Research and analysis

Local authority enforcement in the private rented sector: headline report

Published 16 June 2022

Applies to England

Authors: Kesia Reeve and Emma Bimpson with Elaine Batty, Joe Chambers, Barry Goodchild, Lindsey McCarthy, Jamie Redman, Elizabeth Sanderson, Beth Speake and Ian Wilson

September 2021

Summary

This report presents the findings from a study commissioned by the Department for Levelling Up, Housing and Communities (DLUHC) and carried out by the Centre for Regional Economic and Social Research (CRESR) at Sheffield Hallam University to explore local authority enforcement in the private rented sector. The findings are based on survey responses from 140 local authorities in England, and 80 interviews with stakeholders in 14 case study areas.

Overall, the findings suggest that the powers and enforcement measures available to local authorities are valuable tools for tackling poor conditions in the private rented sector. Local authorities who participated in this study made wide use of statutory improvement notices and civil penalties were reported to be effective as an enforcement tool and as a deterrent, and there was evidence of increasing use of Banning Orders against rogue landlords. The consensus view was that mandatory licensing of Houses in Multiple Occupation (HMOs) and selective licensing helped improve standards and conditions.

However, the findings also suggest that local authorities face significant barriers to tackling poor conditions, resulting in an uneven picture of enforcement. For example, few local authorities participating in the study had sufficient, comprehensive knowledge of the local private rented stock to inform strategic decision making, and enforcement capacity was so limited in some teams that they described mostly ‘fire-fighting’. Local authorities lacking political or corporate commitment to improving housing conditions found it difficult to robustly enforce private rented sector standards.

With some notable exceptions and pockets of good practice, these and other challenges appear to leave many enforcement teams operating a reactive, rather than proactive service that is narrowly focused on fulfilling statutory duties and targeting only the worst standard properties. Addressing these barriers is likely to result in increased and more effective action to improve conditions and standards in the private rented sector.

Key messages

• Local authorities have a duty under Part 1 of the Housing Act 2004 to keep housing conditions under review and identify action needed, but local authorities participating in this study were not always well informed about the private rented sector stock. Only a small number carried out regular reviews of the stock. This partly reflects the partial nature of secondary data about the sector, such that gathering evidence was described as ‘one of the biggest challenges’ enforcement officers faced.
• Local authorities were generally found to operate a ‘reactive’ enforcement service that responded to complaints, although a small number were making proactive efforts to identify and tackle poor conditions. There are questions about the extent to which relying on tenant complaints is a robust basis for identifying poor conditions. Officers reported that tenants in the ‘sub-standard’ private rented sector can be fearful of reprisals or eviction and have limited understanding of their rights, and so may not report issues.
• There was significant variation in local authority approaches to enforcement, with a small number making full use of the tools and powers available and proactively tackling substandard housing; and others where formal enforcement action was a ‘last resort’. Few authorities could demonstrate convincingly that their approach was driven by the known effectiveness in a particular local context. For example, some explained limited use of enforcement with reference to high levels of landlord compliance with informal requests but acknowledged that they were unlikely to encounter the worst properties.
• The factors found to shape different approaches to the sector – the ‘key drivers’ of enforcement - were:
  • the capacity of enforcement teams;
  • the experience and expertise of enforcement teams;
  • political will and strategic commitment to tackling poor housing conditions.
• Additional barriers to effectively tackling poor standards and conditions were:
  • issues relating to the legal framework, such as the range and complexity of laws relevant to enforcement work;
  • difficulties gathering evidence to support enforcement
• Local authorities were in favour of all forms of private rented sector licensing schemes because of the associated powers to inspect and enforce, and the setting of clear standards. Mandatory licensing had prompted greater focus on historically problematic private rented markets and, as a result, was unanimously thought by case study participants to have helped improve standards and conditions. However, issues with landlord compliance and local authority capacity to monitor compliance means that further efforts may be needed to fully maximise the impact of licensing on private rented sector conditions and standards.
• Civil Penalty Notices (CPNs), introduced for some housing offences in the Housing and Planning Act 2016, were also viewed positively by enforcement officers and reported to be effective as both an enforcement tool and a deterrent. CPNs were compared very favourably to prosecutions as a means of tackling poor housing conditions.
• Collaborative working with other local authority teams and external agencies was found to bring significant benefits to enforcement teams. Collaboration increased team capacity, and partners such as trading standards officers and financial investigators brought valuable additional powers.

1. Introduction

This report presents the key findings from a study commissioned by the Department for Levelling Up, Housing and Communities (DLUHC) and carried out by the Centre for Regional Economic and Social Research (CRESR) at Sheffield Hallam University to explore local authority enforcement in the private rented sector.

