ongoing costs of £250,000, which are being met by public expenditure"[15].
13. In April 2009 Shelter Scotland completed a report entitled 'Landlord Registration in Scotland: three years on' which called for an urgent review into a registration scheme which it believed was failing to 'weed out' a minority of bad landlords and protect tenants from poor practice. The report also called for a national publicity drive as research revealed that there was a lack of awareness amongst landlords and tenants about their renting rights and responsibilities. However, the report did identify a number of examples of ways in which landlord registration had been a useful tool in improving private renting, i.e.
14. However, it does appear that the Scottish Government have taken a number of steps to address many of the deficiencies of the registration scheme. In 2008, for example, the Scottish Government commissioned a Good Practice Review on the implementation of the Landlord Registration Scheme in 2007/08[17]. The review made a number of recommendations to improve the landlord registration process and service delivery in a number of areas including – the optimum management structure within councils to improve the implementation and enforcement of registration; the staffing structures and resources that are necessary; the linking of landlord registration to wider council corporate policy; improving monitoring and performance in tracking and recording applications; improving the registration payment and refund process; improvements in processing and checking applications; and improvements to the 'fit and proper' test.
15. The Scottish Government maintains that these good practice recommendations have been or are in the final stages of being implemented and that significant improvements to the IT system have also been made. It is also maintained that there was significant improvements in local authority approval of applications in 2007-08, with the approval rate standing at around 88%. At the end of February 2009 a total of 138,194 landlords and agents had applied for registration, including joint owners, and 193,170 properties were included in their applications. Using the number of estimated households in the PRS as a proxy for the number of properties (233,000 – Scottish Household Survey) it was estimated that the scheme had achieved coverage of 83% of private rented housing in Scotland. However, it is acknowledged that there is still work to be done to ensure that landlords comply with the requirements and for councils to start using their enforcement powers. The Scottish Government have made a commitment to conduct an evaluation of the registration scheme in 2010[18].
16. Recommendations for a 'light touch' mandatory licensing scheme for landlords within the private rented sector were contained within the independent Review of Private Rented Sector Housing[19] published in October 2008. The review, known as the 'Rugg Review', was conducted by the Centre for Housing Policy at the University of York at the request of the Department of Communities and Local Government[20]. On 13 May 2009 the then Housing Minister, Margaret Beckett announced that the Department for Communities and Local Government (DCLG) would consult upon proposals to introduce a 'light touch' national register for private landlords with a view to increasing protection for vulnerable tenants and good landlords[21].
17. It is envisaged that the national register will be run by an independent organisation and landlords will be required to register for a nominal fee to cover administration costs. It is also anticipated that the register will be web-based and will require minimal information such as the name of the landlord, their address and addresses of the properties being let. In return, the web-based system will offer landlords such property advertising and free documents such as tenancy agreements.
18. In terms of taking a 'do nothing' versus a full licensing approach to landlord registration, DCLG have stated that,
"Given the findings of the Rugg Review and the concerns of our stakeholders, making no change to the current arrangements is not a sensible option. As already explained, landlords do not take up voluntary training and support in any great numbers, vulnerable tenants continue to be exploited by unscrupulous landlords and "amateur" landlords continue to do business in ignorance of their obligations. Many commentators have pressed the Government to go down the path of.. a full licensing regime for all private rented sector property….It has a high cost and will impose a significant administrative burden on all landlords rather than focusing on the minority who act poorly'[22].
19. The DCLG have stated that it sees the introduction of a 'light touch' national register as vital to the professionalisation of the private rented sector and maintain that the register would play a key role in disseminating information to landlords. DCLG are also of the view that it would be the best means to tackle the problem of poor landlords. It proposes to establish a mechanism by which enforcement agencies, voluntary bodies and individual tenants can register with an independent body where there are problems with a particular landlord. Where there are serious concerns about a landlord, they would be removed from the register and would not be able to operate as a landlord. At this stage it is planned that a local authority or a regulated management agent would step in to manage the property for the landlord using the rental income to make improvements[23].
20. In June 2009, DCLG published an 'Impact Assessment of a National Register for Landlords' which outlined a cost/benefit analysis of a national landlord register. It is envisaged that set-up costs will be covered by fees. It is estimated that the average cost of operating the web-based registration scheme would be around £40m per year and that this would be less expensive that a full licensing regime which it believes would cost an estimated £300m per year. The average annual costs for landlords would be around £30-50 per year under the web-based scheme. Set up costs for the scheme are assumed to be derived by annual membership fees. It is proposed that the running of the register will be contracted out by competitive tender and therefore it is believed that there will be no up front costs for Government, revenue for the registration scheme will be incurred on an annual basis in the form of membership fees[24].
21. The deadline for responding to the DCLG was in August 2009 and the Government has yet to announce its final decision on the matter of landlord registration. If plans for a national register of landlords in England does progress it is believed that the required primary legislation to take this forward would not be in place until 2011 at the earliest[25].
22. Legislation introducing the mandatory registration of tenancies in the Republic of Ireland was based on recommendations made by the Commission on the Private Residential Sector (the Commission's report published was July 2000)[26]. The recommendations included the establishment of the Private Residential Tenancies Board to deal with landlord/tenant disputes and the compulsory registration of tenancies.
23. There is a requirement under the Residential Tenancies Act 2004 on landlords to register the details of their tenancies within one month of their commencement. The register is maintained by a body known as the Private Residential Tenancies Board (PRTB). The register is available for public inspection, however, the published register does not contain any information that could lead to the disclosure of the landlord or tenant or the rent payable on the property. It is possible, however, to search online to check if a property has been registered by searching for the address.
24. It is the responsibility of the landlord to register the details of the tenancy with the Board and both landlord and tenant are entitled to a copy of their details entered on the register. Once a tenancy is registered it remains a registered tenancy for as long as the tenancy remains in existence. Once the tenancy has terminated any new tenancy must be registered with the Board. If a tenancy has not previously been terminated it will be deemed to be terminated when it has lasted four years, a new tenancy must be commenced between the parties and this must be registered. There are certain dwelling exempt from registration, for example, holiday lets, properties in which the landlord is also resident, and dwellings which are occupied rent free.
25. The following registration fees are applicable[27]:
€70 Per tenancy registered on time (i.e. within one month after the commencement of the tenancy).
€300 For multiple tenancies in the one building being registered at the same time and all on time.
€140 Late fee – in all circumstances where the tenancy is being registered more than one month after the commencement of the tenancy, an additional fee of €70 is payable for these late registration (i.e. the total fee is €140 per tenancy. There are no exceptions to the late fee and the composite fee is not available to late registrations of multiple tenancies within one building.
26. In terms of funding, during 2008 the Board underwent a period of financial restructuring towards a more self-financing structure with a reduction in Exchequer funding from €5.7m in 2007 to €1m in 2009. Previously the Board could retain two sevenths of the fees generated for operational costs but this has been increased to four sevenths[28].
27. In terms of enforcement for non-registration, the Board provides the following overview of the steps to be taken in respect of non-registration[29]:
What is the PRTB doing about unregistered landlords?
The steps being taken by the PRTB to pursue compliance with the registration requirement are in accordance with the provisions of the Residential Tenancies Act 2004, and in particular, sections 144 and 145. They include the issue of notices to landlords and/or occupiers of the dwelling in question, and the prosecution of offenders for non-compliance with the registration requirement.
Landlord 1st Notice – section 144(2)
Where the landlord's address is available to the PRTB, a notice is served on the landlord stating that in the PRTB's opinion there is a tenancy in the dwelling in question that requires to be registered and that an application for registration be made. The notice requests the landlord to furnish within 14 days the reasons why the landlord may consider that they do not have to register.
Landlord 2nd Notice – section 144(3)
Where the landlord fails to respond to the 1st notice within the 14 day period or a response was received with the 14 day period which did not result in the PRTB changing their opinion on the registration requirement applying, a notice is served on the landlord stating that the landlord is required to register within 14 days and failure to register within this timeframe will result in the landlord being guilty of an offence under the Residential Tenancies Act 2004.
Occupier's Notice – section 145(4)
Where the landlord's name or address is not supplied, a notice is served on the occupiers requiring them to supply within 14 days any information in their possession that could lead to PRTB ascertaining the identity of the landlord. Failure to respond within 14 days will result in the occupier being guilty of an offence under the Residential Tenancies Act 2004.
(Source: Private Residential Tenancies Board website)
28. Landlords failing to register a tenancy may be guilty of an offence and upon conviction may be liable to a fine of up to €3,000 and/or up to 6 months in prison, along with a daily fine of up to €250 for a continued offence. As an incentive to register the Finance Acts in the Republic of Ireland have been amended to provide that compliance with the registration process is a condition of eligibility for mortgage interest relief on residential properties. The Board has served over 7,800 enforcement notices on landlords and has issued a number of solicitor's letters. The Board maintain that these measures are usually enough to ensure compliance and up until the end of 2008 the Board had only prosecuted one landlord for non-compliance[30].
29. One of the other main functions of Board is to offer a dispute resolution service between landlords and tenants. This involves mediation, adjudication and tribunal hearings. Landlords can only avail of the dispute service if the tenancy has been registered, tenants can avail of the service regardless of it being registered providing it is not an exempt property.
30. At the end of 2008, around 206,000 tenancies had been registered with the Board (equating to 101,000 landlords and more than 350,000 tenants) and the Board has reported that it is "very pleased with the relatively high level of compliance by landlords" [31]. However, it is fair to say that the Board has experienced a number of operational difficulties and has incurred significant expenditure in terms of the legal costs associated with its dispute resolution service.
31. One of the primary operational difficulties is that it does not currently offer a web-based registration and fee payment process. Registration is by way of hardcopy forms which must be registered manually thereby creating difficulties during peak registration times. However, the Board is in the process of improving their IT systems and there are plans from 2010 to offer an interactive web-enabled service for landlords and tenants with secure e-payment facilities[32].
32. Other identified difficulties relating to procedural complexities and delays include, for example, the fact that 30% of tenancy registration applications forms submitted by landlords are without the requested information leading to backlogs and unnecessary re-work. In 2009 the Board announced that due to considerable backlogs it would take up to 16 weeks to process a tenancy registration form once it was received.
33. Furthermore, a recent article in the Irish Independent has also criticised the payment of rent supplements to tenants whose tenancy arrangements have not been registered with the Private Residential Tenancies Board. The article highlights that the Department for Social and Family Affairs will continue to pay rent supplements to tenants even if there has been a failure to register the tenancy[33].
34. There is currently no wholesale mandatory landlord registration or tenancy registration scheme in Northern Ireland. However, there is a statutory registration scheme for Houses in Multiple Occupation (HMOs) which was introduced by the Northern Ireland Housing Executive in 2004. There are an estimated 14,000 HMOs in Northern Ireland and they form an important source of accommodation for those who are single, in temporary employment, those on low incomes, migrant workers and students[34].
35. The Northern Ireland Housing Executive has acknowledged that, "At the moment, the Registration Scheme is perceived as enforcement without teeth". It also maintains that the maximum fine for non-compliance needs to be increased to bring it more into line with England (£20,000). The Executive further suggest that without such measures many smaller landlords will continue to operate 'under the radar' with huge resources being spent trying to track them down[35].
36. A 2008 study in HMO registration by the Housing Executive identified the need for better communication with tenants to ensure that they can easily access information on their rights and responsibilities. The study also identified a need to inform tenants about HMO standards and how they can access support from statutory agencies and other relevant bodies. With regards to landlords, the study recognised that landlords needed a simpler and clearer explanation of what the HMO standards are along with some additional one to one assistance with the more complex aspects of the standards, e.g. fire precautions[36]. The Northern Ireland Housing Executive's 'Houses in Multiple Occupation Strategy' published in May 2009 sets out a number of actions which will be taken to address the concerns[37].
37. The introduction of a mandatory landlord registration scheme for landlords in private rented sector in Northern Ireland has received significant attention in recent years. Factors such the ever expanding social housing waiting lists and issues over first time buyer affordability has meant that increasing attention has been focused on the private rented sector and its regulation.
38. In May 2009, the Department for Social Development published a consultation paper entitled 'Building Sound Foundations – A Strategy for the Private Rented Sector'. The paper examined a number of proposals for the private rented sector including the issue of landlord registration and concluded that,
"Based on the findings from both Scotland and the Republic of Ireland, the cost implications of mandatory registration for Northern Ireland would be very significant with no assurance that the quality of tenancy management would improve. More importantly no clear evidence of the extent and incidence of bad tenancy management in Northern Ireland is currently available to justify such a requirement……
Overall it is thought that mandatory registration of landlords at this time would put an unnecessary and unfair focus on those landlords who are already complying with legislation and acting responsibly"[38].
39. The Department maintain that a mandatory registration scheme would not provide the most effective means of targeting those landlords who do not comply with the law and that such landlords are likely to continue to evade registration schemes. Instead the Department favours targeting resources at schemes which would support and promote good tenancy management, encourage landlord professionalisation and improve monitoring and enforcement procedures. The Department also propose that a longer term solution to improving landlord/tenancy management is through a voluntary landlord accreditation scheme with incentives to join such as access to legal advice, competitive insurance and advice on tenancies and tenancy disputes.
40. The Department's consultation ended in August 2009 and the responses to the consultation can be viewed on the DSD website[39]. In general terms, the majority of respondents, particularly local councils and voluntary/community bodies, supported the introduction of mandatory registration for landlords. Those local councils that responded felt that a mandatory registration scheme would assist councils in discharging their enforcement responsibilities. Councils also expressed the view that Housing Benefit should only be paid to those landlords who are registered.
41. There are of course a number of opposing views as to the effectiveness of a mandatory registration schemes on the perceived small percentage of genuinely 'unscrupulous' landlords within the sector. The response from the School of the Built Environment at the University of Ulster maintains that mandatory registration would put unnecessary and unfair focus on those landlords who comply with the legislation and act responsibility. It proposes that a better route would be to incentivise landlords to join a voluntary scheme in return for guaranteed housing benefit payments and information, training and advice[40].
42. Issues relating to the registration of landlords/tenancies in the private sector are likely to remain to the forefront of public housing policy in all jurisdictions for the foreseeable future given the increasingly important role of the private rented sector in meeting housing need. It would therefore be prudent to monitor developments such as the outcome of the DSD consultation on a private rented sector strategy for Northern Ireland, the Department for Communities and Local Government consultation on a 'light touch' web-based landlord registration scheme for England, and the Scottish Government's evaluation of its landlord registration scheme proposed to take place in 2010.
