Private Sector Housing Enforcement Policy

The primary enforcement role of the Private Sector Housing (PSH) service is to maintain and improve the housing conditions in Dover District (This excludes properties owned by the Council). It endeavours to achieve this through advice, information and financial assistance. Where this approach fails or is not appropriate and it is necessary to protect the health safety and welfare of persons then the service will take the appropriate enforcement action.

The aim of this policy is to:

• Set out the criteria and priorities we will use when enforcing legislation, so it is transparent and clear to the public.

• Sets out our policy in respect of charges that may be imposed for enforcement.

• Ensure our enforcement is consistent, fair, proportionate and targeted.

• Ensure it is consistent with the aims and objectives contained in the Private Sector Housing Strategy and the Empty Property Strategy.

This enforcement policy covers the following functional areas:

• Licensing of Houses in Multiple Occupation

• Enforcing minimum Housing standards (HHSRS) to prevent injury and ill health,

• Ensuring private rented accommodation is maintained to keep tenants safe from hazards

• The redress scheme for letting agency and management work

• Bringing empty homes back into use,

• Licensing of caravan sites and mobile home

In accordance with the Council’s constitution, the Strategic Director for Corporate Resources, Head of Governance and Private Sector Housing Manager has a duty to appoint officers with suitable qualifications, experience and level of competency to enforce, or, to ensure that appropriate officers are trained to the required level to undertake an enforcement role.

Authority to exercise executive functions in relation to Private Sector Housing has been delegated to the Private Sector Housing Manager as detailed in the Councils Constitution. These powers have then been further delegated where considered appropriate and necessary.

When carrying out enforcement action it is important that the Council works within the statutory framework set out and that it follows best practice and procedure.

In particular, the Council is committed to acting in a fair and consistent manner and has adopted this enforcement policy as part of this commitment. When exercising its enforcement functions, the Council will act in such a way that is:

• Transparent
• Accountable
• Proportionate
• Consistent
• Targeted only at cases where action is needed
• Relevant advice/guidance and legislation underpinning this strategy includes
• Dover District Councils Overarching enforcement strategy
• DCLG document “Housing Health and safety Rating System; Enforcement Guidance”.
• Regulator’s Code
• Human Rights Act 1998
• Police and Criminal Evidence Act 1984
• Criminal Procedure and Investigations Act 1996
• Regulation of Investigatory Powers Act 2000
• Data Protection Act 2018
• Freedom of Information Act 2000
• The Protection of Freedoms Act 2012
• The Housing Acts 2004 and 1985
• Local Government Miscellaneous Provisions Act 1976
• The Building Act 1984
• The Environmental Protection Act 1994
• The Caravan Site and Control of Development Act 1960
• The Caravan Sites Act 1968
• Mobile Homes Act 1983 and 2013
• Protection from Eviction Act 1977
• The Smoke and Carbon Monoxide Alarm (England) Regulations 2015 became operative on 1st October 2015
• The Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc.) (England) Order 2014
• Housing and Planning Act 2016
• The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 as amended 2019
• The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020
• Various Government (MHCLG) guidance for Local Housing Authorities but in particular “Civil Penalties under the Housing and Planning Act 2016” and “Rent repayment orders under the Housing and Planning Act 2016”
• Other legislation may be used occasionally.

After considering all relevant information one or more of the following courses of action shall be taken:

a) Informal action

b) Formal action such as:

• Statutory notice

• Simple caution• Prosecution

• Works in default• Prohibition Order

• Penalty Charge Notice

• Rent Repayment Order

• Banning Order

• Register landlord on Rogue Landlord Database

• Compulsory purchase of property• Management order

Not all these options are available in every case. This underlines the need to consider powers available under each piece of legislation individually.

In making any decision on enforcement, officers will consider the following criteria: -

• The legal duties placed on the Local Authority to take enforcement action

• The potential risk of harm

• The seriousness of any offence

• The owner/landlord’s history

• Consequences of non-compliance

• The known or likely public benefit of the chosen enforcement action

• The willingness of the owner/landlord to carry out works and the confidence in them

• The likely ability of any witnesses to give evidence and their willingness to co-operate

• The Crown Prosecution Service’s Code for Crown Prosecutors

• The risk of any hazard to health (see details below)• Any relevant guidance or case law

The primary legislation used by PSH is the Housing Act 2004 as amended by the Housing and Planning Act 2016 and is mainly used to remove hazards in a property that puts occupiers at risk of injury or ill health. This legal provision applies to all property and tenures including owner-occupiers. Hazards are subject to a statutory risk assessment that determines whether the hazards are classified as a Category 1 or 2. A category 2 hazard is less serious than a Category 1 hazard.

