Social housing speed read – ‘right to rent’ checks
8th February, 2016
This week we're looking at the introduction of the "Right to Rent" checks that became compulsory on 1 February 2016.
Aren’t Housing Associations exempt from the Right to Rent Checks?
The answer is not in all circumstances. Registered providers are exempt when granting a tenancy based on their statutory duties under part 2 Housing Act 1985 or parts 6 and 7 Housing Act 1986, but tenancies that you grant under your own criteria, a direct let, are not exempt.
The checks also apply to any lodgers or sub-tenants. You may currently encourage tenants to take a lodger to avoid “Bedroom Tax” Housing Benefit shortages and although the tenant acting as landlord would bear the primary responsibility to carry out the checks, you should act responsibly and advise your tenants of their obligations. You can also be asked by the tenant to take on their responsibility and carry out the checks yourself.
What are the checks?
You have to be satisfied that all adults who are going to be occupying the property as their home, so not just the tenant, have a right to rent. In the majority of cases this will be straightforward as production of a UK, EU or Swiss passport will satisfy the right to rent.
However, there will be cases where prospective occupiers do not have such a passport, because they come from countries outside these areas, or simply because they don’t have a passport. The Government has produced extensive guidance and you should check this in all cases where an occupier cannot produce a passport.
The Government has stressed that they do not expect landlords to become immigration officers or forgery experts, but you do need to examine the documents to ensure there are no obvious indications the document is a forgery or has been tampered with.
When should checks be made?
Checks should be carried out before the tenancy agreement is entered into, and for those with a time limited right to rent, for example they have a limited right to remain in the UK, the checks must be carried out within 28 days prior to the start of a tenancy, and then followed up as appropriately to check that right to rent is continuing.
On the purchase of housing stock from another landlord or registered provider where the properties have sitting occupiers you should also make sure you check the original landlord carried out the appropriate checks on the grant of any tenancies as part of your due diligence.
And if you don’t …
A landlord can face a civil penalty of up to £3,000 per occupier. So make sure you read the guidance and know when and how to carry out the checks.
You cannot act in a discriminatory manner when asking for evidence of right to rent. This could arise indirectly, for example by not allowing a prospective tenant sufficient time to obtain the required documents.
Check Government guidance on how to avoid acting in a discriminatory manner.
You must keep copies of all documents seen, but the Data Protection Act will apply so all information must kept securely and no longer than necessary.
For more information on the Right to Rent checks please click here.
If you have any questions on the Right to Rent provisions and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray or a member of our expert Social Housing Team.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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