Waverley Borough Council Committee System - Committee Document
Meeting of the Executive held on 10/07/2007
Annexe 2 to Appendix N
Housing Enforcement Policy
This enforcement policy forms part of the Councils Private Sector Renewal Strategy. The aim of this policy is to set out how the Council’s Private Sector Housing Team deal with hazards found in private sector dwellings in the Borough and how it uses its enforcement duties and powers.
The Private Sector Housing Team is part of the Environment and Leisure Department of the Waverley Borough Council (“the Council”). The aim of the team’s work is to ensure the standard of private sector housing is safe and suitable for the occupants. One method by which the Private Sector Housing Team achieves the aims of the strategy is by enforcement. Enforcement action can be taken against landlords and owner-occupiers alike.
In carrying out its duties, the Council will carry out its enforcement role in a consistent and equitable manner. The method of assessing housing conditions and the enforcement duties powers have been changed by the Housing Act 2004, which revises the powers of local authorities to deal with private properties.
The aim of this enforcement policy is to ensure that people who own and rent property within the Borough of Waverley are aware of what they can expect from officers of the Private Sector Housing Section. The policy is designed to ensure fair, consistent and transparent delivery of enforcement activity from the Private Sector Housing Team.
Those affected by the enforcement policy, such as private landlords, will be consulted and copies of the policy will be made available.
The Private Sector Housing Section raises housing standards by responding both reactively and proactively.
In the case of reactive
work, the Team responds to:-
Complaints from private sector tenants who contact the Council complaining about deficiencies found in the properties they live in;
Complaints about private sector properties that are causing problems for neighbouring occupiers;
Requests for service from private sector landlords;
Requests for service from owner occupiers.
Proactively the private sector housing team:-
Identifies and inspects houses in multiple occupations (HMOs) by carrying out surveys of the district and prioritising inspections by focusing on high risk HMOs.
Operates a compulsory HMO Licensing Scheme for High Risk HMO’s.
Inspects licensed caravan sites for compliance with their site licence conditions.
Principles of Good Enforcement
The Council is committed to the principles of the Government's Enforcement Concordat, which provides the basis for fair, practical and consistent enforcement. It is based on the principles that anyone subject to enforcement regulation should receive clear explanation of what they need to do to comply and have an opportunity to resolve difficulties before formal enforcement action is taken.
(See Appendix A)
Approach to enforcement action
There are two types of enforcement work the Private Sector Housing Team engage in:-
informal and formal
Informal action will generally be considered as the first step unless the problem is of a serious nature and there is an imminent risk to health and safety. In most circumstances tenants will be advised to contact the landlord about the problem first if they have not already done so.
Informal action usually involves Council Officers (“Officers”) undertaking one or more of the following:-
No action where complaints or allegations of breaches in housing legislation are unsubstantiated or formal action is inappropriate in the circumstances;
Verbal request for action;
Written request for action;
Written warning of formal action if faults are not corrected.
Circumstances in which informal action is likely to be appropriate include situations where:-
i) The landlord is willing to undertake the required remedial action;
ii) The act or omission is not serious enough to warrant formal action;
iii) The individual or company's past history suggests informal action will achieve compliance;
iv) The Officers confidence in the management of the property or premises is high;
v) Standards are generally good suggesting a high level of awareness of statutory responsibilities; and
vi) The consequences of non-compliance with standards are acceptable e.g. minor matters, or the time period allowed to seek compliance does not present a significant risk to public health.
A re-visit may be carried out where informal action has been agreed to confirm that identified faults have been corrected.
Formal action will be considered where the informal approach has not been successful in ensuring compliance or in situations where there is an imminent risk to health and safety of the occupants, visitors or passers-by.
The use of formal enforcement action will at all times be consistent with the principles set out in the Enforcement Concordat. Formal action usually consists of one or more of the following:-
Service of appropriate statutory notices;
Undertaking works in default of a statutory notice;
Undertaking emergency remedial works;
Issuing formal cautions;
In coming to a decision Officers will in every case have regard to;
i) The seriousness of the hazard;
ii) Whether the Council has a duty or a discretionary power to take action;
iii) The individual's or company's past history in terms of compliance;
iv) The Officers confidence in the management of the property or premises;
v) The consequences of non-compliance in terms of risk to people, property or the environment;
vi) The likely effectiveness of the various enforcement options; and
vii) The risk to public health or the health and safety of the occupant(s).
