Health and Safety in Housing

Health and Safety in Housing Replacement of the Housing Fitness Standard by the Housing Health and Safety Rating System Response to Department of the Environment, Transport and the Regions Consultation Paper Chadwick Court 15 Hatfields London SE1 8DJ United Kingdom Tel:+ 44 (0) 20 7928 6006 Fax:+ 44 (0) 20 7827 5866 May 2001

THE CHARTERED INSTITUTE OF ENVIRONMENTAL HEALTH Founded in 1883, the Chartered Institute of Environmental Health (CIEH) is a professional and education body, dedicated to the promotion of environmental health and to encouraging the highest possible standards in the training and the work of environmental health professionals. The Chartered Institute has approximately 9,000 members, most of whom work for local authorities in England, Wales and Northern Ireland. As well as providing services and information to its members, the Chartered Institute provides information to government departments and evidence to them on proposed legislation relevant to environmental health. In 1993 the Chartered Institute became the World Health Organisation (EURO) Collaborating Centre for Environmental Health Management in Europe. Environmental Health Officers (EHOs) employed by local housing authorities are well placed, by virtue of their qualifications, training and experience to address the day to day problems raised by poor housing standards; they can bring an holistic approach to enforcement using the following qualities: experience in risk assessment procedures and ability to take an holistic view of the health, safety and welfare of occupiers alongside traditional building and means of escape defects skills in tenant liaison (in addition to dealing with the problems of bricks and mortar) which is vital to achieve the goals in privately rented premises where the inevitable disruption can cause severe problems for occupiers many of whom are the most disadvantaged members of the community experience and training in administering prosecutions including Court appearances when litigation becomes necessary control of a broad range of functions with consequent ability to resolve conflicts between them when they arise ability to provide a central unitary point of contact for all involved including local authority housing/rehousing officers, rent officers, social services, housing benefits, tenancy relations and voluntary agencies - 2 -

EXECUTIVE SUMMARY The CIEH supports many of the recommendations in the Consultation Paper but has concerns about some of the practical details. The CIEH recognises the shortcomings in the existing fitness standard. The CIEH is committed to the promotion and preservation of public health and therefore supports the principle of risk rating to protect the health, safety and welfare of occupants of substandard housing. The CIEH welcomes the guidance that has been produced relating to the identification of hazards in the domestic environment. In making best use of limited resources the CIEH considers it good practice to prioritise housing work on the basis of the number of occupants affected and their vulnerability. The HHSRS, as proposed, will entail prioritisation for action primarily on the basis of condition only. The CIEH is concerned that the proposed system considers the impact of a defect for the most vulnerable group of occupants by age but does not take into account the risk to still more vulnerable occupants who may live in the property. The CIEH believes that the thresholds for determining the duty for local authorities to intervene to deal with substandard housing should be set so as to increase the number of properties brought up to standard. Ultimately this should be determined by identifying the health benefits that could be achieved through a substantial improvement in housing quality. This response should be read in conjunction with the Chartered Institute s response to the Consultation Paper on Private sector housing renewal. The issues are closely linked and the CIEH believes that effective progress towards raising standards in private housing can only be achieved if the actual and potential links are fully exploited. The CIEH urges the DTLR to ensure the greatest possible linkage and liaison within the Department in the relevant programmes of implementation. The CIEH is willing and keen to work with DTLR both on this stage of the development and the preparation of guidance on the most appropriate action, before the current Housing Fitness Standard is replaced by the HHSRS. Any enquiries regarding this document should be addressed, in the first instance to Andrew Griffiths, Assistant Secretary Tel: 020 7827 5838 Fax: 020 7827 5831 E mail: a.griffiths@cieh.org - 3 -

1. INTRODUCTION 1.1. This response to the Consultation Paper includes detailed comments in relation to the proposals in the Paper. However, these comments must be viewed in the context that the Chartered Institute has some fundamental concerns with the Housing Health and Safety Rating System (HHSRS). In the absence of any formal mechanism to raise these issues to date, these concerns have been set out in our response. The opportunity has also been taken to comment on the operation of the proposed system in the context of the needs of tenants and landlords and the need for raising standards generally in the private sector. 1.2. It is noted that the published Guidance to the use of the HHSRS has been produced as Version 1; there is a clear need for Version 2 to be produced well in advance of any date set for the new system to replace the Housing Fitness Standard. The CIEH believes the new guidance should strengthen the scientific justification for the hazard assessment process and set out clear guidance on the most appropriate action. 1.3. It is correct to say that the 1998 consultation document relating to the Housing Fitness Standard attracted a broadly favourable response. However, this support related to the development, testing and piloting of a system of fitness rating in order to determine the feasibility of such an approach to housing inspections and enforcement. Following the development of the HHSRS, a number of documents were published in July 2000 which provided detailed guidance on the system for the first time. The documents published by DETR in July 2000 signalled the intention to pursue the HHSRS as an alternative to the current fitness standard without inviting any formal comments regarding the workability of the system. 1.4. The aims and objectives of the HHSRS are well understood. However, the Chartered Institute believes there should be more analysis of the principles and assumptions that underpin the HHSRS. If these principles and assumptions are not sound or appropriate then the HHSRS cannot effectively fulfil the intervention role that is expected of it. 1.5. Focussing on health and safety risks should not exclude continuance and development of powers to improve the quality of homes towards what would be regarded by most people as tolerable in the 21st century. The condition or occupancy of dwellings (and their environments) can cause unacceptable mental stresses, leading to or exacerbating illnesses, without presenting an obvious risk to health or safety. The CIEH believes that the HHSRS does not address this issue adequately. 1.6. The latest consultation paper establishes a clear separation between the process of hazard scoring and of deciding the most appropriate action but does not offer any substantial guidance on the procedures a Local Authority will be expected to adopt in determining this. This response therefore comments on the detail of the operation of the HHSRS and on possible guidance for determining the most appropriate action. 1.7. The Chartered Institute welcomes the introduction of the regulatory impact assessment in this and in other consultation documents on proposed changes in the regulatory and financial framework for improving private sector housing. It is hoped - 4 -

