Where a local authority is satisfied that the relevant person is no longer a fit and proper person, that person must be removed from the register.
The majority of landlords and agents who comply with their legal duties and apply to be registered should complete the registration process with little difficulty. However, registration also aims to challenge and deal with the failings of landlords and agents in the private sector who do not comply with registration requirements. Provision of advice and support to those landlords who are simply unaware or are unclear about their legal obligations may be all that is needed to help improve landlord practice; tougher enforcement should be targeted at those who deliberately seek to avoid registration or who otherwise operate outside the law.
When a landlord fails to meet the requirements of the 2004 Act, local authorities should consider what sanctions are appropriate. Measures taken may result in refused or revoked registrations, cessation of rent liability for tenants, criminal prosecution and disqualification from operating as a landlord for a period of up to 5 years. A mandatory additional fee applies where an application is made after two separate requests for registration have been made.
Local authorities should consider the principles of the Scottish Regulator's Code of Practice (see Section 2 of the guidance) and adopt a proportionate and targeted approach to the use of enforcement powers. Local authorities should develop a monitoring, compliance and enforcement policy to support effective administration of landlord registration and use of discretionary powers, ensuring that action is targeted where most needed. This would also cover the decision making process and options for escalation in the event of non-compliance. The policy should be transparent and the possible consequences of non-compliance should be made clear to the relevant person in all correspondence. The choice of enforcement options should be an active one based on the specifics of each case. Not every option will be appropriate for all circumstances.
Enforcement decisions should be taken at an appropriate level of seniority depending on the significance of the action involved. Clear communication with both the landlord (and their agent, if they have one) is important at every stage of the process and should include details of:
- the issue, practice or failure on the part of the landlord that is giving rise to the potential for enforcement action;
- the actions required and the timescale for compliance if enforcement is to be avoided;
- the impact on the tenant(s) of not taking enforcement action;
- the likely escalation and consequences in the event of non-compliance; and
- details of appeals options where they exist.
A universal principle is that the 'fit and proper' person status afforded at registration remains a standard that all private landlords should be upheld throughout their three year registration period. Registration can and should be reviewed at any time that material under section 85 of the 2004 Act casts doubt on a person's fit and proper status.
Where a person has been assessed as no longer being fit and proper, the outcome should be a decision to revoke the registration. The local authority must send the person notice in writing of the fact and date of removal. The person has the same right of right of appeal against revocation as for refusal of registration. The register must be noted for a period of 12 months when an authority revokes registration.
Where a local authority decides to refuse or revoke a registration or serve a Rent Penalty Notice, advice relating to the decision taken should be given to the occupants of the house concerned. This should include advice on the rights of tenants where a landlord decides to end a tenancy; money and benefits advice; and details of the assistance that could be available from the local authority under its duty to prevent homelessness.
The advice that should be given to both tenants and landlords in relation to a decision to refuse or revoke registration and serve a rent penalty notice is set out in
Reports to the Crown Office and Procurator Fiscal Service
A range of measures is available to local authorities to encourage landlords to meet the legal requirements in relation to letting property and it is clear that positive local authority engagement helps responsible landlords to improve practice. This supports landlords to remain in the sector and maintain the supply of much needed private housing.
However, where less responsible private landlords are not willing to comply with their legal requirements, the local authorities should take the necessary steps to remove them from the register. It is a criminal offence to operate as an unregistered landlord or communicate with another person with a view to entering into a lease or occupancy agreement when not registered. If the landlord continues to let property after being removed from the register, referral to the Crown Office and Procurator Fiscal Service ( COPFS) for prosecution should be considered.
A person found guilty of an offence under section 93(1) or (2) is liable on summary conviction to a fine of up to £50,000. In addition to imposing a financial penalty, the court may also disqualify the convicted person from being registered by any local authority for a period of up to 5 years.
Fife Council have successfully taken a landlord to court and seen the first Disqualification Order in Scotland served for operating as an unregistered landlord.
