Humber Landlords Association v Hull City Council
| Jurisdiction | England & Wales |
| Judge | Klein |
| Judgment Date | 06 March 2019 |
| Neutral Citation | [2019] EWHC 332 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Claim No. CO/2580/2018 |
| Date | 06 March 2019 |
[2019] EWHC 332 (Admin)
HIS HONOUR JUDGE Klein SITTING AS A JUDGE OF THE HIGH COURT
Claim No. CO/2580/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT AT LEEDS
Leeds Combined Court Centre,
The Courthouse,
1 Oxford Row,
Leeds, LS1 3BG.
Jonathan Manning (instructed by Bury & Walkers LLP) for the Claimant
Wayne Beglan and Alex Williams (instructed by Legal Services, Hull City Council) for the Defendant
Hearing date: 12 February 2019
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
HIS HONOUR JUDGE Klein
HH Judge
This is the judgment in a judicial review claim, which was begun on 3 July 2018, for an order quashing the decision of the Defendant's (“the council's”) cabinet to approve a new housing enforcement policy, its Private Sector Housing Enforcement Policy 2018–2022 (“the Policy”), on 23 April 2018. HH Judge Saffman gave permission for the claim to proceed, on all grounds, on 6 August 2018.
The Claimant (“the Association”) has a particular interest in the Policy because, as it explains in its Statement of Facts and Grounds for Judicial Review (“the Grounds”):
“The Association is a representative organisation for private landlords and letting agents in the Hull area. It was formed over 30 years ago with the aim of improving standards in private rented accommodation, and has been recognised by [the council] as a consultee in relation to housing matters.”
By the Policy, the council has sought to set out how it intends to carry out its obligations under Part 1 of the Housing Act 2004 (“the 2004 Act”); in particular, how it intends to enforce housing standards and to address hazardous housing conditions.
By the Grounds, the Association challenges the decision to approve the Policy (and, in fact, the Policy itself) on 6 grounds; namely, that:
i) the council has decided to adopt a policy (i) of taking formal enforcement action by way of serving improvement notices in every case except (a) for the most insignificant of “hazards” (as defined in the 2004 Act) or (b) where a landlord is a member of the council's own new accreditation scheme (“new HALS”) which does not exist, (ii) for the purpose of protecting tenants from retaliatory evictions by landlords if tenants make complaints to the council. The decision is unlawful because it (i) purports to give effect to a purpose (that is, the protection of tenants from retaliatory evictions) which is not a permitted purpose under Part 1 of the 2004 Act, 1 (ii) is contrary to the 2004 Act, (iii) only permits one form of formal enforcement action; namely, the service of an improvement notice and (iv) prevents the council considering the merits of each particular case;
ii) the adoption of the Policy has fettered the exercise of the council's discretion, because the council has decided to take formal enforcement action by way of serving improvement notices in every case except (i) for the most insignificant of “hazards” or (ii) where a landlord is a member of new HALS; 2
iii) the council has failed to take into account statutory Enforcement Guidance (issued under section 9 of the 2004 Act) and the Enforcement Concordat, 3 to
which I make further reference below, and the Policy is inconsistent with it, in any event; 4iv) the council has no evidence of the number of retaliatory evictions in Hull and so has no evidence that there is a real risk of such evictions. It is unlawful, therefore, for the Policy to give the risk of retaliatory eviction “overwhelming weight”;
v) the council gave too much weight to a landlord's membership of new HALS, because membership of that scheme is the “only exception to the general policy”, which I understand to be the taking of formal enforcement action, save in the case of the most insignificant of hazards. Further, by approving the Policy, the council is wrongly trying to compel landlords to join new HALS;
vi) therefore, the decision to adopt the Policy was perverse; particularly in circumstances where new HALS is not operational. The decision to adopt the Policy (the purpose of which is to prevent retaliatory evictions) was also perverse because the Policy can only prevent retaliatory evictions from premises let on assured shorthold tenancies and only for a period of 6 months (because that is the effect of the Deregulation Act 2015 (which is intended to protect against such evictions)).
