Housing, Neighbourhoods and Communities - April 2020
Brighton & Hove is a popular place to live which has affected the cost of buying and renting in the city. This has resulted in high property prices and high rents.
The city has a higher than average number of privately rented homes including Houses in Multiple Occupation, with demand for housing in the city outstripping supply.
The council believes that the private rented sector should be well managed and that everyone has the right to live in decent, safe accommodation.
This policy details how the council will regulate standards in private rented housing and tackle empty homes in Brighton & Hove. It also provides a background to the legislation and guidance on which it is based.
It's important for local authorities to have an enforcement policy to make sure the approach is consistent among officers. It also helps members of the public know what to expect from the service. An enforcement policy also provides clarity if the council takes legal proceedings or enforcement action is appealed against.
In developing this policy, we must remain impartial to both landlord and tenant. We'll help and advise to achieve our aim but we must also be firm in taking enforcement action if appropriate.
The Private Sector Housing Team is part of the council’s Housing, Neighbourhoods and Communities directorate. It aims to protect and improve lives by making sure private rented homes are safe and warm.
Our aims for compliance are to provide help, information and education. We also aim to work with landlords, lettings and management companies, tenants, owners of long-term or nuisance empty properties and other interested parties. We'll help them follow regulatory requirements and laws.
If such requirements are not met, we'll target enforcement action using a risk-based approach. We'll use relevant intelligence to make sure that we prioritise the most urgent cases.
The main themes of this policy are to make sure the council takes appropriate action to achieve the following general aims:
The policy applies to all private sector homes in the city and long-term empty properties.
The Regulators’ Code came into statutory effect on 6 April 2014 under the Legislative and Regulatory Reform Act 2006. It provides a clear, flexible and principles-based framework for how regulators should engage with those they regulate. The council must have regard to the code when regulating private rented housing standards and they must write the policy to reflect this.
For more information, read the Regulators' Code on GOV.UK.
We'll provide clear information and advice verbally or in writing about regulations, standards and enforcement work.
We'll take into account:
We'll make sure our actions are in line with legislation and other regulatory requirements.
We have written this policy taking into account relevant legislation, guidance and best practice.
We'll conduct enforcement action in a manner which doesn't conflict or undermine the principles of the Human Rights Act 1998 and the Equalities Act 2018. We'll make any enforcement decisions considering the council’s equality and inclusion policy statement and strategy.
Any enforcement action will take into account how vulnerable the interested parties are. We'll also take into account that at some point in the future the property may be occupied by someone who is vulnerable.
Where we carry out compliance and enforcement work, if we become aware of issues relating to safeguarding children and vulnerable adults, we have a duty to make the appropriate referrals. This will ensure we protect the welfare of the people at risk.
We foster and maintain good working relationships with partner services to help ensure all homes in the city, across all the different tenures, including long-term empty properties, are well managed and maintained.
While the landlord must be aware of their responsibilities, we'll always try to advise you of the legislation and help you understand how you can follow it.
We'll advise you of any action you need to take to follow the legislation. We'll also ask you to respond with how you intend to follow any requirements of any notice or licence.
If we're satisfied with your proposal, we'll work with you to agree reasonable timescales for compliance.
If we're not satisfied with your proposal or how the work is progressing, we'll start formal action that is appropriate to the circumstances.
We will generally make a change for the service of a statutory notice. You can find more information about this in Appendix 2.
When making any decision to prosecute or apply a civil penalty, we'll take into account:
We expect you to tell your landlord about any issues in your property, preferably in writing. You need to do this before you contact us for advice and guidance.
We'll tell you what action we can take and advise you of the expected timescales.
We expect you to co-operate with the landlord to get the work carried out (including providing access at all reasonable times). We also expect you to tell us of any action the landlord takes.
We expect owners to maintain the properties they live in without any intervention from us. We'll consider enforcement action if there's an imminent risk to a person’s life.
We'll work with owners of empty homes to encourage and assist their empty homes are brought back into use.
Where an empty property is having a detrimental impact on the neighbouring area, we will consider enforcement action where appropriate.
We will consider enforcement action like Compulsory Purchase Order, Empty Dwelling Management Order, and Enforced Sale:
In the following situations, we might cancel a service when the tenant's:
We'll provide authoritative, accessible advice around private sector housing. The council’s website is used to give general information, advice and guidance. This makes it easier for landlords, agents, home owners and others to understand their obligations. It's provided in clear, concise and accessible language, using a range of appropriate formats and media.
We'll consult with landlords’ associations and other appropriate stakeholders when we develop the content and style of this guidance. When we offer compliance advice, the Private Sector Housing Team will distinguish between statutory requirements and advice or guidance aimed at improvements above minimum standards. We will confirm in writing, if requested.
We welcome enquiries from home owners and landlords about complying with minimum standards and making sure homes are safe and warm. However, the service will not act as a consultant for home owners or landlords. It is not able to complete detailed assessments for specific properties, such as party wall issues or fire safety risk assessments.
Following the receipt of a request for assistance or complaint about poor housing conditions, an initial ‘risk assessment’ will normally be carried out. This is to ‘triage’ cases according to how severe they are.
Follow-up advice or action is dependent on the outcome of the initial risk assessment, and we may not always carry out a visit to the property. We also take into account safeguarding issues and how vulnerable the occupant is.
In the first instance we refer complaints about social housing properties to the providers to investigate. However, where intervention is necessary to protect health and safety, we will do so.
