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SEE
ALSO Guide to Housing Act 2004
Housing
Act 2004 - Chapter 34 - continued
PART
2
LICENSING
OF HOUSES IN MULTIPLE OCCUPATION
Introductory
55
Licensing of HMOs to which this Part applies
(1) This Part provides for HMOs to be licensed by local housing
authorities where-
(a)
they are HMOs to which this Part applies (see subsection (2)),
and
(b)
they are required to be licensed under this Part (see section
61(1)).
(2)
This Part applies to the following HMOs in the case of each
local housing authority-
(a)
any HMO in the authority's district which falls within any
prescribed description of HMO, and
(b)
if an area is for the time being designated by the authority
under section 56 as subject to additional licensing, any HMO
in that area which falls within any description of HMO specified
in the designation.
(3) The appropriate national authority may by order prescribe
descriptions of HMOs for the purposes of subsection (2)(a).
(4)
The power conferred by subsection (3) may be exercised in
such a way that this Part applies to all HMOs in the district
of a local housing authority.
(5) Every local housing authority have the following general
duties-
(a)
to make such arrangements as are necessary to secure the effective
implementation in their district of the licensing regime provided
for by this Part;
(b)
to ensure that all applications for licences and other issues
falling to be determined by them under this Part are determined
within a reasonable time; and
(c) to satisfy themselves, as soon as is reasonably practicable,
that there are no Part 1 functions that ought to be exercised
by them in relation to the premises in respect of which such
applications are made.
(6)
For the purposes of subsection (5)(c)-
(a)
"Part 1 function" means any duty under section 5 to take any
course of action to which that section applies or any power
to take any course of action to which section 7 applies; and
(b)
the authority may take such steps as they consider appropriate
(whether or not involving an inspection) to comply with their
duty under subsection (5)(c) in relation to each of the premises
in question, but they must in any event comply with it within
the period of 5 years beginning with the date of the application
for a licence.
Designation
of additional licensing areas
56
Designation of areas subject to additional licensing (1)
A local housing authority may designate either-
(a) the area of their district, or
(b) an area in their district, as subject to additional licensing
in relation to a description of HMOs specified in the designation,
if the requirements of this section are met.
(2) The authority must consider that a significant proportion
of the HMOs of that description in the area are being managed
sufficiently ineffectively as to give rise, or to be likely
to give rise, to one or more particular problems either for
those occupying the HMOs or for members of the public.
(3) Before making a designation the authority must-
(a)
take reasonable steps to consult persons who are likely to
be affected by the designation; and
(b)
consider any representations made in accordance with the consultation
and not withdrawn.
(4)
The power to make a designation under this section may be
exercised in such a way that this Part applies to all HMOs
in the area in question.
(5) In forming an opinion as to the matter mentioned in subsection
(2), the authority must have regard to any information regarding
the extent to which any codes of practice approved under section
233 have been complied with by persons managing HMOs in the
area in question.
(6) Section 57 applies for the purposes of this section.
57
Designations under section 56: further considerations
(1) This section applies to the power of a local housing authority
to make designations under section 56.
(2) The authority must ensure that any exercise of the power
is consistent with the authority's overall housing strategy.
(3) The authority must also seek to adopt a co-ordinated approach
in connection with dealing with homelessness, empty properties
and anti-social behaviour affecting the private rented sector,
both-
(a) as regards combining licensing under this Part with other
courses of action available to them, and
(b)
as regards combining such licensing with measures taken by
other persons.
(4)
The authority must not make a particular designation under
section 56 unless-
(a)
they have considered whether there are any other courses of
action available to them (of whatever nature) that might provide
an effective method of dealing with the problem or problems
in question, and
(b)
they consider that making the designation will significantly
assist them to deal with the problem or problems (whether
or not they take any other course of action as well).
(5) In this Act "anti-social behaviour" means conduct on the
part of occupiers of, or visitors to, residential premises-
(a)
which causes or is likely to cause a nuisance or annoyance
to persons residing, visiting or otherwise engaged in lawful
activities in the vicinity of such premises, or
(b)
which involves or is likely to involve the use of such premises
for illegal purposes.
58
Designation needs confirmation or general approval to be effective
(1)
A designation of an area as subject to additional licensing
cannot come into force unless-
(a)
it has been confirmed by the appropriate national authority;
or
(b) it falls within a description of designations in relation
to which that authority has given a general approval in accordance
with subsection (6).
(2) The appropriate national authority may either confirm,
or refuse to confirm, a designation as it considers appropriate.
(3) If the appropriate national authority confirms a designation,
the designation comes into force on the date specified for
this purpose by that authority.
(4)
That date must be no earlier than three months after the date
on which the designation is confirmed.
(5)
A general approval may be given in relation to a description
of designations framed by reference to any matters or circumstances.
