Dispute Resolution

Enforcement Action Against Landlords image

Enforcement Action Against Landlords

7th May 2015
  1. Introduction

The Housing Act 2004 places a statutory duty upon local authorities to keep housing conditions under review.  Local authorities use the Housing Health and Safety Rating System (“HHSRS”) to assess the condition of such residential premises.  It is a risk assessment type system, which leads to a hazard(s) being given a numerical score based upon a statutory formula which then correlates to a banding system.  A hazard which falls within Bands A, B or C is a Category 1 hazard, and a hazard falling within Bands D to J is a Category 2 hazard.  When a Category 1 hazard is found then the local authority is under a duty to take enforcement action, whilst the local authority has a discretion to take action regarding a Category 2 hazard.

  1. Determining what action should be taken

In my experience a local authority will usually have a policy or procedure that it follows in order to try and be consistent and fair in determining what if any action is to be taken once it has been established that a hazard(s) exists.

Usually a Housing Inspector will undertake a full survey of a property to identify the nature and extent of all hazards present.  Following this survey the authority will then write to the landlord to inform him/her of the hazards identified and of any work recommended.

If the hazard(s) provides a non-imminent risk to the health and safety to the occupants, there is no history of non-compliance by the landlord, the tenant(s) is not particularly vulnerable and the landlord can agree a timetable of agreed work then usually the local authority will allow the landlord a reasonable period of time within which to remedy the hazard(s) before taking an enforcement option (see below).  If there is an imminent risk to the health and safety of the occupant, there are vulnerable occupants, a landlord with a history of non-compliance, a landlord refusing to agree or act upon a reasonable timetable of remedial work, then these are all factors which might persuade the authority to go straight to an enforcement option rather than by trying to get the landlord to resolve matters through correspondence.

If a landlord is given a chance to remedy the hazard(s) before an enforcement option is taken, then the local authority will also usually monitor the progress of the works to ensure that they are completed properly and in a timely manner.  If there are any delays or the work is unacceptable, the local authority may then decide to go to an enforcement option after all.

  1. Enforcement Options

Action                                           Category 1                   Category 2

No Action                                                No                                Yes

Hazard Awareness Notice                    Yes                               Yes

Improvement Notice                            Yes                               Yes

Prohibition Order                                  Yes                               Yes

Emergency Remedial Action                Yes                               No

Emergency Prohibition Order             Yes                                No

Demolition Order                                   Yes    In certain circumstances

Clearance Order                                     Yes    In certain circumstances

The local authority cannot take more than one of these actions available at any one time to address the hazard (unless it is an emergency action) but can vary the action required if one of the actions taken has not proved successful.

a) Hazard Awareness Notice

This is not a notice actually requiring works, but formally recording one or more of the hazards that exist.  In effect this is just putting the landlord on notice of a hazard that may need to be remedied in the future.

b) Improvement Notice

This is a notice requiring remedial action to mitigate one or more hazards.  The action must as a minimum remove the Category 1 hazard, but may extend beyond this and the notice may specify timescales for completion.  This notice applies where there is no imminent risk of serious harm, where the works required are practicable and there is a vulnerable occupier present.

c) Prohibition Order

This prohibits the use of all or part of the premises, may allow agreed use, and may specify occupancy numbers.

d) Emergency Remedial Action

There must be an imminent risk of serious harm involving a Category 1 hazard.  This is limited to the works immediately necessary to minimise the imminent risk.

e) Emergency Prohibition Order

There must be an imminent risk of serious harm involving a Category 1 hazard.  This prohibits the use of all or part of the premises and has immediate effect.  This is likely to be used where Emergency Remedial Action is not practicable.

f) Demolition Order

This is usually very rare as it is only appropriate where works are impracticable and/or excess costs are involved and demolition would not have an adverse effect on neighbouring properties.

g) Clearance Area

This is extremely unlikely to be applied to single dwellings locally.

