Comment

How to get named and shamed: a guide to notoriety and public disgrace for landlords and agents

Wednesday, December 15, 2021 - By Robin Stewart, Solicitor, Anthony Gold

Robin Stewart, Solicitor, Anthony Gold

Public shaming as a form of punishment might sound barbaric and outdated, but it still exists, adapted for the digital age. The Housing and Planning Act 2016 created the legal foundation for the Government’s Database of Rogue Landlords and Agents, and the promise of this register of criminal landlords and agents seemed to spark a new enthusiasm for naming a shaming in the rented sector.

In this article I explore some of the ways in which ‘naming and shaming’ is used an enforcement tool, a media trope, a tool for empowering consumers, and a campaigning strategy in the rented sector.

Database of Rogue Landlords and Agents

The Government’s database does not actually ‘name and shame’ anyone, because very few people can actually see what’s on it. A landlord or agent can be added to the database if they have been convicted of a banning order offence (a criminal offence connected to lettings which is capable of leading to a banning order) or if they have received two financial penalties for banning order offences. These entries are made by local authorities, and they decide whether to make an entry. If a banning order is made by the First-tier Tribunal, the local authority must make an entry with the landlord or agent’s details.

Since the database is not open to the public, it does not provide any assistance to tenants who want to check out a prospective or current landlord. And while there might be some stigma attached to being on the database, its not clear why anyone (other than local authority officers) would find out about entries. The Government’s database is an enforcement tool, there to help local authorities share information about criminal landlords and agents.

To me at least, this makes it rather surprising that there is a right for landlords and agents to appeal against decisions to put them on the database. Landlords and agents can appeal to the First-tier Tribunal against the decision to make an entry. I am only aware of one such appeal being made, by an estate agent based in Liverpool. The agents involved failed to persuade the Tribunal that they should not be put on the database, but they were successful in reducing the number of years that the entry would be put on the database. That might sound like a pretty good result for the agents, but I am not quite so sure. An entry on the Government’s database would not have attracted any bad publicity, but the Tribunal decision on the appeal – which contains details of the fines and convictions - is publicly available online, and is only a Google search away.

Mayor of London’s Rogue Landlord Checker

In London, the Mayor’s Rogue Landlord and Agent Checker takes a rather difference approach. This is a database which records convictions, civil penalties, enforcement notices issued by the London Fire Brigade, and expulsions from the ‘redress scheme’. Where a London borough or other relevant body takes enforcement action, they can notify the Greater London Authority (the body which deals with the parts of London’s governance controlled by the Mayor) and then an entry is made on the ‘Checker’.

There are three parts to this database – a public tier available to everyone, and a private tier available to local authority enforcement officers, and ‘reporting tool’ to make it easy for tenants to report issues with landlords or agents to their local authority. Entries are made on the private tier are usually for to ten years, but the public entries are for less time – usually on one year. Convictions can be listed until ‘spent’ under the Rehabilitation of Offenders Act 1974. Where the sentence after conviction is a fine, that will always be one year.

The Mayor’s database is designed to be a tool for tenants; by giving tenants to ability to check whether a landlord or agent has “been caught breaking the rules in London” it gives tenants small piece of extra consumer power. It also provides data to enforcement bodies which is much more extensive than what is available on the Government’s database.

Calls to Reform of the Government Database

There have been many calls for the national (in England) database to function more like the Mayor of London’s ‘checker’. In 2017 Liberal Democrat peer Baroness Grender’s Renters’ Rights Bill would have given tenants and persons seeking tenancies the right to view the database. This was a private member’s bill with no realistic chance of becoming law, but since then discussion of this proposal has never faded.

The Government heeded these calls quite quickly. In 2018, after unfavourable comparison’s with Sadiq Khan’s London database in the media, Prime Minister Theresa May had committed her government to making the rogue landlords’ database available to public. This was followed a year later by a consultation which sought views on “widening access to the database to allow tenants and prospective tenants access to the database” and “expanding the scope of offences and infractions which could lead to entries on the database”.

The Queens’ Speech at the end of 2019 appeared to demonstrate a continuing commitment to the expansion of the database under Boris Johnson’s premiership. The background briefing notes published with the Queens Speech in December 2019 detailed what could be expected in the ‘Renters Reform Bill’. Alongside abolition of section 21 notices, the Government would:

continue to develop and implement measures to wider access to and expand the scope of the database of rogue landlords and property agents. Giving greater powers to drive improvements in standards, and empowering tenants to make an informed choice about who they rent from.

