HHSRS and Building Safety: Can Residents Force Councils to Carry Out Inspections?

Can residents compel council officers to use their enforcement powers against landlords and freeholders, and force councils to carry out inspections?

During ‘Housing Week’ at Anthony Gold my colleagues we are taking about on the ways in which tenants and leaseholders can work together to improve their homes. Our focus this week is on civil claims in the County Court but there is another legal route for residents to force landlords and freeholders to deal with problems in their properties: enforcement by local authorities.

In this blog post I take a look at that different approach, and its strengths and weaknesses in dealing with issues in the communal parts of buildings.

Local Authority Enforcement Action

When tenants and leaseholders are taking legal action against landlords and freeholders, for the most part, they are relying on the terms of the contract between those parties – agreements made in leases, and statutory implied contractual terms.

Local authorities do not have to rely on the terms of any contract to force landlords to carry out repairs and make improvements: council officers can use their enforcement powers in Part 1 of the Housing Act 2004 to carry out an assessment of hazards in a property – and where a serious hazard is identified, local authorities are required to take enforcement action.

What is HHSRS?

Local authority officers use the Housing Health and Safety Rating System to assess whether buildings are safe or not. HHSRS provides a way for officers to inspect a house and grade the likelihood of certain hazards occurring – and the harm caused if they do. There are 29 different hazards and property can be given a score for each one. This score will place the hazard in a ‘band’ between A and J. The most serious hazards (in bands A-C) are called category 1 hazards, and a local authority is under a duty to take action to get it fixed.

Why is this relevant to communal parts of buildings?

HHSRS is most often used as a way to monitor safety standards in rented accommodation, but it can be used to analyse any type of residential housing. Local authorities powers’ to inspect buildings under HHSRS does extend of common parts of buildings and this would include the exterior of a block of flats.

In November 2018 the Government published new guidance to assist environmental health officers to conduct HHSRS assessment high-rise residential buildings with unsafe cladding

What enforcement action can local authorities take?

Where a hazard is identified the Council may start by trying to negotiate with the landlord or freeholder. They can serve a ‘hazard awareness notice’ which has not legal force, but formally notifies the landlord about the hazards.

More robust measures are also available. Councils can require specific improvements to be made (an improvement notice) or they prohibit occupation of a property (a prohibition order). Councils can also carry out emergency remedial action themselves, or use more flexible ‘suspended’ notices and orders (which take effect after a specified period of time or after a specified event occurs).

There have been several examples of improvement notices served owners of buildings with apparently unsafe cladding. One example is Havering Council, who served a prohibition order on a freeholder requiring them to commission a qualified chartered Engineer to carry out repair works on cladding, removing the unsafe material and replacing it with materials compliant with current building regulations.

Can residents force councils to carry out inspections?

It is possible for residents to simply ask local authority officers to carry out an inspection and HHSRS assessment. However, limited resources might make council unwilling to carry out inspections on occasion. Budgets for housing standards enforcement have been hit hard in recent years, and it can also be very difficult to find staff with the specialist skills required to carry out HHSRS assessments (particular for unusual or complex assessments).

There is a way to force local authorities to carry out inspections. A justice of the peace (magistrate) with jurisdiction in any part of the district, or a parish or community council for a parish or community within the district can make an official complaint. If one of these persons makes an official complaint and the circumstances complained of indicate that there may be a hazard, the local authority must inspect. It might be appropriate for a residents association to make a request to an appropriate person for them to make an official complaint if they feel that they are being ignored by the council.

Limitations of HHSRS to improve building safety

Even where Environmental Health Officers inspect, this does not mean that they will take enforcement action. The council may conclude that there is no hazard present, and they always have a discretion about the type of action to take anyway. Residents would not be able to appeal a decision of the council not to take formal enforcement action to the Tribunal. In theory residents could challenge a decision not to take enforcement action in the High Court by way of a claim for judicial review, but for various reasons this is not a very attractive  or practical route.

An improvement notice will require someone to do the work, but they do not solve the problem of who will pay. The Council which pays for the work themselves – it is the responsibility of the party required the do the work. Professor Susan Bright has written about the particular issues arising from HHSRS in leasehold buildings. Whenever HHSRS is used there is a danger that the costs will simply end up being paid by leaseholders.

Another important shortcoming with HHSRS is that it cannot be used against local authorities (since they are the ones who serve the enforcement notices). This means that HHSRS cannot provide a way to compel local authority landlords to improve building safety.

Most importantly, tenants and leaseholders do not have any control over enforcement under HHSRS, and they will not receive compensation from their landlords. If either compensation or being ‘in the driving seat’ is a priority, civil claims might be more helpful to residents.