States Assembly | P-20-2021

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STATES OF JERSEY

PUBLIC HEALTH AND SAFETY (RENTED DWELLINGS): REQUEST FOR NEW REGULATIONS

Lodged au Greffe on 10th March 2021 by Deputy R.J. Ward of St. Helier Earliest date for debate: 20th April 2021

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to request the Minister for Environment to lodge the Draft Public Health and Safety (Rented Dwellings) (Licensing) Jersey Regulations 202-, taking into account the following amendments from the draft lodged as P.106/2019:

inclusion of a longer time frame for expiration of rental licence, through the inclusion of the word fifth in Regulation 3(2), to read "A licence commences on 1st January following the date on which it is granted, unless the Minister specifies another date of commencement in the licence, and expires on the fifth anniversary of the date of commencement";
the replacement of the words "inspect the dwelling" within Regulation 3(3)(a) with the words "require that the dwelling is inspected" in order to read "Before issuing a new licence the Minister must –

(a) require that the dwelling be inspected";

the replacement of the words "and if such charges are imposed they must be published" within Regulation 3(5) with the words "provided that the charges are first agreed by the Assembly" in order to read "The Minister may impose charges for the issue of a licence provided that the charges are first agreed by the States Assembly";
the replacement of the Transitional Provisions date of "31st March 2020" within Regulation 6 (1) with the date "30th June 2022";
the amendment of the date within Regulation 7, detailing when the Regulations would come into force, from "1st December 2019" to "1st March 2022";

DEPUTY R.J. WARD OF ST. HELIER

REPORT

Background

Following the adoption by the States of the Public Health and Safety (Rented Dwellings) (Jersey) Law 2018, the principles of which were unanimously supported by the Assembly, and the subsequent making of the Public Health and Safety (Rented Dwellings – Minimum Standards and Prescribed Hazards) (Jersey) Order 2018, the Department responsible for enforcement continues to uncover rented dwellings in really poor condition, some in the control of allegedly good' landlords.

An example of the extent of this issue is shown in the answer to Written Question 408/2020.

Whilst these properties are known about, it is certain that there are many more that the regulators simply have no knowledge of. The sector had been largely unregulated, and now requires licensing to ensure that all rented dwellings are safe and will not contribute to poor mental and physical health.

Minimum standards within the rental sector are prescribed to be just that: the minimum accepted level to avoid harm to the tenant. They are not designed to influence decoration or interior design. Minimum standards fall into 4 categories of –

Physiological requirements, including Damp and mould growth, Excess cold, Asbestos, Carbon monoxide and fuel combustion;
Physiological requirements, including Crowding and space, Entry by intruders, Lighting and Noise.
Protection against infection, including Domestic hygiene, pests and refuse, Food safety, sanitation and drainage and Water supply; and
Protection against accidents, including falls associated, Electrical hazards, Fire, Explosions, and Structural collapse.

They are designed to reduce the risk of illness or injury within a rental property, based on the assessment of potential risks to the health and safety of occupants of, and visitors to, rented residential properties.

Research [1] has demonstrated that children's life chances (the factors that affect their current and future well-being) are affected by the standard of their housing.

Registration has been shown not to work, for example through the Food Safety (Jersey) Law 1966. Despite being a legal requirement to register food premises, the number of food businesses in the Eat Safe' scheme rose from 800 to around 1,100 when there was consumer demand to check ratings. Other jurisdictions have similar outcomes.

Registration data becomes out-of-date very quickly. It is telling the Government an activity is taking place. Licensing is the Government of Jersey permitting that activity

to take place. In time, after any grandfather rights' have expired, this ensures that an activity is compliant before it takes place.

Draft Public Health and Safety (Rented Dwellings) (Licensing) (Jersey) Regulations 201- (the "draft Regulations")

The Public Health and Safety (Rented Dwellings) (Jersey) Law 2018 made provision, under Article 5, for the States by Regulations to establish a scheme for the purpose of further ensuring the safety of rented dwellings, and the health and safety of persons occupying such dwellings.

In accordance with this Law, and without prejudice to that general purpose, such Regulations may make provision including, but not limited to, provision enabling the Minister –

to license dwellings to be used as rented dwellings; and
to impose charges –

in respect of the issue of licences for rented dwellings, and
in relation to enforcement action arising out of a breach of the Regulations or a requirement of any licence.