that these would make explicit the real financial and policy limits that have altered that framework. Two specific examples have been the erosion of tenancy rights by seeking to increase the supply of private rented properties and the withdrawal of mandatory landlord grants. The current guidance, however, addresses the enforcement framework separately from the grant framework so the conclusions are inevitably disjointed. To address these concerns this response assesses how these reforms may be linked to allow more effective enforcement without placing unfair burdens on landlords. 1.8. This response therefore deals with the following: Comments on the accuracy of the HHSRS in determining hazard ratings Possible problems in using the HHSRS to determine financial and legal outcomes Determining the most appropriate action Specific comments on recommendations Specific comments on proposals 1.9. This response should be read in conjunction with the Chartered Institute s response to the Consultation Paper on Private sector housing renewal. The issues are closely linked and the CIEH believes that effective progress towards raising standards in private housing can only be achieved if the actual and potential links are fully exploited. The CIEH urges the DTLR to ensure the greatest possible linkage and liaison within the Department in the relevant programmes of implementation. 2. HHSRS Hazard Ratings 2.1. The assessment of vulnerability is based entirely upon age categorisation, since it is only in relation to age that adequate evidence exists on health risks. Guidance on the most appropriate action should clearly state that other particularly vulnerable groups are at higher risk than indicated by the most extreme score that can be obtained through the HHSRS; enforcement officers should be expected to choose the most appropriate action accordingly. For the HHSRS to make readily understood comparisons across tenures or between properties a mechanism needs to be devised to summarise the overall rating of the property 2.2. The consultation document fails to clarify how an aggregate score is determined even though such a concept is clearly needed for determining, for example, clearance action. The CIEH questions the scientific justification for making a dwelling with a single Class A hazard band score a higher priority for action than a dwelling with 24 Class B hazard band scores. The CIEH looks to the DTLR to set out the scientific justification in version 2 of the guidance to the system. It is unclear whether or not it is the level of risk posed by the highest risk hazard that sets the overall priority for intervention. 2.3. In relation to HMOs, case law recognises the increased risk arising from occupancy so the threat to life from a Class C fire risk rated HMO could well be higher than a Class A rated fire risk in a single family household dwelling. It is essential that this does not undermine resource allocation for work on HMOs, which are recognised to provide the most dangerous type of occupancy, either in assessing the needs of - 5 -

different regions or in the prioritisation of enforcement action by a particular local authority. 2.4. The CIEH is concerned that an attempt to base guidance on the most appropriate course of action on occupancy could lead to challenges based upon natural justice and the relative rights of landlords and tenants. 2.5. A key advantage of the HHSRS is it can be used to publicise the plight of tenants living in the most unsafe of all housing tenures. This is essential to support the government's social inclusion and public health programmes and consistent with its proposed tenure neutral approach to housing policy. For this to happen current guidance on the application of the HHSRS to social housing (5.29) is inadequate. Housing Authorities should be under a duty to assess the impact upon health of housing conditions across all sectors and prioritise their intervention accordingly. 2.6. The CIEH welcomes the clear recognition that local Councils (8.3, 8.4) will continue to be the lead statutory authority for maintaining standards in private sector housing. The CIEH believes that local authority officers are uniquely in a position to take balanced action to address comprehensively all hazards identified in a survey; it should not be necessary for fire safety hazards to be dealt with differently from other hazards. The CIEH strongly supports the continuation of the duty to consult Fire Authorities in respect of fire safety issues. 2.7. Effective enforcement relies on clarity and transparency. Tenants and landlords will need to understand the mechanics of the system and the reason for their use. As a contribution to this process, the CIEH commends the suggestion made by Bristol City Council for grouping hazards as follows: Excessive temperature Falls Environment, including noise, radon, lead, asbestos, carbon monoxide, uncombusted fuel gas. Security Domestic hygiene, including food safety Fire safety Damp and mould growth Ergonomics/layout Structural failure Safety of Appliances/installations, including electrical safety, risk of explosions from gas, water heaters etc. Amenities/facilities, including personal hygiene, inadequate sanitation and drainage, water supply. 2.8. Within each of these categories there could be a rating and a target standard. This approach will also assist the strategic targeting of action with each category producing a rating. 3. Using the HHSRS to determine grant eligibility and enforcement outcomes - 6 -

