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Appendix 1 – Legislation Summary

This section lists the legislation commonly enforced by the Private Sector Housing service and outlines the provisions. It is not an exhaustive list and is not a full statement of the law – it is simply a summary.

The Council has a range of enforcement powers to address hazards that exist in residential premises including:

  • Chapters 2 and 3 of the Housing Act 2004
  • Improvement Notices – section 11 and 12 Housing Act 2004
  • Prohibition Orders – section 20 and 21 Housing Act 2004
  • Hazard Awareness Notices – section 28 Housing Act 2004
  • Emergency Remedial Action – section 40 Housing Act 2004
  • Emergency Prohibition Order – section 43 Housing Act 2004
  • Demolition Order – section 265 Housing Act 1985 as amended
  • Clearance Areas – section 289 Housing Act 1985 as amended.

The first four options are available for both Category 1 and Category 2 hazards. The last four are not available for Category 2 hazards:

Category 1 hazards are those which pose the highest risk of injury or harm. Category 2 hazards are those with lower levels of risk, but still can be significant.
Further information and detailed guidance about the Housing Health and Safety Rating System, including Category 1 and 2 hazards can be downloaded via the following:

The action the Council chooses to take will be the most appropriate course of action in relation to the hazard(s) identified at a property.

Officers considering enforcement action under Part 1 of Housing Act 2004 will have due regard to the ‘Housing Health and Safety Rating System: Enforcement Guidance. Housing Act 2004 (ODPM, February 2006)’.

Improvement Notices – section 11 and 12 Housing Act 2004

An Improvement Notice under section 11 or 12 Housing Act 2004 can be served in response to a Category 1 or Category 2 hazard. Under section 11, action must as a minimum remove the Category 1 hazard but may extend beyond this.

Should the notice not be complied with, the Council may carry out the works in default and recharge the person upon whom it was served. Not complying with a notice is a criminal offence and the Council may choose to prosecute the person who received the notice if they failed to comply with it.

Normally, an Improvement Notice becomes operative 21 days after service of the notice. However, the Council may suspend the action specified in an improvement notice. The notice may specify an event that triggers the end of the suspension, such as non-compliance with an undertaking given to the authority, or a change of occupancy. Suspension may be appropriate where the hazard is not sufficiently minor to be addressed by a Hazard Awareness Notice, but the current occupiers are not members of a vulnerable group. However, in this kind of circumstance, officers will need to judge whether a risk exists that will warrant a programme of improvement over a more relaxed timescale.

Prohibition Orders under section 20 or 21 Housing Act 2004

A prohibition order under section 20 or 21 Housing Act 2004 may be served in response to a Category 1 or Category 2 hazard. It may prohibit the use of part or all of the premises for some or all purposes, or occupation by particular numbers or descriptions of people.

A prohibition order must specify the nature of the hazard, the deficiency giving rise to the hazard, the premises or part of the premises to which prohibitions are imposed and any remedial action that would result in the order being revoked. The order must also contain information about the right to appeal.

Using premises or permitting premises to be used, knowing that a prohibition order has become operative is a criminal offence and the Council is able to prosecute for non-compliance.

Normally a prohibition order becomes operative 28 days after service. However, the Council may suspend the action specified in the order and can specify an event that triggers the end of the suspension.

Hazard Awareness Notices under section 28 Housing Act 2004

In certain circumstances, the Council may determine that advisory action only is needed in respect of a hazard and may serve a Hazard Awareness Notice. A Hazard Awareness Notice under section 29 of the Act may be a reasonable response to a less serious hazard, where the Council wishes to draw attention to the desirability of remedial action.

A Hazard Awareness Notice must specify the nature of the hazard, the deficiency giving rise to the hazard and details of any remedial action that the Council considers would be practicable and appropriate to take.

This procedure does not require further action by the person served with the notice and therefore there is no appeal provision.

The service of a Hazard Awareness Notice does not prevent further formal action, should an unacceptable hazard remain. This also provides a way of recording and monitoring the action needed and can provide evidence to support further enforcement action if needed should the remedial works not be carried out or be carried out inadequately.

The Council will use the Hazard Awareness Notice procedure where an owner or landlord has agreed to take remedial action and officers are confident the work will be done in reasonable time.

Emergency Remedial Action under section 40 Housing Act 2004

Section 40 of the Housing Act 2004 empowers the Council to take emergency remedial action against Category 1 hazards which present an imminent risk of serious harm to the occupier. The action will consist of whatever remedial action the Council considers necessary to remove an imminent risk or serious harm.

Emergency Prohibition Orders under section 43 Housing Act 2004

Section 43 of the Housing Act 2004 empowers the Council to make an Emergency Prohibition Order where Category 1 hazards present an imminent risk of serious harm to the occupiers. The order may prohibit the use of all or any part of a premise with immediate effect.

The Council will serve an Emergency Prohibition Orders only where it is considered essential for the safety of the occupiers.

Demolition Orders under part 9 of the Housing Act 1985 (as amended)

Demolition Orders are available under part 9 of the Housing Act 1985 (as amended) as a possible response to a Category 1 hazard. A Demolition Order requires the property to be vacated within a specified time and subsequently demolished. It is a criminal offence to allow a premise to be occupied after a Demolition Order has come into effect. Should the building not be demolished, the Council can demolish it and recharge the person upon whom the notice was served.

Clearance Areas under section 289 Housing Act 1985 (as amended)

A clearance area can be declared if the Council is satisfied that each of the residential buildings in the area contains one or more Category 1 hazards (or that the buildings are dangerous or harmful to the health or safety of the occupiers as a result of their bad arrangement or the narrowness or bad arrangement of the streets); and any other buildings in the area are dangerous or harmful to the inhabitants. The Council is required to consult on the declaration of a clearance area and publish its intentions. Full Council approval would also be required.