Regulations under this Article may further –

create offences of, and impose penalties for, breach of a provision of the Regulations or of any licence; and
make such transitional, consequential, incidental, or supplementary provisions as the States may consider necessary or expedient.

The Assembly debated Draft regulations P.106/2019 on 9th September 2020 and the Proposition was defeated.

Since then the Assembly passed (a) and (c) of Proposition P.93/2020 (below) with an overwhelming majority.

"to request the Council of Ministers

(a) to create a digital register of all commercial and residential properties in the Island that contains details of the ultimate beneficial ownership of those properties for the purposes of aiding policy formation and if necessary, the regulation of the housing and commercial property markets;

The draft Regulations sought by my proposition are a reworking of those narrowly rejected by the Assembly, addressing those concerns expressed by members and taking

consideration P.93/2020. In particular they remove the fee structure and Rent Safe fee discount for Social Housing Providers proposed in P.106/2019.

The draft Regulations, if adopted by the Assembly, will ensure that the Government of Jersey, for the first time ever, has the necessary knowledge about what property is being rented out, and its suitability, occupancy and location, for the purposes of ensuring that it meets, or is being brought up to, modest minimum standards. Using this data, more accurate risk assessments can be carried out to prioritise and target inspections. This data may also be of use in informing future policy development.

It is intended that, as with all regulation in this area, a light touch will be adopted. The Environmental Health Team will continue to work with landlords and managing agents to achieve compliance within an agreed timetable, being cognisant of difficulties in procuring tradesmen, and the nature of the work; for example, larger-scale roof repairs carried out in good weather, or the immediacy of providing adequate heating in the winter.

It should, however, be noted that the minimum standards as detailed in the Public Health and Safety (Rented Dwellings – Minimum Standards and Prescribed Hazards) (Jersey) Order 2018 have been in place for some time, and the requirements are those expected in a decent home. Rented Dwellings should already be at this standard also comply with other requirements of the Tenancy Law.

There were suggestions that Regulations such as these would be inflationary. Given that properties are already required to meet legal standards, and the proposed licencing will be free of charge for properties already rented out at the time these regulations are proposed come into force, that is clearly not the case.

The licencing regulations will apply equally to all rented dwellings. A true level playing field.

The suggestion that these Regulations are overly bureaucratic are self-evidently not true. A simple application form, and a simple renewal 5 years later is hardly taxing.

The proposed licensing conditions are attached at Appendix 1 to this report.

The draft Regulations allow for the introduction of charges, which are detailed in Appendix 2 to this report. It is proposed to charge only for a new licence and only on application. To be clear, there will be no charge for existing landlords if they apply by the deadline.

Those landlords already renting will be granted a licence without pre-inspection and will be given until the end of June 2022 to apply. This will enable landlords and managing agents to continue business as usual and will therefore not have any negative impact on the availability of rented accommodation, or on the cost of renting.

The information captured in the licence will enable Environmental Health to manage their resources, by adopting a risk-rating approach to determine frequency and order of inspection, coupled with a program of proactive visits.

Social Housing Providers and Parishes will also be required to be licenced, so ensuring a level playing field across the sectors.

Licences will be issued via an online process and will be for 5 years. The process will be specifically designed to ensure subsequent 5 yearly renewals require little input, other than reviewing the previous data, adding, amending, or deleting properties. There will also be a dedicated process for landlords or managing agents with large-scale portfolios.

Financial and manpower implications

There are no financial or manpower implications arising from the adoption of these draft Regulations. Any inspections carried out will be part of Business as usual.

Children's Rights Impact Assessment.

A CRIA is attached at Appendix 3. It concludes these Regulations, if adopted, would have positive impacts on Children.

Proposed Licence Conditions Notification of changes

The Licence Holder, or nominated other, must inform Environmental Health directly, using the online portal or in writing, of any changes listed below within 28 days of the change occurring –

Licence Holder change of address, contact telephone number or e-mail address
Manager change of address, contact telephone number or e-mail address
Change of emergency contact number provided to the tenant.

Information to occupiers

After the end of June 2021, the Licence Holder must, within 28 days of a request, supply the occupiers of the property with a copy of the licence for the property they occupy.

