Document

Private Sector Housing Enforcement Policy

1.0 Introduction

1.1

The Private Sector Housing Service at Horsham District Council, (“the Council”) is responsible for enforcing a wide range of statutory provisions relating to housing and environmental conditions affecting health and safety.

1.2

The objectives of the service are to:

Improve the standards of homes in the private sector
To assess local housing conditions
To reduce the number of properties with serious risks to health and safety
To improve standards in private rented accommodation
To improve the standards in HMOs (houses in multiple occupation)
To work closely with private sector landlords towards improving conditions and the standard of management of private rented housing
To provide an excellent service that is accessible to anyone living in the private sector who may have poor living conditions.

1.3 The Private Sector Housing service works reactively and proactively.

Reactively the service will respond to:

Private sector tenants who contact the Council with complaints about disrepair or poor conditions within their home.
Complaints about properties that may be causing problems for neighbouring properties.
Enquiries from owner occupiers or private tenants and landlords who would like advice about housing conditions.
Enquiries for advice about the legal minimum housing standards, particularly HMOs (houses in multiple occupation).

Proactively the service will:

Operate a programme of inspections of higher risk HMOs

1.4

In exercising their duties and other functions, officers will seek to do so in a firm but fair, open and consistent and helpful way. Any enforcement action will be compliant with relevant legislation and guidelines in line with the principles of good enforcement.

1.5

This policy deals with the practical application of enforcement procedures that will be used to achieve statutory housing and environmental standards. It sets out what owners, landlords, their agents and tenants of private sector properties can expect from officers.

1.6

Enforcement, in the context of this policy is not limited to formal enforcement action such as prosecution, but includes for example, the inspection of premises for the purpose of checking compliance with legislation and the provision of advice.

1.7

This policy seeks to support the Council’s corporate aims, objectives and strategies with respect to private sector housing and has to be read in conjunction with the Council’s General Enforcement Policy for Environmental Health and Licensing, the Council’s Private Sector Housing Renewal Policy, and the Council’s Empty Homes Strategy.

2.0 Principles of Good Enforcement

2.1

The aim of the policy is to ensure that all enforcement actions comply with the following principles:

Consistency

Proportionality

Openness

2.2

Consistency means taking a similar approach in similar circumstances to achieve similar ends. It does not mean uniformity, as officers will take into account many factors such as the level of risk, the history of compliance and the attitude and actions of those involved.

2.3

Proportionality means relating enforcement action to the risks and severity of the breach of the law involved. This will ensure that the most serious risks are targeted first.

2.4

Openness means explaining our actions clearly in plain language and discussing compliance failures or problems with anyone experiencing difficulties. A clear distinction will be made between legal requirements (what must be done) and advice or guidance (what is desirable).

3.0 Legislation

3.1

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.

3.2

The Housing Act 2004 introduced the Housing Health & Safety Rating System (HHSRS), a method of assessing and categorising hazards to health. The categories are summarised below.

HHRS	Band	Severity	Response
Category 1 Hazard	A - C	Serious Hazards	The Council has a duty to take enforcement action.
Category 2 Hazard	C - J	Less Serious Hazards	The Council has discretion to take action.

The Council has a range of enforcement options to address hazards that exist in residential premises as follows:

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	No
Clearance area	Yes	No

3.3 Houses in Multiple Occupation (HMOs)

In addition to the previously mentioned enforcement options the Council has further powers to ensure adequate standards in HMOs are met and maintained.

The Housing Act 2004 introduced a mandatory scheme to licence HMOs. Licensing is intended to apply only to larger high risk HMOs occupied by 5 or more people, comprising 2 or more households.

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 a HMO does not have the required licence. Breaking any condition of a licence is also an offence.

All HMOs, regardless of whether they are licensable or not, are subject to legislation about how they are managed and must comply with the requirements of the Management of Houses in Multiple Occupation Regulations 2006.

3.4 Empty Properties

The Housing Act 2004 introduces 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 and an alternative to enforcement action under other legislation.

There are two types of order, Interim EDMO and Final EDMO. EDMOs 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).

3.5 Caravan Sites

The use of land as a caravan site usually requires a caravan site licence under the Caravan Sites and Control of Development Act 1960 and the Council may impose site licence conditions. The Council has adopted conditions based on the current model standards. The Council is able to take enforcement action on residential sites, by way of Compliance Notices, should a site be operating without a licence or where site licence conditions are not being met.

3.6 Other Legislative Provisions

The Private Sector Housing Service is also responsible for enforcing the provision of other legislation including Public Health Acts 1936 and 1961, Building Act 1984, Environmental Protection Act 1990, The Smoke and Carbon Monoxide Alarm (England) Regulations 2015, the Letting Agents Redress Scheme and the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020.

3.7 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 expenses incurred in taking enforcement action. The expenses are in connection with the inspection of the premises, subsequent consideration of any action to be taken, and the service of notices.

The Council will recover costs when formal action is taken i.e. the service of Housing Act Notices, where it is reasonable to expect the owner to pay the charges. The full cost of an officer’s time including overheads and any relevant expenses will be charged. There is discretion to waive the charge when it is not reasonable to expect a person to pay the charges for enforcement.

Landlords seeking to comply with the law are unlikely be charged for enforcement action whilst those landlords who do not seek to comply with the law will be charged.

Where charges for enforcement action are levied they can be registered as a local land charge against the property.

The Council will also recover costs when formal action is taken i.e. the service of Compliance Notices, under the Caravan Sites and Control of Development Act 1960, where it is reasonable to expect the owner to pay the charges. The full cost of an officer’s time including overheads and any relevant expenses will be charged. There is discretion to waive the charge when it is not reasonable to expect a person to pay the charges for enforcement.

4.0 Enforcement

4.1

The actions available to the Private Sector Housing Service to improve the standards of private sector housing are broadly divided into two categories:

Informal action - Informal action will include verbal advice given by Officers, and advisory letters. The Private Sector Housing Services is very willing to offer help and advice and will explain the reasons for the Council’s involvement and what should be done to improve the particular housing conditions. The preferred approach is to work with people to help to prevent the need for formal enforcement.

Formal action - Formal action normally involves the service of enforcement notices. Most notices served by the Private Sector Housing Service require the recipient of the notice to commence and complete specified works within specified time limits.

All notices are accompanied by notes that explain the effect of the notice and the recipient’s right of appeal. Officers will always be willing to discuss the works specified in the notice and the reason for the service of the notice.

4.2 Sanctions

In all case where an offence is committed the Council has various sanctions it can impose.

4.2.1 Penalty Charge Notices

Under some legislation, the Council can serve a Penalty Charge Notice. These are:

The Redress Schemes for Lettings Agency work and Property Management work (Requirement to Belong to a Scheme etc.) (England) Order 2014.

