David Ormandy outlines two key local authority duties regarding the condition of housing in their areas.
Since the 19th century, local authorities have been given duties and powers to deal with bad (insanitary/unhealthy) dwellings. These laws and controls are relatively comprehensive, but the new laws that have been added create confusions and contradictions. Nonetheless, these duties are there, but seem to have been forgotten. One reason is the lack of qualified local authority staff to assess housing conditions (a result of severe austerity and cutbacks). Here, two of the major duties and their consequential actions are outlined, and suggestions made that could help raise awareness of the protection they are intended to give, ie, safer and healthier dwellings and their occupiers.
There was a
review of the Decent Homes Standard (DHS) in 2021, and suggestions to extend it.
1See A Decent Homes Standard in the private rented sector: consultation, Department for Levelling Up, Housing and Communities, 2 September 2022; closed 14 October 2022. And, since the tragic death of a toddler in Rochdale caused by living in appalling conditions,
2Mark Brown and Robert Booth, ‘Death of two-year-old from mould in flat a “defining moment”, says coroner’, Guardian, 15 November 2022. there have been cries for a new law to protect occupiers – Awaab’s law.
However, more laws and/or extending the DHS wouldn’t clarify things; they would add more confusion. It would be better to focus on why there is a lack of application of the existing laws. These laws could be effective, but a drastic lack of local authority resources (financial and human) means they are seldom enforced. The result is dangerous, health-threatening housing conditions, in all sectors, causing avoidable suffering and costs to the health sector, to the economy and to society.
One weak and some almost meaningless options
The DHS, perhaps because of its title, is seen as a major tool. It is
applied by the Housing Ombudsman, with a slow procedure that could result in landlords being told off and compensation recommended. It also duplicates four of the matters covered by the Housing Health and Safety Rating System
3Housing Health and Safety Rating System: operating guidance, Office of the Deputy Prime Minister, February 2006. (HHSRS – a statutory comprehensive assessment tool), and adds confusion (which approach should be followed, and if one is used does it bar use of the other?).
There is a range of obligations placed on landlords, including responsibility for disrepair, keeping the dwelling ‘fit for human habitation’, and ensuring that gas and electricity installations are safe. Power to take actions for breaches of these obligations rests with tenants, but inadequate security and legal aid difficulties are major disincentives. (Licensees and ‘guardians’ have few rights.)
The role of local authorities
Below, two provisions are outlined that place duties on local authorities to review and deal with unsatisfactory housing conditions. The lack of resources means that many authorities avoid a proactive approach (looking for dwellings that threaten health and/or safety) and, at best, only react to complaints.
Dwellings that are ‘prejudicial to health’
Dwellings in a condition that threatens health can be a ‘statutory nuisance’ (SN) and the Environmental Protection Act (EPA) 1990 places a duty on local authorities to ‘cause [their] area[s] to be inspected from time to time to detect’ any premises ‘in such a state as to be prejudicial to health or a nuisance' (s79(1)).
Based on some historic cases under the preceding SN provisions,
4Public Health Act 1936 Part III. ‘premises’ can range from a single room (and its means of access) to a block of flats; it is irrelevant whether the premises are occupied or whether any occupation is lawful, and it is the state of the premises as a whole that matters, so a single major problem or a multiplicity of relatively minor problems could make the premises ‘prejudicial to health’. While the term ‘prejudicial to health’ is defined as ‘injurious, or likely to cause injury, to health’ (EPA 1990 s79(7)), it has been held to exclude risks of physical injury (
R v Bristol City Council ex p Everett [1999] 1 WLR 1170; (1999) 31 HLR 1102). However, problems of condensation are covered – in one judgment, it was stated that a ‘landlord is required to apply his mind to the necessity of ventilation, and, if need be, to insulation and heating. The landlord must provide a combination of these factors to make a house habitable for the tenant’ (
Greater London Council v Tower Hamlets LBC (1983) 15 HLR 57).
5On condensation as a SN, see also Dover DC v Farrar (1980) 2 HLR 32 and Birmingham DC v Kelly and others (1985) 17 HLR 572.Local authority action
As well as being required to inspect its area for any SNs, EPA 1990 s79(1) states that ‘where a complaint of a statutory nuisance is made to [the local authority] by a person living within its area, [it must] take such steps as are reasonably practicable to investigate the complaint’.
Once a local authority is aware that a SN exists and ought to be dealt with, it must issue an ‘abatement notice’ on the person responsible, and where the SN is caused by a structural defect (such as condensation, dampness,
6See March 2023 Legal Action 7. and energy inefficiency
7See April 2023 Legal Action 15.) this is ‘the owner of the premises’ (EPA 1990 s80(2)(b)). The notice is to require remedial action within a specified time or times (s80(1)) and the options for enforcing an abatement notice are set out in Part III (these include the option of carrying out the necessary remedial action and recovering costs later, perhaps as a charge against the property).
