Housing Act 2004

EnforcementE+W

72Offences in relation to licensing of HMOsE+W

(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 [F1a fine] .

(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.

[F2(7A)See also section 249A (financial penalties as alternative to prosecution for certain housing offences in England).

(7B)If a local housing authority has imposed a financial penalty on a person under section 249A in respect of conduct amounting to an offence under this section the person may not be convicted of an offence under this section in respect of the conduct.]

(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of subsection (4) a notification or application is “effective” at a particular time if at that time it has not been withdrawn, and either—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 [F3the appropriate 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).

73Other consequences of operating unlicensed HMOs: rent repayment ordersE+W

(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 [F4(in the case of an HMO in Wales) or in accordance with Chapter 4 of Part 2 of the Housing and Planning Act 2016 (in the case of an HMO in England)] .

(5)If—

(a)an application in respect of an HMO is made to [F5the appropriate tribunal] by the local housing authority or an occupier of a part of the HMO [F6in Wales] , 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 [F7relevant award or awards of universal credit or 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),

[F8(b)that—

(i)one or more relevant awards of universal credit have been paid (to any person); or

(ii) 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,]

(c)that the requirements of subsection (7) have been complied with in relation to the application.

[F9(6A) In subsection (6)(b)(i), “relevant award of universal credit” means an award of universal credit the calculation of which included an amount under section 11 of the Welfare Reform Act 2012, calculated in accordance with Schedule 4 to the Universal Credit Regulations 2013 (housing costs element for renters) ( S.I. 2013/376 ) or any corresponding provision replacing that Schedule, in respect of periodical payments payable in connection with the occupation of a part or parts of the HMO. ]

(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

(i)[F10one or more relevant awards of universal credit, or

(ii)[F10 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 [F11 universal credit or ] 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);

• [F12“periodical payments” means—

  (a)

  payments in respect of which an amount under section 11 of the Welfare Reform Act 2012 may be included in the calculation of an award of universal credit, as referred to in paragraph 3 of Schedule 4 to the Universal Credit Regulations 2013 (“relevant payments”) ( S.I. 2013/376 ) or any corresponding provision replacing that paragraph; and

  (b)

  periodical payments in respect of which housing benefit may be paid by virtue of regulation 12 of the Housing Benefit Regulations 2006 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 [F13universal credit or] housing benefit,

is to be regarded as an amount paid by the occupier in respect of that periodical payment.]

74Further provisions about rent repayment ordersE+W

(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

[F14(b)that—

(i)i)one or more relevant awards of universal credit (as defined in section 73(6A)) were paid (whether or not to the appropriate person), or

(ii) 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 in question, ]

the tribunal must make a rent repayment order requiring the appropriate person to pay to the authority [F15the amount mentioned in subsection (2A)].

This is subject to subsections (3), (4) and (8).

[F16(2A)The amount referred to in subsection (2) is—

(a)an amount equal to—

(i) i)where one relevant award of universal credit was paid as mentioned in subsection (2)(b)(i), the amount included in the calculation of that award under section 11 of the Welfare Reform Act 2012, calculated in accordance with Schedule 4 to the Universal Credit Regulations 2013 (housing costs element for renters) ( S.I. 2013/376 ) or any corresponding provision replacing that Schedule, or the amount of the award if less; or

(ii)if more than one such award was paid as mentioned in subsection (2)(b)(i), the sum of the amounts included in the calculation of those awards as referred to in sub-paragraph (i), or the sum of the amounts of those awards if less, or

(b)an amount equal to the total amount of housing benefit paid as mentioned in subsection (2)(b)(ii),

(as the case may be).]

(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 [F17 amount mentioned in subsection (2A)], 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 [F18relevant awards of universal credit or]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 [F19relevant awards of universal credit,] housing benefit or periodical payments payable by occupiers;

(b)in relation to an application by an occupier, periodical payments payable by the occupier, less

(i)[F20 where one or more relevant awards of universal credit were payable during the period in question, the amount mentioned in subsection (2A)(a) in respect of the award or awards that related to the occupation of the part of the HMO occupied by him during that period; or

(ii) any amount of housing benefit payable in respect of the occupation of the part of the HMO occupied by him during the period in question ]

[F20(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 [F21universal credit or] 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 [F22universal credit or] 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.]

75Other consequences of operating unlicensed HMOs: restriction on terminating tenancies [F23(England)] W

(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.

[F2475AOther consequences of operating unlicensed HMOs: restriction on terminating tenancies (Wales)E+W

(1)No section 173 notice, no section 186 notice, no paragraph 25B of Schedule 12 notice and no section 194 notice may be given in relation to a standard contract of a part of an unlicensed HMO as long as it remains such an HMO.

(2)In this section—

• “2016 Act” means the Renting Homes (Wales) Act 2016 (anaw 1);

• “paragraph 25B of Schedule 12 notice” means a notice under paragraph 25B of Schedule 12 to the 2016 Act (termination of contract by landlord);

• “section 173 notice” means a notice under section 173 of the 2016 Act (landlord’s notice);

• “section 186 notice” means a notice under section 186 of the 2016 Act (landlord’s notice in connection with end of term of contract within Schedule 9B);

• “section 194 notice” means a notice under section 194 of the 2016 Act (landlord’s break clause);

• “standard contract” has the same meaning as in the 2016 Act (see section 8 of the 2016 Act);

• “unlicensed HMO” has the same meaning as in section 73 of this Act.]