Easing of the Right to Rent

17th April 2020 Commercial Litigation

On Monday 30 March, the Home Office has today announced that it will be easing the Right to Rent process for landlords during the worst of the Covid-19 outbreak in the UK.

The Right to Rent springs from the Immigration Act 2014 and was a part of the creation of the "hostile environment" by then Home Secretary, Theresa May. The process requires landlords to establish that tenants and licencees have a Right to Rent by carrying out document checks. These must either be done face to face or by video link. However, the original documents must be in hand at the time and so, in practice, the checks are pretty much always done face-to-face. There is also a need to redo checks periodically for those people who do not have a permanent Right to Rent in the UK. Naturally, during the current crisis, all these face-to-face meetings seem less than wise.

Accordingly, the Home Office has relaxed the regime. It is important to note that it has not actually changed the rules. The rules of the scheme are set out in the full Code of Practice and changes to this can only be approved by Parliament. So the Home Office has simply indicated that it will not seek to issue civil penalties or prosecute landlords or agents during the period in which it deems the reduced Code applies.

This limited period lasts from today, 30 March 2020 until a non-specified future date. Once the Home Office announces that date then at that time the limited application period will end and the full Code of Practice will resume.

During the more limited checking period the full rules in terms of the number and type of documents that must be checked and who must be checked will continue to apply as normal. However, the requirement for a face-to-face check with original documents in hand is waived. Instead landlords and agents need to be sent a scan or photo of the appropriate documents being used to evidence the Right to Rent. They must then have a live video chat with the person being checked, ask them to hold up the original of the scanned document and then verify that the document and person are the same. A record must be kept of the check (although there is no need for a video recording) and it should be marked as "an adjusted check has been undertaken on [insert date] due to COVID-19". If someone cannot produce the correct documents then the Landlord's Checking Service should be contacted and they will decide what to do.

Once the reduced period of checking is over landlords and agent then have eight weeks in which to redo any check done in the reduced checking period. Those checks must then be done face to face and new copies taken of the original documents. These should be recorded as well with the phrase "the individual’s tenancy agreement commenced on [insert date]. The prescribed right to rent check was undertaken on [insert date] due to COVID-19".

At the time of the follow-up check if the tenant then is shown to have never had the Right to Rent then the tenancy should be ended. If the check was a renewal of a time-limited Right to Rent and fails on the review check it must be reported to the Home Office in the usual way.

This seems like an enormous bureaucratic effort to deal with a relatively small issue. It was well within the powers supplied by the Coronavirus Act 2020 to simply suspend the Right to Rent altogether for the duration. Instead the Home Office has created an even more complex checking process to replace it for a temporary period and then loaded in more work by redoing all those checks later on. Given the very limited evidence the Home Office has for the efficacy of the system (by which I mean largely non-existent evidence) there is little justification for not pausing the process for a short time.

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David Smith is a Partner located in Londonin our Commercial Litigation department

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