The Council are under a legal duty to take formal action in the case of a catergory1 hazard. The Council do not have a duty to take action with category 2 hazards, but they do have the power to take action. The decision in deciding which type of notice or order to serve will depend upon several factors. These factors are contained in DCLG document “Housing Health and safety Rating System; Enforcement Guidance” and is summarised in paragraph

In deciding on the most appropriate action we will take the following matters into account: -

• The wishes of the occupier

• Whether there are high scoring hazards

• Where there are multiple hazards;

• Whether the occupants are in the high-risk group in relation to any hazards present

• Whether it is reasonably practicable to remedy the hazard;

• Whether the defects have a significant effect on the occupants well being

• Whether the landlord had a record of poor maintenance

• Whether the landlord is accredited with a recognised accreditation scheme• Whether the landlord has agreed to remedy the defects

• Whether the property or person is within one of the Council priorities;

• Whether the hazard is likely to become more serious if not dealt with, for example, damp can often lead to the property fabric deteriorating.

The Council may take enforcement action for category 2 hazards and will do so where it is felt appropriate and taking the above factors into account. Generally, a Category 2 hazard scoring more than 600 points under the HHSRS statutory assessment will be considered a high scoring category 2 hazard.

5.1 Informal action

If appropriate, the Council will try to enforce in an informal manner. This would involve the officer drawing the matter to the attention of the owner, manager or responsible person in the form of a letter, e-mail or telephone. This letter will normally list any concerns or deficiencies found and arrange for a follow up visit to discuss the matter with the owner, manager and occupiers. If this informal approach does not result in enough progress being made, or the concerns are considered more serious or information requested is not supplied then the Council will treat the matter in a more formal way.

Informal action is appropriate where;

• The act or omission is trivial in nature and it can be simply remedied.

• Confidence in the individual/businesses management is high.

• There is good co-operation of the landlord in responding to any hazard(s)

• Any hazards pose a minimal risk to health.

• There is insufficient evidence for formal action at the time (although formal action may follow later).

• The views or circumstances of the occupiers or owners provide compelling reasons why formal action should not be taken.

• There are no concerns that the tenant may be subject to retaliatory eviction.

5.2 Formal action

In some cases, the Council are under a legal duty to take formal action such as when there is a category 1 hazard under the Housing Act 2004.

Formal action will be taken when:

• The Council is legally required to take formal action,

• Informal action has not resulted in compliance or progress. See Appendix 1 detailing the PSH service standards.

• There is a serious risk to an occupier or member of the public.

• An owner or landlord is known to have a history of non-compliance with statutory requirements.

• There is a belief that the tenant may be subject to retaliatory eviction.

• A serious offence has been committed.

• The consequences of non-compliance are significant.

• The likely ability of any witnesses to give evidence and their willingness to co-operate in the case of a prosecution.

• Where an empty property is assessed as being a case for priority action as prescribed in our Empty Homes Strategy. See Appendix 2.

5.3 Statutory Notices under the Housing Act 2004

Although notices are made under a variety of legislation, most notices and orders made by the Private Sector Housing team are issued under the Housing Act 2004. The main ones used under this Act are:

• Improvement Notice (sections 11 and 12)

• Prohibition Order (sections 20 and 21)

• Emergency Remedial Action (sections 40 and 41)

• Emergency Prohibition Order (sections 43)

• Hazard Awareness Notice (sections 28 and 29)

• Suspended Improvement or Prohibition notice/order

The table on the following page provides a guide to the likely action the Council will take under the Housing Act 2004. However, each case will be considered individually.

Action under other legislation may also be used. Examples of other legislation are the Building Act 1984, Environmental Protection Act 1990.

5.4 Works in default

Under certain pieces of legislation, the Council is empowered to carry out works in default and recover the costs. Works in default may be carried out where:

• A notice has not been complied with within the specified time

• There is no prospect of the person responsible carrying out the work, e.g. the person is absent or infirm

• Speedy abatement is required, e.g. where there is an imminent risk of injury or ill health

• The circumstances are such that works in default are a more appropriate or effective remedy than other action

• The problem persists after prosecution.

• Where the Council is legally required to carry out such works; such as under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015.

Normally a 20% charge of the cost of the works will be made on works in default to cover the Councils administration costs.

5.5 Prosecution

Prosecuting someone is a serious matter and will be considered carefully on a case-by-case basis. When considering prosecution officers must follow the guidance in the Code for Crown Prosecutors. For offences under the Housing Act 2004 the decision whether to prosecute will be subject to Appendix 5 attached – Determining the Penalty for Offences under the Housing Act 2004.