OCTOBER 2009
[1] Northern Ireland Assembly Official Report, 1 October 2007, archive.niassembly.gov.uk/record/reports2007/071001.htm#5
[2] Northern Ireland Assembly Official Report, 13 October 2008, archive.niassembly.gov.uk/record/reports2008/081013.htm#3
[3] Department for Social Development (2009). Building Sound Foundations – A Strategy for the Private Rented Sector. Consultation paper. www.dsdni.gov.uk/consultation-building-sound-foundations.doc
[4] Scottish Executive News Release. 'Landlord Registration Scheme', 30 April 2006. www.scotland.gov.uk/News/Releases/2006/04/28144943
[5] Department of Communities and Local Government Press Release. 'Real Help for Tenants – Margaret Beckett'. 13 May 2009. www.communities.gov.uk/news/corporate/1230528
[6] Scottish Executive (2005) Regulation of Private Landlords under the Antisocial Behaviour etc (Scotland) Act 2004, p1. http://www.scotland.gov.uk/Resource/Doc/55971/0015379.pdf
[7] Scottish Executive News Release. 'Landlord Registration Scheme', 30 April 2006. www.scotland.gov.uk/News/Releases/2006/04/28144943
[8] See www.landlordregistrationscotland.gov.uk/Pages/Process.aspx?Command=ShowHomePage
[9] Information extracted from the Better Renting Scotland website - www.betterrentingscotland.com/prh/prh_dt_top_mainpage.jsp?pContentID=281&p_applic=CCC&p_service=Content.show&
[10] Information extracted from www.landlordregistrationscotland.gov.uk/Pages/Process.aspx?Command=ShowHelpFitProper
[11] Information extracted from www.landlordregistrationscotland.gov.uk/Pages/Process.aspx?Command=ShowHelpFitProper
[12] Table extracted from Scottish Parliament Question S3W-9370 from Elaine Murray, MSP. Lodged 1 February 2008.
[13] Scottish Government (2009) Review of the Private Rented Sector: Volume 1: Key Findings and Policy Implications, p64. www.scotland.gov.uk/Resource/Doc/264996/0079349.pdf
[14] Ibid, p60.
[15] Department for Social Development (2009), op cit. p25.
[16] Shelter Scotland (2009) Landlord Registration: three years on. http://scotland.shelter.org.uk/__data/assets/pdf_file/0005/189734/Landlord_registration_3_years_on.pdf
[17] Arneil Johnston (2008) Good Practice Review of the Implementation of Landlord Registration. www.scotland.gov.uk/Publications/2008/07/17153219/0
[18] Scottish Government (2009) op. cit. p67.
[19] Rugg, J. & Rhodes, D. (2008) The Private Rented Sector: its contribution and potential. www.york.ac.uk/inst/chp/publications/PDF/prsreviewweb.pdf
[20] The Department of Communities and Local Government is responsible for setting Government policy on housing in England.
[21] Department of Communities and Local Government Press Release. 'Real Help for Tenants – Margaret Beckett'. 13 May 2009. www.communities.gov.uk/news/corporate/1230528
[22] Department for Communities and Local Government (2009) Impact Assessment of a national register for landlords, p12. www.communities.gov.uk/documents/housing/pdf/1243567.pdf
[23] Department for Communities and Local Government (2009) Impact Assessment of a national register for landlords, p12. www.communities.gov.uk/documents/housing/pdf/1243567.pdf
[24] Ibid, pp5-8.
[25] Ibid, p17.
[26] See http://www.environ.ie/en/DevelopmentandHousing/Housing/PrivateRentedHousing/PublicationsDocuments/FileDownLoad,1994,en.pdf
[27] Information extracted from www.prtb.ie/landlord_pubregfaq.htm#lq1
[28] Private Residential Tenancies Board (2008) Annual Report and Accounts 2008, p8. www.prtb.ie/DownloadDocs/PRTB_AR_08_Final.pdf
[29] Information extracted from www.prtb.ie/landlord_pubregfaq.htm#lq3
[30] Private Residential Tenancies Board (2008) op. cit. p22. www.prtb.ie/DownloadDocs/PRTB_AR_08_Final.pdf
[31] Ibid, p22.
[32] Ibid, p7.
[33] Irish Independent. 'Unregistered landlords paid rent supplement: Department by-passes its own watchdog and subsidises rentals not on the books of the PRTB, 13 September 2009. www.independent.ie/national-news/unregistered-landlords-paid-rent-supplement-1885321.html
[34] Northern Ireland Housing Executive (2009) Northern Ireland Housing Market, Review and Perspectives 2009-2012, pp13-16. www.nihe.gov.uk/index/about-us-home/media_centre/news-2.htm?newsid=14341
[35] Ibid, p83.
[36] Ibid,p83.
[37] Northern Ireland Housing Executive (2009) Houses in Multiple Occupation Strategy 2009. www.nihe.gov.uk/hmo_strategy_2009.pdf
[38] Department for Social Development (2009). op. cit. p27.
[39] See www.dsdni.gov.uk/index/hsdiv-housing/private_rented_sector/private_rented_sector-_strategy/private_rented_sector-_strategy_consultation_responses-2.htm
[40] University of Ulster, School of the Built Environment. Response to the DSD consultation paper on Building Sound Foundations, A Strategy for the Private Rented Sector. www.dsdni.gov.uk/ulster_uni_bse_response.doc
Eleanor Murphy
Research Officer
Research and Library Services
Library Research Papers are compiled for the benefit of Members of The Assembly and their personal staff. Authors are available to discuss the contents of these papers with Members and their staff but cannot advise members of the general public.
1. As part of its deliberations on the Housing (Amendment) Bill the Committee for Social Development has considered the issue of mandatory registration for private landlords. To assist the Committee with its consideration of this issue it was presented with an Assembly Research briefing paper which provided a broad overview of the various landlord and tenancy registration initiatives in other jurisdictions[1]. As a follow-up, this paper is intended to provide the Committee with more detailed information on the operation of the Scottish Landlord Registration Scheme.
2. The paper focuses in particular upon the origins, development and implementation of the scheme and highlights key operational problems and examples of good practice identified by the 2007/08 'Good Practice Review' of the scheme. There are many key lessons and issues which can be drawn from the Scottish experience which are relevant to the consideration of a regulatory scheme for Northern Ireland. To assist the Committee in considering these issues a series of questions are posed throughout the paper. The paper also includes a very broad synopsis of the pros and cons of voluntary accreditation and mandatory registration. Given the importance of the issue of regulatory reform for the private rented sector, and indeed the possible cost implications of a registration scheme for Northern Ireland, it is crucial to consider evidence from other jurisdictions in order to assess the merits of various schemes and to explore examples of best practice.
3. The statutory basis for the Scottish Landlord Registration scheme is set out in Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004[2]. The registration scheme was part of a much wider drive by the Scottish Executive to provide local authorities and other local agencies with the tools to tackle anti-social behaviour within their communities. Other provisions contained within the 2004 Act included, for example, a new onus on local authorities to develop and publish (along with their chief constable) an anti-social behaviour strategy; new powers for local authorities to deal with noise nuisance, graffiti and fly-tipping; new powers for the police to disperse anti-social groups or to close anti-social premises (e.g. drug and drinking dens); and the introduction of Anti-Social Behaviour Orders (ASBOs) for those aged 16 and under[3].
4. Widespread mandatory private sector landlord registration was not part of the original Antisocial Behaviour etc. (Scotland) Bill. Rather the Bill proposed that local authorities be given powers to, "designate, after consultation, one or more registration areas where there are persistent problems of anti-social behaviour associated with private rented housing and use of registration powers is likely to resolve or reduce those problems"[4]. The proposed scheme appears to be similar to provisions set out under Part 3 of the Housing Act 2004 which provides local authorities in England with discretionary powers to introduce 'selective licensing' schemes to cover all privately rented property in areas which suffer from, or are likely to suffer from, significant or persistent anti-social behaviour. The use of this discretionary power is subject to both local consultation and the consent of the Secretary of State[5].
5. The shift towards mandatory registration for all private landlords (with some exemptions) was introduced by way of a series of amendments by Cathie Craigie MSP at Stage 2 of the Bill (i.e. detailed consideration of the Bill by the Scottish Parliament Communities Committee). A research paper by the Scottish Parliament Research and Information Centre provides an insight into the thinking behind those amendments,
"Cathie Craigie intended that her amendments would give effect to one of the recommendations in the Communities Committee's Stage 1 report, namely that a mandatory license scheme should be introduced that registers each private landlord and each of their properties.
Regarding the Bill as introduced, Cathie Craigie was concerned that the discretionary nature of the scheme proposed would lead to different approaches being taken by different local authorities. She believed that there should be national regulation of private landlords.
….she argued that the amendments would give local authorities a tool with which they could challenge landlords who ignore or exploit ASB [Anti-Social Behaviour].
….Cathie Craigie was keen to stress that it was not her intention to propose an all-encompassing scheme that included property conditions and tenancy management. She believed such measures would be best left to a future private housing bill".[6]
6. Whilst there appeared to be general sympathy for what the amendments were attempting to achieve, debate within the Committee centred on the issue of whether or not it was appropriate to pass such a substantive measure at Stage 2 without consultation or whether the ASB Bill was the most appropriate vehicle for the registration scheme. Nevertheless, the amendments were passed by a majority of the Committee[7] and the Anti-Social Behaviour Bill received Royal Assent on 26 July 2004.
7. Following the passing of the Bill the Scottish Executive set up a Working Group to consider the detail of the scheme. A consultation paper outlining proposals for regulation and guidance was issued in July 2005. This was followed by consideration of the regulations by the Communities Committee in December 2005 and the issuing of guidance for local authorities in early 2006[8].
8. The landlord registration scheme came into effect on the 30 April 2006 and the main elements of the scheme are as follows[9]:
9. There are further details of the landlord registration scheme in the overview paper previously presented to the Committee and as such this paper will not revisit these issues. However, it is important to reiterate that the aims of the registration scheme were to, improve private renting in Scotland by enforcing minimum standards in letting; oblige those not providing a minimum service to improve or leave the sector; allow tenants, neighbours and local authorities to identify and contact landlords and agents of private rented sector property; and to provide information on the scale and distribution of the private rented sector in Scotland[10].
10. It is also important to note that the landlord registration scheme is only one part of a package of initiatives aimed at regulating and improving standards in the private rented sector in Scotland. Other key initiatives include[11]:
Is there merit in introducing a 'selective licensing scheme' in Northern Ireland rather than wholesale mandatory registration? Would such a scheme be suitable in a Northern Ireland context? To what extent would it raise private rented sector housing standards and deal with issues around anti-social behaviour?
What is a realistic and acceptable timescale for the development of a registration scheme? Legislation for the Scottish Registration scheme was enacted in July 2004 and the registration scheme became operational in April 2006.
The objectives of a registration scheme for Northern Ireland would need to be clearly defined as the objectives will influence which regulatory approach should be taken. A 'light touch' registration scheme, for example, may provide valuable data on the private rented sector and will enable the verification of landlords who fail to register. However, to be effective would further investment will be needed, i.e. in terms of enforcement measures; information, training and accreditation for landlords; information and advice for tenants?
11. In 2007 the Scottish Ministers appointed consultants, Arneil Johnston to conduct a 'Good Practice Review' of the implementation of landlord registration based on consultation with local authorities[16]. The subsequent report was published in January 2008 and made a number of recommendations aimed at improving the management and enforcement of the various aspects of landlord registration. It is worth considering some of these issues given that the success of a good landlord regulatory regime, even if it is a 'light touch' scheme, would involve quite extensive preparation (e.g. in terms of guidance for landlords, tenants and staff; media advertising; cost-analysis; identify the appropriate IT systems etc).
12. Before considering some of the various issues and recommendations arising from the Good Practice Review, is important to note that responsibility for the management and enforcement of landlord registration in Scotland rests with local authorities. Many of the issues identified by the review tended to be operational or administrative problems, or issues arising from a lack of consistency or uniformity across local authority areas in Scotland.
13. When considering these issues it is also perhaps fair to state that the landlord registration in Scotland is an ongoing and evolving process. The scheme will be four years in operation in April 2010 and was innovative in that it was the first such scheme in the UK. It could therefore be reasonably expected that the scheme would experience some operational difficulties and that revisions to the scheme would be needed. In terms of the scheme being an evolving process, the Scottish Government has taken steps to both identify problems and offer potential solutions through the Good Practice Review[17] and through consultation with stakeholders. The Scottish Government has also introduced a number of recent changes to legislation to simplify the application, fee and discount process (in February 2009)[18]. The Scottish Government has also made a commitment to evaluate the scheme in 2010[19].
14. The good practice review maintained that, in general terms, landlord registration function had been slotted into existing management structures in local authorities, i.e. either in council housing departments or in licensing/legal/environmental health departments. As a result each local authority had taken a very different approach to the management, implementation and enforcement of the scheme. The consultants felt that two philosophies emerged depending on where registration was placed within an authority, i.e. if it was placed in Licensing/Legal/Environmental departments the philosophy appeared to be to use enforcement to drive improvement in the private rented sector. Where registration was placed within housing departments there tended to be focus upon supporting landlords to improve conditions.
15. The review recommended that that there should be a dedicated private housing sector manager responsible for all private sector housing issues, supported by a team large enough to manage workload peaks and establishing sound expertise in both the registration process and other related private sector housing issues.
A core issue for a potential landlord registration scheme for Northern Ireland is the decision as to where responsibility for managing a scheme should rest - who would be best placed to manage the scheme, e.g. local councils? the Northern Ireland Housing Executive? An independent company (as proposed for the English landlord registration scheme)?
If a scheme was centrally managed in Northern Ireland, what role would local councils have? It is important to bear in mind that local councils in Northern Ireland would be key stakeholders in respect of a registration process given that, for example, under RPA proposals they will have responsibility for HMO registration and already have responsibility in respect of HMO standards.
In addition to landlords should letting agents also be required to register?
16. The review maintained that the scale of the administration function of registration was significantly underestimated by most local authorities in Scotland. The use of resources tended to fall into two categories, i.e. resources for 'fire-fighting' (i.e. dealing with backlogs) or resources necessary to provide a service to the sector (i.e. taking enquiries from landlords, publicising registration, dealing with enforcement measures etc). It was recommended that there should be a review of the sector within each council which assessed and put into place the resources and skills necessary to ensure that all landlords are registered.
The resource and staffing implications for a Northern Ireland scheme must be considered and lessons drawn from the Scottish experience in terms of putting in place not only adequate staffing numbers but also ensuring that there are staff with a mix of skills and experience who can provide advice and information. Should options for 'buying in' advice services from housing and other advice providers be explored?
Good preparation before a scheme is implemented may be cost effective, for example, by providing staff with guidance on gathering information for enforcement procedures; guidance on providing information, advice and monitoring.
17. The review maintained that whilst all local authorities understood the benefits of linking landlord registration to wider policies (e.g. regional housing strategies, private sector housing strategies, homelessness and temporary accommodation strategies) each local authority tended to have a different approach. The review recommended that in order to implement and enforce landlord registration it is essential that there is close collaborative working between the following council functions – housing; homelessness; environmental health; building control; licensing; housing benefit; finance; legal; anti-social behaviour teams; tenants and residents associations etc.
With respect to a landlord registration scheme for Northern Ireland, this is again relevant to the issue of which body should be responsible for the management of the scheme. In Scotland, local councils are responsible for functions which are split into a number of different areas in Northern Ireland – e.g. NIHE have a responsibility for housing; homelessness; social housing and anti-social behaviour; local councils are responsible for building control and environmental health; the Social Security Agency is responsible for housing benefit. For a registration scheme to be effective in Northern Ireland there would need to be consultation and buy-in from all relevant stakeholders.
18. The review highlighted that the online application process was not as easy and straightforward as first envisaged and that some landlords (e.g. those with limited IT skills) needed considerable assistance from staff to complete the registration process and to access discounted fees. The review recommended improvements to the user friendliness of online and paper application forms; easy-to-understand advice notes for different types of landlords and agents; a dedicated one point of contact web-address, phone number and email address which landlords can contact.
