Homelessness, Right to Rent and Discrimination Regs are Incompatable – Discuss

Ben Reeve Lewis considers right to rent in the context of a new but little known law.

I recently attended Sam Madge-Wyld’s excellent legal updater course in Cambridge (one of our Easy Law Training workshops) and despite rapidly going downhill with the dreaded lurgy as the day wore on, my fevered brain set to thinking about a different aspect to the Right to Rent that he was updating us on.

The Social Perspective

Plying my trade, as I do, between rogue landlord stuff and homelessness law I tend to come at things from a slightly different angle and it is my ruminating from this twin perspective I want to share with you.

Because while Landlord Law Blog readers might in the main be focussing on what this will mean for their business – I invite you to look at it from a social perspective as well, which ultimately, you all pay for through your tax.

To precis, the Right to Rent is the government initiative that everyone else calls “Landlords as immigration inspectors” because that is basically what it is.  Despite protestations from government themselves about the use of the phrase, having as it does, the element of the Emperor’s new clothes about it.

The Criminal perspective

What Sam informed the assembled throng of landlords and agents is that since the introduction of the Immigration Act 2016 the penalty for breaching is no longer civil as originally mooted when it first came in last year but is now a criminal offence.

Under the Right to Rent the only people automatically scraping in under the bar are British Nationals, EEA Nationals and the Swiss.

Nationals of other countries will also have the right to rent but only if they have approved immigration status conferred by a long list of arcane regulations that would test Stephen Hawking to understand, let alone explain.

Vietnamese Recipes

Being a veteran of several hundred homelessness reviews I can warn all comers that reading through a Home Office letter to try and ascertain whether or not a person does indeed have legal status in the UK is often like trying to decipher a recipe for Blackberry Meringues written in Vietnamese.

Questions of eligibility are the bane of any homelessness officer’s life – and if housing professionals, with the requisite training and experience struggle with it, where does that leave landlords and agents?

But here’s where Sam’s presentation set me thinking. Most people who wont have the right to rent will be the same people that wont be eligible for homelessness assistance…………but not all.

Out but also in

Failed asylum seekers who are destitute or have children are still owed a duty of care, even without approved immigration status, said status arising out of convoluted rules not covered in the normal Right to Rent bollocks……sorry, I meant to say ‘Guidance’, damned spellchecker!

Section 17 of the Children’s Act places a separate duty of care on a local authority social services department (not the homelessness unit) for people who are excluded from other assistance by the immigration rules – but the right to rent regulations stipulate that a person will be cleared if they have been placed in accommodation by a council exercising a statutory duty.

So they are out in one sense but in, in another.

Now the council will need to place people in accommodation to fulfil that duty but where, in a climate where landlords are being threatened with fines or imprisonment if they get it wrong?

The Spaniard in the works

And there is a further Spaniard in the works (Beatles joke for those old enough) – the little known about amendment to the immigration regulations, due into force on the 30th October 2016 which is going to make huge numbers of people from abroad eligible for some form of homelessness assistance who currently aren’t  effectively any foreign national having a child with an EEA national.

If you read the ‘Explanatory Memorandum’ to the amendment regulations link above you will see that the impact assessment says:-

“10.2 The impact on the public sector is not expected to be significant as the number of people affected by these changes is likely to be small.”

As one homelessness wag I know commented “Based on a small survey conducted in Cornwall”.

Appendix FM cases

Any large city authority sees hundreds, if not thousands of these homelessness applicants, called ‘Appendix FM cases’ and will continue to do so over the coming years.

Appendix FM cases will be entitled to the right to rent because they will have immigration status conferred upon them but as it is, homelessness units the length and breadth of the land struggle to recruit PRS landlords to provide accommodation in a culture of prejudice against benefit claimants, not to mention the benefit cap hitting the brick wall of market rents, when there are enough non-benefit dependant tenants in constant need of PRS rented accommodation.

In real terms pushing people subject to more complex immigration rules into statutory duties of local authorities who can be prosecuted for not accommodating, in an environment where understandably, nobody wants to accommodate them for fear of being fined or even imprisoned.

Its Madness!

Business considerations aside can you just step back for a second and see how mad this is?

For the want of an army of landlords intimidated by the threat of criminal action these people are going to be condemned to the hell of temporary accommodation, against the background of other legislation that deems it illegal for a council to keep families in B&B for more than 6 weeks.

And if you thought there is a get-out by simply not renting to people from abroad, think again.

Having realised that landlords might respond this way government points them to section 33 of the Equality Act 2010 which makes it an offence for landlords and agents to discriminate against another person on grounds of race by not letting to them.

Lest your brain do a double take, as mine did when I put these facts together, what you have with the Immigration Act relating to the Right to Rent is a piece of legislation whose sole basis for existence is to discriminate against large swathes of humanity and to encourage further discrimination whilst at the same time stressing that a landlord or agent must not discriminate.

You can imagine Sir Humphrey and Jim Hacker sitting down to work that one out.

So to recap:

• The right to rent will make it a criminal offence punishable by a fine and imprisonment for letting to people from abroad who don’t have the right to rent.
• Figuring out whether people have legal immigration status has for decades tested the legal knowledge of homelessness professionals across the land and its about to get even more complicated from the end of this month.
• You can’t refuse to rent to people from abroad because that’s discrimination, even though the very Act itself has discrimination built into it’s legislative DNA. Government can do it but you cant.
• Councils have a statutory duty to house people fitting certain criteria and will be breaking the law if they don’t, or if they leave them in B&B for more than 6 weeks.
• Government are about to usher in new rules making even more people eligible for those criteria.
• For the want of properties people will spend even more time in temporary accommodation, causing councils to break the law and at cost to all tax payers.
• Organised criminals dismissive of penalties will fill the void. This already happens, those at the bottom of the heap being prey to people traffickers and gang-masters.

Now stand there with a straight face and tell me that government has a grip on all this!