A copy of the licence should be sent to the address the licence is in respect of, or electronically to the tenant's e-mail address.

This condition is fulfilled if a copy of the licence is provided to the tenant a maximum of two times per licensed year.

Within 28 days of the commencement of any new tenancy, or within 28 days of the first licence coming into force for tenants already in occupation on that date, the Licence Holder must provide the occupier(s) with written information explaining how they can raise an issue or make a complaint to the landlord or nominated other in relation to matters concerning their occupation, such as disrepair, pests, and emergency issues relating to the security of the property.

This must include –

• a contact address

• a daytime telephone number

• an emergency out-of-hours telephone number

• how the Licence Holder or nominated other will deal with such issues

• a statement on the occupier's right to complain to Environmental Health, together with contact details.

It is recommended that this information is included as a supplement to the Tenancy Agreement.

This information can be provided in hard copy or electronic format (including notices displayed in communal areas, handbooks, e-mails, SMS, apps, websites and other bespoke systems) being fully accessible to the occupier. Consideration should also be given to occupiers who may have difficulty in accessing some forms of electronic communication.

Occupiers should be advised in advance of any changes to the above information and must be advised within 28 days of changes taking place. This can be communicated electronically or in writing and a record should be kept for the protection of all parties.

Occupier's right to quiet enjoyment

The Licence Holder or nominated other must ensure that the occupier's right to quiet enjoyment of the property is respected.

Where entry is required to the property, the Licence Holder or nominated other must ensure that any notice requirements contained in a lawful tenancy agreement are complied with.

Where the tenancy agreement does not contain any such requirements, the Licence Holder or nominated other must ensure that the tenant receives at least 24 hours' written notice of intention to enter the property during reasonable hours. They must specify the reason entry is required, save where it would not be reasonable to give such notice, such as a genuine emergency.

Minimum property standards

The Licence Holder will ensure that the rental property to which the licence relates meets those standards maintained within the Public Health and Safety (Rented Dwellings – Minimum Standards and Prescribed Hazards) (Jersey) Order 2018.

Equipment, furniture and furnishings

The Licence Holder or nominated other must ensure that any goods they make available to the occupier(s) as part of their residential tenancy are safe and in full working order.

Residential Tenancy Law

The Licence Holder will ensure that all matters relating to the Rental Property will comply with the Residential Tenancy (Jersey) Law 2011.

Proposed charging regime for licensing of rented dwellings

There will be a fee for the processing of an application for a first licence. For the avoidance of doubt, this will not apply to any property with "grandfather rights".

APPENDIX 3 TO REPORT Children's Rights Impact Assessment

Impact Assessment by: Deputy Rob Ward

STAGE 1: SCREENING

Question 1: Name the measure / proposal and briefly describe its overall aim

Draft Public Health and Safety (Rented Dwellings) (Licensing) Jersey Regulations 202-

Question 2: What children's rights does it impact upon?

Article 3 The best interests of the child must be a top priority in all things that affect children.

Article 4 Governments must do all they can to make sure every child can enjoy their rights.

Article 6 Every child has the right to life. Governments must do all they can to make sure that children survive and develop to their full potential.

Article 12 Every child has the right to have a say in all matters affecting them, and to have their views taken seriously.

Article 16 Every child has the right to privacy.

Article 24 Every child has the right to the best possible health. Governments must work to provide good quality health care, clean water, nutritious food and a clean environment so that children can stay healthy. Richer countries must help poorer countries achieve this.

Article 27 Every child has the right to a standard of living that is good enough to meet their physical, social and mental needs. Governments must help families who cannot afford to provide this. For this to happen they should have access to adequate housing.

Article 31 Every child has the right to relax, play and take part in a wide range of cultural and artistic activities.

Question 3: What children and young will be affected?

Al children and young people living in rented accommodation in Jersey

Question 4: What is the likely impact of the proposal / measure on children?

A licence scheme will ensure that children and young people are living in rented accommodation that protects, fulfils, and respects their rights. The regulations will ensure that standards in rental properties support all of children's rights but in particular Article 27 the right to adequate housing.

Question 5: Is a full child rights impact assessment required? Explain your reasons

Yes because a number of child rights will be impacted on the decision.

