Local authority HHSRS enforcement action
A local authority can take enforcement action to deal with a hazard identified under the Housing Health and Safety Rating System (HHSRS).
When enforcement action can be taken
A local authority can take enforcement action where there are hazards in accommodation.
The enforcement options depend on the seriousness of the hazard and include:
an improvement notice
a prohibition order
a hazard awareness notice
taking emergency remedial action
Local authorities can also decide to demolish a property or issue a compulsory purchase order to acquire properties in the area.
Who enforcement action can be taken against
A local authority can take enforcement action against the person with control of, or managing, premises where there is a hazard. This includes:
private rented landlords
housing association landlords
private homeowners
Local authority housing
A local authority cannot take enforcement action against itself. This means council tenants, such as secure and flexible tenants, cannot benefit from local authority enforcement powers under the HHSRS.[1]
Local authority homes are expected to comply with the Decent Home Standard, which requires that homes are free of category 1 hazards.[2]
A local authority must carry out inspections of its own properties, where required to do so as a result of a complaint or its review of housing conditions. Find out more about local authority duties to assess hazards in the home.
Other public sector landlords
Some public sector landlords, such as the NHS, Ministry of Defence and fire authorities can be subject to inspection and enforcement. Some landlords have a Crown exemption.
Improvement notice
A local authority can serve an improvement notice requiring the person on whom it is served to carry out remedial action within a certain time.[3]
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.
For category 1 hazards, the remedial action must ensure that the hazard ceases to be a category 1 hazard as a minimum. The notice can insist on further steps and can relate to more than one hazard.
Content of the notice
An improvement notice must include information on:[4]
whether it is made in relation to a category 1 or 2 hazard
the nature of the hazards
any deficiencies contributing to them
the nature of remedial action
the date by which any action is to be started and completed
The date by which remedial action is to be taken must not be sooner than 28 days after the notice has been served.[5]
Service of an improvement notice
An improvement notice should be served on the person having control of the premises where the hazard is located.[6]
Within seven days of service on the person required to remedy the hazard, copies of the notice must also be served:[7]
on the occupier of the premises
on anyone who to the knowledge of the local authority has a relevant interest in the premises
An improvement notice can specify more than one proposal to remedy a particular hazard, but it is preferable that it specifies a single course of action to be carried out by a single owner.
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.[8]
Failure to comply with the notice
It is an offence to fail to comply with an improvement notice without reasonable excuse.[9]
The local authority can carry out the required remedial action in default or by agreement.
A local authority can impose a civil penalty of up to £30,000 as an alternative to prosecution.[10] Where the relevant offence is committed by a company, the sum of the civil penalties issued against the company and its director can exceed the £30,000 cap, as there is no rule requiring the penalty to be determined first and then apportioned.[11]
An improvement notice is a local land charge.[12]
A landlord who commits an offence by failing to comply with an improvement order could also be subject to a rent repayment order or banning order.[13] Find out more about rent repayment orders and banning orders on Shelter Legal.
Reasonable excuse for failure to comply
Where a person fails to comply with an improvement notice, they have a defence if they had a reasonable excuse.[14]
The Upper Tribunal held that where a notice was served on the property and at the landlord's previous address, but not at the landlord's current address, the landlord had a reasonable excuse for non-compliance and no offence was committed.[15]
In another case, the Upper Tribunal found the freeholder had a reasonable excuse for non-compliance as leaseholders refused access for works and moved obstructions back into the hallway after the freeholder had cleared them.[16]
Suspension or revocation of the notice
The local authority can suspend the action specified in an improvement notice until a specific time or event specified in the notice.[17]
The local authority must revoke the notice if satisfied that the requirements have been complied with. A local authority can also revoke it in part and vary the notice, if the notice deals with several hazards and some are dealt with before others.[18]
An improvement notice cannot be 'withdrawn'.[19]
Prohibition order
A local authority can issue a prohibition order to prohibit the use of residential premises or part of premises, including HMOs.
A prohibition order can prohibit use for all purposes or for any particular purpose. It may extend to common parts of buildings containing flats.[20]
A prohibition order becomes operative 28 days after it is made.[21]
Content of the notice
The order must state:[22]
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
what work would be necessary in order for the order to be revoked
The order can also specify the maximum number of people that can occupy the premises.[23]
Service of the notice
A local authority must serve notice on any:[24]
owner or occupier of the whole or part of the specified premises
person authorised to permit occupation
mortgagee of the whole or part of the premises
For buildings containing flats, notice should be served on 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 the notice to some conspicuous part of the building.[25]
Failure to comply with the notice
It is an offence to fail to comply with a prohibition order without reasonable excuse.[26]
A landlord who commits an offence by failing to comply with a prohibition order could also be subject to a rent repayment order or banning order.[27] Find out more about rent repayment orders and banning orders on Shelter Legal.
A prohibition order is a local land charge.[28]
The local authority can suspend the action specified in a prohibition order until a particular time or event specified in the order.[29]
Possession action to comply with prohibition order
A landlord could seek possession of the property to comply with a prohibition order. The landlord has to serve a valid notice for the tenancy type and then obtain a court order.
Displaced tenants who have been in occupation for at least one year are entitled to compensation.[30] Find out more about compensation for people displaced from their home.
