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Enforcement options

This content applies to England & Wales

Local authorities' options for enforcement action to deal with a hazard identified under the Housing Health and Safety Rating System.

Improvement notice

Under sections 11 and 12 of the Housing Act 2004, an improvement notice requires the person on whom it is served to carry out remedial action within a certain time. Remedial action means action that will remove or reduce a hazard. It may refer to the dwelling itself and to common parts that relate to that dwelling. In the case of Category 1 hazards, the remedial action must, as a minimum, ensure that the hazard ceases to be a Category 1 hazard, but may go further. It may relate to more than one hazard.

There are complicated provisions as to whom should be served with the notice, but in summary it is to be served on the person having control of the premises where the hazard is located, requiring her/him to take remedial action in respect of the hazard(s) listed in the notice. In one case, the Court of Appeal upheld an Upper Tribunal decision that, where there was inadequate fire resistance between a ground floor flat and the flat above it, the improvement notice requiring improved fire-proofing should only have been served on the occupier of the ground floor flat.[1] In that case the Court also clarified that, whilst an improvement notice may specify more than one proposal to remedy a particular hazard, it is preferable that it specifies a single course of action to be carried out by a single owner.

Copies of the notice must, within seven days of service on the person required to remedy the hazard, be served on the occupier of the premises and on anyone who to the knowledge of the local authority has a relevant interest in the premises.[2]

An improvement notice must include information on:[3]

  • whether it is made in relation to a category 1 or 2 hazard
  • the nature of the hazard(s)
  • any deficiencies contributing to it (or them)
  • the nature of remedial action, and
  • dates when that is to be started (not sooner than 28 days) and completed.

It is an offence to fail to comply with an improvement notice without reasonable excuse and the local authority may do the work in default or by agreement. Since 6 April 2007, a local authority can impose a civil penalty of up to £30,000 as an alternative to prosecution.[4]

Landlords committing such an offence may also be subject to a:

An improvement notice is a local land charge.[5]

The local authority can suspend the action specified in an improvement notice until such time, event, or occurrence that is specified in the notice.[6]

The local authority must revoke the notice if satisfied that the requirements have been complied with and may revoke it in part (and thus make a variation) if the notice deals with several hazards and some are dealt with before others.[7] An improvement notice cannot be 'withdrawn'.[8]

Prohibition order

A prohibition order imposes prohibitions on the use of residential premises or part of premises including HMOs, as specified in the order, whether for all purposes or for any particular purpose. It may extend to common parts of buildings containing flats.[9] The order can also specify the maximum number of people that can occupy the premises.[10] The order becomes operative 28 days after it is made.[11]

There are complicated provisions as to whom should be served with the notice, but in summary it is to be served on:[12]

  • an owner or occupier of the whole or part of the specified premises
  • any person authorised to permit occupation
  • mortgagee of the whole or part of the premises
  • for buildings containing flats, every person who to the local authority's knowledge is an owner or mortgagee of the premises in which the common parts are comprised (service can be by fixing to some conspicuous part of the building).

The order must state whether it has been made to deal with Category 1 or 2 hazards, the deficiencies in the specified premises giving rise to the hazard, the nature of the hazard itself, and what work would be necessary in order for the order to be revoked.[13]

It is an offence to fail to comply with a prohibition order without reasonable excuse.[14]

Landlords committing such an offence may also be subject to a:

A prohibition order is a local land charge.[15]

The local authority can suspend the action specified in a prohibition order until such time, event, or occurrence that is specified in the order.[16]

There is nothing in the Rent Act 1977 or Part 1 of the Housing Act 1988 that will prevent possession being obtained by the owner if that is necessary to comply with the order. The landlord will simply have to serve a valid notice to quit and then obtain a court order. Displaced tenants who have been in occupation for at least one year are entitled to compensation[17] (see the page on Home loss payments for more information). Displaced tenants and licensees may be entitled to be rehoused by the local authority (see the page on Rehousing for more information).[18]