Inspections won't happen if there isn't a reason. Inspections and other visits will take place in response to a reasonable complaint or request for service or where poor conditions have been brought to our attention:
Where a visit is intended for advice purposes, or is an initial informal visit, we'll not necessarily inform the landlord, or his or her agent, beforehand. If we think formal action may be taken, we will contact the landlord or agent and give them the opportunity to accompany the Investigating Officer at the visit.
We'll focus our resources on the highest risk properties. These include the ones in the worst condition and properties owned by landlords who regularly fail to comply with regulations or frequently have properties with poor conditions. We'll try not to ask for unnecessary information or ask for the same information twice.
The service is accountable for how efficient and effective its activities are, while remaining independent in the decisions that it takes.
Employees will provide a polite, prompt and efficient service and will identify themselves by name. They will give a contact point, telephone number and email address.
We'll deal with complaints about our service in line with the council’s corporate complaints procedure. If you're not satisfied with the service we give, you should contact the Private Sector Housing Team to discuss their complaint.
The council will deal with all complaints in confidence and wherever possible will attempt to resolve your complaint informally. If you're still unhappy, you can contact the council’s customer feedback team.
The customer feedback process is without prejudice to any formal appeal mechanisms. Where a formal appeal mechanism exists, that mechanism must be used. The complaints procedure cannot be used as a substitution for a formal legal appeal.
If you're still not satisfied you can discuss your complaint with your local ward councillor, MP or raise your complaint with the Local Government Ombudsman.
Any person served with a notice or order has the right to appeal on any grounds set out in the legislation. Appeals regarding enforcement action under the Housing Act 2004 are made to the relevant First Tier Tribunal (Property Chamber).
For the southern area this is:
First Tier Tribunal - Property Chamber
Ground Floor
Residential Property
Havant Justice Centre
The Court House
Elmleigh Road
Havant, PO9 2AL
Phone number: 01243 779 394
Email address: rpsouthern@justice.gov.uk
All other appeals regarding enforcement action taken should be directed to the Magistrates Court or as directed on the notice or order served.
All officers must take this policy into account when they make enforcement decisions.
The service will keep its regulatory activities and interventions under review. They will consider if it is appropriate to remove or reduce the regulatory burdens they impose, where the council has direct control of these matters.
Changes will be introduced into this document where necessary to accommodate new legislation, guidance and local needs. Where housing or other related legislation is introduced, which is enforced by the council and permits the imposition of any monetary penalty or penalty charge, the council will seek to fully implement any duty or power conferred upon it.
We will review this policy every three years and amend it to reflect changes in legislation, corporate policy or official guidance.
If you have any comments or queries on this policy, please contact:
Brighton & Hove City Council
Room G3, Hove Town Hall
Norton Road,
Hove, BN3 3BQ
Email address: psh@brighton-hove.gov.uk
Phone number: 01273 293 156
Email address: emptyproperties@brighton-hove.gov.uk
Phone number: 01273 293 297 or 01273 293 035
The Housing Act 2004 introduced the Housing Health and Safety Rating System (HHSRS). It is a statutory, evidence-based, risk assessment method, for assessing and dealing with poor housing conditions. All officers using this are trained.
HHSRS is a calculation of the effect of 29 possible hazards on the health of occupiers. The legislation provides a range of actions for addressing identified hazards. It is a two-stage calculation combining the likelihood of an occurrence taking place. This is along with the range of probable harm outcomes that might arise from that occurrence, which results in a numerical rating. The assessment is not based on the risk to the actual occupant but on the group most vulnerable to that particular risk.
Once scored, any action considered will take into account the effect of that risk upon the actual occupant. The scores for each hazard present are then banded from A to J.
Bands A to C (ratings of 1,000 points and over) are the most severe and are known as Category 1 hazards when considering action.
Bands D to J, (rating less than 1,000 points) are less severe and known as Category 2 hazards.
HHSRS gives a score for each hazard identified and does not provide a single score for the dwelling as a whole. It can be applied to all residential premises, whether owner-occupied or rented.
The council has a duty to take appropriate action in response to a Category 1 hazard. When a Category 1 hazard is identified, the council must decide which of the available enforcement options it is most appropriate to use.
The council will use discretion and consider individual cases and circumstances when deciding whether to take action in response to Category 2 hazards. There is a power to deal with category 2 hazards. This is where the risk to health and/or safety is present but not so significant.
The council will use this power where there:
Unless there's an imminent risk to the health and safety of the occupant or visitors to the property, the council will attempt to secure the required improvements informally and within a reasonable amount of time.
Where this approach fails, the council will determine which of the specific enforcement options it will use, taking into account the facts and circumstances in each individual case.
When considering formal enforcement action, following an HHSRS inspection, we will, where appropriate, discuss the circumstances with those suspected of a breach and take these into account when deciding on the best approach. This will not apply:
We'll make sure clear reasons for any enforcement action are given and complaints and we explain appeals procedures. We'll provide a statement of reasons with any notice it serves, explaining why we have decided to take a particular course of action.
The decision to use enforcement action will depend on the severity of the non-compliance.
Factors that we'll take into consideration include:
The range of action that we will consider includes:
Notice advising the person on whom it is served of category 1 and/or category 2 hazard(s) at the property. These will usually be issued where there is a less serious hazard present. There is no right to appeal a hazard awareness notice.
