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Private Sector Housing
Please click on one of the links below for further
information:-
Private Sector Housing
Enforcement
and Prosecution Policy
Aim of Policy
- To ensure a consistent approach to enforcing legislation
concerning private sector housing within Havant Borough Council’s
area.
- To provide officers with guidelines to enable them to make
consistent decisions in the field.
1. 0 Introduction
The Council’s approach to enforcement reflects the terms of
the Government’s Enforcement Concordat to which we agreed in
February 2001.
All authorised officers when making enforcement decisions
shall abide by the policy. Any departure from the policy will be
exceptional, capable of justification and be fully considered
before the decision is taken, unless it is considered that there is
a significant risk to the public by delaying the decision.
All authorised officers should be fully acquainted with the
requirements of this policy and any future amendments made
thereof.
2.0 Legislation to be applied
The Housing Act 2004
- Prescribes the Housing Health and Safety Rating System (HHSRS)
as the method for assessing, rating and categorising hazards
(category 1 or category 2) found in dwellings, the service of
statutory Notices (Improvement Notices, Prohibition Orders, Hazard
Awareness Notices, Emergency Prohibition Orders) and the
undertaking of Emergency Remedial action.
- Makes provision for a Council to take control of residential
accommodation that is poorly managed.
- Makes provision for ensuring that houses in multiple occupation
are not overcrowded.
- Introduces licensing of Houses in Multiple Occuaption (HMOs)
including mandatory licensing of some of the highest risk
properties.
Housing Act 1985 (as
amended)
- Enables the service of Demolition Orders and the declaring of
Clearance Areas where category 1 hazards exist.
Environmental Protection Act 1990
- Provides for the taking of statutory action where "any premises
are in such a state as to be prejudicial to health or a
nuisance".
Public Health Acts, Local Government (Mis Prov) Acts
and Building Act 1984
- These acts allow action to be taken with respect to drainage
and defective premises.
3.0 Enforcement options under Housing Act 2004
3.1 Part 1 of the Housing Act 2004 introduces
a new system for assessing housing conditions and enforcing housing
standards. Action by the Council will in effect be based on a
three-stage consideration:
i) the hazard rating determined under Housing Health and
Safety Rating System (HHSRS).; The rating system assesses 29
categories of housing hazards (appendix 1 refers) in a two stage
scoring process that addresses first the likelihood of harm
occurring and secondly the range of harm that may result. The
scores increase with the degree and probability of risk of harm.
Scores are banded alphabetically and rated from A, being the most
severe, through to band J. Bands A-C comprise category 1 hazards
and D-J comprise category 2 hazards,
ii) whether the LA has a duty or power to act, determined by
the presence of a hazard above or below a threshold.
and
iii) the authority’s judgement as to which is the best means
of dealing with the hazard. Hazards above the threshold are
described as Category 1 hazards and those below as Category 2
hazards.
3.2 The courses of action available to authorities
where they have either a duty or a power to act under the Housing
Act 2004 are to:
• serve an Improvement Notice;
• make a Prohibition Order, which closes the whole or part of
residential accommodation or restricts the number of permitted
occupants;
• suspend these types of action;
• serve a Hazard Awareness Notice;
• make a Demolition Order – (available for Category 2 hazards
only under prescribed
circumstances.)
• declare a clearance area – (available for Category 2 hazards
only under prescribed
circumstances.)
The Council has a statutory duty to take action to address
category 1 hazards (banded A-C) and a discretionary duty to deal
with category 2 hazards (banded D-J)
3.3 Whilst each case will be judged on its
individual merits, including the vulnerability of the current
occupant, the Council shall:
- Take appropriate and timely enforcement action to remedy all
category 1 hazards, and
Will exercise its discretion to:
- Take enforcement action, if it is appropriate and necessary, to
remedy Category 2 hazards (bands D-F)
- Encourage the remedying of category 2 hazards (bands G-J)
4.0 Details of Enforcement options.
Part 1,Chapter 1 part 8 of the Housing Act 2004 applies where
a decision is made to take one of the kinds of enforcement action
mentioned in paragraph 3.2 above. Guidance in this respect is given
by the Secretary of State under section 9 of the Act and is
outlined below;
The enforcement options listed at paragraph 3.2 above are not
tied to a particular level of hazard. There may be circumstances
why, given similar conditions in different dwellings, the Council
might not decide to respond with the same kind of action. For
example, works of improvement may be required in one dwelling,
further occupation prohibited of another, or suspending action. The
action chosen must be the most appropriate course of action to deal
with the hazard in all the circumstances.