  1. Factors to be taken into account when choosing an enforcement option

Again I would have thought that the local authority would have a list of factors in its policy, but I would expect that they would include some or all of the following:-

  • The significant of the hazard(s), i.e. the rating score and Band.
  • The extent and location of the hazard(s) within the premises.
  • The range of hazard(s) identified within the premises.
  • Whether the local authority is under a duty or has a discretion to take formal action in respect of the hazard(s) identified.
  • The hazard(s) is not considered sufficiently serious to warrant a local land charge.
  • The level of risk posed to the current occupiers, including whether there is an imminent risk of serious harm.
  • The views and intentions of the occupier.
  • The risk of social exclusion of a vulnerable group or individual.
  • The availability of alternative accommodation.
  • The views and intentions of the landlord
  • The compliance record of the landlord.
  • Whether the chosen option is practical, reasonable and proportionate in reducing the hazard(s) to an acceptable level.
  • The building is listed or located within a conservation area.
  • The potential for alternative use of the premises or site.
  • The physical impact on adjoining buildings.
  • The longer term viability of the premises and area.
  • The impact on the local community and on the appearance of the local area.
  • The extent of hazard(s) within neighbouring premises and the general condition of the neighbourhood.
  • Availability of alternative housing for current occupants.
  • Likely demand for accommodation if the hazard(s) were remedied.
  • Prospective use of the site if cleared.

In general the local authority should target its enforcement action at more significant risks and of course that action should be proportionate.

In respect of Category 2 hazard(s) the local authority might exercise its discretion to take enforcement action based upon the following factors:-

  • The higher the Band, e.g. Band D, the more likely the need for action.
  • Whether the number of Category 2 hazard(s) combine to create a more serious situation.
  • The potential for the Category 2 hazard to become a Category 1 hazard within say 2 years.
  • Whether the Council will be taking action to address Category 1 or Category 2 (Band E) hazards at the same time.
  • Whether the property falls within a wider regeneration scheme.
  • Whether a current occupier is within the vulnerable group.

Section 8 of the Act requires that notices and orders have a “Statement of Reasons”.  This statement should include why one type of enforcement action was taken rather than the other options available.

  1. My personal experiences

Usually the local authority will contact the landlord about a hazard(s) and give the landlord a reasonable chance to rectify the hazard(s) within a reasonable period of time provided there has been no history of non compliance with that particular landlord or property and/or there is not an imminent risk of danger to vulnerable occupants.  Hence a landlord that cooperates and arranges appropriate remedial action within a reasonable period of time will usually avoid being on the wrong end of a formal enforcement option.  Usually the local authority will use the enforcement system as a “stick to beat” the landlord with if he/she does not cooperate.

Only rarely, e.g. in cases of landlords with a history of non compliance, imminent risk of danger to vulnerable occupants, will the local authority proceed directly to an enforcement option.

If you are either a landlord or a tenant and need advice about any matter relating to maintenance or upkeep of rented residential premises then please contact Gemma Mayer on 01775 72261, or email gemma.mayer@maplessolicitors.com or Daven Naghen on 01775 72261, or email daven.naghen@maplessolicitors.com or visit our offices/arrange an appointment at 23 New Road Spalding Lincolnshire PE11 1DH.

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The End to “Squatters Rights”

4th September 2012

From 1st September 2012 squatting in residential buildings will become a criminal offence. The offence will be punishable by up to 6 months in prison, a £5,000 fine or both.

Up until 1st September 2012 the law has always protected squatters – people who take up residence in empty homes. Under the old law the only option of homeowners who had their home taken over by squatters was to seek a civil Court Order to regain possession of their property which was both time consuming and expensive. For the first time however squatting is now a criminal offence.

The new law aims to protect homeowners or legitimate tenants who have been kept out of their homes by squatters. It will also protect people who own residential buildings in which they do not live in such as Landlords, Local Authorities or second homeowners.

Anyone therefore who has squatters in their residential property can report the matter to the Police who should take immediate action.

Should you require any further information regarding this or any other matter relating to residential property/tenancies then please contact our James Turner at james.turner@maplessolicitors.com or call the office on 01775 722261

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Dispute Resolution

27th June 2013

Introduction

It has long been established in English law that an insured cannot successfully claim from an insurer where the insured’s claim has been fabricated or dishonestly exaggerated.  This is known as the Fraudulent Claims Rule (“the FCR”).  Obviously the FCR was designed to deter fraud.  However on the 20th July 2017 the Supreme Court, the highest court in the United Kingdom, considered a more recent extension of the FCR to “collateral lies” which are lies told by the insured to embellish the claim but which are irrelevant because the claim is justified whether the statement is true or not.

An example of a “collateral lie” being the insured producing a false receipt for a stolen computer worth £1,000 when the computer has been stolen and is actually worth £1,000.

The Supreme Court held, by 4 judges to 1, in Versloot Dredging BV and Another v HDI Gerling Industrie Versicherung AG and Others that the FCR does not apply to “collateral lies” which are immaterial to the insured’s right to recover.

