Social Housing Speed Read: Dealing with claims under the Environmental Protection Act 1990
21st April, 2023
Private prosecutions brought against Registered Providers of Social Housing under s82 of the Environmental Protection Act 1990 ("EPA") are once more becoming increasingly common.
Having last seen a surge in use in the 1990s they had fallen out of favour as a result of changes to the legal aid system. It is crucial that landlords are aware of process and how best to respond; EPA claims can be a pitfall for the unwary.
Statutory nuisances are the basis of these claims and may exist even if conditions are not caused by a breach of the landlord’s repairing obligations.
The nuisances most applicable to residential properties are:
- Any premises in such a state as to be prejudicial to health or a nuisance.
This is wide-reaching and can include damp and mould where it is so significant that it is likely to be detrimental to residents’ health, or infestation of pests or vermin.
- Fumes or gases emitted from premises so as to be prejudicial to health or a nuisance.
This encompasses leaky boilers and carbon monoxide poisoning.
- Any accumulation or deposit which is prejudicial to health or a nuisance.
This could include standing water in a cellar, if it’s causing damp in the property.
Typically, EPA proceedings are threatened by tenants. The tenant, or their legal representative, will send a short letter to their landlord stating which nuisance exists. From the date of the letter the landlord then has 21 days to abate (stop) the nuisance or else proceedings can begin.
An Environmental Health Officer (“EHO”) will determine whether the conditions are prejudicial to human health – establishing the link between health and the condition of the property. EHOs can be used both by tenants alleging the nuisance and landlords challenging the existence of the nuisance.
Once evidence is obtained, the burden of proof applied is the criminal burden of beyond all reasonable doubt.
Whilst statutory defences are very limited, a complete defence may be available if the tenant denies access to the property to inspect the nuisance and/or carry out repairs. In the case of Jones v Walsall Metropolitan Borough Council, Ms Jones was a secure tenant of Walsall MBC and her summons in respect of a statutory nuisance was dismissed because the Council had difficulty in gaining access. This was because she had failed to provide a telephone number for access. The Court determined that a defendant could avoid liability by proving he was not the person who caused the nuisance to arise or continue. In this case, by failing to provide access, it was Ms Jones who was responsible for the continuation of the nuisance, so the Council escaped liability.
This goes to show that denying access will offer a defence for landlords, with no obligation on the landlord to take legal action to enforce their rights of access.
If convicted under the EPA a Landlord can be subject to a fine of up to £5,000 and ordered to pay compensation and costs. Convictions for Registered Providers are reputationally damaging and can even lead to investigation by the Regulator of Social Housing and even a downgrading of Governance rating.
How to deal with an EPA claim
Acting quickly is a must. If you are in receipt of an EPA claim you must instruct a suitably qualified person to inspect the property as soon as possible. They will then make recommendations as to how you can address the problem. If you follow these recommendations and you are able to stop the conditions being prejudicial to human health, within the 21 day period, you have abated the nuisance. You must then ensure you respond to the tenant, or their legal representative, setting out your findings and the work you carried out to deal with the nuisance.
In your response you can also raise other points, such as, if the tenant’s lifestyle or use of the property contributed to the conditions. Though, be sure to back this up with sufficient evidence, including photographs.
If you are able to do this, many EPA claims will simply fall away.
As ever, record-keeping is key. Ensure you keep a clear, and accurate, record of your attempts to gain access, findings at the property, and works carried out. As shown above, this could offer you a complete defence to the proceedings.
If you find yourself in receipt of such a claim you must act quickly to ensure you abate the nuisance in the 21 day period following the tenants letter. The reputational and financial damage at stake means EPA claims must be taken seriously.
If you have any questions on the above and how it will affect social housing providers, or any other questions as a social housing provider, please do not hesitate to contact John Murray, or one of our expert Social Housing solicitors.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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