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7. Sanctions and Appeals
In general, local authorities have not yet developed procedures to apply sanctions to a landlord.
7.1 Reports to Procurator Fiscal
Of those authorities interviewed, the majority reported that taking a landlord to court would be a last resort and that they would rather pursue alternative ways to deal with a landlord first.
Typically where registration teams are located within licensing or environmental health departments, there does appear to be some experience of presenting cases to the local Procurator Fiscal. However, where they are not, there tends to be limited experience of presenting evidence in court.
Good Practice Recommendation
It is strongly recommended that those local authorities that have not already done so, should engage with their local Procurator Fiscals to raise awareness of the aims of landlord registration and the types of evidence required to be reported.
Some authorities have expressed concerns that de-registration and the denial of the use of a landlord's property will be deemed as an infringement of their human rights. Therefore, it is important that the legal relationship between the human rights of the landlord and the rights of the tenant are clearly understood by all parties.
Good Practice Example
Dundee City Council: The Council utilised internal knowledge and experience from enforcement officers available to the landlord registration team. In addition, a pro forma has been compiled as a guide to taking witness statements, to collect information and also to outline the types of evidence required for potential court action.
7.2 Rent Penalty Notices
Only two local authorities interviewed (East Lothian Council and East Ayrshire Council) had used rent penalty notices to effectively deal with non compliance.
Good Practice Recommendation
Particularly as authorities begin to look closely at landlords 'pending review', the issuing of rent penalty notices should be closely considered.
Prior to issuing a notice, every attempt to engage with the landlord to rectify the issue must be documented. Housing Benefit departments and tenants should also be consulted. Depending on the circumstances, arrangements to provide money advice to tenants and advice to avert potential homelessness should also be considered.
Wherever possible, landlords, agents and tenants should be notified well in advance of a notice becoming live. At present there are no national guidelines for a suitable period of notice, this is therefore at the local authorities' discretion. Good practice would be to try to coincide the rent penalty date with the rental date to limit confusion.
It is also recommended that where a rent penalty notice is served that this is recorded and monitored via the online system. The public register should also have a flag on a property where a rent penalty notice has been served in order to inform any prospective and current tenants and agents.
Good Practice Example
East Lothian Council: New tenants going into a property will not know that a rent penalty notice has been served. Therefore the public register could have a flag on it to notify prospective tenants (and agents) to say a rent penalty notice applies. The council can check if tenants have moved on if the Council Tax record changes.
Once a rent penalty notice issue has been resolved, the registration officer would contact the tenant and any other party and explain the implications of this i.e. the date to start repaying rent and the amount due to be paid. Tenants could also informed that if the landlord has a successful appeal then the tenant may be asked to pay back the rent due. The local authority is considering in the future having a holding account facility whereby the authority holds the rent for the tenant. Similarly the landlord is informed that the issue is resolved and what rent can be collected.
East Ayrshire Council: Where the Council has received information confirming a property is being let and the landlord has failed to apply, their details are noted on a database. The following process then takes place:
- the 1st letter issued includes an application form, a registration information leaflet and rent penalty information; if no response
- a 2nd letter is issued which includes an application, a registration information leaflet and rent penalty information. The tenant is also informed via letter at this stage and a tenant visit may be carried out to establish tenant / landlord relationship; if no response
- a 3rd letter is issued which would apply the rent penalty notice.
Please note that there are two types of letters applicable to tenants depending on whether or not the tenant recieves Housing Benefit. Also the registration team have good communication with internal departments and there are protocols in place that allow them to check information with these departments.
7.3 De-Registration
De-registration has serious implications for landlords, tenants and agents and should only be utilised as a last resort. To date no authorities interviewed in this study had taken steps to de-register any approved landlord.
Good Practice Recommendation
The decision to de-register a landlord should be made by a delegated authority within the Council and should not be the responsibility of one officer. Any decision to de-register a landlord should be informed by evidence that the landlord/agent has been given every opportunity to comply.
Where a decision has been made to de-register a landlord or agent, serious consideration must be given to any tenants or agents involved. Appropriate information and advice should be provided including re-housing options. This will also involve informing Housing Benefit and Council Tax that the landlord is unable to let property in the authority.
In addition, a de-registered landlord's activity requires to be monitored closely to ensure they do not continue to let property unlawfully. This will involve regular checks with Housing Benefit, Council Tax and local letting adverts that the property is no longer being let.
A de-registered landlord can re-apply for registration at any stage and authorities should have processes in place to ensure the original issue has been resolved.
Where a landlord is de-registered, this should be flagged on the public register so that tenants, agents and other services are aware of the landlord/property status.
7.4 Late Application Fees
The guidance enables local authorities to apply a late application fee provided an application has been submitted after an authority has made two separate requests for an application to be made.
Late application fees are being applied in relation to non payment of an application, in that if an application is not paid, then it is not valid and as a result the landlord has not fully completed their application. After two attempts to requests payment are unsuccessful, a late application fee will apply.
Good Practice Recommendation
A local authority should keep records of when requests have been made to a landlord to apply. No timescale is recommended in the current guidance but if a landlord does not respond to the first letter regarding supplying a valid application within 7 days, then a second reminder should be sent. If there is no response to the second letter within a further 7 days, a late application fee will apply. The letter should contain an outline of what affect this will have on the cost of registration and should also outline that continued failure to comply will result in a rent penalty notice.
A robust monitoring process should be in place to ensure that reminder dates are kept and follow up action taken. Consideration and reasonableness should be given to mitigating circumstances.
When a landlord has failed to pay for registration, this is an invalid application and therefore the landlord is not legally able to continue to let property. After two payment requests, a late application fee should be added to the initial cost and if the landlord still fails to comply this should be followed with a rent penalty notice.
7.5 Appeals Process
The current guidance contains guidelines for landlords to appeal to the Sheriff should a rent penalty notice be served or they have refused registration or de-registered.
Good Practice Recommendation
It is noted that the current guidance does not contain guidance for appeals regarding late application fees, conditions on registration for example appointing an agent or any complaints or grievances regarding the process. As practice arrangements can vary across each authority, actions for improving practice should be developed locally.
Where circumstances occur that lead to an appeal to the Sheriff, it is recommended that a case file is compiled by the local authority. This would contain full and collaborated evidence, including all measures taken to ensure compliance. An evidence gathering framework or pro forma should be established as suggested in section 7.1 to ensure that all information collated is to the appropriate standard.
Good Practice Example
East Ayrshire Council: Where a decision has been made a landlords will be informed in writing within seven working days. The landlord then has 21 days to make an appeal in writing or using an appeals form. Where an appeal is made, the internal appeals process is firstly to the Head of Housing, secondly to the Sub Committee of elected members and lastly to the Sheriff or the landlord can appeal directly to the Sheriff. Leaflets and guidance are available on this process.
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