Other Rent Officer related matters - procedures.
Boarded up properties
Where properties are ‘boarded up’.
Introduction – dealing with boarded up properties
All information relating to boarded up properties should be held on the VICTER system, which cross-matches addresses with any housing benefit or fair rent cases.
It is important for the rent officer to make notes of all boarded up properties within their area to assist with valuations and with socio-economic data. The information will also be displayed in GIS.
Housing Benefit cases
If a property listed on the boarded up database receives an HB referral for it a pop-up box will appear during the input stage. This information should be noted within the case notes. All cases that are flagged this way should be put out for inspection. If this pop-up occurs when entering a PTD the rent officer should make arrangements with the landlord to view the property.
Fair rent cases
At the input stage a similar pop-up box will appear. As with the HB referral the case notes should reflect the fact that the property is included on the boarded-up database and an inspection should be arranged.
Any property flagged in this way will be inspected, which should enable the rent officer to provide a more accurate valuation. All valuations should reflect the standard of the property found at the inspection.
If the property is no longer boarded up then it should be removed from the database and noted accordingly. Alternatively if a rent officer discovers an empty, boarded property during normal inspections then this should be entered onto the system as a matter of good practice. If a planned inspection turns out to be a boarded up property then the rent officer should complete an external inspection and should annotate any LA decision with the comment “Property boarded up – please investigate”.
Health and safety
Under no circumstances should a rent officer enter a property where there could be a risk to their safety or security. If there is insufficient light, or other such hazards, then an external inspection should be completed. It is imperative that a common sense approach is used.
Large boarded up areas
In areas that have significant numbers of boarded up properties, local arrangements should be made within the team to continue to monitor and record the changes. This good practice will help maintain a strong, accurate, database.
- Inspection policy
- Inspection practice
Extrapolation interpolation and other techniques for determining rents using lettings information.
Rent officer Housing Benefit valuations are principally made using the comparative valuation method. This requires using confirmed comparable lettings information; in other words looking for other properties and tenancies that match the subject property closely.
‘Closely’ in this sense means not just geographically closely, but closely in accommodation detail (ie the number of rooms and what facilities the property has) and also closely in time (ie the lettings information should not be old or relating to a period when the local market was different). In a fast moving market, lettings information collected relatively recently may already be out of date, but in a more stable market, information may have a longer ‘shelf life’. Current RO guidance is that property specific valuations (i.e. the significantly high rent, size and rent and exceptionally high rent determinations) should be made using recent lettings information, ‘recent’ in this instance being preferably no more than 3 months older than the ‘relevant time’ for the case. LRR determinations should be based on 12 months of lettings information, to even out short term trends and distortions.
However there may be occasions in which the available confirmed lettings information is not suitable. The lettings information in question might be distinctly different, or have different features, or it might be some distance from the subject property. In such situations suitable adjustments can be made to the values shown by the available confirmed lettings information, to reflect the disparity. For instance if you have confirmed lettings information from the area of the subject property, but the properties do not have a particular amenity that your subject property has, and you know that that this amenity adds 10% to the value, you can add 10% to the rents of the confirmed lettings information that you do have, to come to a representative figure.
In some limited situations you may find that there is just not enough confirmed lettings information available from the relevant area to come to a reliable determination. This may happen in 2 situations:
- where there is no directly comparable lettings information at all (usually a property specific determination), or
- there is some but not enough to come to a reliable determination (more likely for a LHA, LRR or SRR determination)
These situations can be remedied by interpolation, extrapolation, and rental differential or by using information from outside our normal basis. These are broadly similar processes and involve taking lettings information which doesn’t fit the question at hand and taking a view of the missing element from whatever information or trend is available.
In effect all ‘interpolation’ means is coming to a logical conclusion as to a missing value when you have values on either side of it to base your conclusion on. For instance if you know the values of 2 room (£100) and 3 room properties (£110) and 5 room properties (£130) and 6 room ones (£140) you can make an informed valuation of a 4 room one as being somewhere between the value of the 3 and 5 room lettings information, at, say, £120.
Extrapolation is slightly different in that it extends a range based on the trend that the available range suggests. An example of this would be where we had values for 2 room properties (£100), 3 room ones (£110), 4 room ones (£120) and 5 room properties (£130). In such a situation it might be reasonable to conclude that 6 room properties would be around £140 and 7 room properties £150.
These very basic examples of interpolation and extrapolation above assume that we have information from the area in question and that we can use this information to fill in gaps in our knowledge. They are mainly used for property specific determinations as they rely on us having some information from the relevant area to work with; it’s just that we have to read between the gaps in that information.
We can also use the market differential technique to help when there is some lettings information but not of the particular property type in question; in effect this is an extension of interpolation or extrapolation. This involves taking information from a comparable area to the one in question and applying it to the subject area. Instead of using actual rent levels from that area, rent officers will look at how rents differ between different categories of property, and apply those differentials to whatever lettings information is available from within the subject area.
Local Reference Rent and single room rent determinations
This section is about the use of lettings information from outside the Broad Rental Market Area (LRR), or aspirational, or Housing Benefit information.
Whilst the above techniques are useful for property specific valuations, we may be in the situation where we have some information but ideally we’d like more to provide a better perspective for a local reference rent or single room rent determination. The determination of H and L require a body of information to provide a broad overview of the range of the market to enable us to determine where rents become exceptional. Whilst rent officers may have background general knowledge we still have to demonstrate that our determinations are based on market information and to do so we must be able to point to the lettings information used in the determination process. A rent officer estimate may arrive at the right level but it would be impossible to demonstrate that this was an objectively taken decision.
In such situations rent officers can extend either the geographical area of the search or the type of information searched for. It must be stressed that primarily rent officers should endeavour to use confirmed lettings information from the right time period from within the same BRMA(LRR), or within the same ‘locality’ for determinations made on cases with a relevant time prior to 5th January 2009. This may include HB referral data which may be looked at as well to get a full picture of the local market.
There is no set amount of lettings information that must be available for a LRR determination, obviously this will depend on the extent of the BRMA(LRR), its nature, and the category of LRR. Rent officers must take an objective view of the available lettings information and decide whether this is sufficient and representative of the market in the BRMA(LRR). If it is there is no need to extend the search. Where there is not enough information from within normal parameters to come to reliable determinations, and extrapolation is being considered, permission to extend the search must be obtained from a rent officer at band 3 level or above.
