Client Money Protection Schemes for Property Agents (Requirement to Belong to a Scheme etc.) Regulations 2018
Motions to Approve
That the draft Regulations laid before the House on 3 May be approved.
My Lords, I will refer to these regulations as the approval regulations and the requirements regulations respectively.
The private rented sector is an important part of our housing market. It has doubled in size over the last decade and letting agents now hold approximately £2.7 billion in client funds. The client money held by agents includes rent money and money provided by landlords for the purpose of making property repairs. However, there is no legal requirement for these agents to obtain client money protection. Tenant and landlord money is therefore at risk if an agent goes bankrupt or if client funds are misappropriated.
The main letting agent representatives, ARLA Propertymark and National Approved Letting Scheme, support making this protection mandatory. It is estimated that around 60% of agents already hold such protection. Making client money protection mandatory will ensure that every tenant and landlord has the financial protection they need. It will bring the property agent sector into line with others where client money is held, such as the legal profession and travel operators.
Before I go on to set out the detail of the regulations before the House today, I want to establish the legislative context. The Housing and Planning Act 2016 provided powers for the introduction of client money protection requirements. Following the passage of this Act, the Government invited the noble Baroness, Lady Hayter, and the noble Lord, Lord Palmer of Childs Hill, to chair a client money protection working group. They are not in their places today, although I know they are both supportive and regret that other pressing engagements mean they cannot be here with us today.
The working group reported in March 2017 and its recommendation to make client money protection mandatory was accepted by the Government. I thank both the noble Baroness and the noble Lord very much for their work and the report. The Government consulted on implementing mandatory client money protection in November 2017 and there was broad support for our proposals.
I shall now introduce the two sets of regulations. The first set—the approval regulations—establishes the procedure for the Government to approve privately run client money protection schemes. The second set—the requirements regulations—then requires agents in the private rented sector to belong to one of these approved schemes if they handle client money. These two sets of regulations, which together provide the framework for client money protection, are the subject matter for debate before the House today.
I turn first to the approval regulations. These require any client money protection scheme to be approved by the Secretary of State in order to operate. This will ensure that all schemes meet minimum standards and offer sufficient financial protection. The Government do not intend to create their own scheme at this time; that would be unnecessary given the number of schemes operating in the market already. However, the regulations do allow the Government to do so in future so that protection can be maintained in the unlikely event that the market ceases to offer provision. This is a prudent step.
In order to obtain approval, client money protection schemes must meet certain conditions, including those designed to ensure that landlords and tenants can easily obtain compensation. The scheme administrator must ensure that it has procedures in place so that valid claims are paid as soon as reasonably practicable. They cannot make deductions from these payments. The scheme administrator must also hold a level of insurance cover that is appropriate, given the amount of client money held by its members. Schemes must put in place arrangements so that in the event of a scheme closing, their members would be notified and transferred to an alternative scheme.
The approval regulations also establish minimum standards that must be set in scheme rules. This includes that members must hold money in a separate client account; have written transparent procedures for handling client money; and maintain adequate records. Scheme rules must also require members to hold an appropriate level of professional indemnity insurance cover. This is to ensure that client money protection schemes are not overwhelmed with claims. Rather, the first port of call for a consumer making a claim should be their agent and their agent’s insurers. Lastly, schemes must provide key information to the department on a quarterly basis to enable us to monitor their performance. If a scheme’s standards are not maintained, its approval can be withdrawn.
I now turn to the requirements regulations. These regulations will require all property agents in the private rented sector to obtain membership of a government-approved client money protection scheme by 1 April 2019. These agents will need to meet increased transparency requirements; they will have to publish details of scheme membership and inform clients when they lose cover. The Government recognise that robust and effective enforcement is essential to the successful implementation of mandatory client money protection. Agents who fail to get client money protection may be subject to a financial penalty of up £30,000, and those who do not meet transparency requirements could face a penalty of up to £5,000.
These regulations level the playing field by ensuring that all agents offer protection. For those agents who do not yet have client money protection, we anticipate that obtaining it will not be disproportionately burdensome. Indeed, the average annual fee for cover is £300 to £500. It is important to highlight that these requirements apply only when landlord and tenant money is held by a property agent and so is at risk. Agents can instead choose to eliminate this risk by, for example, allowing tenants to pay rent to their landlords directly. The new requirements should not, therefore, deter new entrants to the market.
Noble Lords may be aware that we have committed to introducing a new regulatory framework for letting and managing agents and prohibiting letting agents from charging fees directly to tenants. That legislation is progressing in the other place. Mandatory client money protection will be an important part of this regulatory framework that will give landlords and tenants assurance when using an agent. I commend these regulations to the House.
My Lords, I declare my relevant interests as in the register. I commend the Government’s two sets of regulations, which will make it compulsory for anyone who wants to operate a lettings agency to have client money protection insurance that is effective and not just a sham.