Under the redress scheme the monetary penalty will normally be £5,000 for any contravention but on representation this charge may be reduced or in exceptional cases be quashed. Government guidance has been provided on reasons to reduce the penalty charge, which includes taking account of turnover of the business or other extenuating circumstances. This charge amount is in accordance with “Guidance for Local Authorities on The Redress Schemes for Lettings Agency work and Property Management work (Requirement to Belong to a scheme etc (England) Order 2014” issued in March 2015 by DCLG.

The landlord can request the local authority to review the penalty charge. A final appeal can be made by the landlord to the First-tier Tribunal.

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015. Under these regulations, a penalty charge of up to £5,000 can be made. Regulation 13 requires a local Housing Authority to prepare and publish a statement of principles which it proposes to follow in determining the amount of penalty charge. Appendix 1 details the Council's Statement of Principles in this matter.

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020. Under these regulations a financial penalty of up to £30,000 can be imposed, with the potential for multiple penalties to be imposed for a continuing failure. The procedure and appeals concerned with penalty charges are laid out in Schedule 2 to these Regulations.

The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015. Under these regulations financial penalties of up to £5,000 can be imposed for letting a property without an Energy Performance Certificate with a minimum of an “E” rating, failing to register an exemption to the regulations, or other breaches as laid out in Appendix 3 to this policy.

4.2.2 Civil Penalties

The Council may serve notices imposing Civil Penalties as an alternative to prosecution in respect of the following offences:

Failure to comply with an Improvement Notice
Failure to licence or other licensing offences relating to Houses in Multiple Occupation (HMOs)
Failure to comply with an Overcrowding Notice
Failure to comply with a management regulation in respect of an HMO
Breaching a Banning Order
Failure to ensure that electrical safety standards are met in residential tenancies

The local housing authority should determine the amount of penalty which can be up to a maximum of £30,000. The table and notes in Appendix 2 sets out the charging system and the matters which are to taken into consideration when setting the level of a civil penalty.

4.2.3 Prosecution

Non-compliance with legislation and regulations enforced by the Private Sector Housing Service is generally a criminal offence. The Council is the prosecuting authority for such offences and as they are criminal in nature, proceedings are normally heard in the Magistrates' Court.

4.2.4 Rent Repayment Orders

A Rent Repayment Order is an order made by the First-tier Tribunal Tribunal (Property Chamber) requiring a landlord to repay a specified amount of rent Tribunal (Property Chamber). Rent Repayment Orders can be applied to a wide range of offences and where a relevant offence has been committed. The local authority will consider whether to apply for a Rent Repayment Order on a case by case basis. The Council must consider applying for a Rent Repayment Order where a landlord has been convicted of a relevant offence.

4.2.5 Works in Default.

Work in default is a power given to the Council, to ensure work is carried out to a property. If the recipient of the 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 itself. The Council will charge the appropriate person for the cost of the works together with the costs involved in arranging for the work to be done

It should be noted that carrying out the work in default does not exclude the Council from taking other formal action. The Council is entitled to ensure that the work is carried out and to consider if it is appropriate to take further action.

4.2.6 Remedial Action

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 give the local housing authority the power to take urgent remedial action where it appears that the owner of the property will not do so. The procedure to be followed is specified in Regulation 10.

4.3 Shared enforcement Responsibility

In circumstances where enforcement responsibility is shared between enforcement agencies, the Private Sector Housing Service will have regard to procedures agreed with other enforcement agencies, particularly where memoranda of understanding exists.

In some cases, enforcement powers will rest with another agency (for example the Health and Safety Executive has responsibility for enforcement of gas safety in domestic property). In these situations, the Private Sector Housing Service will act to ensure that the case is transferred to the enforcing agency promptly and in accordance with any agreed procedures.

5.0 Taking Action and Imposing Sanctions

The decision to take informal or formal action will be made by the officer in charge of the case.

5.1 When we will take Enforcement Action

Notices are served when there is no alternative and when all other reasonable attempts have been made to achieve the necessary action voluntarily.

In determining whether or not to serve a notice each case is looked at individually and the following factors are taken into account:

Whether an informal approach, such as a letter informing the landlord of the defects and asking them to confirm their intentions within a set timescale, is appropriate.
The significance of the hazards.
The extent and location of the hazards.
Whether the Council is under a duty or has a power to take formal action in respect of the hazards identified.
The level of risk posed to the occupiers, including whether there is an imminent risk of serious harm
The views and intentions of the occupiers.
The views and intentions of the owners.
The compliance record of the person in control of the premises.
Whether the chosen option is practical, reasonable and proportionate in reducing the hazards to an acceptable level.
The physical impact on adjoining buildings.
The longer term viability of the premises.
The impact on the local community and on the appearance of the local area.
Whether the tenant will be protected from retaliatory eviction.

5.2 When will sanctions be imposed

In all cases where an offence is committed, consideration will be given as to whether a sanction should be imposed and if so, which one. In some cases it may be appropriate to impose two sanctions. For example, prosecution and an application for a Rent Repayment Order.

In deciding whether to pursue a sanction, the initial decision will be made by the officer in charge of the case in consultation with the Head of Environmental Health and Licensing. Having prepared the case and collected the evidence, officers will then consult the Council’s Legal Services team to discuss whether the merit of the relevant thresholds have been met for action proposed.

5.3 Civil Penalties or Prosecution

Each case is considered on its own facts. and on it's own merits However, there are general principles that apply to the way in which officers decide whether a course of action should be perused, and if so which one.

The code for Crown Prosecutors 2018 sets out the general principles that prosecutors should follow when they make decisions on cases. Prosecutors/Officers must only start a prosecution when the case has passed the evidential and public interest tests.

The Council’s approach to prosecution reflects the principles of the Code for Crown Prosecutors.

There are two stages of the Code:

The Evidential Test Is there "sufficient evidence to provide a realistic prospect of conviction against each defendant on each charge?"
The Public Interest Test - Where there is enough evidence, is it in the public interest to prosecute?

Weighing up the evidence

The evidential test is separate from the one the criminal court must apply before convicting a person.

A court has to be satisfied beyond reasonable doubt that the defendant is guilty in order to convict. When deciding if there is enough evidence to prosecute, the Council have to consider whether the evidence can be used and is reliable and robust enough to prove the evidential points.

The Public Interest Stage - If the evidential test is passed, the Council then consider if it is in the public interest to prosecute. It has never been a rule that a prosecution will automatically take place once the evidential test is met. A prosecution will usually take place unless the prosecutor is satisfied that there are public interest factors tending against prosecution which outweigh those tending in favour.

5.3.1

Whenever the Council believes a Housing Act 2004 offence has been committed and the evidence passes both the evidential stage and the public interest stage, as outlined above, it will then be necessary to consider on a case by case basis whether bringing prosecution proceedings or imposing a civil penalty is the most effective option. If the Council believes that it has a reasonable prospect of a conviction in a particular case it will always consider a civil penalty in the first instance.