Where there are offences that have been committed not covered by appendix 5, officers may consider that prosecution is an appropriate way of dealing with the matter when:

• A simple caution is not appropriate, or the person accused has refused to accept the offer of a simple caution; or

• There is a risk to public health and safety or of environmental damage as a consequence of the breach; or

• The breach was as a result of a deliberate act or following recklessness or neglect; or

• The approach of the offender warrants it, e.g. repeated breaches, persistent poor standards; or

• A legal notice or order has not been complied with or no reasonable progress made in relation to its requirements; or

• Obstruction of an officer in the course of their duty; or

• When a person continues to commit offences despite being informed by the Council of these; or

• The refusal or provision of false information.

Please note this is not an exhaustive list and each case will be considered on its individual merits.

The initial decision to prosecute will normally be taken by the Private Sector Housing Manager in consultation with the Solicitor to the Council and the Head of Regulatory Services.

5.6 Penalty Charges

Under some legislation, the Council can serve a Penalty Charge Notice. These include:

• The Redress Schemes for lettings Agency work and Property management Work (Requirement to Belong to a Scheme etc.) (England) Order 2014

• The Smoke and Carbon Monoxide Alarm (England) Regulations 2015

• The Housing Act 2004 as amended by the Housing and Planning Act 2016

• The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015

• The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

As with criminal prosecutions, the council is of the opinion that an early acceptance of guilt is in the public interest. It saves public time and money.

An offender can demonstrate an early acceptance of guilt by paying the financial penalty within 28 days of the date the Final Notice was served. If cleared payment is made within this time period, the offender can benefit from a 25% reduction in the amount of financial penalty payable.

A Final Notice will set out the finalised financial penalty amount determined having regard to this policy and an amount equal to 75% of that sum, which would be accepted if received within the 28-day period.

If the council is required to defend its decision at the First-tier Tribunal, there will inevitably be additional costs in officer time and expenses. As such, no reduction is available for cases subject to an appeal to the First-tier Tribunal if the appeal is unsuccessful. If an offender makes an early payment at the reduced rate, but then decides to appeal later and the appeal is unsuccessful the council will seek the full finalised amount after the appeal proceedings are completed.

5.61 The Redress Schemes for lettings Agency work and Property management Work

Under the redress scheme the penalty charge will normally be £5,000 for any contravention but on representation this charge may be reduced or in exceptional cases quashed. Some brief guidance has been provided on reasons to reduce the penalty charge which includes taking account of turnover of the business or other extenuating circumstances. This charge issued is in accordance with “Guidance on the Redress Scheme Improving Rented Sector” issued in March 2015 by DCLG.

The landlord can request the local authority to review the penalty charge. Normally any representations that are made will be considered jointly by any two of the following officers; the Private Sector Housing Manger, the Head of Regulatory Services or the Strategic Director for Corporate Resources. A final appeal can be made by the landlord to the First Tier Tribunal.

5.62 The Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Under these regulations, a penalty charge of up to £5,000 can be made. Regulation 13 requires a local Housing Authority to prepare and publish a statement of principles which it proposes to follow in determining the amount of penalty charge. Appendix 4 details the Councils Statement of Principles in this matter.

Where the Council undertake remedial action, the type of smoke detection fitted will if reasonable and practical will meet the standards contained in British Standard 5839- part 6:2019

5.63 Housing Act 2004 as amended by the Housing and Planning Act 2016

The Housing and Planning Act 2016 introduced new powers for local authorities to tackle rogue landlords. These new powers include;

• Civil penalties of up to £30,000

• Extension of Rent Repayment Order

• Banning orders for the most prolific offenders

• A database of rogue landlords/property agents

The Council has approved a policy for determining when; to issue a penalty notice and the amount of penalty to be charged, when to apply for a Rent Repayment Order, when to put a landlord the database of rogue landlords, when to prosecute and when to apply for a banning order.

This policy can be found at Appendix 5; Determining the Penalty for Offences under the Housing Act 2004.

5.64 The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

These regulations have been made under the Housing Act 2004 and the Housing and Planning Act 2016. The regulations give legal responsibilities to landlords to ensure their property(s) electrical system are safe. This includes providing an electrical inspection report every 5 years. The regulations allow for a Penalty Charge (and no other form of penalty) of up to £30,000 for a breach of duties of a private landlord. The policy for determining the penalty will be the same process as Determining the Penalty for Offences under the Housing Act 2004, found at Appendix 5. A landlord can make written representation to the Council within 28 days, regarding a penalty charge.

