The enforcement lottery: criminal prosecutions and local authorities

Introduction

There are a significant number of statutory obligations that landlords have to follow in the private rented sector. Many of the 168 pieces of legislation that cover the PRS give local authorities significant powers to enforce against the small number of criminal landlords who do not meet their legal obligations. 

However, the enforcement of these regulations has proven challenging in the past. Local authorities have the powers, but lack sufficient resources to make proper use of them. As a result, while most landlords provide good quality homes and follow the rules, those that don't are not always appropriately sanctioned.

The introduction of civil penalties was intended to at least partially address this. Being able to raise funds by issuing civil penalties and then using it for future enforcement was intended to increase the scope for enforcement; allowing local authorities to increase their staff and pursue a broader enforcement strategy. As a result we would expect to see civil penalty usage leading to increases in other forms of enforcement such as criminal prosecutions.

Aims and methodology

The purpose of this paper is to assess whether local authorities are adequately fulfilling their duties by making appropriate and widespread use of criminal prosecutions against the small number of criminal landlords in the sector.

To do this, the NRLA sent out a series of freedom of information requests to local authorities. This freedom of information request asked each local authority to provide the number of successful prosecutions each year for a number of offences related to either property standards or the management and licensing of houses in multiople occupation. These were offences related to -

• The service of an abatement notice ss.79-82, Environmental Protection Act 1990
• Failure to comply with management regulations in respect of Houses in Multiple Occupation, section 234 of the Housing Act 2004
• Prohibition Orders relating to category one hazards, ss.20 of the Housing Act 2004
• Prohibition Orders relating to category two hazards, ss.21 of the Housing Act 2004
• A criminal offence under section 72 of the Housing Act 2004 (operating without an HMO Licence).

This paper is the second in a series of paper looking at local authority enforcement measures, with the first paper focused on the use of civil penalties by local authorities in England. It analyses the results of this freedom of information request.

Key findings

• Enforcement remains low across England. 67% of local authorities in England had not successfully prosecuted a landlord in the last three years for any of the five offences. In contrast, 130 local authorities (47%) had issued a civil penalty in the last three years.
• Three local authorities are responsible for 38% of all of the reported criminal prosecutions. Two of these ‘super users’ did not operate a selective or additional licensing scheme. The third had a licensing scheme in place for a portion of the last three years.
• 61 (22%) of local authorities have successfully prosecuted at least one private landlord for a breach of the HMO management regulations in the last three years.
• 19% of councils in total have prosecuted a private landlord for operating without an HMO licence, with 242 offences successfully prosecuted over the last three years.

Key recommendations

• Evidence suggest that local authority enforcement tends to be slanted to one form of prosecution; likely due to insufficient funding for training or staffing. The NRLA recommends providing local authorities with the necessary funding to recruit and train staff to carry out prosecution activity when the need arises.
• Enforcement strategies must be able to show they are working. To ensure this is the case the NRLA recommends that local authorities be required to publish the results of their formal and informal enforcement on an annual basis. This can then be used to identify good practice and, where necessary, justify additional spending to enhance local authority enforcement.