Power to Charge for Enforcement Action

Section 49 of the Housing Act 2004 allows the Council to make a reasonable charge as a means of recovering costs incurred in serving an Improvement Notice, making a Prohibition Order, serving a Hazard Awareness Notice, taking emergency remedial action, making an Emergency Prohibition Order, or making a Demolition Order. The costs recoverable relate to officer time and other expenses incurred in connection with the inspection of the premises, subsequent consideration of any action to be taken, and the service of notices.

The Council will seek to recover the costs of taking enforcement action in all cases were permitted to do so under the relevant legislation. The Council will apply its standard charge for the recovery of costs, which will be reviewed annually.

Houses in Multiple Occupation (HMOs)

The Council has a statutory duty and powers to ensure adequate standards in HMOs are met and maintained.

The Housing Act 2004 introduced a mandatory scheme to licence HMOs. The mandatory licensing scheme applies only to larger high-risk HMOs occupied by five or more people, comprising two or more households and there is sharing of a basic amenity (such as kitchen or bathroom).

The HMO licensing regime provides procedures to assess the fitness of a person to be a licence holder, potential management arrangements of the premises and suitability of the property for the number of occupants, including the provision of relevant and adequate equipment and facilities at the property.

It is a criminal offence if a person controlling or managing an HMO does not have the required licence. Breaking any condition of a licence is also an offence.

Where housing benefit has been paid in respect of an unlicensed HMO, the Council may apply to the First Tier Tribunal for an order to recover a sum equivalent to the housing benefit paid.

Licensable HMOs without planning permission will be dealt with according to the HMO licensing/Planning Protocol: 

The Housing Act 2004 also provides powers to the Local Authority to take over the management of unlicensed or problem HMOs, with a view to protecting occupiers and those in the vicinity and, where possible getting properties licensed and properly managed. This is achieved by way of Management Orders.

Interim Management Orders (IMO)

The Council must make an IMO in respect of a licensable HMO which is not licensed if it is satisfied that there is no reasonable prospect of the property being licensed in the near future or it is necessary to protect the health, safety, or welfare of occupiers of the property or properties in the vicinity.

An IMO is in force for a maximum of 12 months and allows the Council to manage the property with all the rights of a landlord and to collect rent and expend it on work to the property.

An IMO ceases to have effect once a licence is granted. There are provisions to vary, evoke and appeal against an IMO.

Final Management Order (FMO)

The Council must make a FMO where, on expiry of an IMO, the property requires to be licensed but the Council considers it is still unable to grant a licence.

A FMO is similar to an IMO in that the Council continues to manage the property with all the rights of the landlord, but they must be reviewed from time to time.

As with IMOs, there are provisions for varying, revoking, and appealing the making of an FMO.

Management Regulations

Management Regulations made under the Housing Act 2004 impose duties on landlords and managers of HMOs (whether or not subject to licensing). There are no notice serving powers under the Management Regulations, but the Council can prosecute for breach of the regulations.

Overcrowding Notices

Overcrowding Notices may apply to HMOs that are not required to be licensed. The effect of an Overcrowding Notice is that the person served must comply with the terms of the notice and if they fail to do so they commit an offence for which the Council can prosecute.

An Overcrowding Notice must either prohibit new residents or limit the number of people sleeping in the HMO.

Empty Properties

The Housing Act 2004 introduced Empty Dwelling Management Orders (EDMO) in order to unlock the potential of empty houses and to get them back into use as houses as quickly as possible. EDMOs are designed as a backup to voluntary leasing arrangements with a Registered Provider and an alternative to enforcement action under other legislation.

There are two types or order, Interim EDMO, and Final EDMO. EDMO allow the Council to secure the occupation and proper management of privately owned houses and flats that have been unoccupied for a specified period (at least six months).

Interim EDMOs

In order to make an Interim EDMO the Council must apply for authorisation from First Tier Tribunal. The property must have been empty for at least six months and there must be a reasonable prospect that the property will become occupied if an interim EDMO is made.

An Interim EDMO comes into force as soon as it has been authorised and can last for 12 months. Once an Interim EDMO is in force, the Council must take steps to secure occupation and proper management of the property. However, the Council may only grant a tenancy with the consent of the owner.

Final EDMO

The Council may make a Final EDMO to replace an Interim EDMO or a previous Final EDMO if the Council considers the property would otherwise remain unoccupied.

The Council does not need to obtain authorisation from the RPT to make a Final EDMO. Once a Final EDMO is in force, the Council must review its operation and take steps to secure occupation of the dwelling.

Subject to any appeal, a Final EDMO comes into force no earlier than the day after the period for appealing has expired and last for the period specified in that order, which can be up to seven years.

Other legislative provisions

The Environmental Health Residential Team is also responsible for enforcing the provision of other legislation including but not limited to:

  • Public Health Acts 1936
  • Building Act 1984
  • Environmental Protection Act 1990 Statutory Nuisance related to domestic premises.
  • Prevention of Damage by Pests Act 1949
  • Redress Schemes for Lettings Agency work and Property Management Work (Requirement to Belong to a Scheme) (England) Regulations 2014
  • Smoke and Carbon Monoxide Alarm (England) Regulations 2015
  • The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020
  • The Town and Country Planning Act 1990
  • The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015

Standard charge for notices

A standard charge of £500 be adopted to recover administrative and other costs incurred in connection with enforcement action under Part 1 of the Housing Act 2004. This will be reviewed periodically.

Please note where additional expenses are incurred as part of the inspection, these may be included and will be itemised in any notice served.

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