The Local Authority Housing Enforcement Lottery – A Study
A recent working paper by the NRLA The Enforcement Lottery: Local authority enforcement 2021-2023 has provided some interesting information on how (and even if) local authorities enforce housing law. In this post we will look at what it reveals and at some of the issues it raises.
Introduction
As most will know, enforcement of housing standards (which the report tells us is governed by ‘heavy regulation’ and approximately 170 different laws) is to a great extent the responsibility of local authorities. A key principle of the system is the Housing Health & Safety Rating System (or HHSRS) which local authorities may use to identify housing defects. Subsequently they have a range of enforcement tools at their disposal of which improvement notices are one. Ultimately they can issue civil penalties to offenders.
The study says that housing standards have advanced in recent years. It says 79% of PRS homes met the Decent Homes Standard in 2020 compared to 63% in 2010, while 86% are free of the most serious (category 1) hazards compared to 69% in 2008. However, it says that previous research from 2018-2021 suggested enforcement activity varied considerably from place to place and local authorities were not fully utilising the HHSRS to improve standards.
The latest working paper moves on and looks at the period 2021-2023. It uses data from FOI requests to 295 local authorities in England. (Approximately nine in ten provided some or all of the information requested.) It focusses on issues such as the levels of housing complaints, the use of HHSRS inspections, improvement notices and civil penalties. It aims to establish whether anything has changed.
Tenant complaints to local authorities
The study found that on average each local authority receives 322 complaints from PRS tenants and 215 complaints from social tenants each year. A 60-40% split according to these types of tenure is typical. The NRLA expressed some concern that around a third of local authorities do not differentiate between tenures when recording complaints.
The study suggests that the majority of complaints are concentrated in relatively few areas. It provides a table giving the top ten local authorities by numbers of complaints. London’s Royal Borough of Greenwich received the highest number by far at 9,945 in 2021-2023.
The study makes the fairly logical assumption that more complaints should mean more use of the HHSRS. It assumed that areas with selective licensing would likely make more use of the HHSRS too. However, it found that high volumes of complaints do not typically lead to more HHSRS inspections. But, local authorities with the highest volume of complaints do tend to make greater use of selective licensing.
The study suggests that there does not appear to be a ‘similarly strong link’ between the volume of complaints and the likelihood of enforcement action being taken. It suggests there could be several reasons for this, but the key reason is probably that different local authorities have a different view of how enforcement should be undertaken.
The NRLA recommends that there should be much better collection of data relating to complaints as a step towards improving the system.
The use of HHSRS inspections
The study says that there were 85,326 HHSRS inspections between 2021 and 2023. But again there are difficulties with data collection. It says 16% of local authorities could not even say how many HHSRS inspections they conducted – and at least one includes licensing inspections in their inspection data.
The study found that the frequency of inspections is not linked to the number of complaints received from tenants (and in some cases, quite the reverse).
Figures show that just 20 local authorities (what they call ‘super users’) were responsible for performing 50% of all HHSRS inspections. It provides a league table giving the top ten local authorities by numbers conducted. Bristol City Council conducted the highest number of inspections at 5,713 in 2021-2023.
The NRLA suggests some local authorities may be reluctant to carry out HHSRS inspections due to the complexity of the process. Also that others may prefer an informal approach instead. The study recommends that a review of the HHSRS might help to improve the situation.
The use of improvement notices
The study looked at the use of improvement notices following identification of a category 1 HHSRS hazard. The NRLA say that they believe this tool should have a key role in the system. This is partly for reasons of local authority finances and partly because issuing one can prevent retaliatory evictions.
The study found that, in general, improvement notices are a relatively little used power. Local authorities only issued an average of 16 improvement notices each annually over the relevant period. On average only 7% of HHSRS inspections lead to an improvement notice being issued. The NRLA suggest that the reasons for this may include a lack of resources, a lack of qualified staff, and a preference for an informal approach by some local authorities.
As with the HHSRS, a small number of ‘super users’ issued most notices – over 50% were served by just 20 local authorities. Twenty three local authorities had served no improvement notices at all in the relevant period. A league table giving the top ten local authorities to use this measure was led by Doncaster Council who issued over a thousand improvement notices – almost a third of the national total of 3,200.
The NRLA adds that, although it may seem counter-intuitive, there does not appear to be a link between the presence of a selective licensing scheme and wider use of improvement notices.
The use of civil penalties
The study reveals that the total number of civil penalties served by local authorities each year has continued to steadily increase. The number of penalties issued in 2022-2023 reached almost 3,000, an increase of 72% compared to 2018-2019.
