The government has recently announced that it intends to bring into force a number of provisions contained within the Housing and Planning Act 2016 including banning orders.

From 6 April 2018 the Act will allow local authorities to apply for a banning order where a landlord has been convicted of a ‘banning order offence.’

What is a banning order?

A banning order will ban a person from:

• letting housing in England,
• engaging in English letting agency work,
• engaging in English property management work, or
• doing two or more of those things.

The banning orders will operate whether a landlord acts on their own behalf or via a corporate body.

What offences might prompt an application for a banning order?

The following offences are capable of triggering an application for a banning order as they are banning order offences:

Any offence involving:

• fraud
• the production, possession or supply of illegal drugs
• violent and sexual offences

will be appropriate banning order offences subject to there being a link between the property being rented out and/or the tenant/household.

The offences below (subject to there being a link between the property being rented out and/or the tenant/household) are also on the list of banning order offences:

• An offence under sections 327-329 Proceeds of Crime Act 2002.
• An offence under sections 2 or 2A Protection from Harassment Act 1997.
• An offence under sections 30 or 48 Anti-social behaviour, crime and Policing Act 2014.
• An offence under sections 7, 9, 21 or 22 Theft Act 1968.
• An offence under sections 1(1) or 2 Criminal Damage Act 1971.
• Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977.

Offences under the Housing Act 2004 that will trigger banning orders

Unsurprisingly, any of the following offences under the Housing Act 2004 are also relevant offences for banning orders:

Failure to comply with an Improvement Notice

Offences in relation to licensing of Houses in Multiple Occupation (HMOs);

Offences in relation to licensing of houses under Part 3 of the Act;

Allowing a HMO that is not subject to licensing to become overcrowded;

Providing false or misleading information.

Failure to comply with management regulations in respect of HMOs;

An offence under the Health and Safety at Work etc. Act 1974 where a person contravenes section 36 of the Gas Safety (Installation and Use) Regulations 1998;

Failure to comply with a Prohibition or Emergency Prohibition Order under sections 20, 21 and 43 of the Housing Act 2004;

An offence under section 32 of the Regulatory Reform (Fire Safety) Order 2005.

Can a landlord argue against the making of a banning order?

Yes, you can make representations both to the local authority before the making of the application and to a tribunal if proceedings are commenced.

There are the following protections for landlords facing applications for banning orders:

Before applying for a banning order the authority must give the person a notice of intended proceedings.  This notice will inform the landlord that the authority is proposing to apply for a banning order and explain why.

The notice will also stating the length of each proposed ban, and invite the person to make representations within a period specified in the notice of not less than 28 days.

Once the notice has been issued, there are the following obligations:

• The authority must consider any representations made during the notice period.
• The authority must wait until the notice period has ended before applying for a banning order.

A notice of intended proceedings may not be given after the end of a period of 6 months.  This period begins with the day on which the person was convicted of the offence to which the notice relates.

What happens if a landlord breaches the banning order?

Breach of a banning order is a criminal offence.  It carries up to six months imprisonment and an unlimited fine. It is also highly likely that confiscation proceedings under the Proceeds of Crime Act 2002 will follow to recover income derived in breach of  banning orders.

How we can help you as a landlord

This type of law illustrates perfectly the often-hidden consequences of a criminal conviction.  To represent people properly, it is not enough that a solicitor understands only the main offence.  Any solicitor you choose will need a wider appreciation of the effects on a defendant.  Once these are understood, they will be fully considered during the planning of your defence.  As a result, it may not be the solicitor who handles a landlord’s property matters who is best placed to handle a criminal investigation.

Our highly experienced team can assist you in navigating the initial criminal proceedings that can give rise to the banning order application.  We also understand confiscation proceedings and skilled in the practice of negotiation with public bodies.

As a result, we will help you work towards the most favourable resolution in your case.

Contact crime and regulatory solicitor Martin Hadley

Contact crime and regulatory solicitor Martin Hadley on 0115 9599550.  Alternatively you can use the contact form below.  You will then be able to discuss any allegations of criminal conduct arising out of your business as a landlord.

We will be able to provide you with free and independent legal advice if you are interviewed by the police, whether as a volunteer or under arrest.  This is because be have a contract with the government to provide criminal legal aid.

Martin will discuss with you your options for funding any interview with the local authority or court proceedings.