STAGE 2: SCOPING (Background and Rights Framework)

Question 6: Name the measure / proposal being assessed and describe the overall

aim

Draft Public Health and Safety (Rented Dwellings) (Licensing) Jersey Regulations 202-

The regulations propose that a licensing scheme for landlords is in place to ensure all rented dwellings are safe and will not contribute to the poor health of children and young people. Minimum standards will be prescribed to reduce the risk of illness or injury in rented dwellings.

Question 7: Which human rights instruments and articles are relevant to the measure / proposal?

Human Rights Instrument

UNCRC

Article 2 Non-discrimination – all children have the right to live in adequate housing and this should not be affected by their parent's residential status. That means that all dwellings whether qualified or unqualified should be covered by the regulations. Article 3 The best interests of the child must be a top priority in all things that affect children. Decisions on this proposition must be made in the best interests of all children.

Article 4 Governments must do all they can to make sure every child can enjoy their rights. Compliance with children's rights is on a continuum and the Government must strive to ensure that all children's rights are protected, fulfilled and respected. Currently the Housing and Work Law falls short of expectations of the UNCRC. Article 6 Every child has the right to life. Governments must do all they can to make sure that children survive and develop to their full potential. children's life chances (the factors that affect their current and future well-being) are affected by the standard of their housing.

Article 12 Every child has the right to have a say in all matters affecting them, and to have their views taken seriously. Children have spoken about their experiences of housing to the Children's Commissioner.

Article 16 Every child has the right to privacy. Overcrowding in rented dwellings results in children not having any private space sharing sleeping areas with adults. An example in the joint survey with the Govt and Children's Commissioner was a child living in a dwelling with 15 others.

Article 18 Both parents share responsibility for bringing up their child and should always consider what is best for the child. Governments must support parents by giving them the help they need, especially if the child's parents work. The Children's Commissioner has acted for families where the lack of suitable accommodation has meant that the child remained in care.

overcrowded dwellings where there is a lack of access to bathroom facilities, clean water, heating in the winter and damp conditions.

Article 31 Every child has the right to relax, play and take part in a wide range of cultural and artistic activities. Overcrowded housing and a lack of access to outdoor space restricts the child's right to relax and play. This includes landlords that restrict play for example No Ball Playing signs.

STAGE 3: EVIDENCE

Question 8a: What quantitative evidence have you used to inform your assessment? What does it tell you?
Evidence collected	Evidence source	Explanation of the importance	What are the data gaps, if any?
Data	Children's Commissioner survey 2018	35 children mentioned more affordable housing.
Data	Children's Commissioner survey 2018	155 of children aged 7-11 said that a priority should be building more houses or making houses nicer
Life on the Rock	Children's Commissioner	Housing was one of the top five issues that would make Jersey better for over a quarter of children, with concerns increasing as children get older. Poor or inadequate housing conditions featured in a number of children's stories where they spoke about cramped living spaces, sharing a bedroom with parents, run down property or an inability to play freely at home. Children's experiences of housing are shaped by other factors – parental employment, family relationships and trauma, landlord regulation, residential status – and in turn impact on important areas of young people's lives including schooling and the formation of friendships.

Question 8b: What key missing information / evidence would have been beneficial to your analysis?

Data on the number of children living in substandard or overcrowded housing

Data on child health impacted by inadequate housing

Question 9a: What qualitative evidence have you used to inform your assessment? What does it tell you?

Children's voice on housing

2018 Children's Commissioner Survey

Quotes from children:

I think houses and flats are really expensive in Jersey and sometimes mums and dads don't earn enough money to afford a nice house for them and their children to live in and sometimes landlords have nice big houses but won't let children live in them. (survey respondent, female, aged 10)

outside of every Childs house is a garden More affordable housing

the estate I live in has unreasonable house prices (very high) but nobody wants to come because the area is run down

revamping the exterior of houses, because the are unwelcoming and quite scary at night.

I would also ensure there is affordable housing for people who cant afford the house prices here.

make sure that the houses that young people live in are safe and clean and have all the requirements needed to have a family.

you could make some more houses for the people with less money

Children's Commissioner Project Life on the Rock 2020

Life on the Rock tells the life stories of 21 children and young people, aged from 9-18, on

So, we didn't have qualifications, so the houses then were really expensive, and my mum couldn't afford them, so we had to stay there for a long time We did find one that was unqualified, and it was within the price range and they would say

the island Jersey.

no children'. we kept looking, all the houses were saying no children allowed' so that was also quite hard.'

some like of my friends live in houses, like, that are quite run down and all that. And especially like people who just moved over here.'