Since then the Renters Reform Bill has stalled; no draft legislation has been published and the ‘White Paper’ promised in Autumn 2021 is now not expected until 2022. That White Paper will set out the Government’s proposals in detail, but it then be some time further before any actual legislation passed by Parliament.

Reform of the Database of Rogue Landlords and Agents will require amendments to the Housing and Planning Act 2016, which means that this requires primary legislation – a new Act of Parliament. That is never quick, but progress since Theresa May’s commitment in 2018 to make the database available to tenants has been strikingly slow, and that can only be explained in part by the pandemic.

Public Records of Convictions

There’s nothing new about a public database of convictions and enforcement action. Both the London Fire Brigade and the Health and Safety Executive publish details of their enforcement action online in a public register. These databases are particularly powerful because they tend to show up reasonably high in search results.

Public authorities were actively encouraged to share details of convictions by guidance issued by the Ministry of Justice, Home Office and Attorney General’s Office. Many local authorities do make an effort to publicise convictions, and a conviction of a landlord, alongside photographs of a dishevelled house, has become a staple of local news.

Where the First-tier Tribunal is involved in a case, its decision is usually public record, and this means it is easy to see which landlords have had rent repayment orders made against them, or lost appeals against financial penalties. While these decisions tend to be read only by the parties involved and a handful of housing law enthusiasts, the property sector press does sometimes run stories based on such Tribunal decisions.

The media do not restrict themselves to reporting only enforcement action. For example ITV news has covered in detail poor conditions and lack of repairs in social housing across the UK. But such investigations take time and resources. It is difficult for media outlets to run stories about poor management of housing without enforcement agencies first taking action and then feeding the stories to them.

Tenants and Activists

In the age of the internet, there’s nothing which restricts naming and shaming to jut public authorities and the media. Tenants and ‘tenants’ unions’ are able to call-out wrongdoers online or at in-person demonstrations. Protests outside estate agents’ offices have become a routine occurrence, and some activists see such protesting as important counterbalance to the power held by landlords over their tenants.

With specialist housing solicitors overstretched or simply not present at all in some parts of the country referred to as ‘advice deserts’, and legal aid providers suffering from years of cuts and neglect, even where there might be a legal remedy for tenants, often there is no-one to help tenants enforce their rights. Without practical legal solutions available, protesting and ‘shaming’ landlords who will not comply with their duties is often the only realistic thing tenants can do.

How to get named and shamed

Despite the shortcomings of the Database of Rogue Landlords and Agents, it has never been easier for landlords and agents to be publicly shamed, in my opinion. And I think there are two reasons for this: social media, and search engines.

Social media allows a whirlwind of bad publicity to build up in hours, or even minutes, rather than the slow burn effects of traditional media. Landlords can find that a post on Twitter or Facebook naming and shaming them has been shared hundreds of times even before they are aware of the complaint. One way to bring on a public shaming in this manner is to be simply, an outrageously bad landlord and commit lots of crimes – but a complaint about poor condition in a property with some really bad photographs is perhaps just as likely to go viral than any criminal conviction.

Search engines provide a more precise and surgical threat. A prospective tenant may well ‘google’ a landlord and their letting agent before signing a contract, and this search might produce links to any old news articles, court judgments or public entries on databases. Even just a few years ago a tribunal decision with unwelcome findings would almost certainly never come to attention of a prospective tenant, but now this is not unlikely.

Of course, if tenants are desperate to find any place they can afford – and with rents rising further, many are – they may decide that they have no choice other than to rent from a landlord with chequered past. And those living in temporary accommodation will not have chosen their landlord, and may well have been directed towards a property by the same council who previously been convicted by another department of the council.

For naming and shaming to make a real positive difference, tenants need to have sufficient consumer power to be in a position to decide not to rent from rogue landlords – and that will be require much bigger changes than reform of the rogue landlord’s database.

The author of this blog, Robin Stewart, is a Solicitor in the Housing team at Anthony Gold. His email is ros@anthonygold.co.uk.

Please note that the views and opinions expressed in these blogs are those of the author and do not necessarily represent the views of London Property Licensing. These blogs are designed to stimulate discussion and debate within the property industry. This article does not represent legal advice and should not be treated as such.

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