Displaced tenants and licensees may be entitled to be rehoused by the local authority.[31]
Where there is a lease, the First-tier Tribunal (Property Chamber) may determine or vary it on application of lessor or lessee.[32]
Revocation of a prohibition order
The local authority must revoke the order if, at any time, it is satisfied that the hazards which led to the order no longer exist.[33]
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.[34]
Emergency prohibition order
An emergency prohibition order immediately prohibits the use of all or part of the premises.[35]
A local authority can issue an emergency prohibition order where it is satisfied there is:
a category 1 hazard
an imminent risk of serious harm to health or safety to any of the occupiers, and
no management order in force
Content of the notice
The order must specify:[36]
the nature of the hazard and the deficiencies giving rise to it
the premises affected by the prohibition
any remedial action which could led to the revocation of the order
Service of the notice
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 as possible after.[37]
Failure to comply with the notice
It is an offence to fail to comply with an emergency prohibition order without reasonable excuse.[38]
A landlord who commits an offence by failing to comply with an emergency prohibition order could also be subject to a rent repayment order or banning order.[39] Find out more about rent repayment orders and banning orders on Shelter Legal.
Hazard awareness notice
A hazard awareness notice is a notice to advise the person on whom it served that category 1 or category 2 hazards exist.
The notice must be accompanied by a statement of reasons for deciding to serve the notice.
Content of the notice
An hazard awareness notice must include information on:[40]
the authority's reasons for serving the notice
the nature of the hazards
any deficiencies contributing to them
details of any appropriate remedial action expected
Service of the notice
The notice should be served on the person having control of the premises where the hazard is located.[41]
Copies of the notice must also be served:[42]
within seven days of service on the person required to remedy the hazard
on the occupier of the premises
on anyone who to the knowledge of the local authority has a relevant interest in the premises
Enforcement of the notice
No offence is committed if a hazard awareness notice is not complied with.
A hazard awareness notice is not a local land charge and is not enforceable.
Emergency remedial action
A local authority can take emergency remedial action where there is:[43]
a category 1 hazard
an imminent risk of serious harm to health or safety to any of the occupiers, and
no management order in force
A management order usually relates to an HMO.
Emergency remedial action should be to remove the imminent risk of serious harm. Imminent means there is a good chance that harm will be suffered in the near future.[44]
Content of the notice
The notice must include information on:[45]
the nature of the hazards
any deficiencies contributing to them
the nature of remedial action to be taken by the authority
the date by which the remedial action starts
Service of the notice
The local authority has to serve a notice of taking the emergency remedial action within seven days of starting to take the action.
Notice of emergency remedial action should be served on the person having control of the premises where the hazard is located.[46]
Within seven days of service on the person required to remedy the hazard, copies of the notice must also be served:[47]
on the occupier of the premises
on anyone who to the knowledge of the local authority has a relevant interest in the premises
Demolition order
A demolition order is only available in relation to category 1 hazards.
When deciding whether to make an order, the local authority must take into account the:[48]
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 owner fails to carry out the demolition the local authority can enter the premises and demolish them, recovering any costs from the owner.[49]
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.[50]
Possession action to comply with the order
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.[51]
Displaced tenants who have been in occupation for at least one year are entitled to compensation.[52] Find out more about compensation for people displaced from their home.
Displaced tenants and licenses may be entitled to be rehoused by the local authority.[53]
Clearance area and compulsory purchase orders
A local authority can declare an area to be a clearance area where either:[54]
each residential building contains 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
A local authority must apply for compulsory purchase orders on the properties to give effect to a clearance area. Local authorities can only obtain a compulsory purchase order when another statute gives them the power to do so. Find out more about compulsory purchase orders on Shelter Legal.
A proposed compulsory purchase order must be:[55]
in prescribed form[56]
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 makes a decision. Their 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.
Appeals against HHRS enforcement decisions
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.
Time limits for appeals
The time limit, starting from when the notice or order is served, is:
21 days in the case of an improvement notice[57]
28 days in the case of a prohibition order[58]
28 days in the case of emergency measures[59]
The Tribunal has the power to extend the time limit where it is satisfied that there is good reason for failure to appeal within the time limit.[60]
There is no right to appeal against a hazard awareness notice.
Tribunal powers
The Tribunal can confirm, quash or vary an improvement notice.[61]
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.
The Upper Tribunal held that the First-tier Tribunal can only vary an improvement notice if it is satisfied a hazard exists. It cannot vary the notice to require the property owner to investigate whether there is a hazard.[62]
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.[63]
Tenant's defence to a retaliatory eviction
Tenants with limited security of tenure can be evicted fairly easily. Some landlords may choose to evict a tenant following a complaint from that tenant about the condition of the property rather than carrying out the necessary work.
There are restrictions on the service of a valid section 21 notice to end an assured shorthold tenancy (AST) when a landlord served the notice following a written complaint from the tenant about the condition of the property and the local authority has served a 'relevant notice'. A relevant notice is an improvement notice in relation to a category 1 or 2 hazard, or an emergency remedial action notice.[64]
The High Court held that a local authority was entitled to amend their private sector housing enforcement policy and take a tougher line against retaliatory eviction by taking formal action under the Housing Act 2004 the default position where either a category 1 or 2 hazard existed.[65]
Read more about what makes a section 21 notice invalid.
Last updated: 12 August 2024