See Annex C – Case Study 6 for further information on how the local authority took this case forward.
Building a case for prosecution can be a time consuming and complex process for local authorities. It is therefore crucial that where local authorities decide to refer cases to the COPFS, they have as good a chance as possible of being taken forward. Local authorities should engage with the relevant COPFS office to discuss their expectations for the level of evidence required for cases to progress, and the format in which cases should be presented.
The COPFS will not have any awareness of the case being referred to them. It is therefore important to build a case that demonstrates that it is being made in the public interest, and that highlights the impact that the landlord's actions are having on the tenant and wider community. The referral should build a clear picture of any aggravating circumstances, such as the landlord receiving rental income whilst failing to comply with the law. The referral should also show what other enforcement measures have been used by the local authority before taking the case to court. In order to help raise the profile of landlord registration cases, reference should be made to the maximum £50k fine for operating as an unregistered landlord, if that is relevant to the case.
It is not standard practice for the COPFS to provide feedback on the outcome of all cases. However, local authorities can engage with the COPFS' office to seek clarification of the decision, for example to understand why a fine has been set at a particular level.
The COPFS Enquiry Point can provide general case-related information about on-going cases (e.g. dates, outcomes of hearings). Staff there can also refer calls on for additional advice about referring a case or providing feedback on the outcome of a referral. Contact details for the Enquiry Point are contained in Annex D.
Well established relationships with other departments within the local authority and other agencies such as Police Scotland may also help to reduce the barriers to effective enforcement and should prove beneficial where there is a need for cooperation to develop a robust case for prosecution.
Consideration should be given to training appropriate local authority staff in evidence gathering and making reports to the PF. Their actions should be in line with the Regulation of Investigatory Powers (Scotland) Act 2000 and associated guidance.
One of the considerations in the fit and proper person test is whether the applicant has contravened any provision of housing law. Landlords have a duty to ensure that property they let meets the repairing standard at the start and at all times during a tenancy. Tenants are able to raise disputes about the repairing standard with the Housing and Property Chamber of the First–tier Tribunal ( FTT). The FTT will notify the relevant local authority when an application for a determination on the repairing standard is received. On receipt of such a notification, the local authority should check that the landlord that is the subject of the application is registered.
Where a landlord has failed to meet the repairing standard, the FTT will issue a Repairing Standard Enforcement Order ( RSEO), detailing the repairs that need to be done to the property concerned. The RSEO will also specify the period within which the work required by the order must be completed.
It is for the FTT to decide if a landlord fails to comply with an RSEO. If a landlord fails to comply with an RSEO the FTT will notify the relevant local authority. A landlord who, without reasonable excuse, fails to comply with an RSEO is committing a criminal offence (albeit a landlord cannot be guilty of an offence unless the FTT has decided the landlord has failed to comply with the RSEO).
The FTT will notify the relevant local authority of decisions relating to the issue, variation and revocation of an RSEO, as well as a landlord's failure to comply with an RSEO. Local authorities should use such evidence to review the landlord's fit and proper person status. This could also prompt the local authority to ask for additional supporting evidence or documentation, such as gas and electrical safety certificates, to demonstrate that the legal requirements for letting houses are being met.
If the local authority is not satisfied that a landlord is a fit and proper person, or that the landlord might be able to take action to avert revocation of their registration, the landlord's application should be refused or the landlord should be removed from the register.
Third party applications
The Housing (Scotland) Act 2014 introduced discretionary powers to enable a local authority to make a third party application to the FTT to enforce the repairing standard. This includes a right of entry to any house in respect of which a third party application to the FTT may be made. These powers were introduced because in some cases vulnerable tenants were not willing to exercise their right to report their landlord to the FTT in case the landlord ended their tenancy.
Where local authorities receive complaints or have material that indicates that a landlord is letting sub-standard property they should consider whether use of the powers to make a third party application to enforce the repairing standard is appropriate.