2. Background

The private rented sector in the UK has expanded significantly in the past 20 years and is serving an increasing number and diversity of households. It is also the tenure with the poorest quality housing. In this context, the expansion of the sector has prompted concerns about persistent sub-standard conditions and poor management practices in some sections of the market.

A wide range of tools are available to local authorities to enforce the various legislative and regulatory mechanisms in place to protect standards in the private rented sector, including new tools introduced through the Housing and Planning Act 2016. However, local authorities are not required to report most types of enforcement action and so there is limited evidence about the extent to which they use the powers available to them and the barriers to doing so. It is against this backdrop that the present study was commissioned.

3. Aims and objectives

The overall aim of the study was to improve DLUHC’s understanding of how local authorities in England are using enforcement powers in the private rented sector. The research was guided by a set of research questions, within four broad themes:

• how local authorities understand problems and issues in the private rented sector, and their efforts to review standards and conditions in the sector;
• the strategic approaches taken by local authorities to tackling problems in the private rented sector;
• how local authorities use their powers to tackle problems in the private rented sector;
• the drivers of, and barriers to, private rented sector enforcement.

4. Methods

Phase 1: analysis of an integrated dataset comprising a survey of local authorities and secondary data sources.

• A survey administered by DLUHC was distributed to all English local authorities in spring 2020. It contained questions relating to housing stock and conditions in the private rented sector, enforcement teams, and enforcement activity. Responses were received from 140 local authorities, representing 44% of the 318 local authorities in England.
• Secondary and administrative data about other housing, population and deprivation measures were integrated with the survey data so that analysis could take account of contextual factors that might influence enforcement activity.

Phase 2: qualitative case study research with local authorities in England to explore enforcement in the private rented sector.

• Four variables informed the selection of local authority case studies from Phase 1 survey respondents: the number of properties with Housing Health and Safety Rating System (HHSRS) category 1 hazards; the size of the enforcement team; use of enforcement tools; and use of landlord accreditation. Twelve ‘clusters’ were identified and characteristics such as geography and local authority type informed the selection from each cluster. A total of 14 local authorities agreed to participate in the study. A senior enforcement officer in one additional local authority also agreed to be interviewed. The final sample comprised at least one local authority from ten of the 12 ‘clusters. It also included local authorities from each of the regions of England, from each of the ‘urban/rural classification’ categories, and included unitary, metropolitan and non-metropolitan local authorities.
• In total, 80 interviews with local authority officers were conducted across the case studies. The sample mainly comprised enforcement officers and enforcement or operational managers, but included colleagues from other departments - trading standards, empty homes, tenancy relations, planning, housing options, public health – and a small number of partner agencies (law centre, CAB). Officers participated through focus groups and individual interviews. All interviews were conducted by videocall with follow-up questions and communication by email in some cases and were recorded and transcribed.
• Participants were also asked to provide the study team with relevant documentation such as strategies, local analysis, and reports.

5. Local authority knowledge and understanding of the private rented sector

Conditions

Poor housing conditions persist in the private rented sector. The most recent English Housing Survey data shows that 23% of private rented sector properties fail to meet the Decent Homes Standard and 13% have category 1 hazards. Poor conditions are reflected in the results of the Phase 1 survey. On average, local authorities reported that 17% of private rented properties in their area had category 1 hazards, with a significant minority (28%) reporting 20% or more properties with category 1 hazards.

A range of methods^{[footnote 1]} were used to identify factors associated with poor housing conditions. The analysis identified two statistically significant relationships. Larger proportions of private rented properties with category 1 hazards were associated with larger populations, and with higher proportions of HMOs.

Despite these statistical associations, the qualitative case study research cautions against assuming that poor standards are the preserve of large urban areas or concentrated in HMOs. Poor conditions and standards were a feature of the private rented sector across the study samples. Two case study local authorities received more complaints from self-contained dwellings than from HMOs, and six of the nine local authorities with the highest reported rates of category 1 hazards in the survey were rural.

Reviewing conditions and standards in the private rented sector

Local authorities have a duty under Part 1 of the Housing Act 2004 to keep housing conditions under review and identify action needed in the local area. The evidence from this study suggests that local authorities are not always well informed about the private rented sector housing stock in their area. For example:

• just under two thirds (63%) of local authority survey respondents conducted a survey of the housing stock and these were often undertaken infrequently or on an ad hoc basis, leaving a relatively small proportion regularly surveying their local housing stock;
• of the small number of case study local authorities that had recently carried out exercises to map the sector, this had typically been done for the purposes of a particular initiative such as selective licensing or identifying areas for targeted intervention/HMO inspections. These local authorities are currently in a strong position to identify and respond to issues in the private rented sector but, as ‘one-off’ exercises, questions remain about the longevity of the data and how/whether it is updated.