Some thought must be given in respect of the logistics of the registration process – i.e. should it be web-based, if so, adequate preparation will be needed to put in place a cost-effective IT system; piloting a web-site; designing user-guides and application process training and advice for landlords; putting in place an advertising campaign.
Other issues which will need to be considered are – what registration fees should be applicable? Should discounts apply (e.g. for registering more than one property, for landlords who have already registered their HMOs)? How will the HMO registration scheme fit into the wider registration scheme?
19. The review maintained that landlords submitting forms without key contact data (such as a telephone number or email address) was a common problem. This made it very difficult for local authorities to contact landlords if problems arose or enforcement measures needed to be taken.
Should personal contact information (e.g. as opposed to business contact information) be a mandatory requirement of the application form? What other mandatory information should be required.
What type of information on landlords should be available to the public (e.g. in Scottish scheme members of the public can search, via the landlord registration website, to ascertain if certain properties have been registered)?
20. The review maintained that there was no clear and consistent approach to processing applications across Scotland. Each local authority interpreted guidance differently based on local circumstances and resources. An important example of this is variations in applying the 'fit and proper test'. Landlords and agents with a number of properties across difficult local authority areas reported being subjected to different sets of checks and criteria for the 'fit and proper' assessment depending upon the local authority area.
21. The current guidance for local authorities states that the 'fit and proper' assessment should be 'light touch'. However, the review maintained that local authorities have interpreted this concept in different ways. For example, one local authority in Scotland completes a police check on every applicant, another requires sight of a gas safety certificate, and another simply registers all landlords unless they have cause for concern. The review recommended that the 'fit and proper' test should be applied as follows "….that unless someone or their properties are on a review list they should be approved. In light of any new information as part of an enforcement procedure or review list consultation, a landlord or agent's status can at any time revert to pending review and can be re-assessed as fit and proper at that time".
22. In relation to the 'fit and proper' person test, each local authority in Scotland must keep a review list to assist in determining eligibility for registration. The purpose of the review list is to identify:
If a landlord registration scheme was applied in Northern Ireland, should there be a 'fit and proper' person test similar to that in Scotland? If so, should a scheme be managed by one body to avoid a scenario whereby different sets of checks and criteria were applied across different council areas?
Should a potential registration scheme for Northern Ireland have a 'review list'? If so, consideration must be given as to how this is compiled and co-operation with a number of bodies would need to be established, e.g. NIHE and local district housing offices; local councils (environmental health and building control, anti-social behaviour teams); police; universities etc.
How 'light touch' should a light touch scheme be, i.e. should landlords simply be registered unless cause for concern arises? Should landlords be required to have certain certificates before being registered or meet certain other requirements?
23. The review maintained that relatively few local authorities had robust processes and procedures in place to enforce landlord registration. Generally local authorities felt that pursuing court action and sanctions such as Rent Penalty Notices or de-registration would be used as a last resort. Many local authorities tended to concentrate upon providing support to landlords and agents to avoid sanctions being put in place. The review noted, however, that some local authorities were using sanctions to address non-compliance issues. For example, East Lothian Council issued rent penalty notices to landlords who failed to pay for registration and East Renfrewshire Council cross matched the landlord register with Council Tax records and identified 600 potential landlords that had failed to register.
24. Local authorities have a range of enforcement powers which can be used to ensure compliance with registration requirements. These include refusing to register a landlord, rent penalty notices and late application fees. Since April 2006, one landlord has had their registration removed, 10 landlords have been refused registration, over 800 late application fees have been applied and over 600 rent penalty notices have been issued across Scotland[20]. I have contacted the Scottish Government for more recent statistics on the application of sanctions.
What non-compliance sanctions could be applied to a Northern Ireland registration scheme? Should rent penalty notices and late application fees be applied?
What is the best means of identifying non-registered landlords (e.g. some good practice local authorities in Scotland use housing benefit; mortgage lenders; confidential helpline for tenants and neighbours; police service; residents associations)?
How much emphasis should be placed upon enforcement and will there be sufficient financial resources for this? What will the financial implications be in terms of legal costs and training staff to gather information sufficient for supporting legal action?
25. The Scottish Housing Improvement Taskforce identified three different models for regulating the private rented sector, i.e. voluntary accreditation, compulsory regulation and discretionary regulation. A brief overview of each approach is outlined in this section. Whilst the three approaches may sound similar they are fundamentally very different. Setting clear objectives for a potential regulatory scheme for Northern Ireland is crucial as it will determine which of the regulatory approaches is most suitable to meet those objectives. The remainder of the section briefly explores some of the perceived pros and cons of two of the regulatory approaches, i.e. voluntary accreditation and compulsory registration.
Accreditation implies a voluntary system of regulation. The scheme requires specific property and management standards to be met in order for the property or landlord to be accredited and if the application is successful, a certificate of confirmation of the standards having been attained is awarded. A voluntary accreditation scheme can target the whole private rented sector or a specific part, by geography or sub-sector.
There are three main types of compulsory regulation: compulsory licensing, compulsory registration and compulsory certification. While they differ from each other in terms of how onerous their regulatory requirements are, they all share one common feature – they are universal schemes – all privately rented property (or all private landlords or letting agents) must be regulated in order to lawfully operate and trade (excluding those already covered by the mandatory HMO licensing scheme).
This approach offers a flexible alternative to compulsory regulation. Each local authority would have a power (subject to Executive approval in the case of a Scottish model) to introduce some form of local regulation (registration, certification or licensing) but only if it was proven necessary. Once established the scheme would be compulsory for landlords or properties for which the scheme was designed.
Compulsory licensing refers to a process whereby a landlord cannot let out a property unless they hold a license to operate. There are various criteria that could be used for obtaining a licence including property standards and a 'fit and proper' person test for the landlord. This scheme is similar to the HMO Registration scheme.
A 'light touch' licensing scheme would refer to a scheme where the criteria only covers part of that contained in a comprehensive scheme, for example it might only relate to the landlord being a 'fit and proper' person.
A compulsory registration scheme, whether of properties or landlords, represents a 'light touch' to regulation compared to compulsory licensing. It is not a substitute for licensing as it is designed to achieve a different objective, i.e. its basic objective is to provide location and contact information.
Compulsory registration becomes compulsory certification when a minimum standard has to be met for approval to trade. It involves collecting further data than registration requires, such as confirmation of a valid safety certificate or gas appliances, electrical safety certificate, fire certificates, confirmation of the use of written tenancy agreements. Documentary proof would not be submitted, as any requirement to submit certificates and leases would make compulsory certification over-complicated and bureaucratic.
28 JANUARY 2010
[1] Northern Ireland Assembly, Research and Library Service (2009) An Overview of Landlord and Tenancy Registration Schemes in the Private Rented Sector. archive.niassembly.gov.uk/researchandlibrary/2009/7709.pdf
[2] Part 8, Antisocial Behaviour etc (Scotland) Act 2004.
[3] Scottish Executive (2004) Guide to the Antisocial Behaviour etc. (Scotland) Act 2004. www.scotland.gov.uk/Publications/2004/10/20146/45685
[4] Antisocial Behaviour etc. (Scotland) Bill. Policy Memorandum, p21. http://www.scottish.parliament.uk/business/bills/12-antisocialBehaviour/b12s2-introd-pm.pdf
[5] Information on selective licensing in England extracted from the Department of Communities and Local Government website, www.communities.gov.uk/housing/rentingandletting/privaterenting/selectivelicensing/
[6] SPICe (2004) Antisocial Behaviour etc. (Scotland) Bill. Stage 2 amendments – Registration of Private Landlords, pp7-8. www.scottish.parliament.uk/business/research/briefings-04/sb04-44.pdf
[7] Ibid, pp10-14.
[8] SPICe (2006) Private Landlord Registration, p3. www.scottish.parliament.uk/business/research/briefings-06/SB06-39.pdf
[9] Scottish Executive (2004) Guide to the Antisocial Behaviour etc. (Scotland) Act 2004. www.scotland.gov.uk/Publications/2004/10/20146/45685
[10] Scottish Executive News Release. 'Landlord Registration Scheme', 30 April 2006. www.scotland.gov.uk/News/Releases/2006/04/28144943
[11] Information extracted from the Scottish Government website, www.scotland.gov.uk/Topics/Built-Environment/Housing/PrivateRenting
[12] Landlord Accreditation Scotland website - www.landlordaccreditationscotland.com/
[13] Landlord Accreditation Scotland (2008) Scottish Core Standards for Accredited Landlords'. www.landlordaccreditationscotland.com/Files/File/Core_Standards_26_Sept.pdf
[14] For further information on the Repairing Standards see www.scotland.gov.uk/Topics/Built-Environment/Housing/PrivateRenting/RepairingStandard
[15] For further information on the Private Rented Sector Housing panel see www.prhpscotland.gov.uk/prhp/121.html
[16] Arneil Johnston (2008) op. cit.
[17] See Arneil Johnston (2008) Good Practice Review of the Implementation of Landlord Registration. www.scotland.gov.uk/Publications/2008/07/17153219/0
[18] See www.scotland.gov.uk/Topics/Built-Environment/Housing/PrivateRenting/registrations/Introduction
[19] Scottish Government (2009) Review of the Private Rented Sector: Volume 1: Key Findings and Policy Implications, p67. www.scotland.gov.uk/Resource/Doc/264996/0079349.pdf
[20] Scottish Parliament Question (S3W- 23450). Mary Mulligan (Linlithgow), answered by Alex Neil, 11 May 2009.
[21] Housing Improvement Taskforce (2003) extracted from SPICe (2004) Antisocial Behaviour etc. (Scotland) Bill. Stage 2 amendments – Registration of Private Landlords, Appendix 1. www.scottish.parliament.uk/business/research/briefings-04/sb04-44.pdf
[22] Housing Improvement Taskforce (2004) extracted from SPICe (2004) Antisocial Behaviour etc. (Scotland) Bill. Stage 2 amendments – Registration of Private Landlords, Appendix 2.
[23] Rugg, J. & Rhodes, D. (2008) The Private Rented Sector: its contribution and potential, pxxii. www.york.ac.uk/inst/chp/publications/PDF/prsreviewweb.pdf
[24] Ibid, p61.
[25] Ibid, p74.
This paper is the third in a series of briefing papers provided to assist the Committee with its consideration of issues around mandatory landlord registration. The first paper provided an overview of the various private rented sector landlord and tenancy registrations schemes currently operational in Great Britain and the Republic of Ireland[1]. The second paper[2] provided a closer examination of the Scottish Landlord Registration model. It explored both the operational difficulties and best practice associated with the scheme and identified a number of key issues to be considered in the development of regulatory scheme for Northern Ireland. The purpose of this third paper is to assist the Committee in its consideration of the Housing (Amendment) (No.2) Bill by providing, for comparative purposes, a brief overview recent developments in mandatory landlord and tenancy registration in Scotland, England and the Republic of Ireland.
This section looks briefly at how the Scottish registration scheme was developed from its legislative origins to its implementation and provides an update on some of significant amendments proposed for the Scottish Landlord Registration regime introduced recently via the Private Rented Housing (Scotland) Bill.
The statutory basis for the Scottish Landlord Registration scheme is set out in Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004[3]. The scheme itself came into effect on 30 April 2006 and was originally intended to be as 'light touch' as possible to minimise its impact upon the majority of landlords who provide good services to their tenants[4]. The registration scheme was part of a much wider drive by the then Scottish Executive to provide local authorities and other local agencies with the tools to tackle anti-social behaviour within their communities.
Other provisions contained within the 2004 Act included, for example, a new onus on local authorities to develop and publish anti-social behaviour strategies; new powers for local authorities to dead with noise nuisance, graffiti and fly-tipping; new powers for the police to disperse anti-social groups or to close anti-social premises (e.g. drug and drinking dens; and the introduction of Anti-Social Behaviour Orders (ASBOs) for those aged 16 and under[5].
Widespread mandatory landlord registration across Scotland was not part of the original Bill. Rather the Bill proposed that local authorities be given 'selective licensing' powers whereby local authorities could designate (after consultation) specific areas for registration where there had been persistent problems of anti-social behaviour associated with private rented housing[6]. The shift towards wholesale mandatory registration for all private landlords (with certain exemptions) was introduced by way of a series of amendments by Cathie Craigie MSP at Stage 2 of the Bill. A research paper by the Scottish Parliament Research and Information Centre provides an insight into the thinking behind those amendments,
"Cathie Craigie intended that her amendments would give effect to one of the recommendations in the Communities Committee's Stage 1 report, namely that a mandatory licence scheme should be introduced that registers each private landlord and each of their properties.
Regarding the Bill as introduced, Cathie Craigie was concerned that the discretionary nature of the scheme proposed would lead to different approaches being taken by different local authorities. She believed that there should be national regulation of private landlords.
…she argued that the amendments would give local authorities a tool with which they could challenge landlords who ignore or exploit ASB.
….Cathie Craigie was keen to stress that it was not her intention to propose an-all encompassing scheme that included property conditions and tenancy management. She believed that such measures would be best left to a future private housing bill".[7]
Whilst there appeared to be general sympathy for what the amendments were attempting to achieve, debate within the Committee centred on the issue of whether or not it was appropriate to pass such a substantive measure at Stage 2 without consultation or whether the ASB Bill was the most appropriate vehicle for the registration scheme. Nevertheless, the amendments were passed by a majority of the Committee and the Bill received Royal Assent on 26 July 2004[8].
It took just under two years from the time in which the legislation was enacted (July 2004) until the landlord registration scheme became operational (April 2006).
Similar to the provisions contained within the Housing (Amendment) (No2) Bill, detailed information on the scheme is not contained within the Bill itself but rather is contained within regulations and guidance. Following the passing of the Bill, the Scottish Executive set up a Working Group to consider the detail of the scheme. A consultation outlining proposals for regulation and guidance was issued in July 2005 followed by consideration of the regulations by the Scottish Parliament Communities Committee and finally the issuing of guidance to local authorities in 2006 (updated in 2009)[9].
Ministers have the following regulatory powers under the 2004 Act in relation to landlord registration[10]:
Power to -
The statutory instruments listed below were made in exercise of these powers.
The main elements of the scheme are as follows[12]:
As of 31 March 2010 there were 155,272 landlord registrations approved and 213,188 properties approved. Around another 7,000 registrations and 9,900 properties were awaiting a decision[13]. It is not clear how many landlords or properties in the sector remain registered, however, estimates suggest that the scheme has achieved coverage of approximately 83% of private rented sector housing in Scotland[14]. In terms of enforcement, there have been no prosecutions for failure to register under the scheme, however, as of 31 March local authorities have applied over 1,300 late application fees linked to registration and issued over 1,200 Rental Penalty Notices to unregistered landlords[15].
The Scottish Government has supported local authorities with the costs of implementing the scheme through the provision of grant funding. A total of £5.2m grant funding was made available to local authorities between February 2006 and March 2008 to support start-up costs. Under the Concordat arrangements between Local Authorities and the Scottish Government, baseline grant funding of £1.98m per annum in 2007-08 for landlord registration has been rolled up in the overall local government settlement for the period 2008-11. Ongoing funding arrangements for registration activity will be determined locally, in line with the Concordat. It is the Scottish Government's intention that the scheme moves to full cost recovery over time and that local authority fee income supports the ongoing administration of the scheme. This is in line with other licensing regimes, in particular, HMO licensing[16].