Where there is not enough confirmed lettings information on which to base a reliable and supportable determination, and rent officers have to extend the search, there are three principal options for this:
- use of confirmed lettings information from the area immediately adjacent to the BRMA (LRR)
- use of HB referral data from within the BRMA (LRR)
- use of aspirational lettings information from within the BRMA (LRR)
Rent Officers should consider the use of rental information from the area immediately adjacent to the BRMA(LRR) as the most preferable option. They must, however, satisfy themselves that the market and rental values in the additional area are comparable to the BRMA(LRR) in question. One of the most important factors in choosing a comparable area is regional location, so adjacent areas tend to be the most comparable. If different conditions apply, the use of lettings information from the extra area would not be appropriate. However if market conditions are comparable the use of this information should be considered first and foremost.
For certain types of letting it may be necessary to extend the data search to an adjacent BRMA(LRR), and even to a further BRMA(LRR), but it should be noted that when sufficient data is obtained for the determination of a LRR, no additional BRMA(LRR)s should be added and no further data sought.
Generally HB referral data should not be used alone, but may be used to supplement available confirmed lettings information from within the BRMA(LRR). If rent officers are contemplating using HB data from the BRMA(LRR) they should also be using either confirmed lettings information from adjoining areas (preferable) or aspirational lettings information from the BRMA(LRR) (as a second choice), or both, as a cross-check.
Likewise, aspirational lettings information from within the BRMA(LRR) should not be used on its own to supplement the confirmed lettings information. By the very nature of aspirational evidence this would compromise the validity of the LRR as figures that a landlord might reasonably have been expected to obtain.
It may be that rent officers use a combination of all three options if the confirmed lettings information from within the BRMA(LRR) is not sufficient. However it is expected that use of extra lettings information should only be necessary in very few situations as there should be sufficient information available from with the BRMA(LRR) in most circumstances.
Considering extending the area from which to draw the list of rents, the use of extrapolation is permitted for the determination of LHA but only in this exceptional circumstance, described in the amendment Order;
“Where the rent officer is not satisfied that the list of rents in respect of any category of dwelling would contain sufficient rents, payable at the date of the determination for dwellings in the broad rental market area, to enable a local housing allowance to be determined which is representative of the rents that a landlord might reasonably be expected to obtain in that area, the rent officer may add to the list rents for dwellings in the same category in other areas in which a comparable market exists.”
This means that a rent officer may extrapolate by adding to the list of rents drawn from the subject BRMA by including contractual rents from comparable and if possible adjacent BRMAs with similar markets for the property category concerned, so that the list of rents produces an LHA for that category which is representative of the rents which a landlord might reasonably expect to obtain for an open market letting in the subject BRMA.
Each BRMA should, at the point it is constructed, contain sufficient privately rented premises to ensure that in the rent officers opinion the LHA rates they produce are representative of the rents that a landlord should be reasonably expected to obtain in the area. This being the case there should not normally be a need to draw on evidence from outside of the area. What constitutes “sufficient rented premises” is for the rent officer to determine but it will vary according to the characteristics of the area and the category of dwelling. For instance, rural areas may contain few one bedroom shared properties, certainly compared to some urban areas, so the rent officer may decide that a relatively small number of premises represent sufficient shared accommodation.
However extrapolation may be needed in the following circumstances:
- a change in the local rental market so that rent officers have little or no data for dwellings in a category and need time to find more
- the data available to rent offices is unrepresentative, for example pitched at the luxury end of the market or only for properties in a very poor condition; or exceptionally
- when the BRMA is determined by the rent officer, there is no market evidence for a category of dwelling and expanding the area to include such dwellings would conflict with the principle that the area is one within which a person could be expected to live and have access to HERBS facilities
There are management rules concerning when this exceptional process may be triggered (please consult lettings research management) and any LHA produced using such a technique must be approved at rent officer band 3 level or above. The expectation is that this will rarely be required. The preferred and more usual approach will be to carry out intensive research to increase and expand the list of rents in order to ensure that the market in the particular BRMA is properly reflected.
The frequent use of extrapolation for standard property sizes (2 to 4 bedroom) would suggest that the BRMA itself may require a review as it may not satisfy the basic criteria as set out in the Order.
There is no set amount of lettings information in statute that must be available for a LHA determination; obviously this will depend on the extent of the BRMA, its nature, and the category of LHA. Rent officers must take an objective view of the available lettings information and decide whether this is sufficient and representative of the market in the BRMA. If it is, there is no need to extend the search. Where there is not enough information from within normal parameters to come to a representative LHA, and extrapolation is being considered, permission to extend the area from which to draw the list of rents must be obtained from line management at rent officer band 3 level or above.
Where there is not enough confirmed lettings information on which to base a reliable and supportable Local Housing Allowance rate, and rent officers have to extend the search, there are two principal options for this:
- use of confirmed lettings information from the BRMA(s), immediately surrounding the subject BRMA if the market is comparable, or
- if the BRMAs surrounding the subject BRMA are not comparable, use of confirmed lettings from another BRMA where the market is comparable
Rent officers should consider the use of confirmed lettings information from an area with a comparable market immediately around the BRMA as the most preferable option. They must, however, be sure to satisfy themselves that the market and rental values in the additional area are comparable to the BRMA in question. If different conditions apply, the use of lettings information from the extra area would not be appropriate, nor would it be compliant with the amendment Order. Only then, should they consider a BRMA that does not adjoin the subject BRMA.
It is expected that use of extrapolation should only be necessary in very few situations as there should be sufficient information available from with the BRMA in nearly all circumstances. When producing LHAs, extrapolation techniques using data from outside normal parameters is a technique of last resort, and because of that, LHAs impacted by the use of this process must always be signed off by a rent officer at band 3 or above.
- Local Reference Rent
- LHA pages
- Lettings research guidance and management protocols
v 1.7 2017
One of the main tasks of the Housing Allowance Technical Services team is to provide technical guidance to Rent Officers to support the delivery of front line services in our core areas of work. The Rent Officer Handbook is intended to be comprehensive reference material that can be used to find answers and explanations to common questions. However, there will be occasions when this guidance does not cover a particular aspect of your work, so we also provide an email Guidance Helpdesk service. This service is available to all rent officer staff for any questions related to our operational work.
We can be contacted by email at: email@example.com
Email contact is preferred so that we have a record of your question and our reply, but if there is some urgency or the matter would benefit from explanation, advice can be sought by phone.