Notice requiring the person on whom it is served, to take the remedial action specified in the notice in relation to the hazards found, within a specified timescale.
An order imposing restrictions on the use of the whole or part of the property and/or who can use the property.
This will be considered where there is an imminent risk of serious harm and a Category 1 hazard is present. The council will take the action necessary to mitigate and/or remove this risk where the person responsible cannot be contacted and formal action will be taken to recover the full costs incurred.
Same as a prohibition order but the order will take effect immediately. This is only available where a Category 1 Hazard is present.
An order that requires the demolition of the property. This is only available where a Category 1 Hazard is present.
An area which is to be cleared of all buildings. This is only available where Category 1 Hazards are present.
In determining what action to take, the council will use their judgement to take account of the current or potential occupants.
The council can also issue ‘Suspended Improvement Notices’ and ‘Suspended Prohibition Orders’. These are usually used where the condition of a property presents a risk to health and safety, but the property is unoccupied or not occupied by a vulnerable person. Suspended Notices are reviewed at least every 12 months.
Notices include reasonable time limits having regard to the seriousness of the defects and/or contraventions and contain a statement of reasons as to why the notice was served.
The notice/order will contain all required information as specified by the relevant act or regulation.
All appropriate people will be notified of the formal action, such as tenants or mortgagees.
Information on how the HHSRS will be applied to each tenure is set out in Appendix 1.
If there's a change in the occupation of a premises (leading to either an increase or decrease in the apparent risk to occupiers), the current state of any outstanding enforcement action will be reviewed by the investigating officer, in consultation with his or her line manager, to ensure that it is still appropriate and proportionate to the risk posed from the identified hazard(s).
Retaliatory eviction is where a tenant makes a legitimate complaint to their landlord about the condition of their property. Then in response, instead of making the repair, their landlord serves them with an eviction notice.
On 1 October 2015, a number of provisions in the Deregulation Act 2015 came into force. These provisions are designed to protect tenants against unfair eviction.
Where a tenant makes a genuine complaint about the condition of their property that has not been addressed by their landlord, their complaint has been verified by a local authority inspection, and the local authority has served, or is intending to serve, either an improvement notice or a notice of emergency remedial action, a landlord cannot evict that tenant for six months using the ‘no fault’ eviction procedure (a section 21 eviction). The landlord is also required to make sure the repairs are completed.
In order to rely on the protection against retaliatory eviction that the Deregulation Act 2015 provides, a tenant must approach the landlord in writing in the first instance. If, after 14 days from the tenant making a complaint, the landlord does not reply, the reply is inadequate, or they respond by issuing a Section 21 eviction notice, the tenant should approach the Private Sector Housing Team and ask us to carry out an inspection to verify the need for a repair.
We'll then undertake an HHSRS inspection, following the correct s239 Notice procedure to notify the landlord of the inspection. If the inspection verifies the tenant’s complaint, the enforcement officer will take appropriate action.
If the council serves an Improvement Notice or Notice of Emergency Remedial Action, the landlord cannot evict the tenant for 6 months using the no-fault eviction procedure.
We'll work with landlords to understand their obligations and the implications of this legislation. We'll also work with the council’s Housing Options team to give support, advice and guidance to the tenant in these circumstances.
The government intends to introduce a new, fairer deal for both landlords and tenants in the private rented sector. As part of this new deal, the government is proposing to put an end to ‘no-fault’ evictions by repealing section 21 of the Housing Act 1988. Under the new proposals, a tenant could not be evicted from their home without good reason.
The council has the power under Section 49 of the Housing Act 2004 to make a reasonable charge as a means of recovering certain administrative and other expenses. These expenses may have been incurred in:
Where a charge is made, the council can recover a reasonable amount for expenses incurred. This can be in connection with:
Costs incurred carrying out work in default or remedial action will be charged separately.
When the charge demand becomes operative, the sum recoverable will be a local land charge.
Where charges can be made, these will be set in line with all relevant guidance.
Details are given in Appendix 2.
Under the Housing Act 2004, the council must revoke an Improvement Notice or Prohibition Order once they have been complied with.
If part of the work required within an Improvement Notice or Prohibition Order is carried out, or if agreed with the case officer, then the notice can be varied to allow alternative works or additional compliance time.
If a notice is complied with, no further action will be taken. However, if the notice is not complied with, the council will consider the following options, taking into account the circumstances of each case:
Failure to comply with an Improvement Notice or a Prohibition Order is an offence punishable by an unlimited fine. Following conviction, it is an offence to carry on using the premises in breach of the Prohibition Order, attracting a daily fine.
The council will take action to recover its costs in connection with works in default, including admin charges.
The council will also take action to recover the costs incurred in carrying out work associated with Emergency Remedial Action.
As a charge on the property, the costs give the authority the same powers and remedies as a mortgagee under the Law of Property Act 1925 (Enforced Sale).
Prosecution will be considered in all cases of non-compliance, but with regard to all other possible options. This will be carried out in conjunction with the Legal Services Team.
Works in default will be considered if all other methods to try to remedy the necessary works have been unsuccessful. In determining if work in default is appropriate, officers will report to the Private Sector Housing Manager, who will consider approval based on the following information:
The council will normally seek to recover all of the costs associated with undertaking work in default (including time spent by its officers, administrative costs, contractors’ costs, the cost of any specialist reports, supervisory costs, etc).
