Should criminal record checks be extended to landlords and letting agents?

Wednesday, November 30th, 2016 - By Richard Tacagni, Managing Director, London Property Licensing

A strange question you might think and why would it be needed? Yes, fully understandable for employment that involves working with children but for everyone letting out a private rented property – surely a regulatory step too far?

Well, under a little known clause inserted in section 125 of the Housing and Planning Act 2016, the Secretary of State can introduce regulations that specify certain evidence that must accompany every application for a mandatory House in Multiple Occupation (HMO), additional or selective licence.

The government are now consulting on whether criminal record checks should become a compulsory requirement to accompany every licence application, both for the proposed licence-holder and the property manager.

There are already around 60,000 licensable properties under the mandatory HMO licensing scheme and the government predict a further 174,000 properties will become licensable in England when the licensing criteria are widened in 2017 (read here). Plus of course we have many thousands of properties covered by additional and selective licensing schemes up and down the country. So tens if not hundreds of thousands of landlords and agents would be affected.

How would this work in practice? There are two proposals being consulted upon, requiring criminal record checks via either:

  • The Disclosure and Baring Service (DBS), costing £26; or
  • Disclosure Scotland, costing £25.

At present, DBS checks can only be requested by an employer or licensing body, so the local authority would have to take the lead. Once they received a licence application, the local authority would have to send a DBS application form to the landlord and their property manager (if any), meet with them to check and verify all their identification documents and then submit the application to DBS. Once completed, the DBS certificate would be sent to the landlord who in turn would need to send it to the local authority.

The second option via Disclosure Scotland would enable an individual to carry out their own basic disclosure, presumably before any licence application could be submitted.

This would place a huge extra administrative burden on local authorities, no doubt driving application fees yet higher and leading to further delays in the time taken to process a licence application. Plus of course, any criminal record disclosures would then be accessible to potentially thousands of council staff in housing teams in each local authority. Ensuring secure data storage and restricting access to essential staff would be a major headache for councils when complying with their data protection responsibilities.

There’s also a further complication. What if the licence holder or property manager is a limited company, partnership or other legal entity? Is the business checked or all the directors or partners, and how long would the criminal record check be valid before the whole process needs to be started again? These are all questions that still need to be answered.

I suppose the other fundamental issue is whether these additional checks are really needed. All landlords and property managers must already complete a ‘fit and proper person’ self-declaration when they complete a licence application form. It’s a criminal offence to give false or misleading information and I’m not aware of any prosecutions being taken for this offence.

In practice, very few licence applications are ever refused. In Newham where the council have issued licences to 25,163 landlords, only 28 landlords have been banned from holding a licence after failing the fit and proper test; that’s just 0.001% of landlords. I suspect most criminal landlords would never apply for a licence in the first place.

So why not keep the status quo? Let local authorities ask for a criminal record check where they have cause for concern and can justify the request, but don’t make it a compulsory requirement for all.

Having said that, it’s not too late to have your say. The government are consulting on this proposal and the consultation is open until 13 December 2016. You can take part here.

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