Committee Report to 13 May 2008

HOUSING (SCOTLAND) ACT 2006 – PART 5

APPLICATION FOR RENEWAL OF AN HMO LICENCE

169 IRISH STREET, DUMFRIES, DG1 2NN

1.  Purpose of Report

1.1 This report relates to an application for the renewal of a House in Multiple Occupation (HMO) Licence for 169 Irish Street, Dumfries, DG1 2NN held in the name of Mussawar Abbas, 20 Woodgrove Avenue, Dumfries, DG1 1RR as the property owner.

1.2 An objection has been lodged in relation to this renewal and the purpose of this report is to allow the Licensing Panel to determine the application.

1.3 Mr Abbas is also a registered landlord under the terms of Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004.

2. Recommendations

Members are asked to:

2.1 consider whether the applicant is a fit and proper person in terms of the considerations set out in Section 85 of The Antisocial Behaviour etc (Scotland) Act 2004, Appendix 1.

2.2 if the landlord is not considered a fit and proper person, then under the terms of Section 130 of the Housing (Scotland) Act 2006 the local authority must refuse the application.

2.3 if the landlord is not considered a fit and proper person to act as a landlord of a licensed HMO, then consideration must be given as to whether, the landlord’s registration as a private landlord under Part 8 of the Antisocial Behaviour etc. (Scotland) Act 2004 must be revoked.

3. Considerations

3.1 Why the application is before this Panel

3.1.1 Dumfries and Galloway Council is the licensing authority under the Housing (Scotland) Act 2006, Part 5, which deals with the licensing of HMO properties. This updated legislation came into effect on 31 August 2011.

3.1.2 Delegated authority has been granted to officers to determine applications that have not attracted objections. However where an application has attracted an objection it falls to the Licensing Panel to determine the application.

3.1.3 An objection has been raised by Police Scotland, with regard to a conviction held by Mr Abbas.

3.1.4 While the initial issue was highlighted as a result of the application for renewal of an HMO licence, the considerations to establish whether a private landlord is considered a fit and proper person are the same and consequently it is also appropriate to consider the the landlord’s status in terms of his private landlord registration.

3.1.5 Mr Abbas has four properties registered as private rented properties, in addition to the HMO property at 169 Irish Street, Dumfries. Two of these properties are jointly owned with Mrs Shamila Abbas.

3.2 The Application

3.2.1 The application is for the renewal of a House in Multiple Occupation Licence for 169 Irish Street, Dumfries, DG1 2NN.

3.2.2 Mr Abbas has held an HMO Licence for this property since 16 March 2012.

3.2.3 The property is currently used to accommodate up to 12 residents within 6 bedrooms.

3.2.4 An application for the renewal of the HMO Licence was received on 15 January 2015 prior to the expiry date of the current HMO Licence. Where an application has been received before the expiry of the previous licence then the licence continues and the Local Authority must decide whether to grant or refuse an application for an HMO Licence within 12 months of receiving the application.

3.2.5 The property meets the required HMO standards and fire safety standards.

3.3 Statutory Background

3.3.1 The Licensing Authority has 12 months in which to determine an application for an HMO Licence. In general terms it is advantageous to have the application determined at the earliest opportunity.

3.3.2 Anyone is entitled to lodge an objection to an application by written representation.

3.3.3 Police Scotland and Scottish Fire and Rescue Service are statutory consultees in respect of all applications for HMO Licences.

3.3.4 Police Scotland lodged an objection on 2 February 2015 in relation to the “Fit and Proper Person Test” in relation to Mr Abbas who holds a conviction relating to immigration offences.

3.3.5 13 September 2013, Dumfries Sheriff Court – Immigration Act 1971, Section 25, ‘facilitating a breach of immigration law’, for which a fine of £2000 was imposed. The specific issues around this offence was that individuals who were not entitled to work in the UK were in the employ and being accommodated in property owned by the landlord.

3.3.6 While this offence does not come within the definition of a “relevant offence” under the terms of the considerations set out in Section 85 of the Antisocial Behaviour etc. (Scotland) Act 2004, subsection (4) allows a local authority to consider other material, if it appears to the authority that the material is relevant to the question of whether the relevant person (landlord) is a fit and proper person. Appendix 1.

3.3.7 Mr Abbas has responded to this objection with his letter dated 26 January 2015. Appendix 2

3.3.8 In relation solely to HMO Licence applications, Section 130 of the Housing (Scotland) Act 2006 deals with the suitability of applicants and agents. Section 130(1)(b) states:

(1) “The local authority must refuse to grant and HMO licence if-

(b) the authority considers that any of those persons is not a fit and proper person to be authorised to permit persons to occupy any living accommodation as an HMO.

3.3.9 In relation to registration as a private landlord, there is also a requirement for a landlord to meet the fit and proper person criteria, however Scottish Government guidance as set out in paragraph 3.4.3 provides an option to consider a submission from the landlord regard the use of an agent, where a decision was made that the landlord was not a fit and proper person, provided the agreement is satisfactory.

3.4 Process

3.4.1 In determining an application the Panel must take into account all relevant objections and representations before them and assess the relevance of them to the application.

3.4.2 Where an application for the grant or renewal of a licence has been made to the licensing authority they shall make one of the following decisions:-

(i) to grant or renew the licence unconditionally;

(ii) to grant or renew the licence subject to conditions; or

(iii) refuse to grant or renew the licence.

3.4.3 In relation to private landlord registration, Scottish Government guidance provides options on how to deal with such matters. In this instance the options available are to:

(a) revoke the registration, which will mean that the landlord cannot legally continue to rent these properties and rent penalty notices will be issued preventing the landlord from collecting rent. While two of the properties are in joint ownership, the effect would still be the same, or,

(b) consider any submission from the landlord as to proposals to manage the property through use of a solicitor, letting agent etc., and whether there is an acceptable agreement in place between the landlord and agent which may allow registration.

3.4.4 Scottish Government Guidance on this matter states “If the authority believes the agreement to be satisfactory in terms of power it vests in the agent to have effective control and responsibility for letting and management activity, it might mean that the landlord who otherwise would have failed can be registered”, or in this case continue to be registered.”

4. Governance Assurance

4.1 Police Scotland, Scottish Fire and Rescue Service have been consulted regarding the terms of this report.

4.2 The Council’s Senior Manager of Legal and Regulatory Services has been consulted regarding the terms of this report.

5. Impact Assessment

As this report does not propose a change in policy/strategy/plan/project, it is not necessary to complete an Impact Assessment.

Author(s)

Approved by

Appendices

Appendix 1 – Section 85 considerations

Appendix 2 – Letter from Mr M Abbas

Appendix 1

Section 85 considerations:

A local authority must decide, whether an applicant for registration is a “fit and proper person” and in reaching this decision will take into account:

·  convictions for fraud, firearms, sexual, violent or drug offences

·  any anti-social behaviour orders against the landlord or any tenants

·  any unlawful discrimination

·  breaches of letting codes, housing law or landlord and tenant law

·  any other material if it appears to the authority that the material is relevant to the question of whether the applicant is a “fit and proper person”.

Appendix 2