In April 2009, Shelter Scotland published a report entitled 'Landlord Registration in Scotland: three years on' which called for an urgent review into a registration scheme which it believed was failing to 'weed out' a minority of bad landlords and thereby failing to protect tenants from poor practice. The report called for a national publicity drive as research revealed that there was a lack of awareness amongst landlords and tenants about their rights and responsibilities[17].
The Scottish Government has taken a number of steps in attempt to address many of the perceived deficiencies of the registration scheme. Firstly, in 2007 the Scottish Ministers appointed consultants to conduct a 'Good Practice Review' of the implementation of landlord. The subsequent report, published in 2008, made a number of recommendations aimed at improving the management and enforcement of various aspects of the landlord registration scheme. In short, the review highlighted[18]:
A number of significant developments have occurred since the publication of the Good Practice Review of the landlord registration scheme. Firstly, the Scottish Government has made a commitment to conduct a full evaluation of the private landlord registration scheme and this is to be completed by March 2011. This will, amongst other things assess the impact of landlord registration on standards of service provided by landlords in the private rented sector[19].
The second significant development is the recent introduction of the Private Rented Housing (Scotland) Bill (on 4 October 2010)[20]. This piece of legislation not only proposes to introduce a number of fundamental changes to the registration including a tightening up of the fit and proper person test; increasing the maximum penalty; and introducing disqualification orders for unregistered landlords. In addition to this, the Bill also aims to address a number of other private rented sector issues including changes to the Houses in Multiple Occupation (HMO) licensing regime and new measures to deal with overcrowding in rented accommodation. This next section of this paper provides a brief overview of the proposals contained within the Bill.
The purpose of the Private Rented Housing (Scotland) Bill is to "support responsible landlords and address more effectively the problems caused by landlords who act unlawfully, but strengthening the regulation of the private rented sector"[21]. The Bill contains the following new provisions in respect to landlord registration[22]:
In order to improve protection for private tenants the Bill expands the list of offences to be declared by an applicant for landlord registration to include firearms and sexual offences. Under current legislation, applicants must declare spent or unspent convictions of offences involving fraud or dishonesty, violence, drugs, discrimination or contravention of housing law, and court or tribunal judgements under discrimination legislation. The Bill also specifies examples of information that a local authority may taken into account when making a decision about whether a landlord is fit and proper, e.g.:
There is reportedly a significant number of landlords in Scotland whose applications or status under the landlord registration system are 'under review' because of local authority's concerns. However, some local authorities have stated that there is a reluctance to use their powers to refuse applications because of difficulties gathering evidence to ensure that robust cases against landlords can be developed. Therefore, the aim of these new measures is make it easier for local authorities to gather evidence by providing new powers to require information[24].
Sections 7 and 8 of the Bill give powers to the Courts to impose tougher penalties on the most severe cases of bad landlord practice. The current maximum fine for failing to register as a landlord is Level 5 or £5,000. Local authorities are concerned that the sanctions are not sufficiently high, as a result the Bill contains provisions to increase the maximum to £50,000 (bringing landlord registration into line with HMO licensing). Additionally, the Bill contains provisions to disqualify a person from operating as a landlord in any local authority in Scotland for up to five years. The Bill's Policy Memorandum in this regard states:
"Ministers consider that a maximum fine of this size is justified because some unregistered landlords, with large numbers of properties and tenants, are making large amounts of money from their illegal activities. Furthermore, unregistered landlords' properties are more likely to be substandard and therefore a threat to public health. In addition, unregistered landlords are more likely to have tenants who indulge in anti-social behaviour and may themselves be involved in other criminal activity, causing serious damage to their communities and therefore constituting a serious public nuisance."
Landlord registration numbers are currently provided for administrative reasons when landlords are registered but they do not have any legal status. The Bill puts landlord registration numbers on a statutory footing and local authorities must provide landlords with a registration number when their registration has been completed. In addition to this, to prevent unregistered landlords from advertising their properties the Bill requires that all adverts for properties to let must include the landlord registration number (or to include the term 'landlord registration pending' in the case of a landlord whose application has yet to be determined. There will be an exemption for reusable 'To Let' boards due to the associated costs for landlords.
Failure to comply may result in removal from the register (if the landlord is registered) or refusal to register (for applicants). The purpose of this measure is to make it easier for local authorities to identify unregistered landlords and to progress enforcement activity as appropriate. However, local authorities can offer the landlord the opportunity to rectify the situation before applying the sanction.
To assist local authorities in identifying unregistered landlords, the Bill contains a power for local authorities to require a letting agent to provide information in relation to any house in the areas in which the agent acts, including the address of the house and the name and address of the owner.
In addition to this, a significant proportion of landlords entrust the management of their properties to agents, however, there is no requirement for agents to register in their own right (although they may do so voluntarily). Under current legislation, a landlord must include any agent in an application for registration and a fee is paid for this. However, where a landlord has been registered and then subsequently adds an agent, there is no currently no power for the local authority to charge a fee for this addition. If the landlord nominates an unregistered agent, that agent will have to be assessed as fit and proper which involves additional expense for the local authority. The Bill contains provisions to allow a local authority to charge a fee in these circumstances.
Information on registered private landlords and their properties is held on a register maintained by the local authority for the area in which each property is located. Public access to the register is restricted to prevent misuse. To help protect tenants, the Bill contains provisions to permit two additional categories of information to be made available to the public, i.e.:
The Bill's Policy Memorandum states that the management of non-compliance with landlord registration varies immensely across local authority areas and that local authorities have varying commitment to the registration scheme. The Bill gives Ministers a general power to issue statutory guidance which local authorities must have regard to. This could include guidance in relation to a local authority taking proactive enforcement action including steps to tackle non-registration.
In addition to the provisions on landlord registration, the Bill also proposes to introduce a number of other changes to the regulation of the private rented sector in Scotland which the Committee may be interested in:
According to the Bill's Policy Memorandum, local authorities have repeatedly raised concerns about difficulties in enforcing HMO legislation. Although cases are successful brought before the sheriff, the fines imposed are considered to be small and often less than a month's rent or the licence fee that has been evaded. Within the current regime that maximum fine for the offences of owning an unlicensed HMO or acting as an agent in relation to an unlicensed HMO is £20,000. The Bill will increase the penalty for these offences to £50,000.
The Bill provides for an order making power allowing Minister to designate specified additional categories of multi-occupancy accommodation as licensable HMOs (e.g. portacabins and other premises used by seasonal workers). The provision is the result of concern expressed by some local authorities that some landlords are avoiding HMO licensing because (or because they are claiming) that occupants are living in the premises for only a short time and have a principal residence elsewhere (there are particular concerns about the living conditions of migrant workers. This power may only be used after consultation with stakeholders.
The Scottish Government acknowledges that overcrowding is an issue in some parts of the private rented sector in Scotland and is a particular problem for migrant workers. This is not always due to the landlord but as a result of tenant bringing in additional occupants to save money. The HMO licensing system in Scotland does also local authorities to address the issue of overcrowding by specifying the maximum number of occupants permitted in a licensed HMO.
The Bill will give local authorities the power to serve an Overcrowding Statutory Notice on the landlord of a house which is overcrowded. The notice will set out the steps to be taken by the landlord to rectify the situation, the period within which the steps must be taken, and any other conditions considered appropriate. Failure to comply with a notice will be an offence subject to a fine not exceeding £1,000. The Bill also makes provisions to allow local authorities to provide advice and assistance to the occupants of a house in which an Overcrowding Statutory Notice has been served.
A review of the Private Rented Sector in Scotland found that there was a low awareness of the law governing the private rented sector. To improve tenant awareness, the Bill places a statutory duty on a landlord to provide specified documents and information (in the form of a tenant information pack) to a tenant at the beginning of an assured tenancy. Failure to do so will be an offence with a maximum fine of £500.
Ministers are given the power to make an order to prescribe the information and documents to be included in the pack. This may include documents containing information about the tenancy (e.g. a tenancy agreement); about the house (e.g. permitted level of occupancy); about the landlord (e.g. landlord registration number; and about the rights and responsibilities of tenants, landlords and agents).
Recommendations for a 'light touch' mandatory licensing scheme for landlords in the private rented sector were contained within the independent Review of Private Rented Sector Housing[25] published in October 2008. The review, known as the 'Rugg Review', was conducted by the Centre for Housing Policy at the University of York at the request of the Department of Communities and Local Government[26]. On 13 May 2009 the then Housing Minister, Margaret Beckett announced that the Department for Communities and Local Government (DCLG) would consult upon proposals to introduce a 'light touch' national register for private landlords with a view to increasing protection for vulnerable tenants and good landlords[27].
It was envisaged that the national register would be run by an independent organisation and landlords will be required to register for a nominal fee to cover administration costs. It was also anticipated that the register will be web-based and would require minimal information such as the name of the landlord, their address and addresses of the properties being let.
However, the decision for a mandatory landlord registration scheme was overturned by the new Coalition Housing Minister, Grant Shapps. On the 10 June 2010, the Department for Communities and Local Government announced:
"Housing Minister Grant Shapps has today promised England's one million landlords that the Government has no plans to introduce new regulations on the private rented sector.
New regulations were proposed by the previous administration in response to the Rugg Review…but have been judged by the new coalition to introduce too much additional red tape. These included a National Register of Landlords, regulation of letting and managing agents, and compulsory written tenancy agreements…..
He said: "With the vast majority of England's three million private tenants happy with the service they receive, I am satisfied that the current system strikes the right balance between rights and responsibilities of tenants and landlords.
So today I make a promise to good landlords across the country; the Government has no plans to create any burdensome red tape and bureaucracy, so you are able to continue providing a service to your tenants.
For the bad landlords, I am putting councils on alert to use the range of powers already at their disposal to make sure tenants are properly protected"[28]
On 8 November 2010, the Minister for Housing and Local Services announced details of a legislative initiative to address regulatory non-compliance by landlords. In particular he emphasised his intention to shift the registration focus from tenancies to dwellings. Under the current system there requirement under the Residential Tenancies Act 2004 on landlords to register the details of their tenancies (as opposed to registering the landlord) within one month of their commencement and the register is maintained by a body known as the Private Residential Tenancies Board (PRTB).
The Minister expressed particular concern in ensuring that rent supplement payments do not ultimately end up with landlords who are non-compliant with the registration scheme:
"I believe that by registering dwellings with the PRTB we will go a long way to ensuring that only landlords who are in compliance with the regulations will receive rent supplement payments from the State. In addition, I believe that this could help yield significant administrative efficiencies for both the PRTB and for landlords, and will provide a platform from which compliance with the requirements of the RTA and with wider regulations will be enhanced"[29]
A 2009 article in the Irish Independent had previously criticised the payment of rent supplements to tenants whose tenancy arrangements had not been registered with the Private Residential Tenancies Board. The article highlighted that the Department for Social and Family Affairs continued to pay rent supplements to tenants even if there had been a failure to register the tenancy[30].
It has been suggested that a system whereby dwellings are registered with the PRTB would make it easier to ensure that only RTA-compliant landlords would receive rent supplement monies. Rent supplement-assisted tenants could see proof of RTA-compliance at the time of seeking accommodation as only such compliant dwellings would allow them to draw down rent supplement. It is also suggested that in the longer term, registration of dwellings could act as a platform onto which other 'good landlord' aspects could be bolted such as compliance with the Building Energy Rating system and inspections of minimum standards for houses in the private rented sector[31].
(1) Each local authority shall prepare and maintain a register for the purposes of this Part.
(2) Each local authority shall make its register available for public inspection at all reasonable times.
(1) An application by a relevant person to a local authority for entry in the register maintained by it under section 82(1) shall specify—
(a) the name and address of the relevant person;
(b) the address of each house (if any) within the area of the authority which the relevant person owns and which is subject to—
(i) a lease; or
(ii) an occupancy arrangement,
by virtue of which an unconnected person may use the house as a dwelling;
(c) if the relevant person has a person who acts for the person in relation to the lease or occupancy arrangement to which any house specified under paragraph (b) is subject, the name and address of the person; and
(d) such other information as the Scottish Ministers may by regulations prescribe.
(2) Subject to subsection (3), the application shall be accompanied by such fee as the local authority may determine.
(3) The Scottish Ministers may by regulations prescribe for the purposes of subsection (2)—
(a) fees;
(b) how fees are to be arrived at;
(c) cases in which no fee shall be payable.
(4) A person who, in an application under this section—
(a) specifies information which the person knows is false in a material particular; or
(b) knowingly fails to specify information required by subsection (1),
shall be guilty of an offence.
(5) A person guilty of an offence under subsection (4) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(6) For the purposes of subsection (1)(b), the use of a house as a dwelling shall be disregarded if—
(a) the house is being used for the provision of—
(i) a care home service (as defined in subsection (3) of section 2 of the Regulation of Care (Scotland) Act 2001 (asp 8));
(ii) a school care accommodation service (as defined in subsection (4) of that section);
(iii) an independent health care service (as defined in subsection (5) of that section); or
(iv) a secure accommodation service (as defined in subsection (9) of that section);
(b) the house is being used by a religious order the principal occupation of which is prayer, contemplation, education or the relief of suffering;
(c) a control order under section 178 of the Housing (Scotland) Act 1987 (c. 26) is in force in respect of the house; or
(d) the house is being used for holiday purposes.
(7) The Scottish Ministers may by order modify subsection (6).
(8) In this Part—
"relevant person" means a person who is not—
(a) a local authority;
(b) a registered social landlord; or
(c) Scottish Homes; and
"unconnected person", in relation to a relevant person, means a person who is not a member of the family of the relevant person.
(1) This section applies where a relevant person makes an application to a local authority in accordance with section 83.
(2) Where, having considered the application—
(a) the local authority is satisfied that subsection (3) or (4) applies, the authority shall enter the relevant person in the register maintained by the authority under section 82(1);
(b) the authority is not satisfied that either of those subsections applies, the authority shall refuse to enter the relevant person in the register.
(3) This subsection applies where—
(a) under paragraph (b) of section 83(1), the application—
(i) does not specify a house; or
(ii) specifies a house (or two or more houses);
(b) under paragraph (c) of that section, the application does not specify the name and address of a person; and
(c) the relevant person is a fit and proper person to act as landlord under—
(i) a lease; or
(ii) an occupancy arrangement,
by virtue of which an unconnected person may use a house as a dwelling.
(4) This subsection applies where—
(a) under paragraph (b) of section 83(1), the application specifies at least one house;
(b) under paragraph (c) of that section, the application specifies the name and address of a person;
(c) subsection (3)(c) applies; and
(d) the person is a fit and proper person to act for a landlord such as is mentioned in that subsection in relation to the lease or, as the case may be, arrangement.
(5) An entry in a register under subsection (2)(a) shall state, in relation to the relevant person, the information specified by virtue of paragraphs (a) to (c) of section 83(1) in the application made by the relevant person.
(6) Subject to sections 88(8) and 89(1), where a local authority makes an entry in a register under subsection (2)(a), the authority shall remove the entry from the register on the expiry of the period of 3 years beginning with the day on which the entry is made.
(1) In deciding for the purposes of section 84(3) or (4) whether the relevant person or, as the case may be, the person is a fit and proper person, the local authority shall have regard (among other things) to any material falling within subsections (2) to (4).