Power to Take Action without Agreement
Where a statutory notice has been served and:-
i) the specified works have not been completed within the required timescale and no acceptable representations are made to extend the timescale; or
ii) the Council considers that reasonable progress is not being made for completion of an action specified in an improvement notice;
the Council may seek to enter the premises for the purpose of taking action in relation to the hazard.
The Council will take action to recover all reasonable expenses in all cases where action is required in default of a statutory notice.
Consideration to prosecute for breach of any offence will be based on the Code for Crown Prosecution Guidance and in particular regard will be given to one or more of the following:-
i) There is sufficient and reliable evidence that an offence has been committed;
ii) Obstruction or assault is involved;
iii) There appears to have been reckless disregard for the health and safety of the occupants;
iv) There are public interest factors.
v) Consideration of personal circumstances of the offender;
vi) The past history of the offender;
vii) The attitude of the offender towards the offence;
viii) The likelihood of a significant sentence;
ix) The need to deter.
This chapter lists the legislation commonly enforced by the Private Sector Housing Team and outlines the provisions of the Housing Act 2004.
It is not an exhaustive list but is the legislation that is most in use. It should also be noted that this is not a definitive interpretation of the legislation and does not provide a full statement of the law - it is simply a summary.
The Housing Act 2004
The Housing Health and Safety Rating System (HHSRS)
Part 1 of the Housing Act 2004 contains the Housing Health and Safety Rating System (HHSRS). The HHSRS is a system for assessing the health and safety risks in dwellings, and is designed as a replacement for the current fitness standard. The system is a risk assessment process and is comprehensive in its coverage of key health and safety risks in dwellings.
Hazard Score and Rating
Following an inspection of a dwelling the surveyor is required to produce two pieces of information:-
i) Likelihood of an occurrence that could cause harm happening in the dwelling within a 12 month period; and
ii) the likely spread of harm outcomes.
The combination of these two factors produces a score called a Hazard Score. The Hazard Score is a numerical representation of the overall risk from a hazard which forms the basis of any enforcement action that may be taken.
The hazard rating is the band in which the hazard score falls. There are 10 hazard bands, A to J, with J being the safest and band A being the most dangerous.
Categories of Hazard
There is a relationship between the hazard bands and 2 broad categories of hazard prescribed in regulations: Category 1 and Category 2. Category 1 hazards are those rated by the HHSRS assessment in bands A-C. Category 2 hazards are those rated band D and lower.
Category 1 hazards trigger a local authority’s duty to take enforcement action;
Category 2 hazards can be dealt with by the authority’s discretionary powers.
Post HHSRS Assessment
Statement of Reasons
Where the Council inspects a dwelling using the HHSRS and decides that the most appropriate course of action is to serve a statutory notice under the Housing Act 2004 the Council will produce a statement of reasons as required by section 8 of the Act. Examples of the matters to consider when deciding the most appropriate course of action are:-
The action should be proportionate;
Multiple hazards may indicate a run down property;
The vulnerability of the current occupants and regular visitors;
Whether or not the occupancy is likely to change;
The views of the occupants;
The landlord’s ability or willingness to undertake remedial action;
The effect of the action on the local community;
The potential alternative uses for the building.
Hazard Awareness Notice
A hazard awareness notice may be a reasonable response to a minor hazard (category 2), although can be used (where appropriate) to address a category 1 hazard.
The notice does not require further action by the person on whom it is served. There is no provision for an appeal against a hazard awareness notice and there is no requirement to register these notices as a local land charge.
A hazard awareness notice may also be served where an owner or landlord has agreed to take remedial action and the Council is confident the work will be done in reasonable time.
The service of a hazard awareness notice does not prevent further formal action if an unacceptable hazard remains.
