FHDC’s Renters’ Rights Policy Trips Over the Law

Folkestone & Hythe District Council is being asked to approve its new private-sector housing civil penalties policy on 24 June — 54 days after key Renters’ Rights Act enforcement powers came into force on 1 May. Better late than never, yes. Better lawful, proportionate and tribunal-proof would’ve been nicer.

Cabinet will consider report C/26/09 on 24 June 2026. It names Kerry Petts (pictured below), Private Sector Housing Manager, as responsible officer and Cllr Rebecca Shoob (pictured below) as the Cabinet Member. It asks Cabinet to adopt the proposed “Policy for civil penalties under the Renters’ Rights Act 2025 and other housing legislation” and to enter into a contract with Justice for Tenants for a Civil Penalty Notice generator. In plain English, FHDC needs a rulebook for fining landlords and agents who breach the new renting laws. In Shepway English, the rulebook has turned up late, wearing a borrowed suit, carrying a calculator, and occasionally arguing with itself.

  

The timing matters. Government guidance says the new restrictions applied to all assured tenancies in the private rented sector from 1 May 2026, and only breaches and offences happening on or after that date can be enforced against. FHDC’s own report says many tenancy-rights provisions came into force on 1 May, including the ban on section 21 “no-fault” evictions for existing and new tenants, and that many new tenancy-related breaches and offences became punishable by civil penalties of up to £40,000. The Council is therefore asking Cabinet to approve the machinery after the engine was supposed to be running.

That doesn’t mean the Council is wrong to bring forward a new policy. Quite the opposite. The Government says every housing authority in England has a duty to enforce the new provisions in its area, and civil penalty guidance says local housing authorities are under a duty to enforce “landlord legislation” under section 107 of the Renters’ Rights Act 2025. The issue isn’t whether FHDC should enforce. It absolutely should. The issue is whether this particular policy is clear, lawful, proportionate and able to withstand the First-tier Tribunal without falling over like a deckchair in a gale.

The policy starts confidently enough. It says it provides “a clear and transparent framework” for civil penalties of up to £40,000 under the Renters’ Rights Act 2025, Housing Acts 1988 and 2004, Housing and Planning Act 2016, Protection from Eviction Act 1977, and the Electrical Safety Standards Regulations 2020. It covers unlawful eviction and harassment, tenancy-right breaches, rental bidding, discrimination against prospective tenants on benefits or with children, HMO licensing, selective licensing, improvement notices, overcrowding notices, banning orders and electrical safety. The menu is large. Unfortunately, some of the cooking is underdone.

The first obvious wobble appears at paragraph 10. FHDC says that if an appeal is made, “any tribunal or court that hears the appeal will need to have regard to this policy”. That sounds grand, but it’s too strong. The Government’s civil penalties guidance says an appeal involves a rehearing by the First-tier Tribunal of the local authority’s decision, and the Tribunal may have regard to matters the authority didn’t know about when it made the decision. The Tribunal can also confirm, vary, increase, reduce or cancel the penalty. In other words, FHDC’s policy may be relevant. It isn’t the Ten Commandments.

That matters because the policy later gets it closer to right. It says the appeal is “by way of a re-hearing” and that the Tribunal may consider matters of which the Council was unaware. So the same document first tells the world the Tribunal “will need to have regard” to the policy, then later admits the Tribunal rehears the decision and can look beyond the Council’s paperwork. That is not a fatal collapse by itself, but it is sloppy drafting and a free gift to any landlord’s appeal representative. The Council has built an appeal point into its own front door and left the key under the mat.

Then comes the civil penalties matrix, where the policy does something genuinely odd. Paragraph 32 says interim calculations may produce figures above the statutory maximum, but the final amount will be reduced to the applicable cap. The problem is that the statutory maximum is not a decorative ceiling rose. Government guidance says the maximum civil penalty is £7,000 for breaches and £40,000 for offences, and there is no statutory minimum. A lawful framework should not routinely generate unlawful-looking figures and then trim them back at the end like an overexcited barber.

The tables prove the point. For unlawful eviction and harassment, FHDC’s table shows a starting point of £35,000, a statutory maximum of £40,000, and a “Landlord Type upward adjustment” of £42,000. For breach of a banning order, it does the same: £35,000 starting point, £40,000 statutory maximum, £42,000 after the uplift. Yes, the policy says it will cap the final figure. But a policy that invites officers to begin with £42,000 in a £40,000 world is not forensic; it’s a calculator doing jazz.