This does not mean local authorities were not regularly collating any data about the private rented sector to fulfil their duties under the Housing Act 2004. At an operational level, enforcement teams drew on an extensive number of data sources to identify and respond to poor conditions, legal breaches, rogue-landlordism, and unlicensed HMOs. This included: council tax data, voter registration data, electoral roll, Credit Reference Agencies, energy performance certificate data, Companies House data; searches of online letting agents; Requiring the Production of Documentation notices; and data from other local authority teams about anti-social behaviour, noise nuisance, waste collection, and parking enforcement.

Mandatory HMO licensing was reported across the case study sample to be improving knowledge and understanding of the private rented sector. In contrast, the rogue landlord database was not often used by local authorities as a resource.

Challenges reviewing conditions in the private rented sector

The findings above reflect inherent difficulties mapping and reviewing standards in the private rented sector, given the disparate and partial nature of available secondary data. One officer described gathering comprehensive evidence about the sector as ‘one of the biggest challenges’. This chimes with the conclusions of a recent review of UK private rented sector secondary datasets, identifying that data needed by local authorities to develop effective regulatory strategies is a key gap.^{[footnote 2]}

In the absence of comprehensive data about the private rented sector, local authorities were drawing together a wide range of data in exercises described as time consuming and challenging, painstakingly investigating across multiple sources. Much time was spent simply identifying landlords, agents and properties. This was found to erode teams’ capacity to take enforcement action, as one officer explained:

All the time you have to spend finding out whether an agent or landlord exists is time that you’re not spending enforcing or advising a tenant or taking action against a rogue landlord.

Local authority data requirements

Two sources of information emerged as having the greatest potential to positively impact on local authority’s enforcement work.

• A mandatory register of landlords and agents: reflecting recommendations made in the wider evidence-base,^{[footnote 3]} case study participants were unanimous in their view that a mandatory register would make a significant difference to their work, by releasing team capacity, and in terms of enforcement outcomes. The following comment was typical:

Compulsory registration would make knowledge easier - if we knew which were the private landlords and what properties, that’s part of the problem, it would make it a lot easier if they had to declare cos even a lot of the council tax records, it’s not obvious.

• Financial data, including bank records: environmental health officers cannot access such data under their powers. The small number of enforcement teams working closely with trading standard officers or financial investigators pointed to the benefits of having access, via those officers, to financial data, while others suggested that access to financial data would make a significant difference to their ability to take action, and to likely outcomes.

There were also data sources cited as of potential value, but that for one reason or another are not currently proving as useful as they could be. These are:

• the deposit protection scheme, which was reported to be potentially very helpful but currently incomplete;
• the Intelligence Database (IDB), a potentially useful national resource database that allows intelligence to be shared across local authorities but is reportedly underutilised;
• administrative data from other local authority departments, used extensively by enforcement officers but with room for improvement in data accessibility, integration, and compatibility between systems; and
• the Rogue Landlord Database, which is under-utilised at present (see below).

6. Enforcement strategies

• Neary all local authorities (93%) responding to the survey had an enforcement strategy. Some case study local authorities also had strategies related to specific aspects of enforcement work such as Banning Order Policies, Civil Penalty Policies, and Tenant Fees Act Financial Penalty Policies.
• A review of case study local authority enforcement and related strategies revealed divergent approaches to enforcement. Some, for example, foreground the importance of legal compliance and holding those who breach the law to account, while others emphasise the importance of proportionality in their actions. A small number were explicit that enforcement should be targeted at properties ‘at highest risk’ and that tenants should attempt to resolve issues with their landlord before making a complaint to the local authority. These differences were reflected in operational delivery of enforcement duties and powers.

7. Enforcement teams

Over one third of local authority survey respondents (39%) employed two full time equivalent (FTE) officers or fewer, including 12% who reported one FTE or fewer. The smallest team reported was 0.3 FTE. Conversely, just under a quarter of local authorities employed more than five FTEs, including 7% with more than 10 FTEs. Just under one third (32%) of local authority survey respondents reported a vacancy in their enforcement team in the previous six months.

Evidence from the case studies suggests that multi-disciplinary enforcement teams are not common. Two teams included trading standards and tenancy relations officers, one of these employed a part-time lawyer, and another included a financial investigator. The involvement of trading standards in private sector housing enforcement was reported to have increased in recent years.