In the case of officer time, the council will calculate costs as follows:
The expenses incurred will be recovered from the person(s) who received the notice or order, known as the relevant person. Where the relevant person receives the rent on behalf of someone else, the expenses will also be recovered from that other person.
The expenses will carry interest from the date of service until payment of all sums due under the demand at a rate specified at the time. The recoverable expenses, together with interest accrued on them, are a charge on the premises.
In addition, as a means of recovering the costs, the council may also serve recovery notices to recover, receive and give a discharge for any rent or sums in the nature of rent.
The council may use 'Simple Cautions' where someone has committed a less serious offence. Simple Cautions warn people that their behaviour has been unacceptable and makes them aware of the legal consequences should they commit further offences.
Simple cautions can only be issued where:
Simple cautions are not normally appropriate where there is history of offending within the last two years or where the same type of offence has been committed before.
A civil penalty is a financial penalty imposed by a local housing authority on an individual or organisation. It is an alternative to prosecution for certain housing offences under the Housing Act 2004. These include:
The maximum penalty is £30,000 - there is no minimum amount.
The decision to issue a financial penalty is made on a case by case basis. The amount of penalty is determined in accordance with statutory guidance.
More details of the council’s approach to determining the level of Financial Penalty can be found in Appendix 2.
Rent Repayment Orders (RROs), can be applied for in respect of the following offences committed after 6 April 2017:
The powers to apply Rent Repayment Orders to offences related to HMOs can be applied to a range of offences. These include:
The maximum amount of rent, either to a tenant for rent paid or to the council for housing benefit or universal credit paid, that can be recovered is capped at 12 months.
The council must apply to the First Tier Property Tribunal for an RRO. The council will consider application for RROs in all cases where a successful prosecution has been achieved.
A notice of intended proceedings will be sent to the relevant party with the required information and details of the right to make representations.
A 'Banning Order' prohibits a landlord or managing agent convicted of Banning Order offences under the Housing and Planning Act 2016 (Banning Order Offences) Regulations 2017, from undertaking activities in connection with letting a property for a period of at least 12 months.
Rogue landlords who flout their legal obligations and rent out accommodation which is substandard following prosecution, will be referred to the First-tier Tribunal for application of a banning order.
A Banning Order will last a minimum of 12 months. There is no statutory maximum period for a banning order.
The council will apply for Banning Orders to be made where:
A Banning Order means that the subject of the order cannot:
Once a banning order has been issued, it will be possible to include details in the database of rogue landlords and property agents.
Under the provisions within the Housing and Planning Act 2016, the government established and maintains a nationwide database to record details of landlords and managing agents given a Banning Order or convicted of certain offences.
Application to have landlord and agent details entered on the database is a statutory duty where a Banning Order has been given and is at the discretion of the housing authority in other circumstances.
The council will apply to have landlord’s details entered on the database where there is a duty to do so. In other cases where the law allows discretion when it is in the public interest to do so.
Under the Environmental Protection Act 1990, the council must take action to deal with a Statutory Nuisance if it exists, is likely to occur or recur. We would deal with a statutory nuisance, which could affect residential occupiers under section 79 of this act.
There are two parts to this as it applies to any premises in such a state as to be:
A general inspection of the premises would take place, to confirm the details of the complaint and to assess the situation.
The complainant will be made aware if further steps will be taken. It may be necessary to visit other premises to determine the cause of the nuisance. If access to other premises is refused, power of entry may be invoked.
If any action is taken, the complainant will be informed and sent a copy of any letter or the Abatement Notice, where possible.
The Abatement Notice itself is served on the person responsible for the statutory nuisance, which in this case would be the owner of the premises. Where the person cannot be found, or the nuisance has not yet occurred, the notice is served on the owner or occupier of the premises.
Enforcement of the notice can be done by a prosecution for non-compliance in the Magistrates Court, or by carrying out works in default, or both.
We'll investigate complaints from tenants living in privately rented properties about overcrowded living conditions. We'll also investigate where overcrowded conditions are legitimately impacting on neighbours’ health, safety or welfare.
Wherever possible, we'll resist taking action that would lead to homelessness but will seek to reduce any serious hazard of overcrowding using suspended notices where appropriate.
It's a criminal offence to contravene an overcrowding notice served under the Housing Act 1985. We'll consider taking enforcement action against those who do.
We can also take enforcement action to deal with ‘crowded’ conditions following an HHSRS assessment under provisions in the Housing Act 2004.
Officers will use the most appropriate legislation on a case by case basis.
The regulations impose obligations on landlords to make sure tenanted properties have smoke alarms and carbon monoxide alarms.
Reg 4(1) states that: A relevant landlord in respect of a specified tenancy must ensure that:
Where the council has reasonable grounds to believe that the requirements of these regulations haven't been met by a landlord, there is a duty on the council to serve a ‘remedial notice’.
A remedial notice must:
The remedial notice will confirm the provisions for a review, and the appeal procedures.
Failure to comply with a remedial notice imposes a further duty on the council to arrange remedial action and a power to require payment of a penalty charge.
Indicative penalty charges for non-compliance are outlined in Appendix 2.
On 20 March 2019, a new law came into force to make sure that rented houses and flats are ‘fit for human habitation’. This means they're safe, healthy and free from things that could cause serious harm.
If rented houses and flats are not ‘fit for human habitation’, tenants can take their landlord to court. The court can make the landlord carry out repairs or put right health and safety problems. The court can also make the landlord pay compensation to the tenant.