Factors to consider will include:

The seriousness of the offence, history of compliance, culpability and the harm caused.
Whether a civil penalty is likely to be sufficient to change the behaviour of the offender.
Whether the offender has a large portfolio of properties potentially putting many tenants at risk if they continue to operate with poor practices.
Information from partner agencies e.g. Sussex Police and West Sussex Fire and Rescue Service.
Is publicity likely to act as a deterrent to others? A prosecution is in the public domain whereas a civil penalty is not.
Which option will be the best deterrent to prevent further offences,
Whether the tenant or Council is also considering applying for a Rent Repayment Order.

Examples of situations in which a decision to prosecute may be the most appropriate option include; Where an offence is particularly serious, and/ or where the offender has committed similar offences in the past. However, that does not mean civil penalties should not be used where serious offences have been committed and each case will be considered on an individual basis.

5.4 Work in Default

When determining if work in default is appropriate, officers will consider the following. This is not an exhaustive list and other factors may be taken into account:

The reason for non-compliance to the original Notice,
The effects of not carrying out the work on the health and safety of the occupant of the property concerned,
The reason for the work not being carried out in the first place.

6.0 Service Complaints

6.1

If you feel the Council has not acted in accordance with this policy please contact

The Head of Environmental Health and Licensing, Horsham District Council, Albery House, Springfield Road, Horsham, West Sussex RH12 2GB

E-mail: ehl@horsham.gov.uk Telephone: 01403 215641

If you are dissatisfied with the response you can pursue your complaint through the Council's complaints procedure.

7.0 Policy Review

7.1

This policy will be reviewed annually by the Head of Environmental Health and Licensing to ensure it continues to meet the principles of good enforcement.

Appendix 1

Statement of principles for determining the amount of a penalty charge for breaches of The Smoke and Carbon Monoxide Alarm (England) Regulations 2015.

Introduction

1. Regulation 13 of the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 (‘The 2015 Regulations’) requires local housing authorities such as the Council to prepare and publish a statement of principles which it proposes to follow in determining the amount of a penalty charge

2. This statement of principles sets out the principles that the Council will apply in exercising its powers to require a relevant landlord (‘landlord’) to pay a financial penalty for a failure to comply with requirements of a remedial notice (‘the Notice’) served under the 2015 Regulations.

3. The Council may revise its statement of principles and, where it does so, it must publish the revised statement.

FINANCIAL PENALTY CHARGES

4. In accordance with Regulation 8 of the 2015 Regulations, where the Council is satisfied on the balance of probabilities that the landlord on whom it has served Notice under Regulation 5 has failed to take the remedial action specified in the Notice within the period specified, the Council may require the landlord to pay a penalty charge of such amount as it has determined.

5. In deciding whether it would be appropriate to impose a penalty charge, the Council will take full account of the particular facts and circumstances of the breach under consideration, such as evidence of the breach of the requirements of the Notice.

6. Before imposing a requirement on a landlord to pay a penalty charge, the Council must, within a period of six weeks from the point at which it is satisfied that the landlord has failed to comply with the requirements of the Notice, serve a penalty charge notice in accordance with Regulation 9 setting-out:

the reasons for imposing the penalty charge;
the premises to which the penalty charge relates;
the number and type of prescribed alarms (if any) which an authorised person has installed at the premises;
the amount of the penalty charge;
that the landlord is required, within a period specified in the notice –
- to pay the penalty charge, or
- to give written notice to the local housing authority that the offender wishes the authority to review the penalty charge notice;
how payment of the penalty charge must be made, and,
the person to whom, and the address (including if appropriate any email address) at which, a notice requesting a review may be sent and to which any representations relating to the review may be addressed.

7. Under Regulation 8(2) the amount of the penalty charge must not exceed £5,000.

8. For a first offence, the Council will impose a penalty charge of £2,500 early payment (within 14 days of the date on which the penalty charge notice is served) it will result in the charge being reduced by 50%, to £1,250.

9. For subsequent offences the penalty will be £5,000 to deter continued non-compliance and an early payment will attract a discount of 50% making £2,500 payable.

REVIEW OF PENALTY CHARGE NOTICE

10. Should the Council receive a request from the landlord for the review of a penalty charge within 28 days (beginning with the day on which the penalty charge notice is served), a review shall first be undertaken by the Head of Environmental Health and Licensing, and then the Head of Legal and Democratic Services. Together, both Heads of Service will review the penalty charge and take into account all representations made. All representations will be considered on their own merits; in particular, the following may be considered relevant in deciding any reduction in the charge made:

Failed internal preventative measures – in cases of national agents / landlords / businesses where due to a failure of internal processes, a local office has breached the 2015 Regulations.
Cooperation with the Council – in cases where the landlord has cooperated fully with the Council in investigating the breach of the regulations.
Immediate and voluntary remediation – when the offence was brought to the attention of the landlord they immediately rectified any breach of the 2015 Regulations.
No previous history of non-compliance with other housing legislation – if this is a first breach of any housing related legislation.
Any relevant personal circumstances.
Undue financial hardship – if the fine would cause the offender undue financial hardship such that it might not be able to continue to operate.

11. In conducting the review, the Council will consider any representations made by the landlord, and decide whether to confirm, vary or withdraw the penalty charge notice.

12. The Council will serve notice of decision on the landlord

13. If a decision is taken by the Council to confirm or vary the penalty charge notice, the decision notice will also state the landlord’s right of appeal.

APPEALS

14. A landlord who, having requested a review of a penalty charge notice is served with a notice confirming or varying the penalty charge may appeal to the First-tier Tribunal against the Council’s decision on certain grounds.

15. Regulation 11(2) of the 2015 Regulations states that the grounds for appeal are that:

(a) the decision to confirm or vary the penalty charge notice was based on an error of fact;

(b) the decision was wrong in law;

(d) the decision was unreasonable for any other reason.

16. Where a landlord appeals to the First-tier Tribunal, the operation of the penalty charge notice is suspended until the appeal is finally determined or withdrawn.

17. The Tribunal may quash, confirm or vary the penalty charge notice, but may not increase the amount of the penalty charge.

ENFORCEMENT

18. The Council will pursue non-payment of the penalty charge on the order of a court, as if payable under a court order.

Appendix 2

Civil Penalties under the Housing and Planning Act 2016 and The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

1.0 Introduction

In this policy, the term ‘landlord’ should be read as including letting agents, managing agents, licensors, property owners, directors of corporate landlords and any other person involved in the letting or management of privately rented accommodation.

In this policy, the terms ‘House of Multiple Occupation’ or ‘HMO’ are defined by the Housing Act 2004 sections 254-257.

1.1 Current Offenses liable for the issue of Civil Penalty

Section 126 and Schedule 9 of the Housing and Planning Act 2016 provide local authorities with the power, through the insertion of section 249A Housing Act 2004, to impose a civil penalty as an alternative to prosecution in respect of the following offences under the Housing Act 2004:

Failure to comply with an Improvement Notice [section 30]
Offences in relation to licensing of Houses in Multiple Occupation (HMOs) under Part 2 [section 72]
Offences in relation to the Selective Licensing of ‘houses’ under Part 3 [section 95]
Failure to comply with an Overcrowding Notice [section 139]
Failure to comply with a management regulation in respect of an HMO [section 234]

Regulation 11 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 provides local authorities with the power to impose a civil penalty in respect of breaches of Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020.