Housing Allowance Technical Services specialists are the Agency’s recognised technical experts on operational policy and guidance. They have access to reference materials and legal advice, and have close links with other corporate teams and Government departments. Rent Officers are not expected to spend time looking for case law and legislation, or debating issues at length. Our guidance materials should be sufficient to provide answers to most issues. However, the guidance team are available to clarify and explain the requirements of the Rent Officer role consistently and clearly to help Rent Officer teams meet the requirements and expectations of their customers.
This service is not available to members of the public who, if they have any technical queries, should consider contacting their own advisors.
Guidance Helpdesk targets
- We guarantee to answer questions sent to us in writing within 2 working days
- If your case is particularly complex we may have to issue a holding reply within the 2 day period and provide a final and complete answer as soon as possible thereafter
- RO Handbook
The Rent Officers Handbook.
We intend this handbook to be a user-friendly guide to the law, policy and procedures for all rent officers . For ease of access and updating it has been designed as an electronic document. As it is your handbook we welcome any comments about its content or usefulness.
Navigating the handbook
You can navigate this handbook by following the suggested related pages in the text or at the foot of each page.
On the left of each contents page is a search facility. You can type in a topic or cut and paste the related page name from the bottom of the handbook page recently viewed. This will bring up links to other pages and also bulletins mentioning the key words used in the search.
If any further explanation is needed or you are unable to find what you are looking for, please don’t hesitate to contact RO Guidance using the above contact details.
Housing renovation grants
Dealing with housing renovation grants.
Rent officers have in the past provided local authorities with rental valuations for property which was the subject of an application for grant aided improvement or repair works. The rental values we provided were used to determine the level of grant allowed.
Local authorities now no longer have a duty to refer such case work to the rent officer. They now merely have a power to do so. It is both our policy and national government departments’ expectation that we no longer carry out any HRG valuation work.
If any office receives any HRG cases from a local authority, please contact ‘guidance’.
- Informal advice
- Non statutory advice
Informal advice - equivalent fair rents
Dealing with applications for advice about equivalent fair rents.
There are lettings which are excluded from protection under various sections of The Rent Act 1977 where tenants may have tenancies for which the Rent Officer has no jurisdiction to register a “fair” rent, but the parties would like advice on an informal basis as to a “reasonable” rent to charge.
The Rent Officer is, in certain circumstances, able to provide “informal” advice to assist landlords and tenants to come to an informed decision about how much rent should be paid in these circumstances.
Informal Advice is carried out with the same care and valuation practice as any formal or statutory valuation, but it has no statutory standing. The valuation does not influence any future statutory valuation that may be carried out by a Rent Officer in relation to any referral made under The Housing Benefit Regulations 2006, or any application that may be received under The Rent Act 1977 or the Rent (Agriculture) Act 1976.
Rent Officers should only give informal advice where there is, at the time of application, no statutory power to provide a valuation. This would normally be a tenancy which would be excluded from jurisdiction under The Rent Act 1977 or the Rent (Agriculture) Act 1976. Any application for informal advice where there is an obvious statutory power to provide a valuation must be rejected.
The VOA has agreed with The Almshouse Association to provide non-statutory advice for “almshouses”, which would otherwise be excluded from protection under Section 15 of The Rent Act 1977.
Current VOA policy from August 2010 is that only Almshouse applications may be accepted under our Informal Advice arrangements.
An application form has been developed which is available from the intranet site and which must be fully completed by the applicants; the application information will be input onto the Informal Advice section of VICTER by the NSO. The form is designed for applications to be submitted for equivalent fair rent determinations for a single dwelling only. If applicants require determinations for more than one dwelling, a separate form must be completed for each (see ‘Multiple applications’).
Once NSO have input the application, the application form will be scanned onto the VICTER case file and Rent Officers will receive applications under the Informal Advice scheme in their work trays as they do any other case.
It is not envisaged that many cases received under the scheme will need to be inspected, though Rent Officers may arrange to inspect dwellings if necessary and contact details will be provided on the application forms which will be scanned to the case. Extraordinarily, inspection appointments may be made by telephone or in writing. Alternatively it is quite acceptable to use IT applications such as “Google Street level” to perform an external inspection in these cases. The fee payable by the applicant does not entitle them to insist that the property be inspected, and it is anticipated that in most cases an inspection will not be necessary for the rent officer to make their considered determination.
There is no provision within the scheme to offer a consultation process – Rent Officers must not arrange consultations for informal advice applications.
All valuations made under the scheme are to be made following Section 70 of The Rent Act 1977, starting with an open market rent, taking into account the age, character, locality and state of repair of the dwelling, and reflecting any element relating to an excess of demand over supply of dwellings generally within the broad locality, and making a relevant deduction where the tenant has improved the dwelling at their own expense.
Rent Officers must only value as at the date of application. They must not speculate about how the market will be at a future date, or say what a rent will or may be in the future. All valuations must be based on current factual information.
Rent Officers must not provide “speculative” values based on proposed works. For example providing a list of values for a dwelling depending on whether the landlord provides double glazing, or a new bathroom, or central heating, or a new roof, or redecorates some rooms. Valuations must be based on current condition only.
The scheme is currently specific to Almshouses only, and VOA does not provide a free valuation service in competition with private sector valuers and estate agents.
Services and furniture
The rent determined under the scheme should exclude any amount attributable to services or furniture.
Maximum fair rent
The Rent Acts (Maximum Fair Rent) Order should not be applied to any valuation under this scheme.
There is no provision in the scheme to provide any objection or “appeal” process. The valuation given is informal and has no legal standing. The parties are free to agree a different rent to that advised by the Rent Officer.
There is a facility on V4 to produce an Informal Advice decision and include standard text.
Rent Officers should complete the relevant field, which will be “equivalent fair rent”, and include the relevant valuation disclaimers to appear on the decision notice.
Rent Officers may receive an application completed with more than one address, asking for multiple valuation decisions for various addresses. The agreed protocol in such circumstances is for NSO to input the case against the first address only, and for the Rent Officer to carry out a rental determination on the first address only. These applications are processed by VOA for a set fee payable for each determination provided. A standard phrase should be used in the limited remarks section on the determination notice to read;
“This rent is for the address above only; applications for other addresses will attract the same £18 fee as that charged for this determination.”