(6)
Accordingly a general approval may (in particular) be given
in relation to-
(a)
designations made by a specified local housing authority;
(b) designations made by a local housing authority falling
within a specified description of such authorities;
(c) designations relating to HMOs of a specified description.
"Specified" means specified by the appropriate national authority
in the approval.
(7) If, by virtue of a general approval, a designation does
not need to be confirmed before it comes into force, the designation
comes into force on the date specified for this purpose in
the designation.
(8) That date must be no earlier than three months after the
date on which the designation is made.
59 Notification requirements relating to designations
(1)
This section applies to a designation-
(a) when it is confirmed under section 58, or
(b)
(if it is not required to be so confirmed) when it is made
by the local housing authority.
(2) As soon as the designation is confirmed or made, the authority
must publish in the prescribed manner a notice stating-
(a)
that the designation has been made,
(b) whether or not the designation was required to be confirmed
and either that it has been confirmed or that a general approval
under section 58 applied to it (giving details of the approval
in question),
(c) the date on which the designation is to come into force,
and
(d)
any other information which may be prescribed.
(3) After publication of a notice under subsection (2), and
for as long as the designation is in force, the local housing
authority must make available to the public in accordance
with any prescribed requirements-
(a)
copies of the designation, and
(b) such information relating to the designation as is prescribed.
(4) In this section "prescribed" means prescribed by regulations
made by the appropriate national authority.
60
Duration, review and revocation of designations
(1)
Unless previously revoked under subsection (4), a designation
ceases to have effect at the time that is specified for this
purpose in the designation.
(2) That time must be no later than five years after the date
on which the designation comes into force.
(3) A local housing authority must from time to time review
the operation of any designation made by them.
(4)
If following a review they consider it appropriate to do so,
the authority may revoke the designation.
(5)
If they do revoke the designation, the designation ceases
to have effect at the time that is specified by the authority
for this purpose.
(6) On revoking a designation the authority must publish notice
of the revocation in such manner as is prescribed by regulations
made by the appropriate national authority.
HMOs
required to be licensed
61
Requirement for HMOs to be licensed
(1) Every HMO to which this Part applies must be licensed
under this Part unless-
(a) a temporary exemption notice is in force in relation to
it under section 62, or
(b) an interim or final management order is in force in relation
to it under Chapter 1 of Part 4.
(2)
A licence under this Part is a licence authorising occupation
of the house concerned by not more than a maximum number of
households or persons specified in the licence.
(3) Sections63 to 67 deal with applications for licences,
the granting or refusal of licences and the imposition of
licence conditions.
(4) The local housing authority must take all reasonable steps
to secure that applications for licences are made to them
in respect of HMOs in their area which are required to be
licensed under this Part but are not.
(5)
The appropriate national authority may by regulations provide
for-
(a) any provision of this Part, or
(b) section 263 (in its operation for the purposes of any
such provision), to have effect in relation to a section 257
HMO with such modifications as are prescribed by the regulations.
A "section 257 HMO" is an HMO which is a converted block of
flats to which section 257 applies.
(6)
In this Part (unless the context otherwise requires)-
(a) references to a licence are to a licence under this Part,
(b) references to a licence holder are to be read accordingly,
and
(c) references to an HMO being (or not being) licensed under
this Part are to its being (or not being) an HMO in respect
of which a licence is in force under this Part.
62 Temporary exemption from licensing requirement
(1) This section applies where a person having control of
or managing an HMO which is required to be licensed under
this Part (see section 61(1)) but is not so licensed, notifies
the local housing authority of his intention to take particular
steps with a view to securing that the house is no longer
required to be licensed.
(2)
The authority may, if they think fit, serve on that person
a notice under this section ("a temporary exemption notice")
in respect of the house.
(3)
If a temporary exemption notice is served under this section,
the house is (in accordance with sections 61(1) and 85(1))
not required to be licensed either under this Part or under
Part 3 during the period for which the notice is in force.
(4) A temporary exemption notice under this section is in
force- (a) for the period of 3 months beginning with the date
on which it is served, or (b) (in the case of a notice served
by virtue of subsection
(5))
for the period of 3 months after the date when the first notice
ceases to be in force. (5) If the authority-
(a) receive a further notification under subsection (1), and
(b) consider that there are exceptional circumstances that
justify the service of a second temporary exemption notice
in respect of the house that would take effect from the end
of the period of 3 months applying to the first notice, the
authority may serve a second such notice on the person having
control of or managing the house (but no further notice may
be served by virtue of this subsection).
(6)
If the authority decide not to serve a temporary exemption
notice in response to a notification under subsection (1),
they must without delay serve on the person concerned a notice
informing him of-
(a) the decision,
(b)
the reasons for it and the date on which it was made,
(c)
the right to appeal against the decision under subsection
(7), and
(d) the period within which an appeal may be made under that
subsection.
