Enforcement action taken will reflect the severity of the offence or nature of the breach, the perceived harm whether actual or potential, the responsible person’s culpability and their compliance history.
We will take all necessary action to adequately protect the occupants’ interest and provide an appropriate deterrent to offenders.
The Council follows the principles set out in the Macrory Review, which sets out that sanctions should:
There are several types of action that can be taken in relation to any given case, and different action may be necessary as a case progresses. Each case will be considered on its own merits.
When deciding whether to take enforcement action we will;
Outlined below are the main enforcement options available to officers. We take the approach that offenders should pay the cost of enforcement work, and that they should not profit from poor or criminal behaviour.
5.1.1 No Action - Where we are unable to identify any actionable problem we will take no action.
5.1.2 Informal Action – will be considered where:
or
and
and
5.1.3 Statutory Notices (including Orders) - Statutory notices will be issued under any of the following circumstances:
Owners or agents may be contacted and given an opportunity to remedy any problems before a statutory notice is served. However in some circumstances the council has a legal duty to serve a Notice, for example where a statutory nuisance or a Category 1 hazard under the HHSRS exists.
Realistic time limits will be attached to notices and wherever possible these will be agreed in advance with the person or business on which they are served.
In cases where there is an imminent risk to public health, notices may require immediate compliance.
An extension of time limits will only be granted where there are legitimate reasons for doing so. For example, prolonged bad weather delaying external works. Requests for extensions should be made in writing to the officer issuing the notice, prior to the expiry date, explaining the reason for the request.
The time limits given on statutory notices not requiring works such as notices requiring information will generally be no more than the minimum statutory period allowed.
Having regard to the relevant statutory power, and where the law allows, a charge may apply when we issue a statutory notice. Further details are set out in ‘Charges, fees and cost recovery’ in Section 5.7 below.
Where a Notice is served, information relating to the appeals process will accompany the notice.
If the notice served is an improvement notice under Part 1 of the HA2004, then works can be completed 'by agreement’ as described by Part 1 of Schedule 3 of the HA2004. A decision as to whether to undertake works in agreement will be made on a case by case basis taking into account the financial implications to the Council.
Where the requirements of a notice are not complied with, further action will considered, including works in default, the imposition of a civil penalty (where available) or the instigation of prosecution proceedings.
The following options are available under the Housing Act 2004;
This action will be taken when it is considered to be the most appropriate course of
action, usually when there are one or more serious category 1 hazards, the property is
usually detached or there is a building line separating it from other properties, the
adjacent properties will be stable and weatherproof or can readily be made so, it is in a
potentially unsustainable area or it is causing severe problems to the amenity of the
neighbourhood and repair would be very costly, it is not listed or of other historical
interest.
This action will be considered where similar circumstances to those for determining if a demolition order exist but where it is necessary for the Council to acquire the land either for its own purposes or to sell on for either new build or other purposes.
The following options are available under various other pieces of legislation;
The Council has the power to ensure the re-connection (or to prevent the disconnection) of the gas, electricity or water supply, to lettings within a tenanted property. These powers will only be used where the tenants are not responsible for payment of the bill. In properties occupied by a single tenant it is expected that he/she will arrange for a supply in their own name and reconnection by the Council will not normally be considered appropriate. The owner of the property will be charged the cost of re-connection and/or payment of the bill plus interest. This debt will be recovered either by way of rent from tenants or in the civil court. A decision as to whether to undertake reconnection works will be made on a case by case basis.
Public Health Act 1936 - This allows the LA to take action in respect of defective WCs capable of repair. There is a power of entry in relation to these activities. Enforcement is by way of formal notice. Failing to comply with a notice can lead to work in default and prosecution with ongoing fine.
Building Act 1984 - This allows the Local Authority to take action in relation to certain drainage defects. Enforcement is by way of formal notice. Failing to comply with a notice can lead to work in default, cost recovery and prosecution with ongoing fine.
A notice will be served where conditions are determined to be prejudicial to health or causing a nuisance.
With regard to ‘causing a nuisance’ this might be where defects or conditions in one property affect another property or the general public.
Where conditions are ‘prejudicial to health’ of either the occupiers or others affected by the conditions of a residential premises, we may use this power in preference to the Housing Act 2004. Typical situations where this legislation is likely to be used are where there is not an imminent risk of serious harm but where a 28 day delay is considered too long (such as boiler breakdowns or nuisance to neighbouring properties).
Enforcement for failing to comply with a notice may include the Council undertaking
works and recovering the costs incurred and/or bringing a prosecution.