4.1 Decision to serve an Improvement Notice
The serving of an improvement Notice is a possible response to
a Category 1 or a Category 2 hazard. It must as a minimum remove
the Category 1 hazard. It may relate to more than one Category 1
hazard. Where there are multiple hazards, including Category 2
hazards, the same notice can require action to deal with both
Category 1 and 2 hazards. The contents of the notice are intended
to ensure that the person who is required to take action is aware
of what is required. The notice should therefore be clear and
unambiguous.
The notice must set out the details of the hazard(s), the
action to be taken and the time allowed for compliance.
Care should be taken to ensure that the requirements as to the
contents of notices are complied with, not only in the interests of
the person on whom the
notice is served but also to reduce the risk of appeals
against notices on purely technical grounds.
A notice cannot require remedial works to start within 28 days
of the service of the notice. As more than one hazard can be dealt
with in the same notice, the notice can specify different deadlines
for completion of the various actions required, allowing less time
to tackle serious hazards and longer time for the less serious
hazards. This is reasonable and appropriate where all the hazards
are sufficiently serious to be the subject of an Improvement
Notice. However, it might be more appropriate to deal with lesser
hazards by a separate Improvement Notice or a Hazard Awareness
Notice so that they do not remain the subject of any outstanding
action. An improvement notice must be revoked when the notice has
been complied with. In certain other circumstances it may be
revoked. The Council may need to make a judgement here that,
although the terms of the notice itself may not have been
fully
complied with, nevertheless the hazard has ceased to be a
Category 1 hazard and they do not intend to take further action.
Where a notice deals with more than one Category 1or 2 hazards, or
a combination of categories of hazards, the notice can be revoked
in relation to certain hazards and varied in relation to the rest.
A notice can also be varied by agreement.
An authority should consider whether it is appropriate to
offer financial assistance or
advice to the owner, landlord or tenant. It should also
consider the circumstances and wishes of tenants and
owner-occupiers, including the extent to which they are willing and
able to carry out or tolerate repairs. Where there are tenants,
including tenants of residential landlords, the circumstances and
wishes of the tenant should also be considered. Where in the
opinion of the authority, works would lead to a high probability of
serious health consequences for occupants; this is a factor, which
might lead them to suspend the action or to issue a Hazard
Awareness Notice.
4.2 Decision to make a Prohibition
Order
A Prohibition Order is a possible response to a Category 1 or
a Category 2
hazard. It may prohibit the use of part or all of the premises
for some or all purposes, or occupation by particular numbers or
descriptions of people. This might be appropriate:
• where the conditions present a serious threat to health or
safety but where remedial action is considered unreasonable or
impractical either because of cost of other reasons;
• to specify the maximum number of persons that should occupy
the dwelling where it is too small for the actual household in
occupation;
• to specify the maximum number of persons who should occupy
the dwelling where
there are insufficient facilities (e.g. personal washing
facilities, sanitary facilities, or
food preparation or cooking facilities) for the numbers in
occupation;
• to prohibit the use of a dwelling by a specified group
(until such time as improvements have been carried out), where a
dwelling is hazardous to some people, but relatively safe for
occupation by others.
When considering serving a Prohibition Order, the local
authority should also:
• have regard to the risk of social exclusion;
• consider whether the premises are a listed building or a
building protected by notice
pending listing. Where improvement is not the most appropriate
course of action,
serving a Prohibition Notice on a listed or protected building
should always be
considered in preference to demolition;
• take account of the position of the premises in relation to
neighbouring buildings.
Where improvement is not the most appropriate course of action
and demolition
would have an adverse effect on the stability of neighbouring
buildings, prohibition of
the whole or part of the building may be the only realistic
option;
• irrespective of any proposals the owner may have, consider
the potential alternative
uses of the premises;
• take into account the existence of a conservation or renewal
area and of any proposals generally for the area in which the
premises are situated. Short term prohibition may be an option if
the long term objective is revitalisation of the area;
• consider the effect of complete prohibition on the well being of
the local community
and the appearance of the locality;
• consider the availability of local accommodation for
rehousing any displaced
occupants.
