As the Government hurries to contain the fallout of the Windrush scandal, several initiatives have been quickly announced to address the problems faced by Commonwealth and British Citizens in the ‘Windrush generation’ who have a legal right to reside, work and live in the UK, but may not have the documents needed to prove this.

Offering waivers on citizenship fees and compensation will obviously help some people, but the Right to Rent scheme has created problems which will not be easily solved. I wrote here last week about how Right to Rent had led to discrimination against BME, non-British and non-European people who are trying to find rented accommodation.

The Government has responded to recent events by issuing a new guidance note for landlords. This note tells landlords to ask prospective tenants who lack evidence to prove they have right to rent to “get in contact with the dedicated unit in the Home Office so we can help them with the necessary documents to prove their status in the UK.”

Where landlords are concerned about their prospective tenant’s ability to prove their right to rent, they are advised to contact the Home Office “Landlord’s helpline”.

Is this new guidance adequate?

This guidance fails to address what is a complex problem. A prospective tenant who is a British or Commonwealth citizen with the right to live and work in the UK has a right to rent. The Home Secretary cannot grant discretionary ‘permission to rent’ in these circumstances. The role of the Landlords Checking Service (“LCS”) is to confirm to landlords whether they may grant a tenancy to someone who claims to have an outstanding application with the Home Office. The LCS give a ‘yes’ or ‘no’ response within two working days and landlords are entitled to rely on this answer. It seems likely that for the foreseeable future the LCS will have been instructed to give a ‘yes’ response to any queries relating to former Commonwealth citizens.

Agents in London complain that the market moves so fast that waiting two working days for a response will mean that the tenancy is granted to someone else. This guidance is not going to be read widely, and the problems of discrimination caused by landlords trying to ‘play it safe’ will continue.

The Home Office has also not updated its tool for landlords to check (https://www.gov.uk/landlord-immigration-check). Inputting answers relating to a Commonwealth citizen who arrived in the UK in the early 1970s but has no documents produced this answer:

“The Person can’t rent your property because they haven’t shown you documents to prove their right to rent.

If the person is already renting your property, you must report them to the Home Office.

You can read the landlord’s code of practice on making checks for more information.”

The problems of Right to Rent are not going to be solved by the Home Office setting up a helpline or waiving citizenship fees and this is not likely to go away quickly.  Unless the scheme is radically redesigned discrimination by landlords and agents appear to be inevitable consequence of Right to Rent.  The ‘Windrush generation’ will not be the only ones affected.

The Right to Rent Scheme has created hassle and inconvenience for landlords and tenants generally, but studies have shown that its most severe impact has been on BME, non-British and non-European people who are trying to find rented accommodation. While the Joint Council for the Welfare of Immigrants (“JCWI”) and others have accused the scheme of having discriminatory impact on people in those groups, the Government took steps in 2017 to expand the scheme as it developed its ‘hostile environment’ policy.

The Independent Chief Inspector of Borders and Immigration published a report in March which was critical of the Home Office’s implementation of the scheme. One of the recommendations made that the Home Office should develop and make public plans for the monitoring and evaluation of the Right to Rent measures including the impact of the measures on racial and other discrimination. The Home Office response did not specifically address the question of discrimination and it appeared that the Government was not interested in looking closer at the knock-on effects of Right to Rent.

The recent focus on the status of the so called ‘Windrush generation’ may bring renewed attention to the discriminatory effect of Right to Rent. Named after the MV Empire Windrush, one of the many ships which brought people from Caribbean countries to the UK between 1948 and 1971, the Windrush generation are the group of Commonwealth citizens travelled lawfully to the UK. This group was granted indefinite leave to remain in the UK by the Immigration Act 1971, but many do not have any documentation to prove this. The immigration status of such people is further complicated by the fact that many emigrated from countries which were not independent from the UK at the time – and they were already British Citizens before they arrived.

Many in the Windrush generation who are entitled to live and work in the UK have struggled to prove this to the Home Office’s satisfaction. The Right to Rent scheme creates a further problem – how can someone demonstrate their right to rent property in England if they do not have the sorts of documents which the Right to Rent scheme requires?

The Right to Rent scheme does not require tenants to provide a UK passport, a biometric residence permit or a naturalisation certificate; other documents such as driving licences are acceptable in combination to prove someone has an unlimited Right to Rent. However, even if someone produces these documents, unless the landlord has a good understanding of how Right to Rent works, they may not realise that the documents provided are sufficient. It is inevitable that many BME people looking for a home in the private rented sector will be subject to discrimination when looking to rent property. As a society we may have moved on from ‘No black, no dogs, no Irish’, but the evidence collected by the JWCI and the RLA suggested that Right to Rent has introduced new forms of discrimination.

