In June 2022 government produced their report A Fairer Deal for Renters, setting out a range of plans to alter the landscape, not just for renters themselves but those charged with policing the private rented sector, in short, local authorities. I want to focus here on just one suggestion outlined in the report:-
“We will consider if amendments to the Protection from Eviction Act 1977 are necessary to help local authorities in tackling illegal evictions, for example permitting local councils to issue civil penalties for cases of illegal evictions and harassment; how we can support local councils to work effectively with the police; and how to ensure penalties reflect the serious impact that illegal eviction has on tenants”.
In particular the mention of the possibility of bring in Civil Penalty Notices (CPNs) for illegal eviction and harassment, which personally I think is a fantastic idea.
What are CPNs?
The concept of a civil penalty notice was first ushered in with the Housing Act 2004 and then widened by the Housing and Planning Act 2016. They give a choice to local authorities between prosecuting the offender for defined breaches or issuing a CPN, with a maximum penalty of £30,000.
Procedures have to be followed that I won’t bore you with here and the landlord has the opportunity to appeal to the First Tier Tribunal, who may lower the amount imposed, dismiss the CPN or uphold it.
Since 2016 government have allowed councils to keep the money from CPNs to fund further enforcement work. This has obviously seen CPNs rise in popularity given one of the biggest barriers to enforcing against rogue landlords is lack of funding.
CPNs for illegal eviction and harassment – the case for.
Since 1977 the only route available to the local authority for dealing with illegal eviction has been through the Protection from Eviction Act. But there are numerous factors which damage it’s effectiveness.
Cases can take a long time to get to court, often well over a year or even more. During that time Tenancy Relations Officers (TROs) whose job it is to investigate, gather evidence and witness statements for prosecution, often find it difficult to keep tenant’s involved.
People are understandably angry when experiencing illegal eviction but a year or 2 later , with their status reduced from victim to merely witness in the council’s case, that anger has often abated and people move on with their lives, including moving away and usually with a strong sense that justice doesn’t work for them and even if they stay with it the fines issued in magistrates courts are very poor, commonly a few hundred pounds, or even just community service.
Damages can be awarded to the tenant but in criminal proceedings they are nowhere near what they are in a civil claim..
Then there is the problem with TROs, in that there is no statutory duty on local authorities to prosecute illegal eviction, so in the past 10 years of austerity cuts, many councils in the UK no longer even have a functioning TRO service. There is simply nobody in those councils who do this work.
CPNs – the case against
Bear in mind the council can choose between issuing a CPN and prosecution (Presuming in government plans penalties for harassment and illegal eviction work the same way they do for other offences) and a choice not to prosecute could send the message that they don’t take these offences seriously.
People often comment that a prosecution gives the offender a criminal record. I’ve lost count of the number of rogue operators I’ve been involved in prosecuting since starting as a TRO in February 1990 and trust me, not one of them cared one tiny bit whether they ended up with one, many of them already have a criminal record.
So I personally don’t hold to the theory of the effective threat level of criminal proceedings. Being a rogue landlord is only ever about the money. CPNs are a serious financial penalty that immediately offers a strong deterrent to anyone wanting to take the risk and a £30,000 award can result in a registered charge and forced sale of the property, which is one hell of a sanction..
Landlord lobbies always express concern that Innocent or amateur landlords might be prosecuted for something they didn’t do and will I am sure express concerns over the faster, streamlined CPN proposal but clueless or naive amateurs, perhaps breaking laws they didn’t even know existed don’t get caught in this machinery. A criminal standard of evidence is required even for CPNs and naive operators, when confronted usually back down and apologise and no enforcement officer is going to waste their time or resources when a landlord has shown such contrition.
On the procedural side the tribunal will often reduce awards imposed by the council but even a small award of say £5,000 is often about 10 times what the fine would be in a magistrates court. The case can be done and dusted in months, which leaves the tenant perhaps with a sense that justice was done and a successful CPN is great evidence for any civil damages claim of their own.
CPNs have the potential to deliver reasonably fast and costly justice, something that is so often denied to tenants under the current system
By Ben Reeve Lewis