(our) house was not to an acceptable standard with, at various times, mould on the walls, a smashed door, a garden falling apart and a rat infestation, which the landlord refused to address' and xxxxx parents couldn't afford to fix. Referring to a lack of regulations on private landlords she assessed that an attempt to complain would be futile due to the priority given to financial investment on the island.

The government find it very hard to intervene with private landlords and I think it's cause they make them a lot of money Because they're making money off it and that was definitely felt when we lived there.'

Houses, flats and rents are very expensive in Jersey.

Some property owners live off island, are difficult to contact and less likely to maintain their homes and deal with essential repairs and maintenance.

Some families may experience overcrowding and high private rental charges while on long waiting lists to secure a home. A tough allocation system can affect their chances of getting social housing

Question 9b: What key missing information / evidence would have been beneficial to your analysis?

[add/delete rows as required]

STAGE 4: CHILDREN'S INVOLVEMENT

Question 10: Has evidence from third party consultations with children and young people been considered in the development of the proposal or measure?
Groups consulted	Source of Information	Please provide a brief description of process	What were the findings?
Children's Commissioner	Survey and life story work		As reported in Q 8 and 9

Question 11: What groups of children and young people have been directly involved in developing the proposal or measure?

No children have been involved in developing the proposal. However data from the Children's Commissioner has informed this proposition

STAGE 5: ASSESSING THE IMPACT

Question 12: What impact will (or does) the proposal or measure have on children and young people's rights
Type of impact [please highlight]	Justification for Argument	likely or actual short/medium/long-term outcomes
Positive	Regulation and licensing will help to ensure that all housing is adequate and protects children's rights	Long term outcome will be to ensure that housing is licensed and regulated

Question 13: Will there be (or are there) different impacts on different groups of children and young people?
Group of children affected	Initial analysis of the positive impact on rights	Initial analysis of the negative impact on rights
Children living with parents with no housing qualifications living in unqualified housing	Positive. Ensuring that qualified and unqualified housing is adequate and supports a good standard of living	No negative impacts

Question 14: If a negative impact is identified for any area of rights or any group of children and young people, what options are there to modify the proposal or measure to mitigate the impact?
Negative impact	What options are there to modify the measure(s) or mitigate the impact?

STAGE 6: CONCLUSIONS AND RECOMMENDATIONS

Question 15: In summary, what are your key findings on the impact of the measure or proposal on children and young people's rights?

These proposals will positively impact on many children in Jersey whose standard of living is negatively impacted by the quality of the housing they are living in. The

quotes from children tell us quite clearly that their lives are severely affected by poor housing and the cost of housing. Adequate housing is an entitlement for all children and not a nice to have'.

STAGE 7: PUBLISH CRIA

Question 16: Should the full assessment or a summary be published? Will a child-friendly version be produced?

Yes this CRIA should be published.

STAGE 8: MONITOR & REVIEW

Question 17: Have the recommendations made in Stage 6 been acted upon?

The proposition to be debated asks members to vote on the recommendations which will have considerable impact on children's lives

Question 18: Where recommendations have not been acted upon, is further action required?

The Government are aware that the current Housing and Work Law falls short of expectations of the UNCRC and in parts is not compliant with children's human rights.

DRAFT PUBLIC HEALTH AND SAFETY (RENTED DWELLINGS) (LICENSING) (JERSEY) REGULATIONS 202-

EXPLANATORY NOTE

These Regulations would establish a scheme in connection with the health and safety of rented dwellings and provide for the issuing of licences in respect of dwellings to be used as rented dwellings.

Regulation 1 defines the terms used in the Regulations.

Regulation 2 establishes the scheme and prohibits a dwelling being used as a rented dwelling unless licensed by the Minister for the Environment in accordance with the scheme and the Regulations. It also lists the matters that the scheme may provide for.

Regulation 3 empowers the Minister to licence rented dwellings for five years, commencing on 1st March 2021 (unless the Minister directs otherwise) and to inspect and be satisfied that a dwelling meets the health and safety standards required under the Law. It creates a power for the Minister to impose charges for the issue of a licence and if so imposes a requirement to publish those charges. There is also power for the Minister to withdraw a licence if the Minister considers that a dwelling does not meet those standards.

