Criminal sanctions will raise the costs associated with unauthorised subletting, and this will tend to reduce the activity. However, such a reduction also means that those who previously rented such property from social housing tenants will be pushed into alternative accommodation, adding to housing waiting lists (either directly or indirectly through displacement in the private rented sector).
Moreover, it cannot be assumed that reducing subletting will free-up enough dwellings to compensate for this effect. Given long waiting lists in many areas – and much higher private sector rents – tenants will be reluctant to give up their social tenancies. With the option of subletting less attractive, more may choose to stay put rather than cohabiting or moving away to seek work. Some may live with partners most of the time while visiting their official residence periodically to maintain the tenancy. (By vacating the dwelling they would risk moving to the bottom of the waiting list should the relationship break down). Thus the likely effect of the crackdown on subletting is to increase the proportion of social properties that are empty or under-occupied. This in turn may increase the risk that the dwelling deteriorates (e.g. from damp) or is targeted by vandals or squatters – as the government’s own research on subletting recognises.
Then there is the question of enforcement. There are practical difficulties in determining whether the correct people are occupying a dwelling, particularly if traditions of privacy are respected. There are grey areas such as friends and relatives coming to stay for a few weeks. The crackdown is therefore likely to involve further authoritarian intrusion into private lives. The economic costs involved in employing specialist inspection teams, instituting contested eviction procedures, prosecuting offenders and imprisoning them are also likely to be significant.
Rather than trying to cure the unintended consequences of state intervention with more intervention (the flawed approach of the government’s welfare reforms in general), Shapps should instead focus on removing the distortions responsible for the shortage of low-cost dwellings. Liberalising the planning system and rescinding burdensome building regulations would free the private sector to provide cheap housing as it did in the 19th century. Social housing, together with the £20 billion annual Housing Benefit bill, could then be phased out, with voluntary organisations catering for those with special needs.
But, with regard to this specific issue, it should be a matter of contract between the housing association or local authority and the tenant. The criminal law should not touch the issue. Housing associations and local authorities can develop their own approaches that are appropriate to local circumstances – which may be different depending on the demand for housing. We risk ending up in a ridiculous situation whereby unwelcome squatters who live in a private house who have not forced entry will not be committing a criminal offence, whereas somebody who lets out a council flat to another party whilst they go and work abroad for six months would be doing so.