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Dispute Resolution

1st December 2009

Recently the Court held in the case of McGuffick –v- The Royal Bank of Scotland that the Royal Bank of Scotland was entitled to refer the customer to credit referencing agencies when the customer stopped payments whilst seeking a copy of his Credit Agreement.  In essence the Court held that it was still “fair” for consumers to receive “black marks” on their credit ratings if they do not maintain regular payments until the debt under the agreement has either been successfully written off or the Court has ruled that it is irredeemably unenforceable.

Daven Naghen commented on the case that “If you still wish to obtain a copy of your Credit Agreement, and challenge whether or not it is in accordance with the requirements of the Consumer Credit Act then you can continue to do so.  It simply means that in most cases that the consumer should continue to make the minimum payments required under the Agreement pending any agreement or ruling to the effect that the Agreement is unenforceable.

The decision of the Court is so far limited.  It does nothing to suggest that the Court might not be intervene in order to prevent the lender referring customers to credit referencing agencies e.g., when this threat is arguably being used coercively, or if such threat were to follow a finding by a Court that a Credit Agreement is irredeemably unenforceable.”

If you have a Credit Card, or have entered into a Loan Agreement then please feel free to contact Daven Naghen who can advise you as to whether or not it is likely that the Agreement is enforceable.

If it is not enforceable, then all remaining sums due under the Credit Card or the Loan Agreement may be written off.

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Banks Win Overdraft Charges Case

1st December 2009

The long awaited Judgment from The Supreme Court on Overdraft Charges of banks arrived on 25th November.  Unfortunately the Court ruled that the Office of Fair Trading (OFT) does not have the powers that it thought it had to scrutinise the fairness of bank charges.

In explaining his ruling, The Supreme Court’s President Lord Phillips said that bank customers agreed to pay overdraft charges as part of the price of having a current account, so they fell outside the scope of the protection of the 1999 Consumer Contract Regulations.

However the OFT has vowed to fight on despite its disappointment with the Judgment.  It is thought that the OFT could still try to scrutinise bank charges in other ways, perhaps by way of a full Competition Commission enquiry.

The OFT said that it would make another announcement in December and hopefully more will be known at that point as to whether or not the OFT will fight on with the cause for consumers.

Grant Shackleston commented on the ruling as follows:-

“This is obviously an extremely disappointing result for all the consumers who have been waiting a number of years to see whether or not their bank charges are unfair.  Although the banks have clearly won on this occasion, it has become clear that the banks have not been thinking enough about their customers.  Hopefully this case will concentrate the banks’ minds on the welfare of their customers and lead to a review or changes in their bank charges.”

The banks must now start processing all the complaints that had been put on hold for the past two and a half years whilst this Judgment was awaited.  The British Banker’s Association has said that the banks will deal with the complaints “in an orderly fashion”.

It has however thought that these claims are now at an end.  It is believed that the likely outcome of the stayed cases is that they will now be struck out and there will be no chance of a refund for the consumer.

Some consumers have been fortunate enough in obtaining refunds prior to this Judgment.  It is felt that these payments were likely to have been made as “goodwill gestures”.  If so this means that the consumer will be allowed to keep these repayments and will not need to repay the bank.

If you do go overdrawn without the permission of the bank then this ruling clearly shows that the bank can still charge you a fee and set the level of that fee.  Therefore a customer should negotiate in advance with a bank regarding an overdraft facility or an extension thereof.

If you require any advice in light of this ruling then please contact Daven Naghen.

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Women to Pay Same Insurance Premium as Men!

16th March 2011

A recent case from the European Court of Justice means that from December 21st 2012 that insurers cannot take gender into account as a risk factor when setting premiums and payouts in respect of annuities, retirement savings and accident cover.

The European Court of Justice considered that using “the gender of the insured individual into account is a risk factor in insurance contracts constitutes discrimination” contrary to article 4(1) and 5(1) of the EU Directive 2004/113/EC which implements the principal of equal treatment between men and women in the access to and supply of goods and services. Hence for example insurance companies, as currently is the case, will not be able to offer lesser premiums to women as opposed to men.