The “Landlord Type” uplift is another problem. FHDC applies a 20% upward adjustment if the landlord has, “at any point in time”, owned, controlled or managed six or more properties; has, “at any point in time”, controlled, owned or managed three or more HMOs; is or has previously been a director of a corporate landlord; is a corporate landlord; or has “significant experience” in letting or management. That is a very blunt instrument. It risks punishing historic status instead of present culpability, and it could treat an old directorship or past portfolio as if it automatically proves greater blame for the actual breach now being considered.

The Government guidance does allow landlord profile to matter. It says a higher degree of professionalism is likely to be expected of landlords with significant portfolios who let properties as their business, compared with someone for whom letting one or two properties is subsidiary or unplanned. But the same guidance also says adjustments for aggravating and mitigating factors should generally be based on case-specific considerations of culpability and harm. That is where FHDC’s drafting becomes vulnerable: “at any point in time” is not the same thing as “relevant to this breach, this property, this landlord and this harm”.

Justice for Tenants’ commentary on Leicester City Council v Morjaria is useful here, precisely because it is pro-enforcement but still legally careful. It says a compliant approach should rank the seriousness of offences, then consider culpability, harm, aggravation, mitigation, totality and exceptional circumstances. It also quotes the Upper Tribunal’s point that it is for each local housing authority to adopt its own policy, not for the Tribunal to provide a model. That does not mean FHDC cannot use the ACEHO/JfT model. It means copying a model is not a substitute for thinking.

The Cabinet report leans heavily on consistency. It says the model policy was published by ACEHO, that other Kent authorities have agreed in principle to propose adopting it, and that there is “no obvious benefit” to creating a unique policy. That is a weak way to brief Cabinet. Consistency matters, but lawful local adoption matters too. A borrowed policy may be excellent, adequate or defective depending on how it is adopted, adapted, explained and applied. A borrowed suit still needs tailoring, unless the Council wants to walk into the Tribunal with one trouser leg flapping round its ankle.

The spent-convictions clause is the sharpest red flag. Paragraph 62 treats previous history of non-compliance as including “previous successful prosecutions (including relevant spent convictions)”. That is legally risky because Government guidance on the Rehabilitation of Offenders Act 1974 says that, where a conviction has become spent, the individual is treated as rehabilitated, is not obliged to declare it for most purposes, and “shall be treated for all purposes in law as a person who has not been convicted” of that offence. Exceptions exist, but FHDC’s policy doesn’t identify which exception it relies on or confine the clause to a specific statutory gateway.

That is not a soft-on-landlords argument. It is a basic legality argument. If the Council wants to rely on spent convictions, it needs to explain when it is legally entitled to do so, why the conviction is relevant, why reliance on it is proportionate, and how that criminal-offence data will be handled. The ICO says criminal-offence data gets extra protection, that organisations must identify their Article 6 lawful basis, identify their official authority or domestic-law condition, consider whether a DPIA is needed, and consider minimisation, security and transparency. FHDC’s policy drops spent convictions into the aggravation drawer as if it were filing a Tesco receipt.

The financial-means section is also overcooked. FHDC says that where a landlord relies on a strained or limited financial position, they should provide, “at a minimum”, three full tax years of self-assessment tax returns, SA302s, tax-year overviews, payslips, P60s, Universal Credit statements, all property assets, jointly owned assets, corporate property assets in which they have a beneficial interest, mortgage statements, ISA valuations, crypto exchange statements, shareholdings, bank statements for accounts over £5,000, loan statements and bankruptcy papers. One half expects the next line to ask for a childhood swimming certificate and a signed statement from the family dog.

The Council is entitled to test claims of inability to pay. The Government guidance says local authorities may take account of information supplied by the offender about financial circumstances, and may infer ability to pay where reliable information is absent. But FHDC’s wording goes much further. It starts with a maximal disclosure bundle rather than a staged, necessary and proportionate request. It is not obviously limited to the offending property, the housing business, the benefit obtained, the penalty amount, or the particular means claim being advanced. It risks turning a civil penalty assessment into a financial strip-search.

