Getting a policy wrong – Housing Act 2004 enforcement in Hull

Humber Landlords Association v Hull City Council (2019) EWHC 332 (Admin) (not on Baiili yet, copy of the judgment here).

There are many unfortunate ways for claimants to lose a judicial review. But being told that your challenge is based on you getting the policy you are challenging wrong is up there in the ‘somewhat embarrassing’ top 10.

This was the HLA’s judicial review of Hull CC’s new housing enforcement policy (agreed in 2018). The policy set out how Hull CC “intends to carry out its obligations under Part 1 of the Housing Act 2004 (“the 2004 Act”); in particular, how it intends to enforce housing standards and to address hazardous housing conditions.”

In part, the relevant policy document said:

“The council will act formally in most cases. Exceptions to this are where the landlord/agent is accredited”, (Paragraph 3.6).

At Appendix 1

“There are a number of actions officers may take and these will depend on the circumstances of the case:

Take no action – where premises are found to be satisfactory.

Take informal action – informal action will be taken in relation to accredited landlord properties or where insignificant category 2 hazards are found and recommendations are being made.

Take formal enforcement action – this action will normally be the first course of action following the inspection unless the property is accredited. Where an officer identifies an imminent risk of serious harm the officer will make every effort to contact the owner in order to give them the opportunity to remedy the situation within a short timescale”, (Appendix 1, paragraph 1.2).

And also

“There are a number of options. Factors which may affect the choice of enforcement action include the statutory obligations of the council, the seriousness of the offence or the degree of risk to health and safety, the record of the responsible person in relation to managing property or in the case of licensing whether the person is regarded as fit and proper, public interest and concern, the views of occupiers and owners, whether the landlord is accredited, the likely effectiveness of various enforcement options, the views of other agencies…, the frequency of any breach, whether the property is subject to lice ns ing, [and] the consequences of non-compliance ” (Appendix 1, paragraph 1.3).

The officer’s report recommending the approval of the policy stated:

The council has a statutory duty to deal with Category 1 hazards and a discretionary power to deal with Category 2 hazards. Under the current policy it states that the council will take action in relation to significant Category 2 hazards. This is also proposed in the new policy. Having an informal action does not then afford the tenant any protection against unfair eviction. This is only afforded with a section 11 notice…or section 12 notice. It is therefore proposed that the informal stage is withdrawn from the policy instances where Category 1 or significant Category 2 hazards exist. An exception to this scenario could be in relation to a landlord accredited by the Council. However, there must be robust arrangements in place to ensure that this does not result in unfair eviction and that the landlord removes any identified hazards…

HLA took exception to the policy. There were six grounds to their judicial review claim.

i) “The council has decided to adopt a policy (i) of taking formal enforcement action by way of serving improvement notices in every case except (a) for the most insignificant of “hazards” (as defined in the 2004 Act) or (b) where a landlord is a member of the council’s own new accreditation scheme (“new HALS”) which does not exist, (ii) for the purpose of protecting tenants from retaliatory evictions by landlords if tenants make complaints to the council. The decision is unlawful because it (i) purports to give effect to a purpose (that is, the protection of tenants from retaliatory evictions) which is not a permitted purpose under Part 1 of the 2004 Act,1 (ii) is contrary to the 2004 Act, (iii) only permits one form of formal enforcement action; namely, the service of an improvement notice and (iv) prevents the council considering the merits of each particular case;”

ii) The council had fettered its discretion

iii) The council had failed to take into consideration the statutory Enforcement Guidance and the Enforcement Concordat referred to in the Guidance, and the policy was inconsistent with the Guidance.

iv) It was unlawful to give overwhelming weight to the issue of preventing retaliatory eviction with no evidence as to the number of retaliatory evictions in Hull and whether it was a risk.

v) Too much weight was given to membership of ‘New HALS’ (a new accreditation scheme, as mentioned in the policy) as the only exception to the enforcement policy and the policy was wrongly trying to compel landlord to join the accreditation scheme.

and, in a grand finale:

vi) “therefore, the decision to adopt the Policy was perverse; particularly in circumstances where new HALS is not operational. The decision to adopt the Policy (the purpose of which is to prevent retaliatory evictions) was also perverse because the Policy can only prevent retaliatory evictions from premises let on assured shorthold tenancies and only for a period of 6 months (because that is the effect of the Deregulation Act 2015 (which is intended to protect against such evictions)).”