Ensuring the provision of appropriate alarms utilising the Smoke and Carbon Monoxide
Alarms (England) regulations
Private sector landlords are required to ensure that smoke alarms and carbon monoxide alarms (if required) are installed and then checked at the start of any new tenancy. Where the council has reasonable grounds to believe a landlord is breach of these requirements there is a duty to serve a remedial notice.
Failure to comply with a remedial notice will lead to the issuing of a Civil Penalty. In order
to determine the amount of the penalty the LA must have a Statement of Principles in place. This statement is presented as Appendix 2.
Licensable HMOs are subject to separate, and more stringent, regulations under the Housing Act 2004.
The interventions described above are those most readily used however Torbay Council will consider the use of any appropriate legislation which it is authorised to use.
5.2.1 Energy Efficiency Enforcement Notices – The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 are designed to tackle the least energy-efficient properties in England and Wales – those rated F or G on their Energy Performance Certificate (EPC). The Regulations establish a minimum standard for both domestic and non-domestic privately rented property, effecting new tenancies from 1 April 2018 and all tenancies from April 2020.
The current domestic regulations are based on a principle that landlords are expected to meet the costs of improving energy efficiency, subject to a cap. This is an area of enforcement policy we will keep under review.
Where a valid exemption applies, landlords are required to register this on the national PRS Exemptions Register.
Where properties do not meet the minimum level of energy efficiency we may issue a compliance notice requesting information. Where we are satisfied that a property has been let in breach of the regulations we may impose financial penalties.
5.2.2 Illegal eviction and harassment – The council has powers to investigate and prosecute offences of illegal eviction, harassment and offences committed by letting or management agents under the Protection from Eviction Act 1977.
An illegal eviction is where a landlord evicts a residential occupier without following the correct procedure.
Harassment is where a landlord tries to make a residential occupier decide to leave. This could be by an act or threat of violence or withdrawing services.
The Deregulation Act 2015 has introduced a number of requirements on landlords of private tenants,
including the requirement to provide an energy performance certificate, Gas Safety certificate and a copy of the ‘How to Rent’ guide before a tenancy starts.
Where this information has failed to be given at the beginning of the tenancy or the tenant occupies a Licensable HMO without a license, the landlord will not be able to evict using a section 21 notice, the so called “no fault” eviction procedure.
The Deregulation Act 2015 also provides protection for tenants who make a legitimate complaint to their landlord about the condition of their property and in response, instead of making the repair, their landlord serves them with an eviction notice. This is referred to as retaliatory eviction.
We will take appropriate action to prevent homelessness where landlords have not followed the correct procedures or attempt a retaliatory eviction. If the occupier has been illegally evicted, we will explain their rights to re-enter the premises and may assist them to do so. We will also consider taking the relevant formal action such as undertaking a prosecution. Unlike other legislative provisions describedwithin this policy, a conviction under the Protection from Eviction Act 1977 may result in a custodial sentence.
Where a conviction has been secured relating to the use of violence to secure entry contrary to section 6(1) of the Criminal Law Act 1977 or unlawful eviction or harassment of occupiers contrary to sections 1(2), 1(3) or 1(3A) of the Protection from Eviction Act 1977 we will seek a Rent Repayment Order as described below.
5.2.3 Redress Schemes for letting agency and property management work - The Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014 makes it a legal requirement for all lettings agents and property managers in England to belong to a Government-approved redress scheme.
Torbay Council may seek to establish whether letting agents and property managers belong to an appropriate scheme on a case by basis or by pro-actively reviewing multiple businesses. When enforcing this legislation we will have regard to Annex C of the guidance document produced by Department for Communities and Local Government titled Improving the private rented sector and tackling bad practice.
Where we are satisfied, on the balance of probability that someone is engaged in letting or management work and is required to be a member of a redress scheme, but has not joined one, we will impose a fine. If there are no extenuating circumstances, the fine will normally be £5000. This fine may also be repeated if non-compliance continues.
5.2.4 Works in Default – The Council will consider carrying out works in default or remedial action in the following circumstances;
In these circumstances, the Council may organise and carry out the work itself or appoint an agent to complete the work on its behalf and recover the cost of works plus all additional costs including agency fees, administration fees and any interest accrued where payment has not been received promptly. These costs will be charged to the property owner but can also be placed as a land charge on the property for payment when the property is sold or if money is raised against it. As part of the debt recovery process we may seek to enforce the sale of a property depending upon the circumstances.