(7) The person concerned may appeal to a residential property
tribunal against the decision within the period of 28 days
beginning with the date specified under subsection (6) as
the date on which it was made.
(8)
Such an appeal- (a) is to be by way of a re-hearing, but (b)
may be determined having regard to matters of which the authority
were unaware.
(9)
The tribunal-
(a)
may confirm or reverse the decision of the authority, and
(b)
if it reverses the decision, must direct the authority to
serve a temporary exemption notice that comes into force on
such date as the tribunal directs. Grant or refusal of licences
63 Applications for licences
(1)
An application for a licence must be made to the local housing
authority.
(2) The application must be made in accordance with such requirements
as the authority may specify.
(3) The authority may, in particular, require the application
to be accompanied by a fee fixed by the authority.
(4)
The power of the authority to specify requirements under this
section is subject to any regulations made under subsection
(5).
(5)
The appropriate national authority may by regulations make
provision about the making of applications under this section.
(6) Such regulations may, in particular-
(a)
specify the manner and form in which applications are to be
made;
(b) require the applicant to give copies of the application,
or information about it, to particular persons;
(c) specify the information which is to be supplied in connection
with applications;
(d) specify the maximum fees which are to be charged (whether
by specifying amounts or methods for calculating amounts);
(e)
specify cases in which no fees are to be charged or fees are
to be refunded.
(7) When fixing fees under this section, the local housing
authority may (subject to any regulations made under subsection
(5)) take into account-
(a) all costs incurred by the authority in carrying out their
functions under this Part, and
(b)
all costs incurred by them in carrying out their functions
under Chapter 1 of Part 4 in relation to HMOs (so far as they
are not recoverable under or by virtue of any provision of
that Chapter).
64 Grant or refusal of licence
(1)
Where an application in respect of an HMO is made to the local
housing authority under section 63, the authority must either-
(a) grant a licence in accordance with subsection
(2),
or (b) refuse to grant a licence. (2) If the authority are
satisfied as to the matters mentioned in subsection (3),
they may grant a licence either-
(a)
to the applicant, or
(b) to some other person, if both he and the applicant agree.
(3)
The matters are-
(a)
that the house is reasonably suitable for occupation by not
more than the maximum number of households or persons mentioned
in subsection (4)
or that it can be made so suitable by the imposition of conditions
under section 67;
(b)
that the proposed licence holder- (i) is a fit and proper
person to be the licence holder, and (ii) is, out of all the
persons reasonably available to be the licence holder in respect
of the house, the most appropriate person to be the licence
holder;
(c) that the proposed manager of the house is either- (i)
the person having control of the house, or (ii) a person who
is an agent or employee of the person having control of the
house;
(d)
that the proposed manager of the house is a fit and proper
person to be the manager of the house; and (e) that the proposed
management arrangements for the house are otherwise satisfactory.
(4)
The maximum number of households or persons referred to in
subsection (3)(a) is-
(a) the maximum number specified in the application, or
(b)
some other maximum number decided by the authority.
(5)
Sections 65 and 66 apply for the purposes of this section.
65
Tests as to suitability for multiple occupation
(1) The local housing authority cannot be satisfied for the
purposes of section 64(3)
(a)
that the house is reasonably suitable for occupation by a
particular maximum number of households or persons if they
consider that it fails to meet prescribed standards for occupation
by that number of households or persons.
(2)
But the authority may decide that the house is not reasonably
suitable for occupation by a particular maximum number of
households or persons even if it does meet prescribed standards
for occupation by that number of households or persons.
(3) In this section "prescribed standards" means standards
prescribed by regulations made by the appropriate national
authority.
(4)
The standards that may be so prescribed include-
(a) standards as to the number, type and quality of- (i) bathrooms,
toilets, washbasins and showers, (ii) areas for food storage,
preparation and cooking, and (iii) laundry facilities, which
should be available in particular circumstances; and
(b)
standards as to the number, type and quality of other facilities
or equipment which should be available in particular circumstances.
66
Tests for fitness etc. and satisfactory management arrangements
(1) In deciding for the purposes of section 64(3)(b) or (d)
whether a person ("P") is a fit and proper person to be the
licence holder or (as the case may be) the manager of the
house, the local housing authority must have regard (among
other things) to any evidence within subsection (2) or (3).
(2) Evidence is within this subsection if it shows that P
has- (a) committed any offence involving fraud or other dishonesty,
or violence or drugs, or any offence listed in Schedule 3
to the Sexual Offences Act 2003 (c. 42) (offences attracting
notification requirements);
(b)
practised unlawful discrimination on grounds of sex, colour,
race, ethnic or national origins or disability in, or in connection
with, the carrying on of any business;
(c)
contravened any provision of the law relating to housing or
of landlord and tenant law; or
(d)
acted otherwise than in accordance with any applicable code
of practice approved under section 233.