I felt unable to speak on this subject in this Chamber when the noble Baroness, Lady Hayter, pursued it so successfully, as I was then the remunerated chair of the Property Ombudsman, which was involved in this debate. However, I retired from that role last year and can now say what I think without any conflicts of interest.
Compulsory insurance sounds a dull technical matter of little interest, except to the landlords whose money is held by agents—mostly the rental payments due to the landlord later—who should now be better protected. However, the benefits of these measures go much deeper than simply covering a loss to a landlord if their agent disappears or goes out of business. These regulations will remove altogether from the lettings industry all those often small-time and sometimes pretty dubious property agents from whom not just landlords but tenants need to be protected.
In the absence of regulation, anyone can set up as a property agent. At present, no qualifications or training or financial resources are needed. The requirement to belong to a compulsory client money protection scheme will weed out all those firms, often comprising a single individual, that insurance companies assess as too risky to insure. Those are the men or persons of straw, who have no expertise and may even have a criminal record. Removing the less desirable elements from the still somewhat fledgling lettings industry is a necessary precursor to the forthcoming agents’ fees ban—the planned ban on the phenomenon of agents charging fees to tenants as well as landlords. This important ban is the next item on the list of measures to clean up the world of private lettings. It will often be the least reputable agents who have been making their money by persuading landlords to use their services by undercutting the fees that they ask of landlords and, instead, squeezing the tenant, who has no choice in the matter. The CMP regulations will make the fees ban more successful by removing in advance all those agents who are unable to get the obligatory CMP insurance.
My question to the Minister is about enforcement. We know that the problem with all aspects of regulation for the private rented sector is that trading standards officers and, in other contexts, environmental health officers, are not geared up to enforcing further regulations. Budgets for the work of these officers have been massively reduced as part of the wider cuts to local government spending. What steps is the Ministry of Housing, Communities and Local Government taking to ensure the additional enforcement that these regulations—and others covering property agents already enacted or yet to come—will require? Is it expected that the opportunity to retain the money from civil penalties will provide enough finance to cover the extra enforcement costs? While I wholly support the CMP regulations before us, it would be helpful to have reassurance that their effectiveness will not be undermined or blunted by an absence of resources for their all-important enforcement.
My Lords, I should declare my vice-presidency of the Local Government Association. I agree entirely with what the noble Lord, Lord Best, said, and in particular that we need to clean up the world of private lettings. As he rightly pointed out, this is one measure among a number that the Government are introducing and they are entirely welcome.
I welcome this draft statutory instrument. It has been a while in its gestation and of course it will be a further nine months, understandably so, before it finally comes into force. It is a very welcome addition to the measures to protect private tenants and landlords that the Government have been introducing. Client money protection schemes are an essential element of consumer protection, be the consumers tenants or landlords. We have to remember that some 4.7 million households are in the private rented sector, and the protection given to tenants and landlords alike means that all parties can have confidence that their money is secure. It is important to remember the scale of the sums of money involved: letting agents currently hold around £2.7 billion in client funds. Today, some 60% of lettings agents are members of a scheme when it is not mandatory to be so, which suggests that the behaviour of many lettings agents need not be a cause for concern. It is with the other 40% that there is a potential for problems, and this scheme will certainly help to extend the required consumer protection.
Like the Minister, I recognise the excellent work undertaken by the noble Baroness, Lady Hayter, and my noble friend Lord Palmer of Childs Hill, who co-chaired a working group to assess how a scheme might work. This statutory instrument is much the better for their work. Their conclusion that a mandatory scheme is needed if money is to be handled is the right one.
This takes me to the same issue that the noble Lord, Lord Best, has addressed of local authority enforcement. Local authorities will be responsible for enforcement, as they are for the enforcement of many similar reforms being or shortly to be introduced by the Government. Might the Government examine ways of improving publicity around this statutory instrument? Non-compliance can bring a civil penalty of up to £30,000, which can be retained by a local authority. Therefore, there should be no financial or resource reason for local authorities failing to undertake proper enforcement —except that there is, I think, an impediment to enforcement relating to a lack of understanding of the powers under the law by council officers. I am trying to be very specific about this issue: enforcement will work only if the officers undertaking that enforcement understand what their powers are and have the confidence to undertake them. I wonder whether the Government, perhaps in conjunction with the Local Government Association, might consider ways in which knowledge of the law can be spread further. In the end, Parliament may pass legislation that then fails to be implemented as it might be but, given the extent of the private rented sector these days, it is clearly important that government legislation is implemented. The test of the success of this statutory instrument will be on local authorities taking up the powers that they have, which could well be self-financing.
My Lords, I draw the attention of the House to my registered interest as a vice-president of the Local Government Association. I thank the noble Lord, Lord Bourne of Aberystwyth, for bringing the regulations forward today. I know that he has worked hard on this, and I am genuinely pleased that they have come forward.