(2) Material falls within this subsection if it shows that the relevant person or, as the case may be, the person has—
(a) committed any offence involving—
(i) fraud or other dishonesty;
(ii) violence; or
(iii) drugs;
(b) practised unlawful discrimination on grounds of sex, colour, race, ethnic or national origins or disability in, or in connection with, the carrying on of any business; or
(c) contravened any provision of—
(i) the law relating to housing; or
(ii) landlord and tenant law.
(3) Material falls within this subsection if it relates to any actings of the relevant person or, as the case may be, the person as respects antisocial behaviour affecting a house—
(a) subject to a lease or occupancy arrangement such as is mentioned in section 84(3)(c); and
(b) in relation to which the relevant person was (or is) the landlord under the lease or arrangement or, as the case may be, the person was (or is) acting for the landlord in relation to the lease or arrangement.
(4) Material falls within this subsection if it appears to the authority that the material is relevant to the question of whether the relevant person or, as the case may be, the person is a fit and proper person.
(5) In subsection (3), "actings" includes failure to act.
(1) Where a local authority—
(a) enters a person in its register under paragraph (a) of section 84(2); or
(b) refuses to enter a person in its register under paragraph (b) of that section,
the authority shall, as soon as practicable after doing so, give notice of the fact to the person.
(2) Where a local authority refuses to enter a person in its register under section 84(2)(b), the authority shall, as soon as practicable after doing so, send notice of the fact to—
(a) each address specified by virtue of paragraph (b) of section 83(1) in the application for registration; and
(b) if, by virtue of paragraph (c) of section 83(1), the application specified the name and address of a person, that person.
(1) This section applies where a person is registered by a local authority.
(2) If in consequence of a change in circumstances any information provided by the person to the local authority by virtue of section 83(1) or, as the case may be, this subsection, becomes inaccurate, the person shall, as soon as practicable after the inaccuracy arises, give notice in writing to the authority of the change that has occurred.
(3) Subject to subsection (4), any notice given under subsection (2) shall be accompanied by such fee as the local authority may determine.
(4) The Scottish Ministers may by regulations prescribe for the purposes of subsection (3)—
(a) fees;
(b) how fees are to be arrived at;
(c) cases in which no fee shall be payable.
(5) A person who, without reasonable excuse, fails to comply with subsection (2) shall be guilty of an offence.
(6) A person guilty of an offence under subsection (5) shall be liable on summary conviction to a fine not exceeding level 3 on the standard scale.
(1) Subsection (2) applies where—
(a) a person is registered by a local authority (the "registered person"); and
(b) the registered person appoints a person to act for the person in relation to—
(i) a lease; or
(ii) occupancy arrangement,
by virtue of which an unconnected person may use as a dwelling a house within the area of the authority which the registered person owns.
(2) The registered person shall, as soon as practicable after appointing the person, give notice in writing to the local authority of the appointment.
(3) The local authority shall, as soon as practicable after being given notice under subsection (2), determine whether the condition in subsection (4) is satisfied in relation to the person appointed.
(4) The condition is that the person is a fit and proper person to act for the registered person in relation to a lease or occupancy arrangement such as is mentioned in subsection (1)(b).
(5) Subsections (2) to (5) of section 85 shall apply for the purposes of subsection (4) as those subsections apply for the purposes of subsection (1) of that section.
(6) If the local authority determines that the condition in subsection (4) is satisfied—
(a) the registered person shall be deemed, with effect from the date of the determination, to be registered by virtue of subsection (4) of section 84; and
(b) the local authority shall give the registered person notice in writing of that fact.
(7) Subsection (6)(a) shall not affect the calculation of the period mentioned in section 84(6).
(8) If the local authority determines that the condition in subsection (4) is not satisfied, the authority shall remove the registered person from the register.
(1) Where—
(a) a person is registered by a local authority; and
(b) subsection (2) or (3) applies,
the authority shall remove the person from its register.
(2) This subsection applies where—
(a) the person was registered by virtue of section 84(3); and
(b) paragraph (c) of that section no longer applies.
(3) This subsection applies where—
(a) the person was registered by virtue of section 84(4); and
(b) paragraph (c) or (d) of that section no longer applies.
(1) Subsection (2) applies where under section 88(8) or 89(1) a local authority removes a person from the register maintained by it under section 82(1).
(2) As soon as practicable after the removal, the local authority shall give the person notice in writing of—
(a) the removal; and
(b) the date of the removal.
(3) Notice under subsection (2) shall be given to the person at the address which, immediately before the removal, was specified as being the address of the person in the entry for the person in the register.
(4) For the purposes of subsection (2), notice is given by being sent by the recorded delivery service.
(1) Subsection (2) applies where under section 88(8) or 89(1) a local authority removes a person from the register maintained by it under section 82(1).
(2) As soon as practicable after the removal, the local authority shall give notice of the removal and the date of the removal to—
(a) the address of each house that, immediately before the removal, was entered in the person's entry in the register; and
(b) if the authority is aware of the name and address of a person who acts for the person whose name was removed from the register in relation to a lease or occupancy arrangement such as is mentioned in section 88(1)(b), that person.
(1) Subsection (2) applies where—
(a) under section 84(2)(b) a local authority refuses to enter a person in the register maintained by it under section 82(1); or
(b) under section 88(8) or 89(1) an authority removes a person from the register.
(2) The sheriff may, on the application of the person, make an order—
(a) requiring the authority to enter the person in the register; and
(b) specifying whether the entry shall be deemed to be made by virtue of subsection (3) or (4) of section 84.
(3) Where by virtue of subsection (2) a local authority enters a person in the register maintained by it under section 82(1), the entry shall be deemed to have been made under subsection (2)(a) of section 84 by virtue of the subsection specified in the order.
(4) An application such as is mentioned in subsection (2) shall be made by summary application.
(5) An appeal against the decision of a sheriff granting or refusing an application under subsection (2) shall be made to the sheriff principal and shall be made within the period of 21 days beginning with the day on which the decision appealed against was made.
(6) The decision of the sheriff principal on an appeal under this section shall be final.
Enforcement
(1)Where—
(a) a relevant person owns a house within the area of a local authority which is subject to—
(i) a lease; or
(ii) an occupancy arrangement,
by virtue of which an unconnected person may use the house as a dwelling; and
(b) the relevant person is not registered by that authority,
the relevant person shall be guilty of an offence.
(2) Where—
(a) a relevant person is not registered by a local authority; and
(b) in relation to a house that the relevant person owns in the area of the authority, the relevant person communicates with another person with a view to entering into a lease or an occupancy arrangement such as is mentioned in subsection (1)(a),
the relevant person shall be guilty of an offence.
(3) Where subsection (5) applies, nothing in subsection (1) makes it an offence for a relevant person to own a house which is subject to a lease or, as the case may be, occupancy arrangement such as is mentioned in subsection (1).
(4) Where subsection (5) applies, nothing in subsection (2) makes it an offence for a relevant person to communicate with another person with a view to entering into a lease or, as the case may be, occupancy arrangement such as is mentioned in subsection (2).
(5) This subsection applies where—
(a) the relevant person has made an application under section 83 to the local authority within whose area the house is situated; but
(b) the application has not been determined under section 84 by the authority.
(6) It shall be a defence for a person charged with an offence under subsection (1) or (2) to show that there was a reasonable excuse for acting in the way charged.
(7) A person guilty of an offence under subsection (1) or (2) shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(1) Where a local authority is satisfied that the conditions in subsection (2) are met in relation to a house within its area, the authority may serve a notice under this section on the persons mentioned in subsection (5).
(2) Those conditions are—
(a) that the owner of the house is a relevant person;
(b) that the house is subject to—
(i) a lease; or
(ii) an occupancy arrangement,
by virtue of which an unconnected person may use the house as a dwelling;
(c) that the relevant person is not registered by the local authority; and
(d) that, having regard to all the circumstances relating to the relevant person, it is appropriate for a notice to be served under this section.
(3) Where a notice is served under this section, during the relevant period—
(a) no rent shall be payable under any lease or occupancy arrangement in respect of the house to which the notice relates;
(b) no other consideration shall be payable or exigible under any such lease or occupancy arrangement.
(4) A notice served under this section shall specify—
(a) the name of the relevant person to whom it relates;
(b) the address of the house to which it relates;
(c) the effect of subsection (3); and
(d) the date on which it takes effect (which must not be earlier than the day after the day on which it is served).
(5) Those persons are—
(a) the relevant person;
(b) if the local authority is aware of the name and address of a person who has, by virtue of a lease or an occupancy arrangement such as is mentioned in subsection (2)(b), the use of the house to which the notice relates, that person; and
(c) if the local authority is aware of the name and address of a person who acts for the relevant person in relation to such a lease or an occupancy arrangement, that person.
(6) If—
(a) the local authority is unable to identify the relevant person, it may serve the notice under this section by publishing it in two or more newspapers (of which one shall, if practicable, be a local newspaper) circulating in the locality of the house to which the notice relates;
(b) the local authority is aware of the relevant person's identity but is unable to ascertain the relevant person's current address, it may serve the notice under this section by serving it on the landlord—
(i) at the house to which the notice relates; and
(ii) if it is aware of a previous address of the relevant person, at that address.
(7) The condition mentioned in subsection (2)(c) shall not be taken to be met where—
(a) the relevant person has made an application under section 83 to the local authority in whose area the house is situated; but
(b) the application has not been determined under section 84 by the authority.
(8) Except as provided in subsection (3), nothing in this Part affects the validity of any lease or occupancy arrangement under which an unconnected person has the use as a dwelling of a house during the relevant period.
(9) Where a local authority is aware of the name and address of a person mentioned in paragraph (b) or, as the case may be, (c) of subsection (5), failure to serve a notice on the person shall not affect the validity of the notice.
(10) In this section, "relevant period" means the period beginning with the date specified in the notice and ending with the earlier of—
(a) the revocation of the notice under section 95(2); or
(b) where the effect of the decision made on an appeal under section 97 is that rent or, as the case may be, other consideration is payable or exigible, that decision.
(1) Subsection (2) applies where a local authority serves a notice under section 94 in relation to a house.
(2) If (whether on the application of a person having an interest in the case or otherwise) the local authority which served the notice is satisfied that the conditions mentioned in section 94(2) are no longer met in relation to the house, the authority shall, with effect from such day as it may specify, revoke the notice.
(3) The revocation of a notice under subsection (2) shall not operate so as to make a person liable to pay any rent or other consideration in respect of the period during which the notice was in force.
(1) Subsection (2) applies where a local authority revokes a notice under section 95 in relation to a house.
(2) As soon as practicable after revoking the notice, the local authority shall give notice of the fact to—
(a )the relevant person;
(b) if the local authority is aware of the name and address of a person who has, by virtue of a lease or an occupancy arrangement such as is mentioned in section 94(2)(b), the use of the house to which the notice relates, that person; and
(c) if the local authority is aware of the name and address of a person who acts for the relevant person in relation to such a lease or an occupancy arrangement, that person.
(3) Where a local authority is aware of the name and address of a person mentioned in paragraph (b) or, as the case may be, (c) of subsection (2), failure to serve a notice on the person may not be founded on in any proceedings.
(1) A relevant person on whom a notice under section 94 is served may, before the expiry of the period of 21 days beginning with the date specified by virtue of subsection (4)(d) of that section in the notice, appeal to the sheriff against the decision of the local authority to serve the notice.
(2) Where, on the application of a person having an interest, a local authority makes a decision refusing to revoke a notice under section 95(2), the person may, before the expiry of the period of 21 days beginning with the day on which the decision is made, appeal to the sheriff against the decision.
(3) Subsection (4) applies where a person appeals against a decision such as is mentioned in subsection (1) or (2).
(4) The person shall (in addition to complying with any other requirements as to notification imposed by virtue of any enactment) give notice to the person who has the use as a dwelling of the house to which the notice relates (the "tenant") of such matters as may be prescribed by the Scottish Ministers by regulations.
(5) Regulations under subsection (4) may include provision for or in connection with—
(a)the form of the notice;
(b)the manner and timing of service of the notice.
(6) If a person fails to comply with subsection (4), the court hearing the appeal may not require the tenant to pay any sums that, but for the making of the order, would have been due by the tenant.
(7) The Scottish Ministers may by regulations make provision for or in connection with specifying other circumstances in which the sheriff principal shall not require a tenant to pay any sums that, but for the making of the order, would have been due by the tenant.
(8) Regulations under subsection (7) may in particular include provision—
(a)specifying procedures;
(b)imposing obligations on landlords.
Grants
(1) The Scottish Ministers may make a grant to a local authority in respect of costs incurred by the authority by virtue of this Part.
(2) The payment of a grant under subsection (1) may be made subject to such conditions (including conditions as to repayment) as the Scottish Ministers may determine.
Regulations
For the purposes of this Part, the Scottish Ministers may by regulations make provision requiring local authorities to provide advice and assistance of such description as may be specified in the regulations to persons of such description as may be so specified.
Amendment of Housing (Scotland) Act 1988
In subsection (6)(a) of section 18 of the Housing (Scotland) Act 1988 (c. 43) (orders for possession)—
(a) the word "or", where it thirdly occurs, shall be repealed; and
(b) after "10" there shall be inserted " , Ground 15".
Interpretation
(1) In this Part—
"house" means, subject to subsection (2), a building or part of a building occupied or intended to be occupied as a dwelling;
"landlord", in relation to an occupancy arrangement, means the person who under the arrangement permits another to occupy the building or, as the case may be, the part of the building;
"occupancy arrangement" means any arrangement under which a person having the lawful right to occupy a house permits another, by way of contract or otherwise, to occupy the house or, as the case may be, part of it; but does not include a lease;
"registered", in relation to a relevant person and a local authority, means entered by virtue of section 84(2)(a) in the register maintained by the authority under section 82(1); and cognate expressions shall be construed accordingly;
"relevant person" has the meaning given by section 83(8);
"unconnected person" has the meaning given by section 83(8); and
"use as a dwelling" shall be construed in accordance with section 83(6).
(2) If two or more dwellings within a building share the same toilet, washing or cooking facilities, then those dwellings shall be deemed to be a single house for the purposes of this Part.
(3) For the purposes of this Part, any reference to a person's being a member of another's family shall be construed in accordance with section 108(1) and (2) of the Housing (Scotland) Act 2001 (asp 10).
(4) For the purposes of this Part, a person engages in antisocial behaviour if the person—
(a) acts in a manner that causes or is likely to cause alarm, distress, nuisance or annoyance; or
(b) pursues a course of conduct that causes or is likely to cause alarm, distress, nuisance or annoyance,
to a person residing in, visiting or otherwise engaging in lawful activity at, or in the locality of, a house; and "antisocial behaviour" shall be construed accordingly.
[1] Northern Ireland Assembly Research and Library Service (2009) An Overview of Landlord and Tenancy Registration Schemes in the Private Rented Sector. archive.niassembly.gov.uk/researchandlibrary/2009/7709.pdf
[2] Northern Ireland Assembly Research and Library Service (2010) Mandatory Landlord Registration Schemes – A Further Examination of the Scottish Model. archive.niassembly.gov.uk/researchandlibrary/2010/1910.pdf
[3] Antisocial Behaviour etc. (Scotland) Act 2004. www.legislation.gov.uk/asp/2004/8/contents
[4] Scottish Executive (2005) Regulation of Private Landlords under the Antisocial Behaviour etc. (Scotland) Act 2004, p1. www.scotland.gov.uk/Publications/2005/07/08172434/24376
[5] Scottish Executive (2004) Guide to the Antisocial Behaviour etc. (Scotland) Act 2004. www.scotland.gov.uk/Publications/2004/10/20146/45685
[6] Antisocial Behaviour etc. (Scotland) Bill. Policy Memorandum, p21.