An improvement notice served under section 11 or 12 is a possible response to a Category 1 or Category 2 Hazard. Under section 11, action must as a minimum remove the Category 1 hazard.
An improvement notice will normally become operative 21 days after service of notice; however the Council cannot require remedial works to start within 28 days from the date the notice is served. As more than one hazard can be dealt with in the same notice, the notice can specify different deadlines for completion of various actions required, allowing less time to deal with serious hazards and a longer time for the less serious hazards.
An improvement notice will be revoked when it is complied with. For this reason it may be more appropriate in certain situations to deal with hazards by serving separate notices so that they do not remain the subject of any outstanding action.
A prohibition order under section 20 or 21 of the Act is a possible response to a category 1 or a category 2 hazard. A prohibition order 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.
Examples of situations where the Council may consider serving a prohibition order include:-
Where conditions present a serious threat to the health and safety of the occupants and remedial action is considered unreasonable or impractical e.g. due to cost or where works cannot be carried out with the tenant in residence;
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 for the numbers in occupation;
To prohibit the use of the dwelling by a specified group (until such time as improvements are carried out) where a dwelling is hazardous to some people, but relatively safe for occupation by others;
In an HMO, to prohibit the use of specified dwelling units or common parts.
Suspended Improvement Notice or Prohibition Order
The Council may suspend the action specified in an improvement notice or prohibition order. The notice to suspend may specify an event that triggers action, such as non-compliance with an undertaking given to the Council, or a change of occupancy. A suspended notice or order may 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. It will also be considered in the case of accommodation occupied during term time by students in order to become operative when the property becomes vacant. A suspended notice or order will not be appropriate where there has been a high turnover of occupants.
Where appropriate the Council will consider the views of the occupant(s) when deciding to suspend action.
Once a suspended improvement notice or prohibition order has been served, it does not prevent the Council from taking any other course of action in relation to the dwelling. The Council will review suspended notices and orders not later that 12 months after the notice/order was served.
Where the Council deems appropriate, action may be taken to deal with a category 2 hazard.
A statement of reasons will accompany all discretionary statutory notices to ensure a transparent approach to enforcement.
At the current time there is no local statistical evidence to base our discretionary enforcement policy on, so each case will be judged its own merits. This will be reviewed periodically.
The Council has the discretion to take emergency enforcement action against hazards which present an imminent risk of harm to occupiers. This will only apply if there is a category 1 hazard. Emergency action can only be taken on premises that are not the subject of an interim or final management order.
Emergency Remedial Action
The remedial action taken will include whatever remedial action the Council considers necessary to remove an imminent risk of serious harm.
The Council will serve notice within 7 days of taking emergency remedial action.
Emergency Prohibition Order
The Council has the power to enter a property at any time to make a prohibition order, to prohibit the use of all or any part of the premises. The order has the effect of preventing occupation of the premises with immediate effect. An order will be served on the day that it is made.
It is for the Council to consider whether subsequent action by the owner gives grounds to revoke or vary the order.
Power of Entry
Section 239 of the 2004 Act gives the Council power of entry to properties in pursuance of its duties under parts 1 to 4 and part 7 of the Act when certain conditions are met. Officers will have written authorisation when exercising power of entry which sets out the purpose for which entry is authorised and will give at least 24 hours notice to the owner or occupier of the premises that they intend to enter.
Section 240 enables a Justice of Peace to issue a warrant for admission to premises. This includes power of entry by force if necessary. This power will only be exercised when entry under section 239 has been refused; or the property is empty and immediate access is necessary; or prior warning is likely to negate the purpose of access.
Licensing of Houses in Multiple Occupation (HMO’s)
Part 2 of the Act introduces compulsory licensing for larger, higher-risk HMOs and discretionary powers to license smaller, multiple-occupied properties.
The aim of the licensing regime is to provide greater protection to the health, safety and welfare of the occupants of this type of property.
The Council will regulate the HMO Licensing scheme in accordance with the Private Sector Housing Renewal report approved at the Council’s Executive Meeting on 4th April 2006.