4.3 Decision to suspend an Improvement Notice or Prohibition
Order
The Council may suspend the action specified in an Improvement
Notice or a
Prohibition Order. The notice to suspend may specify an event
that triggers action, such as non-compliance with an undertaking
given, or a change of occupancy.
Suspension might be appropriate where the hazard is not
sufficiently minor to be addressed by a Hazard Awareness Notice but
the current occupiers are not members of a vulnerable group and the
risk to their health and safety is lower. However, in this kind of
circumstance, consideration must be given to the hazard assessment,
and whether a risk remains which warrants a programme of action,
such as improvements over a more relaxed timescale.
Suspension could also be appropriate where enforcement can
safely be postponed while a more strategic approach to area renewal
is considered. In the case of Category 1 hazards, the authority
will need to consider very carefully whether a suspended notice is
an appropriate way of responding. It will be rare for Category 1
hazards to be dealt with in this way where the occupant is in a
vulnerable group, unless there is a risk to the health or safety of
the occupant through the action itself.
Typically, an event that might trigger the action of a
suspended notice would be a change of occupancy, where another
occupier replaces an occupier considered less vulnerable to the
hazard. The authority needs to know who is living in a property and
consider the kind of circumstances that would be a reasonable
trigger. The circumstances that will trigger the action must be in
the notice. The notice might require an owner or landlord to notify
the authority of a change of occupancy to ensure that the notice
can be reviewed.
4.4 Review of suspended Improvement Notices and
Prohibition Orders
The Council must review suspended notices and orders after at
least 12 months but they can do so earlier. They should also decide
the method of the review, which could be a further visit and
inspection of the property, or an assessment of reliable
information collected on the dwelling.
4.5 Decision to serve a Hazard Awareness
Notice
A discretionary Hazard Awareness Notice may be a reasonable
response to a remote or minor hazard, where the authority wishes to
draw attention to the desirability of remedial action. A Hazard
Awareness Notice is also a possible, though an exceptional,
response to a Category 1 hazard. The notice must specify the hazard
concerned and the action considered appropriate to deal with it.
This procedure does not require further action by the authority,
though it should consider means of monitoring notices. In most
cases this kind of notice will not be
a suitable response to a hazard that can do harm. However,
there may be circumstances where works of improvement, or
prohibition of the use of the whole or part of the premises is not
practicable or reasonable, or such notices cannot meaningfully be
suspended. Authorities should consider the use of these notices
carefully. Hazard Awareness Notices are not required to be
registered as a local land charge. The advisory nature of the
procedure, with no follow-up to determine whether the advice has
been acted upon, makes a land charge inappropriate. If an authority
considers that the hazard is sufficiently serious to require a
local land charge, it should not normally adopt this notice
procedure.
4.6 Demolition Orders
Demolition Orders remain available under Part IX of the 1985
Act as amended. They are a possible response to a Category 1 hazard
where this is the appropriate course of action. They are also a
possible response to a Category 2 hazard in prescribed
circumstances. In deciding whether to make a demolition order an
authority should:
• take into account the availability of local accommodation
for rehousing the
occupants;
• take into account the demand for, and sustainability of, the
accommodation if the
hazard was remedied;
• consider the prospective use of the cleared
site;
• consider the local environment, the suitability of the area
for continued residential
occupation and the impact of a cleared site on the appearance
and character of the
neighbourhood;
• consider the NRA guidance.
4.7 Clearance
The provisions of Part IX of the 1985 Act are retained in
respect of Clearance Areas, with changes to align them with the
provisions of the new legislation. An authority can declare an area
a clearance area if it is satisfied that each of the residential
buildings in the area contains one or more Category 1 hazards
(or that these buildings are dangerous or harmful to the
health or safety of the inhabitants as a result of their bad
arrangement or the narrowness or bad arrangement of the streets);
and any other buildings in the area are dangerous or
harmful to the health of the inhabitants. In a building contains
flats, two or more of those flats must contain a Category 1
hazard.
