The private sector housing team has a statutory duty to enforce a wide range of legislation. The primary aim of this legislation is to protect the health, safety and welfare of tenants, homeowners and the general public, as well as improving the quality of the private rented sector's housing stock.
To achieve compliance with statutory requirements the team, where possible, work informally with owners, landlords and managing agents. Where an informal approach is not effective or in high risk situations, the team will consider the use of all relevant legislation to remove or reduce risks posed to the health and safety of occupants or other members of the public.
Where an officer deems a formal inspection is required, they are legally required to provide the owner and occupier with a minimum of 24 hours' notice that they intend to enter the premises (Powers of Entry). Once a formal inspection has been completed, the inspecting officer will carry out a full assessment of the property under the Housing Health and Safety Rating System (HHSRS), and will determine the most appropriate course of action.
There are 29 hazards incorporated within HHSRS. Scores are grouped into 10 bands from A to J with Band A representing the most severe hazards down to Band J representing those with minor health impacts. Hazard bands A to C are deemed "category one hazards". The remaining bands are deemed "category two hazards". The council has a duty to take enforcement action where category one hazards are present, and has the power to take enforcement action if category two hazards are present.
The local authority will be guided by three main points when making an enforcement decision:
- the HHSRS hazard rating
- whether the local authority has a duty or power under the act to take action
- the most appropriate way of dealing with a hazard having regard to the HHSRS enforcement guidance
The council will seek to deter landlords from retaliatory eviction (evicting a tenant when they have made a complaint) and does not consider that the removal of a tenant achieves compliance with any notice served. Tenants are protected from retaliatory eviction under the Deregulation Act 2015.
The private sector housing team work in conjunction with the Health and Safety Executive (HSE) who enforce gas safety legislation, Trading Standards who enforce the requirement to have an Energy Performance Certificate (EPC), as well as the fire service, police and other sections of the council.
The service of an enforcement notice incurs a charge per hour, with a maximum per notice served. These are reviewed on an annual basis. Please contact us at [email protected] or on 01423 500600 x56899 to find out about our current charges.
Certain notices served on a property will be registered as a Land Charge against the property until such time as they are complied with. Copies of any notices served will be sent to anyone with an interest in the relevant property, including tenants, mortgage providers and freeholders.
Enforcement under the Housing Act 2004:
Where a landlord has not carried out repairs on an informal basis or where the hazards and/or circumstances require more appropriate action, enforcement action will be taken. The following list is not exhaustive and should act as a guide.
Improvement notice - This notice sets out strict timescales for the works specified to be completed. Failure to comply with the notice is an offence for which the council can pursue a prosecution or a civil penalty (see below). Failure to comply with an Improvement Notice can also result in the council carrying out the works in default and charging the owner or landlord for all costs associated with this.
Hazard awareness notice - This notice is advisory, meaning it is not enforceable by the council so there are no set timescales for the works to begin or be completed, and with no follow up inspection. Its purpose is to advise the relevant parties of hazards present. It is often used for owner occupied properties or where the hazards are less serious. The service of a hazard awareness notice does not prevent further enforcement action being taken in the future.
Prohibition order - This can be used where there are serious threats to the health and safety of occupants of a property, or visitors to it. It can be used to prohibit all or part of a property depending on the hazards identified. It can also be used to limit the number of occupants. Failure to comply is an offence, for which the council could pursue a prosecution or a civil penalty (see below).
Emergency action - This is used where it is considered that there is an imminent risk to health and/or safety. It can be used for category 1 hazards only. It allows the council to either carry out immediate remedial action works to a property or serve an Emergency Prohibition Order which comes into force immediately.
Demolition orders and clearance - These options are used very rarely where category 1 hazards are present with an imminent risk to health and/or safety. Demolition orders can be used where a property is considered beyond repair at a reasonable cost, and clearance is used where a number of properties in an area pose immediate and/or significant risk.
Other legislation that can be used by the private sector housing team includes:
Protection from Eviction Act 1977 - This legislation provides an offence for illegally evicting or harassing a tenant. If it is believed an offence has been committed, the council can decided to prosecute, and if found guilty, can lead to a maximum penalty of a term of imprisonment of up to two years or an unlimited fine or both.