Against whom can action be taken?
A local authority can take action (serve an abatement notice or carry out the work in default) against whoever is the owner of premises judged to be an SN, with only two exceptions – the armed forces (EPA 1990 s79(2)) and itself (see R v Cardiff City Council ex p Cross (1982) 6 HLR 6).
Where an unhealthy dwelling (ie, a dwelling that is an SN) is owned by a local authority, a ‘person aggrieved’ by the condition (ie, the occupier
8This can be any occupier – see Watkins v Aged Merchant Seamen’s Homes and Historic Property Restoration Ltd [2018] EWHC 2410 (Admin); November 2018 Legal Action 40 and Gould v Times Square Estates Ltd [1975] LAG Bulletin 247.) can take action. The action is by way of a complaint to the local magistrates’ court under EPA 1990 s82(1). Before making the complaint, the person aggrieved is required to serve a notice of intention (s82(6)–(7)).
If the court is satisfied that the dwelling is an SN, it can order remedial action, or, if satisfied that the conditions make the dwelling unfit for habitation, prohibit its use as a dwelling; it may also impose a fine (s82(2)–(3)).
(As legal aid is not available to follow this process, legal advice should be taken and, where possible, expert evidence obtained.)
Hazardous dwellings
Under the heading ‘Enforcement of housing standards: general’, Housing Act (HA) 2004 Part 1 chapter 1 sets out the duties and powers of local authorities to identify and deal with dwellings that are in a condition that threatens the occupiers’ health and/or safety.
This starts with a duty to keep housing conditions in their area under review with the aim of identifying any action that may need to be taken by them under the HA 2004, in particular, any action to deal with unhealthy and/or unsafe dwellings (s3(1)).
Where such a dwelling is identified, a thorough inspection using the HHSRS
9See Housing Health and Safety Rating System: operating guidance, ibid. should be commissioned. Where that inspection identifies one or more serious and imminent threats to health or safety (termed category 1 hazards), action must be taken; where less serious threats are found (category 2 hazards), there is a power to take action. The options include requiring remedial works, prohibiting the use for human habitation, and taking the remedial action and recovering the costs (ss5–7 and Sch 3).
These duties (and powers) extend to any unhealthy/unsafe dwelling, except ones owned by the enforcing authority (see R v Cardiff City Council ex p Cross above). This includes owner-occupied dwellings, where an authority can step in – with the agreement of the owner-occupier – to carry out remedial action and recover the cost later (perhaps as a charge against the property).
The procedures under Part 1 are complicated and time-consuming, putting landlords’ rights above the protection of occupiers’ health and safety.
10See David Ormandy and Stephen Battersby, ‘Landlords’ rights trump public health’, Journal of Housing Law vol 23, issue 1, 2020, pages 28–35. Add to these tortuous procedures the years of austerity and cutbacks, which mean that there is an inadequate number of staff qualified to carry out HHSRS assessments, and the result is that many authorities don’t review housing conditions and try to avoid looking for unhealthy dwellings.
The problem is how to show (prove) that a local authority is failing to review the housing conditions in its area and therefore unable to claim that it is ‘unaware’ of dwellings in its area that are hazardous to avoid its duties.
Making the local authority aware
HA 2004 s4(2) states:
If an official complaint about the condition of any residential premises … is made to the proper officer of the authority, and the circumstances complained of indicate … that any category 1 or category 2 hazard may exist on those premises … [then] the proper officer must inspect the premises or area.
An ‘official complaint’ is a written complaint made by either a justice of the peace or a parish/community council for the area (s4(3)), and a ‘proper officer’ is an officer appointed by the authority as it thinks necessary for the discharge of its functions (Local Government Act 1972 s112).
If an authority hasn’t appointed a ‘proper officer’ for the purposes of HA 2004 Part 1, then presumably, as soon as an ‘official complaint’ is received, it would have to appoint one, and, because requirements regarding the inspection require the appointee to be competent in HHSRS assessments, that person must be experienced (qualified) to carry out such inspections/assessments.
Where the ‘proper officer’ identifies an HHSRS category 1 or category 2 hazard at the premises, they ‘must, without delay, make a report in writing to the authority’ (s4(6)). As soon as possible after receipt of that report, the local authority must consider the findings given (s4(7)).
Although a local authority cannot take enforcement action against itself, it is arguable that, following an ‘official complaint’, the duty to inspect extends to dwellings it owns.
(NB: This process relating to the HA 2004 would also make the authority aware that the condition of a dwelling is ‘prejudicial to health’ if any HHSRS hazard was identified, and probably, therefore, a SN under the EPA 1990.)
Acknowledgement: The author thanks Penny Wiles for comments, suggestions and proofreading.