The data-protection gap matters here too. The ICO says processing criminal-offence data must be lawful, fair and transparent, and that controllers must think about minimisation, security, transparency and the need for a DPIA. FHDC’s Cabinet report says the proposed Justice for Tenants contract is lawful “subject to compliance with any procurement requirements, data protection legislation and appropriate contractual safeguards”, but that is a passing nod, not a worked-through safeguard. The policy itself does not spell out redaction rights, third-party data handling, retention periods, privacy notices, DPIA status, or how it will avoid collecting more than it needs.

Then we arrive at mediation, where the policy really does need a cold towel and a lie down. Paragraph 189 says the First-tier Tribunal may invite parties to consider mediation or another form of alternative dispute resolution, but the Council “will not generally agree to mediation in relation to the level of a civil penalty” because penalties are determined by reference to the policy and reductions outside the policy would undermine consistency. That is exactly the kind of rigid sentence that makes lawyers reach for the phrase “fettering discretion”.

Government guidance says something different. It says mediation is voluntary, confidential and without prejudice, and that local authorities should consider whether individual cases are suitable for mediation by taking account of the individual factors of the case and whether there is a realistic prospect of settlement. That does not require FHDC to mediate every appeal. It does require FHDC not to announce, before the case has even begun, that it will generally refuse to discuss the penalty level because the policy has spoken. The policy is a framework, not a deity.

The wider legal direction is also against blanket resistance to dispute resolution. In Churchill v Merthyr Tydfil County Borough Council, the Court of Appeal confirmed that courts can lawfully stay proceedings for, or order parties to engage in, non-court dispute resolution where this does not impair the essence of the right to a fair trial and is proportionate to a legitimate aim. That case is not a civil-penalty housing tribunal case, but it shows the direction of travel: case-specific dispute resolution is not some naughty back alley deal; it is part of modern justice.

FHDC’s own report also raises governance questions about the Justice for Tenants arrangement. It says the ACEHO model is “an exact replica” of a policy published by Justice for Tenants, that JfT offers free services to councils, that the CPN generator is free, and that JfT can also provide legal advice, appeal representation and debt recovery, though councils are not obliged to use those services. None of that proves impropriety. But Cabinet should still ask what local legal review has been done, what data will move through the generator, what contractual safeguards exist, and how the Council will manage any perceived conflict where policy architecture, software, appeal support and recovery options sit in the same ecosystem.

There is also a democratic problem in the recommendation that Cabinet delegate authority to the Director of Housing and Operations – Andy Blazkowicz, in consultation with the Portfolio Holder for Housing Cllr Rebecca Shoob, to approve additions and amendments as further provisions of the Act come into force. Delegation can be sensible where law is moving quickly. But if this policy already contains arguable defects on tribunal wording, spent convictions, financial disclosure, mediation and matrix design, Cabinet should not simply hand the red pen to officers and hope the next draft behaves itself. The risk is that the policy becomes a living document in the way a triffid is a living plant.

None of this means FHDC should go soft on rogue landlords. Tenants need enforcement. Good landlords need bad landlords to be stopped. The new Act’s promise is pointless if councils lack the nerve, staff or lawful machinery to use it. Government guidance says authorities must consider proactive steps once they suspect non-compliance, and where the evidential threshold and public interest are met they must issue a civil penalty notice or start prosecution proceedings. Enforcement is not the villain of this story. Bad drafting is.

The solution is not to bin the policy. The solution is to fix it before it becomes a Cabinet-approved hostage note to future appeals. FHDC should correct paragraph 10 so it says the Tribunal may consider the policy but is not bound by it; rebuild the matrix so no ordinary calculation produces figures above the statutory maximum; rewrite the landlord-type uplift so it is tied to current or recent, case-specific culpability; remove or tightly qualify the spent-convictions wording; narrow the financial disclosure regime; add data-protection safeguards; and replace the mediation refusal with a proper case-by-case discretion.

The core point is simple enough for any councillor, tenant or landlord to understand. The Council needs a tough policy, but toughness is not the same as lawful precision. A policy that wants to punish unlawful behaviour must itself be lawful, fair, proportionate and clear. At the moment, FHDC’s draft has the right target, the right general powers, and several wrong turns. It has arrived 54 days late. It should not be waved through on the 24 June in a hurry wearing its legal underpants outside its trousers.

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The Shepway Vox Team

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