How can a local authority regulate the behaviour of its tenants and the quality of its housing stock?

     

    Feature I | Feature II | Cases | FYI


    Feature I

    What duties does an environmental health officer have in relation to the housing health and safety rating system? What powers of enforcement do they have?

    Produced in partnership with Alexander Campbell of Arden Chambers

    Duties of an environmental health officer
    The housing health and safety rating system (HHSRS) was introduced by the Housing Act 2004 (HA 2004). It provides a framework enabling local authorities to take action in respect of problems with housing accommodation. Housing Act 2004

    HA 2004, s 2 imposes a duty on local authorities to keep housing conditions in their area under review with a view to identifying any action which may be needed under HA 2004. In compliance with that duty, the local authority must comply with any directions given by the Secretary of State (or, in Wales, the National Assembly for Wales) and must keep such records as required by the Secretary of State (or National Assembly for Wales): HA 2004, s 3(3).HA 2004, s 4Housing Health and Safety Rating System (England) Regulations 2005, SI 2005/3208

    Where a local authority becomes aware of a potential hazard in particular premises, HA 2004, s 4 requires the authority to carry out an inspection to determine whether a hazard in fact exists. Any inspection must be carried out in accordance with the Housing Health and Safety Rating System (England) Regulations 2005, SI 2005/3208. In practice, inspections will usually be carried out by an environmental health officer (EHO).

    Operating guidance has been produced by central government which contains, in its Annex B, guidance on how inspections should be carried out. Among these requirements are:

    • that sufficient clear information regarding the inspection is recorded in a logical and readily understandable form (para B2)
    • that all deficiencies are recorded, whether or not they amount to a category 1 or 2 hazard as defined in HA 2004, s 2

    Annex B of the operating guidance contains a hazard scoring form for EHOs to use (pages 45–46) and there also exist computer programmes for EHOs to record hazards in accordance with the HHSRS.

    Paragraph B4 of Annex B recommends that local authorities adopt their own conventions to promote consistency in the carrying out of inspections and keeping of records.

    At an inspection, the EHO must assess whether a hazard of a prescribed description exists. Prescribed descriptions are contained in the Housing Health and Safety Rating System (England) Regulations 2005, SI 2005/3208. Where a hazard exists and the EHO considers that it is appropriate to calculate the seriousness of that hazard, the EHO must assess the likelihood of a relevant person suffering harm as a result within the following 12 months. The Housing Health and Safety Rating System (England) Regulations 2005, SI 2005/3208 contain formulae for working out a numerical score for a particular hazard. That numerical score then determines whether the hazard is a category 1 hazard or a category 2 hazard.

    Enforcement powers
    HA 2004, s 5(1)HA 2004, s 6(1)
    Where a category 1 or 2 hazard exists, the local authority has a number of enforcement powers which are mostly set out in HA 2004. In the case of a category 1 hazard, the authority must take action: HA 2004, s 5(1). In the case of a category 2 hazard, the authority merely has the power to act: HA 2004, s 6(1).

    The main enforcement powers which a local authority has (mostly contained in HA 2004) are as follows:

    • serving a hazard awareness notice (HA 2004, ss 2829), which makes the recipient (such as the owner) aware of the problem
    • serving an improvement notice (HA 2004, ss 1112), which requires the recipient to take specified remedial action such as works to the premises within a specified time
    • taking emergency remedial action (HA 2004, s 40), which is only available in the case of a category 1 hazard, and which allows the authority to take such action as it could require the recipient of an improvement notice to take. There must be an imminent risk of serious harm to occupiers of the premises or other residential premises for this enforcement option to be available
    • serving a prohibition order (HA 2004, ss 2021), which imposes prohibitions on how the premises can be used. A prohibition order generally takes effect 28 days from the date when it is made (HA 2004, s 24(2)). However, where there is an imminent risk of serious harm to the health and safety of occupiers of the premises or other residential premises, the authority can serve an emergency prohibition order which takes effect immediately (HA 2004, s 43)
    • serving a demolition order (section 265 of the Housing Act 1985 (HA 1985)), specifying times for the premises to be vacated and then demolished
    • serving a purchase notice (HA 1985, s 300), which permits the authority to compulsorily purchase the premises

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    Feature II

    What powers and duties does a housing authority to resolve disputes cross alleging antisocial behaviour between the right to buy owners and a secure tenant that the housing authority consider, do not amount to anti-social behaviour but cause endless complaints?

    Produced in partnership with Alexander Campbell of Arden Chambers

    A local housing authority will generally have more duties towards a tenant of theirs than they will towards a right to buy (RTB) owner. On the basis that the local authority will often be the freeholder of the property which the RTB owner has bought the leasehold interest in, the local authority may still have a legal relationship with the RTB owner (ie the relationship of freeholder and leaseholder), however, as a freeholder the local authority’s involvement in day-to-day management of the property and the leaseholder’s conduct will generally be more limited.

