HHSRS Possible Courses of Action and procedure

If a local authority finds a category 1 hazard (the more severe hazard) in a property, they must take some form of action. If they find a category 2 hazard, they may take action. The available courses of action are as follows:

Category 1 Hazards

• Serve an Improvement notice under section 11 Housing Act 2004
• Issue a prohibition order under section 20 Housing Act 2004
• Serve a hazard awareness notice under section 28 Housing Act 2004
• Commence emergency remedial action under section 40 Housing Act 2004
• Issue an emergency prohibition order under section 43 Housing Act 2004

In extreme cases, they may also issue a demolition order or slum clearance

Category 2 Hazards

• Serve an Improvement notice under section 12 Housing Act 2004
• Issue a prohibition order under section 21 Housing Act 2004
• Serve a hazard awareness notice under section 29 Housing Act 2004

Note: Next to each option is the section under which it is served. For example, an improvement notice based upon a category 2 hazard is served under section 12. If an improvement notice is served under section 11 in relation to a category 2 hazard, this error will be fatal to the notice. (most authorities when serving improvement notices now quote both sections to get round this problem).

Service of the notice or order

All notices or orders must be served in the same way and on the same persons. When a property has an HMO licence, the notice or order must be served on the licence holder. 

Where there is no licence, service must be on the person having control of the dwelling, the owner, or the person managing the flat, depending on the specific circumstances and, in the authority's opinion, the person who should take action specified in the notice. 

A ground of appeal is available if you feel you are not the correct person to be served, and you can name the appropriate person. 

Service of "copies" of the notice or order must also be sent to any other person who, in their knowledge, has a relevant interest in any specified premises and is an occupier of any such premises. The copy must be sent within seven days of the owner's first service, etc. "Relevant interest" includes freeholders, mortgagees etc. 

Suppose a local authority fails to serve someone with a relevant interest (for example bank or building society with a mortgage). In that case, the notice or order will be invalid [Weingreen Ltd. (Appellant) and Lichfield District Council (Respondent)]. 

When deciding whom to serve notice, the local housing authority must take reasonable steps to identify the person or persons [s.246 HA 2004]. Section 233 of the Local Government Act 1972 (service of notices by local authorities) applies to the service of documents for any purposes of the Housing Act 2004.

Letter before action

In reality, most local authorities will write to the landlord (or owner occupier) before any action is taken, although there is no requirement. 

Because a letter in this manner is not explicitly provided for within the Housing Act 2004, any such letter will be unenforceable. 

However, landlords are well advised to take serious note of any such letters and consider the works seriously. If the landlord does nothing, the local authority may then serve one of the notices or orders mentioned above, and they may charge for such production and service.

If you have a genuine grievance regarding any contents of the letter, you should contact the local authority and try to negotiate the works specified.

Improvement Notice

This is the most common notice to be served if a hazard is found.

If a landlord receives this type of notice, the landlord needs to act quickly.

Failure to comply with the notice is a criminal offence and can be accompanied by significant fines (Usually far more than the cost of the works). In addition, the local authority can carry out the work themselves in certain circumstances and bill the appropriate person. 

A landlord may apply to the local authority for a variation or revocation of the notice. For example, if particular works are required but the landlord suggests achieving the same remedy differently, the landlord should contact the local authority requesting the appropriate variation to the notice. 

The variation request may include seeking additional time to comply with the notice. 

A landlord may appeal the notice (including the remedial works required in the notice or that a better course of action was available) within 21 days of the date of the notice. An appeal is to the Residential Property Tribunal.

If the landlord has requested the notice be revoked or varied, the local authority must serve a notice either refusing the variation or refusing to revoke it. In this case, a landlord may appeal the notice refusing to vary or revoke within 28 days from the date of that notice (not within 28 days from the date of the original improvement notice). 

An improvement notice becomes operative 21 days after the date of the notice unless it is appealed. If appealed, it will become operative once the appeal process has ended (unless, of course, it is quashed or revoked by the tribunal). 

An improvement notice may allow the operation of the notice to be suspended until a time, or the occurrence of an event, specified in the notice. 

Contents of the notice 

The notice must specify the hazard (or each of the hazards) to which it relates—

• whether the notice is served under section 11 or 12 (category 1 or category 2 hazards),
• the nature of the hazard and the residential premises on which it exists,
• the deficiency giving rise to the hazard,
• the premises about which remedial action is to be taken in respect of the hazard and the nature of that remedial action,
• the date when the remedial action is to be started, and
• the period within which the remedial action is to be completed or the periods within which each part is to be completed.