The eagle eyed amongst you might have noticed a bit of a hitch with ground 1 as against the written policy. The policy doesn’t say the council will always take formal enforcement action by way of serving Improvement Notices. It just says formal enforcement action. As the judgment describes section 5 Housing Act 2004:

By section 5 of the 2004 Act, if a hazard is calculated as being so serious as to fall into category 1, a local housing authority must (my emphasis) take appropriate enforcement action, which can be the service of an improvement notice under section 11 of the 2004 Act, a prohibition order under section 20 of the 2004 Act, a hazard awareness notice under section 28 of the 2004 Act, emergency remedial action under section 40 of the 2004 Act, an emergency prohibition order under section 43 of the 2004 Act, a demolition order under section 265 of the Housing Act 1985, or the declaration of the area in which the premises concerned are situated as a clearance area under section 289(2) of the Housing Act 1985.

In respect of category 2 hazards, the council may enforce in the following ways:

section 12 (power to serve an improvement notice),

section 21 (power to make a prohibition order),

section 29 (power to serve a hazard awareness notice),

section 265(3) and (4) of the Housing Act 1985 (power to make a demolition order), and

section 289(2ZB) of that Act (power to make a slum clearance declaration).

Now, it would be quite ridiculous for a council to say it would always serve an Improvement Notice in respect of category 1 hazards, not least because in some situations, an emergency remedial order, for example, would be more appropriate. But it is also the case that a hazard awareness notice would also be formal enforcement under either s.5 or s.7 HA 2004.

Still, as the council in response to HLA insisted that the policy did not say what HLA said it did, the proper interpretation of the policy fell to the court. The court’s analysis of the policy was:

i)  In the case of a hazard which the council considers to be a category 1 hazard, the council will normally take formal enforcement action. Subject to the requirements of section 5 of the 2004 Act, a particular reason why it may not take formal enforcement action if a category 1 hazard exists in fact, is if the landlord of the premises in question is a member of new HALS8 (see Paragraph 3.6, Appendix 1, paragraph 1.2, Appendix 1, paragraph 1.3 and Appendix 1, paragraph 2.2 in particular);

ii)  In the case of a hazard which the council considers to be a significant category 2 hazard, the council will normally take formal enforcement action. It may not take formal enforcement action, having regard to all the circumstances of the case; in particular, having regard to those matters set out in Appendix 1, paragraph 1.3. In considering all the circumstances of the case, a factor of particular weight will be the landlord’s membership, if any, of new HALS (see Paragraph 3.6, Appendix 1, paragraph 1.2; Appendix 1, paragraph 1.3 and Appendix 1, paragraph 2.2 in particular);

iii)  In the case of a hazard which the council considers to be an insignificant category 2 hazard, the council will normally take informal action, but this depends on all the circumstances of the case (see Appendix 1, paragraph 1.2 and Appendix 1, paragraph 1.3 in particular);

iv)  In deciding which of the otherwise legitimate courses to take, the council will carry out a risks/benefit analysis (see Paragraphs 3.1-3.3 in particular);

v)  The council will aim for a consistency of approach (see Paragraphs 3.1-3.3 in particular);

vi)  Formal enforcement action is not limited to improvement notices.

HLA asserted that council officers in the Report and in their witness statements had interpreted the policy differently. But the court found this did not matter, even if true, as a council officer’s interpretation of the policy was not a guide to the proper interpretation. Acting inconsistently with the policy may be challengeable, but that was not this challenge.

On the basis of this reading of the policy, HLA’s contention that the council’s policy was to take formal enforcement action in all cases, except insignificant category 2 hazards and where the landlord was a member of the ‘new HALS’, was wrong. Formal enforcement would be the ‘normal course of action’ for category 1 and significant category 2 hazards, but this was not ‘all cases’. Ground 1 failed

It followed that the council had not fettered its discretion. Ground 2 failed.