As this is informal advice the applicant almshouse charity is free to use the information as they see fit, including applying for rent determinations for beacon properties and establishing their licence fee structure based on sample equivalent fair rent valuations, rather than applying for every address to have its own bespoke rental determination.
- Jurisdiction – what isn’t a regulated tenancy
- Locality – fair rents
- Regulated tenancy
- Valuation – market rent start point
Inspections - measuring standard
Measuring standards to adopt when inspecting dwellings.
There is no requirement for rent officers to draw floor plans of any property they visit under their statutory responsibilities, and it is not normally necessary to do so. Rent officers would normally only draw a sketch plan and categorise the accommodation as small medium or large.
In the exceptional cases where a dwelling is to be accurately measured and a scaled plan drawn the expected approach is given below.
For residential properties the agency policy is to use the following method of measurement:
- For houses and bungalows Reduced Covered Area (RCA)
- For flats and maisonettes Effective Floor Area (EFA)
Measuring Houses and Bungalows RCA: This is the term that is used within the VOA; it may be known as the Gross External Area (GEA) outside of the VOA. The RCA includes:
- All the area covered within the external walls, measured externally
The RCA excludes (ie it is the covered area reduced by):
- eaves overhang
- open balconies
- covered ways and external passages
- unconverted loft areas
- attached and integral garages
- washhouses and fuel stores/coal bunkers
- conservatories and porches
- any extension of a temporary nature or of significantly inferior quality to the main dwelling
Whilst excluded from RCA, individual additions such as those asterisked above should be measured and shown separately. Internal areas with a head height of below 1.5m are excluded (other than areas under stairs) but a notional wall thickness is added to each dimension before calculation of areas to maintain consistency e.g. in chalet bungalows or loft conversions with sloping ceilings.
All areas should be measured, including bays. Porches over 2.5 sq m should be recorded, along with conservatories and any permanent outbuildings. Garden sheds and greenhouses need not be recorded.
Measuring flats and maisonettes
EFA: Effective Floor Area is the useable area of the rooms within a dwelling measured to the internal face of the walls of those rooms. It will not differentiate between structural and non-structural partitioning of rooms.
The EFA excludes
- hallways, landings and passages (regardless of whether enclosed by structural or non-structural partitions)
- cupboards opening off excluded areas
- columns, piers, chimney breasts etc
- all areas with a headroom less than 1.5m
- areas covered by stud walls and partitions
EFA includes the area occupied by fitted units or built in cupboards within measured rooms. It also includes the area of walk in storage areas, accessed from within the dwelling equivalent to small box rooms.
- The mid point of a party wall will be the correct dimension
- Bays that include floor area should be included
- Open porches and enclosed porches under 2.5 sq m can be ignored
- Conservatories and larger enclosed porches measure separately
- Garages and large outbuildings measure separately
- Greenhouses and basic garden sheds ignored
Measuring loft conversions, with sloping ceilings, making adjustments for wall thicknesses
Calculating EFA and RCA of a room in the roof
Internal measurements only are possible which will give EFA, all areas under 1.5m being excluded. Therefore an addition on each dimension for notional wall thicknesses will be applicable in a house to adjust to RCA
Therefore: 2.50x 6.70 = 16.75
Plus dormer (because no low headroom at this point) 0.50 x 1.10 = 0.55
Total EFA = 17.3m2
If a house, it is necessary to calculate RCA, not EFA (which would apply to a flat) so therefore the wall thicknesses should be added to the dimensions before calculating as follows:
- Cavity external walls ……add 28cm for each wall
- Solid external walls………add 23cm for each wall
- Internal walls ……………..add 11cm for each wall
Basements: where a basement area is finished to the standard of the main house accommodation, so as to include it in the RCA, notional wall thicknesses should be added.
Measuring a flat to EFA
- Inspections - practice
- Inspection criteria
Judicial Review guidance
Dealing with applications for the judicial review of Rent Officer decisions.
This guidance is intended to be an uncomplicated introduction to the subject of judicial review (“JR”). It is not meant to be exhaustive, nor is it intended to constitute formal legal advice.
If you are in doubt about what to do, especially if JR is actually mentioned by another party, you must refer the case at once to the HA Professional Services Team (“Guidance”). There are strict protocols to be observed together with stringent time limits in relation to the early stages of any JR claim. Our ability to defend a JR claim or to reach a satisfactory outcome will depend in large measure on the time we have available and our ability to produce an effective initial response.
It is therefore never too early to let Guidance know of any concerns you might have about a potential challenge.
2. What is JR?
JR is the name given to the process by which the lawfulness of decisions made by public bodies or statutory officers may be examined by the High Court on behalf of a person affected by the decision concerned or by a recognised representative organization or pressure group. These decisions are sometimes referred to as public law decisions.
The following are examples of public law decisions made by the Rent Officer:
- Housing Benefit determinations
- HB redeterminations
- Setting LHA rates
- Decisions regarding BRMAs
- Fair rent registrations
- Fair rent jurisdiction decision
- FOI/DPA decisions
3. When can a Rent Officer’s decision be challenged?
Not all public law decisions can be challenged by way of JR. JR is only available where there is no formal or statutory right of appeal or when all such appeals are exhausted. The impact of this rule should be looked at in the context of the Rent Officer in relation to: (a) Housing Benefit (HB), (b) Fair Rent and (c) Freedom of Information/Data Protection (FOI/DPA).
(a) Housing Benefit
An HB determination cannot be challenged by JR, as there is a right to as many as three redeterminations. Only a final redetermination (either a second or third redetermination, depending on whether the local authority or the HB claimant requested the first redetermination) can be challenged by way of JR.
However, as there is no formal or statutory challenge mechanism established in relation to the setting of an LHA (Local Housing Allowance) rate or a decision in regard to the setting of an LHA related Broad Rental Market Area (BRMA), those decisions can be challenged directly by way of JR.
(b) Fair rent
There can be no challenge by way of JR to the amount registered by the Rent Officer as a fair rent. Such an appeal lies by way of an objection to the First-tier Tribunal (Property Chamber), formerly the Rent Assessment Panel. It used to be the case that a dissatisfied landlord or tenant had a limited right of appeal against a Panel decision by way of JR before the High Court. This is no longer so. Although the grounds of appeal are slightly enlarged, an appeal from a decision of the First-tier Tribunal (Property Chamber) lies not to the High Court, but to the Upper Tribunal (Lands Chamber).