Landlords might ask for some sympathy here – if the Home Office cannot get it right, can they really be expected to understand the nuances of immigration and nationality law? It is not surprising that, as a survey by the RLA found, many landlords are taking an unlawful and discriminator ‘play it safe’ approach and are reluctant to let property to someone without a British passport.

The alleged structural discriminatory effect of the Right to Rent scheme will be considered in two pending judicial review claims against the Home Office, and the Government may now be forced to reconsider its ‘hostile environment’ approach entirely. Anthony Gold Solicitors are instructed to intervene in both these cases for an interested party.

While the Right to Rent scheme remain in place landlords and agents must consider carefully whether they have sufficient systems in place to prevent discriminatory practises. We work closely with letting agents on various regulatory and consumer law matters and we frequently offer training for letting agents on developments in the law. Please contact Robin Stewart for more details.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*

Whether you are an ‘online’ agent or running a more traditional business model, for any agent in the property sector, your website is almost certainly the single most important element of your business for attracting new buyers, seller, landlords and tenants.

Agents involved in property sales, management and lettings are now subject to a broad range of regulations relating to what information must be visible on their websites. With so many legal requirements to meet, it is fairly rare that agents fully comply with the law in this area and local authority trading standards enforcement teams are increasingly taking an interest in this area.

There are a few common errors which we see being made repeatedly, even by agents who are trying to meet all of their legal duties. Some of the most common mistakes are:

1. Not using the correct company name

If you are trading as a limited company (or another form of incorporated business structure) you must use your official company name (e.g. Example Limited) on your website, even if you use a trading name for most day to days purposes. Trading names can be used but then there will need to be text at some point on the website (usually in small print at the bottom) along the lines of “Examples is a trading name of Example Ltd”. You must also supply certain key details about the company, including its registered address and company number. This information should also be on all communications from the company including letters and emails.

Failing to do this is a criminal offence and both the company and its directors can be prosecuted. We commonly see company names not displayed (especially in email) or not displayed correctly with the name missing key parts or confusion between the trading name and actual registered company name.

2. Failing to display details of their fees

The Consumer Rights Act 2015 introduced a duty on agents to display details of their fees to landlords and tenants on their websites. This duty requires all fees which landlord and tenants are likely to be charged in preparing or setting up a tenancy to be displayed – not just those fees which are ‘compulsory’. The fees must also be expressed in a manner which allows the consumer to understand what the charge is for an in what circumstances they would have to pay it. That means that each fee needs to have a clear description with it of what it is for.

This is an area where local authorities are increasingly keen to levy civil penalties of up to £5,000 per breach.

3. Not giving details of membership a redress scheme

Agents should be a member of one of the redress scheme (The Property Ombudsman, the Ombudsman Services Property, or the Property Redress Scheme). On their website they must indicate whether they are a member, and give details of which scheme they have joined and state their membership number.

4. Failing to provide key information required by The Provision of Services Regulations 2009

Agents should be complying with The Provision of Services Regulations 2009 which requires information about professional liability insurance, VAT registration and membership of professional bodies to be made available to service users. In most circumstances this information should be easily accessible on the agent’s website.

5. Giving misleading information about your services, charges and pricing

In addition to complying with the duty under section 83 of the Consumer Rights Act to publicise fees, agents must consider whether their fees are expressed clearly. Fees quoted to consumers must be given inclusive of VAT, for example. It will not assist agents if they accurately state their fees but give a misleading account of the services they provide.

The Advertising Standards Authority (ASA) has a longstanding interest in the activities of letting and estate agents and in particular online advertising. They are increasingly prepared to take action over misleading statements on websites by agents.

6. Not providing an adequate privacy statement

You may already have a website privacy policy which explains to users how their information will be used. This is already a requirement under data protection law.

However, the General Data Protection Regulation (GDPR) will increase the duties on all who process data. For agents this will mean they must develop a provide customers with a privacy notice, and usually it will be appropriate to publish this on the website.

The GDPR comes into force on 25 May 2018 and so agents must begin their preparation now.
These are just a sample of the issues with agent’s websites which we encounter. The continued political and media focus on rogue landlords and letting agents is encouraging local authorities to issue substantial penalties for breaches of the law relating to letting agent websites.

At Anthony Gold we are well placed to advise on how those in the property sector on how to comply with the legal regulations for property agent websites and to deal with enforcement action including tribunal appeals and criminal defence.

* Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*