Section 13 - 18
13. Powers of entry
The Council would expect landlords/agents to make at least 3 separate attempts to make arrangements and appointments to access the property for an inspection or for works to be carried out.
These attempts should be in the tenant’s preferred format of communication. If no single method is preferred by the tenant and access is denied, arrangements for appointments must be attempted in multiple formats (text, email, letter, or phone call etc).
Property Owners will also be expected to apply for a warrant to gain entry to the property if access to the property is continuously and frequently denied.
Evidence of these attempts will be asked for, if the reason given for works being delayed is no access being provided. If this evidence is not provided it may inform the case officers’ decision when it comes to the enforcement process.
In certain circumstances, Powers of Entry into a property are provided to authorised officers in accordance with the legislation under which we operate. In general, the powers will allow an officer at any reasonable time to:
- Enter a property to carry out an inspection and gather evidence
- Take someone with them
- Take equipment or materials with them
- Take measurements, photographs or make recordings
- Leave recording equipment for later collection
- Take samples of articles or substances
- In some cases, to carry out works.
In most cases prior notice must be given to owners and to the occupiers. The notice given depends on the legislation being enforced and can range from 24 hours to 7 days.
Notice that powers of entry need to be carried out will normally be in writing or by email, but can in some circumstances be given verbally, depending on the relevant statutory provision.
The powers of entry can be enforced with a warrant. The Police will accompany officers where it is appropriate.
It is an offence to obstruct an officer in the course of their duty. Officers exercising their Power of entry will carry identification and details of their authorisation to carry out their action.
In some instances where notice may defeat the purpose of entry or where provisions of the act allow notice will not be given
Where it is judged necessary to exercise a power of entry authorised persons will provide a Notice of Powers and Rights in a standard format to the occupier.
This will include:
- whether the entry will be conducted with or without a warrant
- the powers of entry and associated powers used
- the occupier’s rights
- any compensation or complaints procedures that exist.
14. Works in default
Works in default is a power given to the Council to ensure work is carried out to a property. If the recipient of a Notice does not do the work required by the Notice, the Council may employ a contractor to enter the property and carry out the work. The Council will charge the appropriate person for the cost of the works together with the costs incurred by the Council in arranging for the work to be done.
Works in default may be carried out where for example (but not limited to this list):
- There is no prospect of the person responsible carrying out the work e.g., the landlord is absent or infirm
- There is an imminent risk to an individual’s or public health and safety e.g., overflowing sewer, blocked toilet etc
- A prosecution is not appropriate
- A prosecution has been brought (and is successful) and the works have still not been carried out
- It is appropriate to get the nuisance abated quickly.
It should be noted that carrying out the work in default does not prevent the Council from either issuing a caution or prosecuting. The Council is entitled to ensure that the work is carried out and to consider if it is appropriate to take further action.
The decision to carry out works in default is made on a case-by-case basis.
The Council will seek to recover all the costs incurred including administration costs and officer time.
15. Cautions
The statutory Code of Practice on legal matters advises that local authorities should consider issuing a caution as an alternative to a prosecution.
The purpose of the caution is:
- to deal quickly and simply with less serious offences
- to divert less serious offences away from the Courts
- to reduce the chances of repeat offences.
When the caution should be used:
A caution will be considered if the under-mentioned advice indicates that the issue of a caution is a proper, and more appropriate, alternative to the employment of statutory action, when considered in conjunction with the policy detailed elsewhere within this policy document.
A record of the caution is kept by the Council for a period of 3 years, and it may subsequently influence a decision to instigate proceedings should the offender break the law in the future. It may also be cited if the Council takes legal action for a subsequent offence.
Advice
To safeguard the suspected offender’s interests, the following conditions should be fulfilled before a caution is administered:
- there must be evidence of the suspected offender’s guilt sufficient to give realistic prospect of conviction
- the suspected offender must admit the offence
- the suspected offender must understand the significance of a caution and give an informed consent to being cautioned.
If there is insufficient evidence to consider commencing prosecution proceedings, then by implication the conditions are not satisfied for the use of a caution. It will also be inappropriate to use a caution where the suspected offender does not make a clear and reliable admission of the offence. It should be noted that there is no legal obligation for any person to accept the offer of a caution, and no pressure should be applied to the person to accept a caution.
Cautioning Officer
The designated cautioning officer is the Executive Director.
