The Home Office says its Right to Rent scheme is informed by experts. But did it listen to them before losing a High Court case?

Written by Beckie Smith on 6 August 2019 in Feature
Feature

The Right to Rent scheme has been beset by criticism and fears that it could stoke discrimination since before its rollout in 2016, culminating in a damning High Court judgement this year. All the while the Home Office has said a panel of experts has helped to implement and monitor the scheme – but a long hiatus, ignored warnings and a lack of transparency have raised questions.

Photo: Yui Mok/PA

When Mr Justice Spencer handed down his High Court judgement in March that the government’s Right to Rent scheme breached human rights legislation, it was hard not to wonder if the scheme’s architects should have seen it coming.

Spencer said the evidence “strongly showed” Right to Rent – which requires landlords to screen potential tenants’ immigration status – caused landlords to discriminate against both foreign nationals and black and minority-ethnic British citizens. Even before its implementation in 2016, critics had cautioned that the scheme would do just that, with some even warning it could make people homeless.

What the Home Office may not have seen coming is that two of the organisations it had enlisted to consult on Right to Rent would back the High Court challenge. The Residential Landlords Association and the Equality and Human Rights Commission are both members of a consultative panel the department said had “worked with the government on the implementation and evaluation of the scheme”.


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But there are questions about how much the Home Office has listened to the group – whose members include the British Property Federation, the housing charity Shelter, the UK Association of Letting Agents and the Royal Institute of Chartered Surveyors.

Insiders told CSW they believed some of the input of the Landlords Consultative Panel had been ignored.

Met with hostility

The Right to Rent scheme rolled out across England in February 2016 after a year-long pilot in four West Midlands boroughs, as part of the Home Office’s so-called hostile environment policy. Landlords must carry out “reasonable checks” as to whether prospective tenants have the right to live in the UK, or face a £3,000 fine or up to five years in prison.

In summer 2018, the Joint Council for the Welfare of Immigrants, which wants the scheme scrapped, won the right to challenge it in court. The EHRC, RLA and the civil rights group Liberty all intervened in the case later.

From the start, Right to Rent had faced near-unanimous opposition from landlords, letting agents, tenants’ groups, and human rights and housing charities – meaning that members of the consultative panel were overwhelmingly against the scheme.

Different groups objected to the administrative burden of conducting checks; the risk that over-cautious, racist or otherwise unscrupulous landlords could arbitrarily screen people out; and the hostile environment itself.

“We have been – sceptical would be too light a word – very concerned about Right to Rent. Frankly, I don’t think there’s anybody around the table that likes the policy,” Chris Norris, director of policy and practice at the National Landlords Association, tells CSW.

When Norris joined the panel, he thought: “We’ll try and make it as pain-free as we can… but we’d all far rather the policy went away.”

But it was how the Home Office responded to the panel’s concerns – or didn’t – that pushed the RLA to back the JCWI’s legal challenge, explains its policy director David Smith, also a panel member.

He says the legal challenge “could easily have been avoided” had the department listened to calls to review the scheme. “Many of the problems with Right to Rent were made clear repeatedly in meetings at an early stage and these concerns were ignored,” Smith says.

As well as the potential for outright discrimination, panel members were worried about reports that some landlords were unwilling to let to individuals with “unfamiliar documents” proving their immigration status, rather than passports.

The March High Court ruling bore the panel’s concerns out. Spencer said the requirements did “not merely provide the occasion or opportunity” for landlords to discriminate, but actively caused them to do so based on ethnicity and nationality.

The judge also halted a planned rollout of the scheme in Scotland, Wales and Northern Ireland, which he said would be “irrational” without further evaluation. The requirements remain in place in England while the Home Office appeals the judgement.

Four days after the verdict, then immigration minister Caroline Nokes said the panel would meet to “look at the operation of the scheme and the guidance provided to landlords and lettings agents”.

But the panel had met only once in the two years leading up to her statement, in October 2018.

The long hiatus

In the early days, Norris says, the panel’s quarterly meetings were “reasonably constructive”.

“I’ll give the Home Office their due: in that first year, maybe two, of the policy there were lots of changes made in response to the concerns of those around the table,” Norris says of the pilot phase leading up to the 2016 rollout.

Subgroups formed and members suggested improvements to a code of practice and communications strategy to get the message out about the requirements. Norris says they didn’t have “quite as much impact on the communications as we would have liked”, but he puts that down to resource constraints.

Norris is especially positive about the group’s co-chairs – then-immigration minister James Brokenshire and the crossbench peer and social housing leader Lord Best. Brokenshire, he says, “seemed very engaged”.

The group continued to meet around three times a year after the 2016 rollout across England. “There were things that went wrong when [the Home Office] launched the policy but they listened and responded pretty well,” Norris says.

It was a few months later, when Brokenshire left the department in mid-2016, that the group seemed to come unstuck. Meetings slowed under Brokenshire’s successor, Robert Goodwill, and had dried up altogether by the time Brandon Lewis took over a year later.

Between November 2016 and October 2018, the panel didn’t meet at all.

The two-year hiatus happened despite Lord Best’s efforts to keep discussions on ministers’ agendas amid Brexit preparations. “We had a series of new immigration ministers and I did drop them a line one by one suggesting meetings,” he tells CSW.

Best is sympathetic to the challenges posed by ministerial turnover and Brexit, but says trying to get dates in the diary became “very frustrating”. He adds: “As a matter of good process, we ought to sustain our pattern on meetings.”

Best is pleased that Home Office has now agreed to three meetings a year, following up the October meeting with a second in April.

