The world of local authority housing standards enforcement is changing, the majority is now risk assessment based and you may struggle to read up, get trained and acquire the experience necessary to competently implement Housing Standards legislation. The days of plentiful free advice and light-touch enforcement by Council’s is ending, and housing standards law is becoming ever more complex. The sanctions for non-compliance are greater than ever with the implementation of the Housing & Planning Act 2016 and Councils have a legal duty (no discretion) to take prompt enforcement action against those in control of rented accommodation where significant hazards are identified. This usually starts in the form of an enforcement Notice or Order for which most Councils charge between £200 and £500. Fail to comply with these directions and you might also face an unlimited fine if prosecuted, or a Civil Penalty of up to £30,000 (in addition to legal costs and the costs of the Council undertaking the work in your default).
But its not just the Council that can instigate action against a landlord. From March 2019 the Homes (Fitness for Human Habitation) Act 2018 came into force, meaning tenants now have a fast track approach to the Courts to directly secure both repairs and unlimited financial compensation for poor or unsafe housing conditions. Better to get your properties professionally inspected by me before a tenant tries to make a claim !
If you’re an HMO Landlord, things can get even tougher. If you fail to comply with the HMO Management Regulations, install inadequate fire precautions, or identify that your property requires an HMO Licence as prescribed by local or national requirements, the fines can be unlimited. Can you really afford to getting this wrong ?
Declining financial resources for Council’s are also resulting in a reduction in the ‘educational approaches’ landlords use to benefit from. The new ‘Civil Penalty’ charge regime means Councils are stepping up enforcement in all areas, as they can now keep the enforcement charges they levy, and use them to fund further enforcement activities. This is leading to a substantial increase in the number of housing standards enforcement staff employed by Councils.
Why can’t I just call the Local Council for free Advice?
You can try and I would always advocate you should start by doing this, but they can’t always provide the help you need. Most Councils won’t come out to just give advice, as they exist to serve the tenant’s interests, NOT the landlord’s. Councils are therefore very reluctant to assist with safety advice, as there is clear conflict of interest. You might call them out with the intention of informal advice, but they have a legal duty to take enforcement action if they identify significant Hazards once they have visited. Staff competencies, limited resources, conflicting priorities and enforcement approaches vary significantly between Council’s. You might strike lucky and get quality advice and a light touch enforcement approach. However, due to limited staff resources, smaller local authorities (through necessity) rarely specialise in housing standards work and may not be able to give the best advice (lacking the relevant experience). Further, even larger City Councils with dedicated housing standards teams can’t always provide the advice and inspection services landlords want in order to ensure compliance BEFORE a complaint is received. Remember, they are duty bound to take enforcement action upon discovering a significant hazard, so I would always advise a landlord to get their property professionally inspected by me, before the Council do in response to a complaint..
But disrepair and poor safety is easy to spot, right?
While some disrepair and safety issues might be obvious to anyone looking around a property, the true skill of a professional housing inspector is the knowledge and experience to know what should be present, but isn’t. This is particularly true when it comes to fire safety, fire detection, fire containment and escape, but is also true of many other key Hazards. This is why you should seek professional input. The Housing Health & Safety Rating System (HHSRS) identifies 29 Hazards that might be present in rental properties. A detailed knowledge of these hazards; their likelihood of causing harm to tenants, and the risk assessment process that underpins the system, its application and enforcement, are skills that most landlords struggle to gain. The design, layout, age, construction and management of the property also interplay to affect the application of the risk assessment, as does consideration of the tenant group in occupation. Further, larger HMO’s and blocks of converted flats definitely need professional input. Regrettably, very few professional letting agents have staff with significant training or experience in any of these matters. Indeed, even some Consultants have little or no Local Government enforcement background, so always ask for their credentials when selecting one!
But I have Planning Permission and Building Control Approval !
Remember, even if you have recently gained the appropriate Planning Permissions and Building Control consents for your private rented accommodation, this does not automatically mean your development will be compliant with Housing Standards Legislation. In particular, Planning Laws and especially Permitted Development Rights do not cover safety issues at all, and the Building Regulations do not fully consider tenure or HMO use. This may leave fire safety provisions, natural light, ventilation, overcrowding and a host of other safety considerations under specified for the rental market. In short, Planning and Building Control consents do not equate housing standards compliance, and I have dealt with numerous developments signed off by Planning & Building Control that retained significant threats to health and safety.
The risk of getting caught out is low, right ?
Apart from the very real prospect that any tenant can easily request a safety inspection from their Local Authority at any time that might expose poor compliance with Housing Standards Legislation, the world of ‘no win no fee’ litigation has arrived. This coupled with the new Homes (Fitness for Human Habitation) Act regrettably means that some tenants will proactively target landlords in order to pursue claims. Particularly if the claim is ‘free’ to make, and they think the landlord has no record or audit of safety conditions prior to letting. This is why it makes good sense to get a safety audit prior to letting, even if it is just to provide a ‘proof-positive’ and peace of mind. Note; Councils and Fire Services are now actively changing their roles from educational to a proactive enforcement approach. These agencies now routinely share intelligence with the Police, Social Care Staff, the Fire Service and other Council’s, with the net result that inappropriate housing standards rarely go unchallenged for long. If you get caught breaking the rules, you may be labeled a ‘rogue landlord’, and face a banning order and/or inclusion on a national rogue landlord database.
I’m not worried, I use a professional high-street Letting Agent for my properties ?
You should be, as that’s not enough. The letting agent industry has never been heavily regulated and almost anyone can set one up with no formal qualifications. While some letting agents do an excellent job of advertising property and setting up the tenancy, most have little or no training in Housing Standards legislation, its application or assessment. Their lack of knowledge of even the basic legislation is often staggering. Remember, their commercial imperative is to let the property and collect the rent. The liability to provide safe accommodation usually remains squarely with the landlord as the owner of the property (not the letting agent) so the agent is relatively safe from most enforcement action, which is why they are not normally bothered about it. This can leave a landlord very exposed. Letting Agents should however remember they are often liable in law for the management of HMO’s, so perspective landlords should agents what they know about the HMO law, management and licensing. Do not assume that even the big high street names and town center Agents know enough about Housing Standards requirements, and that this will protect you from Council, Fire Service or HSE enforcement.
Do I need a Fire Safety Risk Assessment (FSRA) for my properties ?
Usually yes, and it is an absolute legal requirement for you to have one and for it to be documented and undertaken by a ‘competent person’ where you are the ‘responsible person’ for an HMO that requires an HMO Licence. Remember, the ‘responsible person’ is usual the freeholder (landlord), but might be the Managing Agent if the landlord is absent or not a UK resident. I can undertake a FSRA for you and provide the Risk Assessment document, so you are compliant with the Regulatory Reform (Fire Safety) Order 2005. Are you or your Agent really ‘competent’ to undertake a FSRA ?