Private Sector Housing Enforcement Policy

The primary objective is to ensure a fair, reasonable and consistent approach to enforcement in accordance with all appropriate guidelines and legislation.

Enforcement is distinct from civil claims for compensation and it is not undertaken in all circumstances where civil claims may be pursued, nor to assist such claims.

The council will take such action as it considers appropriate to secure compliance with the law and to ensure a proportionate response to offences. Council officers may offer information and advice, orally and in writing, which may include warnings that the law is not being complied with and where appropriate notices may be served, formal cautions issued and prosecutions taken.

We will ensure our primary objective of a fair, reasonable and consistent approach to enforcement is provided through the principles of Proportionality in applying the law and securing compliance; Consistency of approach; Targeting of enforcement action; and Transparency about how the council operates and what customers may expect.

This means relating appropriate enforcement action to risks and the seriousness of any breach of legislation.

This means taking a similar approach in similar circumstances to achieve similar ends, it does not mean uniformity.

Attention is targeted primarily on those whose activities/inactivities give rise to the most serious risk or where conditions are least well maintained; and that action is focused on the person/s responsible for the risk or poor conditions and who are best placed to remedy such matters.

Means helping those responsible to understand what is expected of them and what they should expect from the council. It also means making clear to them what they are required to do and what they are advised to do.

If upon investigation no breaches of legislation are identified.

Includes offering of verbal or written advice, verbal warnings and written requests for action. Advice will be clearly stated and confirmed in writing, if requested or required, and will explain why remedial work is necessary over what timescale it must be carried out and what is the minimum legal requirement as well as any advisory information. Informal action is appropriate when:

• The matter is not serious enough to warrant formal action
• Previous history suggest informal action will achieve compliance
• There is confidence in the owner, landlord etc carrying out whatever is required
• Generally standards are high
• The consequences of non-compliance do not present a significant risk
• The matter concerned is not a strict breach of law but the advice is good practice

An investigating officer may determine that even where some of the above criteria are not met that informal action may be more effective than a formal approach initially.

The use of statutory notices will be linked to criteria including risk except where local authorities are required to service notice by controlling legislation upon identification of certain matters, for example nuisances and the Environmental Protection Act 1990. Service of Statutory Notice is appropriate when:

• there are significant contraventions of legislation
• owners, landlords etc have shown reluctance to comply with legislation
• there is a lack of confidence in a successful outcome from an informal approach
• there is a serious risk to health and/or safety
• the consequences of non-compliance present a significant risk
• there are multiple breaches of legislation
• no remedial action has been taken after an informal approach
• generally standards are not good
• there is a lack of confidence in the owner/landlord etc carrying out whatever is required
• there is a statutory duty to take formal action

Notices must only be served where there is proof that an offence has been or will be committed such that the evidence available would be admissible as evidence in a court of law.

The limits specified in the notice must be realistic and where possible all requirements of the notice should be agreed with the recipient in advance. In arriving at limits and requirements for a notice the officer must give due consideration to the likely cost of works, extent of works, availability of equipment and/or expertise required in order to ensure a realistic outcome.

All statutory notices served must set out rights of appeal and clearly state that failure to comply may result in court proceedings or work being carried out in default, if appropriate, at the owners/landlords expense.

The council, for certain notices, may be required to undertake a process of advance disclosure of their intention to act. The council may utilise the advance disclosure process on a voluntary basis if considered appropriate.

A formal caution can be offered as an alternative to prosecution but must only be considered in cases where the evidential criteria for prosecution are satisfied. The purpose of a formal caution is to:

a) deal quickly and simply with less serious offences
b) divert less serious offences away from the courts
c) reduce the chances of repeat offences

(Home Office Circular 18/94)

The offer of a formal caution is appropriate when:

• the interests of justice will not be served by court action
• offences of a minor nature are not actioned following service of a statutory notice and there is no risk to health/safety.
• a ‘technical’ offence has been committed and there is a need for the offence to be formally recorded.

The investigating officer must compile a prosecution file before the formal caution is offered to the alleged guilty party.

The alleged guilty party must be given sufficient information to understand the significance of a formal caution.

In the event of the offer of a Formal Caution being refused the council will pursue the offence through a prosecution, except in exceptional circumstances as authorised by the Director of Housing and Renewal.

