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Powers and duties of enforcement

This content applies to England & Wales

Local authorities' powers and duties of enforcement action to deal with a hazard.

Where a power or duty arises

Action to deal with a hazard is based on a three-stage process:

  • the hazard score
  • whether in the light of the score there is a duty or discretion to act, and
  • the local authority's judgment as to the most appropriate course of action(s) for dealing with the hazard.

A number of courses of action are available to a local authority.[1] For information see the page Enforcement options

Choosing the appropriate method

Category 1 hazards

For a Category 1 hazard where there is only one course of action, the local authority must take that action. Where more than one course of action is available, it must take the course it considers to be the most appropriate. Only one course of action may be taken at one time for any particular hazard, but if that method is unsuccessful then the local authority may use another method.[2]

Category 2 hazards

For a Category 2 hazard the local authority may take any course of action.[3]

Guidance

In deciding the most appropriate course of action the local authority must have regard to the Enforcement Guidance.[4] The local authority should take into account a range of factors, including, for example:[5]

  • interests of the current occupant and of potential occupants, having regard to vulnerability not only by age but by other factors eg drug dependency
  • severity of the risk
  • views of the occupants, and if vulnerable, the views of other organisations such as social services or the police
  • whether property is empty.

There is specific guidance for hazards involving radiation, space and overcrowding, and nitrogen dioxide and carbon monoxide.[6]

Where the hazard identified is that of fire in a house in multiple occupation (HMO) or the common parts of a building containing flats then the local authority must consult the fire and rescue authority for the area.[7]

Reasons and charges

When any course of action is taken, a statement of reasons for taking that course must accompany the notice or order.[8]

Local authorities can make a reasonable charge for recovering their costs of enforcement, including administrative and other expenses incurred in determining whether action is justified and deciding which action to take and actually taking it with respect to all the options other than a demolition order and clearance areas, to be paid by the person against whom enforcement action is taken. There is currently no prescribed maximum charge, though the Secretary of State has the power to impose a maximum charge.[9]

When deciding the charge to be made local authorities should take account of the personal circumstances of the person(s) against whom the enforcement action is being taken.[10]

Enforcement in HMOs

Houses in multiple occupation (HMO'S) are subject to licensing under Part 2 of the Housing Act 2004. The Act makes it clear that enforcement under Part 1 should be carried out separately from the licensing procedure. Where the application for a licence is in order, the local authority should not delay the grant of a licence pending its consideration of the duties under Part 1.[11] It is possible to attach conditions to the licence requiring works to be carried out, but the general position is that the local authority should instead use its Part 1 powers.[12]

HMOs must be managed in accordance with regulations, and a breach of the regulations may justify a prosecution of the landlord. In considering prosecution, a local authority should also consider whether to take action under Part 1.[13]

Enforcement under Part 1 is not available in respect of a HMO that is subject to management by a local authority (an interim or final management order) under Part 2 of the Housing Act 2004.[14]

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.

However, restrictions are placed 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.[15]

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.[16]

For full details see Restrictions on use of section 21.

[1] s.5(2) Housing Act 2004.

[2] ss.5(3)-(5) Housing Act 2004.

[3] s.7 Housing Act 2004.

[4] s.9 Housing Act 2004; Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[5] paras 4.9-4.21 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[6] paras 4.22-4.26 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[7] s.10 Housing Act 2004.

[8] s.8 Housing Act 2004.

[9] s.49 Housing Act 2004; see also ss.31and 42 Housing Act 2004.

[10] para 5.52 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[11] s.64(3) Housing Act 2004.

[12] s.67(4) Housing Act 2004, paras 6.3 and 6.4 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[13] s.234 Housing Act 2004, para 6.5 Housing Health and Safety Rating System Enforcement Guidance, February 2006.

[14] ss.11, 12, 20, 21, 28, 29, 40 and 43 Housing Act 2004 and s.265(5) Housing Act 1985, substituted by s.46 Housing Act 2004.

[15] s.33(1) Deregulation Act 2015; Deregulation Act 2015 (Commencement No. 1 and Transitional and Saving Provisions) Order 2015 SI 2015/994.

[16] Humber Landlords Association v Hull City Council (2019) EWHC 332 (Admin).

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