Section 23 of the Housing and Planning Act 2016 provides that a civil penalty may be imposed in respect of a breach of a Banning Order.

1.2 Setting a Civil Penalty

The Council has the power to impose a civil penalty of up to a maximum of £30,000 for each separate offence. If multiple offenders have committed the same offence at the same property, a separate civil penalty can, and usually will, be imposed on each offender. In each case, the level of civil penalty imposed on each offender will be in line with this policy.

This document outlines the Council’s policy in setting the level of a civil penalty in each case where it has been determined to issue a civil penalty as an alternative to prosecution proceedings.

The Council considers the need for transparency and consistency in the discharge of its functions under the Housing Act 2004 to be of primary importance. The general objective of this policy is, therefore, to promote both transparency and consistency in the imposition of financial penalties under the 2004 Act so that, for example, those managing and having control of rented properties in the Horsham District (a) know how the Council will generally penalise relevant offences and (b) are assured that, generally, like cases will be penalised similarly, and different cases penalised differently. The further objectives of using financial penalties, in particular, as a means of enforcing the above offences are explained below.

2.0 Statutory Guidance

The Government has issued statutory guidance under Section 23(10) and Schedules 1 and 9 of the Housing & Planning Act 2016 entitled “Civil Penalties under the Housing and Planning Act 2016. Guidance for Local Housing Authorities”. The Council has regard to this guidance in the exercise of its functions in respect of civil penalties.

Paragraph 3.5 of the statutory guidance states that ‘The actual amount levied in any particular case should reflect the severity of the offence, as well as taking account of the landlord’s previous record of offending’. The same paragraph sets out several factors that should be taken into account to ensure that the civil penalty is set at an appropriate level in each case:

a. Severity of the offence. The more serious the offence, the higher the penalty should be.

b. Culpability and track record of the offender. A higher penalty will be appropriate where the offender has a history of failing to comply with their obligations and/or their actions were deliberate and/or they knew, or ought to have known, that they were in breach of their legal responsibilities. Landlords are running a business and should be expected to be aware of their legal obligations.

c. The harm caused to the tenant. This is a very important factor when determining the level of penalty. The greater the harm or the potential for harm (this may be as perceived by the tenant), the higher the amount should be when imposing a civil penalty.

d. Punishment of the offender. A civil penalty should not be regarded as an easy or lesser option compared to prosecution. While the penalty should be proportionate and reflect both the severity of the offence and whether there is a pattern of previous offending, it is important that it is set at a high enough level to help ensure that it has a real economic impact on the offender and demonstrate the consequences of not complying with their responsibilities.

e. Deter the offender from repeating the offence. The ultimate goal is to prevent any further offending and help ensure that the landlord fully complies with all of their legal responsibilities in future. The level of the penalty should therefore be set at a high enough level such that it is likely to deter the offender from repeating the offence.

f. Deter others from committing similar offences. While the fact that someone has received a civil penalty will not be in the public domain, it is possible that other landlords in the local area will become aware through informal channels when someone has received a civil penalty. An important part of deterrence is the realisation that (a) the local authority is proactive in levying civil penalties where the need to do so exists and (b) that the level of civil penalty will be set at a high enough level to both punish the offender and deter repeat offending.

g. Remove any financial benefit the offender may have obtained as a result of committing the offence. The guiding principle here should be to ensure that the offender does not benefit as a result of committing an offence, i.e. it should not be cheaper to offend than to ensure a property is well maintained and properly managed.

The factors detailed in the statutory guidance and policy aims will be considered by the Council when deciding where, within the Civil Penalties matrix below, a particular offence and penalty fall.

3.0 Other Policy Aims

The Council is mindful that despite its best efforts, many landlords may operate unlawfully for a significant period of time without detection, and only a proportion of landlords committing relevant offences will be discovered. The Council is, therefore, mindful that when deciding to impose a Civil Penalty, it should create an environment where it is clear to the offender and others that operating unlawfully as a landlord will be financially disadvantageous when compared to operating lawfully.

The Council intends to create an environment where landlords engage with the Council’s requests and demands completely, openly and honestly. This helps creates a level playing field which supports the aims of transparency and consistency. No landlord should be able to financially benefit from withholding information the Council deems relevant that is, or should be, in their control to disclose. It is expected that complete supporting evidence is provided to support any Written Representations received in response to a Notice of Intent.

4.0 Civil Penalties Matrix

In determining the level of a civil penalty, officers will have regard to the matrix set out below (figure 4.1), which is to be read in conjunction with the associated guidance. The matrix is intended to provide an indicative ‘starting level’ under the various offence categories, with the final level of the civil penalty adjusted in each case, taking into account aggravating and mitigating factors the Council deems significant including, but not limited to, factors relating to the track record and culpability of the landlord and the actual or potential harm to the occupants.

In deciding what level of penalty to impose, officers will conduct the following four stage process:

i) They will consider the seriousness of the relevant housing offence to identify a starting level of the penalty.

ii) An assessment of the number of rental properties controlled or owned or managed by the landlord and/or their experience in the letting/management of property will be considered, which may have the effect of increasing or decreasing the penalty.

iii) Aggravating and mitigating factors including, but not limited to, culpability, track record and harm will be considered, which may have the effect of increasing or decreasing the penalty.

iv) If any of the Discounts, as set out below, apply, the penalty will be decreased.

Once the seriousness of the relevant housing offence has been identified, the starting level of the penalty will be identified using the table at Figure 4.1 below with the headings ‘Seriousness of offence’ and ‘Starting level [£]’. Consideration of the number and type of rental properties controlled or owned or managed may adjust the penalty.

To reflect the seriousness of the offence(s) in question, the presence of one or more mitigating factors will rarely result in the penalty being decreased by more than £5000. In exceptional circumstances, officers may determine that the presence of one or more mitigating factors justify a decrease in the penalty in excess of £5000. The presence of numerous mitigating factors will not automatically be considered as exceptional circumstances.

The Council has not provided a list of mitigating factors in this policy because it acknowledges that there are a large number of possible circumstances that might give rise to mitigation.

To ensure that any penalty imposed is proportionate to the offending behaviour, the presence of one or more aggravating factors will rarely result in the penalty being increased by more than £5000. In exceptional circumstances, officers may determine that the presence of one or more aggravating factors justify an increase in the penalty in excess of £5000. The presence of numerous aggravating factors will not automatically be considered as exceptional circumstances.

The Council will consider on a case-by-case basis whether any such exceptional circumstances exist.

