Martin Partington - Law Commission

ePolitix.com talks to Law Commission special consultant Martin Partington about two recent housing consultation papers, the legal problems surrounding privately rented property and the future of housing policy.

Question: You have recently published two consultation papers on the reform of housing law? Is housing law particularly problematic?

Martin Partington: It certainly is problematic. The Law Commission has been working on housing law since early 2001.

We have been working on it precisely because people found the law complex.

The way it is operating is not effective. People are unsure of what their rights and responsibilities are.

Therefore, we have been engaged in a complete reform programme, which tries to address these issues and make renting law as clear and coherent as it should be.

Given that a third of the population rent their homes, it is very important that both landlord and tenant understand their rights and responsibilities.

Question: Let's take your 'Housing disputes' paper first. Why do you feel we need a specialist body for disputes resolution - what's wrong with the current system?

Martin Partington: In the first consultation we did on our renting homes project we had a lot of complaints concerning the courts, namely that they were expensive and very slow to resolve issues.

Also, that they didn’t deliver the results people were hoping for. One specific criticism, often made, was that there were too many adjournments.

There was a further line of evidence looking at other countries around the world, in particular: Canada, Australia and New Zealand.

There landlord tenant disputes - in the residential sector- have largely been taken away from the courts, and are resolved in a more informal tribunal context.

It was for that reason that a number of people felt that we ought to move in that direction in this country as well.

There has been a long history of people arguing in favour of a specialist housing tribunal.

I can remember papers being written on this over 20 years ago so it is not a new idea.

But it is the first time it has got close to the policy-making process.

Question: What impact will the Tribunal, Courts and Enforcement Act have on this?

Martin Partington: It is central to the proposals that we put forward.

What the Act allows for is the creation of a unified tribunal service, in which all the different tribunal services, currently spread around government, can be brought together with common processes and common technological backup.

It enables people with relevant expertise to be put into the tribunals to use their expertise to the greatest effect.

Generally, it provides a flexibility, which didn’t exist before the legislation was put in place.

One of the most important things is that those judges who are good at and like doing housing work would be able to continue to do this work.

Under the new legislation there is no reason why they can’t be assigned a tribunal function for housing cases.

They can do that without giving up their other judicial work in the traditional court system.

Question: And your 'Ensuring responsible letting' paper? What are your key proposals?

Martin Partington: Well the issue here is that for a hundred years, Parliament has been trying to regulate the relationship between private landlords and tenants.

There is always the possibility that the worst landlords are able to take advantage of tenants, who are often not in a strong bargaining position.

We looked at what law has been passed in the last 100 years and whether it is working as it should be, particularly with regards to standards of repair which rented housing should meet.

There is compelling evidence that, especially at the bottom end of the market, the law has not been working as it should and is therefore affecting some of the most disadvantaged people.

The private rented sector has increased enormously over the last 20 years, particularly due to the increase in buy-to-let properties.

Buy-to-let makes up a significant proportion of the provision of rented accommodation. But it still suffers, in political circles and beyond, from bad press.

Many people remember slum landlords, like Peter Rachman in the 1960s, who behaved appallingly. Many people fear that private landlords like Rachman are still out there in the community.

This has the effect that the majority of landlords who are trying to make a positive difference and offer good accommodation and a good service to tenants, find that their reputation is tarred by those private landlords who are failing to provide a good service.

Our proposals are designed to ensure that there is a level playing field for in the private sector.

We propose that either every landlord lets through an agent who is signed up to an appropriate code of practise, is a member of a landlord association with a code of practice, or is accredited to a local authority accreditation scheme.

This will give the basic information to landlords so that they cannot use ignorance as an excuse for poor practise.  

Question: Have you had any feedback from the private rental sector on this so far? Would they welcome these moves?

Martin Partington: Well the difficulty is that everybody is always very worried about the impact of regulation.

We have received some initial feedback from one or two individual agents and one or two individual landlords, who see this as more regulation, and as an unwanted burden.

What we need to get across the message that our proposals are not about more regulation.

What we are proposing is better and more effective use of the existing regulation.

It is also the case that those bodies that represent landlords and agents are broadly very supportive of the work we’re doing.

Indeed, I have just been invited to speak to an organisation that is working with the British Property Federation, which is trying to achieve, through its own benchmarking activities, precisely the kind of things we’re suggesting.

I think it’s in the private rented sector’s interest to see the purpose of what we’re trying to do so that government use them much more to help provide housing and help deal with the housing problems that the government is trying to solve.

Question: What is the next stage for both consultations?

Martin Partington: The two consultations are out at the moment. 

The housing tribunal consultation closes at the end of September; the other paper closes in the middle of October.

We will then be working hard to come to some conclusions and reach final reports by the end of the year. 

Unlike many Law Commission papers, they won’t have detailed legal recommendations; they will both be essentially policy papers.

I see both papers as contributing to two major government initiatives. The first is the future of the Tribunal Service, on which we are expecting a consultation in the autumn.

The second is the Future of Housing Policy, on which a consultation was launched earlier in the summer by Yvette Cooper, the housing minister.

I think that the timing of our two reports coincides well with government policies that are currently being developed.

Question: Do you think the government will be sympathetic to your proposals?

Martin Partington: It’s frankly very hard to tell, because although the Law Commission is part of government it is also independent of it.

We have been feeding into government as we have worked through our proposals .

Although we’ve always been open, we sometimes don’t get the feedback from government departments that enables us to know whether they will take our recommendations on or not.

My own view is that what we’re trying to do fits in perfectly with what government is trying to do, both in the context of the development of the tribunal service and its new green paper on housing policy.

Question: What are the key lessons you’ve learnt so far?

Martin Partington: To be honest, it is too early to draw key lessons on the two current consultations.

The problem is that responses tend to come in right at the end of the consultation period.

We just think that what we have done is to create, if the government want it, a more rational way of both preventing disputes from arising in the first place and a more cost effective and efficient way of dealing with disputes if they arise, and should they need to be dealt with at tribunal.

Question: Do you have any final messages for government?

Martin Partington: The message I have for government is that although I can see why the focus of the new green paper on housing is on new developments for owner occupation and making sure that there are enough new houses and flats for people to buy who want it, it is still the case that renting remains a very important part of the housing market.

Renting needs to be taken seriously. The legislative framework is currently extremely confused.

The Law Commission’s work provides a mechanism to clarify the existing law and to enable the rented sector - both social and private - to play its full part in the delivery of housing policy.

I very much hope that government and ministers seize this opportunity.