Commentary on Sections Part 3: Access to Services etc Schedule 3: Excluded residential tenancy agreements
111.Paragraphs 1 and 2 exclude agreements which grant a right of occupation in social housing, where the landlord or a local authority is already subject to an obligation to check the immigration status of prospective occupants, or the tenant has an existing tenancy and is seeking to exchange their home for an alternative tenancy.
112.Paragraph 3 excludes agreements which grant a right of occupation in a care home.
113.Paragraph 4 excludes agreements which grant a right of occupation in a hospital or hospice. In most cases, a hospital or hospice will not provide an individual’s only or main residence, nor will the occupant be expected to pay rent. However, in some circumstances it may be that a hospital or hospice does provide the patient’s only or main residence and they may be expected to make a contribution towards their board, such that the arrangement would fall within the definition of a residential tenancy agreement as set out in section 20.  This paragraph excludes this type of accommodation.
114.Paragraph 5 excludes agreements which grant a right of occupation in any circumstances where the accommodation is arranged by a relevant National Health Service body which is acting in response to a statutory duty owed to an individual. In some circumstances, continuing health care provision may include the provision of accommodation.
115.Paragraph 6 excludes agreements which grant a right of occupation in a hostel or refuge. Hostels and refuges which are managed by social landlords, voluntary organisations or charities, or which are not operated on a commercial basis and whose operating costs are provided either wholly or in part by a government department or agency or a local authority are exempt. A hostel is defined as a building, or part of a building which is used to provide residential accommodation otherwise than in separate and self contained premises and board or facilities for food preparation, for persons generally or a class of persons, for example people who are street homeless. A refuge means a building which is used wholly or mainly to provide accommodation for persons who are seeking protection from abuse, such as a refuge for those who have fled domestic abuse or the victims of trafficking.
116.Paragraph 7 excludes agreements which grant a right of occupation in any circumstances where the accommodation is arranged by a local authority which is acting in response to a statutory duty owed to an individual, or is exercising a relevant power with the intention of providing accommodation to a person who is homeless or is threatened with homelessness. This provision ensures that where a local authority is subject to a statutory duty to provide assistance to an individual, it is not prevented from fulfilling its obligations and that where a local authority considers it appropriate to exercise a power to provide assistance to an individual for the relevant purpose, they are able to do so.
117.Paragraph 8 excludes agreements which grant a right of occupation that is provided to an individual by virtue of any of the specified provisions of the 1999 Act. The specified provisions empower the Secretary of State to provide accommodation for certain asylum seekers, failed asylum seekers and persons who have been granted temporary admission to the UK under paragraph 21 of Schedule 2 to the 1971 Act, or temporary release under that paragraph. The persons who qualify for this support will fall within the definition of a disqualified person in section 21. The provision ensures that the Secretary of State is not frustrated from exercising the specified statutory powers. It also allows the Secretary of State to secure accommodation to be used for this purpose.
118.Paragraph 9 excludes agreements to which the Mobile Homes Act 1983 applies.
119.Paragraph 10 excludes agreements that grant a right of occupation in accommodation that is provided by an employer to an employee, or by a body providing training to an individual in connection with that training. This avoids duplication of the checks the landlord must conduct before offering employment or a place on a course of study.
120.Paragraph 11 excludes agreements that grant a right of occupation in a building which is used wholly or mainly for the accommodation of students and is either a hall of residence or is a building owned or managed by a higher educational institution or a body established for charitable purposes only. All halls of residence are therefore exempt, as is any accommodation provided for students directly by a higher educational institution. This avoids duplication of checks which will already be undertaken by the educational institution before offering a student a place on a course of study.
121.Paragraph 12 excludes residential tenancy agreements where a student has been nominated to occupy it by an educational institution. Such a nomination could take a variety of forms but will require communication between the institute and the landlord regarding the student who will take up occupation under the residential tenancy agreement.
122.Paragraph 13 provides an exclusion for leases where the lease agreement grants a right of occupation for a term of seven years or more. This type of arrangement is more akin to one of home ownership than a traditional landlord tenant arrangement.
123.Sub-paragraph 3 provides that such an agreement does not grant a right of occupation for a term of seven years or more if the agreement can be terminated at the option of a party before the end of seven years from the commencement of the term. This is an anti-avoidance measure to ensure that leases are not agreed on the basis that they purport to be for a term of seven years or more when the parties intend to terminate them sooner. A lease containing a break clause will include an option to terminate and will not therefore benefit from the exemption. A lease which contains a forfeiture or right of re-entry for the landlord will benefit from the exemption.
124.Paragraph 14 defines terms used in Schedule 3.