Selective Licensing Scheme ‘Additional Powers’ Ruled Illegal By Court of Appeal

by Mark Alexander

16:37 PM, 22nd February 2018
About 2 years ago

Selective Licensing Scheme ‘Additional Powers’ Ruled Illegal By Court of Appeal

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Selective Licensing Scheme ‘Additional Powers’ Ruled Illegal By Court of Appeal

24Housing has reported that the Court of Appeal has ruled that councils cannot use selective licensing conditions to impose new standards on private rented homes.

Paul Brown, a landlord in Accrington, is challenging Hyndburn Council which sought to use its selective licensing scheme in certain areas of the borough to force the installation of carbon monoxide detectors and also to carry out electrical safety checks and implement their findings.

Brown was backed by the Residential Landlords Association (RLA).

The court heard that Brown had already carried out both of the requirements, but argued that imposing such standards through licensing schemes went beyond the powers available to local authorities.

Brown and the RLA argued that rather than relying on licensing schemes which only cover certain properties, electrical and gas safety issues are best addressed by councils using the extensive powers they already have under the Housing, Health and Safety Rating System (HHSRS).

This is the risk-based evaluation tool to help local authorities identify and protect against potential risks and hazards to health and safety from any deficiencies identified in dwellings.

It applies to all private rented homes, whether they require a licence or not.

After the case the RLA called for the guidance associated with the HHSRS – which was last published in 2006 – to be ‘urgently’ updated to reflect the considerable changes in the sector since.

This, said RLA policy advisor, Richard Jones, would better support councils to use and enforce their powers under this system.

The case was not about trying to stop councils from imposing requirements, it was about how they go about this – ensuring that they use the proper processes which already exist.

“Today’s judgement is a reminder that councils already have extensive powers to deal with properties found to be unsafe and they must act in a legal manner,” he said.

Questions this raises are:-

How will this ruling will impact other Selective Licensing Schemes?

Are other Selective Licensing Schemes legal?

Will landlords be entitled to claim a refund of licencing fees?

No doubt, much of this will be debated in the commenting thread below, but we will be asking our Hon. Legal Counsel to provide a briefing note on this and we will send it free of charge to all landlords who complete the form below.

Selective Licensing Case Law Update



Comments

robert fisher

19:35 PM, 23rd February 2018
About 2 years ago

heres an oxymoron from Peterborough city councils selective liscence inspector. i have been made to have electrical tests and install Carbon monoxide detectors, neither of which i object to , i think it good practice to have detectors checked and installed at every gas safety and to have have electrical tests every 10 years. However i do object to being told to remove wooden tongue and groove cladding from a kitchen diner for fire safety when the entire kitchen is made of wood, and that the entire house is timber framed, the cladding has been in situ for over 20 years and never been a problem nor any more of a fire risk than the kitchen cupboards , work surfaces or timber throughout the house. An abuse of power ?? i shall be looking forwards to seeing where this one ends up.

Mick Roberts

9:11 AM, 24th February 2018
About 2 years ago

We've got Licensing coming to Nottm & this is good news.
But I've still got to give Nottm my bank accounts & passwords, so they can take money out whenever they feel like it. We have no defense. They are right. All Landlords are wrong.

Jim S

9:27 AM, 24th February 2018
About 2 years ago

Reply to the comment left by Mike at 22/02/2018 - 17:14
Well said Mike, I like the use of the word "thuggery". And they call our country "a progressive and forward thinking country" I have asked the RLA & NLA many times to start national shame campaigns against our Government and City councils. I have even suggested that they start training courses about how to fight the City councils through the use of authoritative formal complaints and how and when legal action would work. Britain likes to call Russia & China for their poor human rights record but what about the poor human rights record to us? Selective discrimination against certain landlords with retroactive taxation, a capital gains tax system that is now taxed differently for sole trader landlords only. The capital gains tax is yet again a retroactive tax on the higher rate sole trader landlord.
If we ever needed proof that we do not live in a democracy I think that has now been clearly established!
Why is it that a City council can issue a bailiffs warrant without even having to go to court? with that kind of power of course they can bully and intimidate us.