Part 1 of 2004 Act and statutory guidance
Part 1 of the 2004 Act provides, by section 1(1):
“…for a new system of assessing the condition of residential premises, and…for that system to be used in the enforcement of housing standards in relation to such premises.”
By section 1(2) of the 2004 Act:
“The new system…operates by reference to the existence of category 1 or category 2 hazards on residential premises.”
As Mr Manning explained in his skeleton argument:
“Part 1 reforms the law in relation to the fitness for human habitation of residential accommodation. It introduced an entirely new, risk-based, fitness regime by reference to the ascertainment of risks posed to occupiers from certain shortcomings in the property they occupied. The new regime — the “Housing Health and Safety Rating System” or “HHSRS” — operates by reference to the existence of “category 1” or “category 2” “hazards” on residential premises.”
By section 5 of the 2004 Act, if a hazard is calculated as being so serious as to fall into category 1, a local housing authority must take appropriate enforcement action, which can be the service of an improvement notice under section 11 of the 2004 Act,
a prohibition order under section 20 of the 2004 Act, a hazard awareness notice under section 28 of the 2004 Act, emergency remedial action under section 40 of the 2004 Act, an emergency prohibition order under section 43 of the 2004 Act, a demolition order under section 265 of the Housing Act 1985, or the declaration of the area in which the premises concerned are situated as a clearance area under section 289(2) of the Housing Act 1985By section 7 of the 2004 Act, a local housing authority may take the following enforcement action where a hazard is calculated as falling into category 2: the service of an improvement notice, the making of a prohibition order, the service of a hazard awareness notice, the making of a demolition order or the making of a slum clearance declaration.
Under section 9 of the 2004 Act, the Office of the Deputy Prime Minister gave guidance to local housing authorities, to which they are required to have regard, about, in particular, “their functions under [Chapter 1 of Part 1 of the 2004 Act] in relation to the inspection of premises and the assessment of hazards”. That guidance, published in February 2006, is the Housing Health and Safety Rating System — Enforcement Guidance (“the Enforcement Guidance”), which provides as follows:
“Formal and informal enforcement action
2.15 The Housing Renewal circular emphasises the importance of private sector strategies which encourage co-operation between the local authority and the community to help keep homes in good repair. Over time, successful housing strategies should lead to a reduced need for formal enforcement action to deal with properties that fall below acceptable standards. Nonetheless, enforcement is a legitimate element of a housing renewal strategy.
2.16 Authorities are likely to find formal enforcement particularly important in the case of rented properties and HMOs in the private sector, where some of the worst housing conditions are to be found (though poor conditions in any part of the housing stock should not go unaddressed). Enforcement policies should take account of the circumstances and views of tenants, landlords and owners. Policies should also provide for consultation with social services, tenancy support, housing needs and housing management officers, where there are vulnerable occupants, for the purposes of agreeing a suitable approach to hazards.
2.17 Local authorities are encouraged to adopt the Enforcement Concordat, which provides a basis for fair, practical and consistent enforcement. It is based on the principle that anyone likely to be subject to formal enforcement action should receive clear explanations of what they need to do to comply and have an opportunity to resolve difficulties before formal action is taken. The current Concordat can be found on the Cabinet Office website.
2.18 Where an owner or landlord agrees to take the action required by the authority it might be appropriate to wait before serving a notice unless the owner fails to start the work within a reasonable time. The authority will need to take its own view of what is reasonable in the circumstances. Where RSLs have a programme of works to make their stock decent, it would also be appropriate to liaise with the landlord over any works necessary to deal with category 1 and 2 hazards in advance of the planned improvements. An alternative approach where a landlord agrees to take remedial action quickly and the authority is confident that this will be done, would be for authorities to use the hazard awareness notice procedure. This would provide a way of recording the action, and would provide evidence should the landlord fail to carry out remedial works or carry them out inadequately. (See Part 5, “Hazard awareness notices”.)
2.19 However, there may be circumstances in which authorities do not wish to delay in beginning formal enforcement action. This is likely to arise where the authority considers that there is a high risk to the health or safety of the occupant, and there are concerns that the owner or landlord will not co-operate. This may...
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