The notice may not require any remedial action to be started earlier than the 28th day after the notice is served [s.13(3) Housing Act 2004]. When calculating the date, the notice must not require work until at least 28 days after the notice was deemed 'served' and not from the date of the notice (so, as a rule, a couple of days must be added to the 28 days to allow for service) [Isaac Odeniran v Southend on Sea BC [2013] EWHC 3888 (Admin)]. 

The notice must also contain information about—

• the right to appeal against the decision, and
• the period within which an appeal may be made.

When reading tribunal decisions concerning procedural issues, it seems that if any of the above is missing, the tribunal might find the notice invalid and quash it.

Hazard Awareness Notice

If a landlord receives a hazard awareness notice, they should thank his lucky stars! 

This notice cannot be enforced, and no crime is committed for failure to comply with it, but there is no appeal available. 

The contents of the notice are the same as the improvement notice above, and the standard service provisions apply. 

Because the occupier will receive a copy of the notice, just because the local authority can't enforce the notice, the landlord will now be put on notice regarding possible repairs.

If a landlord ignores the notice, a tenant may have grounds against a landlord for failing to comply with his repairing duties under section 11 Landlord and Tenant Act 1985. 

It is also worthy of note that a local authority may change its mind and issue an improvement notice or some other order in respect of all or some of the works specified (or additional works).

Prohibition Order

A prohibition order imposes prohibitions on using any premises specified in the order. The order may prohibit the use of the following premises—

• if the residential premises on which the hazard exists are a dwelling or HMO which is not a flat, it may prohibit the use of the dwelling or HMO;
• if those premises are one or more flats, it may prohibit the use of the building containing the flat or flats (or any part of the building) or any external common parts;
• if those premises are the common parts of a building containing one or more apartments, it may prohibit the use of the building (or any part of the building) or any external common parts

Without good reason, the notice may not prohibit the use of any part of the building or its external common parts that are not included in any residential premises on which the hazard exists. 

Contents of the order 

The order must specify the hazard (or each of the hazards) to which it relates—

• whether the order is made under section 20 or 21 (category 1 or category 2 hazard),
• the nature of the hazard concerned and the residential premises on which it exists,
• the deficiency giving rise to the hazard,
• the premises to which the order imposes prohibitions, and
• any remedial action the authority considers would, if taken concerning the hazard, result in their revoking the order.

The order must also contain information about—

• the right to appeal against the order, and
• the period within which an appeal may be made,
• and specify the date on which the order is made.

Any such prohibition may prohibit the use of any specified premises, or any part of those premises, either—

• for all purposes, or
• for any particular purpose,

The prohibition in the order may, in particular, relate to—

• occupation of the premises or part by more than a particular number of households or persons; or
• occupation of the premises or part by particular descriptions of persons.

A person may seek approval from the local authority to use the premises in a particular manner (which may breach the prohibition order), and the local authority must not unreasonably refuse consent. If they refuse, they must serve a notice giving reasons for the refusal. 

A prohibition order may be suspended but otherwise generally becomes operative at the end of 28 days from the date of the order. Therefore, a landlord has 28 days to remedy any required work, and the order can be revoked before it becomes operative. 

If the order is appealed, it does not become operative until the appeal process has ended (unless it is revoked or quashed). 

For the avoidance of doubt, this means the property may be used for up to 28 days because the order does not technically start until 28 days after the date of the order. 

A prohibition order may be appealed to the Residential Property Tribunal within 28 days. This time limit is the same for an appeal against a request to use premises in a particular manner and the authority has refused. The appeal may, in particular, relate to a better course of action available for example, you could argue an improvement notice was a better course of action. 

Compensation 

When a prohibition order becomes operative, and if the order imposes about the whole of any premises a prohibition on their use for all purposes other than any purpose approved by the authority, then the local authority shall pay to every owner of the premises an amount which is the diminution in the compulsory purchase value of the owner's interest in the premises as a result of the coming into operation of the prohibition order. [s.584A Housing Act 1985] That amount—

• shall be determined as at the date of the coming into operation or making of the order in question; and
• shall be determined (in default of agreement) as if it were compensation payable in respect of the compulsory purchase of the interest in question and shall be dealt with accordingly.

