What powers are available to deal with ‘rogue landlords’ in the private rented sector?
An article for advisers explaining the main changes introduced by the Housing and Planning Act 2016
[Extent: England only]

This article was originally published in the July 2017 issue of Adviser magazine and was correct at the date of publishing.
The Housing and Planning Act 2016 (the Act) was given royal assent on 12 May 2016. The Act introduces a number of new measures, which, taken together, make some significant changes to housing practice (not all of which have been introduced).
A number of provisions in the Act mirror the government’s recent push to deal with problems in the private rented sector. This is even more pertinent given that the private rented sector now occupies an increased share of the market in England, having almost doubled in the decade to 2014–15, to 4.3 million households (equating to 19% of all households).
The concept of ‘rogue landlords’ is now commonplace in both housing and policy circles and the provisions within Part II of the Act are intended to deal with the worst offenders in the private rented sector in order to improve the conditions for tenants. The government has stressed repeatedly that the Act targets the worst landlords, who are the minority. Part II of the Act is not yet fully in force, but it is expected that once regulations and guidance are drawn up, the remaining sections will be implemented by the end of this year. The new measures can be summarised as follows:
- banning orders;
- rogue landlord database;
- extension to rent repayment orders; and
- civil penalties as an alternative to prosecution.
Banning orders
The introduction of banning orders is intended to help local housing authorities take robust and effective action against rogue landlords and property agents who have been convicted of particularly serious offences or are prolific offenders. They are designed to be punitive and to protect tenants from such landlords or property agents.
Where someone is subject to a banning order, they will not be able to earn income from renting out housing or engaging in letting agency or property management work. This could lead to the local housing authority taking over the management of the property and so receiving the rental income and reusing the property for housing-related purposes¹. The offender is also prevented from holding a house in multiple occupation (HMO) licence and from making certain transfers of the land to a ‘prohibited person’, including certain persons associated with the landlord or their business².
Banning orders can be sought by local housing authorities against individuals or certain corporate bodies where a ‘banning order offence’ has been committed. The definition of a ‘banning order offence’ has recently been consulted on, but the final regulations are yet to be published.
An application for a banning order would be to the First-tier Tribunal (FtT), which makes the decision on whether to grant it or not by taking into account a number of factors, such as the seriousness of the offence, any previous convictions for a banning order offence and the likely effect of the banning order on the person and anyone else who may be affected by it³. Any order must be for a specified duration of at least 12 months and can contain exceptions and conditions. Any application must be made on notice and there are also appeal rights against any order⁴.
A banning order being imposed or being breached does not end the tenancy or licence agreement and any termination of such an agreement would be subject to the normal procedure. A breach of a banning order is an offence that is punishable by a fine and/or imprisonment⁵.
Banning orders are intended to be used as a last resort where other types of enforcement action have failed. It will be for local housing authorities to decide on a case-by-case basis whether or not a banning order would be an appropriate sanction. Banning orders are not yet in force (they are expected in autumn 2017) and further detail will be included in a future article.
Rogue landlord database
According to Part III of the Act, a national database of rogue landlords and property agents is to be established, which will be maintained by local housing authorities. They must take reasonable steps to keep the information up to date⁶.
When a banning order is issued in England, the local housing authority must make an entry in the database about the person against whom the order has been made. Under Section 30, a local housing authority in England may make an entry onto the database in respect of:
- a person who has been convicted of a banning order offence, and the offence was committed at a time when the person was a residential landlord or a property agent; or
- a person who has, at least twice within a period of 12 months, received a financial penalty in respect of a banning order offence committed at a time when the person was a residential landlord or a property agent (NB: the deadline for appealing the financial penalty must have expired and any appeal must have been determined or withdrawn).
Entries onto the database must remain for at least two years. Where decisions are made to include a person on the database, that person must be sent notice of at least 21 days. There is a right of appeal against both entry onto the database and the duration of any entry. Decision notices must be given within six months of the date that a person was convicted of the banning order offence to which the notice relates, or within six months of receiving the second of the financial penalties to which the notice relates.
The Secretary of State is to publish guidance to local housing authorities about the decision to make entries and also the period for which any entry will be maintained. The Secretary of State may make provision for what information must be included in any entry, for example: address, contact details, period of entry, details of properties owned, let or managed, details of banning order offences and any banning orders (including those no longer in force) and details of financial penalties, as well as information about officers if the entry relates to a body corporate.
A local housing authority in England may only use information obtained from the database:
- for purposes connected with its functions under the Housing Act 2004;
- for the purposes of a criminal investigation or proceedings relating to
a banning order offence; - for the purposes of an investigation or proceedings relating to a contravention of the law relating to housing or landlord and tenant;
- for the purposes of promoting compliance with the law relating to housing or landlord and tenant by any person in the database; or
- for statistical or research purposes.
The recent Renters’ Rights Bill (HL) also proposes extending access of the database to tenants and those seeking a tenancy.
Sadiq Khan, the Mayor of London, recently announced that, in addition to the national database, a new online London-wide database will be launched in the autumn to ‘name and shame’ criminal landlords and letting agents who exploit their tenants. The database will be published on the Mayor’s website and will be publicly available (in contrast to the current availability of the national database). It will cite criminal landlords and letting agents who have been successfully prosecuted for housing offences.
It is expected that provisions governing the national rogue landlord database will be introduced in autumn 2017 and further details will be included in a future article.
