Enforcement of standards in the private rented sector

We understand that by far the majority of landlords do a good job and problems are resolved without the need for our involvement. The Council has a statutory role to play in ensuring that privately let homes are without risks to occupiers. This page explains how we go about doing this and what we do to secure consistency in enforcement decisions.

 

I'm a tenant. When should I complain to you?

It's important to emphasise that in the first instance, you should try to resolve the matter with your landlord. It's a really good idea to document your complaint in a letter or electronic format so there is no dispute later about what was complained about and what was agreed. Citizens Advice have produced a good guide with respect to what steps you should take when making a complaint about your property or landlord. We need to also make clear at this point that in emergency situations such as illegal evictions, threats being made or disrepair posing an immediate risk, you should contact us immediately. If anyone comes to your property and makes threats or tries to forcibly enter your property, you should call 999 immediately.

In other less urgent situations please contact us for advice in the first instance if you are unable to reach agreement with your landlord concerning a repair. It's important for you to understand who is responsible for what and you should check your tenancy agreement first, particularly if the repair relates to matters such as carpets, decoration, white goods and minor maintenance. Please refer to our repairs page for clarification on legal responsibilities for repair. You should also be aware that private landlord have the legal right to start eviction proceedings in circumstances where you haven't done anything wrong (sometimes called no fault eviction). This right is removed if we serve an enforcement notice. Please visit our retaliatory eviction page to find out more. 

I'm a landlord. I've received a letter stating you are going to inspect my property - what should I do?

Once we receive a complaint from a tenant concerning their property or tenancy, we will investigate further. Initially the complaint will be discussed with your tenant to establish if the matter has been reported to you and secondly if we are able to intervene to resolve the matter. From this conversation, if it is stated that the matter has been reported to you and we have legal power to resolve the matter, we are likely to conduct an inspection under Part 1 of the Housing Act 2004 (sometimes this is called the Housing Health and Safety Rating System; HHSRS- please click for a guide produced DASH). The aim of this inspection is to conduct a risk assessment of the property and establish what needs to be done next to ensure the property is safe.  We are by law required to notify both the landlord and tenant of our intention to enter a property and the letter fulfils this requirement. In the letter, we will also tell you what the issues are and ask you to contact us with your intentions to resolve the matter in advance of the inspection. It's in all parties' interests that we can establish a good working relationship at this point. Remember a key component of our role is to provide information to assist you with compliance and we are not simply here to enforce the law. We fully appreciate that there are often two sides to a story and are here to make a balanced decision on what needs to be done. Please note that rent arrears does not remove the duty on the Council to investigate housing complaints or remove your repairing obligation. Please refer to our tenancy management page to find out more on how you should deal with rent arrears. We welcome landlords attending our inspections and this can provide a really good opportunity to discuss issues face to face. You will need to contact your tenant in advance to make sure they have no objection to your attendance.  

What will happen during an inspection & what happens next?

The officer carrying out the inspection will discuss general points around the tenancy such as who lives at the property, any specific health concerns which will exacerbate the hazards (you do not have to answer this if you do not wish to) & ask to see a copy of your tenancy. The specific concerns of the tenant will be looked at and questions asked about the circumstances leading to the disrepair (for example, during complaints about cold and damp, you maybe asked about energy usage and a copy of the property's EPC could be requested). It's a good idea for landlords to have reviewed their compliance documentation before the inspection and make sure everything is in good order. Details of what was picked up on during previous inspections will be useful, along with details of any measures you have already put in place to resolve the matter. Inspectors may ask to discuss the matter directly with your contractors. 

The officer will need to assess the condition of the whole of the property (visually only, we are not permitted to carry out any destructive surveys) and may pick up on other matters which (s)he feels are hazardous. The inspections generally take between 30 and 60 minutes for single let property but could be longer for houses in multiple occupation. At the conclusion of the inspection, the officer will explain their intended course of action which could range from advice, to requesting a plan of action from the landlord to taking immediate enforcement action if the situation is very risky (this is unusual). In the majority of complaints, the officer will assess the hazards posed by the disrepair using the Housing Health and Safety Rating System. This allows a more informed judgement of the risks posed to occupiers over the course of the next 12 months. Ratings are compared to benchmarked examples from the government and other authorities for the purposes of consistency and all of our officers meet and discuss cases regularly to try and maintain a consistent approach.