Tenants can use the Homes Act immediately if they signed their tenancy agreement contract on or after 20 March 2019. If they signed their contract before 20 March 2019, they will have to wait until 20 March 2020 before they can use the Homes Act - unless they sign a new tenancy or their tenancy becomes a monthly rolling contract.
You can find detailed guidance about the Homes (Fitness for Human Habitation) Act 2018.
If tenants ask us to visit to provide a report for evidence to support their case, we will not act solely as consultants for this purpose. We'll follow our usual procedures and take the appropriate action as necessary, which may involve contacting the landlord.
We may be able to provide a short, factual statement of the findings of our visit and offer limited advice, but tenants should seek their own independent legal advice.
It's a national legislative requirement that all houses in multiple occupation (HMOs) with five or more unrelated occupiers, who share facilities must be licensed. The aim of licensing is to make sure every licensable HMO is safe for the occupants and visitors, and is properly managed. The responsibility for applying for a licence rests with the person having control of or the person managing the property.
In March 2018, Brighton & Hove City Council introduced a discretionary licensing scheme across the city. They did this as a way to improve the safety standards and living accommodation for the benefit of tenants of smaller HMOs and other residents. The responsibility for applying for a licence under this scheme also rests with the person having control of or the person managing the property.
It's an offence under the Housing Act 2004, not to licence a property which falls under either scheme. It is also the landlord’s responsibility to re-licence a property as necessary. While we will aim to remind licence holders when renewals are due, this may not always be possible and the responsibility is on the landlord to apply before the licence expires. The council will prosecute, or issue a civil penalty, where a person fails to apply for a licence.
When considering the amenities required in a house in multiple occupation, regard will be made to the Brighton & Hove HMO Standards. These include minimum room sizes, along with bathing facilities and cooking amenities.
Find out more about the HMO Standards.
The Housing Act 2004 sets out a number of licensing related offences all of which carry an unlimited fine, including:
Also, a landlord who operates an unlicensed HMO can be subject to a Rent Repayment Order (RRO) by a First-tier Tribunal (Property Chamber) under sections 96 and 97 of the Housing Act 2004. The council may also decide to apply a Civil Penalty for certain offences using the Housing and Planning Act 2016.
A RRO requires repayment of rent received by the landlord over a period of up to 12 months. The council will usually consider applying for such a measure if the landlord has received rent that has been paid by Housing Benefit.
Where an unlicensed HMO is identified, the council will assess whether there are good reasons why an application has not been received. If there are no good reasons, the council will look to take formal proceedings with a view to prosecution in the courts or by way of issuing a Civil Penalty.
If a landlord of an unlicensed HMO approaches the council for licensing and the landlord fully co-operates with the council, including addressing any management, safety or amenity issue within an agreed timescale, the council would consider not taking enforcement action.
Generally, any breach of licence condition will be dealt with informally initially. However, if the breach is serious and affects the safety of the occupants or the responsible person does not carry out necessary work within an agreed timescale, the council will pursue legal proceedings.
An Interim Management Order (IMO) transfers the management of a residential property to the council for a period of up to twelve months. The circumstances in which an order can be made are discussed below. In particular, the IMO allows the council possession of the property against the immediate landlord, and subject to existing rights to occupy can:
Under an IMO, the council must pay to the relevant landlord. That is the person(s) who immediately before the order was made, was entitled to the rent for the property and any surplus of income over expenditure and any interest on such sum accrued during the period in which the IMO is in force. It must also keep full accounts of income and expenditure in respect of the house and make such accounts available to the relevant person.
The council must take enforcement action in respect of a licensable property (which means an HMO subject to Part 2, or other residential property subject to Part 3) by making an IMO if:
In exceptional circumstances, the council can also apply for a Final Management Order (FMO) which can last for up to five years. Such powers will only be used in exceptional circumstances.
A FMO cannot be made unless an IMO or another FMO was already in force. An FMO transfers the management of the house to the council for the duration of the order.
In particular, the FMO allows the council:
The council must adopt a management scheme for a property subject to an FMO. The scheme must set out how the council intends to manage the house.
In particular, the management scheme must include:
The council must also keep full accounts of income and expenditure in respect of the house and make such accounts available to the relevant landlord.
Where a landlord is, or shortly will be taking steps to make an HMO non-licensable, the council may serve a Temporary Exemption Notice (TEN). A TEN can only be granted for a maximum period of three months.
In exceptional circumstances a second TEN can be served for a further three-month period. A TEN will be served where the owner of the HMO states in writing that steps are being taken to make the HMO non-licensable within three months.
Under current legislation many HMOs do not currently require a licence. These include houses containing self-contained flats. Many of these still pose a significant degree of risk to occupants and/or have a history of being poorly managed.
The council will continue to regulate such HMOs through enforcement of the HMO Management Regulations and by use of the Housing Health and Safety Rating system.
Statistically, HMOs have one of the highest incidents of deaths caused by fire in any type of housing. It is therefore essential that any HMO possesses an adequate means of escape in event of a fire and adequate fire precautions.
The actual level of fire protection and detection required will be determined by a risk assessment. When requiring fire safety works, the council will have regards to the LACORS Fire Safety Guidance document.
