Private rented sector housing enforcement policy

Enforcement responsibilities and options

5.1

In circumstances where enforcement responsibility is shared between or rests fully with external organisations, officers will have regard to protocols agreed with other enforcement agencies. Where appropriate, officers will ensure that referrals are passed to the appropriate enforcing authority promptly and in accordance with any agreed procedure.

5.2

The Council will minimise the costs of compliance for residents and landlords by ensuring that any action required is proportionate to the risks involved or seriousness of any breach. As far as the law allows, the circumstances of the case and the attitude of the owner or agent will be considered when determining what action to take. Regard to various courses of remedial action and consideration will be given to what is 'reasonably practicable'.

5.3 - Housing, Health and Safety Rating System (HHSRS)

5.4

HHSRS is set out in Part 1 of the Housing Act 2004 (the Act), and the Council will base enforcement decisions in respect of residential premises on assessments made under that system. It is a risk-based approach consisting of 29 hazards. In undertaking an inspection of a dwelling, an Environmental Health Officer (or other suitably qualified Officer), will undertake an assessment of the potential risks to health and safety from any deficiencies identified in a dwelling. The officer will then determine whether any enforcement action is required depending upon the severity of the hazard, or whether there is a duty or discretion to act.

5.5

Where a Category 1 hazard exists, The Council has a duty to act, however, with regards to Category 2 hazards, the power to act is discretionary, and there is an option to take informal action with a landlord where there is a low risk to health and safety and where there is no history of non-compliance from the landlord.

5.6

Action by the Council will be based on a three-stage consideration:

  • the hazard rating determined under HHSRS;
  • whether the authority has a duty or power to act, determined by the presence of a hazard above or below a threshold prescribed by Regulations (Category 1 and Category 2 hazards); and
  • the authority's judgement as to the most appropriate course of action to deal with the hazard

5.7

The Act contains enforcement options, and the choice of the most appropriate course of action is decided having regard to statutory enforcement guidance.

5.8 - Legislation, action and powers

5.9

In addition to HHSRS, there are other legislation and regulations under which the team's responsibilities as a Housing Authority will be considered, these include (but are not limited to):

  • The Public Health Act 1936 and 1961;
  • The Prevention of Damage by Pests Act 1949;
  • Caravan Sites Act 1968 (as amended by the Mobile Homes Act 2013);
  • The Local Government (Miscellaneous Provisions) Act 1976 and 1982;
  • Protection from Eviction Act 1977;
  • The Building Act 1984;
  • The Housing Act 1985;
  • The Environmental Protection Act 1990;
  • The Housing Act 2004;
  • The Regulatory Reform Order 2005;
  • The Management of HMOs (England) Regulations 2006 and 2007;
  • Enterprise and Regulatory Reform Act 2013;
  • Deregulation Act 2015;
  • The Energy Efficiency (Private Rented Property) (England and Wales) Regulation 2015;
  • Smoke and Carbon Monoxide Alarm (England) Regulations 2015;
  • The Housing and Planning Act 2016;
  • The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

5.10

Authorised officers can inspect and survey the entire premises, take samples, and use equipment to take measurements and photographs where appropriate.

There are several actions officers may take and these will depend on the circumstances of the case:

  • take no action - Where premises are found to be satisfactory
  • take informal action - Informal action will be taken where insignificant Category 2 hazards are found and recommendations are being made
  • take formal enforcement action - This action will normally be the first course of action following the inspection where a Category 1 hazard, or where a significant category 2 hazard is identified

Where an officer identifies an imminent risk of serious harm the officer will make every effort to contact the owner to give them the opportunity to remedy the situation within a short timescale.

5.11 - Informal action

This may include:

  • offering advice
  • making recommendations verbally or by letter
  • making written requests for action. These will include letter, schedule or a pro- forma requesting timescales for the start and completion of any works
  • discussing options with owners

5.12 - Formal action

In the case of hazards determined under the HHSRS the Council has a statutory duty to act in the case of Category 1 hazards and a power to act in the case of Category 2 hazards.The Council will exercise its power to deal with Category 2 hazards formally for those hazards that it considers to be significant. Whilst it is not possible to be prescriptive in describing all hazards which the Council would deem to be significant, factors that may be considered to assist in the determination of which hazards are deemed to be significant include one or more of the following:

  • whether the hazard pertains to threats from uncontrolled fire (and smoke)
  • whether there are multiple hazards within the property
  • whether there is a vulnerable individual or group in occupation or likely to be in occupation
  • whether or not it is reasonable to assume the conditions are likely to deteriorate in the next 12 months

Informal action is still an option to the Council where the Category 2 hazard is deemed to be insignificant by the Officer.

