Commentary on Sections Part 3: Access to Services etc Schedule 3: Excluded residential tenancy agreements Section 26: Excuses available to agents
150.This section sets out the statutory excuses available to agents where they are engaged to check an occupant’s right to rent, but a disqualified person is allowed to occupy a property. The agent has an excuse either where they can demonstrate that they carried out relevant checks, but the checks did not reveal that a person was disqualified (subsection (2)), or where they informed the landlord that the occupant was disqualified before the tenancy began (subsection (5)). In the latter eventuality the specific arrangements set out in the agency agreement may determine which relevant landlord the agent must report to. If the agent has been instructed by a superior landlord who has accepted responsibility for compliance with the scheme under section 23(5), they may be instructed to make report to the immediate landlord as well as the superior landlord in order to ensure that a residential tenancy agreement which breaches the prohibition in section 21 is not granted.
151.Subsections (3) and (4) set out the duration before a tenancy commences within which the checks must be carried out, applying the same rules as in section 24.
152.Under subsection (6), in the case of an occupant who became disqualified during the tenancy, the agent has an excuse if they have carried out repeat checks in respect of the individual at the specified intervals, and informed the Secretary of State that a disqualified person is in the property if the repeat check identifies that the person’s limited right to rent is no longer valid. They must make this report as soon as reasonably practicable after making the repeat check.
153.Subsection (7) sets out how an agent can be said to have notified the Secretary of State “as soon as reasonably practicable.”
154.Subsection (8) requires notification to the Secretary of State to be made in the prescribed form and manner. This will be specified by order.