What is the Inspection Regime under HHSRS?
The HHSRS only applies to residential premises in the private sector; as it does not apply to local authority stock. Any form of accommodation used for human habitation is classed as a dwelling so long as it is a building or a part of a building – so mobile homes are not liable to inspection. The definition of a dwelling includes paths, yards, gardens and outbuildings associated with the dwelling as well as any rights, easements or services needed to live there. It does not matter whether these are shared.
It is also irrelevant that the dwelling concerned may be empty, since the inspection is based on a notional occupier. It is not therefore relevant if the landlord intends to evict the current occupiers and then reconstruct the property, and this is not a reason for a local authority not to inspect or to require improvements. In practice though it seems that EHOs (Environmental Health Officer) have tended not to enforce action where a landlord removes the tenants and purports to sell the property after an enforcement notice has been served.
Where an application has been made for an HMO (House in Multiple Occupation) or selective licence, an HHSRS inspection must be made within 5 years of the application. The grant of a licence should not be delayed pending such an inspection. The authority is obliged to inspect where they consider ‘that it would be appropriate’ for a property to be inspected. Local authorities are also required to carry out an inspection where a formal written complaint is made by a justice of the peace with jurisdiction over the area concerned, or by a parish or community council within the district.
The authority has no direct obligation to inspect where a complaint by the occupier is made, and some EHOs have proved reluctant to do so.
What is a Notional Occupier in relation to HHSRS (Housing Health Safety Rating System)?
The concept of a notional occupier is vital to the HHSRS. The hazard score is not calculated on the basis of any current occupier of a property but is always based on a theoretical occupier who is assumed to be from the most vulnerable groups in society.
Where a hazard profile requires a vulnerable group to be specified, it normally aims for children under the age of 5 or adults over the age of 65. This means that, when thinking about hazards, it is vital to think of them from the point of view of these groups. A flight of stairs for example should not be considered from the point of view of a young, healthy adult but rather from the perspective of an elderly person. This can be vital, as a landlord needs to understand the requirements and how an EHO (Environmental Health Officer) will arrive at the final conclusion – it is strongly advised that an HHSRS compliance survey is undertaken to identify the risks and weak points of a property.
Appropriate Notification – Why is it so Important?
A vital and often overlooked point in any inspection by a local authority is appropriate notification. A local authority officer must give at least 24 hours notice to both the owner of the premises and the occupier unless it is urgent that they enter immediately. On several occasions local authority officers have omitted to notify the owner and conducted inspections solely with the consent of the occupiers but Tribunals have quashed notices issued on the basis of an inspection conducted without due notice.
As a landlord it is equally important to be aware of the inspection, and to attend the visit, as it is an excellent opportunity to meet the HMO (House in Multiple Occupation) and discuss the issues raised and try to work out a feasible action plan.
Under HHSRS (Housing Health Safety Rating System) what are the Degrees of Harm?
There are 4 classes of harm, ranging from extreme to moderate.
• Extreme harms are those which will cause death or severe and permanent disablement.
• Severe harms would cause significant disablement for a substantial time period or long-term disfigurement.
• Serious harms are those which would cause moderate disablement or serious or long-term inconvenience.
• Moderate harms would cause minor disablement or recurring illness.
Local authorities must take enforcement action with regard to category 1 hazards and have a choice as to whether they should act in regard to category 2 hazards. The HHSRS gives a wide choice of enforcement options to local authorities, from mild rebukes through to full-fledged intervention.
Actions that can be taken include:
• hazard awareness notice;
• improvement notice;
• suspended improvement notice;
• prohibition order;
• suspended prohibition order;
• emergency prohibition order;
• emergency remedial action;
• demolition order; and
• clearance order.
The HHSRS provides for several levels of enforcement of increasing severity. Informal action is preferred for dealing with category 2 hazards, particularly where the landlord is inclined to be co-operative or the matter is of little importance. This is usually done by using letters stating that the authority is ‘minded to’ carry out some specific formal action and inviting informal responses to prevent this happening.
Local authorities are also required to consider the views of tenants, landlords and owners when formulating an enforcement policy and deciding what action to take.
• The hazard awareness notice (HAN) is the lowest tier of formalised action and should be used in most cases. However, the HAN has no direct power of enforcement associated with it and EHOs seem reluctant to use them for more serious issues.
• Improvement notices set out a schedule of improvements that must be carried out to the property within a set time period. They are the lowest level of notice which have a direct criminal sanction associated with non-compliance.
• Prohibition orders are a relatively severe sanction as they prohibit the use of the property or a part of it for specified purposes. They also have criminal sanctions associated with them. Where it is necessary to take urgent action in respect of a category 1 hazard, a local authority may also use an emergency prohibition order.
• Emergency remedial action enables local authorities to take urgent action themselves in serious cases where there is a risk to the health of the occupiers. This form of enforcement is not available for category 2 hazards.
• Demolition and clearance orders have been retained in full from the Housing Act 1985 and offer a last resort power of action in serious cases. As with emergency remedial action, this form of enforcement is not available for category 2 hazards.