Prosecutions in general will be restricted to more serious offences and will occur only after full consideration of the circumstances of a case. When considering a prosecution regard must be had to the Code of Practice for Crown Prosecutors. There must be:

• reliable evidence of an offence
• a realistic prospect of conviction
• consideration of the likelihood of the defendant being able to establish a suitable defence, and
• the availability of witnesses and their willingness to co-operate

If the evidential criteria above are met then the public interest criteria in support of prosecution should be considered:

• a conviction is likely to result in a significant penalty
• it is also necessary to consider public interest criteria against prosecution
• the offence is serious
• there has been a blatant disregard for the law, including where the economic advantages of breaking the law are substantial and the law abiding are placed at a disadvantage to those who disregard it
• when there appears to have been reckless disregard for the health and safety of occupiers or others
• where there have been repeated breaches of legal requirements in a property or several properties in the same ownership and it appears the owner/landlord is neither willing nor able to deal adequately with these
• where, as a result of a substantial legal contravention, there has been a serious accident or a case of ill health
• the requirements and recommendations previously provided have been ignored and the owner/landlord has failed to correct a serious risk having been given reasonable opportunity to do so
• a statutory notice has been served and the time allowed for works to be undertaken expired, without an appeal being lodged
• a formal caution has been offered and refused or where a Formal Caution has previously been accepted for a similar offence

It is also necessary to consider public interest criteria against prosecution:

• the court is likely to impose a very small fine or nominal penalty.
• the offence was committed as a result of a genuine mistake or misunderstanding, (balanced against the seriousness of an offence).
• loss or harm suffered can be considered minor and was the result of a single incident, particularly if caused by misjudgment.
• there has been a long delay between the offence occurring and the date of the trial, unless the:
• offence is serious
• delay has been caused in part by the defendant
• offence has only recently come to light
• complexity of the offence has meant that there has been a long investigation

• a prosecution is likely to have a very bad effect on the physical or mental health of the tenant/victim, (bearing in mind the seriousness of the offence)
• the defendant is elderly or is, or was at the time of the offence, suffering from significant mental or physical ill health, unless the offence is serious or there is a real possibility it may be repeated
• the defendant has put right the defects, loss or harm that was caused, (defendants will not avoid prosecution simply because they can pay compensation)
• a willingness of the defendant to prevent a recurrence of the problem
• information may enter the public domain that the council or other public bodies may at least consider inappropriate
• it would it be a more efficient use of public funds to simply proceed to carrying out works in default, (bearing in mind the seriousness of the offence)

The decision on public interest is not simply an arithmetic calculation of pros and cons but involves officers deciding how important each factor is in the circumstances of individual cases and reaching an overall conclusion.

A decision to prosecute does not necessarily preclude the act of serving a notice or carrying out works in default as well.

The use of this power will initially be determined by the legislation under which a statutory notice was served and whether it allows for work to be carried out in default. Works in default will generally be carried out when:

• the person served with a notice fails to comply with its requirements
• there has been no appeal against the notice, or an appeal has been quashed
• it is considered more appropriate/effective than prosecution or a successful prosecution has been taken and the problem remains
• the problem may be so serious as to require quick remediation through work in default at the same time as prosecution
• the recipient of the notice has requested such and given an undertaking in writing to pay

In considering whether to carry out works in default the following criteria will be considered the:

• seriousness of the defect and the urgency of the need to remedy the situation
• ability of the council to reclaim the cost of undertaking the works, plus an administration charge, should the recipient of the notice appeal the costs
• comments of the recipient of the notice

In commissioning any works so as to carry out works in default, the councils’ standing orders governing financial matters will apply including the provisions requiring works in emergency situations.

In all cases the council will seek to recover their costs incurred in the cause plus reasonable charges for administration. Where payment is delayed compound interest will be charged. Outstanding monies owed may be recovered by placing a charge on a property.

Enforcement action taken under this Policy shall have due regard to the advice of the Council’s Solicitor and will be carried out in line with the Council’s scheme of delegation. The rights of a defendant to refuse a formal caution or appeal a statutory notice will be provided in writing to that person. The right to appeal against a prosecution will be detailed by the court’s administrators.

In carrying out this enforcement policy the council’s duly authorised officers may use any of their powers, including power of entry. If entry to a premises is initially refused following an informal notice requiring entry at least 24 hours in advance, an investigating officer may apply for a warrant for entry, using force to enter if necessary.

The council will ensure all officers carrying out enforcement duties are suitably trained.

The council may make a charge for undertaking enforcement action.