Part 4 of the Housing Act contains powers for local authorities to make management orders. There are two types of orders:-
i) Interim Management Orders (IMOs) - An IMO transfers the management of a residential property to the Council for a period of up to 12 months;
ii) Final Management Orders (FMOs) – A FMO transfers the management of the house to the Council for a period of up to 5 years.
The Council will only make a Management Order as a last resort when all informal attempts to secure compliance have failed.
Empty Dwelling Management Orders
Part 4 of the Act also contains powers for local authorities to make empty dwelling management orders (EDMOs). There are two types of EDMO:-
i) Interim EDMO – this transfers the management of the property to the Council for a period of up to 12 months and creates a duty on the Council to secure that the dwelling becomes occupied;
ii) Final EDMO – this may be made to replace an Interim EDMO where the Council considers it necessary to secure occupation of the dwelling; Final EDMOs may last up to 7 years.
The Council will only make an Empty Dwelling Management Order as a last resort when all informal attempts to secure occupation of an empty dwelling have failed.
Where an HMO is or is likely to become overcrowded and does not meet the Council’s standards, an Overcrowding Notice may be served under Part 4 of the Act to reduce the number of occupants or to prevent new residents from taking up occupation.
The following is a précis of other relevant private sector housing enforcement provisions:-
Housing Act 1985
Many of the enforcement provisions contained within the Housing Act 1985 have been repealed and replaced by the provisions of the Housing Act 2004. The following remain:-
Demolition Order – Section 265
This still remains an option for dealing with dwellings containing category 1 hazards. A demolition order requires the property to be vacated within a specific time and subsequently demolished. It is a criminal offence to allow the property to be occupied after the demolition order has come into effect. If the person upon whom the order has been served does not demolish the building, the Council can demolish it instead and recharge the person accordingly.
Clearance Area - Section 289
A clearance area is an area that is to be cleared of all buildings. The Council may declare an area to be a clearance area if it is satisfied that each of the residential buildings in the area contains one or more category 1 hazards or, by virtue of their bad arrangement, are dangerous. The Council is required to consult on the declaration of a clearance area and publish its intentions. Owners and in certain cases occupiers of properties are compensated accordingly.
Management of Houses in Multiple Occupation (England) Regulations 2006.
Management regulations under section 234 of the Act impose duties on landlords and managers of HMOs (whether or not subject to licensing). Although there are no notice serving powers under section 234, the Council can prosecute landlords for breach of the regulations. In considering such action, the Council will in addition consider taking action in relation to such facilities by exercising its powers under Part 1 of the Act.
Environmental Protection Act 1990 Section 80
– Statutory nuisances
Section 79 of this Act lists what are statutory nuisances. As far as the legislation enforced by the Private Sector Housing Section is concerned, a statutory nuisance is any house in such a state as to be prejudicial to health or a nuisance. Prejudicial to health is defined as injurious or likely to cause injury to health. A nuisance is taken to be anything that interferes with the use and enjoyment of a neighbouring property or which materially affects the comfort and quality of life of the public at large. Where a statutory nuisance exists or is likely to occur, the Council has a duty to serve an abatement notice under section 80 to abate the nuisance.
Examples of conditions which may cause a statutory nuisance or be prejudicial to health include:-
Dampness or condensation resulting in mould growth;
Extensive water penetration;
Condition of mobile homes.
power of entry
exists for authorised officers to enter any premises, with 24 notices given to the occupier. Where entry is refused or a property is empty and immediate access is necessary or prior warning is likely to negate the purpose of access, the Justice of Peace may issue a warrant to an authorised Officer of the Council to enter the premises.
Protection from Eviction Act 1977
This Act makes harassment and/or illegal eviction of the occupant of a residential property a criminal offence.
Cases of harassment and threatened illegal eviction will be investigated and in most cases the aim will be to maintain the occupant’s residence in the property in peace and comfort through facilitating negotiation and conciliation between the occupant and landlord.
Before considering enforcement action the following will be taken into consideration in addition to the Code for Crown Prosecution Guidance:-
Circumstances leading to the alleged harassment and eviction;
The conduct of both the landlord and occupant;
The reliability and standing of the witness.