16. Prosecution
When to prosecute
The circumstances likely to warrant prosecution may be characterised by one or more of the following:
- Where the alleged offence involves a flagrant breach of the law such that occupiers/member of the public, safety or well-being is, or has been, put at risk
- Where the offence involves a failure to comply in full, or in part, with the requirements of a statutory notice
- Failure to licence an HMO, non-compliance with license conditions
- If a “warning letter,” notifying the offender that an offence has been committed has been sent within the last two years a prosecution should normally result if a further offence is committed.
Authorised officers will provide a written report relating to the outcome of an inspection or investigation to the Executive Director of the service which the officer considers, in light of relevant guidance warrants enforcement action.
Regard shall be had to the advice of the Council’s legal advisor concerning issues of law and the propriety of prosecution having regard to the Crown Prosecution Service code.
If the legal advice is that a prosecution is unlikely to succeed, this decision will ordinarily be final. Reasons for declining to proceed should be documented and due regard had to any remarks in so far as they may affect future prosecutions. This will be especially the case if the decision is based on failure to comply with statutory requirements.
When circumstances have been identified which may warrant a prosecution, all relevant evidence and information will be considered, to enable a consistent, fair, and objective decision to be made.
This includes whether a Civil Penalty is an appropriate alternative.
The Councils Civil Penalty Policy is available on request or at:
- link: Civil penalties policy
If a decision has been taken that there is enough evidence for a prosecution and that other action such as a caution (which requires an acceptance of guilt by the person concerned) would be inappropriate, the Investigating Officer prepares a case for consideration by the Council’s legal team. They will be asked to commence a prosecution if they are satisfied that there is a more than realistic prospect of conviction. In certain circumstances further investigations may need to be carried out.
In addition to being satisfied that there is sufficient evidence to provide a realistic prospect of conviction, there must be a positive decision, based on relevant criteria that it is in the public’s interest to prosecute. The Code of Crown Prosecutors, issued by the Crown Prosecution Service, provides guidance which will be considered, including relevant public interest criteria.
In deciding whether or not to prosecute, regard will be made to the guidance contained in the relevant Code of Practice. Factors to be considered will include the following:
(a) The seriousness of the alleged offence:
- The risk of harm to an individual’s or public health and safety
- Identifiable victims
- Failure to comply with a statutory Notice served for a significant breach of legislation
- Disregard of health or safety for financial reward.
(b) The previous history of the party concerned:
- Offences following a history of similar offences
- Failure to respond positively to past warnings
- Failure to comply with statutory Notices.
(c) The ability of any important witnesses and their willingness to co-operate
(d) The willingness of the party concerned to prevent a recurrence of the problem
(e) The probable public benefit of a prosecution and the importance of the case (e.g., whether it might establish a legal precedent)
As indicated above, advice on the public interest is contained in the Code for Crown Prosecutors. The general advice is “the graver the offence, the less likelihood there will be that the public interest will allow anything other than a prosecution.”
(f) Any explanation offered by the company or the suspected offender
LACORS recommends that suspected offenders are invited to offer an explanation before prosecution decisions.
(g) The defendant is elderly, suffering from mental or physical ill health, etc.
Investigations into alleged breaches of legislation will comply with the requirements of relevant legislation including, but not limited to:
- The Human Rights Act 1998
- The Regulation of Investigatory Powers Act 2000
- The Police and Criminal Evidence Act 1984, and Codes of Practice
- The Criminal Procedure and Investigation Act 1996
- The Equalities Act 2010
17. Management Orders (Housing Act 2004)
HMO Management Orders
The Council’s use of HMO Management Orders will be in line with government guidance. Further information about management orders can be downloaded:
Empty Dwelling Management Orders (EDMOs)
The Council’s use of EDMOs will be in line with government guidance (this document can be downloaded:
18. Serving Enforcement Notices / Orders
In circumstances where informal action has failed or is not appropriate to the circumstances, a formal notice or order may be served. This will usually be accompanied by a charge and an imposed timescale for completion of the works stated.
We will clearly state on any notice or order what the problems are. We will give options for remedy (where appropriate) and explain what will happen if the notice or order is not complied with.
Failure to comply with a statutory notice or order, depending on the circumstances of the case, may result in the instigation of legal action, Civil Penalties and/or works in default.
The service of statutory notices and the making of orders may be carried out in parallel with other action, detailed elsewhere in this policy. For example, we may serve an Improvement Notice for works to an HMO whilst investigating non-compliance with mandatory licensing or bad management at the same property.
Landlords or owners, who fail to comply with their obligations, requiring formal action by the Council, may be subject to targeted interventions on other properties they own.
Where requested, when a person is considering an appeal, or where an appeal has been made, the Officer may meet with them to discuss the case to save on potential costs and to try to reach an agreement outside of the appeal process.