[7] SPICe (2004) Antisocial Behaviour etc. (Scotland) Bill. Stage 2 amendments – Registration of Private Landlords, pp.7-8. www.scottish.parliament.uk/business/research/briefings-04/sb04-44.pdf
[8] Ibid, pp.10.14.
[9] SPICe (2006) Private Landlord Registration, p.3. www.scottish.parliament.uk/business/research/briefings-06/SB06-39.pdf
[10] Scottish Government (2010) Registration of Private Landlords: Consultation on Amendment of Secondary Legislation under Antisocial Behaviour etc. (Scotland) Act 2004. www.scotland.gov.uk/Publications/2008/07/17092436/2
[11] Scottish Government (2009) General Guidance to Local Authorities to administer and manage the Private Landlord Registration Scheme. www.scotland.gov.uk/Publications/2009/10/08102524/0
[12] Scottish Executive (2004) Guide to the Antisocial Behaviour etc. (Scotland) Act 2004. www.scotland.gov.uk/Publications/2004/10/20146/45685
[13] Scottish Government (2010) Briefing for Local Government and communities Committee. 20 April 2010. Unpublished. As cited in SPICe (2010) Private Rented Housing (Scotland) Bill.
[14] Scottish Government (2009) Review of the Private Rented Sector: Volume 1: Key Findings and policy Implications, p64. www.scotland.gov.uk/Resource/Doc/264996/0079349.pdf
[15] Scottish Parliament Question S3W -33859, Mr John Lamont question to the Scottish Government.
[16] Scottish Government (2010) Registration of Private Landlords: Consultation on Amendment of Secondary Legislation under Antisocial Behaviour etc. (Scotland) Act 2004. www.scotland.gov.uk/Publications/2008/07/17092436/2
[17] Shelter (2009) Landlord Registration in Scotland – three years on. http://scotland.shelter.org.uk/__data/assets/pdf_file/0005/189734/Landlord_registration_3_years_on.pdf
[18] Arneil Johnston (2008) Good Practice Review of the Implementation of Landlord Registration. www.scotland.gov.uk/Publications/2008/07/17153219/2
[19] Policy Memorandum, Private Rented Housing (Scotland) Bill www.scottish.parliament.uk/s3/bills/54-prHousing/b54s3-introd-pm.pdf
[20] Private Rented Housing (Scotland) Bill - www.scottish.parliament.uk/s3/bills/54-prHousing/index.htm
[21] Private Rented Housing (Scotland) Bill – Explanatory Notes. www.scottish.parliament.uk/s3/bills/54-prHousing/b54s3-introd-en.pdf
[22] Information in this section taken from Private Rented Housing (Scotland) Bill Explanatory Notes and Policy Memorandum.
[23] The Repairing Standard applies to the vast majority of private tenancies in Scotland. It covers the standards expected in various aspects of the property including the structure and exterior, water, gas, electricity and heating supply, fixtures and fittings and fire safety.
[24] Private Rented Housing (Scotland) Bill. Policy Memorandum. www.scottish.parliament.uk/s3/54-prHousing/b54s3-introd-pm.pdf
[25] Rugg, J. & Rhodes, D. (2008) The Private Rented Sector: its contribution and potential. www.york.ac.uk/inst/chp/publications/PDF/prsreviewweb.pdf
[26] The Department of Communities and Local Government is responsible for setting Government policy on housing in England.
[27] Department of Communities and Local Government Press Release. 'Real Help for Tenants – Margaret Beckett'. 13 May 2009. www.communities.gov.uk/news/corporate/1230528
[28] Department for Communities and Local Government. 'Shapps promises 'no more red tape' for private landlords. 10 June 2010.
[29] Department of the Environment, Heritage and Local Government. 'Minister for Housing and Local Services announces plan to address Regulatory Non-Compliance by Landlords. 8 November 2010.
[30] Irish Independent. 'Unregistered landlords paid rent supplement: Department by-passes its own watchdog and subsidises rentals not on the books of the PRTB, 13 September 2009. www.independent.ie/national-news/unregistered-landlords-paid-rent-supplement-1885321.html
[31] Department of the Environment, Heritage and Local Government. 'Minister for Housing and Local Services announces plan to address Regulatory Non-Compliance by Landlords. 8 November 2010.
Paper 000/00 10 November 2010 NIAR 436-10
As part of its consideration of a potential inquiry into housing, the Committee considered the findings and recommendations of three key housing reviews, i.e.
Given the level of detailed and broad spectrum of issues contained within each of the reviews, and given that it is likely that the Committee will revisit a number of these issues in the future, the Clerk has requested that Research Services provide a reference tool for the Committee to enable it to compare and contrast (where possible) the main findings and recommendations.
16 August 2010
Background, Terms of Reference and Objectives 3
Northern Ireland's Future Housing Needs 4
Social Housing – Maintenance; Common Selection Scheme; and Tenant Empowerment 5
Social Housing Rent Levels 6
Regulation of the Private Rented Sector 6
Investment in the Private Rented Sector 8
Affordable Housing and Housing Opportunities 8
Housing Advice Services 10
Housing for Vulnerable and Minority Groups 11
Housing and Rural Communities 12
House Sales Scheme 13
Fuel Poverty, Energy Efficiency and Sustainable Homes 13
Empty Homes 14
Mixed Communities and Social Cohesion 15
Future Role of the Northern Ireland Housing Executive 16
Future Role of Housing Associations 18
Financial Challenges 19
Housing and Regeneration 20
Planning Process 21
Land Use 22
Developer Contributions 24
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
'Ford' Report (2007) (unpublished) |
| Report Title: 'Review into Affordable Housing' (April 2007) Background to the Report An Independent Affordability Review under the direction of Sir John Semple was announced by the then Minister with responsibility for Social Development, David Hanson, MP on 5 September 2006. The purpose of the review was primarily to identify obstacles to home ownership and other forms of affordable housing. Terms of Reference "To take account of the Shared Equity Taskforce's assessment of the benefits and risks for individual, the housing market, the mortgage market, and the wider economy enabling homeownership for this group through the use of shared equity produces and low cost home ownership schemes." ¦ To identify whether there are market or state failures in Northern Ireland holder back development by the private sector of shared equity products for low-income households, together with the options for reform if necessary. ¦ To consider opportunities for further private sector involvement in the delivery of social housing for rent and low cost home ownership schemes. | Report Title: 'Report of the Independent Commission on the Future of Housing in Northern Ireland' (May 2010) Background to the Report This Commission, chaired by Lord Best, was launched in April 2009. It was intended to be a participative process with its outcomes informed by contributions from across the housing sector, as well as social, civic and political life. The work of the Commission was facilitated by the Chartered Institute of Housing Northern Ireland. Objectives ¦ To assess the key challenges and opportunities associated with the delivery of housing in Northern Ireland. ¦ To provide a space for housing professionals to contribute their knowledge, skills and ideas to the Commission's outcomes. ¦ To publish a report containing specific recommendations on a strategy direction for housing and a road map for a way forward. | Report Title: 'Review of Funding Capacity, planning policy and delivery structures for social housing' (unpublished) Background to the Report The Department commissioned the Royal Bank of Canada in 2007 to undertake a review of issues relating to housing in Northern Ireland. (It is understood that Baroness Ford was Managing Director for Social Infrastructure and Development at Royal Bank of Canada at that time.) Terms of Reference ¦ Land: how to maximise the value of existing land holdings; how to create recyclable investment opportunities, and how to provide for future needs. ¦ Subsidy: Opportunities to reduce levels of grant to Housing Associations while maintaining output; contributions to and from the private rented sector; scope to use the Housing Executive's stock asset base as a lever for prudential/additional borrowing; ways to refinance existing Northern Ireland Housing Executive and Housing Association debt to generate lower financing costs; maximising the use of European funding; and maximising opportunities for private sector developers to plan, deliver and fund small, medium and large scale projects for housing and regeneration purposes. |
| ¦ To consider how existing assets can be harnessed to deliver social and affordable homes now and in the future. ¦ To take proper account of the regulatory regime and anticipate how any proposed reforms might impact. | Planning: Making best use of Article 40, including considering the potential for a Tariff approach on all new developments, ensuring that Planning Service take a holistic view of planning applications to maximise the opportunities for housing and regeneration; and reporting on the protocols currently being used in England for development and use of former MOD sites. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
| Regional Housing Need and Housing Growth Indicators That the figure set for regional housing need (208,000) in the Regional Development Strategy may be set too low (given the uncertainty of some factors such as migration). The Semple review welcomed a biennial review of the regional housing need figure. Sub-regional and district council housing growth indicators need to be augmented by local market information. DRD should expedite its consideration of policy necessary to guard against the possible under provision in area plans. | Regional Development Strategy Given the importance of housing to economic growth and stability, the Regional Development Strategy should position matters relating to housing as a central ingredient in the overall NI framework. Futu |
| Housing Targets Semple recommended that a target of 2,000 social housing completions per annum should be set. The report also states a preference to express targets in terms of housing completions rather than starts as it considered this a better indication of 'real progress'. | A Housing Strategy for NI That DSD publishes a Housing Strategy for NI, setting out long term policy goals for the housing system for the decade to 2020. The Housing Strategy would have as its priorities the attraction of sustainable levels of public and private investment; the stabilising of housing supply; the creation of a mixed housing economy; support for greater integration and social cohesion; with the appropriate organisations having effective structures to enable the strategy to take effect. The Housing Strategy should be prepared in consultation with key agencies, government department, business, housing providers across the tenures, professional bodies and voluntary and community sector agencies. Progress in delivery of the Housing Strategy should be reported to the NI Assembly on a regular basis. That in the immediate future, a permanent sub-committee of the DSD should be established to co-ordinate cross departmental action on housing outcomes. That the role of the NI Housing Council be recognised as the central point of reference for local councils in the creation of a Housing Strategy and its implementation. Housing Market Panel That a Housing Market Panel, made up of representatives from the private and public housing sectors, should be established to advise DSD on market trends across all sectors. This panel would undertake constant observations of the housing market, provide a robust supply of sub-regional market intelligence and help prevent future market volatility. |
Social Housing – Housing Maintenance; Common Selection Scheme; and Tenant Empowerment
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
'Ford' Report (2007) (unpublished) |
| VAT on Refurbishments The NIHE should make representations to the Chancellor of the Exchequer to reduce VAT levied on refurbishments to support sustainability. | Investment in NIHE Stock That the essential requirement for extra investment in the NIHE's housing stock should be achieved by a combination of modest rent increases and some re-profiling of annual repayments of historic debt. That the separate housing accounts the Commission are recommending for the separate NIHE landlord function should allow accumulation of surpluses/reserves with ongoing financial responsibility firmly in the hands of the NIHE board. Where rental income in the future is insufficient to cover the costs of ongoing improvements in existing stock, negotiations should take place with HM Treasury to reduce annual repayments of historic debt to more manageable levels. | NIHE Housing Stock Maintenance The report suggests that considerable savings in stock maintenance costs could be achieved. In order to establish the true level of saving a full stock condition survey would need to be carried out. An important issue the survey must address is whether there are particular types of unit that are reducing value across the portfolio. The report suggests that if there are, then these should be excluded from any security package offered to lenders and the debt available will increase.` |
| That a full financial appraisal be carried out to assess whether these measures will be sufficient, or whether for the longer term, transferring the stock outside of public ownership has to be explored. Social Housing and Employment Opportunities That investment in social housing could provide a specific opportunity to ensure more apprenticeships and the use of local labour is secured, for example, through building contracts or planning requirements. | ||
| Review of the Common Selection Scheme That the system of allocations in NI should be reviewed to consider ways in which the risk of polarisation can be reduced, to use the allocations scheme as a way to enable other policy goals, such as income, tenure and religious mix, without undermining fair access, equality of opportunity and a needs-based system. That the review should consider how to involve a wide range of providers including the private rented sector, co-operatives and mutuals, and more flexible tenure options so social housing can offer greater choice, address changing household circumstances and support housing aspirations. That consideration is given to managing demand and accessibility to the waiting list. Choice Based Letting Pilot That a Choice Based Lettings Scheme be piloted, aimed at giving people more active involvement in the decision regarding their housing. Tenant Empowerment That a Northern Ireland Tenant Involvement Framework should be published by DSD in consultation with tenants. It should set out a clear policy direction for tenant involvement and how landlords should delivery key objectives. The Framework should also include key steps taken by DSD to embed tenant involvement in the inspection process for housing associations. | ||
| The NIHE and NI Federation of Housing Associations should work jointly to develop a framework for residential involvement within housing associations. Housing providers should embed resident involvement in their business plans as a matter of course. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
| A Unified Rent Setting Structure There should be a long term objective of a unified rent setting structure for all social sector lets. A review of the points based system should be undertaken to produced a consistent and transparent methodology for determining rents and service charges for the social sector. | A Rent Authority for Northern Ireland That rent levels in social housing should be set by an independent body – a Rent Authority for Northern Ireland – perhaps as part of the role for the Rent Officer for Northern Ireland. Strategic Review of the Rent Regime That the Rent Authority undertake a strategic review of the rental regime, to agree the basis on which rent is determined and to set out publicly the determination process, prior to making decisions on rent levels. Rent Re-Investment That additional income from NIHE rental increases is reinvested into housing programmes, either to maintain or upgrade existing stock or for newbuild programmes. Rent Affordability That any increase in rents must take account of affordability for households. While increased income for housing through rental income is badly needed, this should not harm the most vulnerable households. Higher Social Rents That households registering on the waiting list for social housing may have some ability to pay higher than social rents. All housing options should be explored to best accommodate the needs of these households, including independent advice on the private rented sector and intermediate tenures. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
| Regulation of the Private Rented Sector If the private rented sector is to play a greater role in meeting housing need then the issue of security, control and quality must be adequately address. | Regulation of the Private Rented Sector That private landlords should be given the opportunity, on a voluntary basis, to apply directly to join the Ombudsman's scheme, as part of the objectives of the Private Rented Sector Strategy in order to enhance management standards. |
| Landlord Registration That there is a case for registration of all landlords by the new local authorities post-RPA. However, in the interim the NIHE should extend the registration for Houses in Multiple Occupation and develop a system for wider landlord registration. Registration should incorporate a mediation and arbitration service for landlords and tenants. | Landlord Registration That all private landlords should be listed by an appointed agency on a public register. This process should present no barriers to entry, be 'light-touch', and have nominal cost implications for private landlords. This will in turn assist the collection of much needed market intelligence on the rental sector and pave the way for future licensing measures as required. That registered (listed) landlords who are convicted of specific offences or offend persistently on other grounds, risk sanctions based on a pre-set tariff. If they are struck off the register, there should be a requirement that their property be managed only by an approved management agent. Lettings and Management Agents That all letting and management agents should be strongly encouraged to join a recognised professional body and thereby to accept the obligations of adhering to a Code of Practice. |
| Rent Deposit Scheme A rent deposit scheme should be considered to assist those on low incomes who are seeking homes in the private rented sector. | Tenancy Deposit Scheme That a mandatory tenancy deposit protection scheme is established as in England, Wales and Scotland (for properties with rentals up to £100,000 pa) to protect all tenancy deposits, with an in-built resolution service to mediate in case of disputes. |
| Private Tenancies Order DSD and district councils should ensure that all landlords comply with the Private Tenancies (NI) Order 2006. | Fitness Standards That the current fitness standard should be replaced by a new Housing, Health and Safety Rating system which is comparable to that for England and Wales in order to improve the health, safety and well-being of tenants in the private rented sector. Local councils should ensure resources are available for enforcement of standards. |
| Policy Development More resources should be made available to facilitate policy development with respect to the private rented sector. | Training for Landlords That training programmes for private landlords and managing agents should be developed in partnership with professional bodies and trade associations in the sector, to increase access to information and enhance professional development. |
| Extended Notice To Quit Longer leases and extended notices to quit should become the norm in the private rented sector in Northern Ireland. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