(3)
Evidence is within this subsection if- (a) it shows that any
person associated or formerly associated with P (whether on
a personal, work or other basis) has done any of the things
set out in subsection (2)(a) to (d), and (b) it appears to
the authority that the evidence is relevant to the question
whether P is a fit and proper person to be the licence holder
or (as the case may be) the manager of the house.
(4) For the purposes of section 64(3)(b) the local housing
authority must assume, unless the contrary is shown, that
the person having control of the house is a more appropriate
person to be the licence holder than a person not having control
of it.
(5)
In deciding for the purposes of section 64(3)(e) whether the
proposed management arrangements for the house are otherwise
satisfactory, the local housing authority must have regard
(among other things) to the considerations mentioned in subsection
(6).
(6) The considerations are- (a) whether any person proposed
to be involved in the management of the house has a sufficient
level of competence to be so involved; (b) whether any person
proposed to be involved in the management of the house (other
than the manager) is a fit and proper person to be so involved;
and (c) whether any proposed management structures and funding
arrangements are suitable.
(7) Any reference in section 64(3)(c)(i) or (ii) or subsection
(4) above to a person having control of the house, or to being
a person of any other description, includes a reference to
a person who is proposing to have control of the house, or
(as the case may be) to be a person of that description, at
the time when the licence would come into force.
67 Licence conditions
(1) A licence may include such conditions as the local housing
authority consider appropriate for regulating all or any of
the following- (a) the management, use and occupation of the
house concerned, and (b) its condition and contents.
(2)
Those conditions may, in particular, include (so far as appropriate
in the circumstances)-
(a) conditions imposing restrictions or prohibitions on the
use or occupation of particular parts of the house by persons
occupying it;
(b)
conditions requiring the taking of reasonable and practicable
steps to prevent or reduce anti-social behaviour by persons
occupying or visiting the house;
(c)
conditions requiring facilities and equipment to be made available
in the house for the purpose of meeting standards prescribed
under section 65;
(d)
conditions requiring such facilities and equipment to be kept
in repair and proper working order;
(e) conditions requiring, in the case of any works needed
in order for any such facilities or equipment to be made available
or to meet any such standards, that the works are carried
out within such period or periods as may be specified in,
or determined under, the licence;
(f)
conditions requiring the licence holder or the manager of
the house to attend training courses in relation to any applicable
code of practice approved under section 233.
(3)
A licence must include the conditions required by Schedule
4.
(4)
As regards the relationship between the authority's power
to impose conditions under this section and functions exercisable
by them under or for the purposes of Part 1 ("Part 1 functions")-
(a) the authority must proceed on the basis that, in general,
they should seek to identify, remove or reduce category 1
or category 2 hazards in the house by the exercise of Part
1 functions and not by means of licence conditions;
(b)
this does not, however, prevent the authority from imposing
licence conditions relating to the installation or maintenance
of facilities or equipment within subsection (2)(c) above,
even if the same result could be achieved by the exercise
of Part 1 functions;
(c)
the fact that licence conditions are imposed for a particular
purpose that could be achieved by the exercise of Part 1 functions
does not affect the way in which Part 1 functions can be subsequently
exercised by the authority.
(5) A licence may not include conditions imposing restrictions
or obligations on a particular person other than the licence
holder unless that person has consented to the imposition
of the restrictions or obligations.
(6)
A licence may not include conditions requiring (or intended
to secure) any alteration in the terms of any tenancy or licence
under which any person occupies the house.
68
Licences: general requirements and duration
(1)
A licence may not relate to more than one HMO.
(2) A licence may be granted before the time when it is required
by virtue of this Part but, if so, the licence cannot come
into force until that time.
(3) A licence- (a) comes into force at the time that is specified
in or determined under the licence for this purpose, and (b)
unless previously terminated by subsection (7) or revoked
under section 70, continues in force for the period that is
so specified or determined.
(4) That period must not end more than 5 years after- (a)
the date on which the licence was granted, or (b) if the licence
was granted as mentioned in subsection (2), the date when
the licence comes into force.
(5) Subsection (3)(b) applies even if, at any time during
that period, the HMO concerned subsequently ceases to be one
to which this Part applies.
(6)
A licence may not be transferred to another person.
(7)
If the holder of the licence dies while the licence is in
force, the licence ceases to be in force on his death.
(8) However, during the period of 3 months beginning with
the date of the licence holder's death, the house is to be
treated for the purposes of this Part and Part 3 as if on
that date a temporary exemption notice had been served in
respect of the house under section 62.
(9)
If, at any time during that period ("the initial period"),
the personal representatives of the licence holder request
the local housing authority to do so, the authority may serve
on them a notice which, during the period of 3 months after
the date on which the initial period ends, has the same effect
as a temporary exemption notice under section 62.
(10) Subsections (6) to (8) of section 62 apply (with any
necessary modifications) in relation to a decision by the
authority not to serve such a notice as they apply in relation
to a decision not to serve a temporary exemption notice.