To some extent, the relative size and composition of enforcement teams reflected local situations and needs. In the survey, statistically significant relationships were identified between the number of FTEs undertaking enforcement work, and population, stock, deprivation and stock condition factors.^{[footnote 4]} However, the case study research suggests a more complex picture, and one where the capacity of local authority enforcement teams was often not sufficient to proactively tackle poor standards and conditions. For example:

• the two local authorities with the smallest teams were urban authorities, and several others with very small teams were urban local authorities, including one with a high proportion of HMOs;
• one local authority with a team of two officers had the third largest proportion of private rented sector properties with category 1 hazards of all the case studies;
• the case study sample included a local authority with 0.5 FTE enforcement officer, another with 1.5 FTE officers where the full-time officer also had another role in the local authority and the part time officer was a trainee; and a team of two covering two local authority areas. These teams described prioritising to the point of ‘fire-fighting’, focusing on the very worst cases and enforcing only where they had a ‘duty’ rather than a ‘power’.

8. Collaboration and partnership working

There was evidence across the case studies of extensive multi-agency and inter-departmental working. Local authorities worked with the police, the fire service, border control/immigration officers, trading standards, planning departments, advice agencies, and housing options teams, amongst others. Collaborative working took a variety of forms.

• Multi-disciplinary enforcement teams: as noted above, a small number of enforcement teams were multi-disciplinary.
• Multi-agency groups: a multi-disciplinary rogue landlord taskforce in one local authority, for example, shared information across teams and agencies including planning, revenue and benefits, the border agency and the police. This partnership has resulted in joint prosecutions. Another described a weekly multi-agency meeting comprising representation from the police, trading standards, the fire service, planning, the green spaces team, licensing, DWP, homelessness and environmental health.
• Informal relationships built at the local level: this mostly comprised information sharing and ‘referrals’. Examples included: local advice agencies referring housing issues to enforcement teams; other local authority departments passing intelligence to enforcement teams to help them identify licensable HMOs; and other agencies and teams reporting suspected unlicensed HMOs and concerns about safety and standards. The police, fire service, housing options teams, and council ward managers were all mentioned in this regard, the police most commonly.
• Joint inspections and visits, particularly with the fire service, the police, and the immigration authority. These were usually arranged informally, although there were examples of more formal, targeted initiatives. In one local authority, for example, the enforcement team worked with the police to target a cluster of streets known to have some of the worse property conditions.
• Cross-authority partnerships and initiatives. These were less common, but a small number of case study local authorities were involved in regional and pan-London initiatives and groups. One local authority, for example, was working with all other local authorities in the region to develop a calculator for civil penalties so a consistent approach could be applied across the region.

The benefits of partnership working

Collaboration and partnership work was found to bring significant benefits to enforcement teams. In very small teams it was essential to draw on the work and support of partners in to increase capacity, but the most notable benefit was that partner agencies and officers in other departments brought additional and complementary powers to enforcement teams. In relation to input from financial investigators and trading standards officers, for example, the additional powers they hold to access financial information were found to be invaluable for identifying and gathering evidence against landlords.

Working with other agencies meant that poor standards could be tackled more comprehensively. This was particularly relevant to work with the fire service and in some cases had enabled enforcement teams to tackle specific issues that had been identified locally, such as poor standards in flats above shops. One officer explained:

We have a lot of flats above shops. or flats that share a wall with a business, cos we don’t have any powers within the businesses, and then the fire service don’t enforce in the flat so we have to work together, if you needed smoke detection in both that needed to be interlinked we couldn’t enforce that, the business fits the fire detection, the fire service would have to do that and then we would enforce against the landlord.

The challenges of partnership working

Overall, working collaboratively enhanced the capacity and skills of enforcement teams and appeared to improve outcomes. A few challenges were, however, identified.

Inter-departmental tensions were sometimes evident where corporate priorities supported the work of other teams. For example, homelessness prevention, which relies on private sector lettings, was a corporate priority in one local authority and so ‘a really adversarial approach to the rented sector, it’s going to tarnish the work that [Housing Solutions] and others do’. Tackling empty homes was a priority in another, prompting a degree of caution in prohibiting unfit properties. Different approaches and priorities between local authorities was also found to hinder enforcement action. One team, for example, was active in tackling tenancy relations offences but the neighbouring authority was not pursing landlords for these offences, hampering their efforts to prosecute landlords operating across boundaries. Officers also raised issues about limited support from the police with tenancy relations offences. These local authorities sought better joint protocols with the police in this regard.

Not all enforcement teams worked inter-departmentally or communicated with relevant teams. One officer lamented that ‘I’m sure lots of teams at the council have got a lot of intelligence but we just don’t join the dots so that would be quite useful. Others pointed to specific examples where officers in other departments had missed opportunities to inform them of issues the enforcement team may have been able to address.

9. Broad approaches to private rented sector enforcement: ‘reactive’ vs ‘proactive’, ‘formal vs ‘informal’ approaches

The case study local authorities were sampled purposively to provide variation, including ‘high’ and ‘low’ levels of enforcement as indicated by survey responses. Variable approaches were, therefore, to be expected, and this was the case.