A Rent Officer’s decision to decline jurisdiction (save in the most unusual of circumstances) cannot be challenged by way of JR. In virtually all cases, jurisdiction is declined in relation to the status of the purported tenant or the status of the tenancy. By section 141 of the Rent Act 1977, all disputes concerning the status of a prospective tenant or the status of a tenancy fall to be decided in the county court.
In broad terms, all that may be challenged in relation to a Fair Rent decision is the process that was followed by the Rent Officer, not the valuation itself.
(c) FOI / DPA
Decisions made by the Rent Officer in relation to requests made under the Freedom of Information Act 2000 or the Data Protection Act 1998 cannot be challenged by way of JR. Under these acts, a challenge to a decision must be made to the Information Commissioner. Moreover, a challenge to a decision made by the Information Commissioner lies not by way of JR but to the First-tier Information Tribunal and then to the Upper Tier Information Tribunal.
4. How long does a party have to issue a JR challenge in court?
The Civil Procedure Rules provide that a party has a maximum of three months to bring a claim. If, without compelling reason, a claim is brought outside of the three-month limit it will be likely to be struck out. In addition, a party is expected to act promptly in any event. Accordingly, where there is an unjustified delay, a claim may still be struck out even when it is issued within three months of the date of the public law decision under challenge.
It should also be noted that the time limit for bringing a claim cannot be extended by agreement between the parties.
5. In which court should a JR claim be issued?
As the name suggests, a challenge to a public law decision is a public law matter and must only be brought in the Administrative Court of the High Court. It is an abuse of process for a claimant to bring a JR claim in any other court.
6. What are the grounds for bringing a JR claim?
It is well established that the three grounds for bringing a JR claim are:
- procedural impropriety
7. What is illegality?
Illegality can include (a) ultra vires, (b) improper purpose, (c) relevant or irrelevant considerations, (d) lack of evidence and (e) failure to exercise a discretionary power. When illegality is alleged, it is often made up of two or more of the above elements.
(a) Ultra vires
When a decision is made ‘ultra vires’, it means that the decision maker has gone beyond its powers. Where illegality in the form of ultra vires is alleged, the court will be concerned with whether the Rent Officer acted wholly within the powers granted by statute, most commonly, the Rent Act 1977 and the Rent Officers (Housing Benefit Functions) Order 1997.
In other words, the Rent Officer must ensure that the extent of the jurisdiction adopted and the steps taken to reach a decision have a proper statutory foundation.
(b) Improper purpose
A public law decision will be tainted with illegality if the decision maker has exercised a power for a purpose for which it was not intended. In the case of the Rent Officer, care should be taken to ensure that a decision or a step in making a decision is not made in order to penalize a party for its conduct or to promote a political or moral view. Although it may seem obvious, a decision may not be made in order to gain an unauthorized financial advantage.
(c) Relevant and irrelevant considerations
In reaching a decision, a decision maker must take into account relevant matters and discard any matters that are irrelevant. Where relevant considerations are set out in the applicable legislation e.g. the HERBS test for determining a BRMA(LRR), any deviation will render the decision invalid.
(d) Lack of evidence
A decision must be based solely on the facts before the decision maker. For example, a Rent Officer cannot base a decision on the highest or lowest rent that a landlord might obtain on a figure taken from a range of rents for which there is no evidence. Put another way, although a Rent Officer might be certain that a particular range of rents exists in the market, without actual market evidence that can be produced to the court a decision based on that belief would be open to challenge.
(e) Failure to exercise a discretionary power
This is sometimes referred to as illegally fettering one’s discretion. In other words, where a Rent Officer has discretion to take a particular step or not, the decision whether or not to take that step must be made with an open mind and should not be based on a rigid policy.
8. What is irrationality?
The Rent Officer is afforded a wide discretion by the courts. It is the view of the courts that the Rent Officer is an expert valuer whose valuation decisions are rarely, if ever, called into question. However, a decision must never be made which is so unreasonable that no rational person could ever consider making it. This is often referred to as Wednesbury unreasonableness.
In broad terms, irrationality operates in two ways.
The first is where the decision maker could not reach a rational decision on the information available. For example, it would be wholly irrational to decide without providing good reason that the highest weekly rent that a landlord could obtain was £350 when the comparable market data available showed a high point of £300.
The second is where the decision maker could not rationally proceed to reach a decision in the absence of sufficient data. For example, it would be irrational to reach a valuation before or without obtaining sufficient market data, or explaining the absence of comparable data and the extrapolation or interpolation methods relied upon.
9. What is procedural impropriety?
Procedural impropriety means a breach of natural justice. This can occur in several ways, namely: (a) bias, both pecuniary and personal, (b) the right to be fairly heard, (c) the right to be given reasons and (d) legitimate expectation.
A decision maker may not make a decision in relation to matters in which he or she has a personal interest or might be seen to have a personal interest. The two main areas are pecuniary and personal bias.
(i) Pecuniary bias
A decision maker is not permitted to have a financial interest in the outcome of the decision. It is therefore obvious that a Rent Officer must not determine an eligible rent or a fair rent in relation to a property in which that Rent Officer has an interest, whether directly or indirectly, for instance carrying out a determination in regard to a property owned or occupied by a Rent Officer’s family member or friend.
(ii) Personal bias
A decision maker must not view one side more favourably than the other. The Rent Officer must avoid treating a party more or less favourably due to that party’s membership of a particular group.
(b) Right to be fairly heard
All parties to a public law decision have the right to be heard fairly. The parties to a Rent Officer decision are entitled to have advance notice of all of the information that might be used in reaching a decision, including a right to respond. Especially in relation to Fair Rent determinations, the Rent Officer must ensure that the parties have proper and adequate notice of any hearings or consultations.
In addition, the parties have a limited right to have legal representation. The right in relation to Rent Officer decisions is qualified and will depend in part on the seriousness of the consequences of a decision, whether any complicated arguments will be raised and, most importantly, the ability of a party to present their own case.
In regard to Fair Rent determinations, the potentially serious consequences of a rent increase, the complexity of the decision making process and the demographics pertaining to tenants, it is recommended that Rent Officers make every reasonable effort to accommodate a request for representation by being as flexible as is reasonably possible in relation to the scheduling of hearings and consultations.
(c) Right to be given reasons
The parties have a right to be given reasons for the decision maker’s decision. In regard to the Rent Officer, this right will extend to Fair Rent jurisdictional hearings.