Variation
and revocation of licences
69 Variation of licence
s
(1) The local housing authority may vary a licence-
(a)
if they do so with the agreement of the licence holder, or
(b)
if they consider that there has been a change of circumstances
since the time when the licence was granted. For this purpose
"change of circumstances" includes any discovery of new information.
(2)
Subsection (3) applies where the authority-
(a)
are considering whether to vary a licence under subsection
(1)(b); and
(b) are considering- (i) what number of households or persons
is appropriate as the maximum number authorised to occupy
the HMO to which the licence relates, or (ii) the standards
applicable to occupation by a particular number of households
or persons.
(3) The authority must apply the same standards in relation
to the circumstances existing at the time when they are considering
whether to vary the licence as were applicable at the time
when it was granted. This is subject to subsection (4).
(4)
If the standards-
(a) prescribed under section 65, and
(b)
applicable at the time when the licence was granted, have
subsequently
been revised or superseded by provisions of regulations under
that section, the authority may apply the new standards.
(5) A variation made with the agreement of the licence holder
takes effect at the time when it is made.
(6) Otherwise, a variation does not come into force until
such time, if any, as is the operative time for the purposes
of this subsection under paragraph 35 of Schedule 5 (time
when period for appealing expires without an appeal being
made or when decision to vary is confirmed on appeal).
(7) The power to vary a licence under this section is exercisable
by the authority either- (a) on an application made by the
licence holder or a relevant person, or (b) on the authority's
own initiative.
(8)
In subsection (7) "relevant person" means any person (other
than the licence holder)-
(a) who has an estate or interest in the HMO concerned (but
is not a tenant under a lease with an unexpired term of 3
years or less), or
(b) who is a person managing or having control of the house
(and does not fall within paragraph (a)), or
(c) on whom any restriction or obligation is imposed by the
licence in accordance with section 67(5).
70 Revocation of licences
(1)
The local housing authority may revoke a licence-
(a)
if they do so with the agreement of the licence holder; (b)
in any of the cases mentioned in subsection (2)
(circumstances relating to licence holder or other person);
(c) in any of the cases mentioned in subsection (3) (circumstances
relating to HMO concerned); or (d) in any other circumstances
prescribed by regulations made by the appropriate national
authority.
(2)
The cases referred to in subsection (1)(b) are as follows-
(a)
where the authority consider that the licence holder or any
other person has committed a serious breach of a condition
of the licence or repeated breaches of such a condition;
(b)
where the authority no longer consider that the licence holder
is a fit and proper person to be the licence holder; and
(c)
where the authority no longer consider that the management
of the house is being carried on by persons who are in each
case fit and proper persons to be involved in its management.
Section 66(1) applies in relation to paragraph (b) or (c)
above as it applies in relation to section 64(3)(b) or (d).
(3)
The cases referred to in subsection (1)(c) are as follows-
(a)
where the HMO to which the licence relates ceases to be an
HMO to which this Part applies; and
(b)
where the authority consider at any time that, were the licence
to expire at that time, they would, for a particular reason
relating to the structure of the HMO, refuse to grant a new
licence to the licence holder on similar terms in respect
of it.
(4)
Subsection (5) applies where the authority are considering
whether to revoke a licence by virtue of subsection (3)(b)
on the grounds that the HMO is not reasonably suitable for
the number of households or persons specified in the licence
as the maximum number authorised to occupy the house.
(5) The authority must apply the same standards in relation
to the circumstances existing at the time when they are considering
whether to revoke the licence as were applicable at the time
when it was granted. This is subject to subsection (6).
(6) If the standards- (a) prescribed under section 65, and
(b) applicable at the time when the licence was granted, have
subsequently been revised or superseded by provisions of regulations
under that section, the authority may apply the new standards.
(7)
A revocation made with the agreement of the licence holder
takes effect at the time when it is made.
(8) Otherwise, a revocation does not come into force until
such time, if any, as is the operative time for the purposes
of this subsection under paragraph 35 of Schedule 5 (time
when period for appealing expires without an appeal being
made or when decision to vary is confirmed on appeal).
(9) The power to revoke a licence under this section is exercisable
by the authority either- (a) on an application made by the
licence holder or a relevant person, or (b) on the authority's
own initiative.
(10) In subsection (9) "relevant person" means any person
(other than the licence holder)-
(a)
who has an estate or interest in the HMO concerned (but is
not a tenant under a lease with an unexpired term of 3 years
or less), or
(b) who is a person managing or having control of that house
(and does not fall within paragraph (a)), or
(c)
on whom any restriction or obligation is imposed by the licence
in accordance with section 67(5).
Procedure and appeals
71
Procedural requirements and appeals against licence decisions
Schedule
5 (which deals with procedural requirements relating to the
grant, refusal, variation or revocation of licences and with
appeals against licence decisions) has effect for the purposes
of this Part.