• At one end of the spectrum were a cohort of around five local authorities where problems were identified almost entirely reactively (i.e. through complaints), and formal action was rare. One, for example, explained that informal resolution is always attempted, and another described their approach as follows: In most cases we’d prefer to work with the landlords to get the works resolved, formal action is the last resort really. Officers in these local authorities tended to apply a narrow interpretation of their statutory obligations under the Housing Act 2004, seeing their duty in terms of taking action if they became aware of category 1 hazards.
• At the other end of the spectrum were around four local authorities proactively identifying and targeting poor quality landlords, properties and neighbourhoods, developing preventative initiatives, working collaboratively with other departments and agencies, and making use of the range of tools available to them. One described operating a ‘zero tolerance’ approach, as dictated in their enforcement strategy and explained that: We’re not shy in using the full range of powers that we have…We don’t shy away from enforcement… it’s something that all our officers are keen to do. These local authorities interpreted their responsibilities under the Housing Act 2004 widely, seeing their role as generally upholding the law in relation to housing standards. Regardless of whether they have a duty or a power, they felt obliged to take action.
• In the remaining local authorities, the picture was mixed. Several described an ‘advise and educate’ approach, where formal action was generally avoided but taken where necessary, and modest proactive work was evident. In others, officers reported that ‘the majority’ of their work was reactive, but they were not overly cautious in taking action when problems came to their attention.

Enforcement teams were more proactive around some issues than others. It was common for action to address poor conditions to be reactive, but HMO licensing work to be more proactive. HMO licensing aside, where proactive work was evident it tended to focus on identifying landlords with properties in the worst conditions, or who were flagrantly breaching regulations.

Notwithstanding this variation, overall, local authorities were found to operate a generally reactive enforcement service that mainly responded to complaints, although amongst the more ‘enforcement-led’ local authorities, this sat alongside some proactive efforts. Relying on tenants’ knowledge and confidence to make a complaint is problematic. Case study participants reported that tenants in the ‘sub-standard’ private rented sector can be vulnerable, fearful of reprisals or eviction from the landlord, and have limited understanding of their rights.

Evidence from the case study research points to the importance of having robust processes for determining when informal action is appropriate, and for reviewing outcomes to confirm the effectiveness of different approaches. Two case studies had formal processes for ensuring a consistent approach across the local authority. One operates a ‘check and balances’ policy to determine the most appropriate action and staff in the other attend annual training so they apply legislation consistently. Other local authorities were not able to demonstrate as convincingly that their approach was driven by the known effectiveness in a particular local context. These local authorities tended to explain limited use of enforcement with reference to two issues;

• landlord compliance with informal requests. However, officers in one of these local authorities also acknowledged that they were unlikely to identify non-compliant landlords, where the worst standards are likely to be found, and survey data for another showed that only one of the 38 notices for category 1 hazards served in the previous four years had been complied with.
• the characteristics of the local housing stock rendering enforcement action less necessary. One local authority, for example was described by local officers as prosperous with few transient residents, another referred to having no students, and another to having very few HMOs in the area as reasons why they did not encounter issues serious enough to warrant enforcement action. However, these local authorities did not generally have reliable evidence about their private rented sector stock, and survey data indicated poor property conditions in some cases.

10. Use of enforcement tools and powers to address poor standards and conditions in the private rented sector

Housing Act 2004 notices for category 1 hazards

• The survey data suggest that notices for category 1 hazards are widely used. Most participating local authorities had served notices in each of the past four years. Each year, around 15% (often the same authorities) did not serve any notices.
• Local authority survey respondents reported significant non-compliance with Housing Act 2004 notices for category 1 hazards. Only 47% of local authorities reported that over 90% of notices served had been complied with in 2019/20 and nearly one quarter (23%) reported that fewer than 50% of hazard notices had been complied with.
• Evidence from the case study research suggests that non-compliance does not deter local authorities from issuing notices. Non-compliance helped local authorities distinguish landlords willing and able to improve the standard of their properties, from those against whom more punitive measures were required.

Civil Penalty Notices and Prosecutions

• Civil Penalty Notices, introduced for some housing offences in the Housing and Planning Act 2016, were being issued by most case study local authorities, typically for HMO licensing breaches and non-compliance with improvement notices. They were generally considered to be effective as both an enforcement tool and a deterrent and were compared favourably to prosecutions. The survey data indicate relatively few prosecutions in recent years (around two thirds of local authorities reported no prosecutions in each of the four previous years) which may reflect a shift towards CPNs. The following quote illustrates the general view on the relative merits of CPNs versus prosecutions:

When we prepare for prosecution there’s a phenomenal amount of back work that you have to do to get those cases to the court, all the unused material, all the time that it takes to get your evidence packed together. With the case for the civil penalties… we produce our evidence for that, but we don’t produce lots of statements, we don’t produce lots of documentation, it’s a lot less burdensome on our legal teams. We will serve them, and we might have to come to all of that if they appeal, but that’s not every case so it’s an awful lot less work to get a successful outcome.