5.65 The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015

The regulations provide that, subject to prescribed exceptions, a landlord of a domestic private rented property must not continue to let the property after 1st April 2020, where the energy performance of the property is below the minimum level. (Currently F and G). There are legal exemptions which must be registered under The National PRS Exception Register. Where the Council is satisfied that a landlord is in breach, it may issue a penalty notice imposing a financial penalty, and a publication penalty. This policy can be found at Appendix 6; Determining the Penalty for Offences under The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015.

5.7 Overcrowding

Wherever possible the Council will resist taking action that would lead to homelessness but will seek to reduce overcrowding using suspended notices that relies on a voluntary reduction in the occupation of the dwelling. We will work with the Council’s Homelessness team where enforcement action may lead to a family moving out of their accommodation.

In acting, we will consider:

• The impact of the overcrowding upon the health and safety of vulnerable adults and children’s living conditions.

• Whether the occupants are being exploited and we will take this into account when deciding what action to take.

• The wishes of the occupier.

Where there is a serious hazard of overcrowding, a suspended prohibition notice will normally be served. This will require the occupation of the property to be reduced by the occupiers leaving the property when they choose to. The Notice will then become fully operative once the property is no longer overcrowded and it would be an offence if the property became overcrowded by new occupiers.

5.8 Priorities for Enforcement

Normally the Council will not take enforcement action against owner-occupiers as statistically these homes are safer, and the owner has far greater control and power to remedy any hazards in the property. A private tenant would not have this control or power. However, where the Council knows there is a serious hazard in an owner-occupied property, we may have to take formal action in accordance with our statutory duty. In most cases this will simply be a Hazard Awareness Notice, but an Improvement or Prohibition Notice may be served if this is needed to protect existing or future occupants.

To ensure that the Council meet their policy and enforcement objectives effectively, they will from time to time need to target their enforcement activity to specific subjects. For example, this may be:

• Concentrating our action on specific roads or;

• On individuals or organisations who persistently commit offences, or their activities result in the need for us to work proactively to meet our objectives or;

• On specific types of properties for example Houses in Multiple Occupation or empty homes;

• The need to work with partners on specific enforcement activities.

5.9 Charging Policy for Taking Enforcement action

The Housing Act 2004 allows Councils to charge for taking enforcement action that results in service of a notice under the Act. The Council will recover our costs when statutory action is taken including the full costs of an officer’s time, overheads and any relevant expenses such as specialist reports. Current charges are attached as Appendix 3 and these will be updated annually.

There will be discretion to waive the charge when it is not reasonable to expect a person to pay for charges for the enforcement action taken i.e. where it is very clear that the owner is not at fault or that the reason for serving the notice was outside the control of the owner.

If the notice is fully complied with within the time allocated by the Council, then the costs charged relating to officer time and administration will be waived. Any other costs such as the obtaining of specialist reports will be fully recovered by the Council. Where a charge for enforcement action is levied, it will be registered as a local land charge.

To ensure compliance with this policy, the enforcement activities of the Private Sector Housing Service will be monitored regularly by the Private Sector Housing Manager and are subjected to a regular audit process.

The Private Sector Housing Manager will review this policy annually.

Appropriate resources will be made available for training officers to enable them to successfully carry out their duties within this policy All officers will have recognised relevant qualifications and completed training on the Housing, Health and Safety Rating System. Ideally senior enforcement officers will be professionally qualified and undertake Continual Professional Development.

This policy aims to promote the Council’s objectives of improving environmental quality, promoting prosperous communities, health and well-being.

Care has been taken to ensure that application of these policies will not result in discrimination against any of the equalities groups. This document is covered by the Equalities Impact Assessment (EIA) for the overarching Corporate Enforcement Strategy.

If you are dissatisfied with the service, you receive please let us know. The Council are committed to providing quality services and your suggestions and criticisms about any aspect of our service will help us to improve. We will deal with all complaints in the strictest confidence. Wherever possible we will attempt to resolve your complaint informally. Initially you should make representations through the case officer to try to resolve your concern. If you are unable to resolve this matter with the case officer, you should contact the Private Sector Housing Manager.

If you are still dissatisfied, the Council has in place a Corporate Complaints procedure.

If you are still unhappy you can discuss your complaint with your local ward Councilor, MP or can complain to the Local Government Ombudsman.

How to Contact us

In the first instance please use the telephone number given on any correspondence we send and speak to the case officer dealing with the matter or contact;

Tim Lovell

Private Sector Housing Manager,

Dover District Council,

White Cliffs Business Park,

Dover CT16 3PJ

Tel: 01304 872221

or email: tim.lovell@dover.gov.uk (opens in new tab)

Our complaints officer can be contacted-

Professional Standards Officer

Dover District Council

White Cliffs Business Park

Dover CT16 3PJ