The Right to Rent has been a controversial topic in the Private Rented Sector in England. It remains a topic for England only as it has yet to be extended to Wales, Scotland or Northern Ireland.

During the Covid pandemic the Right to Rent has been considerably altered. First it was altered directly as a result of Covid to allow for checks to be done remotely using scanned documents instead of requiring originals. Second, as the UK’s departure from the EU took hold the Right to Rent was modified to remove the preferential access enjoyed by EEA nationals and to embrace the EU Settlement Scheme.

In April of 2022 there will be further changes with a new Code of Practice coming into effect. The draft is available on the Right to Rent Code of Practice pages now however and landlords and agents should be studying it.

The first thing to note is that the movement is very much towards online checks. Biometric Residence Cards and Permits and Frontier Worker Permits will all not be acceptable for Right to Rent checks from April and anyone presenting with one of these will have to be checked using the online service [https://www.gov.uk/view-right-to-rent] which is also used to check EEA nationals with settled or pre-settled status.

Not wanting UK and Irish nationals to be left out, the Home Office is also going to have an online checking process for them. However, it is not putting them into a government system. This is undoubtedly a political decision which recognises the fact that Conservative back-benchers would not stand for anything that looked like an ID card or government ID system. To get around this the government is going to agree with third party organisations (Identity Service Providers or IDSPs) that they can carry out ID checks on British and Irish tenants. This will require the tenant to register with the IDSP and then for that provider to provide agents and landlords with a check using Identity Document Validation Technology (IDVT) they are connected with using a further online service. What is not clear is whether tenants might potentially have to register with multiple ID checking services as there are bound to be more than one such provider in the market. It also potentially opens up a new avenue of discrimination in the Right to Rent system as those tenants who cannot register easily or elect not to will find it harder to rent property because agents will want to deal with tenants that they can quickly check with minimal risk. This new service was all meant to be in place for April as well but it is delayed until September and so British and Irish nationals will continue to have to use current mechanisms until then. One could be forgiven for thinking that this was what the Home Office should have been doing right from the start but it is probably better late than never.

There is also a tightening of the rules around EU nationals using documents from Jersey, Guernsey and the Isle of Man or using the EU Settlement Scheme. Landlords will now have to validate their documents using the Home Office Landlord Checking Service.

The B5JSSK approval service will also continue and I suspect that this will be the future for an increasing number of countries. I have written a lot more about this scheme elsewhere.

Tied to these changes is a completely renewed code of practice on the avoidance of discrimination in Right to Rent checks. The concepts remain unchanged but the language has altered to reflect the wider spread of possible checking mechanisms. The underlying principle remains that Right to Rent checks should be limited to establishing the Right to Rent and should not be used for other purposes. In practice it is almost inevitable that those people who do not fit easily into one of the approved checking mechanisms, especially the online ones, will be excluded from the new systems due to the practical difficulties in carrying out checks.

The Right to Rent will be going through a period of upheaval in 2022 as these changes come into effect. In practice the Home Office has been a relatively relaxed enforcer of the rules but for agents the bigger issue will be the more prosaic challenges of incorporating all of this into their processes and ensuring that their staff are aware of the myriad complex checking mechanisms to ensure they avoid discrimination.