On the irrelevant factors and/or improper motives grounds, HLA’s argument was that the council improperly took into account

i)  a wish to protect tenants from retaliatory evictions;

ii)  a wish to compel landlords to join new HALS.

But a policy with the aim of making retaliatory eviction less likely was in accordance with the policy and object of Part 1 Housing Act 2004. So such a wish was not an irrelevant factor. Private housing standards in Hull were worse than the national average. Encouraging tenant complaints in order to monitor and improve the stock was in line with Housing Act 2004 and Deregulation Act 2015.

Encouraging membership of the accreditation scheme was also unobjectionable. The Enforcement Guidance recognised that “accreditation schemes provide a useful mechanism for driving up housing standards and so the promotion of new HALS is capable of promoting the purpose of Part 1 of the 2004 Act.”

The Policy was in accordance with the Enforcement Guidance and Enforcement Concordat, contrary to HLA’s arguments.

While it would have made sense for the ‘new HALS’ accreditation scheme to be started at the same time as the Policy, but the HALS scheme not yet being operational did not make the decision to adopt the Policy perverse. The Policy in operation could take into account that HALS was not yet up and running.

In view of the previous findings on the Policy, it could not be said that ‘overwhelming weight’ had been given to either retaliatory eviction or to the ‘new HALS’ in the Policy.

And finally, on HLA’s argument that the Deregulation Act retaliatory eviction provisions were time limited and of limited ambit, and so shouldn’t be given any particular weight:

I simply do not follow how, just because it is only possible to minimise the risk of retaliatory eviction in limited circumstances and for a limited period, it is perverse to adopt an otherwise apparently unobjectionable policy

All grounds failed and the judicial review dismissed.

Comment

This is an odd case, even apart from HLA apparently challenging the policy on things that the policy didn’t actually say. The oddities rather spring from a tension between the Enforcement Guidance and Enforcement Concordat together and the Housing Act 2004 itself (and, of course, the Deregulation Act 2015 retaliatory eviction provisions, which only kick in on service of an Improvement Notice or Emergency Remedial Notice). The Enforcement Guidance suggests, without requiring, that

Where an owner or landlord agrees to take the action required by the authority it might be appropriate to wait before serving a notice unless the owner fails to start the work within a reasonable time. The authority will need to take its own view of what is reasonable in the circumstances. (…) An alternative approach where a landlord agrees to take remedial action quickly and the authority is confident that this will be done, would be for authorities to use the hazard awareness notice procedure. This would provide a way of recording the action, and would provide evidence should the landlord fail to carry out remedial works or carry them out inadequately.

So, effectively suggesting an informal initial approach to see if the landlord will sort things without more.

But, s.5 HA 2004 is categorical for category 1 hazards. The council must take some formal action, even if that is just a hazard awareness notice. There is no basis in the legislation for an informal warning and a wait and see on a category 1 hazard. (There is also a suspicion that some councils use the Guidance as an excuse for not actually doing anything about enforcement.)

Hull’s Policy as quoted in the judgement is certainly in accordance with s.5 HA 2004, as noted

There is one matter which must, clearly in my view, inform the proper interpretation of the Policy. As I have indicated, under section 5 of the 2004 Act, “if a local housing authority consider that a category 1 hazard exists on any residential premises, they must take the appropriate enforcement action in relation to the hazard”, so that if the council considers a category 1 hazard exists, it is obliged to take what, in the present case, has been referred to as formal enforcement action.

And it is hard to see that the judgment is wrong in considering the position on retaliatory eviction as a factor in an approach to formal enforcement. This has been an issue even since the 2015 Act, and one that really should be properly considered as a part of an enforcement policy.

It will be interesting to see the response to this judgment, not least from other councils and their EHOs. And I wonder if HLA will appeal?

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Assured Shorthold tenancy, Housing law - All, Regulation and planning.

4 Comments

  1. The depressing thing is that the HLA decided to instruct solicitors from Leeds and Barnsley rather than local ones. Perhaps the local ones told them what they didn’t want to hear.

  2. I believe Richard Jones, Giles’ pal and colleague David Smith’s predecessor at the RLA had a big input in this case.

  3. Pingback: Tessa Shepperson Newsround #91

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