Newham selective licensing drafts - my responseCampaigning and Policy
I have received some draft licences from London Borough of Newham. Some landlords of this area may find my reply helpful. The principles also apply to any licensing scheme (especially the selective licensing ones). So, this may be useful as a general guide when approaching other councils operating such schemes. I have kept my reply brief as I believe that it is the best way to draw attention. Once the attention is drawn, then the points may be elaborated.
Here is my reply:
I have a few observations to make regarding the drafts:
1) The draft licences contain standard conditions which were deemed to have been inappropriate by some tribunals. The licence should relate to a property and the proposed licence holder only. However, it does not seem to be the case here. For example: Conditions 7,16, 17, 18 and 19 not used in both drafts.
2) The drafts seek to impose conditions on the licence holder beyond his legal control. For example: The draft licence says, 'A copy of the licence must be displayed .. within..the property'. In a single household letting, the tenant has the exclusive possession of the whole dwelling. The licence holder, on granting the possession of the property, cannot use the premises to display anything. The tenant can, even after their agreement, remove such display (ie the licence).
3) The drafts seek to alter the existing tenancy terms. For example: In condition 6, the licence holder is required to provide written terms of occupation to the occupiers. Even if the licence holder were to do so, it would grant each occupier a tenancy. The terms of tenancy are agreed upon with the tenant - the occupiers are not a party to this agreement. That is why, in the eviction procedure, only the tenant can make representation (not the occupiers).
4) The drafts contain double jeorpardy conditions. So, the licence holder can be prosecuted and convicted for the same crime twice (under the statutory rules and the licensing conditions). For example: In condition 11, the licence holder is required to protect the deposit (if any) and to give the prescribed information. This is covered by the deposit protection rules already.
5) The drafts seek to impose conditions not covered under part 3 of the Housing Act 2004 (relating to the management, use or occupation of private sector accommodation). For example: The condition 20 seeks to address the issue of disrepair and pest infestation ( ie . "condition and contents"). This is already covered under part 1 of the same act (Housing Act 2004).
See Brown V Hyndburn Borough Council (The Court of Appeal 2018).
6) In this section, I will mention each observing condition in the numerical order and identify the ground of my objection relating to it:
The requirement to display a copy of the licence in the property cannot be fulfilled as the tenant will have the exclusive possession of the property.
Condition 6: Seeking to alter the existing tenancy terms. Also, only tenant is the other party to the tenancy agreement (not each occupier).
Condition 9: Double jeorpady condition is included. The right to rent check is a statutory obligation already. Checking the tenant's ability to pay rent may be discriminatory to those in receipt of the state housing allowance. It is also possible for a guarantor to pay rent on behalf of a tenant. Moreover, this condition stipulates checking the 'occupiers' ability to pay. Legally, an 'occupier' is not liable to pay rent. It is the tenant's responsibility. It shows the council's lack of knowledge in this field. Also see Gaskin V London Borough of Richmond Upon Thames (2018) - asking for unreasonable information had been found to be outside the remit of the licensing regime.
Condition 10: The mode of check has not been clarified and it is therefore possible for the licence holder to be exposed to prosecution based on a vauge condition.
Condition 11: Double jeorpardy condition. The deposit protection is a statutory obligation.
Condition 12: It seeks to alter the existing tenancy agreement.
Condition 13, 20, 21 and 22: These include elements relating to the condition of the property. This is not covered by part 3 of the Housing Act 2004 (the licensing scheme is derived from part 3 only). See Brown V Hyndburn Borough Council (The Court of Appeal 2018).
Condition 23 and 24: Double jeorpardy conditions. Gas and electrical safety rules already cover these.
Condition 32: It is not part 3 (of the Housing Act 2004) function and does not relate to the selective licensing scheme.
Conditions 33 - 39: Double jeorpardy conditions. Also not part 3 (Housing Act 2004) function (ie. these conditions relate to conditions and contents).
Condition 46: Unfair clause. The licence holder cannot guarantee access unless it is given by the tenant.
Condition 47: Unreasonable requirement to provide such information. See the ruling on Gaskin V London Borough of Richmond Upon Thames (The High Court, 2018).
I will appeal to the First Tier Tribunal if do not receive the satisfactory amendments in due course.
I look forward to hearing from you soon.
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