Chris Novice Shark Bait

10:14 AM, 24th February 2018
About 2 years ago

Here is a link to what is proposed in Bristol.
https://www.smartsurvey.co.uk/s/additional-licensing-scheme-for-hmo

Mandy Thomson

10:18 AM, 24th February 2018
About 2 years ago

Reply to the comment left by Jim S at 24/02/2018 - 09:27
Local authorities have in some ways always had more power over our daily lives than national government, but since the Localism Act they have had much more power devolved to them.
However, I'm not sure just how seriously the public takes local elections. In my experience many believe they're just voting for town hall bureaurocrats to collect the rubbish and keep the streets clean, and as they see local government as relatively unimportant, they're more prepared to allow extremists in.

Mandy Thomson

10:29 AM, 24th February 2018
About 2 years ago

Reply to the comment left by Jim S at 24/02/2018 - 09:27"Thuggery" is too strong a term for selective licensing, but I do see some parallels with mafia style protectionism. Why? Because most councils simply introduce it as an excuse to raise revenue, others try to impose ridiculous and unreasonable requirements, which is why this decision is so important, and I've heard way too many accounts of unreasonable and downright ridiculous orders being imposed on (good and well informed) landlords by ill informed, idealistic graduates with little or no training in HHSRS and private housing legislation.

This was why I opposed Croydon's scheme.

Why can't there just be one NATIONAL group of sensible, easy to follow housing legislations that anyone letting property must either demonstrate they understand and agree to uphold, or be required to use an agent, as with Rent Smart Wales?

Mike

12:40 PM, 24th February 2018
About 2 years ago

Sorry Mandy, I used the word "Thuggery" which is no less than the true meaning of thuggery, exception being that instead of violent in nature, it threatens you with huge frightening and astronomical fines! and banning landlords from renting properties if found to mismanage, Fines quoted in their threat are nothing less than £30,000, or in some cases unlimited fines! That is shear thuggery. I have never heard of such large fines for trivial offenses, if one drove a car without a license, have you ever heard of such a person being fined as high as this amount, probably not even when that person gets involved in an accident gets fined this high.
Central Government is most likely very happy for local councils to find alternative means to beef up their budgets some other way due to cuts to council budgets, so they are not intervening into this, other methods to raise revenues is to start charging for all previously free parking in residential streets and now you need resident's parking permits just to park your car in your own street despite paying having a license to drive and park your car on a public road, enforcing yellow box contraventions using CCTV cameras, paying some school drop out sitting in an armchair watching the footage looking for minor offenders who may only have just crossed the yellow line, with no discretion shown and sent a fixed penalty notice. what are they all coming to? Are they plating seed for a revolt?

Mike

12:53 PM, 24th February 2018
About 2 years ago

It is also a fact that Introduction of Selective license has cause more homelessness, I met one in my street sleeping rough in recent cold weather, under a street canopy/porch of a building, someone complained to the council to enforce the building owners to dismantle the porch or the canopy instead of asking them to help this homeless man. I stopped and spoke to this person and asked him what brings him to streets, he said he lost his job due to illness, being self employed, he was not entitled to any benefits, or housing help, and couldn't pay rent and his landlord evicted him, I could have put this man for free in my HMO as I have two spare bedrooms but I cannot do that as I am licensed to only put 7 persons of any age despite the fact I have a house with two baths and a large kitchen and only 3 couple live there with myself as the 7th person as I use that property as my 2nd home also. So I was prevented from helping this man, in doing so I could be charged for overcrowding and faced losing my license.

It is not unusual for me to be very charitable landlord, i once put a couple for free in this house for two years except that they must pay for the utility bills and I would pay half the council tax since I used this place as my 2nd home mainly for storage purpose, it was the local council who forced me to get a license even if I am housing a couple for rent free. I could have and wanted to help this man, but the selective license prevented me to do so.

blair

15:18 PM, 25th February 2018
About 2 years ago

This only helps proves that especially selective and additional licensing schemes are unnecessary I argued this is my submissions to Sec of State in the consultations when Brent wanted to extend the areas of licensing. (I didn't succeed as they as Brent are about to extend the scheme)

Brent likes to publish articles about rogue landlords and massive fines ( which are subsequently reduced) but when your read the cases they related to breaches of planning law and failing to comply with enforcement notices. The same for anti social behaviour they need selective licensing to deal with such

H B

16:20 PM, 25th February 2018
About 2 years ago

Reply to the comment left by Mark Alexander at 23/02/2018 - 14:33
It is difficult to read comments on any site about BTL without them ruining the discussion with their repetitive ramblings. Even the FT seems to be full of them and what the hell are they doing with an FT subscription - they know nothing about the world of finance.

Keep them banned from here so that we can have grown up conversations about our businesses.

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