Enforcement
72 Offences in relation to licensing of HMOs
(1)
A person commits an offence if he is a person having control
of or managing an HMO which is required to be licensed under
this Part (see section 61(1)) but is not so licensed.
(2) A person commits an offence if-
(a)
he is a person having control of or managing an HMO which
is licensed under this Part,
(b) he knowingly permits another person to occupy the house,
and (c) the other person's occupation results in the house
being occupied by more households or persons than is authorised
by the licence.
(3) A person commits an offence if- (a) he is a licence holder
or a person on whom restrictions or obligations under a licence
are imposed in accordance with section 67(5), and (b) he fails
to comply with any condition of the licence.
(4) In proceedings against a person for an offence under subsection
(1) it is a defence that, at the material time- (a) a notification
had been duly given in respect of the house under section
62(1), or (b) an application for a licence had been duly made
in respect of the house under section 63, and that notification
or application was still effective (see subsection (8)).
(5)
In proceedings against a person for an offence under subsection
(1), (2) or (3) it is a defence that he had a reasonable excuse-
(a) for having control of or managing the house in the circumstances
mentioned in subsection (1), or (b) for permitting the person
to occupy the house, or (c) for failing to comply with the
condition, as the case may be.
(6)
A person who commits an offence under subsection (1) or (2)
is liable on summary conviction to a fine not exceeding £20,000.
(7)
A person who commits an offence under subsection (3) is liable
on summary conviction to
a fine not exceeding level 5 on the standard scale.
(8)
For the purposes of subsection (4) a notification or application
is "effective" at a particular time if at that time it has
not been withdrawn, and either- (a) the authority have not
decided whether to serve a temporary exemption notice, or
(as the case may be) grant a licence, in pursuance of the
notification or application, or (b) if they have decided not
to do so, one of the conditions set out in subsection (9)
is met.
(9) The conditions are- (a) that the period for appealing
against the decision of the authority not to serve or grant
such a notice or licence (or against any relevant decision
of a residential property tribunal) has not expired, or (b)
that an appeal has been brought against the authority's decision
(or against any relevant decision of such a tribunal) and
the appeal has not been determined or withdrawn.
(10)
In subsection (9) "relevant decision" means a decision which
is given on an appeal to the tribunal and confirms the authority's
decision (with or without variation).
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73
Other consequences of operating unlicensed HMOs: rent repayment
orders
(1) For the purposes of this section an HMO is an "unlicensed
HMO" if- (a) it is required to be licensed under this Part
but is not so licensed, and (b) neither of the conditions
in subsection (2) is satisfied.
(2)
The conditions are- (a) that a notification has been duly
given in respect of the HMO under section 62(1) and that notification
is still effective (as defined by section 72(8)); (b) that
an application for a licence has been duly made in respect
of the HMO under section 63 and that application is still
effective (as so defined).
(3)
No rule of law relating to the validity or enforceability
of contracts in circumstances involving illegality is to affect
the validity or enforceability of- (a) any provision requiring
the payment of rent or the making of any other periodical
payment in connection with any tenancy or licence of a part
of an unlicensed HMO, or (b) any other provision of such a
tenancy or licence.
(4) But amounts paid in respect of rent or other periodical
payments payable in connection with such a tenancy or licence
may be recovered in accordance with subsection (5) and section
74.
(5)
If-
(a)
an application in respect of an HMO is made to a residential
property tribunal by the local housing authority or an occupier
of a part of the HMO, and
(b) the tribunal is satisfied as to the matters mentioned
in subsection (6) or (8), the tribunal may make an order (a
"rent repayment order") requiring the appropriate person to
pay to the applicant such amount in respect of the housing
benefit paid as mentioned in subsection (6)(b), or (as the
case may be) the periodical payments paid as mentioned in
subsection (8)(b), as is specified in the order (see section
74(2) to (8)).
(6)
If the application is made by the local housing authority,
the tribunal must be satisfied as to the following matters-
(a) that, at any time within the period of 12 months ending
with the date of the notice of intended proceedings required
by subsection (7), the appropriate person has committed an
offence under section 72(1) in relation to the HMO (whether
or not he has been charged or convicted),
(b)
that housing benefit has been paid (to any person) in respect
of periodical payments payable in connection with the occupation
of a part or parts of the HMO during any period during which
it appears to the tribunal that such an offence was being
committed, and
(c) that the requirements of subsection (7) have been complied
with in relation to the application.
(7)
Those requirements are as follows- (a) the authority must
have served on the appropriate person a notice (a "notice
of intended proceedings")- (i) informing him that the authority
are proposing to make an application under subsection (5),
(ii) setting out the reasons why they propose to do so, (iii)
stating the amount that they will seek to recover under that
subsection and how that amount is calculated, and (iv) inviting
him to make representations to them within a period specified
in the notice of not less than 28 days; (b) that period must
have expired; and (c) the authority must have considered any
representations made to them within that period by the appropriate
person.