To go through some of the history, client money protection was debated during the passage of the dreaded Housing and Planning Act 2016. That Act received Royal Assent on 12 May 2016, and this, frankly, is one of the few welcome measures in it. As we heard, a working group was then set up, chaired by the noble Lord, Lord Palmer of Childs Hill, and my noble friend Lady Hayter of Kentish Town. I join other noble Lords in thanking both of them for the excellent work they did on that to bring forward the scheme we have. Their consultation closed in October 2016 and their report was published on 27 March 2017. The very next day the noble Lord himself announced from the Dispatch Box that the Government would go ahead with a mandatory scheme of client money protection, and everybody was very welcoming of that.
The two regulations are before the House today, on 13 June 2018, and the requirement to become a member of a scheme comes into force on 1 April 2019. As I said, I am delighted that the Government have finally done this, but you certainly could not accuse them of acting in haste on the matter. The regulations to require letting agents to belong to a mandatory scheme come into effect just short of three years after the Act giving the power for this to happen received Royal Assent. We all want this to work properly and to be right, and we all want it to be a success and effective—but having to wait 35 months to get to this point is a little excessive. So, although I welcome the regulations, perhaps the Minister when he responds could take on board the point that it seems a little excessive. I cannot see why it could not have been done in 18 to 24 months.
Having said that, what the noble Lord outlined is welcome, both as regards the approval regulation and the requirements regulation. I am delighted that they are coming into force, although I endorse entirely the comments made by the noble Lords, Lord Best and Lord Shipley, on enforcement. The regulations must be enforced properly, and to do that will require lots of training. Again, however, I very much welcome them.
My Lords, I thank noble Lords who have contributed to the debate on these regulations, and I will seek to address the points made by noble Lords in the order in which they were made.
First, the noble Lord, Lord Best, knows exactly what he is talking about in the whole area of our department’s work, so I always listen to him with great interest and much respect. He painted a picture of the need for action against a background of dubious property agents who inhabit a sort of Dickensian and Trollopian netherworld. While I accept that there are some agents who certainly need this urgent action, it is worth saying that the great mass of landlords and agents operate reputably, and I know that the noble Lord will agree with that point. Nevertheless, we need to weed out—words the noble Lord used—firms, agents and businesses that operate in a risky and nefarious way. This development of a fledgling letting fees agency industry—again, to use the noble Lord’s words—is against the backdrop of the Tenant Fees Bill, which, as I say, is in the other place and will probably be with us before the Summer Recess.
To explain the context of the link between the regulations and the Bill, as a result of the Housing and Planning Act we can act in relation to the regulations only by initially transferring the authority to do this to district councils. However, when we consulted on these measures, the feeling was that it was appropriate that trading standards should be the agency responsible, so the tenant fees legislation, when it comes into force, will move the responsibility from district councils to trading standards. That explains the choreography.
The nub of the critique of the noble Lord, Lord Shipley, related to the cost of enforcement. He is absolutely right that enforcement is key here, and in a moment I will address some of the very fair points that he raised. It is intended that the fines picked up by trading standards will be the resource available and, as the noble Lord said, there is no reason why the system should not be self-financing. Indeed, there is every reason why it should be. I will come to the points that he made in that regard, as well as the other points that he raised.
The noble Lord, Lord Shipley, again referred to the need to clean up the world of private letting, and that is what this series of measures is about. The Government’s thinking is that we want a market for the private rented sector, which has been growing. The noble Lord referred to the increase in the number of people renting in the private sector. There are now 4.7 million and that figure is set to rise further. Our thinking is that, although it is inappropriate to regulate rents, we need to create an appropriate framework so that we know that the people operating within the industry do so lawfully and appropriately, and that is what this and the other suite of measures that we have been talking about seek to address. That is the background to what we are seeking to do.
The noble Lord then made a very fair point about publicity. Obviously, we will want to ramp up the publicity once the regulations are agreed. The approval regulations will come into force immediately—the day after they are passed, I think—and we will want to publicise that on the website. We will want to work with the Local Government Association on how we can give the regulations wider publicity to make sure that potential tenants and landlords know about them. If I may, I will write to noble Lords to seek to allay concerns and to address the very fair point made by the noble Lord.
Like Mary Tudor, when, many years from now, the noble Lord, Lord Kennedy, is no longer with us, the Housing and Planning Act 2016 will be there within him, because this is certainly something that he feels very strongly about. I agree with him about the importance of these measures and the need to ensure that they are successful. I believe that, as reflected in the contributions from around the House, this is something that we have come together on. We are at our most effective when we agree essentially on what we want to do and then carry it forward. That has been very important, and I pay tribute to noble Lords who have helped in that process.