Where there is a lease, the First-tier Tribunal (Property Chamber) may determine or vary it on application of lessor or lessee.[19]

The local authority must revoke the order if, at any time, it is satisfied that the hazard(s) in respect of which the order was made no longer exists.[20] Where there are a number of hazards and some no longer exist then the local authority may revoke in part and vary the order with the agreement of all those served with a copy.[21]

Hazard awareness notice

This is a notice advising the person on whom it served that Category 1 or Category 2 hazard(s) exist on the premises specified. The notice shall also be accompanied by a statement of reasons for deciding to serve such a notice. Provisions as to service are the same as for an improvement notice.[22]

The content of the notice is similar to an improvement notice except there are no dates for the work to be started or completed, and no offence is committed if not complied with. A hazard awareness notice is not a local land charge and is not enforceable.

Emergency action

Local authorities have powers to take emergency remedial action[23] or make emergency prohibition orders where there is:[24]

  • a Category 1 hazard
  • an imminent risk of serious harm to health or safety to any of the occupiers, and
  • no management order (usually relating to a HMO) in force.

Emergency remedial action should be such as to remove the imminent risk of serious harm. The word imminent has been held to imply 'a good chance that the harm will be suffered in the near future'.[25]

An emergency prohibition order has immediate effect in prohibiting the use of all or part of premises.[26]

The local authority has to serve a notice of taking the emergency remedial action within seven days of starting to take the action. The people served are the same as for an improvement notice and the notice must contain similar information together with the date on which the action was or is to be started.[27]

Copies of the emergency prohibition order have to be served on the day the order is made or, if that is not possible, as soon after as is possible.[28] The people served are as for other prohibition orders.

Demolition order

These are currently only available in relation to Category 1 hazard(s). In deciding whether to make an order, the local authority must take into account:[29]

  • availability of local accommodation for rehousing the occupants
  • demand for and sustainability of the accommodation if the hazard was remedied
  • prospective use of the cleared site
  • local environment, including suitability of area for residential use and impact of cleared site on the neighbourhood.

If the property is not vacated the authority or the owner can apply for a possession order. As with prohibition orders, possession can be obtained even where tenants have security of tenure under the Rent Act 1977 and Housing Acts 1985 and 1988.[30]

Displaced tenants who have been in occupation for at least one year are entitled to compensation[31] (see the page on Home loss payments for more information). Displaced tenants and licenses may be entitled to be rehoused by the local authority[32] (see the page on Rehousing for more information).

If the owner fails to carry out the demolition the local authority can enter the premises and demolish them, recovering any costs from the owner.[33]

Instead of making a demolition order, the local authority can make a determination enabling it to purchase the property if it is capable of providing adequate temporary accommodation.[34]

Clearance area

Declaring an area to be a clearance area can be an option for the local authority where:[35]

  • each of the residential buildings contain a Category 1 hazard and other buildings are dangerous or harmful to the health or safety of inhabitants of the area
  • the residential buildings are dangerous or harmful to health by reason of their bad arrangement or narrowness and bad arrangement of the streets.

Compulsory purchase orders

In order to give effect to a clearance area and clear the houses in an area a local authority has to apply for compulsory purchase orders on the properties. Local authorities can only obtain a compulsory purchase order when another statute gives them the power to do so.

A proposed compulsory purchase order must be:[36]

  • in prescribed form[37]
  • served on owners, tenants and mortgagees (but not necessarily tenants with monthly or weekly periodic tenancies)
  • publicised.

If there are no objections to the proposed compulsory purchase order, the Secretary of State will make a decision. Her/his decision can confirm the compulsory purchase order, confirm it with modifications, or refuse it. If there is an objection a public local inquiry or a hearing into the matter has to be held. Appeals can be made to the High Court on narrow grounds.

For information on the compensation payable as a result of compulsory purchase orders see the section on Compensation for more information.