(8)
If the application is made by an occupier of a part of the
HMO, the tribunal must be satisfied as to the following matters-
(a)
that the appropriate person has been convicted of an offence
under section 72(1) in relation to the HMO, or has been required
by a rent repayment order to make a payment in respect of
housing benefit paid in connection with occupation of a part
or parts of the HMO,
(b)
that the occupier paid, to a person having control of or managing
the HMO, periodical payments in respect of occupation of part
of the HMO during any period during which it appears to the
tribunal that such an offence was being committed in relation
to the HMO, and
(c)
that the application is made within the period of 12 months
beginning with- (i) the date of the conviction or order, or
(ii) if such a conviction was followed by such an order (or
vice versa), the date of the later of them.
(9) Where a local housing authority serve a notice of intended
proceedings on any person under this section, they must ensure-
(a)
that a copy of the notice is received by the department of
the authority responsible for administering the housing benefit
to which the proceedings would relate; and
(b)
that that department is subsequently kept informed of any
matters relating to the proceedings that are likely to be
of interest to it in connection with the administration of
housing benefit.
(10)
In this section- "the appropriate person", in relation to
any payment of housing benefit or periodical payment payable
in connection with occupation of a part of an HMO, means the
person who at the time of the payment was entitled to receive
on his own account periodical payments payable in connection
with such occupation; "housing benefit" means housing benefit
provided by virtue of a scheme under section 123 of the Social
Security Contributions and Benefits Act 1992 (c. 4); "occupier",
in relation to any periodical payment, means a person who
was an occupier at the time of the payment, whether under
a tenancy or licence or otherwise (and "occupation" has a
corresponding meaning); "periodical payments" means periodical
payments in respect of which housing benefit may be paid by
virtue of regulation 10 of the Housing Benefit (General) Regulations
1987 (S.I. 1987/1971) or any corresponding provision replacing
that regulation.
(11) For the purposes of this section an amount which- (a)
is not actually paid by an occupier but is used by him to
discharge the whole or part of his liability in respect of
a periodical payment (for example, by offsetting the amount
against any such liability), and (b) is not an amount of housing
benefit, is to be regarded as an amount paid by the occupier
in respect of that periodical payment.
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74
Further provisions about rent repayment orders
(1)
This section applies in relation to rent repayment orders
made by residential property tribunals under section 73(5).
(2) Where, on an application by the local housing authority,
the tribunal is satisfied- (a) that a person has been convicted
of an offence under section 72(1) in relation to the HMO,
and (b) that housing benefit was paid (whether or not to the
appropriate person) in respect of periodical payments payable
in connection with occupation of a part or parts of the HMO
during any period during which it appears to the tribunal
that such an offence was being committed in relation to the
HMO, the tribunal must make a rent repayment order requiring
the appropriate person to pay to the authority an amount equal
to the total amount of housing benefit paid as mentioned in
paragraph (b). This is subject to subsections (3), (4) and
(8).
(3) If the total of the amounts received by the appropriate
person in respect of periodical payments payable as mentioned
in paragraph (b) of subsection (2) ("the rent total") is less
than the total amount of housing benefit paid as mentioned
in that paragraph, the amount required to be paid by virtue
of a rent repayment order made in accordance with that subsection
is limited to the rent total.
(4)
A rent repayment order made in accordance with subsection
(2) may not require the payment of any amount which the tribunal
is satisfied that, by reason of any exceptional circumstances,
it would be unreasonable for that person to be required to
pay.
(5) In a case where subsection (2) does not apply, the amount
required to be paid by virtue of a rent repayment order under
section 73(5) is to be such amount as the tribunal considers
reasonable in the circumstances. This is subject to subsections
(6) to (8).
(6)
In such a case the tribunal must, in particular, take into
account the following matters- (a) the total amount of relevant
payments paid in connection with occupation of the HMO during
any period during which it appears to the tribunal that an
offence was being committed by the appropriate person in relation
to the HMO under section 72(1); (b) the extent to which that
total amount- (i) consisted of, or derived from, payments
of housing benefit, and (ii) was actually received by the
appropriate person; (c) whether the appropriate person has
at any time been convicted of an offence under section 72(1)
in relation to the HMO; (d) the conduct and financial circumstances
of the appropriate person; and (e) where the application is
made by an occupier, the conduct of the occupier.
(7)
In subsection (6) "relevant payments" means- (a) in relation
to an application by a local housing authority, payments of
housing benefit or periodical payments payable by occupiers;
(b) in relation to an application by an occupier, periodical
payments payable by the occupier, less any amount of housing
benefit payable in respect of occupation of the part of the
HMO occupied by him during the period in question.