Once the landlord is notified about work that is needed to ensure that the house meets the repairing standard, anecdotal evidence suggests that in many cases the repairs are completed without the need for further enforcement action. This applies in particular where the landlord has been required to carry out works to ensure their property meets gas and electrical safety requirements. Local authorities can use these powers to ensure that landlords are complying with their legal responsibilities.
Each local authority will have its own structure for dealing with enforcement of registration and licensing. It may be that responsibility for enforcement does not sit with the team that administers landlord registration. Ensuring a joined up approach to working across relevant council departments will help to ensure that all those with an interest are kept informed, and can take the appropriate action to make sure the landlord complies with their legal duties.
As with cases where a tenant has applied to the FTT, local authorities should consider whether a landlord who is issued with an RSEO, or fails to comply with an RSEO is a fit and proper person, and whether they should be refused or removed from the register. This may be particularly relevant where the application for the RSEO was preceded by a period of engagement between the landlord and the local authority, resulting in the local authority applying to the FTT.
As at 30 June 2017, 75 third party applications had been made, from 15 local authority areas. 56 of those applications have been made between Aberdeenshire, Dumfries and Galloway; Dundee City and Glasgow City Councils. All local authorities should consider how use of these new powers can help to improve standards or property condition for tenants living, or proposing to live, in the private sector.
South Ayrshire Council has established good working relationships between enforcement officers and environmental health officers which enable 1 visit instead of 2 for a joint inspection of properties. When a tenant contacts the service reporting issues of disrepair, a joint inspection is carried out by both the Enforcement Officer and also the Environmental Health Officer. Experience has shown that in a vast number of cases issues with the Repairing Standard and issues with the Tolerable Standard go hand in hand. This allows for a joined up response from respective services when making the owner aware of any issues and avoids duplication of effort across departments.
At a property which failed the tolerable standards due to dampness within the property, Environmental Health applied the necessary pressure on the landlord required to get the work completed. The enforcement officer was able to discuss issues in relation to other failures in terms of repairing standard. This allowed for full compliance with all standards and minimal inconvenience to the tenant as there was not a requirement for multiple visits from a number of services.
Enhanced Enforcement Areas
Local authorities have discretionary powers to apply to Scottish Ministers to have an area designated as an Enhanced Enforcement Area ( EEA) along with enhanced discretionary powers to be used in that area.
The Enhanced Enforcement Areas Scheme (Scotland) Regulations 2015 ( SSI 2015/252) are intended to be used by a local authority to deal with the most exceptional cases of poor standards in the PRS:
- where there is a concentration of properties let by private landlords in a geographical area; and
- where those properties are characterised as being of a poor environmental standard; and
- there is overcrowding; and
- a prevalence of antisocial behaviour.
In such exceptional circumstances, local authorities can apply to the Scottish Ministers to have an area designated as an Enhanced Enforcement Area ( EEA). The Regulations provide that a local authority can seek three types of additional discretionary powers for use in an area that is designated as an EEA:
- they can require a landlord who is applying for registration, or who is renewing their registration to provide an enhanced criminal record certificate as an additional check that they meet the Fit and Proper Person test;
- they can require landlords (registered landlords, those applying for registration and any individual who isn't registered but who the local authority considers might be letting a property) to produce the documents or evidence specified in the regulations for the local authority's inspection. This check will allow the local authority to establish if the landlord is complying with their related duties and responsibilities; and
- the power to enter a house or building to ensure that the accommodation, and the common areas are safe, well managed and of good quality.
These additional, stronger, discretionary powers are expected to be used as part of a local authority's wider strategy to deal with poor standards, where use of existing enforcement powers has had limited impact on the issues. Separate guidance is available for local authorities on the use of EEA's:
See Annex C – Case Study 7 for further information about the designation of an Enhanced Enforcement Area ( EEA) status for four tenement blocks in Govanhill, Glasgow by Scottish Ministers the on 11 September 2015.
Email: Gary Mitchell, Gary.firstname.lastname@example.org
Phone: 0300 244 4000 – Central Enquiry Unit
The Scottish Government
St Andrew's House