• Just over two fifths of local authority survey respondents collected revenue through CPNs in 2019/20. This is more than three and a half times greater than the number generating revenue from CPNs in 2017/18, when they were introduced. The amount collected in 2019/20 ranged from £5,000 or less (18% of local authorities) to more than £100,000 (10%).
• Local authorities pointed to the advantage of ring-fencing and recycling CPN funds back into enforcement activity (unlike with revenue from prosecution fines). One, for example, had used CPN funds to make essential progress with HMO inspections by employing a consultant. In the survey, 63% of respondents reported that income collected through civil penalties was ring-fenced for enforcement work. The financial benefit to local authorities of CPNs was not strongly influencing their use, however.
• Few problems were identified in relation to CPNs that hindered their use or undermined their effectiveness, and the issues that were raised were not always unique to CPNs. They are as follows:
  • CPNs were found to be less effective for tackling ‘rogue’ landlords and agents, with landlords ‘down at the bottom, the worst end of the sector’ reportedly ignoring CPNs;
  • local authorities reported frustration about delays resulting from appeals. As one officer commented - The tribunals are extremely slow, getting cases to be heard at the tribunal is extremely slow, landlords have opportunity after opportunity to appeal;
  • civil penalties are not always paid;
  • CPNs cannot be used for tenancy relations offences. Prosecution is the main option for tenancy relations offences under the Protection from Eviction Act and so this area of enforcement has not benefited from the improvements brought by the introduction of CPNs.

Tackling rogue and non-compliant landlords

Rogue landlords, including rent-to-rent agents, were found to be particularly difficult to tackle. Local authorities described employing all the measures available to them, including CPNs and prohibition orders, against landlords with properties often subject to mandatory licensing, yet they continued to evade detection, and failed to comply with notices and fines.

Funding for rogue landlord teams was found to have supported local authorities, allowing them to be more proactive and to spend the significant time required gathering evidence against rogue landlords and taking relevant action. Banning orders were also considered a useful additional tool against a segment of the market they were struggling to deal with, although there was a degree of scepticism that banning orders alone would be effective against the very worst offenders. Only three local authorities responding to the survey had issued a banning order but evidence from the case study research suggests that banning orders will be used more extensively by local authorities over time.

Local authorities in the case study sample were not making much use of the Rogue Landlord Database. London local authorities contrasted the rogue landlord database with a Greater London Authority database that they used extensively. Issues were raised by local authority officers to explain limited use of the rogue landlord database, implicitly offering suggestions for improvements:

• the criteria are too restrictive, for example two CPNs in the past 12 months and a limited list of offences;
• it is not public and so does not act as a deterrent - It doesn’t really show you who’s in your area so it’s a limited name and shame capacity there’;
• technically, it is not user-friendly;
• the process is convoluted, taking too much time and resource, made more so because of the right of landlords to appeal.

Rent repayment orders

• case study local authorities reported that rent repayment orders (RROs) were acting as an incentive to landlords to comply with HMO licensing. However, most did not think it a worthwhile use of their resource to apply for RROs and very few survey or case study participants had done so. Gathering the evidence meant drawing down detailed housing benefit information. Only three survey respondents reported revenue recovered from RROs in 2018/19 and 2019/20.
• Local authorities were more enthusiastic about supporting tenants to apply for RROs (although this would exclude tenants in receipt of Housing Benefit or Universal Credit). with several expressing the view that this incentivised landlords to apply for HMO licenses. As one commented - Also the tenant rights to go for an RRO and deposit disputes and all that, that’s changed it, it’s helpful to us in increasing standards across the board…I think it’s led to a lot more HMO licenses coming forward. Some local authorities were actively encouraging and supporting tenants to apply for RROs and one had applied on the tenant’s behalf. Low levels of awareness amongst tenants that they could apply for an RRO was also reported, and the need for greater publicity and communication with tenants in this regard was suggested.

Mandatory and selective licensing

Local authorities were in favour of all forms of private rented sector licensing schemes, because of the associated powers to inspect and to enforce, the setting of clear standards - ‘[HMO] management regulations, fantastic piece of legislation, it’s about four pages long, very easy to use and very effective - and the intelligence gradually building about the sector as a result. Mandatory licensing had prompted greater focus and effort on historically problematic private rented markets and, as a result, was unanimously thought by case study participants to have helped improve standards and conditions.