The Private Sector Housing Team is generally the lead enforcing authority for fire safety in HMOs. However, where an HMO contains common areas, a Fire Risk Assessment must be carried out in accordance with the Regulatory Reform Order which is enforced by East Sussex Fire & Rescue Service.
For clarification, and/or general fire safety guidance, contact the Private Sector Housing Team.
Planning and HMO licensing are separate and governed by different pieces of legislation. HMO licensing is concerning the safety and welfare of the tenants. If tenants are present, we have to ensure the property complies, even if they are occupying without planning permission.
We'll liaise with the Planning Team where this is the case and decide on the approach on a case by case basis. We may, grant a licence for a period of time until the situation is regularised, or not grant a licence until the situation is regularised.
Landlords may wish to seek independent advice in relation to planning and HMOs as there are a number of variables. For instance, where an Article 4 Direction is in force under the Town & Country Planning Act 1990 (as amended), there must be planning permission for a smaller HMO.
Larger HMOs also require planning permission in all areas.
You can find more information about planning permission for houses in multiple occupation.
If we receive any complaints about noise or other anti-social behaviour from a licensed property, in the first instance we would write to the owner, managing agents and tenants about the issue, and remind them of their responsibilities under the provisions of the HMO Licence. After this we would ask for proof that the owners had addressed the issue with the tenants.
The name and address of the licence holder and the managing agents are detailed on the HMO register available on the council’s website. This is so the neighbour could approach them directly regarding the noise issues should they wish in addition to, or instead of approaching us.
You can find the register of HMO licences in Brighton & Hove.
Also, if the noise is frequent, the person complaining should report a noise problem to the the Noise Team in Environmental Health.
Both the University of Sussex and University of Brighton have teams that support community liaison where issues arise with their students living in the private rented sector. We liaise with them where appropriate.
We will also liaise with the Safer Communities Team as appropriate.
Empty homes can be a blight on our community as well as a wasted housing resource. Our approach will be to work with owners of empty homes with a solution-based approach to support and encourage voluntary action.
We're also committed to using appropriate enforcement action where owners fail to take responsibility for their properties, reasonable negotiations fail or there is little prospect of the property being bought back into use voluntarily.
We will consider a number of factors when we decide the best course of action for an empty home. For more information send an email to emptyproperties@brighton-hove.gov.uk.
The council will provide advice and assistance to the owners of empty properties to help bring the home back into use. It will however also consider using any of the following enforcement options:
Where a property has been left empty for over two years and is attracting anti-social behaviour, the council may seek an EDMO. The provisions for which are contained in the Housing Act 2004.
An EDMO allows the council to take over full management of the property for up to seven years, reclaiming any management and refurbishment costs from the rental income.
CPOs can be made under S17 of the Housing Act 1985 or s226 of the Town & Country Planning Act 1990. They allow local authorities to purchase properties in specific circumstances without the owner’s consent.
The Law of Property Act 1925 allows the recovery of debt secured by a registered charge by forcing the sale of a property. In situations where the council has served notices requiring the owner to ensure that their property is not unsafe or having a negative impact, but they have failed to act, the council may be forced to carry out the works in default.
If the costs incurred are not paid, the council will register a charge against the property and should the owner still not pay this debt, the council can begin legal proceedings to sell the property to recover the costs. An enforced sale under a different procedure can also be used to recover Council Tax arrears.
If a property is unsafe or causing, or is likely to cause, a nuisance to the locality, there are several legislative tools available to the council to ensure that the condition of the property is improved.
These include:
You can find more information on our empty properties page.
The Management Work required to belong to a scheme (England) Order 2014 requires that a person who engages in lettings agency work, or property management work must be a member of a redress scheme for dealing with complaints in connection with that work.
This is currently enforced by the Trading Standards team of the council. You can send an email to trading.standards@brighton-hove.gov.uk or go to the trading standards pages.
Minimum energy efficiency standards (MEES) are designed to tackle the least energy-efficient properties in England and Wales – those rated F or G on their Energy Performance Certificate (EPC).
The Regulations establish a minimum standard for all rented properties
Landlords that fail to make improvements where required, or register a valid exemption are committing an offence and risk of a financial penalty of up to £5000 per breach per property.
The regulations were introduced to improve the quality of private rented buildings in England and Wales and to increase the energy efficiency of the worst performing houses and buildings.
In addition, these regulations aim to improve the comfort and conditions in private rented homes and reduce fuel property.
The Government has recently consulted on changes to the minimum energy efficiency standards in the private rented sector. One of the proposals is to increase the minimum EPC rating to C on new tenancies by 2025 and all tenancies by 2028.
Visit Domestic private rented property: minimum energy efficiency standard - landlord guidance for more information.
Indicative penalty charges for non-compliance are outlined in Appendix 2.
The Housing Health & Safety Rating System (HHSRS) outlined above applies all tenures of housing. Furthermore, it does not specify that particular approaches or solutions should be used on the basis of ownership or the occupier’s status.
All enforcement options are available to the council regardless of whether the premises in question are owner-occupied, privately rented or belong to a social housing provider.
Generally, the council considers that owner-occupiers are usually in a position to take informed decisions concerning maintenance and improvement issues that might affect their welfare and are then able to set their financial priorities accordingly. However, tenants are not usually able to do so.
For this reason, the council proposes that it is appropriate for its powers to be used according to tenure, as follows.