Once the items have been risk assessed, it would be normal practice to draft a schedule of works identifying what the officer believes to be necessary to reduce the hazards to an acceptable level. This will be sent to the landlord and a copy sent to the tenant and letting agent if applicable. It's vital for the landlord to read and respond to the schedule of works once received. Officers are open to dialogue concerning their suggestions & contact is welcomed if you do not agree with what is being proposed. It's also vital for landlords to be in a position to provide some approximate timescales to the case officer. We appreciate that trade work is subject to unforeseen problems and delays and will always seek to work with you to proceed cooperatively. 

At what point will the Council use enforcement powers in disrepair cases.

There are general principals we must adhere to in order to ensure fair and reasonable enforcement decisions. We are bound to comply with the terms of our own enforcement policy (see downloads section) which was written with regard to the Regulators Code (2014) and Code for Crown Prosecutors. This document has been formerly approved by elected members. In very general terms, we must consider:

  • The risk posed by non compliance
  • The landlord's previous compliance history
  • Whether the landlord is seeking to gain commercial advantage by not complying.
  • The landlord's response informal attempts to improve the risks identified during a survey. This is why it's important to communicate with us as early as possible following notification of the complaint. 

Unless it's considered that immediate enforcement action is required, after a schedule of works has been sent out by the case officer, we expect that contact will be made within a fortnight and we will be seeking to form agreements at this point concerning how long it will take for repairs to be completed. Where contact is not received (in most circumstances, we will send reminders), and the officer has no confidence in the landlord's intention to effect repair, we will use an enforcement notice under the Housing Act 2004. Most commonly this will be in the form of an improvement notice which will make it a legal requirement that repairs are completed within a certain time frame. This type of notice will need to be served on the "person in control" of the property (this is different for HMOs) - the National Residential Landlords Association (NRLA) have produced a useful page regarding "person in control".  More occasionally prohibition orders are used which place a legal restriction on being able to occupy property. Notices served by officers under this legislation can be appealed to the the First Tier Tribunal who have the power to quash or vary enforcement notices. Breach of either an improvement or prohibition order is a criminal offence for which we can either issue a fine on the person in control directly (this is called a civil penalty - click here for an NRLA guide on civil penalties), or pursue prosecution. We strongly recommend trying to resolve any concerns about the content of notices with the officer or their manager before making an appeal. We are happy to undertake re-inspections and vary notices in circumstances where other works are feasible to comply with safety requirements. Please be aware that copies of enforcement notices must be served on "relevant persons" as defined in the Housing Act 2004 (for example the mortgagee, letting agent & joint owners). 

It's important to remember that Council's can recharge their costs for serving enforcement notices under the Housing Act 2004. This will be based largely on officer time with some minor additional costs (for example land registry check fees). Should you receive a legal enforcement order, you will also receive a demand for payment. Failure to pay these costs can result in the Council using civil debt recovery & placing a local land charge against the property.

In addition to using a civil penalty or prosecution, when an improvement notice is breached, the Council has power to undertake work in default. Through this power the Council can engage its own contractors to complete the repairs listed on the notice to make the situation safe. The costs of the work along with officer time for arranging and overseeing work can be recharged to the recipient of the notice. The debt will be secured as a landcharge against the property and civil action for debt recovery maybe used. Work in default can also be used in emergency situations in very high risk cases. For this reason (and many other reasons!) it's important to manage your property carefully and ensure there are always people available to deal with emergency situations should they arise. 

What other housing laws are enforced by the Housing Enforcement Team?

The Housing Enforcement team has powers to enforce the law in relation to Harrassment and Illegal Eviction. In these cases, there are no enforcement notices and the decision to prosecute or not, will be based purely on the strength of the evidence available and the principles of our enforcement policy. These types of cases can be heard either in the Magistrates Court or Crown Court (the latter being reserved for more serious cases which could result in a custodial sentence of up to two years).