(8)
A rent repayment order may not require the payment of any
amount which-
(a)
(where the application is made by a local housing authority)
is in respect of any time falling outside the period of 12
months mentioned in section 73(6)(a); or
(b) (where the application is made by an occupier) is in respect
of any time falling outside the period of 12 months ending
with the date of the occupier's application under section
73(5); and the period to be taken into account under subsection
(6)(a) above is restricted accordingly.
(9)
Any amount payable to a local housing authority under a rent
repayment order- (a) does not, when recovered by the authority,
constitute an amount of housing benefit recovered by them,
and (b) until recovered by them, is a legal charge on the
HMO which is a local land charge.
(10)
For the purpose of enforcing that charge the authority have
the same powers and remedies under the Law of Property Act
1925 (c. 20) and otherwise as if they were mortgagees by deed
having powers of sale and lease, and of accepting surrenders
of leases and of appointing a receiver.
(11)
The power of appointing a receiver is exercisable at any time
after the end of the period of one month beginning with the
date on which the charge takes effect.
(12) If the authority subsequently grant a licence under this
Part or Part 3 in respect of the HMO to the appropriate person
or any person acting on his behalf, the conditions contained
in the licence may include a condition requiring the licence
holder-
(a) to pay to the authority any amount payable to them under
the rent repayment order and not so far recovered by them;
and
(b)
to do so in such instalments as are specified in the licence.
(13)
If the authority subsequently make a management order under
Chapter 1 of Part 4 in respect of the HMO, the order may contain
such provisions as the authority consider appropriate for
the recovery of any amount payable to them under the rent
repayment order and not so far recovered by them.
(14) Any amount payable to an occupier by virtue of a rent
repayment order is recoverable by the occupier as a debt due
to him from the appropriate person.
(15) The appropriate national authority may by regulations
make such provision as it considers appropriate for supplementing
the provisions of this section and section 73, and in particular-
(a)
for securing that persons are not unfairly prejudiced by rent
repayment orders (whether in cases where there have been over-payments
of housing benefit or otherwise);
(b) for requiring or authorising amounts received by local
housing authorities by virtue of rent repayment orders to
be dealt with in such manner as is specified in the regulations.
(16) Section 73(10) and (11) apply for the purposes of this
section as they apply for the purposes of section 73.
75
Other consequences of operating unlicensed HMOs: restriction
on terminating tenancies
(1)
No section 21 notice may be given in relation to a shorthold
tenancy of a part of an unlicensed HMO so long as it remains
such an HMO.
(2)
In this section- a "section 21 notice" means a notice under
section 21(1)(b) or (4)(a) of the Housing Act 1988 (c. 50)
(recovery of possession on termination of shorthold tenancy);
a "shorthold tenancy" means an assured shorthold tenancy within
the meaning of Chapter 2 of Part 1 of that Act; "unlicensed
HMO" has the same meaning as in section 73 of this Act.
Supplementary provisions
76
Transitional arrangements relating to introduction and termination
of licensing
(1) Subsection (2) applies where-
(a)
an order under section 55(3) which prescribes a particular
description of HMOs comes into force; or
(b)
a designation under section 56 comes into force in relation
to HMOs of a particular description. (2) This Part applies
in relation to the occupation by persons or households of
such HMOs on or after the coming into force of the order or
designation even if their occupation began before, or in pursuance
of a contract made before, it came into force. This is subject
to subsections (3) to (5).
(3)
Subsection (4) applies where-
(a)
an HMO which is licensed under this Part, or a part of such
an HMO, is occupied by more households or persons than the
number permitted by the licence; and
(b)
the occupation of all or any of those households or persons
began before, or in pursuance of a contract made before, the
licence came into force.
(4) In proceedings against a person for an offence under section
72(2) it is a defence that at the material time he was taking
all reasonable steps to try to reduce the number of households
or persons occupying the house to the number permitted by
the licence.
(5) Subsection (4) does not apply if the licence came into
force immediately after a previous licence in respect of the
same HMO unless the occupation in question began before, or
in pursuance of a contract made before, the coming into force
of the original licence.
(6)
An order under section 270 may make provision as regards the
licensing under this Part of HMOs-
(a)
which are registered immediately before the appointed day
under a scheme to which section 347 (schemes containing control
provisions) or 348B (schemes containing special control provisions)
of the Housing Act 1985 (c. 68) applies, or
(b) in respect of which applications for registration under
such a scheme are then pending.
(7) In subsection (6) "the appointed day" means the day appointed
for the coming into force of section 61.
77
Meaning of "HMO"
In
this Part-
(a)
"HMO" means a house in multiple occupation as defined by sections
254 to 259, and
(b)
references to an HMO include (where the context permits) any
yard, garden, outhouses and appurtenances belonging to, or
usually enjoyed with, it (or any part of it).
©
Crown copyright 2004 Prepared 2 December 2004
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