The duty to give reasons extends to all Rent Officer decisions where reasons are requested. A failure to provide written reasons, even where it has been reached correctly, can render a decision susceptible to challenge by way of JR.
Please note that Guidance will be happy to assist any Rent Officer in the drafting of written reasons. It is very often the provision of full and cogent reasons that brings a challenge to an end.
(d) Legitimate expectation
Where a decision maker has indicated both clearly and unambiguously that he or she will act in a particular way, either because of an established previous practice or by way of an express promise, it may be unlawful to fail to do so. In relation to Rent Officer decisions, care must be taken so that promises and assurances are not given about the outcome of a determination that has not yet been made.
10. What remedies are available?
If a JR challenge is successful, one or more of the following orders can be made:
(a) Quashing order
A quashing order nullifies or cancels the decision under challenge. For example, if a court finds that a final redetermination has been made unlawfully it can make a quashing order that effectively revokes the decision.
(b) Mandatory order
A mandatory order will be made when a court requires a public body or public official to do something, for example, to make a statutory decision. It is of course unlikely, but a court could make a mandatory order if the Rent Officer was to fail, without lawful reason, to process a Fair Rent application.
(c) Prohibiting order
A prohibiting order will be made if a court wishes to prevent a public authority or public officer from doing something that it considers unlawful. For example, a landlord could conceivably obtain an order from the court preventing registration of a fair rent where the court considers that the Rent Officer may not or does not have jurisdiction.
The court will make a declaration, also known as a declaratory order, when it wishes to state as a matter of record that a public act or decision is or would be unlawful. This might occur if the court disapproved of a particular Rent Officer practice, for example, the method used to determine BRMAs.
JR is unavoidably complex and can be very costly. Judges may award costs to either side. There are many ways in which a dissatisfied party can seek to challenge a Rent Officer’s decision. If you are in any doubt about the legality of a particular step or the reasons for a decision, or if a JR challenge is mentioned by a party, even in passing, you should not hesitate to seek the advice and support of Guidance.
- Housing Benefit determinations pages
- Redeterminations pages
- Broad rental market area
- Local Housing Allowances
- Fair rent jurisdiction
- Fair rent objections
- Natural justice
- Extrapolation / Interpolation
Risks to staff and warning markers
Rent Officer Safety
The VOA (in common with all employers) is duty bound to ensure as far as is practicable that it provides a safe working environment for all staff. In order to achieve this in relation to Rent Officer activities such as inspections and out of office consultations the following procedure has been put in place. It is essential that this procedure is followed in order to ensure your safety and the future safety of your colleagues.
Health And Safety Procedures
If you are involved in an incident, you should always follow the Health and Safety policies guidance on reporting Accidents/Incidents and Near Misses. Under these procedures, incidents must be formally reported, and there is a form to use to do so (VO 9769). These and other forms are available from the ‘Health and Safety’ section of the intranet.
Your personal safety and the safety of your colleagues is paramount. For that reason, all staff must ensure that all of the procedures set out below are properly followed.
Recording PVP Markers and Risk Type
VICTER has the facility to add important notes to cases using the Person Validation Process (PVP) markers. You must use the PVP marker in order to alert staff that there is a potential risk.
The PVP markers are available in 4 colours and should be used for alerting staff to risk in the following ways:
|Risk Level||Marker Colour||Risk Type||Comment for case notes||Circumstances|
|High Risk||Red marker||Actual or attempted physical assault (This marker may also be used where customers have special accessibility requirements – see handbook page on Equality Act.)||“High Risk to staff identified by VOA”(or recording a “Customer with accessibility requirements”)||There will be a recorded incident including actual violence. A line manager may decide that an inspection cannot safely take place. If an inspection is essential, guidance should be sought from the RO.guidance helpdesk about arrangements to facilitate a safe inspection.|
|Medium Risk||Yellow marker||Abusive behaviour, including threats of physical violence||“Medium Risk to staff identified by VOA”||There will be a recorded incident of threats of violence or abusive behaviour. A line manager may decide that the Rent Officer should be accompanied on the inspection and they should telephone a colleague from outside the property before the visit starts and telephone the same person once the inspection is completed.|
|Low Risk||Blue marker||Unpredictable behaviour causing a fear an assault or uneasiness||“Low Risk to staff identified by VOA”||There will be a recorded incident of behaviour that has unsettled a member of staff and made that person think that their personal safety was at risk. The line manager must assess with the Rent Officer what the level of risk is, and any arrangements that should be put in place.|
|Unspecified Risk||Blue Marker||An unparticularised allegation received from another Public Body||“Unspecified risk to staff identified by a third party”||There will be no recorded details of the type of behaviour previously experienced. A line manager may proceed with caution and should at least determine that any visit made should be accompanied.|
If a member of staff is assaulted, threatened with violence, verbally abused or made to feel in any way uncomfortable by anyone in the course of their work they must:
first, make a written note (in the form of a Personal Risk Warning Marker, which is a word document found on the forms and letters page of the intranet) describing the incident in detail and the names of all the people involved
secondly, refer the incident and their note to their line manager
The line manager must next decide whether the incident is serious enough to deserve the application of a Marker. When making this decision, the line manager should take into account the nature of the incident, whether there was actual violence, the seriousness of any threats made and the likelihood of there being any risk to staff in the future.
If the line manager decides that a Marker is appropriate, the risk must be recorded on VICTER (by using the PVP check box which produces the appropriate coloured marker on the case) and in case notes by the Rent Officer or staff member concerned, using the specific wording set out above (Comment for Case Notes column).
The Personal Risk Warning Marker containing particulars of the incident must also be attached to the case on VICTER. In addition, further details can be recorded in the ‘case notes’ box in VICTER. In doing so, staff must avoid making pejorative, subjective or derogatory comments about the person concerned.
Completion of this process must be reported back to the line manager and circulated to colleagues who could potentially come into contact with the property or individual concerned.
In certain circumstances the Information Commissioner’s Compliance Advice is that the individual should be informed in writing that we have made such a file marker referring to them. However we have a certain level of discretion in this area if there is a potential for such written notification giving rise to further incidents, so before issuing such a letter you should contact RO.guidance for case by case advice.
Sharing Information about Risks
Line Managers should consider whether the individual could present a real risk to other VOA staff as well as staff at the Housing Benefit department or another organisation. If so the line manager should inform appropriate line manager colleagues, or the liaison officer at the Housing Benefit department by telephone. The passing on of such details must only happen on a case by case basis and where there is a credible risk to staff.
