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Right to Rent ruling: the implications

David Smith
Written by David Smith

Landlords and agents will have seen the news saying that the Right to Rent has been held by the High Court to be in breach of the Human Rights Act. 

The RLA intervened in this important case to protect the interests of landlords and instructed Giles Peaker of Anthony Gold Solicitors.

Here RLA policy director and partner at Anthony Gold, David Smith explains the implications.

What does it mean?

However, the more pressing question today for many will be, what does this mean? Do landlords and agents no longer have to do checks? The short answer is that nothing changes for the moment.

The ruling by a High Court judge is that the Right to Rent scheme, in its entirety, is in breach of the Human Rights Act because its inevitable consequence is to lead landlords to discriminate.

However, the Human Rights Act does not permit courts to strike down primary legislation, so that legislation will remain in place for the moment and checks still need to be done.

Options

At this stage the Secretary of State has two options. Firstly, they can appeal. Initially to the Court of Appeal and then on to the Supreme Court.

Permission to appeal to the Court of Appeal has already been granted and so that appeal is quite likely. If the Secretary of State were to win that appeal then the position would be reset and be as if the High Court decision had never happened.

The second option is to take the matter back to Parliament which is what the Secretary of State should do if he is not going to appeal or he will have to do if an appeal is lost.

In fact an Immigration Bill is coming before Parliament as one is required to resolve immigration issues arising from the impending departure of the UK from the European Union.

That Bill could either remove the Right to Rent from the statute book altogether or make considerable amendments to it.

There is the possibility here of a running fight with the government tweaking the Right to Rent a bit and then another Court ruling that it is still unlawful. This has happened before in relation to terrorism control orders.

However, until one of these things occurs then things proceed as normal.

That said it would be a challenge for the Secretary of State to levy a penalty or commence a prosecution against a landlord or agent who had got their checks wrong at the moment as they would be doing so based on a piece of legislation which has been held to be without foundation.

The RLA offers guidance on Right to Rent. To access the guide click here.

The association also offers a Right to Rent training course. To find out more about the eLearnng course click here.

MHCLG has launched a website to enable landlords to check if someone can rent their residential property. For more information click here.

About the author

David Smith

David Smith

David Smith is the Policy Director for the RLA and a Partner at Anthony Gold Solicitors. David obtained his degree and doctorate from the University of Wales, Aberystwyth in International relations before re-qualifying as a lawyer. He is known for his expertise in residential landlord and tenant law and has advised the Welsh Assembly, local government, and numerous landlords and tenants of all sizes.

1 Comment

  • To me, as a landlord, it is not a hassle to check whether someone has the right to rent. I also happen to think that it is right to do so if we want to reduce the level of illegal immigration.

    So I was not in favour of the RLA’s court action.
    As for discrimination, we discriminate all the time; eg between good and bad tenants, between ones we like the look of and the ones we don’t (it’s just a feeling or gut reaction), between the ones we think we can trust and the ones we don’t. The list goes on. We discriminate between the good and the bad, between good taste and bad taste.
    We lead busy lives, and often we don’t have the time, or inclination to judge on a case by case basis.

    For example, I see nothing wrong with landlords discriminating against tenants on benefits: they probably do so on the basis of bad expreriences and therefore, once bitten twice shy. I happen to rent to some tenants on benefits and so far have not had any bad experiences. So I don’t reject DHS applicants out of hand. But I do not deny others the right to do so.

    When we check a prospective tenant’s credit rating, we are discriminating, I suppose. I do this as a matter of course. Will there soon be a law that says we must only do this on a case by case basis?

    Anyway, as long as the verification of Right to Rent is not too onerous for landlords, I think it should be carried out.

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