This entry is part 1 of 4 in the series Housing Health and Safety Rating System

One of the most important elements of an inspection for HHSRS purposes is section 239(5) Housing Act 2004. This requires at least 24 hours notice of the intention to inspect to be first given to owners and occupiers where that inspection is in relation to assessing the property for the housing health and safety rating system [s.239(2)].

Before entering any premises in exercise of the power conferred by subsection (3), the authorised person or proper officer must have given at least 24 hours’ notice of his intention to do so—

(a) to the owner of the premises (if known), and
(b) to the occupier (if any).”

24 Hours notice is not required where:

“the local housing authority consider that any premises need to be entered for the purpose of ascertaining whether an offence has been committed under section 72, 95 or 234(3)”.

These offences are:

  • operating an unlicensed HMO which is required to be licensed under Part 2 of the Act (section 72(1));
  • exceeding the specified occupancy limit in a licensed HMO (section 72(2));
  • failing to comply with a licence condition in a licensed HMO (section 72(3));
  • operating an unlicensed property which is required to be licensed under a selective licensing scheme (section 95(1));
  • failing to comply with a licence condition in a property licensed under a selective licensing scheme (section 95(2)); or
  • failing to comply with the HMO Management Regulations (section 234(3)).

However, it is important to note that local authorities must still give at least 24 hours notice when investigating possible offences of failing to comply with Improvement Notices and/or (Emergency) Prohibition Orders under Part 1 of the Act. Where there is a problem with gaining access, or where giving notice may defeat the purpose of entry, the authorised officer may need to consider obtaining a warrant.

In Evans v LB Campden, the improvement notice was quashed because the local authority had failed to give the notice.

“the purpose of section 239(5) is to give a mandatory warning to the occupiers and owners of the inspection and some opportunity to deal with it before the inspection and the service of a notice. Lack of warning in this instance deprived Mr. and Mrs. Evans of such an opportunity and in the Tribunal’s view has invalidated the subsequent steps taken by the respondent in serving the Notice and it cannot now be relied upon.”

In Martin Thomas v Bristol CC it was confirmed:

“when Parliament gave local housing authorities the power to enter properties in order to exercise what may be draconian powers, it intended that both the owner and the occupier of the property should have notice so they could prepare for the inspection.”

In St John the Baptist College, University of Oxford v Vale of White House DC which was an appeal against an improvement notice, the local authority had been invited in to the property and so gave no notice.

“The inspection by the respondent’s officer was not illegal or unlawful as he was invited into the premises but the inspection could not form the basis of an enforcement action under Housing Act 2004.”

See also Williams v Monmouthshire County Council May 2009 RPT/HA04/S11

An answer phone message left by a local authority on a landlords (or agents) answering machine has been held not to be adequate notice [Metlane Ltd v Amber Valley District Council BIR/17UB/HIN/2012/0007]

But even if better evidence of the answer phone message had been available, the Tribunal considers that the information required under section 239(5) must be conveyed to a real person for it properly to be said that actual oral notice had been given.

 

However, going against the grain of the above decisions, in Cheltenham Construction Ltd. v Gloucester CC, Mrs Thomas, the council officer had been invited to inspect the property, by the tenant. As she was concerned about fire safety, Mrs Thomas visited again on 22nd August with a Fire Prevention Officer. The officers agreed there was a category 1 fire hazard, which justified Emergency Remedial Action. Works were carried out and a notice was subsequently served on the owner.

The Tribunal accepted that the 24 hour notice had been given to the owner in respect of the second visit, however they did not consider this notice was necessary. The tribunal said (paragraphs 47-48 of the decision)

“No question arises as to whether or not the Respondent gave the appropriate notice of that visit because Mrs Thomas went to Flat 3 at the invitation of the tenant………There is no need for the respondent to exercise that power if it is invited into the property……..It follows that there was no requirement to give notice under Section 239(5) to either the owner or the occupier.”

It would seem that if a notice of inspection has been served on a couple of occasions previously but the landlord didn’t attend and the local authority are subsequently invited in (in this case 3 days after the notice) then enforcement action may be taken as a result of the inspection. [Craig v Milton Keynes Council (2011)].

LACORS (now Local Government Regulation) provide some useful guidance on notice given before an inspection (where this article is sourced) and they state in this guidance:

LACORS does not believe it is necessary to give 24 hours notice to the owner and occupier if the LHA has been contacted by the occupier and invited into the property to carry out an inspection. In these circumstances, the authorised officer is not formally exercising their power of entry – they are simply responding to a request from the occupant. However the likely need for enforcement action needs to be considered before the visit and a decision made on whether to give notice of entry.

And continues …

One reason for reaching this decision is the nonsensical position that would otherwise be reached if the opposite position applied. For example, assume an authorised officer had been invited into a property by the occupier to investigate an urgent complaint of dangerous electrics. If, on visiting the property, the authorised officer discovered live electrical cables at floor level in a young child’s bedroom and considered that the situation presented a category one hazard with an imminent risk of serious harm, should the officer be able to proceed with Emergency Remedial Action (ERA)? If 24 hours notice of inspection must be given to the owner and occupier, the answer would be no – the officer would need to walk away and leave the occupants at imminent risk of harm, only to return and re-inspect the property once at least 24 hours notice had been given. The decision to include ERA powers in the Act implies the LHA must be able to respond promptly when they encounter such a situation. If this advice is later overturned by a court or lands tribunal decision that sets precedence, LACORS believes that the Government would need to consider changes to the primary legislation.

It is respectfully submitted that although LACORS are providing a very extreme example above, they are missing the point. The law provides that a landlord does not have to carry out works of repair under section 11 Landlord and Tenant Act 1985 until he is either aware or could reasonably be aware works are required or is put on notice of the defect. From that point, the work must be done “expeditiously” [O’Brien v Robinson [1973] A.C. 912]. Rather than walking away as suggested above, it is submitted they shouldn’t have gone round in the first place without giving prior notice (which s.239(5) makes clear).

The clear intention in our view behind the requirement to give notice is not just to keep an element of control over local authorities but also as was stated in Martin Thomas v Bristol CC and Evans v LB Campden above that the purpose is to allow both owner and occupier to prepare and have an opportunity to get works done before the inspection.

If notice is not required where the LA has been invited as suggested by LACORS, the landlord has no opportunity whatsoever to comply with his section 11 duty and promptly get the works done before the inspection takes place. Afterall, using the example provided by LACORS above, it is unlikely that situation literally arose in a split second. It will no doubt have been in that situation for some time and a further 24 hours is unlikely to make any difference in reality.

The purpose of notice is surely to allow the landlord to promptly act before any inspection takes place and quite rightly avoid any emergency action that may be taken by the local authority? If the landlord has not had time to go prior to inspection but attends at the time of the inspection it must surely be better that the landlord could say “come back in a couple of hours and the electrics will be fixed“.

It is entirely accepted in the example given above, if after 24 hours notice the landlord fails to take action prior to inspection or fails to attend the inspection, then, the local authority is quite within their moral and legal rights to carry out the works (if that is the appropriate course of action).

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