Private Sector Housing

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Private Sector Housing Enforcement Guidelines

Aim of Guidelines

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 the Council agreed in February 2001 and complies with the Council Policy for Regulation and Enforcement for all Council regulators confirmed by the Executive on 22 October 2008.

All authorised officers when making enforcement decisions shall abide by the guidelines. Any departure from the guidelines 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 these guidelines 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 (Misc 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 the Housing Health and Safety Rating System (HHSRS). The rating system assesses 29 categories of housing hazards 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 the Housing Health and Safety Rating System (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 operating guidance (PDF, 935kb,185 pages) >> 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

The Housing Health and Safety Rating System (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 on the application of HHSRS in HMOs (PDF format, 113kb, 5 pages) >>.

5.0 Decision Making

Having approved this guidelines, 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 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, a Private sector housing decision checklist shall be completed. 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).

Simple 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 simple 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 by the Head of Environmental Services or the Solicitor to the Council.

Training will be provided for all enforcement officers as required to meet changes in legislation and enforcement procedures.

13.0 Review of guidelines

The implications and effectiveness of these guidelines will be monitored and reviewed as necessary.

30 November 2009

Contact Us:

Telephone: (023) 9244 6670

Email: ehenvironment@havant.gov.uk

Visit: Civic Offices, Civic Centre Road, Havant PO9 2AX

Havant Borough Council, Civic Centre Road, Havant, Hampshire PO9 2AX

Private Sector Housing