The reconvening of the panel in October was partially in response to a March 2018 report on the Right to Rent scheme by David Bolt, chief inspector of borders and immigration.

Bolt’s report had in fact called for the panel to be replaced by an overhauled and more inclusively-named “Right to Rent Consultative Panel” that included groups “concerned with the rights and interests of migrants”. Its remit “should include raising and agreeing how to tackle issues and concerns about the working of the Right to Rent measures”, he said.

He urged the Home Office to work with the new group on plans to monitor and evaluate the measures, including their impact on discrimination, exploitation or homelessness – the examination of which he said had been “beyond the capacity and competence of the inspectorate”.

In its response, the Home Office rejected the call for a new panel, but compromised by reconvening the existing one. It also dropped “landlords” from the group’s title and promised to “address the chief inspector’s recommendation in full”.

And in the October meeting – seven months later – the freshly-rebranded “Right to Rent Consultative Panel” agreed to invite the JCWI, which led on the High Court case, to join.

In a letter to the charity’s chief executive Satbir Singh, Nokes said she believed JCWI’s insights would be “beneficial to us all”.

“Of course, while legal proceedings against the scheme are still underway, we will not be able to discuss the case or anything which may prejudice the case. However, I do hope that you will be able to accept the invitation in the spirit it is offered.”

The invitation was declined.

JCWI wants Right to Rent abolished, communications director Sarah Marcus says. “We do not want to engage with a panel, the ostensible aim of which is to make the scheme work better.

“We believe that the panel is being used for whitewashing, to give the appearance of engaging with stakeholders, while actually doing nothing substantive whatsoever.”

JCWI’s legal policy director, Chai Patel, said as much in a letter to former police watchdog Wendy Williams, who is leading the Home Office’s “lessons learned” review into the Windrush scandal. He said continuing with the scheme in England despite the High Court ruling “gives the lie” to the claim that the Home Office wants to learn from the Windrush scandal.

Patel’s letter, dated 23 April, said the panel had been “wrongly used by the home secretary [then Sajid Javid] to claim that meaningful evaluation of the scheme was taking place”, and that the JCWI would not allow itself “to be misused in this way”.

Nokes said in the October meeting that she would consider the panel’s suggestions to also invite police and university representatives, a group “representing BAME interests”, and an EU citizens group to join.

After the High Court judgement, the EHRC withdrew from meetings. A spokesperson said attending would be inappropriate, given its role in the court case.

Reviewing the scheme

One pressing question is whether the problems with Right to Rent, and the resulting court case, could have been avoided had panel meetings not been put on pause for two years.

Lord Best isn’t convinced. “I don’t think it’s fair to say, ‘if only we’d met, all would be well,’” he says.

And despite believing that the Home Office could have avoided legal action by reviewing the scheme, Smith of the RLA isn’t convinced more meetings would have changed anything either. After all, the panel’s efforts to persuade the department to launch a review were unsuccessful even when meetings did take place.

Minutes from a January 2016 meeting record then-immigration minister Brokenshire saying that although no formal evaluation was planned, he wanted the experts to “provide feedback about unexpected issues that may surface”.

But asked two years later how it had acted on Brokenshire’s comments, the Home Office told inspectors that it did “not hold any data or reports relating to monitoring”.

Only in March this year, after the court judgement, did Nokes say the Home Office was “looking at options for a further evaluation” of Right to Rent and further monitoring mechanisms.

CSW understands the upcoming review could be modelled on a 2015 evaluation that Nokes said found “no systemic” racial discrimination in the project’s trial phase. Norris said panel members had found the 2015 review, which used surveys, focus groups and mystery shoppers, “a bit lightweight”.

The terms of reference for a consultative panel sub-group convened to advise on the process confirm mystery shopping will be a core part of the review.

A matter of public record

The document also says notes from the sub-group meetings – which are conducted under Chatham House rules – “are considered a matter of public record” but will not be published on gov.uk.

The Home Office has published very few details about the Right to Rent Consultative Panel or its work.

Bolt’s report was the first time the list of panel members was published. No such list exists on gov.uk, and a 2015 press release announcing the scheme’s rollout said only that it included representatives from the EHRC, landlords and letting agents, local authorities and the homelessness charity Crisis.

It took an FOI request from CSW to obtain an up-to-date list from the department, which initially refused to release the (largely unchanged) roster.

Neither have any meeting minutes or agendas been published, despite there being no apparent opposition from members. The October meeting minutes, which have been seen by CSW but are not published, record attendees asking, not for the first time, for them to be published – which the Home Office “agreed to consider”.

Best says he would be “comfortable” with the minutes being made public. “I don’t see that as a big issue, frankly.”

What next?

For now, in the shadow of the High Court case and with the Home Office’s appeal looming, the panel appears to be back on track. But there is still doubt as to whether the department will address concerns that remain.

The Home Office is working on an online system to speed up Right to Rent checks. Norris says the progress is welcome, but the system the panel has seen is “very limited” – and that there has been a “fairly blunt rebuttal” of the panel’s calls for greater integration with the passport service.

And another panel member said concerns about potential headaches as the department extended the use of ePassport gates to millions of visa-free travellers were swept aside.

A Home Office spokesperson said: “The Right to Rent Consultative Panel is a valued advisory group of representatives from the landlord and letting sector, including local authorities, homelessness charities and the Equality and Human Rights Commission.

“Panel members look at the operation of Right to Rent and provide valuable feedback to the government on how it is working and where it can be improved.”

About the author

Beckie Smith is a reporter for CSW who tweets @Beckie__Smith.

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