FOI request (FOI-101228191)

Selective Licensing conditions

The RLA represents the interests of landlords in the private rented sector across England and Wales. We’re home to over 50,000 landlords nationwide, with a combined portfolio of over a quarter of a million properties. A growing community of landlords who trust and rely on us to deliver day-to-day support, expert advice, government campaigning, plus a range of high-quality services relevant to their needs.

We are writing to enquire about your actions in relation to your Selective Licensing scheme with reference to the Court of Appeal decision in Brown v Hyndburn Council on appropriate conditions for a licence made under Part 3 of the Housing Act 2004.

As you will be aware, the Court gave guidance on the extent of local authority powers in relation to the licence conditions that may be included within licences of houses of selective licensing.

In Brown, the appellant was a private landlord with a property in a designated selective licensed area, and was granted a licence, which included the following conditions:

(1) “If gas is supplied to the property a suitable carbon monoxide detector must be provided, maintained in good working order and tenants made aware as to its operation”

(2) “The licence holder must ensure, throughout the period of the licence that the premises are covered by a valid Electrical Installation Condition Report (“EICR”), where the report states the installation is unsatisfactory this must be remedied within 38 days and the licensing team notified upon completion of such works. If a report recommends a re-test during the term of the licence, an up to date report must be provided to the landlord licensing team within 7 days of the re-test date.”

The Court of Appeal has made clear that as the law stands any condition directed to the condition and content of a property, or the provision or maintenance of facilities and equipment therein, rather than its management, use and occupation, will be unlawful. The Court narrowly interpreted the powers of s90(1) of the Housing Act 2004 and concluded that a licence condition requiring the installation of new equipment was not within the councils’ powers to do so. In many cases, local authorities include standard conditions in licenses addressed to condition/content and facilities/equipment. The Court of Appeal has now ruled such measures unlawful.

Consequently, because of Brown, local authorities have been advised to review their licensing conditions, if have not already done so.  This is to ensure that each condition is considered individually considering the statutory objectives.

In its decision making, the Court pointed out the importance of the Housing Health and Safety Ratings System (HHSRS) (Part 1 of the Housing Act 2004) being used to deal with physical defects in private rented properties, and that the identification, removal or reduction of hazards via enforcement action should be dealt with under Part 1, not by licence conditions. This should be the route that local authorities take in dealing with such issues, and not via Selective Licensing.

In light of this decision, we ask if the council has recently reviewed its selective licensing conditions taking into consideration Brown v Hyndburn, to what degree changes have been made as a result, what amendments are being made to existing licences, and how this has been publicly communicated to landlords?