Local authority HHSRS enforcement action
Options for enforcement action to deal with a hazard identified under the Housing Health and Safety Rating System (HHSRS).
Enforcement in different types of housing
Local authorities can enforce the provisions of Part 1 of the Housing Act 2004 in privately owned and rented homes, and in housing owned by housing associations and PRPSH. Certain public sector landlords, such as the National Health Service (NHS), Ministry of Defence and fire authorities can be subject to inspection and enforcement. Some landlords have a Crown exemption.
Enforcement depends on the seriousness of the hazard and includes issuing an improvement notice, a prohibition order, a hazard awareness notice or taking emergency action. Local authorities can also decide to demolish a property or issue a compulsory purchase order to acquire properties in the area.
The HHSRS enforcement provisions are not available to occupiers of local authority housing, because it is not possible for a local authority to enforce the provisions of Part 1 of the Housing Act 2004 against itself.[1] Local authority housing is expected to comply with the Decent Home Standard, which requires that homes are free of category 1 hazards.[2]
Local authorities 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.
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: in summary it is to be served on the person having control of the premises where the hazard is located, requiring them 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.[3] 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.[4]
An improvement notice must include information on:[5]
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.[6]
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.[7]
Landlords committing such an offence may also be subject to a:
(on or after 6 April 2017) rent repayment order
(on or after 6 April 2018) banning order
An improvement notice is a local land charge.[8]
The local authority can suspend the action specified in an improvement notice until such time, event, or occurrence that is specified in the notice.[9]
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.[10] An improvement notice cannot be 'withdrawn'.[11]
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.[12] The order can also specify the maximum number of people that can occupy the premises.[13]
The order becomes operative 28 days after it is made.[14]
There are complicated provisions as to whom should be served with the notice, but in summary it is to be served on:[15]
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.[16]
It is an offence to fail to comply with a prohibition order without reasonable excuse.[17]
Landlords committing such an offence may also be subject to a:
(on or after 6 April 2017) rent repayment order
(on or after 6 April 2018) banning order
A prohibition order is a local land charge.[18]
The local authority can suspend the action specified in a prohibition order until such time, event, or occurrence that is specified in the order.[19]
There is nothing in the Rent Act 1977 or Part 1 of the Housing Act 1988 that prevents possession being obtained by the owner if that is necessary to comply with the order. The landlord simply has 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.[20]
Displaced tenants and licensees may be entitled to be rehoused by the local authority.[21]
Where there is a lease, the First-tier Tribunal (Property Chamber) may determine or vary it on application of lessor or lessee.[22]
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.[23] 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.[24]
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.[25]
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[26] or make emergency prohibition orders where there is:[27]
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'.[28]
An emergency prohibition order has immediate effect in prohibiting the use of all or part of premises.[29]
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.[30]
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.[31] 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:[32]
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.[33]
Displaced tenants who have been in occupation for at least one year are entitled to compensation.[34]
Displaced tenants and licenses may be entitled to be rehoused by the local authority.[35]
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.[36]
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.[37]
Clearance area and compulsory purchase orders
Declaring an area to be a clearance area can be an option for the local authority where:[38]
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
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:[39]
in prescribed form[40]
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.
The time limit, starting from when the notice or order is served, is:
21 days in the case of an improvement notice[41]
28 days in the case of a prohibition order[42]
28 days in the case of emergency measures[43]
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.[44]
The Tribunal may confirm, quash or vary an improvement notice.[45] 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.[46]
There is no appeal against a hazard awareness notice.
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.[47]
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.[48]
Read more about what makes a section 21 notice invalid.
Last updated: 16 March 2021