A decision as to whether to undertake works in default will be made on a case by case basis.
The Council may also consider prosecution or a financial penalty in addition to carrying out works in default. Following the carrying out of works in default the Council may pursue enforced sale of a property where the legislation allows.
5.2.5 Simple Cautions - The use of Simple Cautions is advocated by the Home Office in situations where there is evidence of a criminal offence but the public interest does not require a prosecution. It may be used for cases involving first time, low-level offences. Decisions to issue Simple Cautions will be made in accordance with the Ministry of Justice – Simple Cautions for Adult Offenders and the Director of Public Prosecutions' Guidance on Charging.
5.2.6 Prosecution - Where there is a breach of a legal requirement and we consider that formal action is required we may seek to prosecute the offender. Prosecution will generally be reserved for the most serious cases or where the nature of the breach is obstructive to the investigation. These include failures to manage property effectively so as to protect occupiers, failure to provide documentation or information required by notice or failure to comply with the requirements of an improvement, enforcement, or prohibition notice.
Any decision to prosecute will be taken in accordance with the Regulators Code, this policy and the Code for Crown Prosecutors.
The following factors will be taken into account in any such decision:
These factors are not exhaustive and those that apply will depend on the particular circumstances of each case.
5.2.7 Civil penalties - The council may as an alternative to prosecution, serve notices imposing Civil Penalties of up to a maximum of £30,000 in respect of the following offences:
The council will determine, on a case by case basis, whether to instigate prosecution proceedings or to serve a civil penalty in respect of any of the offences listed above. Examples of situations in which a decision to prosecute would normally be taken includes where the breach is considered particularly serious and /or the offender has committed similar offences in the past.
In circumstances where the council has determined that it would be appropriate to issue a civil penalty as an alternative to prosecution, the level of the penalty will be calculated in accordance with the details of Torbay Council’s Civil Penalty Policy.
5.2.8 Rent Repayment Orders (RRO) - A rent repayment order is an order made by the First-tier Tribunal (FtT) requiring a landlord to repay a specified amount of rent to either the tenant, the local authority or a share to both dependent upon who made payments. Where a conviction has been secured, the FtT, on application, must grant the RRO. Where a Civil Penalty has been secured, the FtT, on application, may decide to grant an RRO. The offences for which an application for an RRO can be made are:
We will always apply for a RRO where a landlord has been convicted (or a Civil Penalty secured) of one of the above offences in our area.
The Council will also consider supporting a tenant’s private application for a RRO. This support is likely to be in the form of confirmation of the outcome of any investigation we have undertaken and the supply of documents as evidence. A decision on how and if to provide support will be made on a case by case basis taking into account the vulnerability of the occupant, the likelihood of success and the financial implications to the Council. Please see ‘Giving evidence in private court cases’ in Section 5.5 below.
5.2.9 Banning orders - In accordance with the Housing and Planning Act 2016, the Council may apply to the First-tier Tribunal for a banning order against a residential landlord or a property agent who has been convicted of a banning order offence.
A banning order bans a landlord or property agent from letting houses or engaging in letting agency or property management work in England for a defined period of time (minimum 12 months).
In deciding whether to apply for a banning order and how long to recommend the ban for, we will have regard to Banning Order Offences under the Housing and Planning Act 2016 – Guidance for Local Housing Authorities.
If we decide to apply for a banning order, we will complete the procedure set out in Section 15 of the Housing and Planning Act 2016. Breaching a banning order is an offence, subject to either prosecution in the magistrate’s court or financial penalty. The Council will consider prosecuting or issuing a financial penalty to any landlord found to be breaching a banning order in its area.
5.2.10 Database of rogues landlords and property agents - The database has been designed to help Local Housing Authorities keep track of rogue landlords and property agents operating across council boundaries.
The Council must place a person on the database if it has successfully made a banning order application. The landlord will remain on the database for the period that the banning order has effect.
Furthermore we will consider if it is appropriate to make an entry on to the database of rogue landlords and property agents when a landlord has been convicted of a banning order offence (even if no Banning Order is sought) or received 2 or more financial penalties over a 12 month period.
In deciding whether to make an entry on the database, and the period of time that a landlord or property agent should stay on the database, we will have regard to the Database of rogue landlords and property agents under the Housing and Planning Act 2016 - Statutory guidance for Local Housing Authorities.
5.2.11 Proceeds of Crime Act 2002 - Where appropriate to the case, the Council, will consider taking proceedings under the Proceeds of Crime Act following a successful prosecution.