    In the case of the local authority’s secure tenant, the local authority will naturally have far more day-to-day involvement with the tenant than they would with the RTB owner or leaseholder. However, the local authority does not have a duty to take legal action against the RTB owner in order to prevent antisocial behaviour which is troubling the local authority’s secure tenant. In O’Leary v Islington LBC [1983] 9 HLR 81 (not reported by LexisNexis®), the Court of Appeal held (in a case involving antisocial behaviour by one council tenant towards another council tenant) that there is no implied term in a tenant’s tenancy agreement to the effect that the landlord will enforce a nuisance or antisocial behaviour clause in another tenant’s tenancy agreement.

    If the antisocial behaviour causing concern is serious enough, the local authority has a range of legal remedies including:

    However, if the local authority considers that the behaviour is not sufficiently serious for any of those steps to be taken, it has a range of other options:

    • the local authority may want to write to either or both parties warning of the legal options open to the local authority (as landlord, freeholder and/or as local government) if the behaviour does not cease. If necessary, the local authority can propose (or even facilitate) mediation between the neighbours
    • the local authority could advise the parties of means by which they can seek to resolve their dispute without the direct involvement of the local authority (for example by referring them to independent sources of legal advice such as local solicitors’ firms, the CAB or a law centre who will be able to advise the parties on their rights and the possibility of bringing legal proceedings in nuisance or negligence against the other)
    • the local authority can propose the use of an acceptable behaviour contract for its tenant, it can draw up a more informal good neighbour agreement or a more formal acceptable behaviour contract involving both parties or it can formulate an action plan involving both parties regarding future behaviour, see Practice Note: Acceptable behaviour contracts and local authorities and local authorities and Precedent: Acceptable behaviour contract

    It should be remembered that a local authority landlord should have an antisocial behaviour policy. The local authority should ensure that in all its dealings, it conducts itself in accordance with that policy—a failure to do so could result in a complaint about the local authority to the Local Government Ombudsman or even legal proceedings against the local authority. See Practice Notes: Local Government and Social Care Ombudsman and Maladministration—complaints.

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    Cases

    R (Gaskin) v Richmond upon Thames LBC [2017] EWHC 3234 (Admin).

    The Administrative Court has considered what information a local authority can require an applicant for a house in multiple occupation (HMO) licence to provide as a condition of being granted a renewed licence. The court held that secondary legislation which specifies the information which a local authority are entitled to seek from landlords of HMOs as a condition of their HMO licence being renewed contains an exhaustive list of the information which the authority are allowed to ask for. The court rejected the argument that the secondary legislation merely specifies the minimum information to be required, which would have left authorities free to add additional matters of their own choosing. See News Analysis: In brief: Administrative Court limits information needed for HMO licence renewal applications (R (Gaskin) v Richmond upon Thames LBC).

    Woking Borough Council v Johnson [2017] EWHC 2547 (Admin) 

    The High Court granted Woking Borough Council’s appeal against the acquittal of the owner of a property which Woking considered was an unlicensed HMO. The court gave guidance on how to work out if a property is an HMO when there are business premises (in this case a restaurant) on the ground floor. See In brief: Administrative Court gives guidance on identifying a House in Multiple Occupation (HMO) for licensing purposes where it is above business premises (Woking Borough Council v Johnson).

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    FYI

    Non-Domestic Rating (Alteration of Lists and Appeals) (England) (Amendment) Regulations 2018

    The Non-Domestic Rating (Alteration of Lists and Appeals) (England) Regulations 2009 are amended to provide for the imposition of financial penalties for giving false information in, or in connection with, a proposal. Provisions is also made for appeals against the imposition or amount of a financial penalty. See LNB News 01/01/2018 90.

    Views sought on business rates in multi-occupied properties

    The Department for Communities and Local Government has launched a consultation into business rates in multi-occupied properties. The consultation seeks responses on proposals to reinstate the practice of the Valuation Office Agency prior to the decision in Woolway (VO) v Mazars. It asks respondents to consider how the government can deliver on this commitment. The consultation closes on 23 February 2018. See LNB News 02/01/2018 52.

    Mayor launches online database to ‘name and shame’ prosecuted landlords

    The Mayor of London, Sadiq Khan, has launched a public online database to protect people privately renting homes in the capital. The Rogue Landlord and Agent Checker aims to ‘name and shame’ landlords and letting agents who have been successfully prosecuted or have faced civil enforcement action for housing offences. See: LNB News 20/12/2017 127.

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