The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 - Failure to comply with this legislation, having smoke alarms and carbon monoxide detectors where required may result in a fixed penalty charge of up to £5,000.
Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (as amended) - Is designed to improve the least energy efficient properties. All new tenancies from 1st April 2018 and all existing tenancies from 1st April 2020 must have an EPC rating of E or above, unless exempt. Failure to comply may result in a fixed penalty charge of up to £5,000.
The Redress Schemes for Letting Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014 - Failure for someone to become a member of a Government approved redress scheme (who is required to become of a member) may result in a fixed penalty charge of up to £5,000.
Environmental Protection Act 1990, Section 80 - A notice can be served under this section if an officer is of the opinion that there is a statutory nuisance at the premises or the premises are prejudicial to health.
Building Act 1984, Section 59/60 - Used to deal with defective drainage issues in existing buildings
Building Act 1984, Section 64/65 - Used where sanitary conveniences are insufficient or in need of replacement and are considered prejudicial to health or a nuisance.
Building Act 1984, Section 76 - Used where the property is so defective as to be prejudicial to health. This notifies the person responsible of the council's intention to remedy the problem (works in default).
Public Health Act 1936, Section 45 - Used where there are defective sanitary conveniences due to their repair and/or cleansing ability. They must be in such a state as to be prejudicial to health or a nuisance.
Public Health Act 1961, Section 17 - Used where any drain, private sewer, water closet, waste pipe or soil pipe has not been maintained and can be repaired for less than £250.
Local Government (Miscellaneous Provisions) Act 1976, Section 16 - Provides the power for the council to request certain information about a property.
Local Government (Miscellaneous Provisions) Act 1976, Section 33 - Used where services such as the water supply are due to be, or have been, cut off to a domestic property.
Local Government (Miscellaneous Provisions) Act 1982, Section 29 - Used to prevent unauthorised access to a building by getting the owner to board up any broken windows, doors etc, or by the council carrying out the works in default.
Prevention of Damage by Pests Act 1949, Section 4 - Used where there is evidence of or harbourage of rats or mice at a property.
How and where to make an appeal can be found on the information enclosed with the notice.
Prosecution and Civil Penalties
Failure to comply with enforcement notices can result in the council deciding to take further action. This is traditionally in the form of a prosecution, however, the Housing and Planning Act 2016 introduced new powers to issue Civil Penalty Notices for Housing Act 2004 offences.
As an alternative to prosecution the council can serve a civil penalty of up to £30,000 for the following offences under the Housing Act 2004;
- section 21 - breach of a banning order
- section 30 - failure to comply with an improvement notice
- section 72 - mandatory licensing of HMO
- section 95 - licensing under Part 3 of the Housing Act 2004
- section 139 - failure to comply with an overcrowding notice
- section 234 - breach of management regulations in respect of HMO
Houses in Multiple Occupation (HMOs)
There are a number of definitions of HMOs, of which some properties require a HMO licence. Harrogate Borough Council only has a mandatory licensing scheme. For guidance on whether your property requires a HMO licence please visit our website or contact us to speak to an officer.
Failure to apply for an HMO licence for a property that requires one, or failure to submit a valid application, or failure to submit a valid relicense application on expiry is a criminal offence. This could result in a prosecution with an unlimited fine, a civil penalty of up to £30,000 and/or a rent repayment order. This offence could also affect the fit and proper person status of the manager or licence holder.
A breach of the HMO licensing conditions which are enclosed on the HMO licence is also a criminal offence which could result in a prosecution with an unlimited fine, a civil penalty of up to £30,000 and/or a rent repayment order. This offence could also affect the fit and proper person status of the manager or licence holder.
All HMOs, including those that do not require a licence must comply with the Management Regulations;
The Management of Houses in Multiple Occupation (England) Regulations 2006 (SI 372)
The Licensing and management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007 (SI 1903)
A breach of the Management Regulations is an offence under Section 234 of the Housing Act 2004. The penalty for non-compliance is either prosecution or a Civil Penalty of up to £30,000.
For further information and clarification on this enforcement guidance document please contact the private sector housing team on [email protected] or 01423 500600 x56899, or contact the officer who has sent it to you.
The GOV.UK website also has further information and features HHSRS guidance for landlords.