4.8 Disrepair
Disrepair is likely to contribute to a number of hazards that
can be assessed under HHSRS. These include hazards from cold,
falls, fire, damp and mould growth, electrical hazards, entry by
intruders, and structural failure. The ODPM has issued HHSRS
guidance which illustrates the kinds of disrepair which can give
rise to these hazards and against which authorities will have
either a duty or a discretionary power to take action, according to
their severity.
4.9 Link with licensing
The HMO licensing regime provides local authorities with
procedures to assess personal fitness of licence-holders,
management standards and suitability for the number of occupants,
including the provision of relevant and adequate equipment and
facilities. This enables authorities to consider discomfort and
inconvenience as licensing issues.
For HMOs subject to licensing, health and safety issues are
not included in the criteria on which licences are to be granted.
However, authorities are required to consider whether they have a
duty to act or would use their discretion to act under Part 1 (
Housing conditions) in respect of HMOs subject to licensing, as
soon as practicable and not later than 5 years after the
application for a licence has been received. It is not intended
that authorities should always carry out an inspection under HHSRS
in respect of every potential hazard. But the licensing process
should bring to light properties which the authority wants to
prioritise in order to mitigate possible hazards in the property.
Initial surveys of the Borough have not as yet identified any HMOs,
which will be subject to mandatory licensing.
4.10 Factors to consider in HMOs
HHSRS covers the whole range of hazards stemming from physical
factors likely to be experienced in all types of housing, including
HMOs. This type of accommodation has long been regarded as being of
higher risk to health and safety than dwellings built for and
containing single households. It is clearly essential to prioritise
intervention, and resources, wherever these higher risks are found.
In HMOs the assessment of hazards is made for each individual unit
of accommodation, and each assessment will reflect the contribution
of conditions in the common parts. The same enforcement tools will
be appropriate to HMOs as to other sorts of housing. However,
additional guidance is contained in the technical guidance
('Version 2') on the application of HHSRS in
HMOs.
5.0 Decision Making
Having approved this policy, it is not necessary for Council
Members to be involved in detailed consideration of individual
cases, the decision to take appropriate enforcement, based on the
available evidence and professional judgement, shall be left to the
case officer. Where the proposed enforcement activity will include
action, which would fall into the closure or demolition category,
the enforcement policy decision process would require the agreement
of the relevant portfolio holder at the time.
Prior to the service of any statutory notice, except in the
case of an emergency, the Private sector housing decision checklist
shall be completed (a copy of this is attached as appendix 2.) This
checklist requires the case officer to seek approval for formal
action by the Senior Environmental Health Officer (or Environmental
Health Manager in their absence)
Appropriate consultation should be undertaken with the
Council’s legal section before any prosecution is considered, to
ensure that the case has been properly considered and is
sound.
Enforcement action may only be initiated by officers who are
authorised to do so.
Environmental Health recognises and affirms the importance of
achieving and maintaining consistency in its approach to making all
decisions, which concern enforcement action, including prosecution
following the principles of the Enforcement Concordat. It will also
ensure that all actions will be consistent with the Human Rights
Act 1998.
It is our policy to ensure that enforcement decisions are
always consistent, balanced, fair and relate to common standards
that ensure the public is adequately protected. In coming to any
decision many criteria will be taken into account including the
seriousness of the offence, the enterprise’s past history, the
confidence we have in the management, the consequences of
non-compliance and the likely effectiveness of the various
enforcement options. There may be circumstances in which informal
action will be more effective than a formal approach.
6.0 Informal Enforcement
The minded-to-procedure introduced by the Housing (Fitness
Enforcement Procedures) Order made under section 86 of the Housing
, Grants, Construction and Regeneration Act 1996 has been repealed.
Local authorities must provide fair, practical and consistent
enforcement based on the Enforcement Concordat. Many people, having
had a problem for which they are responsible drawn to their
attention, will be anxious to comply with their statutory
obligations. In such cases the enforcement officer's role will be
to guide and support. In many cases the first contact with a person
complained about or believed to be causing or permitting a problem,
will be by advisory letter.