Extension to rent repayment orders
Rent repayment orders (RROs) have been available for some years under the Housing Act 2004. They concern landlords that have been managing or letting premises that should have been licensed either under the mandatory HMO licence or under additional or selective licensing schemes.
It is a criminal offence to manage or control such unlicensed property, but in addition to prosecution by the local housing authority, landlords could face financial sanctions in the form of being ordered by the FtT to repay 12 months’ worth of rents received (either paid by way of welfare benefits or directly by the tenant) by way of an RRO.
Since 6 April 2017, the availability of RROs has been extended under Section 40 of the Housing and Planning Act 2016. The FtT now has the power to make an RRO on application by the tenant or local housing authority when certain (listed) housing-related offences are committed (see table).

Under the new rules, both tenants and local housing authorities can apply for RROs — for tenants where the offence relates to housing that was let to them, and for local housing authorities where it relates to an offence in respect of housing in their area.
When applications are brought by local housing authorities, they must give notice to the landlord — within 12 months of the offence being committed — of their intention to make an application, specifying the amount they are seeking to recover and inviting the landlord to make representations prior to making the application. A local housing authority must have regard to any guidance published by the Secretary of State when deciding whether to apply for an RRO.
For tenant applications, no prior notice is required but the offence must have been committed within 12 months of the tenant’s application to the FtT.
The FtT may make an RRO if satisfied, beyond reasonable doubt, that a landlord has committed a relevant offence (whether or not the landlord has been convicted). This is a significant departure from the previous rules on RRO where, for the purpose of actions brought by tenants, the application for an RRO was dependent on the local housing authority successfully prosecuting and securing a conviction against a landlord or agent, or having secured an RRO in respect of Housing Benefit or Universal Credit paid (which would have involved the local housing authority having already proven that the offence had been committed to the criminal standard of proof).
The amount of an RRO depends on who has made the application and, in some cases, whether the landlord has been convicted, but in all cases the level of repayment cannot exceed 12 months’ rent⁷. An RRO can only cover the period during which the offence was committed, which, in practice, may be less than the maximum 12 months. For offences involving unlawful eviction/violent entry, it is the 12 months preceding the offence that counts.
Where a landlord has been convicted of a housing-related offence the FtT must order that the maximum amount of rent (up to 12 months) is repaid. Where there has been no conviction, in determining the amount the tribunal must, in particular, take into account the conduct of the landlord and — where the application is made by the tenant — the financial circumstances of the landlord, and whether the landlord has at any time been convicted of a relevant offence. Sums under an RRO are recoverable as a debt.
Local housing authorities will not have access to Universal Credit data, so where the landlord has been paid the housing element of Universal Credit and this forms part of the amount sought, it will be necessary to work with affected tenants to provide information about the benefit payments and who can also request additional information from the Department for Work and Pensions.
A local housing authority must give consideration to applying for an RRO if it becomes aware of a relevant offence and is encouraged to introduce and apply a consistent policy on when to prosecute and when to seek an RRO. A local housing authority may, but is under no statutory duty to, provide a tenant with assistance in applying for an RRO. Advisers should consider the effect that the recovery of any sums under an RRO may have on means-tested benefits.
Civil penalties as an alternative to prosecution
Under Schedule 13 of the Act, local housing authorities have, since 6 April 2017, had the power to impose civil penalties as an alternative to prosecution for certain housing-related offences.
Under Section 126 of the Housing and Planning Act 2016, civil penalties of up to £30,000 can be imposed on landlords and agents as an alternative to prosecution at the Magistrates’ Court under the Housing Act 2004 for certain housing-related offences, including: failing to comply with an improvement notice or an overcrowding notice; failing to hold the necessary HMO or selective licence (or failing to comply with a condition of such a licence); or failing to comply with the management regulations of an HMO.
The local housing authority must have regard to the guidance issued by the Secretary of State in the exercise of their functions in respect of civil penalties and those in receipt of penalty notices will be entitled to appeal the service of the notice and the amount of the fine to the FtT.
It is important to note that, in addition to the civil penalty itself, the local housing authority can consider including in the rogue landlord database anyone in receipt of two fixed penalties within a 12-month period in relation to a banning order offence.
What does this mean for the future?
Both tenants and local housing authorities will have more tools available to them to deal with problem landlords by virtue of the new powers introduced by the Housing and Planning Act 2016. When the additional measures of the rogue landlord database and banning orders (with associated regulations) are brought into force, it should be possible to see how the full package will work in practice. For tenants, the extension of RROs will give them an additional avenue to pursue, but it is expected that many tenants may only take such action after they have left the property due to the risk of an Section 21 notice being served. In most cases, there is a real risk that landlords subject to RRO action by the tenant will simply seek to evict the tenant and the landlord-tenant relationship will break down. Except for cases on unlicensed properties, s21 notices will remain valid despite relevant housing-related offences being committed.
For local housing authorities, the provisions currently in force will give them some additional powers to deal with the worst landlords, but it remains to be seen how each authority decides to use these new powers alongside its existing enforcement work.
Rachael Gore is a member of the Housing Expert Advice Team at Citizens Advice.
Endnotes
- Schedule 3 of Housing and Planning Act 2016.
- Section 27 Housing and Planning Act 2016.
- Section 16 Housing and Planning Act 2016.
- Section 20 Housing and Planning Act 2016.
- Sections 21–23 Housing and Planning Act 2016.
- Section 34 Housing and Planning Act 2016.
- Sections 44–46 Housing and Planning Act 2016.