The NRLA points out that there is an important difference here in how civil penalties may be used and that this impacts the figures: With selective licensing they cannot be used in relation to property conditions, but can be for administrative offences. Yet with HMOs they can be used in relation to property conditions as well. However they say that the majority of offences where civil penalties are allowed to be used are in some way related to hazardous property conditions.
Interestingly the study found that penalties were actually mostly used for selective or HMO licensing offences (60% of penalties) and much less often in relation to the HHSRS (only 9% of penalties). Local policies on the use of penalties also seemed to vary greatly, with different authorities targeting different types of offence.
As with other enforcement tools the study found that the use of penalties tends to be concentrated in a small number of areas. In this case, over 60% of all penalties in 2021-2023 were issued by 20 local authorities. Nearly half had issued none at all. It found that 20 local authorities were responsible for issuing 67% of all civil penalties relating to HMO offences, while 64% of local authorities had not issued a single civil penalty for HMO offences. It suggested that this situation cannot be explained by the differences in numbers of HMOs in different areas either.
The top ten authorities to use penalties issued 1,317 during the study period. Leeds City Council was the overall ‘super user’, issuing 302. Coventry City Council issued most HMO-related penalties at 193 out of the 207 they issued overall.
The study pointed that some authorities’ reluctance, or perhaps failure, to impose civil penalties might seem odd given that they allow them to generate revenue for enforcement.
Very importantly, the study identified a significant issue with collecting civil penalties. Between 2021-2023 local authorities levied £12.9m in civil penalties but collected only £6.1m – less than half the amount levied. Several reasons were suggested for this. These included that appeals to tribunals sometimes saw the penalty reduced, payment plans meant they were being paid over an extended period or penalties were simply not paid.
Key conclusions and recommendations
Looking at the study as a whole, a key finding seems to be that there is a significant lack of accurate, consistent data in relation to many areas of housing enforcement. Local authorities compile their housing data in different ways. Some do not seem to collect certain pieces of data.
There is also great inconsistency regarding enforcement across the country, with local authorities seeming to exhibit an ‘all or (almost) nothing’ approach to enforcement. To complicate this, however, authorities who top the league table for one type of enforcement action may not rank at all for other actions.
Overall the study concludes that, while things have improved since pre-2021, many local authorities are perhaps still not using the tools at their disposal as much as they could.
The study also seems to suggest that this patchy approach to both using tools and collecting data makes it difficult to make progress in improving the status quo.
In its study the NRLA makes a few recommendations which it feels would improve things:
There should be better reporting of complaints data.
There should be better, mandatory reporting by local authorities of their enforcement activity – and particularly their HHSRS inspection work. (This is proposed as part of rental reform legislation.)
The HHSRS should be reviewed to make it easier to address hazards, and for landlords to tackle them.
Local authorities should share best practice.
Funding should be provided to recruit/train housing enforcement officers.
There should be a new national Chief Environmental Health Officer to co-ordinate enforcement activity and spearhead a recruitment drive.
Some final thoughts
We should remember that this study has been prepared by the NRLA – a landlord-centric organisation. However, the findings should be of some interest to all parties in the sector.
The study does seem to suggest that local authority housing enforcement in England is indeed a lottery based on location. Some areas are subject to a lot of housing enforcement and others very little at all. Even within highly enforced areas the approach to enforcement can be inconsistent too. (Though it is notable that London boroughs feature highly in the top ten for most kinds of action.)
The possible reasons for this inconsistency are many and they are complex. They are not necessarily because local authorities are bad at what they do.
The current situation of patchwork enforcement creates much uncertainty in the sector. Not only for landlords, investors and agents but for tenants and others too. There is even a possibility that good landlords are being deterred from operating in areas with more rigorous enforcement – creating a shortage of rental property, pushing up rents and making them more attractive to rogue landlords (and vice versa).
While still allowing local authorities to do what works best in their own areas the system would almost certainly benefit from some clearer national guidance and co-ordination. Then landlords, agents, tenants and others would have a clearer idea of where they stand. And that would benefit everybody in the sector.
However, before that can happen, the lack of comprehensive and consistent data on housing enforcement needs to be tackled so that the situation can be better understood.
Will the forthcoming Renters (Reform) Act, should it happen, or other reforms improve things? As things stand it doesn’t seem that likely. It could even cause more complexity. The NRLA report expresses concern about how plans to introduce nationwide registration (of landlords/properties) and an ombudsman would operate alongside selective licensing. It suggests that local authorities who are challenged with enforcing existing housing laws may struggle with enforcing any new ones.
One last point that may be worthy of consideration: The research covers 2021-2023 – the early part of which was still dominated by the Covid pandemic. This is not mentioned in the study, but some may wonder if it played any part in the outcome.