"Compulsory purchase value", in relation to an owner's interest in premises, means the compensation which would be payable in respect of the compulsory purchase of that interest if it fell to be assessed under the Land Compensation Act 1961. However, if, when the prohibition order is revoked, the person to whom the payment was made has the same interest in the premises as he had at the time the payment was made, they shall, on demand, repay to the authority the amount of the payment. [s.584B Housing Act 1985]

Emergency Prohibition Order

An "emergency" prohibition order (EPO) may only be served in the following circumstances: If—

• the local housing authority is satisfied that a category 1 hazard exists on any residential premises, and
• they are further satisfied that the hazard involves an imminent risk of serious harm to the health or safety of any of the occupiers of those or any other residential premises, and
• no management order is in force

Notably, the requirement of "imminent risk of serious harm" is related to the health or safety of the actual occupiers despite the assessment deciding if there is a hazard based on a "relevant" occupier. 

For example, if an assessment finds a category 1 hazard based on fire, this assessment must be based on an occupier of 60 years or over. However, because this age group may be at imminent risk, the local authority must consider whether the actual occupiers are at imminent risk. 

The definitions of "imminent risk" and "serious harm" have been helpfully explained in the Upper Tribunal (Lands Chamber) decision Bolton Metropolitan Borough Council v Amratlal Patel [2010] UKUT 334 (LC) HA/6/2009 

"Imminent risk" is essentially established from the likelihood element of the hazard calculation (highlights added):

“... The adjective “imminent” is obviously not there for the purpose of suggesting that the risk must be one that does not at present exist but is likely to arise soon. It is perhaps in the nature of a transferred epithet qualifying “serious harm” – the risk must be one of serious harm being suffered soon. The degree of risk (or the likelihood, or the chance) that a state of affairs may give rise to an incidence of harm is necessarily time-related. That is why the Regulations require an inspector to assess the likelihood of harm being suffered within a specified period. The use of “imminent” implies, in my judgment, a good chance that the harm will be suffered in the near future. ...” [para 43]

Serious harm means anything contained (but not limited to) in the hierarchy of harm contained in the HHSRSR2005, excluding class 4 (moderate harm).

... As far as “serious harm” is concerned, it said that the Act did not offer any guidance as to what sort of harm constitutes “serious harm”. That is correct, but the Regulations do identify a hierarchy of harm– extreme harm (Class I), severe harm (Class II), serious harm (Class III) and moderate harm (Class IV). Thus, for the purposes of the Regulations serious harm excludes moderate harm, and, although there is no express provision requiring the Regulations to identify what harm is serious harm for the purposes of section 40, it is, I think, implicit in section 2 that the Regulations will, or at least may, include this identification. Certainly, it seems to me, an authority could not be criticised if they treated as serious harm any harm falling within Classes I, II and III (excluding, therefore, Class IV), and in my view it would be right for them to do so. [para 41]

Because an EPO becomes operative immediately, any breach of the order is a criminal offence and may be accompanied by hefty fines. 

The service, contents, appeal procedure and time limits for an appeal are the same as a prohibition order, except that notice of the order must be within seven days. 

The tribunal can revoke the order from the time it was served technically, meaning it never existed, if an appeal is successful. 

Compensation When an emergency prohibition order becomes operative (which is immediate), and if the order imposes about the whole of any premises a prohibition on their use for all purposes other than any purpose approved by the authority, then the local authority shall pay to every owner of the premises an amount which is the diminution in the compulsory purchase value of the owner's interest in the premises as a result of the coming into operation of the prohibition order. [s.584A Housing Act 1985]. That amount—

• shall be determined as at the date of the coming into operation or making of the order in question; and
• shall be determined (in default of agreement) as if it were compensation payable in respect of the compulsory purchase of the interest in question and shall be dealt with accordingly.

"Compulsory purchase value", in relation to an owner's interest in premises, means the compensation which would be payable in respect of the compulsory purchase of that interest if it fell to be assessed under the Land Compensation Act 1961. However, if, when the prohibition order is revoked, the person to whom the payment was made has the same interest in the premises as he had at the time the payment was made, he shall, on demand, repay to the authority the amount of the payment. [s.584B Housing Act 1985]

Emergency Remedial Action

Same as an emergency prohibition order above, emergency remedial action is only available if there is a category 1 hazard and if there is an imminent risk of serious harm to the actual occupiers. 

"Emergency remedial action" means such remedial action in respect of the hazard as the authority considers it immediately necessary to remove the imminent risk of serious harm. 

The local authority must notify the occupiers that they intend to enter to carry out the works. Within seven days of commencing work, notices must be served on owners and relevant persons per standard notice requirements. 

The local authority may obtain a court order to gain entry if an occupier refuses entry. 

The local authority's costs are payable by the appropriate person and become a charge on the dwelling (or building). 

The same appeal procedure applies to an emergency prohibition order (i.e. within 28 days etc.)