The Government has now published its consultation as to which offences a letting agent or landlord can be banned from the industry in England.

It will be the first time that a legal mechanism will exist to ban either a residential letting agent or landlord. Because letting agents are not recognised as ‘agents’ under the Estate Agents Act, there is currently a mechanism to ban sales agents but not letting agents – even though it is the latter that have access to the public’s money.

Banned agents and landlords will be on a ‘blacklist’, currently intended to be available only to local and central government. It will not be available to members of the public, or to agency employers looking to recruit.

The consultation does not touch on the possibility of a banned letting agent working in sales agency, or vice versa, and has  had a lukewarm reception from ARLA, whose managing director David Cox last night said:  “It’s good to see that the Government is consulting on banning orders in order to clarify what these offences will include. However, we would question the practicalities of the proposals.

“It seems completely illogical that the database of rogue landlords and letting agents will only be accessible to local authorities and DCLG; surely this ultimately defeats the purpose of the legislation?

“If there is no public access to the database how will landlords or tenants understand if they are using a banned agent and how do agents see if those applying for employment are blacklisted or banned?

“Government is seeking to get tougher on rogue agents but this will not work unless legislation is joined up; in this case with the Estate Agents Act 1979. Without combining the lists, there is a very real danger that a banned sales agent could set up as a letting agent or vice versa.

“If the Government is really serious about improving standards it needs to be much more holistic in its approach to regulation and give greater resources to local authorities to better enforce existing laws.”

The new banning orders – which local authorities will be able to apply for – can relate to both individuals and to companies.

The consultation runs until February 10 with the ability to impose bans due to be implemented on October 1 next year.

The bans, which will be of at least 12 months, have been enabled by section 14 of the Housing and Planning Act 2016.

The consultation paper, published yesterday, makes it clear that banning orders will be used as a last resort, when other types of enforcement action have failed.

An agent or landlord who is banned will go on the  ‘blacklist’ which only local and central government will be able to access.

Proposed offences leading to banning orders come under four headings: housing offences; immigration offences; serious criminal offences; and other criminal offences.

Fraud is included in the possible offences which could lead to a ban. Fraud could include the theft of tenants’ deposits and rents owed to landlords but this is not spelled out in the consultation – and police often do not prosecute in such cases, saying they are civil rather than criminal matters.

Relevant housing offences

• Illegally evicting or harassing a residential occupier in contravention of the Protection from Eviction Act 1977 or the Criminal Law Act 1977

• Any of the following offences under the Housing Act 2004:

–       Failure to comply with an Improvement Notice (section 30);

–       Offences in relation to licensing of Houses in Multiple Occupation (HMOs) (section 72);

–       Offences in relation to licensing of houses under Part 3 of the Act (section 95);

–       Allowing a HMO that is not subject to licensing to become overcrowded (section 139);

–       Failure to comply with management regulations in respect of HMOs (section 234).

• An offence under 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 provided it relates to a property that is being rented out or managed by a landlord or property agent.

Immigration offences

• Letting to someone disqualified from renting because of their immigration status, resulting in an offence under Part 3 of the Immigration Act 2014.

 Serious criminal offences

• Any offence, resulting in a sentence in the Crown Court (regardless of whether they were originally convicted in the Crown Court or Magistrates Court) involving:

–       fraud under the Fraud Act 2006;

–       the production, possession or supply of all classes of illegal drugs; or

–       any offence under Schedule 15 of the Criminal Justice Act 2003 (specified violent and sexual offences).

The offence must have been committed at, or close to, residential premises, with the offence relating to the occupier of those premises.

Other criminal offences

• Any offence for which the offender has been sentenced in the Crown Court. The offence must have been committed against, or in conjunction with, any person living at the property owned by the offender, other than a person associated with the offender.

The consultation can be accessed here