Notwithstanding this general picture, issues with landlord compliance, and local authority capacity to inspect HMOs and monitor compliance means that further efforts may be needed to fully maximise the impact of licensing on private rented sector conditions and standards. For example:

• no case study local authority provided quantitative evidence of the impact of HMO, additional or selective licensing on standards but some did report that work ordered as a condition of a license had often not been completed when compliance checks were made. This is an area about which further evidence would be useful.
• the results of the local authority survey indicate high numbers of unlicensed HMOs in some areas. In total, 19% of respondents estimated that less than 50% of licensable HMOs were licensed at the time of the survey.

Results from the survey suggest that selective licensing is not widespread, with 88% of survey respondents reporting no selective licensing areas. Selective licensing was reported by case study local authorities to be essential to efforts to tackle poor standards, with one authority going as far as to suggest that ‘I don’t think we have the tools without licensing’. Selecting licensing is not appropriate for local authorities where problems are not concentrated, but a sizeable minority of case study local authorities reported that selective licensing would help them tackle poor standards but had not been pursued.

11. Barriers and drivers of enforcement

Analysis of the survey data revealed that local authorities with high levels of student housing, younger people, HMOs, and deprivation were most likely to use formal enforcement tools. Notwithstanding these logical associations, the evidence suggests that the key drivers of enforcement are not found in broad characteristics of local authority areas. Rather, the following factors emerged as significant drivers of enforcement: capacity of enforcement teams; the experience and expertise of enforcement teams; and political will. Issues relating to the legal framework, and difficulties gathering evidence also emerged as barriers to enforcing standards in the sector.

Capacity of local enforcement teams

There was a clear correlation between those working proactively, making use of the range enforcement tools and powers, and those with larger teams. The four most enforcement-led local authorities in the case study sample map directly onto the four local authorities with the largest teams.

Enforcement teams are reliant on officers in other departments to progress certain aspects of their work (for example legal departments, revenue and benefits to pursue RROs, housing departments for management orders) and limited capacity in these teams was also found to limit what enforcement officers were able to do. Conversely, a boost to capacity had demonstrable results, whether through additional officers (in several local authorities, part time secondments from trading standards and tenancy management had increased team capacity), new teams (a few case study local authorities had received government funding for rogue landlord teams) or employing consultants to carry out discrete tasks. In these cases, local authorities described work carried out, including preventative initiatives, that they would otherwise have been unable to do.

The experience and expertise of enforcement teams

The case study local authorities that were most proactive in enforcement had teams comprised of highly experienced and qualified staff. In these local authorities, enforcement officers were experienced, qualified environmental health officers (EHOs) and at least two local authorities insist that new recruits are qualified EHOs. Recruitment of experienced and qualified staff was, however, reported to have become more difficult in recent years.

These teams were also multi-disciplinary, including staff from other departments (trading standards, tenancy relations, legal) thereby enhancing the technical expertise overall. In contrast, some other teams were comprised of relatively inexperienced, newly qualified staff and the presence of officers from other departments within teams was rare across the rest of the sample. This was found to directly impact on the enforcement action they could take. Given the breadth and complexity of the legal framework for enforcement, local authorities expressed concerns about enforcement teams not having sufficient knowledge to interpret and accurately apply the relevant legislation. In a few local authorities this manifested as lack of confidence in enforcing, or in using certain enforcement tools, such as CPNs.

Political will, strategic commitment and related support of legal teams

There was a clear correlation between local authorities with strategic or political commitment to improving private rented sector conditions through enforcement action, and those more operationally proactive in their efforts to do so. The support of senior managers and legal departments was found to be crucial to officers’ ability to proactively enforce. These local authorities had explicit strategic commitment to tackling problems in the private rented sector, for example in their corporate strategy, and the link between strategic commitment and operational capacity was explicitly acknowledged, as the following quote illustrates:

If we didn’t have something in the corporate plan…. that’s quite a clear strategy and we’ve been able to build upon some of those aspirations…and that really is key for us. If you don’t have that almost golden thread of an aspiration to delivery on the ground, there’s no way that we could be growing as a service in staff and delivery terms and the spectrum of work that we do over the last five or six years.

In contrast, concerns, politically, about ‘upsetting’ local landlords, or being seen to be ‘punitive’ in other local authorities were found to hinder efforts to address private rented sector conditions and rogue landlordism. Officers in several local authorities expressed the view that a lack of political support had undermined their efforts to apply for selective licensing, an intervention that officers felt was much needed in their areas.

Issues relating to the legal framework

Various aspects of the legal framework were found to present challenges to local authorities in their efforts to enforce against poor standards.

