Social Housing Speed Read – Humber Landlords Association v Hull City Council

Facts

The claimant in this case, the Humber Landlords Association (the HLA), is a representative body of landlords and letting agents. The HLA, with support from two national landlords associations, the Residential Landlords Association and National Landlords Association, brought a judicial review of Hull City Council’s (the Council) introduction of a new policy requiring that enforcement action be taken where a certain level of hazard existed at a property.

Under Part 1 of the Housing Act 2004 (the Act) the Housing Health and Safety Rating System (HHSRS) was introduced for assessing housing conditions and enforcing standards; hazards are classified as category 1 or category 2 depending on their severity. Section 5 of the Act imposes a duty on local housing authorities to take enforcement action if a category 1 hazard is considered to exist, while section 7 of the Act gives a power to take enforcement action in the case of a category 2 hazard but does not require action be taken.

As well as the power of local authorities as prescribed in the Act, the Secretary of State also has power to issue guidance on the operation of the HHSRS as per section 9 of the Act, and did so in 2006. This guidance included the statement 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 Council’s new policy being challenged by the HLA was that an enforcement notice would be issued to a landlord whenever a category 1 hazard was reported by a tenant, which would mean the landlord in question being charged a fee of £250 for dealing with the notice. Previously the Council had had in place a more informal improvement notice procedure which allowed greater flexibility and did not lead to a fee being charged in all cases.

The reasoning behind the Council’s decision was that it would help protect vulnerable tenants and ensure they lived in adequate housing; however, the HLA contended that the policy was excessive and could lead to landlords selling their properties due to the increased costs, which might cause tenants to lose their homes, as well as potential problems with mortgage providers. The HLA brought a judicial review of the Council’s decision in the High Court.

The case

The HLA argued that the Council’s decision to require the service of an enforcement notice wherever there was a category 1 hazard was a fettering of their discretion, as it required notice be served regardless of the circumstances and the severity of the hazard; and that it was inconsistent with the statutory guidance, which provided for some flexibility in the approach to be taken by local authorities by allowing them to postpone the service of a notice where landlords had agreed to cooperate.

The Council denied that this was the effect of their policy; that instead it was being implemented to protect tenants and ensure their homes were fit for purpose, while also helping protect them from eviction in retaliation for requesting repairs by their landlords.

The High Court’s decision

The Court dismissed the HLA’s claim, finding that when properly construed, the Council’s policy reflected the requirements of the Act that a local authority must take enforcement action in relation to a category 1 hazard. As such, the Council had not acted in breach of the law when implementing its policy.

Additionally, the Council’s decision to take enforcement action in all cases of category 1 hazards did not mean they would be issuing the more draconian improvement notices in every instance, which was what the HLA was concerned would be the case; it would instead depend on the nature of the case. Moreover, the Council had a greater degree of flexibility when dealing with category 2 hazards which included the use of informal remedies.

Thus the Court held that the Council had not fettered its discretion nor had it contravened the statutory guidance in adopting its new policy.

Comment

This case confirms that councils will be acting legally in adopting a “zero tolerance” enforcement policy against landlords where there are HHSRS hazards in rented properties. As such, landlords should be proactive in dealing with such hazards and should not assume that local authorities will not take formal action just because they have been cooperative.

However, the decision also confirmed that while councils are permitted to adopt policies which require enforcement action be taken whenever a category 1 hazard arises, they still retain some degree of discretion in terms of what action is to be taken, so landlords should maintain a dialogue with their local authority to try and ensure the most agreeable course of action can be taken.

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 a member of our expert Social Housing Team.