DCLG to narrow focus of new offence of unlawful subletting
The scope of the proposed new criminal offence of unlawful subletting is to be narrowed, the Department for Communities and Local Government has confirmed.
The DCLG’s move came as City of York Council became the latest authority – after Camden and Westminster – to use the Fraud Act to mount a successful prosecution.
Publishing its response to a consultation on social housing fraud, the Department said it had taken into account the need to avoid creating new criminal offences when existing criminal sanctions might already be available.
It has therefore concluded that a new offence is only necessary to address those situations where a tenant who is not in occupation unlawfully sub-lets or parts with possession (which would include key-selling).
“We do not intend to seek to prescribe more closely the circumstances in which a period of absence from a property would mean it ceased to be a tenant’s sole or principal home,” the DCLG said.
It added: “Consultation responses showed a wide diversity of views on what should be considered a necessary or voluntary absence and a strong belief that individual circumstances needed to be looked at on a case by case basis.
“We do not think that in practice we could provide further clarity whilst retaining flexibility in a way that usefully complements the existing body of case law on this issue.”
The announcement was made as the Private Member’s Bill introduced by Richard Harrington MP, which the Government is supporting, reached the Second Reading stage.
The DCLG said that subject to Parliamentary approval, this Bill would:
- “create new criminal offences of unauthorised sub-letting with the prospect of imprisonment on conviction;
- give local authorities the power to prosecute these new offences both for other local authorities and on behalf of private registered providers as well as on their own behalf; provide for unlawful profit orders in both criminal and civil proceedings, which will require the person against whom the order is made to pay to the landlord any profit made from unlawful sub-letting; and
- ensure that an assured tenant of a private registered provider permanently loses their assured status when they sub-let or part with possession of the whole of their property.”
The DCLG also said in its response that it considered the creation of a mandatory gateway requiring certain bodies to provide relevant information was a key element both in detecting unauthorised sub-letting and in enabling successful criminal prosecutions.
“We also consider that the role a mandatory gateway should play in increasing the likelihood of being detected would have a significant deterrent effect,” it argued.
The Department said it recognised that this was a complex issue and that any new mandatory gateway for tenancy fraud would need to be considered in the context of its commitment to strengthen public bodies’ ability to share data for the purposes of tackling fraud.
It added that it would work with the Home Office and other departments to give further thought to the best and most efficient way such a gateway could be put in place.
The aim will be to legislate to deliver that, “as well as a new offence for non-compliance with a request for data, when the right opportunity arises”.
A copy of the Government’s response to the consultation can be found here.