Regulation 4 provides an appeal to the Royal Court against a decision of the Minister not to grant a licence or to withdraw a licence.

Regulation 5 makes it an offence to contravene the prohibition on using an unlicensed dwelling as a rented dwelling or any requirement of a licence, punishable by a fine of up to £10,000.

Regulation 6 requires the Minister to issue a licence where a dwelling is a rented dwelling on commencement of the Regulations and a licence application is received by 30th June 2022. In this case the Minister does not need to inspect the dwelling under Regulation 3(3).

Regulation 7 gives the title by which the Regulations are to be cited and provides for them to come into force on 1st March 2022.

DRAFT PUBLIC HEALTH AND SAFETY (RENTED DWELLINGS) (LICENSING) (JERSEY) REGULATIONS 202-

Contents Regulation

1 Interpretation ............................................................................................... 1 2 Establishment of Scheme ............................................................................. 1 3 Licences ........................................................................................................ 1 4 Appeals ......................................................................................................... 2 5 Offences ....................................................................................................... 2 6 Transitional provisions ................................................................................. 2 7 Citation and commencement ....................................................................... 2

(LICENSING) (JERSEY) REGULATIONS 202-

Made [date to be inserted]

Coming into force [date to be inserted]

THE STATES, in pursuance of Article 5 of the Public Health and Safety (Rented Dwellings) (Jersey) Law 2018, have made the following Regulations –

1 Interpretation

In these Regulations –

"applicant" means an applicant for a licence;

"licence" means a licence granted under Regulation 3;

"Law" means the Public Health and Safety (Rented Dwellings) (Jersey) Law 2018; "new licence" means the first licence granted in respect of the dwelling to which it relates.

2 Establishment of Scheme

A scheme is established for the purpose of further ensuring the safety of rented dwellings and the health and safety of persons occupying such dwellings.
A person must not allow a dwelling to be used as a rented dwelling unless the dwelling is licensed for such use by the Minister in accordance with the scheme and these Regulations.
Without limiting paragraph (1) the scheme may provide for the following matters –

the manner and form of an application for a licence;
the information to be contained in such an application; and
for the Minister to require further information in relation to the application.

3 Licences

The Minister may license dwellings to be used as rented dwellings.
A licence commences on 1st January following the date on which it is granted, unless the Minister specifies another date of commencement in the licence, and expires on the fifth anniversary of the date of commencement.
Before issuing a new licence the Minister must –

require that the dwelling be inspected; and
be satisfied that the dwelling meets the standards in respect of health and safety required under the Law.

A licence may contain such requirements as the Minister thinks fit.

Page - 19 P.20/2021

The Minister may impose charges for the issue of a licence provided that the charges are first agreed by the States Assembly.
The Minister may withdraw a licence if the Minister considers that the dwelling does not meets the standards set out in paragraph (3).

4 Appeals

A person aggrieved by a decision of the Minister not to grant a licence or to withdraw a licence may appeal to the Royal Court within 28 days of that decision.
On hearing the appeal, the Court may –

confirm, reverse or vary the decision against which the appeal is brought; and
make such other order as it thinks fit, including any order with respect to the payment of the costs of the appeal.

5 Offences

A person who contravenes Regulation 2(2) or any requirement of a licence commits an offence and is liable to a fine of level 3 on the standard scale.
Articles 15(2), 16(1) and (2) and 17 of the Law apply to an offence under paragraph (1) as they apply to offences under Article 15(1) of the Law.

6 Transitional provisions

The Minister must issue a new licence in respect of any dwelling that, on the day that these Regulations come into force, is a rented dwelling, if the application for the licence in respect of that dwelling is received by 30th June 2022.
Regulation 3(3) does not apply in respect of a licence issued under paragraph

(1).

Nothing in this Regulation limits the Minister's powers under Regulation 3(6).

7 Citation and commencement

These Regulations may be cited as the Public Health and Safety (Rented Dwellings) (Licensing) (Jersey) Regulations 202- and come into force on 1st March 2022.

Public Health and Safety (Rented Dwellings): Request for new Licensing Regulations