The European Court of Justice has ruled that from December 21st 2012 insurers will not be allowed to take gender into account as a risk factor for setting premiums. Therefore from that date, a rule providing for unisex premiums and benefits will come into effect. Before 21st December 2012 there is a transitional period which will allow EU Member States to decide what action to take on domestic laws and give companies a chance to adjust and to find ways to mitigate the potentially very substantial knock-on effects

Daven Naghen, head of our Employment Team commented as follows:-

“This decision from the European Court of Justice comes as little surprise. In essence this country has until 21st December 2012 to implement the ruling. It will be interesting to see what if any action is taken by insurance companies between now and the implementation date. I would suspect that as of 21st December 2012 at the very latest that premiums for women will generally increase, and whether there is any knock-on increase for men remains to be seen.

This ruling also affects many insured benefits provided by employers such as life assurance and private medical cover. This may well lead to a substantial increase in the level of pensions paid to women for example, although the pension contributions payable by women may also increase substantially.”

We at Maples Solicitors LLP will keep you up to date with any developments in respect of this ruling. If currently you do require advice in respect of this ruling, or any other issue relating to discrimination then please do not hesitate to contact Daven on 01775 722261 or email Daven at daven.naghen@maplessolicitors.com or write to Daven at 23 New Road, Spalding, Lincolnshire PE11 1DH.

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Maples supporting Macmillan Coffee Morning

On 29th September 2017 Maples Solicitors LLP will be hosting a coffee morning as part of Macmillan’s “World’s Biggest Coffee Morning”.

Tea, coffee and cakes will be served from 10:00am until 1:00pm and all donations received will go to Macmillan Cancer Support to assist them with providing medical, emotional, practical and financial support to those facing cancer and their families.

At the same time, Maples will also be running a free Wills, Lasting Powers of Attorney and Probate clinic so that whilst you are in the office you may take the opportunity to discuss any of these with one of the Private Client Team with no obligation to commit. You can use the time to raise any questions you may have about making a Will, who you could appoint as Executors, whether you need a Power of Attorney or how a Power of Attorney works, for example.

Maples hope to see their existing clients join them for the coffee morning and very much look forward to meeting new people- everyone is welcome!

If you would like to discuss any matters in relation to Wills, Lasting Powers of Attorney or any Probate related matters prior to the coffee morning then please contact one of the lawyers in our private client team:-

Jane Mawer- jane.mawer@maplessolicitors.com
Jamie Dobbs- jamie.dobbs@maplessolicitors.com
Faye Blair- faye.blair@maplessolcitors.com

Or telephone the office on 01775 722261 and ask to speak with one of the team.

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Testimonials

Gemma Mayer LLB

"I would highly recommend Maples Solicitors, especially Gemma Mayer, for any conveyancing work. The level of support and professionalism was excellent at all times. I also felt if I needed to ask or clarify anything that it was not an issue. Buying and selling a house is stressful enough, but Gemma helped me through it step by step."

Anita Toal LLB BA

"I think you are brilliant. You can use my comments above. You are efficient, friendly and quite clearly very good at what you do. Mainly you don’t leave people hanging around too long for." "So easy to talk to her and she understood what I wanted. She put me at ease and I cant thank her enough"

Daven Naghen LLB

"I felt the service I got from Maples was excellent and was very honest all through the process. I would recommend Maples as a first class Solicitors group"

Faye Blair LLB

Faye was excellent, sensitive and acted very well to the time constraints we faced. Great service and dealt with compassion at such sad times made the process less painful very professional.

Jamie Dobbs ACILEx

Over the last forty years I have cause to deal with many law firms both in a personal and professional capacity, including some ‘top’ London Companies. In all of those dealings I have never found anyone as proactive and so willing to offer help and advice as Jamie Dobbs. During the last two years Jamie guided my parents through the completion of Lasting Powers of Attorney. Helped myself with the use of the LPA and recently dealing with Probate and Estate Administration following their death.

Mike Pepper MA

This is the second time we have used Mike Pepper at Maples Solicitors in the sale of our house. We cannot praise Mike enough for the highly efficient and professional service that he has provided us with. He is by far the best solicitor we have ever worked with, and the service that he has provided us with has gone far and beyond anything we have ever experienced. We have found the whole process to be a very relaxing experience.

Claire Smith FCILEx

Claire Smith has been amazing in every way. I highly recommend her and I am so grateful for all her help. She’s professional on all levels, reliable, extremely organised and I will be recommending her to everyone. I’m very lucky to have had her representing me and I can’t thank her enough. She is an asset to Maples. Thanks so much Claire!

Anita Zaborniak

We found it a pleasure to deal with Anita Zaborniak, she was most helpful and informative and kept us up to date with the progress of the purchase of our new home. If we were to move again we wouldn’t hesitate to use Maples again.