If written observations, suggestion or requirements are
appropriate these will normally be made within 10 working days as
per the section's performance standards after a complaint is
notified or a meeting takes place. Such written guidance will
clearly identify the nature of the complaint or problem and any
remedial works that are required. The officer will, with due regard
to technical accuracy express requirements or suggestions in a
manner that is clear and readily understandable.
- Any requirements made verbally or in writing will clearly
identify whether they are mandatory or advisory in nature. If the
requirements are mandatory, a timescale for compliance will be
specified.
- Due regard will be had to any special circumstances brought to
an officer's attention by the person responsible when a timescale
for compliance is specified.
It is appropriate to use informal action in the following
circumstances:
- The act or omission is not serious enough to warrant formal
action.
- From the individual’s/enterprise’s past history it can be
reasonably expected that informal action will achieve
compliance.
- Confidence in the individual/enterprise’s management involved
is high.
- The consequences of non-compliance will not pose a significant
risk to public health.
Even where some of the above criteria are not met, there may
be circumstances in which informal action will be more effective
than a formal approach.
7.0 Further courses of action
The Council will consider the following courses of action upon
failure to comply with a notice or order:
- Work in default in accordance with the work in default
procedure and/or
- The instigation of legal proceedings in accordance with the
procedure for bringing formal proceedings or
- To determine the notice or order and replace it with a
different notice or order or
- To take no action, if action is otherwise considered
inappropriate or unreasonable having regard to the merits of the
case at that time.
In determining what action to
take the Council will consider:
- Whether the circumstances that resulted in the service of the
notice or order have changed and to what extent and
- Any representation received from any person who has an interest
in the property.
8.0 Formal Proceedings
When it is apparent an offence has been committed and it is the
most appropriate course of action, a person who has failed to
comply with a notice or order will be invited to attend the Council
Offices and will be given the opportunity to make a statement under
caution in accordance with the requirements of the Police and
Criminal Evidence Act 1984 (PACE).
Formal cautions shall be used in accordance with the Home Office
Circular and relevant LACORS guidance. The Environmental Health
Manager is designated the "cautioning officer" to issue formal
cautions.
Following the interview or if the invitation is ignored or
declined and if prosecution remains the most appropriate course of
action, formal proceedings will be undertaken.
9.0 Works in Default and Emergency Remedial Action
Where category 1 or 2 hazards
exists that in the view of the Council causes an imminent risk of
serious harm to the health or safety of any of the occupiers of the
property concerned or any other person who may be at risk, the
Council may consider carrying out work in default of a person who
is in receipt of a notice or order.
10.0 Other enforcement powers – Injunction
Where the risk to public health is greatest and/or the delay
that would occur in taking the case for prosecution would allow an
unacceptable continuation of the breach, the Council may decide to
seek an injunction. In cases of such seriousness, it must be
approved by the Head of Environmental Services prior to being
referred to the legal department.
11.0 Powers to Charge for Enforcement Action
The Housing Act 2004 provides the
Council with discretion to charge for:
- inspections that have regard to the Rating System
- the consideration of any subsequent action to be taken
- the service of notices or orders
- taking emergency remedial action
- carrying out work in default of compliance with a notice or
order.
The Council will exercise its
discretion to charge for the service of notices and orders and will
make a charge, including an administrative charge, to recover any
expenses incurred through carrying out work in default of
compliance with a notice or to remedy hazards that present an
imminent risk of harm. In making a charge the Council will take
into account the personal circumstances of the person or persons
against whom the enforcement action is taken.
12.0 Training and qualifications of enforcement officers
No officer will carry out enforcement duties unless suitably
trained and experienced and authorised by Havant Borough Council.
Officers specifically authorised for that purpose, being officers
having relevant qualifications; training and experience will only
sign Improvement/Hazard Awareness Notices, suspended notices/orders
and Prohibition Orders
.
Prior to the service of any kind of notice which, directly or
indirectly would cause a business to cease trading, the matter must
be reviewed the Head of Environmental Services or, Head of
Legal.
Training will be provided for all enforcement officers as
required to meet changes in legislation and enforcement
procedures.
13.0 Review of policy
The implications and effectiveness of this Policy will be
constantly monitored and reviewed as necessary by the Environmental
Health Manager and the Portfolio Holder.