| Enhancing Access to the Private Rented Sector A Voluntary Rental Support scheme should be introduced in NI to assist landlords and potential social tenants. Such a scheme could involved the NIHE negotiating an "availability" contract with the landlords under which the NIHE would guarantee a monthly electronic payment to the landlord for the period of the contract. In return the NIHE would have exclusive nominating rights to the property. Rent levels would reflected local market rents and landlords/properties would be expected to meet certain standards. | Enhancing Access to the Private Rented Sector That support should be made available to assist lower income households to access the private rented sector as an alternative to social housing. Rent deposit/guarantee schemes should be developed to overcome barriers to entering the sector such and such support should be accompanied by advice and provision of tenancy support for vulnerable households. Attracting Institutional Investors That special effort should be made to attract institutional investors into the residential sector in NI. NIHE should play a more deliberate role as enabler and catalyst, forging partnerships for new developments that incorporate investment from major institutions like pension funds (perhaps along the Real Estate Investment Trusts Model). |
| Leasing from Private Sector Landlords That social housing providers should explore opportunities for leasing arrangements with private sector landlords on a wide-scale alongside the potential for Local Lettings and Accreditation schemes to help lower income households into the sector and provide them with a greater level of security of tenure. Retro-Fitting Properties That Government develops incentives for owner-occupiers and landlords who wish to retro-fit their properties. It could development an NI-wide 'energy saving programme' which could include encouragement for financial institutions to develop financial products for retro-fit that attach loan repayments to the property rather than the owner, and spread payments to coincide with savings in energy bills. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
'Ford' Report (2007) (unpublished) |
| Future Role of the NI Co-Ownership Housing Association Northern Ireland Co-ownership Housing Association should improve its marketing of the scheme. The association should also act in a more entrepreneurial manner and consider expanding its business (e.g. using reserves to purchase land, develop affordable housing schemes, equity release schemes, mortgage rescue plans). Northern Ireland Co-ownership Housing Association should play a critical role in supporting private sector developers in providing intermediate housing through developer contributions. | Future Role of the NI Co-Ownership Housing Association The Co-ownership Scheme should be continued in its current form, but the Co-ownership Housing Association should be the partner/agent for some of the housing associations moving into mixed/income tenure development. It should provide the funding and administration for shared owners to occupy homes of the developer housing association. NI Co-ownership Housing Association could perform the same partner/agent role for private developers. Co-ownership Housing Association should be harnessed to run a pilot project to enable a model of flexible tenure that allows for 'downward staircasing'. Leasing from Private Sector Landlords That social housing providers should explore opportunities for leasing arrangements with private sector landlords on a wide-scale alongside the potential for Local Lettings and Accreditation schemes to help lower income households into the sector and provide them with a greater level of security of tenure. Mortgage Rescue That a Housing Strategy for NI should include an explicit policy position on mortgage rescue schemes and use of flexible tenure to help shape the housing market in the longer term. | Future of Co-ownership Housing The Ford Review examined the work of Northern Ireland Co-ownership Housing Association and regarded it as "a very effective organisation that has made a big impact on shared ownership". The report suggested that it had the capacity to borrow up to £50m to invest in new shared ownership homes. At time of the completion of the report, it was believed that this could yield up to 1,000 additional homes, based upon Co-ownership Housing contributing 50% of the cost of a £100,000 home. |
| Living Over the Shops NIHE should ensure 'energetic implementation' of the Living Over the Shops initiative. Titanic Quarter In the Titanic Quarter Development, Government should set a target of 20% affordable housing, a significant element of which should be social housing. Social Mobility Schemes There should be more proactive marketing of social mobility schemes including incentives and support for people who wish to downsize their properties. DSD should report on NIHE and Housing Association performance in this area. |
| Commission on the Future of Housing (2010) |
| Advice on Homelessness and Affordability That housing advice should continue to offer support to households who are threatened with, or who experience homelessness and to people who cannot afford to purchase outright. In the short-term limited resources should continue to be made available and directed at those most in need, particularly those individuals and households that live in neighbourhood renewal/deprived areas. Access to Advice That access to housing advice should continue to be enhanced particular through web-based advice and for hard to reach groups (e.g. young people, older people, disabled households). Personal Housing Plans That there should be a commitment to the establishment of Personal Housing Plans. Partnership agreements between all relevant agencies should define the roles for each partner in the project. Advice on Sustainable Housing Options That a more sophisticated approach to housing advice should be adopted to assist households in planning for suitable and sustainable housing options. Advice should be extended to cover lettings, prospects for training and employment etc alongside housing advice. Energy Advice That government funded advice providers should operate collectively to eradicate duplication of energy and resources, improve levels of co-operation and sharing of good practice, explore efficiency savings to be made through procurement and rationalisation. |
| Commission on the Future of Housing (2010) |
| TRAVELLERS Traveller Accommodation That the development of a decent supply of culturally sensitive accommodation for Travellers should be completed as a matter of urgency. That legislation akin to that for England and Wales should be considered to require Councils to make land available for the provision of accommodation for Travellers. That legislation is introduced to provide comparable support and security for Travellers as for tenants entitled to social housing, for example, through adequate facilities on sites, and accommodation in caravans, as well as a level of security of tenure on a similar basis to that of secure tenants in bricks and mortar housing. That in respect of the inspection and regulation of the condition of sites, the relevant council should proactively review and implement a strategy for ensuring the relevant fitness for habitation of all sites. That where a Traveller applicant is homeless and qualifies for housing, the NI Executive should seek to allocate accommodation on a site, where this is requested. Co-ownership Opportunities for People with Disabilities |
| PEOPLE WITH DISABILITIES Co-ownership Housing for People with Disabilities That the Co-ownership Housing Association pays particular regard to the value of the shared ownership or equity ownership) opportunities for people with disabilities. OLDER PEOPLE Housing Targets That NI's Housing Strategy should include measures for the development and delivery of a range of housing options for older people. This should set out targets for the next 10 years to create an adequate supply of housing for older people that meets their needs and aspirations. Equity Release That government should explore the way to support older home owners to release equity in their homes in order to pay for home improvements (and sometimes for related social care). Housing Options That options for the future should include more mixed tenure developments by both the private sector and the housing associations, retirement Co-housing schemes, Extra Care developments; adoption of the Retiirement Village Model, and specialist housing integrated within developments for younger households. |
| Co-ordinating Budgets and Resources That housing, health and social care providers should work together to pool budgets and resources in order to develop co-ordinated approaches to providing flexible care and support for older people including emergency call systems ('Telecare'). HOMELESSNESS Homeless 16 and 17 year olds That the legislative protection for 16 and 17 year olds is strengthened to give this group adequate protection. Re-possessions That a codified, bespoke procedure should be introduced for all residential possession proceedings. That a programme of education for lawyers and judges dealing with housing cases should be explored. Legal Aid and Eviction That Government should rectify the absence of legal aid for those facing eviction from their home. Protocol for Rent Repossessions An acknowledgment of the recent introduction of a pre-action protocol for all mortgage repossessions. However, there is no such protocol for rent repossessions. It is recommended that a pre-action protocol should be introduced for all possession actions. |
| Commission on the Future of Housing (2010) |
| Rural Land Use Strategy That housing, land use planning, transport and environmental policy are better aligned in a Rural Land Use Strategy to meet the particular housing needs in rural NI. Rural Housing Enablers That a programme of Rural Housing Enablers, who bring together land owners, local communities, planners and social housing providers, be established to achieve more social/affordable housing in small schemes in rural areas. Housing Needs of Young People in Rural Areas That new rural housing includes accommodation not exclusively for social renting but also to meet the needs of young people with some aspirations towards affordable home ownership, thus retaining these households within the villages of NI. Co-ownership Housing That the Co-ownership Housing Association pays particular regard to the value of the shared ownership or equity ownership) opportunities for households in rural areas. |
| Semple Report (2007) | Commission on the Future of Housing (2010) |
| A Review of the House Sales Scheme There should be an immediate and comprehensive review of the House Sales Scheme looking at the level and form of discounts (e.g. the use of equity shares in lieu of discounts), exemptions for property types or exemptions for certain geographic areas. | Changes to the House Sales Scheme That as part of a wider policy on flexible tenure, DSD further reduces the level of discount available to purchasers, introduces a buy back scheme which would allow the social landlord first refusal should the purchaser wish to sell and/or excludes from the House Sales Scheme homes and areas of high demand and housing pressure. An Equality Impact Assessment should be undertaken as part of any decision to place exclusions on the policy. |
| Semple Report (2007) | Commission on the Future of Housing (2010) |
| Modern Methods of Construction The use of modern methods of construction in the development of affordable houses should be expanded, the technology and the 'know how' exists but Government needs to provide the appropriate framework. | Tackling Climate Change as a Priority That the Northern Ireland Executive gives enhanced priority to tackling climate change and that measures be take through DSD, as with the Interdepartmental Group on Fuel Poverty, to co-ordinate action across Government departments. National Home Insulation Programme That a National Home Insulation Programme is undertaken to retro-fit existing homes, and a major programme of research and development into the potential contribution of sustainable construction technologies in NI should be established. Supporting Green Industries That fledgling green industries be supported as a dynamic new sector in NI's economy, with appropriate government investment in research and development. |
| Retro-Fitting Properties That Government develops incentives for owner-occupiers and landlords who wish to retro-fit their properties. It could development an NI-wide 'energy saving programme' which could include encouragement for financial institutions to develop financial products for retro-fit that attach loan repayments to the property rather than the owner, and spread payments to coincide with savings in energy bills. Code for Sustainable Homes That requirements on house builders as well as social housing providers to meet higher standards for new building (equivalent to reaching levels 5 and 6 of the Code for Sustainable Homes) be maintained but timescales be set that reflect current cost pressures. Energy Advice That government funded advice providers should operate collectively to eradicate duplication of energy and resources, improve levels of co-operation and sharing of good practice, explore efficiency savings to be made through procurement and rationalisation. |
| Semple Report (2007) | Commission on the Future of Housing (2010) |
| Empty Homes Potential There is significant opportunity to increase supply by bringing empty homes back into the housing stock and that a proportion of these should be used for social housing. Mechanisms should be introduced by the NIHE and Planning Service to encourage the conversion of existing empty buildings for house use (e.g. obsolete offices and commercial premises). | Preventing Further Increases That a programme of work is undertaken to prevent further increases in the number of homes lying vacant in the private rented sector. This should include the provision of advice for home owners wishing to rent their properties. |
| New Rating System A new rating system should be introduced to provide 100% liability on properties vacant for six months or more, rising to 200% liability if vacant for a year or more. Empty Homes Agency for Northern Ireland The NIHE should act as the Empty Homes Agency for NI and should produce a strategy for tackling the high levels of empty homes in NI. A target of bringing 9,500 empty homes back into stock within the next five years should be set. | Rating of Empty Homes That there is no further postponement of the rating of empty properties beyond 2011. |
| Empty Homes Management Legislation DSD should introduce legislation similar to the English Empty Homes Management Order1 to allow the NIHE to occupy homes empty for longer than 6 months and installing tenants from the social housing waiting list. | NIHE and Vesting Powers That the NIHE proactively uses its powers to vest and occupy empty properties, and there should be consideration of giving NIHE additional powers such as Empty Dwelling Management Orders (currently in place in England and Wales). |
| Commission on the Future of Housing (2010) |
| Community Integration That policy makers ensure that an opportunity is not missed to meet the housing aspirations of the population and support meaningful integration across religion, income and tenure. That integration much inform the Housing Strategy for Northern Ireland with clear targets and timescales for helping to achieve greater cohesion between people of different religious beliefs and different incomes. An Annual Statement of Progress That Government should publish an annual statement of progress on integration across a range of indicators which include religious mix, tenure/income mix. Organisations from across the public, private and voluntary sectors should be invited to submit data and information to inform the statement. Shared Services Housing providers should work towards the provision of services and facilities that encourage integration between communities. That the NIHE and Housing Associations continue to undertake shared housing projects when development opportunities arise, not least on 'neutral sites', and those vacated by publish bodies, including the Ministry of Defence, and the PSNI. |
| European Funding That housing associations in their contribution to regeneration, working with local communities, should make concerted efforts to secure funding from the EU's Peace III, INTERREG and other sources of funding to promote greater community integration and shared living. Community Land Trusts That the formation of Community Land Trusts and opportunities for mutual and co-operative housing should be considered for shared housing projects that cross the sectarian divide. Common Selection Scheme That the Common Selection Scheme for allocating social housing should be reviewed to take into account its potential to encourage, rather than, inhibit, greater social cohesion |
| Commission on the Future of Housing (2010) | 'Ford' Report (2007) (unpublished) |
| VISION FOR THE NIHE'S FUTURE Housing Strategy An ongoing, central role in supporting DSD's creation of a Housing Strategy for NI. NIHE's Strategic Housing Role A separation of the strategic enabling role of the NIHE, from its social landlord role, within a single organisation, with one overarching Board and Chief Executive. The NIHE's strategic housing role could be further developed with an enhancement of the NIHE's partnerships with each of the 11 district councils following RPA. The NIHE should take forward its central strategic enabling role through a range of partnerships, joint ventures, special purpose vehicles, as well as direct support for housing associations, and assistance for local councils to secure affordable homes through planning obligations. | |
| Rent Increases and Debt Level The essential requirement for extra investment in the NIHE's housing stock should be achieved by a combination of modest rent increases and some re-profiling of annual repayments of historic debt. | Review of NIHE Debt: Three Options In reviewing the debt structure of the NIHE, the report objective was to see if there was a means of accessing additional investment for new build without compromising the housing stock. Option 1: The first option was to reschedule the debt profile over a 40 year period. It was believed that this would release up to £100m each year for other purposes (if the current level of maintenance and expenditure was brought closer to the UK average). This would rely on facilitation from DFP regarding how to negotiate the change within the rules of Treasury accounting. It would also rely upon reclassifying the saving as capital rather than programme expenditure. Option 2: To reschedule the debt and use the head room provided to raise additional public borrowing of £1.5bn. DSD, in this scenario, would need to continue to provide grant aid to service the debt at current rates, for another 40 years. This would require both political prioritisation and HM Treasury Approval. Option 3: To undertake a restructuring of the debt by way of a stock transfer. The report suggests that this could release £714m of new investment, after a debt raising exercise of £2 billion and repayment of existing NIHE debt at a cost of £1.23 billion. DFP was reported as confirming that the surplus of £714 million could be used by DSD as grant. |