• The number and range of laws that officers have to understand and navigate. Enforcement teams require a high level of legal competence and breadth of knowledge, supported by legal departments, to interpret and appropriately apply the raft of relevant legislation. A recent report calculates that the regulatory framework comprises 29 statutes enforced by professionals from four different disciplines.^{[footnote 5]}
• ‘Alignment’ issues between legislation in different disciplines of relevance to enforcement (health and safety, planning, building regulations), that set standards for slightly different purposes.
• Lack of clarity in some legislation about which local authority department has responsibility to take action. Several local authorities referred to enforcement action failing to progress because departments judged that responsibility lay outside their team. For example, one reported that issues relating to Energy Performance Certificates are often passed back and forth in their authority.
• Questions about whether the HHSRS was the most effective way of assessing and tackling poor standards. It was described as ‘cumbersome’, ‘clunky’ and reported to lack specificity. The consensus view was that a ‘minimum standards’ approach was more effective, and easier for both landlord and local authority to understand and apply/enforce. Officers also questioned whether a system based on safety, rather than more broadly on conditions, enabled them to address standards effectively. Local authorities reported that they inspect many properties that they would consider to be sub-standard, but which are not unsafe.
• Not having the right legislative tools for tenancy relations offences. Two key issues were raised. First, that local authorities have the power but not a statutory duty to take action for tenancy relations offences and so not all teams pursue these cases. Second, the only enforcement option is prosecution – ‘Protection from eviction act is one of those where we can either prosecute or do nothing’ - and CPNs cannot be served for tenancy relations offences.

Difficulties gathering evidence to support enforcement

Several related issues emerged:

• tenants can be reluctant to complain, provide statements, or attend court;
• it can be difficult for enforcement teams to gather evidence that meets criminal standards of proof as is required for some enforcement action.
• the resource required to gather evidence, particularly in a context of limited capacity in enforcement teams was found to deter local authorities from pursuing some enforcement measures, including prosecutions and banning orders.
• establishing the identity of landlords. Local authorities were severely hampered in their enforcement work because of difficulties identifying ownership and management, particularly in the rent-to-rent market and amongst other rogue landlords.

12. Conclusion

The findings from this study raise questions about the extent to which local authorities can improve poor standards and conditions in the private rented sector, despite a raft of powers and enforcement tools that are mostly viewed as valuable and effective.

Enforcement teams that are well resourced, with highly qualified staff, and supported by corporate strategy and legal departments are proactively using the range of powers available to them to tackle poor conditions in the sector. But lack of comprehensive data and knowledge about the private rented sector is hampering efforts to identify poor conditions and rogue landlords, drains valuable capacity that could otherwise be spent enforcing, and leaves authorities unable to evaluate the effectiveness of their actions and approaches. A mandatory register of all landlords would go some way to filling this data gap. There is also a call from local authorities to streamline, review, or simplify aspects of the legislative framework for enforcement. They pointed to the management regulations for HMOs, for example, as ‘very easy to use and very effective’ while questioning whether an assessment system based on safety (the Housing Health and Safety Rating System), rather than standards, was the most effective way of improving conditions in the rest of the private rented sector. Tenancy relations officers, meanwhile, lamented that CPNs did not cover tenancy relations offences, and that authorities do not have a statutory duty, only a power, to take action for tenancy relations breaches.

The findings also suggest that capacity and skills shortages in some enforcement teams can undermine the potential gains from new powers and enforcement tools. Some teams, for example, were struggling to inspect their licensable HMOs and then monitor landlord compliance, thereby failing to maximise the potential impact of licensing on conditions. Greater capacity and skills within team, including from partners such as trading standards officers, would allow more proactive, effective efforts to improve private rented sector standards and conditions.

Acknowledgements

We would like to thank the local authority officers for giving up their time so willingly to contribute to and support this research, for candidly sharing their experiences and views and helping us to arrange research fieldwork. The study was conducted during the Covid-19 pandemic and so we were very grateful for such high levels of engagement. We would also like to thank our research manager and members of the project advisory group at DLUHC for their constructive and valuable advice throughout the study and comments on the research outputs. Any inaccuracies or omissions in the report are solely our own responsibility.

1. The methods including correlations, t-test pairwise tests for equality of means, z-test for proportions and generalised linear modelling. Multiple methods have been used improve the robustness of the analysis and address potential weaknesses in the survey data, such as biased and unreliable responses. ↩

2. S. Orford and J. Harris (2020) UK private rented sector data: Briefing paper, Collaborative Centre for Housing Evidence. ↩

3. Harris, J., Cowan, D., Marsh, A. (2020) Improving Compliance with Private Rented Sector Legislation, Collaborative Centre for Housing Evidence; Dunning, R. and Moore, T. (2017) Regulation of the Private Rented Sector in England: Lessons for Ireland, Joseph Rowntree Foundation ↩

4. Correlations, t-tests and generalised linear modelling were used to identify statistical evidence of factors associated with the number of FTEs undertaking enforcement work in a LA. ↩

5. Spencer et al (2020) Journeys in the Shadow Private Rented Sector, Safer Renting ↩