The council anticipates that Hazard Awareness Notices will frequently be the appropriate course of action. However, the use of Improvement Notices, Prohibition Notices and their emergency equivalents will be considered in cases involving:
Unless an identified hazard is judged to pose an imminent risk of serious harm, the council will contact the owner to confirm its involvement, explain the nature of the hazard and confirm the action it is intending to take.
The council will take account of any proposals or representations made by, or on behalf of the owner. The council will solicit and take account of the opinion of the relevant Welfare Authority in considering both the vulnerability and capability of such persons as well as in determining what action it will then take.
Housing Providers exist to provide suitable and properly maintained accommodation for their tenants. They are managed by boards (which typically include tenant representatives) and their performance is scrutinised by the Homes and Communities Agency (HCA).
Housing providers normally employ staff to both manage and maintain their properties and will usually have written arrangements for reporting problems, setting out the response times they aim to achieve, and also for registering any complaints about service failure.
On this basis, the council will not normally take formal action against Housing Provider unless:
If the council determines that it is appropriate to take action, it will then normally notify the housing provider that a complaint has been received and/or a hazard identified and seek the housing provider’s comments and proposals.
Only in cases where it judges that an unsatisfactory response has been received will the council take further action and will then determine which of the available enforcement options is the most appropriate, considering the facts of the case.
The council will have regard to the principles of statutory guidance and relevant guidance and will initially seek to proceed informally.
Formal action will be initiated immediately if a hazard in question is judged by the council:
Initially, officers may visit the tenants at the property in an informal capacity. However, if arranging a formal inspection, the council will write to the landlord (or their relevant agent) to confirm their involvement and the time and date of the visit.
Following the inspection, the council will explain the nature of any hazard(s) identified in writing and seek the landlord/agent’s proposals for remedying the problem. Unless the council already holds the required information, a Requisition for Information Notice may also be served at this point.
Following the inspection, the council will not normally need to take any further action to discharge its duties as long as:
Landlords are expected to either:
The failure of an agent to respond to communication from the council or any failure to take appropriate action may be treated as a failure by the landlord.
The council will proceed with formal action by taking the most appropriate enforcement action in accordance with this policy if it receives:
Before considering taking any action in respect of a tenanted property, the tenant(s) will normally be required to contact their landlord about the problems (preferably in writing), allowing a reasonable time period for the landlord to make representation. Legislation covering landlord and tenant issues requires that tenants notify their landlords of any problems with the property.
Where the matter appears to present an imminent risk to the health and safety of the occupants, and the tenants cannot reach their landlord/agent, it is expected that they will continue to try to contact their landlord, even if this is after they have contacted the Private Sector Housing Team.
Copies of correspondence between the landlord and tenant should be provided for officers.
In certain situations, tenants will not be required to write to their landlord first, for example:
Tenants are responsible for keeping officers informed of any contact they have had with their landlord (or the landlord’s agent or builder, etc) which may affect the action the council is taking or considering taking. Tenants should also consider seeking independent legal advice about their own individual powers to resolve any dispute with their landlord.
Housing provider tenants have standard procedures to follow if their landlord does not carry out repairs in a satisfactory manner and also a final right of appeal to the Housing Ombudsman Service. However, if a housing provider has not taken appropriate action to deal with problems with the property, the council will investigate and take appropriate action.
Section 49 of the Housing Act 2004 gives the local authority discretion to levy a charge, (currently unlimited), as a means of recovering expenses incurred in:
In the case of Improvement, Emergency Remedial Action or Hazard Awareness Notices, the charge can be recovered from the person on whom the notice is served.
In the case of a Prohibition Order, the charge can be recovered from any person on whom a copy of the order is served who is an owner of the premises.
A formal demand for payment of the charge for enforcement will accompany any notice served, unless waived following discussion with the Private Sector Housing Manager.
The demand has effect 21 days after service if no appeal is made on the original Notice, and is registerable as a Local Land Charge.
For the purposes of enforcing the demand, the council has a power of sale under the Law of Property Act 1925, one month from the date on which the demand takes effect.
It is essential that charges levied can be justified and it is proposed that a series of relevant costings be established to cover the standard work undertaken in enforcement.
For service of notices, the following timed items will be included:
Having determined the total time taken for the tasks listed above, the cost will be calculated against our hourly chargable rates.
Where an officer has reason to believe that the application of a full charge is not appropriate they will discuss the case with the Private Sector Housing Manager to determine whether the charge should be applied.
Section 31 and Schedule 3 to the act enables the council to take the action required by an improvement notice itself, with or without the agreement of the person on whom the notice was served.
Where the council takes action with the agreement of the person served with the improvement notice, the works to be taken at their expense. Where the council takes action without agreement, it will recover expenses reasonably incurred. Such expenses may be registered as a local land charge on the property.
The council may make an admin charge on top of works in default costs.
A civil penalty is a financial penalty imposed by a local authority on an individual or organisation as an alternative to prosecution for certain housing offences under the Housing Act 2004.
The maximum penalty is £30,000 – there is no minimum set.
The decision to issue a financial penalty will be made on a case by case basis.
In determining an appropriate level of penalty, the council will have regard to statutory guidance, which sets out the following factors to take into account when deciding on the appropriate level of penalty:
These guidelines indicate the minimum financial penalty the council is likely to impose for each of the offences under the Housing Act 2004 that may attract a financial penalty, as an alternative to prosecution for offences.
Any deviation from the levels set out below, due to mitigating circumstances, will be referred to the Private Sector Housing Manager for decision on a case by case basis.