Figure 4.1

Seriousness of offence	Starting level [£]
Mild	2,500
Moderate	7,500
Serious	12,500
Very Serious	17,500
Severe	22,500
Very Severe	27,500

5.0 Offences where a civil penalty may be levied as an alternative to prosecution and relevant considerations as to the level of that penalty

5.1 Failure to comply with an Improvement Notice - Section 30 of the Housing Act 2004.

Maximum Court fine following successful prosecution that can be levied for failure to comply with an Improvement Notice - Unlimited

An Improvement Notice served under Part 1 Housing Act 2004 specifies repairs/improvements that the recipient should carry out in order to address one or more identified Category 1 and/or Category 2 hazards in a property. Category 1 hazards are the most serious hazards, judged to have the highest risk of harm to the occupiers; the Council has a duty to take appropriate action where a dwelling is found to have one or more Category 1 hazards present.

In some cases, the service of an Improvement Notice will have followed an informal stage, where the landlord had been given the opportunity to carry out improvements without the need for formal action. In such cases, an identified failure to comply with an Improvement Notice will represent a continued failure on the part of the landlord to deal appropriately with one or more significant hazards affecting the occupier[s] of the relevant dwelling.

The Council would view the offence of failing to comply with the requirements of an Improvement Notice as a significant issue, exposing the tenant[s] of a dwelling to one or more significant hazards.

The seriousness of the offence is viewed by the Council as being a Severe matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £22,500.

Under the Council’s policy, the following table, Figure 5.1, shows the starting level financial penalty for a landlord controlling/owning/managing the number of dwellings/HMOs specified:

Figure 5.1

Offence	Starting level for Financial Penalty	Landlord controlling/owning/managing 1 – 2 dwellings (no more than 1 HMO). No other mitigating relevant factors or aggravating features	Landlord controlling/owning/managing 3 – 5 dwellings and/or 2 HMOs). No other mitigating relevant factors or aggravating features	Landlord controlling/owning/managing 6+ dwellings and/or 3+ HMOs) and/or relevant experience. No other mitigating relevant factors or aggravating features
Failure to Comply with an Improvement Notice	£22,500	£17,500	£22,500	£27,500

Offence

Starting level for Financial Penalty

Landlord controlling/owning/managing 1 – 2 dwellings (no more than 1 HMO).

No other mitigating relevant factors or aggravating features

Landlord controlling/owning/managing 3 – 5 dwellings and/or 2 HMOs).

No other mitigating relevant factors or aggravating features

Landlord controlling/owning/managing 6+ dwellings and/or 3+ HMOs) and/or relevant experience.

No other mitigating relevant factors or aggravating features

Failure to Comply with an Improvement Notice

£22,500

£17,500

£22,500

£27,500

Should mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly from the figures shown in Table 5.1.

Aggravating features/factors specific to non-compliance with an Improvement Notice

The nature and extent of hazards that are present. Multiple hazards and/or severe/extreme hazards that are considered to have a significant impact on the health and/or safety of the occupant[s] in the property or their guests would justify an increase in the level of the civil penalty.

Generic aggravating features/factors

The Council will have regard to general aggravating factors in determining the final level of the civil penalty including, but not limited to:

A previous history of non-compliance could justify an increased civil penalty. Examples of previous non-compliance would include previous successful prosecutions, receipt of financial penalties, rent repayment orders, works in default undertaken by the Council and breaches of regulations/obligations, irrespective of whether these breaches had been the subject of separate formal action.
A failure to cooperate with a Council investigation. Examples of failure to cooperate would include failing to comply with a s.16 Local Government (Miscellaneous Provisions) Act 1976 notice, failing to comply with a s.235 Housing Act 2004 notice, failing to provide a substantive response to a letter of alleged offence.
Deliberate intent when committing the offence. Examples of deliberate intent would include knowledge that the offence was occurring, committing the offence after relevant correspondence was sent by the Council.
The number of residents placed at risk.
Offending over an extended period of time i.e. 3 months or longer.
Whether any vulnerable residents were in occupation at the time of the offence. Examples of vulnerable residents include young adults and children, persons vulnerable by virtue of age, persons vulnerable by virtue of disability or sensory impairment, persons with a drug or alcohol addiction, victims of domestic abuse, children in care , people with complex health conditions, people who do not speak English as their first language, victims of trafficking or sexual exploitation, refugees, asylum seekers.

5.2 Failure to Licence Offences

Maximum Court fine following successful prosecution that can be levied for failure to license an HMO or Part 3 House – Unlimited

Failure to license a Mandatory ‘HMO’ – Section 72(1) of the Housing Act 2004

Under Part 2 Housing Act 2004, most higher risk HMOs occupied by 5 or more persons forming 2 or more households are required to hold a property licence issued by the local authority. HMO licensing was introduced to allow local authorities to regulate standards and conditions in high risk, multiply occupied residential premises. Through the property licence regime, local authorities ensure that the HMO has sufficient kitchens, baths/showers and WCs and place a limit on the number of persons permitted to occupy it and the licence holder is required to comply with a set of licence conditions.

The Council would view the offence of failing to license an HMO as a significant failing; Licensing was introduced by the Government in order to regulate management, conditions, standards and safety in the properties considered to represent the highest risk to tenants as regards such matters as fire safety and overcrowding.

This seriousness of the offence is viewed by the Council as being a Very Serious matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £17,500.

Under the Council’s policy, the civil penalty for a landlord controlling/owning/managing only one HMO dwelling and no more than one other dwelling that is not an HMO, with no other relevant factors or aggravating features [see below], will reduce by £5000, attracting a civil penalty of £12,500.

Under the Council’s policy, the civil penalty for a landlord controlling/owning/managing a significant property portfolio, being three, four, or five dwellings, and/or two HMOs, with no other relevant factors or aggravating features [see below], will attract a civil penalty of £17,500.

Under the Council’s policy, the civil penalty for a landlord controlling/owning/managing a large property portfolio, being six or more dwellings, and/or three or more HMOs and/or has demonstrated experience in the letting/management of property (irrespective of the size of the portfolio), with no other relevant factors or aggravating factors [see below], will increase by £5000, attracting a civil penalty of £22,500.

Should there be other mitigating/relevant or aggravating factors, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to failure to licence offences

The condition of the unlicensed property. The nature and extent of any significant hazards that are present would justify an increase in the level of the civil penalty. Equally, an HMO that was found to be poorly managed and/or lacking amenities/fire safety precautions and/or overcrowded would also justify an increased civil penalty.
Any demonstrated evidence that the landlord/agent was familiar with the need to obtain a property licence e.g. the fact that they were a named licence holder or manager in respect of an already licensed premises.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at paragraph 5.1 above.

5.3 Failure to comply with an Overcrowding Notice - Section 139 (7) of the Housing Act 2004

Maximum Court fine following successful prosecution that can be levied for failure to comply with an Overcrowding Notice – Level 4 - £2,500

Section 139 Housing Act 2004 allows the Council to serve an Overcrowding Notice in respect of an HMO that is not required to be licensed under Part 2 Housing Act 2004. The notice specifies, on a room-by-room basis, the maximum number of persons allowed to occupy each room as sleeping accommodation or that the room is not considered suitable for that purpose.