5.13

In relation to the above enforcement options for hazards, the following enforcement notices will be considered, depending on the severity and or number of the hazards identified:

  • serve a Hazard Awareness Notice
  • serve an Improvement Notice requiring remedial works
  • make a Prohibition Order, which closes the whole or part of a dwelling or restricts the number or class of permitted occupants or restricts its use
  • serve an Emergency Prohibition Order; *
  • suspend any of the above, until a date or time specified
  • take Emergency Remedial Action; *
  • make a Demolition Order; **
  • declare a Clearance Area**

* Only in respect of Category 1 hazards

**Circumstances for these Notices are stated in Appendix 1 (Demolition Orders and Clearance Areas)

5.14

In addition to the above, alternative or additional Notices may be considered under the legislation listed in 5.9 depending on the circumstances. This includes all legislation that pertains to gathering information as part of a PSH enforcement investigation, these include (but are not limited to):

  • Section 16 Local Government (Miscellaneous Provisions) Act 1976, (Requisition for Information Notice);
  • Section 235 Housing Act 2004 - (Requisition for Documents Notice)

Failure to respond to either of the above notices within the specified time frame is an offence and may lead to prosecution. These notices do not register as a Land Charge and are not included on the Council's Enforcement Register.

5.15 - Enforcement considerations

5.16

In determining which of the above courses of action to take, the Council may take the following factors into consideration:

  • the current occupiers, if any, and their views as to what should happen
  • likely regular visitors and any vulnerabilities
  • the turnover of tenancies
  • the risk of excluding vulnerable groups of people from the private rented sector
  • the size, type, and location of the property
  • the sustainability of an area - if it has been identified for potential demolition within an Area Action Plan
  • the views of the owner(s)
  • in the case of demolition or clearance, the views of residents, businesses and Councillors will also be considered

5.17

In the event that a Notice is Suspended, these will be reviewed at least annually, and The Council will consider requests to vary or revoke an improvement notice or a prohibition order. In doing so they will have consideration to some or all of the following factors:

  • the views of the Fire Authority, where appropriate
  • the risk presented by the hazard and the potential effect of any variation
  • the level of confidence in the recipient to respond and their history of compliance or otherwise
  • the progress made with any other work specified in the Notice or Order
  • the costs of any works in relation to the benefit to be derived from them
  • any additional unforeseen works which become apparent during the course of remedial works

If the Council considers that there are special circumstances in relation to a Prohibition Order or an Improvement Notice, it may revoke the order or notice.

5.18 - Entering a property and powers of entry

5.19

Where practicable, landlords and/or agents will be given 24 hours' notice of the Council's intention to carry out an inspection of the property as per the requirements of section 239 Housing Act 2004.

5.20

If the landlord/agent or representative wishes to attend the inspection, they must also provide the tenant with the necessary notice. After the inspection, whilst onsite, the Council will discuss the findings of the inspection and the possible options to reduce or remove the hazards, if requested to do so by the landlord/agent or representative and it is practicable to do so. This is only available when the landlord/agent or representative attends the property for the inspection. The Council will rate the hazards using the HHSRS and serve any relevant notices as soon as is practicable. It should be noted, however, that any works discussed with the landlord/agent or their representative will be before the deficiencies have been scored using the HHSRS and this could impact upon the assessment.

5.21

In the case of a HMO, an authorised officer has a right of entry at any reasonable time, and without giving any prior notice.

5.22

There may be times where Officers need to enter a premises without notification to the owner or occupier, in these cases, a warrant will be sought under the appropriate Act being used, this can include powers of entry under:

  • The Housing Act 2004 section 239;
  • The Environmental Protection Act 1990 - Schedule 3, para. 2;
  • Prevention of Damage by Pests Act 1949 - Section 22;
  • The Public Health Act 1936 - Section 287;
  • The Building Act 1984 - Section 95, and
  • The Local Government and Housing Act 1989 - Section 97

5.23

The power of entry is to enter the land or premises at any reasonable hour for the purpose of carrying out an inspection and/or investigation either required by the legislation or in order to ascertain if any part of the relevant legislation should apply. When using a power of entry, the associated advanced notice as required by the various Acts will be provided to the owner/landlord/responsible party.

5.24

If officers are refused entry, the Council has the right to apply to the Magistrates Court for a warrant to enter the land/property. This course of action will only be taken in cases where it is considered both necessary and proportionate to the matter under investigation. Any person who willfully obstructs an authorised officer acting in exercise of a right of entry commits an offence and may be liable on summary conviction to a fine, the level of which is specified by the respective legislation.

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