Very High - deliberate failure to comply with legal obligations.
High - knew or ought to have known that they were in breach of their legal responsibilities. Non-compliance over a long period or ignoring concerns raised by officers, tenants or others.
Medium - offence committed through an act or omission which a person exercising reasonable care would not commit.
Low - offence committed with little fault, for example, significant efforts were made to address the risk although they were inadequate or failings were minor and occurred as an isolated incident.
High - conditions pose a high risk of serious adverse effects to the health and mental wellbeing of the tenant(s) or Vulnerable people were put at risk.
Medium - conditions pose a medium risk of serious adverse effects to the health and mental wellbeing of the tenant(s) and / or visitors.
Low - conditions pose a low risk of adverse effects to the health and mental wellbeing of the tenant(s) and / or visitors.
Having determined the culpability and harm levels, the matrix below should be referred to in order to calculate the starting point for the civil penalty.
| Low harm | Medium harm | High harm | |
|---|---|---|---|
| Low culpability | £500 | £1500 | £2500 |
| Medium culpability | £1500 | £2500 | £5500 |
| High culpability | £2500 | £5000 | £12000 |
| Very high culpability | £6000 | £17000 | £30000 |
| Low harm | Medium harm | High harm | |
|---|---|---|---|
| Low culpability | £500 | £1000 | £2000 |
| Medium culpability | £1000 | £2000 | £5000 |
| High culpability | £2000 | £4000 | £10000 |
| Very high culpability | £5000 | £15000 | £25000 |
| Low harm | Medium harm | High harm | |
|---|---|---|---|
| Low culpability | £200 | £600 | £800 |
| Medium culpability | £300 | £700 | £900 |
| High culpability | £400 | £800 | £1000 |
| Very high culpability | £500 | £900 | £2000 |
| Low harm | Medium harm | High harm | |
|---|---|---|---|
| Low culpability | £200 | £600 | £800 |
| Medium culpability | £300 | £700 | £900 |
| High culpability | £400 | £800 | £1000 |
| Very high culpability | £500 | £900 | £2000 |
| Low harm | Medium harm | High harm | |
|---|---|---|---|
| Low culpability | £200 | £600 | £800 |
| Medium culpability | £300 | £700 | £900 |
| High culpability | £400 | £800 | £1000 |
| Very high culpability | £500 | £900 | £2000 |
| Low harm | Medium harm | High harm | |
|---|---|---|---|
| Low culpability | £400 | £1200 | £1600 |
| Medium culpability | £600 | £1400 | £1800 |
| High culpability | £800 | £1600 | £2000 |
| Very high culpability | £1000 | £3000 | £4000 |
| Low harm | Medium harm | High harm | |
|---|---|---|---|
| Low culpability | £100 | £300 | £400 |
| Medium culpability | £150 | £350 | £450 |
| High culpability | £200 | £400 | £500 |
| Very high culpability | £250 | £450 | £1000 |
Consideration could be given to further adjustments from the starting point to take into account aggravating and mitigating features. Set out below is a non-exhaustive list of factual elements providing the context of the offence and factors relating to the offender. Identify whether any combination of these or other relevant factors should result in an upward or downward adjustment from the starting point.
Aggravating factors include:
Factors reducing seriousness or reflecting personal mitigation:
Appeals must be made within 21 days of the date of service of the Notice to the First Tier Property Tribunal. For the southern area this is:
First Tier Tribunal - Property Chamber
Ground Floor
Residential Property
Havant Justice Centre
The Court House
Elmleigh Road
Havant, PO9 2AL
Phone number: 01243 779 394
Email address: rpsouthern@justice.gov.uk
The regulations impose obligations on landlords to ensure that tenanted properties are provided with smoke alarms and carbon monoxide alarms.
A remedial notice can be served for non-compliance. This will confirm the provisions for a review, and the appeal procedures.
Failure to comply with a remedial notice imposes a further duty on the council to arrange remedial action and a power to require payment of a penalty charge.
Indicative Penalty charges for non-compliance are as follows, these are guideline figures and will be considered on a case by case basis:
In determining the level of the fixed penalty notice, the council will consider the likely costs it will incur and the amount required sufficient to provide a deterrent to non-compliance. Increasing the fine for a second or third offence reflects the seriousness of the offence and is designed to deter repeat offending.
While these charges will be set as standard, a landlord may seek to review a penalty charge notice within 28 days by service of notice on the council. A senior officer not directly involved in the service of the original notice, will carry out this review. The reviewing officer will consider the representations made by the landlord and decide whether to confirm, vary or withdraw the penalty charge notice.
In doing so the reviewing officer will have regard to the amount required for the council to recover its costs and that the council has considered and agreed a level of fine that it considers is sufficient to provide a deterrent to non-compliance.
After reviewing the fixed penalty notice the reviewing officer will inform the landlord by service of notice of their decision. The 50% reduction for a first offence will apply to any revised charge set should payment be within 14 days of service of the revised notice.
If you have any comments or queries on this policy, please contact:
The Private Sector Housing Team
Brighton & Hove City Council
Room G3, Hove Town Hall
Norton Road,
Hove, BN3 3BQ
Email address: psh@brighton-hove.gov.uk
Phone number: 01273 293 156
The Empty Property Team
Email address: emptyproperties@brighton-hove.gov.uk
Phone number: 01273 293 297 or 01273 293 035