The Council operates four licensing schemes across the Borough; mandatory HMO licensing, additional HMO licensing and selective licensing in Hexthorpe and Edlington (details of all the schemes can be found on our private sector housing landing page). Failure to licence a property is an offence that will be investigated by the Housing Enforcement team and can lead to a prosecution in Magistrates Court or the Council issuing a civil penalty directly on the offender (see the tab below for more details). Breaches of licensing conditions are dealt with in the same way. Specific management regulations apply to houses in multiple occupation (further details can be found on Shelter's legal page), breach of which can either be dealt with via the Magistrates Court or via a civil penalty. The Housing Enforcement team also has power to deal with overcrowding through both the Housing Act 2004 and Housing Act 1985. Under certain conditions where a landlord repeatedly flouts the law, the Council may apply for a banning order. If granted, this prevents a landlord from being involved in the letting of property (this applies nationally and Councils update a central register).

If a landlord breaks the law, what can the Council do & how do they decide what to do?

This depends on which law has been broken. The introduction of the Housing and Planning Act (2016) provided local authorities with the power to raise civil penalties for the following offences:

  • Breach of an improvement notice
  • Offences in relation to the licensing of houses in multiple occupation
  • Offences in relation to selective licensing
  • Offence of failing to comply with an overcrowding notice
  • Breach of HMO management regulations

An internal decision is made by making reference to our enforcement policy as to whether to offer a civil penalty or pursue prosecution for the above offences. The following are influential to this decision:

  • The severity of the offence and the extent of risk caused to the public
  • Actual loss or injury arising from the breach
  • Previous compliance history
  • Whether or not civil penalties have been issued in the past

The same burden of proof is required to issue a civil penalty as would be needed for a criminal case. A key difference is that civil penalties can be used to discharge the offence without court proceedings and they do not lead to a criminal record. The Council must also form its own policy for determining the amount of the civil penalty and details of how we do this are contained within the enforcement policy. The two key factors are:

  • Culpability (how blameworthy the offender is) 
  • The level of actual or potential harm caused.

A matrix is then used to form a penalty point. Other factors are then accounted which influence the final penalty. These include: 

  • The scale of the offender's property business
  • Their previous compliance record
  • An early admission of guilt
  • Corporation with the Council's investigation (please see the enforcement policy for full details).

For all other offences we deal with the Council will need to lay the case to the Magistrates or Crown Court (the latter being reserved for more serious offences). The team's management will be involved in the decision process about whether or not to seek prosecution in Court and prosecution files will be dealt with by the Council's lawyers who will present the case at Court. Enforcement officers will commonly attend trial in the event of a not guilty plea. 

Why do you not have any power to help landlords?

All of the Housing Enforcement team's powers derive from statutes, so ultimately it's Parliament who decide what matters are for Council enforcement officers to become involved in. Generally speaking, powers for landlords to deal with problems around tenancy management and debt are dealt with by civil courts, who are able to provide redress for matters including possession, debt and access. However remember that Housing Enforcement staff can be very useful in terms of getting your tradesmen in to complete works. If you have access problems in a repair case, please discuss this with the case officer who will endeavour to assist.

I'm a tenant - I want to seek my own legal action. What's available to me?

Tenants can make claims through civil action if a landlord fails to take action on repairs. It's important to point out that you should always try to resolve matters informally before taking action and a judge will consider this. You can claim for financial losses (for example higher energy bills due to using electrical heating when your boiler was broken), damage to health which has resulted in being unable to work or expenses associated with medical treatment & inconvenience (for example not being able to use part of your home). Please click here to find out further information civil action when your landlord fails to act.

If a landlord is found guilty of committing certain offences, you may be able to apply for a rent repayment order (RRO) through which your landlord must repay rent. We will supply applicants with information in support of RRO claims. RROs are granted by the First tier Tribunal and you can find out more concerning RROs here. RROs can be used to require a landlord to pay back up to 12 months of rent (for the period leading up to the offence) & the tribunal will decide on the amount based on factors such as the reasonableness of landlord and tenant behaviour as well as the landlord's financial circumstances. 

The Homes (Fitness for Human Habitation) Act applies to all tenancies in England and has done since March 2020. This act can be used where defects are so serious that a Court would deem the property unfit to live in. If the Court is satisfied that the property meets this threshold, they may order that repairs are completed and/or make an order for compensation. Reports from Environmental Health Officers working with the team can be used as evidence in these cases.  The government's guidance on fitness for human habitation can be found here.
Last updated: 22 January 2021 11:44:22