The Council would view the offence of failing to comply with the requirements of an Overcrowding Notice as a significant matter, exposing the tenant[s] of an HMO to unacceptably cramped living conditions.

The seriousness of the offence is viewed by the Council as being a Very Serious matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £17,500.

Under the Council’s policy, the civil penalty for a landlord controlling/owning/managing one or two dwellings, including no more than one HMO, with no other relevant factors or aggravating features [see below], will reduce by £5000, attracting a civil penalty of £12,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to non-compliance with an Overcrowding Notice

The level of overcrowding present – breaches that relate to over-occupation of multiple rooms or extreme over-occupation of an individual room would justify a higher civil penalty.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at paragraph 5.1 above.

5.4 Failure to comply with a Banning Order - Section 21 of the Housing And Planning Act 2016

Maximum Court fine that can be levied for failure to comply with a Banning Order following successful prosecution – Unlimited. In addition, the Court can also impose a prison sentence for up to 51 weeks.

The Housing and Planning Act 2016 includes provisions and processes for a person to be banned from being involved, for a specified period, in one or more of the following activities:

Letting housing
Engaging in letting agency work
Engaging in property management work

Banning Orders are reserved for what are recognised as being the most serious housing-related offences. In the event that the Council was satisfied that the offence of breaching a Banning Order had occurred, this would normally be the subject of prosecution proceedings. Where it was determined that a civil penalty would be appropriate in respect of a breach of a Banning Order, this would normally be set at the maximum level of £30,000 to reflect the severity of the offence

5.5 Failure to Comply with The Management of Houses in Multiple Occupation [England] Regulations 2006 and The Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007

Maximum Court fine following successful prosecution that can be levied for failure to comply with each individual regulation - unlimited

5.5.1 The Management of Houses in Multiple Occupation (England) Regulations 2006 impose duties on the persons managing HMOs in respect of:

Providing information to occupiers [Regulation 3]
Taking safety measures, including fire safety measures [Regulation 4]
Maintaining the water supply and drainage [Regulation 5]
Supplying and maintaining gas and electricity, including having these services/appliances regularly inspected [Regulation 6]
Maintaining common parts [Regulation 7]
Maintaining living accommodation [Regulation 8]
Providing sufficient waste disposal facilities [Regulation 9]

5.5.1a The Licensing and Management of Houses in Multiple Occupation (Additional Provisions) (England) Regulations 2007 impose duties on the persons managing HMOs as defined by Section 257 Housing Act 2004 in respect of:

Providing information to occupiers [regulation 4]
Taking safety measures, including fire safety measures [regulation 5]
Maintaining the water supply and drainage [regulation 6]
Supplying and maintaining gas and electricity, including having these services/appliances regularly inspected [regulation 7]
Maintaining common parts [regulation 8]
Maintaining living accommodation [regulation 9]
Providing sufficient waste disposal facilities [regulation 10]

It is important that the manager of an HMO complies with all regulations, but the Council recognises that a failure to comply with certain regulations is likely to have a much bigger impact on the safety and comfort of residents than others.

5.5.2 Failure to comply with the duty of manager to provide information to occupier

The Council would view the seriousness of the offence of failing to comply with the duty of the manager to provide information to occupier as a Mild matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £2,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to Management Regulation breach offences

The number and/or nature and/or extent of the management regulation breach(es) and/or the deficiencies within each regulation.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at paragraph 5.1 above.

5.5.3 Duty of manager to take safety measures

The Council would view the seriousness of the offence of failing to comply with the duty of the manager to take safety measures as a Very Serious matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £17,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to Management Regulation breach offences

As set out under ‘Failure to comply with the duty of manager to provide information to occupier’ at Paragraph 5.5.2 above.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at paragraph 5.1 above.

5.5.4 Duty of manager to maintain water supply and drainage

The Council would view the seriousness of the offence of failing to comply with the duty of the manager to maintain the water supply and drainage as a Serious matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £12,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Management Regulation breach offences

As set out under ‘Failure to comply with the duty of manager to provide information to occupier’ at Paragraph 5.5.2 above.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.5.5 Duty of manager to supply and maintain gas and electricity

The Council would view the seriousness of the offence of failing to comply with the duty of the manager to maintain the gas and electricity supply as a Serious matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £12,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Management Regulation breach offences

As set out under ‘Failure to comply with the duty of manager to provide information to occupier’ at Paragraph 5.5.2 above.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.5.6 Duty of manager to maintain common parts, fixtures, fittings and appliances

The Council would view the seriousness of the offence of failing to comply with the duty of the manager to maintain the common parts, fixture, fittings and appliances as a Moderate matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £7,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Management Regulation breach offences

As set out under ‘Failure to comply with the duty of manager to provide information to occupier’ at Paragraph 5.5.2 above.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.5.7 Duty of manager to maintain living accommodation

The Council would view the seriousness of the offence of failing to comply with the duty of the manager to maintain the living accommodation as a Moderate matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £7,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Management Regulation breach offences

As set out under ‘Failure to comply with the duty of manager to provide information to occupier’ at Paragraph 5.5.2 above.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1above.

5.5.8 Duty to provide waste disposal facilities

The Council would view the seriousness of the offence of failing to comply with the duty of the manager to provide waste disposal facilities as a Moderate matter (in accordance with Figure 4.1 above), attracting a financial penalty with a starting level of £7,500.

Under the Council’s policy the civil penalty for a landlord controlling/owning/managing only one HMO dwelling and no more than one other dwelling that is not an HMO, with no other relevant factors or aggravating features [see below], will reduce by £5000, attracting a civil penalty of £2,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Management Regulation breach offences

As set out under ‘Failure to comply with the duty of manager to provide information to occupier’ at Paragraph 5.5.2 above.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.6 Breach of licence conditions – Section 72(3) Housing Act 2004

Maximum Court fine following successful prosecution that can be levied for failure to comply with a licence condition - unlimited

All granted HMO licences impose a set of conditions on the licence holder. These conditions impose a variety of obligations relating to the letting, management and condition of the rented property.

It is important that the manager of a licensed property complies with all imposed conditions, but the Council recognises that a failure to comply with certain licence conditions is likely to have a much bigger impact on the safety and comfort of residents than others.