Appeals

The recipient may make an appeal to the First-tier Tribunal (Property Chamber) against an improvement notice or a prohibition order. An appeal against an improvement notice could include an appeal on the merits of the works required by the notice.

The time limit, starting from when the notice or order is served, is:

  • 21 days in the case of an improvement notice[38]
  • 28 days in the case of a prohibition order[39]
  • 28 days in the case of emergency measures.[40]

The Tribunal has the power to extend that period where it is satisfied that there is good reason for failure to appeal within the time limit.[41]

The Tribunal may confirm, quash or vary an improvement notice.[42] There is no need for a suggested course of action to be irrational before a Tribunal may vary a notice - it may do so in any case where it is satisfied that one method of rectifying a hazard is preferable to another.

There is also a right of appeal to the First-tier Tribunal (Property Chamber against the making of a demolition order. The appeal must be made within 28 days of the service of the order.[43]

There is no appeal against a hazard awareness notice.

[1] Wood v Kingston upon Hull CC [2017] EWCA Civ 364.

[2] Sch.1 Housing Act 2004.

[3] s.13 Housing Act 2004.

[4] ss.30, 30(7) and 249A Housing Act 2004 as amended by s.126 and Sch.9 Housing and Planning Act 2016; s.31 Housing Act 2004.

[5] s.37 Housing Act 2004.

[6] s.14 Housing Act 2004; paras 5.24-5.30 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[7] s.16 Housing Act 2004.

[8] Simon v Denbighshire CC [2010] UKUT 488 (LC).

[9] ss.20 and 21 Housing Act 2004.

[10] s.22 Housing Act 2004. See also para 5.21 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[11] s.24 Housing Act 2004.

[12] Sch.2 Housing Act 2004.

[13] s.22(2) Housing Act 2004.

[14] s.32 Housing Act 2004.

[15] s.37 Housing Act 2004.

[16] s.23 Housing Act 2004; paras 5.24-5.29 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[17] s.29 Land Compensation Act 1973, as amended by para 3, Sch.15 Housing Act 2004.

[18] s.39 Land Compensation Act 1973, as amended by para 6, Sch.15 Housing Act 2004.

[19] ss.33 and 34 Housing Act 2004.

[20] Vaddaram v East Lindsey DC [2012] UKUT 194 (LC).

[21] s.25 Housing Act 2004.

[22] ss.28 and 29 Housing Act 2004.

[23] s.40 Housing Act 2004.

[24] s.43 Housing Act 2004.

[25] s.40(2) Housing Act 2004; Bolton MBC v Patel [2010] UKUT 334 (LC).

[26] s.43 Housing Act 2004.

[27] ss.40(7) and 41 Housing Act 2004.

[28] s.43(4) Housing Act 2004.

[29] s.265 Housing Act 1985, as amended by s.46 Housing Act 2004; para 5.44 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[30] s.270(2) and (3) Housing Act 1985.

[31] s.29 Land Compensation Act 1973.

[32] s.39 Land Compensation Act 1973.

[33] s.271 Housing Act 1985.

[34] s.300 Housing Act 1985, as amended by para 20 Sch.15 Housing Act 2004.

[35] s.289 Housing Act 1985, as amended by s.47 Housing Act 2004; para 5.48 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[36] s.11 Acquisition of Land Act 1981, as amended by the Planning and Compulsory Purchase Act 2004.

[37] Compulsory Purchase of Land Regulations 2004 SI 2004/2595.

[38] Part 3 Sch.1 Housing Act 2004.

[39] Part 3 Sch.2 Housing Act 2004.

[40] s.45 Housing Act 2004.

[41] para 14(3) Part 3 Sch.1 Housing Act 2004; para 10(3) Part 3 Sch.2 Housing Act 2004; s.45(4) Housing Act 2004.

[42] Sch.1 para 15 Housing Act 2004; see also Wood v Kingston upon Hull CC [2017] EWCA Civ 364.

[43] s.269 Housing Act 1985, as amended by s.48 Housing Act 2004.

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