Caravan Sites and Control of Development Act 1960
The Caravan Sites and Control of Development Act 1960 provides for the licensing of caravan sites to ensure the health, safety and welfare of the residents. This is achieved by issuing suitable site licence conditions.
The Council may apply any conditions which are considered to be necessary. However most site licence conditions will be in accordance with the published model standards.
Site licence conditions will be issued with the site licence and, where necessary, will specify a timescale for compliance.
There are no notice serving powers under the Act. Where breaches of site licence conditions are identified or the breaches are not rectified within specified timescales despite informal attempts to secure compliance, prosecution will be considered.
Local Government (Miscellaneous Provisions) Act 1976 Section 16
- Requisition for Information
When the Council needs to obtain information about a property in respect of which it is proposing to take enforcement action, the Council will serve a requisition for information on the occupier and/or any person who has a legal interest in it, or who directly or indirectly receives rent, or is authorised to manage or to arrange for its letting.
The Council will always indicate the Act and section of the Act that it is proposing to enforce. Generally speaking a Requisition for Information is served at an early stage to ensure that the Council is corresponding with the correct person(s), but where the Council feels that urgent enforcement action is necessary it may be served at the same time as a formal Notice.
Charge for Enforcement Action
Where enforcement action involves the service of any of the following notices, a charge will be made for the cost of administration and other expenses involved:-
Hazard awareness notice
Emergency remedial action
Emergency prohibition order
The person upon whom the notice is served will be responsible for paying the expenses incurred by the Council in serving the notice.
The following circumstances are likely to warrant prosecution:-
Where there is a failure to comply in full or part with statutory notices;
Where there is a persistent failure to comply with HMO licence conditions;
Where the owner of a licensable HMO fails to obtain a licence;
Where there is a persistent failure to comply with the HMO Management Regulations;
Cases of illegal eviction and/or harassment;
Where there is a persistent failure to comply with site licence conditions for mobile home sites.
We will provide information and advice in plain language on the rules that we apply and will disseminate this as widely as possible. We will be open about how we set out our work, including any charges that we set. We will discuss general issues, specific compliance failures or any other problems with those experiencing problems.
We believe that prevention is better that cure, and we are therefore committed to working with landlords and business, to advise on and assist with compliance. We will provide a courteous and efficient service and our staff will identify themselves by name. We will provide a contact point and telephone number for further dealings with us and we will encourage landlords and business to seek information on compliance matters from us.
Applications for approval of licences for dwellings will be dealt with efficiently and promptly.
Wherever possible we will ensure that our enforcement services are effectively coordinated to minimise unnecessary overlaps or time delays.
The Council has a well publicised complaints procedure that can be followed.
You are invited to initially write complaints to:-
Head of Environmental Services
Waverley Borough Council
If the Head of Environmental Services is unable to deal with your complaint, the Council’s corporate complaints procedure will be explained to you.
If you think you have been unfairly treated by the Council, ultimately you can ask The Local Government Ombudsman to investigate.
We will only require action that is proportionate to the risks involved. We will take account of all the circumstances of the case to minimise the costs of compliance. However we must comply with the law where necessary.
We will carry out our duties in a fair, equitable and consistent manner. While inspectors are expected to exercise judgment in individual cases, we will have arrangements in place to promote consistency, including effective arrangements for liaison with other authorities.
Advice from an officer will be put clearly and simply and will be confirmed in writing, on request, explaining why any remedial work is necessary and over what timescale and making sure that legal requirements are clearly distinguished from best practice advice.
Before formal enforcement action is taken, officers will provide an opportunity to discuss the circumstance of the case and, if possible, resolve points of difference, unless immediate action is required (for example, in the interest of health and safety).
Where there are rights of appeal against formal action, advice on the appeal mechanism will be clearly set out in writing at the time the action is taken (whenever possible this advice will be issued with the enforcement notice).
How to contact us
We can be contacted in writing or by calling in person:-
Private Sector Housing Team
Waverley Borough Council
Surrey GU7 1HR
Telephone: 01483 523426
Fax: 01483 523251