5.6.1 Failure to comply with licence conditions related to:

Signage or the provision of information for tenants
Provision of written terms of occupancy for tenants
Procedures regarding complaints
Procedures regarding vetting of incoming tenants
Compliance with deposit protection legislation
The recording and provision of information regarding rent payments
Procedures relating to rent collection
The provision of information regarding occupancy of the property
The provision of information regarding change of managers or licence holder details
The provision of information related to changes in the property
The provision of information relating to a change in mortgage provider
Requirements relating to the sale of the property
Attending training courses
Requirements to hold insurance
The provision of insurance documentation
The provision of or obtaining of suitable references
The provision of keys and alarm codes
Security provisions for access to the property
The provision of suitable means for occupiers to regulate temperature

The Council would view the seriousness of the offence of failing to comply with a licence condition as set out in Paragraph 5.6.1 above as a Mild matter (in accordance with Figure 4.1 above) , attracting a financial penalty with a starting level of £2,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to Licence Condition breach offences

The number and/or nature and/or extent of the licence condition regulation breach(es) and/or the deficiencies within each licence condition breach.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.6.2 Failure to comply with licence conditions related to:

Procedures and actions regarding Inspections
Procedures regarding repair issues
Maintenance and use of common parts (including gardens, outbuildings and property exterior) and living areas
Safeguarding occupiers and minimising disruption during works
The provision of information regarding alterations and construction works
Procedures regarding emergency issues
Waste and waste receptacles, pests, minor repairs, alterations or decoration.
Giving written notice prior to entry
Allowing access for inspections
Minimising risk of water contamination
The compliance of furnishings or furniture with fire safety regulations

The Council would view the seriousness of the offence of failing to comply with a licence condition as set out in Paragraph 5.6.2 above as a Moderate matter, attracting a financial penalty with a starting level of £7,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to Licence Condition breach offences

The number and/or nature and/or extent of the licence condition regulation breach(es) and/or the deficiencies within each licence condition breach.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.6.3 Failure to comply with licence conditions related to:

The provision of documentation regarding energy performance certificates, fire detection and prevention, emergency lighting, carbon monoxide detection, fire risk assessments, gas installations, electric installations and appliances
Notification of legal proceedings, contraventions and other relevant information that may affect a fit and proper person status
Procedures and actions regarding Anti Social Behaviour.

The Council would view the seriousness of the offence of failing to comply with a licence condition as set out in Paragraph 5.6.3 above as a Serious matter, attracting a financial penalty with a starting level of £12,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to Licence Condition breach offences

The number and/or nature and/or extent of the licence condition regulation breach(es) and/or the deficiencies within each licence condition breach.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.6.4 Failure to comply with licence conditions related to:

Minimum floor areas
Occupancy rates
Occupancy of rooms or areas that are not to be used as sleeping accommodation
Limits on number of households allowed to occupy the property or part of the property

The Council would view the seriousness of the offence of failing to comply with a licence condition as set out in Paragraph 5.6.4 above as a Very Serious matter, attracting a financial penalty with a starting level of £17,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to Licence Condition breach offences

The number and/or nature and/or extent of the licence condition regulation breach(es) and/or the deficiencies within each licence condition breach.

Generic aggravating features/factors : As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.6.5 Failure to comply with licence conditions related to:

The condition or existence of smoke alarms, carbon monoxide alarms, emergency lighting, gas installations, electric installations and appliances, fire detection or other fire safety features or requirements
The prevention including provision of safe means of escape

The Council would view the seriousness of the offence of failing to comply with a licence condition as set out in Paragraph 5.6.5 above as a Severe matter, attracting a financial penalty with a starting level of £22,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Licence Condition breach offences

The number and/or nature and/or extent of the licence condition regulation breach(es) and/or the deficiencies within each licence condition breach.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.7 Failure to Comply with Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 imposes duties on private landlords in relation to electrical installations. Regulation 3 is detailed below:

Regulation 3. Duties of private landlords in relation to electrical installations –

(1) A private landlord who grants or intends to grant a specified tenancy must:

(a) ensure that the electrical safety standards are met during any period when the residential premises are occupied under a specified tenancy;

(b) ensure every electrical installation in the residential premises is inspected and tested at regular intervals by a qualified person; and

(i) before the tenancy commences in relation to a new specified tenancy; or
(ii) by 1st April 2021 in relation to an existing specified tenancy.

(2) For the purposes of sub-paragraph (1)(b) "at regular intervals" means:

(a) at intervals of no more than 5 years; or

(b) where the most recent report under sub-paragraph (3)(a) requires such inspection and testing to be at intervals of less than 5 years, at the intervals specified in that report.

(3) Following the inspection and testing required under sub-paragraphs (1)(b) and (c) a private landlord must:

(a) obtain a report from the person conducting that inspection and test, which gives the results of the inspection and test and the date of the next inspection and test;

(b) supply a copy of that report to each existing tenant of the residential premises within 28 days of the inspection and test;

(c) supply a copy of that report to the local housing authority within 7 days of receiving a request in writing for it from that authority;

(d) retain a copy of that report until the next inspection and test is due and supply a copy to the person carrying out the next inspection and test; and

(e) supply a copy of the most recent report to—

(i) any new tenant of the specified tenancy to which the report relates before that tenant occupies those premises; and
(ii) any prospective tenant within 28 days of receiving a request in writing for it from that prospective tenant.

(4) Where a report under sub-paragraph (3)(a) indicates that a private landlord is or is potentially in breach of the duty under sub-paragraph (1)(a) and the report requires the private landlord to undertake further investigative or remedial work, the private landlord must ensure that further investigative or remedial work is carried out by a qualified person within:

(a) 28 days; or

(b) the period specified in the report if less than 28 days,

starting with the date of the inspection and testing.

(5) Where paragraph (4) applies, a private landlord must:

(a) obtain written confirmation from a qualified person that the further investigative or remedial work has been carried out and that—

(i) the electrical safety standards are met; or
(ii) further investigative or remedial work is required;

(b) supply that written confirmation, together with a copy of the report under sub-paragraph (3)(a) which required the further investigative or remedial work to each existing tenant of the residential premises within 28 days of completion of the further investigative or remedial work; and

(c) supply that written confirmation, together with a copy of the report under sub-paragraph (3)(a) which required the further investigative or remedial work to the local housing authority within 28 days of completion of the further investigative or remedial work.

(6) Where further investigative work is carried out in accordance with paragraph (4) and the outcome of that further investigative work is that further investigative or remedial work is required, the private landlord must repeat the steps in paragraphs (4) and (5) in respect of that further investigative or remedial work.

(7) For the purposes of sub-paragraph (3)(e)(ii) a person is a prospective tenant in relation to residential premises if that person:

(a) requests any information about the premises from the prospective landlord for the purpose of deciding whether to rent those premises;

(b) makes a request to view the premises for the purpose of deciding whether to rent those premises; or

It is important that a private landlord complies with all aspects of Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020. However, the Council recognises that a failure to comply with certain aspects of Regulation 3 is likely to have a much bigger impact on the safety and comfort of residents than others.

5.7.1 Failure to comply with Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 Sub-Regulations (3)(b), 3(d), 3(e)

The Council would view the seriousness of the offence of failing to comply with Sub-Regulations (3)(b), 3(d) or 3(e) of Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 as a Mild matter, attracting a financial penalty with a starting level of £2,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Electrical Safety Regulations breaches of duty

The number and/or nature and/or extent of the Electrical Safety Regulation breach(es) within each sub-regulation.
Using an unqualified person lacking appropriate certification to carry out inspection, testing, investigative or remedial work.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.7.2 Failure to comply with Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 Sub-Regulations (1)(a), (1)(b), (1)(c), (3)(a), (3)(c), (5)(b), (5)(c)

The Council would view the seriousness of the offence of failing to comply with Sub-Regulations (1)(a), (1)(b), (1)(c), (3)(a), (3)(c), (5)(b) or (5)(c) of Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 as a Serious matter, attracting a financial penalty with a starting level of £12,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly.