If requested by the Housing Benefit liaison officer the line manager may provide objective details of the incident which led to the individual being identified as presenting a risk.
Information From Other Sources
When we are told by another Public Body (for example, a local authority or Job Centre Plus) that an individual is a risk the information should be recorded immediately and factually on VICTER by the line manager for the area concerned. Where there are no available details, the risk should be recorded on VICTER by using the PVP check box as described above, as an unspecified risk.
Where additional details are available, the line manager must decide whether the incident is serious enough to deserve the application of a Marker at medium or high levels. Additional factual information including details of the incident that led to the Public Body classifying the person as a risk must be scanned to the VICTER file if available.
If a Public Body is refusing to pass on information about an individual or property that it has identified, the line manager should contact RO.Guidance by email for further advice.
Arranging Visits Where A Marker Is Present
It is essential when a decision has been made to inspect a property (or carry out an out of office consultation) that a Rent Officer checks VICTER specifically to identify whether a Marker exists. If it does, the inspection must be referred to the line manager, who in turn will determine the level of risk with that Rent Officer in order to ascertain whether the inspection should go ahead, and if it should, what safe working precautions should be taken, considering the Circumstances column above.
It should be stressed that staff have unlimited access to the RO.guidance helpdesk in order to assist in carrying out a risk assessment and that every case must be considered very carefully on its own facts. It should also be added that the ultimate decision on whether to inspect should be based on the criteria set out above, and not on the availability of resources.
Finally, after completing a visit to a property/individual in respect of which a Marker exists, the Rent Officer must produce a written note (in the form of a word document) that gives a detailed account of what happened, which in turn must be referred to the line manager. There are two reasons for this.
- first, it will stand as a record of the visit in relation to the person’s behaviour on that occasion and the success or otherwise of the safety arrangements made
- secondly, it will assist the line manager in deciding whether to alter or remove an existing Marker
Data Protection, Retaining Data And Keeping Markers Under Review
Markers should not be retained longer than necessary. It is important to decide how long an individual will remain a threat and ensure that people are not identified as presenting a potential personal risk when no threat remains. This must be balanced against the duty of care to staff and if there is doubt the Marker should be kept on the file.
Rent Officers have information retention guidance (see the Rent Officers handbook page) which explains criteria and timescales for keeping operational files. Information from VICTER will be archived automatically so no further action by ROs is required.
We are not obliged to notify a person against whom a Marker is attached. File notes that are made in good faith and which relate to the elimination of harm to our staff are exempt from disclosure under the Data Protection Act. If you receive a ‘subject data request’ under the DPA for an individual to see the file including the file note referring to them, then please contact RO.guidance on a case by case basis for advice.
- Information retention
- Data Protection Act and access to information held on office files
- Equality Act – making our service as accessible as possible
Quality control / Assurance
Quality control and assurance processes.
Rent officer teams are committed to providing a high quality service to all our customers and stakeholders.
Rent officers must comply with the statutory requirements laid down by the relevant legislation relating to their role: The Rent Officers (Housing Benefit Functions) Order 1997 as amended for Housing Benefit work, including Local Housing Allowances, and The Rent Act 1977, Rent (Agriculture) Act 1976 and The Rent Act (Maximum Fair Rent) Order 1999 for ‘fair rent’ work. Additionally they must be able to explain and justify any decision they make.
The Legal Advice and Guidance team provides content for the Rent Officers’ Handbook to assist all rent officer teams to carry out their role in accordance with established best practice, the relevant legislation and current case law.
Valuation Team Managers (VTMs), Lettings Research Managers (LRMs) and Review and Assurance Managers (RAMs) are also appointed as rent officers but have the additional role of managing a team and ensuring that quality and consistency of decision making within their teams is of the highest standard and compliant with the statutory requirements and best practice, as detailed within the Handbook.
Valuation Team Managers carry out random sample checks of rent officers’ work in accordance with agreed quality procedures, and to comply with audit requirements. Rent officers may be asked to explain and justify their decisions as part of these procedures.
Managers should ensure that all staff comply with the Handbook guidance and where discrepancies are found, should address the issue directly with their team so that corrective action may be taken against incorrect practice. Where necessary a training issue may be raised with the Guidance team, which includes the Learning Co-ordinator for rent officer teams, and also provides technical training workbooks and workshops, or in conjunction with HR Learning.
Any member of staff may ask for clarification of current guidance or ask for assistance with an individual case by emailing the RO Guidance Helpdesk
The Guidance Helpdesk will monitor all enquiries and raise any training issues through the appropriate management structure to assist the maintenance of the highest standards of valuation practice.
- RO Handbook
Recording repair standards consistently following dwelling inspections.
The Housing Benefit Worksheet requires information relating to the condition of repairs, decoration, the kitchen and the bathroom/wc. This information is graded: G; S; F; P, and should be used to describe the condition as described below:
Good Repair (G) The dwelling is in good structural and decorative repair for its age, character and locality. It is at or above the usual standard for the type of dwelling in the locality and all fixtures, fittings and furniture will be of good quality, in working order and well maintained.
Satisfactory (S) The dwelling is in average decorative repair for its age, character and locality. There are no obvious structural defects. It is at or slightly below the usual standard for the type of dwelling in the locality. All fixtures, fittings and furniture are usable and in working order. Some minor decorations or repairs may be needed.
Fair. (F) The dwelling is in below average repair for its age type and locality. It needs decoration or minor repairs, but it is habitable. Fixtures, fittings and furniture are dated but functional, but possibly near the end of their useful life.
Poor (P) The dwelling is very obviously in a poor state of repair, regardless of age, type or locality. There is the need for extensive decoration, refurbishment or structural repair. There is probably a history of neglect and some parts may not be habitable. Some standard amenities may be lacking. Some or all of the fixtures, fittings or furniture are unuseable. Most people would not wish to live in a dwelling in this condition , may be difficult or impossible to let on the open market. This condition of property would not normally be offered by to let by main letting agents.
Any member of staff may ask for clarification of current guidance or ask for assistance with an individual case by emailing the Guidance Unit Helpdesk.
The Guidance Unit Helpdesk will monitor all enquiries and raise any training issues through the appropriate management structure to assist the maintenance of the highest standards of valuation practice.
Dealing with different rooms in dwellings.
Deciding what constitutes a room / bedroom
There are no statutory definitions of what constitutes a room or bedroom, so a plain English meaning should be taken.
