Government resists calls to clarify 'temporary absences' in new subletting law

Published by 24publishing for 24dash.com in Housing and also in Central Government, Communities, Local Government

The Government is pressing ahead with plans to criminalise subletting but only where the tenant no longer lives in the property or has given up possession.

It has shied away from "prescribing more closely" circumstances of temporary non-occupation - e.g. where a tenant moves temporarily to care for a relative or at the other extreme, moves in with a partner.

Its subletting plans were outlined in a summary of responses from the consultation, which closed in April.

The Department for Communities and Local Government (DCLG) said it wanted to avoid creating new criminal offences when existing criminal sanctions may already be available.

It said that a "new offence is necessary only to address those situations where a tenant who is not in occupation unlawfully sub-lets or parts with possession (which would include key-selling)."

It said 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.

It said: “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.”

This, despite around 85% of respondents being supportive of looking to clarify such circumstances.

The DCLG confirmed it was backing Conservative MP Richard Harrington’s private member’s Bill taking forward elements of the consultation on tenancy fraud.

The Bill would criminalise subletting and give councils the power to prosecute on behalf of other local authorities and housing associations as well as on their own behalf. It would also make those convicted pay back unlawfully obtained profits to the landlord. 

The document revealed that some 90% of respondents supported the introduction of a "mandatory data sharing gateway" - requiring certain bodies to provide relevant information – linked to criminal prosecutions for tenancy fraud.

In terms of estimated annual requests to the new mandatory gateway, one inner London authority said it could submit up to 2,000 requests.

The Government said it would work with the Home Office and other Government departments to give further thought around the best and most efficient way of putting a mandatory gateway in place, with a view to legislating to deliver it.

Estimates suggest that between 50,000 and 160,000 social homes are unlawfully occupied across the country.