Aggravating features/factors specific to Electrical Safety Regulations breaches of duty

The number and/or nature and/or extent of the Electrical Safety Regulation breach(es) within each sub-regulation.
Using an unqualified person lacking appropriate certification to carry out inspection, testing, investigative or remedial work.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

5.7.3 Failure to comply with Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 Sub-Regulations (4), (5a), (6)

The Council would view the seriousness of the offence of failing to comply with Sub-Regulations (4), (5a) or (6) of Regulation 3 of The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 as a Very Serious matter, attracting a financial penalty with a starting level of £17,500.

Should other mitigating/relevant or aggravating factors exist, then under the Council’s policy, the civil penalty imposed by the Council may be decreased or increased accordingly

Aggravating features/factors specific to Electrical Safety Regulations breaches of duty

The number and/or nature and/or extent of the Electrical Safety Regulation breach(es) within each sub-regulation.
Using an unqualified person lacking appropriate certification to carry out inspection, testing, investigative or remedial work.

Generic aggravating features/factors: As set out under ‘Failure to comply with an Improvement Notice’ at Paragraph 5.1 above.

6.0 Process for imposing a civil penalty and the right to make representations

Before imposing a financial penalty on a person, the Council will give the person a Notice of Intent.

A person who is given a Notice of Intent may make written representations to the Council about the proposal to impose a financial penalty. Any representations must be made within a 28-day period, this period starting the day after the date on which the Notice of Intent was served on the recipient. As the burden lies with the recipient of any such notice to explain why the Council should, or should not, depart from the Civil Penalties Matrix and guidance above, the Council will expect the recipient of a Notice of Intent to explain and provide strong evidence to support the existence of any exceptional circumstances when they make representations in response to the notice.

In the event of two or more persons receiving separate Notices of Intent for the same matter, it should be noted that acceptance/payment of a civil penalty by one person will not negate the Council’s intention to impose a civil penalty on the second or further persons. Each person served with the Notice of Intent is considered individually liable to pay the civil penalty notified to them. It is therefore important that any recipient of a Notice of Intent takes the opportunity to make representations should they consider for any reason a civil penalty should not be individually imposed upon them.

After the end of the period for representations the Council will:

(a) Decide whether to impose a financial penalty on the person, and

(b) If it decides to impose a financial penalty, decide the amount of the penalty.

In determining whether to impose a financial penalty, and the level of any penalty, the Council will consider any written representations received in the appropriate time period and will also consider the totality principle by applying a total penalty reflecting the overall seriousness of the breach.

Furthermore, an offender’s actions to remedy the identified breach during the representation period would not, in itself, be reason for the Council to determine that the imposition of a financial penalty was inappropriate. However, compliance at this stage may be relevant with respect to any mitigating factors which could decrease the amount of any imposed financial penalty.

If, following the receipt of written representations and/or the expiry of the time period to make written representations, the Council decides to impose a financial penalty on the person, it will give the person a Final Notice imposing that penalty.

The Final Notice will set out and summarise:

a) The amount of the financial penalty;

b) The reasons for imposing the penalty;

c) Information about how to pay the penalty;

d) The period for payment of the penalty;

e) Information about rights of appeal, and

f) The consequences of failure to comply with the notice.

7.0 Discounts

The Council will automatically apply the following discounted rates to any imposed financial penalties in the following circumstances:

A discount of 15% of the original calculated financial penalty will be deducted from the penalty imposed in the Final Notice should the penalty be paid within a specified time period (normally 28 days).

Illustrative example

The landlord of a Mandatory HMO property fails to obtain a licence. They only operate two HMO properties and there are no other relevant factors or aggravating features. The offence is regarded as a Very Serious matter. Upon receipt of the ‘Notice of Intent’ to impose a £17,500 financial penalty, written representations are made to the Council.

On account of the written representations received from the landlord, the Council imposes a financial penalty of £16,000. In the event the landlord pays within the specified period, a 15% discount will be given, so that the landlord makes a discounted payment of £13,600.

Appendix 3

Statement of principles to determine the amount of a penalty charge for a breach of minimum energy efficiency standards (MEES) with respect to domestic privately rented property

The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 (“the Energy Efficiency Regulations”) were introduced to improve the energy efficiency of housing in the private rented sector and to reduce greenhouse gas emissions and tackle climate change. They should help make tenants’ homes more thermally efficient.

An energy performance certificate (EPC) gives the property an energy efficiency rating – ‘A’ rated properties are the most energy efficient and ‘G’ rated are the least efficient. An EPC is valid for 10 years and must be provided by the owner of a property, when it is rented or sold.

The Energy Efficiency Regulations cover all relevant properties, even where there has been no change of tenancy.

An EPC contains information about the type of heating system and typical energy costs. It also gives recommendations about how the energy use could be reduced, lowering running costs. You can find the recommended energy efficiency improvements on the current EPC.

If you’re a private landlord, you must either:

ensure your rented properties have an EPC with a minimum ‘E’ rating
register a valid PRS exemption on the PRS exemptions register

Failure to do either of these is a breach of the Regulations.

The Energy Efficiency Regulations make it unlawful to rent out a domestic property if it has an EPC rating of ‘F’ or ‘G’ (unless a valid exemption has been registered on the PRS Exemptions register).

If you are a landlord and you fail, when requested, to provide an EPC for the start of a tenancy, you will be in breach of the Regulations

The Council investigates any potential breaches of the Energy Efficiency Regulations. If the Council is satisfied that you are in breach of the Energy Efficiency Regulations or have, at any time in the 18 months preceding the date of service of the penalty notice, breached the Energy Efficiency Regulations, you may be subject to a penalty notice imposing a financial penalty. The Council may also impose a publication penalty.

The “publication penalty” means publication, for a minimum period of 12 months, or such longer period as the Council may decide, on the PRS Exemptions Register of such of the following information in relation to a penalty notice as the Council decides:

Where the landlord is not an individual, the landlord’s name;
Details of the breach of these Regulations in respect of which the penalty notice has been issued;
The address of the property in relation to which the breach has occurred, and
The amount of any financial penalty imposed.

The Council will impose the following financial penalties:

(a) letting a property with an ‘F’ or ‘G’ rating for less than 3 months: £2,000

(b) letting a property with an ‘F’ or ‘G’ rating for more than 3 months: £4,000

(d) failing to provide information to the Council demanded by a compliance notice: £2,000

The Council may not impose a financial penalty under both subsections (a) and (b) above in relation to the same breach of the Energy Efficiency Regulations but may impose a financial penalty under either paragraph (a) or paragraph (b), together with financial penalties under paragraphs (c) and (d), in relation to the same breach. Where penalties are imposed under more than one of these paragraphs, the total amount of the financial penalty may not be more than £5,000.