Housing Enforcement Action Under Part 1 of the Housing Act 2004 – A Closer Look

In this report we will look specifically at what enforcement action local housing authorities are able to take against building owners and landlords under the Housing Act 2004.

What does Part 1 of the Housing Act 2004 do?

The Housing Act 2004 introduced a number of changes to housing legislation in England and Wales. However, Part 1 of this Act is concerned particularly with housing conditions in residential properties.

The Act confirms the responsibility of local housing authorities to keep housing conditions in their area under review and their duty to inspect properties where necessary. It also specifies the powers they have to take enforcement action. A key measure introduced by Part 1 was the introduction of a risk assessment tool, the Housing Health and Safety Rating System or HHSRS, which is used to assess hazards within a property and classify their seriousness.

How housing enforcement works

Local housing authorities are able to inspect a property under the Housing Act 2004. This may be a reactive inspection, perhaps as a result of a complaint from a tenant or other interested party, or as part of a proactive inspection regime.

An inspection will involve using the HHSRS to assess a building including its structure, associated outbuildings, any outside space and its means of access. The aim is to ensure they all provide a safe and healthy environment for the occupants and any visitors.

The inspection will look for faults (known as deficiencies) which create hazards within 29 different areas and also consider the usage and occupation of the property. A scoring system is used to compile the results and hazards are rated as category 1 (in simple terms, more serious) or category 2 (less serious) hazards.

The local authority will then review the results and decide what action they must, or may, take. In the case of category 1 hazards the local authority has a statutory duty to act. For category 2 hazards they have a discretionary power.

How Local Authorities enforce

Depending on the seriousness of the hazard local authorities may make an informal approach to a property owner or landlord in the first instance. This may give them an opportunity to resolve the matter without formal enforcement action. If the matter is not resolved a formal notice or order may be served.

Notices and orders are served on the person who is legally liable to rectify the hazards.

Failure to comply with a notice or order could result in prosecution. In some cases a civil penalty may be offered instead. Some notices served on a property will be registered as a land charge against the property until such time as they are complied with. Other possible penalties include banning orders and rent repayment orders.

The Act allows local authorities to recover their administrative expenses when issuing notices and orders.

An appeal may be made against most notices and orders to the First-tier Tribunal (Property Chamber) in England or the Residential Property Tribunal Wales.

What types of enforcement action are available?

 The Act groups enforcement action into three types of measure – Improvement notices, prohibition orders and hazard awareness notices (Chapter 2), emergency remedial action and emergency prohibition orders (Chapter 3) and demolition orders and slum clearance declarations (Chapter 4). In each the procedure followed may vary depending on whether the hazard is category 1 or category 2.

Improvement notices

An improvement notice requires the person on whom it is served to take action. It requires them to carry out the necessary work, or take some other action, that will remove or reduce the hazard or hazards.

Improvement notices can be used for category 1 and 2 hazards. An improvement notice should state the nature of the hazard and the deficiency which gives rise to it. It should state the remedial action which should be taken which will, in the opinion of the local authority, remove or reduce the hazard. The required action must, as a minimum, ensure that the hazard ceases to be a category 1 hazard but it may also extend beyond that.

Improvement notices become effective 28 days after issue. An improvement notice should state the period within which the remedial action is to be completed or the periods within which each part of it is to be completed.

If an improvement notice is not complied with a local authority can carry out the work itself and claim the cost of doing so.

Prohibition orders

A prohibition order requires the person on whom it is served to stop doing something, or to stop allowing the property to be used for something.

A prohibition order can have several different impacts in practice.  It can prohibit specific uses of the building. It can restrict the number and type of residents who live there. It can apply to all of the building or just part of it.

Prohibition orders can be used for category 1 and 2 hazards. In making a prohibition order the local authority must state the nature of the hazard and the deficiency which leads to the hazard. They should also state any remedial action which they consider will, if taken, enable the prohibition to be ended.

A prohibition order becomes effective 28 days after it is issued. It remains in effect until remedial action has been taken.

As with an improvement notice local authorities may suspend a prohibition order for a period, or even revoke it completely, in some circumstances.

Hazard awareness notices

A hazard awareness notice is, as the name suggests, a formal notification to the person on whom it has been served that a hazard exists on the property concerned. These notices are more likely (but not necessarily only) to be used for category 2 hazards than category 1 hazards.

An important thing to note is that this notice does not require any action to be taken, nor does it prohibit anything – although in practice the owner or landlord will almost certainly need to take action to rectify the hazard.

A hazard awareness notice should, as with other types of enforcement action, specify the nature of the hazard and the deficiency which gives rise to it. The notice should give details of the remedial action (if any) which the authority consider that it would be practicable and appropriate to take to remedy the hazard.

Emergency remedial action

Emergency remedial action may only be taken in relation to category 1 hazards. In order to take this action the authority must consider that the hazard involves an imminent risk of serious harm to the health or safety of any of the occupiers of the building concerned or any other residential premises.

The emergency remedial action which the local authority can take is defined in the Act as any such action the authority consider immediately necessary in order to remove the imminent risk of serious harm.

The authority have an immediate power of entry in order to take emergency remedial action and are able to recover the cost of carrying out any work.

Emergency prohibition orders

Emergency prohibition orders can only be used in relation to category 1 hazards. Emergency prohibition orders are similar to probation orders except that they come into force immediately on issue. They can be used to impose specific restrictions on the use of a building or part of it.

Demolition orders

Demolition orders are a rare enforcement power. They are mainly to be used where category 1 hazards are found but the Act allows them to be used in the case of category 2 hazards in some circumstances. The require the owner to demolish the property within a specified period.

A local authority can apply for an order to possess the property and demolish it if the owner does not do so. Owners may be entitled to payment of compensation when this occurs.

Slum clearance declaration

Slum clearance declarations are also a rare enforcement power. A local housing authority may declare an area to be a clearance area if they are satisfied that the residential buildings in the area (and any other buildings) are dangerous or harmful to the health or safety of the inhabitants of the area. This legislation states that this may arise due to the bad arrangement of the buildings or the narrowness or bad arrangement of the streets.

Whether an area fits the criteria for such a declaration to be made depends on the prevalence of category 1 and 2 hazards in the relevant properties.

Summary

It is fair to say that some enforcement measures are much more serious, and potentially problematic and expensive for landlords and owners to deal with, than others. However if you are faced with any kind of enforcement action under Part 1 of the Housing Act 2004 it is advisable to take professional advice as soon as possible.

How Surrey Property Licensing can help

HMO licensing and enforcement is a complex area but we have a professional and dedicated team that offers services that as property landlords you can tap into. We are here to help, assist, and advise you. We offer a free 20-minute initial consultation to assess your situation and decide how we can best meet your needs. To discuss your specific requirements or enquire, please call 01483 608975 or use our contact form and a member of the team will come back to you.