The PFEA is the piece of legislation that defines the twin housing offences of harassment and illegal eviction and sets out the procedures for investigating and prosecuting offences.
It’s the Tenancy Relations Officer’s main weapon and I’ve been using it for 30 years but as is the case with such things, it becomes so familiar that you don’t think too much about it any more.
There’s actually not too much to it. As a piece of legislation it’s probably one of the shortest out there, running to just 13 sections but, with the Renter’s Reform Bill simmering away in the background, the Safer Renting crew decided that being now 43 years old, it could do with an appraisal to see if it’s still up to the task.
Overall we think it is but could do with some tweaks.
Firstly, the Act differentiates between acts of harassment that are done by a landlord or agent and acts done by “Any person”, who is not the landlord or agent.
If it’s the landlord or agent, then the test is whether what they are doing would be “Likely” to cause the occupier to leave, whereas if the acts are done by anyone else, you have to prove that what they are doing is with the “Intent” to make the occupier leave.
In Regina v. Burke (1991) the court found that you cant infer intent of harassment by ‘Any person’ just because the occupier ended up leaving the property. You have to show that getting them to leave the property was the intent behind the harassment.
When the PFEA first came out, “Intent” was the sole evidential test for all parties of harassment in a rental situation. This tough standard meant that nobody ever got prosecuted for it, so when the Housing Act 1985 came out, it added the test of “Likely”, as a result of which the Act started to bite.
Now it has to be said, harassment by landlord or agent is bar far and away the most common but you do get harassment by other persons, for instance, “Lead tenants”, used routinely in Property Guardian arrangements who may or may not be acting at the landlord’s instigation but the test of “Intent” is just as problematical as it was before the amendments made in 1985, so what is the point of having the distinction, if it just doesn’t work?
Ditch the distinction, is the solution and apply “Acts that are done that are likely to cause the occupier to leave” by “Any person”, full stop. Then in cases like Regina v. Burke, mentioned above, the perpetrator would not walk away scot free on a daft technicality.
Section 2 of the PFEA tells us that it is unlawful to evict a person occupying under a lease, without benefit of a court order but this goes on to say that this does not apply to an excluded occupier and most notably these are ‘Lodgers’. People living with a resident landlord and sharing some accommodation (see s3A) of the PFEA.
Another history lesson. Before the advent of the Housing Act 1988, lodgers were called “Restricted contract tenants”. They were still entitled to be evicted by a court order but as with assured shorthold tenants today, they could not defend the claim.
This has left lodgers in an extremely perilous position ever since, who can be evicted with just reasonable notice, basically a landlord saying “Get out next month”.
So we propose amending s3 and s5 of the PFEA, to make it a requirement for lodgers to be given written notice to quit, in the prescribed form, which provides a measure of procedural protection, in that NTQ’s still come with service requirements, whilst not fighting an unrealistic battle in changing the law to force lodger landlords get court orders, although in an ideal world we would support that as well.
Such a change would also be of benefit to excluded occupiers resident in bail hostels, also in s3A for whom summary eviction can see them back inside, and so who often don’t complain.
We strongly suggest amending s6, to place a duty on local authorities to investigating allegations of breaches of the PFEA and prosecute where appropriate.
At the moment it’s a local authority power, not a duty and because TROs have never had a statutory role, so many of them have been axed due to austerity cuts. Changing this part of the PFEA would ensure that all councils have services to protect renters from harassment and illegal eviction.
Section 7 is an interesting one. It allows for a local authority to serve a notice on an agent, requiring them “Forthwith” (straight away – no compliance period) to provide the full name, place of abode or business of the landlord.
What so often neuters this provision are the following words “for the purpose of any proceedings (whether civil or criminal) brought or intended to be brought”.
Mainly a TRO needs s7 notice when they are investigating an emergency like an illegal eviction threatened for the weekend and you need to head it off at the pass. One of my old cases from the 1990s, Ranaweera v. Lewisham perfectly illustrates the problem.
I had a threatened illegal eviction, landlord unknown. I called the agent and asked for the info. He didn’t want to cooperate until pushed when he dismissively said the landlord lived in Ireland. I asked for his name, he replied “Mr Murphy”. Sensing he was taking the piss, I served him with a s7 notice which he ignored. We prosecuted and won but he successfully appealed.
In the witness stand the judge asked me if, at the time I served the s7 notice, I was intending to bring proceedings. I replied that I could not say that I was, because I needed his name and contact details so that I could contact him and ascertain whether or not the allegation was even true, before I could say honestly, if I was intending to bring proceedings..
The judge sympathised at the ‘Cart before the horse” situation but had to interpret the section as written and I have been caught by this double bind when investigating many similar cases since.
So our suggested amendment? Substitute “For the purpose of any proceedings (whether civil or criminal) brought or intended to be brought” with “For the purposes of the authority’s duties to investigate”
Finally and on a similar tip, we also think it is important to amend s235 – s239 of the Housing Act 2004, which allows a local authority to demand a range of evidential documents concerning a property from a wide range of people, from owner, through agent to tenant.
The trouble is, s235 only empowers officers investigating breaches of the Housing Act 2004, meaning EHOs.
Whilst TROs are investigating and prosecuting criminal offences, they have no lawful power to demand any documents from people involved in renting properties. Which is just plain nuts!
All that it would need to make this significant change is to add “Or the Protection from Eviction Act” to s235 (1) (a).
As with all Safer Renting’s recommendations to improve housing enforcement, we aren’t aiming at great legislative or social changes, so much as strengthening and streamlining existing laws, based on problems in practice we see every day.
Tweaking existing pieces of legislation to make them work better and reduce the opportunities for crooks to exploit loopholes.
They aren’t big headline grabbers and will most likely bore the pants off of most people but if you work in this field, you’ll see how much procedural bang for your buck you can get out of them.
by Ben Reeve Lewis