Local authority HHSRS powers and duties

Local authorities' powers and duties to deal with hazards depend on the category of the hazard and the type of housing.

This content applies to England & Wales

Deciding whether 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

  • the local authority's judgment as to the most appropriate course of action for dealing with the hazard

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

When any course of action is taken, a statement of reasons for taking that course must accompany the notice or order.[2]

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.[3]

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.[4]

Choosing the appropriate method to deal with a hazard

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.[5]

Category 2 hazards

For a Category 2 hazard the local authority may take any course of action.[6]

Guidance

In deciding the most appropriate course of action the local authority must have regard to the Enforcement Guidance.[7] The local authority should take into account a range of factors, including:[8]

  • 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.[9]

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.[10]

Enforcing housing standards 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]

Inspecting local authority housing

It is not possible for a local authority to enforce the provisions of Part 1 of the Housing Act 2004 against itself and so the HHSRS enforcement provisions are not available to occupiers of local authority housing.[15]

Local authorities must carry out inspections on its own properties, where required to do so as a result of a complaint or its review of housing conditions (see Duty to inspect).

Local authority housing is expected to comply with the Decent Home Standard, which requires that homes are free of Category 1 hazards.[16]

Other 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.

PRPSHs including those that have ex-council housing, are subject to inspection and enforcement. A local authority receiving a complaint about a dwelling owned by a PRPSH may first consider that landlord's plans for complying with the Decent Homes standard, before deciding what action to take.

Last updated: 16 March 2021

Footnotes

  • [1]

    s.5(2) Housing Act 2004.

  • [2]

    s.8 Housing Act 2004.

  • [3]

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

  • [4]

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

  • [5]

    ss.5(3)-(5) Housing Act 2004.

  • [6]

    s.7 Housing Act 2004.

  • [7]

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

  • [8]

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

  • [9]

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

  • [10]

    s.10 Housing Act 2004.

  • [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]

    R v Cardiff City Council Ex p. Cross [1982] 81 LGR 105, QBD; (1982) 6 HLR 6,CA.

  • [16]

    para 1.4 Housing Health and Safety Rating System Enforcement Guidance: Housing Conditions, February 2006.