| The Landlord Function The NIHE's landlord role should become an integral but distinct business enterprise, with a greater role for residents in its governance. The landlord body, with its own board within the NIHE, would be The Northern Ireland Housing Management Organisation (NIHMO) with its own set of accounts. One third of its board members should be drawn from the NIHE population of residents. Stock Transfer? The Commission do not see the necessity for stock to be transferred outside of public ownership, but would not close the door on this option if more detailed financial assessment indicated that this was the most prudent way forward. | The Landlord Function This third option would involve the creation of a 'stand-alone' landlord, the 'new NIHE', reconstituted as a Registered Social Landlord, and regulated to ensure it meets the Executive's objectives. At the point of transfer, the 'new NIHE' would acquire the housing stock once it had borrowed against its true value. It is assumed that £2bn of debt could be raised at the point of transfer. After paying the debt owned, and assuming revised maintenance costs were applied, there would be a net surplus of £714 million which could be used for investment in new stock. A ballot of tenants would need careful consideration along with political will (to consent to the stock transfer). The report identified that the main concerns of tenants in any stock transfer would be whether rent levels would change and whether the stock would continue to be well managed and maintained. The report noted that the residual functions of NIHE would also need to be accommodated elsewhere and separately funded. However, there was no opportunity to analyse the scope of these functions in the review. |
| A Rent Authority for NI NIHE rents should be set by a Rent Authority for NI which would be independent of direct government control. Partnership Working That DSD ensures that the NIHE has the necessary powers to work with local councils in creating the partnerships – not just with housing associations but with private developers and financial institutions, that are needed to undertake major new housing projects and regeneration schemes. Attracting Institutional Investors That special effort should be made to attract institutional investors into the residential sector in NI. NIHE should play a more deliberate role as enabler and catalyst, forging partnerships for new developments that incorporate investment from major institutions like pension funds (perhaps along the Real Estate Investment Trusts Model). Additional Funding Sources That NIHE takes the lead in exploring additional funding sources such as Tax Increment Financing, and partnerships with institutional investors interested in long-term involvement in rented housing. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
'Ford' Report (2007) (unpublished) |
| Expanding the Role of Housing Associations That the next Housing Bill facilitates an expanded role for NI's Housing Associations and empowers to NIHE, as the strategic housing authority, to play a stronger role in promoting housing associations. Building Homes for Outright Sale Housing associations should have the legal power to build for shared ownership/low cost home ownership/outright sale and to use the proceeds from this to cross-subsidise new development. |
Building Homes for Outright Sale The report suggests that housing associations should be required to contribute some of the private sale profit (of newbuild homes) to the social rented units, thus reducing the amount of Housing Association Grant required. |
|
| Grants to Bodies other than Housing Associations Legislation should be advanced to enable payment of grant to bodies other than housing associations. For example, the payment of grant to builders to optimise the contribution that developer contributions could make to the deliver of more affordable homes | Competitive Bidding for Grant That consideration be given to housing associations bidding for grant competitively, not only with each other but with private sector developers. While this may succeed in driving down costs, care must be taken not to undermine the role of associations in taking on broader functions as place-makers, and playing a greater role in regeneration, community cohesion, financial inclusion and more. | Competitive Bidding for Grant In reviewing the performance of Housing Associations in Northern Ireland, the report concluded that there was an immediate case for moving to lower levels of grant. It was believed that a reduction of up to 10% should have no negative impact on output. The review also suggested that more competitive rates could be driven if the programme was opened up to private developers and UK Registered Social Landlords but the report was conscious that this would require legislation. Report suggest: ¦ The invitation of bids for more schemed that available grant allows and then assessing the winning bids on a value for money basis; and ¦ Inviting UK Registered Social Landlords and private developers to bid for Grant, or allowing partnering approaches with UK social landlords. |
| Securing Better Procurement Deals That housing assocations in NI, which operate on a smaller scale than comparable social housing providers in GB, work with the NI Federation of Housing Associations to find new ways of working together to share services and secure better procurement deals. | Gearing and NI Housing Associations The report found that (using 2007 figures) long term debt per unit implied that there was further room for gearing among Northern Ireland Housing Associations. The report noted that it could be argued that, while housing association balance sheets show that gearing could be increased, debt service capacity would not allow this. The report agreed that debt service capacity is the relevant indicator of spare capacity but stated that Northern Ireland housing associations had significant spare debt service capacity compared with English social landlords. Northern Ireland housing associations may also argue that their excess interest cover is credited to reserves which are then reinvested into their social rented stock. However, the report suggests, that whilst this may be true, they could instead use excess cover to service debt as this would result in a significantly higher number of new properties being developed. |
| Commission on the Future of Housing (2010) |
| Importance of Housing to the NI Economy That the Department of Finance and Personnel recognises the significance to the NI economy of a strong construction sector and takes temporary measures to counter-balance the housing market failures by extra investment in private and social housing. That an economic strategy for NI should include action to: ¦ Better understand how investment in housing and communities affects economic outcomes. ¦ Co-ordinates action at a regional and sub-regional level to make explicit the positive linkages between housing and economic development, in particular between housing supply and the labour market. ¦ Link housing supply targets with broader economic priorities. Comprehensive Review of Investment That a comprehensive review of investment opportunities by DSD and DFP should explore all available avenues, including support from the European Investment Bank. European Funding That housing associations in their contribution to regeneration, working with local communities, should make concerted efforts to secure funding from the EU's Peace III, INTERREG and other sources of funding to promote greater community integration and shared living. Partnership Working That the concept of partnerships between the different sectors should now be taken to a new level. This should include input and oversight from the NIHE. Joint ventures/special purpose vehicles/Local Housing Companies may create the frameworks for action that combine the resources and skills of the private and social housing sectors. Housing and Employment Opportunities That investment in social housing could provide a specific opportunity to ensure more apprenticeships and the use of local labour is secured, for example, through building contracts or planning requirements. |
| Semple Report (2007) | Commission on the Future of Housing (2010) |
'Ford' Report (2007) (unpublished) |
| A Framework for Regeneration There is a need for an overarching framework for regeneration activities in Northern Ireland that will allow key public sector organisations ensure that their strategic and corporate policies take account of the wider regeneration agenda. Longer Cycle for Capital and Revenue Programmes Capital and revenue programmes should be aligned over longer periods of time to allow continuity and consistency in programme management. | Use of Regeneration Assets The report examined, although not in detail, whether other regeneration assets could contribute more affordable housing. The report noted that the current approach involved masterplanning to provide mixed income communities and ought to yield as high a proportion of affordable homes as possible, commensurate with wider regeneration objectives. The report suggested that a delivery timescale against development of these assets should be developed. It also noted that DSD was hampered in its ability to stretch public subsidy and to attract private and institutional investment into complex regeneration projects. The report suggested that permitting DSD to enter into corporate joint ventures would enable significant new investment into these projects. | |
| Piloting for Co-Ownership Housing On sites where masterplanning is taking place, DSD should, where appropriate, bring forward pilot schemes for affordable housing through co-ownership, at an early stage. | Mixed Tenure Developments Planning powers should be used to secure social/affordable housing on most developments by private house builders, usually through partnership with a housing association and that mixed tenure developments should become the norm by 2015. That where housing associations are taking the lead, the estates they build should also contain a tenure/income mix, with low cost home-ownership – through shared ownership or 'Home Buy' equity-loan models, alongside social rented homes. | |
| Mixed Tenure Developments Regeneration works best where there are mixed tenure, mixed income communities. DSD, the Planning Service and other public bodies should approach regeneration on these terms. |
| Semple Report (2007) | Commission on the Future of Housing (2010) |
| Local Housing Strategies The Northern Ireland Housing Executive, in partnership with district councils and divisional Planning Offices should initiate a programme to prepare Local Housing Strategies for each district council area. These should cascade from the regional spatial and transport strategies and should be consistent with the Sustainable Development Strategy. Area Planning Process That the Area Planning process in Northern Ireland was 'slow' and making amendments to areas plans to cope with changes was 'cumbersome and slow'. Semple recommended that Northern Ireland adopt a system similar to the English Local Development Plan.2 That the Department of the Environment should consider adopting aspects of the English Planning Policy Statement 3 in relation to having a continuous five year supply of deliverable sites for housing. Planning Permission Planning permissions should be granted on a three-year basis, should no longer be automatically renewed and fresh applications should be required once they expire. Fast-tracking for Significant Housing Developments Applications for significant housing developments should be fast-tracked. A multi-skilled unit might be set up within the Planning Service to deal with significant housing applications and to negotiate developer contributions with developers. | Local and Regional Priorities That a new planning policy statement be prepared which brings together the regional and local priorities for delivering NI's Housing Strategy. That the newly-formed councils create local strategic forums of landowners, developers, builders and local representatives to inform the local planning frameworks for housing within a community plan. Building Capacity within Local Councils That to fulfil the new requirements for planning, local councils will need to invest in people with skills to negotiate the best arrangements for all parties, perhaps sharing expert officers across local authority boundaries and drawing on expertise for the Department of the Environment, as well as in equipping elected members to play their part in planning decisions. An Emphasis on Good Design That planners use their extensive powers to help secure good quality housing with high standards of design and accessibility. |
| An Emphasis on Good Design Increased densities and mixed tenure housing schemes should be supported with an emphasis on good design. Brownfield Sites A Remediation Grant should be introduced to support brownfield development. These grants are available in other jurisdictions to help cover the costs of de-contaminating previously developed land. Greenfield Sites If sufficient land for building cannot be found within urban areas, planners should zone more Greenfield land around the urban fringe. Apartment Blocks Further consideration should be given in respect to the long term management and maintenance of apartment blocks and a review of car parking requirements in high density developments (e.g. parking permits). Spatial Density Explicit guidance is required to reduce inappropriate 'garden grabbing', 'town cramming' and the 'greying of towns'. Permitted Development The scope for permitted development should be enlarged. | Shared Housing Schemes and the Use of Brownfield Sites That planners should positively encourage private developers and housing associations to bring forward proposals for the productive use of brownfield sites and "buffer zones" for the purpose of providing shared housing schemes. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) |
'Ford' Report (2007) (unpublished) |
| Land Assembly Agency DSD and DFP should establish a Land Assembly Agency. Page 25 of the Semple Report sets out in detail as to how this should operate in practice. The remit of the Agency would be to take over the register of surplus land and to advise Departments and other public bodies how best to manage and dispose of their surplus land assets. | Land Trading The report noted that land disposal was one of the most valuable and quickest ways in which Ministers could influence the amount of affordable housing. The report suggests that it is more efficient to dispose of land with a development brief and planning consent in place. Using the underlying land value to subsidise social housing appears to be better value for money, and will also speed up delivery and provide certainty over delivery of affordable housing units. | |
| Land Availability Report In his interim report, Sir John Semple, reflected on the extent of land banking and speculation and referred to the Housing Land Availability Annual Report published by the Planning Service. The Semple Report recommended that the Planning Service produce a report that relates to site that are genuinely deliverable (i.e. not subject to land banking, withheld or speculative gain, or for other justified reasons). 'De-zoning' and 'Re-zoning' Land The Planning Service should take advantage of any opportunities that arise to 'de-zone' housing land which is being withheld for speculative reasons. It should also examine the possibility of 're-zoning', for housing use, land which has previously be zoned for industry but is lying unused for a lengthy period. | Central Register of Public Assets Report notes that the English experience shows that a central register of surplus public sector assets (and a culture of making the best commercial use of those assets) would help to deliver Government-wide objectives, such as more and better quality affordable housing. It would also allow parcels of land to be assembled to increase critical mass, and consequently, value. | |
| Brownfield Sites A Remediation Grant should be introduced to support brownfield development. These grants are available in other jurisdictions to help cover the costs of de-contaminating previously developed land. Greenfield Sites If sufficient land for building cannot be found within urban areas, planners should zone more Greenfield land around the urban fringe. Vesting Powers The Department for Social Development (DSD) should monitor the effectiveness of the Northern Ireland Housing Executive's existing vesting powers and considering strengthening them if necessary. NIHE should be more proactive in the vesting of land for social and intermediate housing. | Shared Housing Schemes and the Use of Brownfield Sites That planners should positively encourage private developers and housing associations to bring forward proposals for the productive use of brownfield sites and "buffer zones" for the purpose of providing shared housing schemes. |
| Semple Report (2007) |
Commission on the Future of Housing (2010) | 'Ford' Report (2007) (unpublished) |
| Potential of Developer Contributions Developer contributions are of crucial importance to the provision of affordable housing in the future. These should be managed by the Planning Service, working in co-operation with the Northern Ireland Housing Executive and Housing Associations including the NI-Co-ownership Housing Association. Developer contributions should be introduced urgently to support the achievement of the social housing target. Developer Contribution Principles 20% of the houses provided in any housing development granted planning permission should be affordable homes (social and intermediate). The contribution by the developer should normally be set at the value of the land on which the affordable homes are located. Developers should normally be required to deliver 10% social and 10% intermediate but where there are specific site constraints or issues relating to the economics of the development or the relative need for different types of tenure, the tenure split could be adjusted. | Potential of Developer Contributions That as market conditions improve, NI's form of 'developer contribution' be used to require housing builders to ensure that social/affordable housing is provided usually through housing associations, as a matter of course in most developments. | Potential of Developer Contributions The report stated that there was significant scope for developer contributions to create affordable and/or social housing and that there was strong consensus in the policy and planning community to do this. The report's analysis showed that if the English experience had been applied in Northern Ireland over the past ten years, additional land to accommodate social housing could have been created. Between 2,160 and 3,600 units could have been brought forward in each year. The report suggests that applying the English experience, DSD would then have had to find Housing Association Grant (HAG) to complete the construction of the homes. Based on the Housing Corporation's average figures, DSD would have needed to have invested between £88.5m and £147.6m in additional HAG each year. |
| Where it is not possible to provide affordable houses on site, a commuted fee should be payable. This would relate to 20% of the value of the land on which the development is located. This fee should be paid into a ring fenced Affordable Housing Fund. In circumstances where Housing Association Grant is payable, the developer would need to work at an early stage with housing associations as to who would take over the management of the social homes. Affordable Housing Developer Control policy HS2 in PPS12 should be amended to include other forms of affordable housing as well as social housing. Forum A forum should be convened on planning obligations as they relate to assist the process of agreeing a revised PPS12 dealing with developer contributions. |
Ms Claire O'Neill - Belfast City Council
Mr Michael Sands - Department for Social Development
Mr Stephen Baird - Department for Social Development
Mr Alastair Campbell - Department for Social Development
Ms Angela Clarke - Department for Social Development
Ms Monica Wilson - Disability Action
Ms Nicola McCrudden - Housing Rights Services
Ms Fiona Douglas - Housing Rights Service
Ms Marnette Lyons - Landlord's Association of Northern Ireland
Mr Joe Nugent - Landlord's Association of Northern Ireland
Mr Declan Boyle - Landlord's Association of Northern Ireland
Mr Dairmid Laird - Landlord's Association of Northern Ireland
Mr Donal McLaughlin - Lisburn City Council
Ms Karen Smyth - NILGA
Mr Gerry Flynn - Northern Ireland Housing Executive