A bedroom is a room where someone usually sleeps, however they may also use it for other activities such as working. A living room is a room for sitting or eating or watching the television. Sometimes one can be used as the other, and in general lettings can take different forms depending on the nature of the locality and the type of tenant either in occupation or being targeted by a landlord.
Under the Housing Benefit Scheme, rent officers treat bedrooms and rooms suitable for living interchangeably, Local Reference Rents are based on total number of habitable rooms (bedrooms and living rooms, but including dining rooms, some conservatories and living kitchens.
Under the Local Housing Allowance Scheme, the LHA is based on numbers of bedrooms alone. Therefore it will be vital when collecting lettings information to understand precisely how the property is being let to ensure the lettings information is used correctly and not to distort the LHA.
For example a 3 bedroom, 2 living room property may be let as 3 bedrooms to a family, but in a student area may be let as 5 bedrooms with each living room being let as a bedroom. The rent for each type of letting could vary considerable. In the latter case the 5 bedroom letting would be included in the LHA evidence for 5 bedrooms, but if let to a family, would be included in the 3 bedroom evidence.
For LRR purposes, the letting in both instances would be included in the 5 room LRR category.
The simple test to apply is, for this type and size of property in this or a similar area, how has the property been let, and how do occupants use the accommodation? The size of the room is irrelevant. A room that would never be thought of as a bedroom or living room in a large country house might well be perfectly acceptable to most people, for those same uses, in an expensive, densely populated city.
The following guide may be helpful:
- Dining / kitchen
A large farmhouse-style kitchen probably is a living room. A small galley kitchen probably isn’t.
Otherwise, it will depend on the way the occupants use the room and what is the norm for use in that area.
For example, a kitchen which has a distinct dining area with a table and chairs and perhaps a different floor covering may well be considered a living room. But it is a matter of a Rent Officer’s skill and judgement that matters, not the firm application of any definite criteria.
- Boxroom / study
Do most occupants in this type of dwelling use either of these as a living room or a room to sleep in? If they usually do, they should be included as appropriate.
An indicator that a room can be used as a bedroom could be that at least a small single bed will fit into it, and in most cases it will have a window. Again, the application of a Rent Officer’s skill and judgement is the over-riding determining factor.
- Cellars / loft spaces with no ceilings / utility rooms
Are unlikely to be bedrooms or living rooms.
There are a number of things such as natural light, ventilation, safe access, head height and floor space which you can take into account, but not depend on.
The over-riding deciding factor is always how most people use the type of room in question in that area.
- Through rooms
Two former living rooms knocked into one become one room.
If there are substantial dividing doors actually in place, or only a very narrow door-width access between the two, and the space is used as two rooms, then they should be counted as two rooms.
The original layout of the dwelling is irrelevant and should not be considered.
- Lettings information guidance
- Determinations - Local Reference Rent
Equality Act – making our service as accessible as possible
We are required to reasonable adjustments for any customer with accessibility needs, for example by providing correspondence in large print or by email where a customer requests it.
It is important that we record a customer’s accessibility requirements and vital that we then act on those requirements to meet our obligations under the Equality Act 2010.
Dealing with a request from a person with accessibility needs
The Equality Act 2010 places a duty on public bodies to consider the needs of all individuals in our day to day work – including how we deliver services to our customers. It encourages us to understand how different people will be affected by our activities so that the services we provide are appropriate and accessible to all and meet their needs.
Dealing with all cases on VICTER
NSO and Rent Officers must always review case notes in VICTER to read anything that is important to the case. This is of utmost importance when the address bar on the case is highlighted red, which might indicate that the customer has accessibility requirements.
Make sure the Rent Officer, the Rent Officer Manager and NSO are aware of these customer’s needs.
Any case note of this type applies to a current case, but also applies to any future cases until we are advised differently.
How to deal with a request from a customer with accessibility needs
When we receive a request from a customer with accessibility needs requesting an adjustment to how we deliver our services, most likely to how they would like us to communicate with them, it is essential that we follow these steps:
The person receiving the request must:
1) Contact NSO (HA) manager to check that the request can be accommodated. If the request is more complex, e.g. a customer requires communications in Braille, NSO will liaise with the Customer Services Team to seek additional support and advise the person raising the request accordingly.
2) Respond to the original request in the customer’s required format.
3) Complete the Customer with Accessibility Needs Proforma (CANP) to record the specific requirements and email this and the original request from the customer to the HA Central Support Team (CST). CST will retain a copy and update the Customer with Accessibility Needs Log (CANL). This is important so that we can make sure that any future communications meet the customer’s needs.
4) Attach a copy of the completed CANP to the VICTER case.
5) Raise a High Priority (RED) PVP case note against the VICTER case [see ‘How to’ guide] referring to the attached CANP and detail the customer’s special requirements in the note.
6) Any further dealings on the case should ensure the customer’s accessibility needs are accommodated, any actions taken are logged using case notes, and any additional correspondence is saved to the VICTER case.
Where NSO receives a request:
7) If NSO receive the request they should follow the steps outlined above, and email the allocated Rent Officer and their line manager explaining the customer’s accessibility needs.
Where a Rent Officer receives a request:
8) If a Rent Officer receives the request they should follow the steps outlined above, and email their line manager and the NSO explaining the customer’s accessibility needs.
A customer requests that we email all correspondence because they cannot read hard copy correspondence.
- Remove any system generated hard copy correspondence from the print queue.
- Produce a copy in a format that is readable by the customer (the format they have requested) and, in this example, email it to the customer.
- Produce any non-system generated correspondence (e.g. a reply/forward to a letter) in a format that is readable by the customer (the format they have requested) and, in this example, email it to the customer.
- Allow for any delays involved in meeting the customer’s needs, such as extra time to give the parties the opportunity to request a consultation.
- Attach a copy of any documents produced to the VICTER case.
- Record a case note of every action taken including the time, date and format of any communication sent.
Rent Officer Managers
CST will check for open cases that have a RED flag against them using a new report. When CST discover an open case that has a RED flag they will email NSO, the allocated Rent Officer and the Line Manager to make sure all are aware of the case.
Line Managers must monitor the case and liaise with the Rent Officer and NSO to meet the customer’s accessibility needs and check that all actions are logged correctly against the case.
Rent Officer Managers must report any cases that have a RED flag in their monthly reports.
- Potentially Violent People