3.1. The CIEH recognises that some local authority EHOs oppose the new system because they are concerned about its use as an enforcement tool in practice. Although consultation responses supported the general principle of the system there has been no real consultation about the detail. The CIEH believes that the proposed system has been developed too far removed from a reality where every enforcement and grant allocation decision is capable of challenge and any ambiguity in how that decision is reached is exploited by unscrupulous landlords to challenge those decisions. 3.2. The guidance on the use of the system has to be clear and unambiguous to ensure that sensible enforcement and grant allocation systems are not unjustifiably abused in the adversarial context of court or through appeals to the ombudsman. As the professional body for the promotion of the highest possible standards in the work of environmental health professionals, the CIEH is willing and keen to work with the DTLR to revise current guidance documents to address these issues before the current Housing Fitness Standard is replaced by the HHSRS. 3.3. In such a context it is essential that the inspection procedure is able to adequately record the basis of enforcement and resource allocation decisions. The CIEH believes that the use of handheld computers will make a positive contribution to the development of expert systems to improve enforcement consistency between local authorities. However, the local authorities which have piloted the system do not believe it is capable of providing a full inspection record on its own and, without further development, this will create problems for the admissibility of evidence and discourage widespread use of the system. This in itself would then become grounds for questioning evidence in court. 4. Limitations in the survey program 4.1. The program does allow recording the reasons for judgements about the severity of a fault, but. it does not allow the simultaneous recording of the action required remedy the defect e.g. repair or renew. Most inspection procedures require both to be recorded at an initial visit. The recording of what action needs to be taken should be incorporated by the use of pull down menus. Without such a facility, surveyors will need to rely on written notes. This will create particular problems if they are subsequently revised through the revisit required by many local government enforcement procedures to check the contents of a formal Notice before it is served. 4.2. Details of faults could be recorded verbally and be backed up with digital photography. The technology should be developed to allow this to happen and the legislation should allow such records to be used as evidence in Court. 4.3. There is no link between the individual defects noted during inspection of the premises with the overall score awarded for each hazard at the end of the inspection. This would be an invaluable aid to quality management systems since it would allow managers to check for inconsistencies between officers in how they rate overall hazards when the same levels of defects have been noted in an inspection. 4.4. A significant and effective enhancement to the survey program would be the inclusion of the facility to record necessary remedial action required for each defect. - 7 -

It would then be straightforward for the data to be downloaded to a PC to facilitate the production of a draft specification of work to form part of (e.g.) an Improvement Notice. Such a system would not only reduce time and administrative costs but would also compensate for the inevitable increase in time (initially at least) taken to undertake surveys using the new system. It would also facilitate the creation of expert systems to ensure that Notices are served with appropriate preliminaries and certification requirements. 4.5. The CIEH would wish to see an intensive development process to improve and upgrade the survey program. All users of the software should be able to develop it to meet the objectives listed above through a dedicated project backed by an effective IT professional. This procedure, widely used by the commercial sector, would provide systematic updates of the software taking account of comments received from users. Such an intensive development process will greatly enhance the implementation and operation of the system. 4.6. A further advantage of such an approach would be the creation of a national standard specification for improvement works leading to greater consistency in enforcement without compromising the ability of individual local authorities to set their own strategies for intervention. 4.7. The CIEH is aware that the then DETR made a decision not to develop the program in the ways described, at least for the time being. It is understood that part of the rationale for this decision is that local authorities use different systems and software. Nevertheless the Chartered Institute believes there is an overwhelming case for more work to be undertaken as set out above and for model reporting systems to be devised, all of which will contribute to the government s aspirations of Better Regulation and Modernising Local Government. 5. Determining the most appropriate action 5.1. Guidance on determining the most appropriate action should clearly identify a duty to take action which should include: Carrying out minimal proactive surveillance to identify unfit/ unsafe properties and Using administrative procedures to prioritise the most dangerous properties 5.2. The Guidance should also include advice on where powers of intervention should be used (in particular to avoid this area of discretion being open to challenge under the Human Rights Act). 5.3. The HHSRS is as yet untested in prioritising intervention and will be operated within an untried enforcement framework so the guidance on the appropriate action will be important in making the new system effective. The current consultation paper is unclear as to whether, once action becomes necessary, it should address all the hazards identified or just those that are most serious. This section of the response therefore suggests some of the issues that will need to be addressed by the Guidance and makes specific proposals for it. - 8 -

5.4. Different forms of occupancy can greatly increase the likelihood of harm; the Guidance should make it clear that the HHSRS is a guide to action and that its estimation of risk likelihood is based purely on the most vulnerable occupants classified by age and not type of occupancy. 5.5. Case law already recognises that, in HMOs, the risk from fire is far higher than in tenures where all occupants know each other's movements. The CIEH believes that further work on how much this increases risk is required; the potential danger is that enforcement work on behalf of vulnerable tenants may otherwise be reduced. The Guidance should recognise that, for instance, a Class C hazard from fire in an HMO is the equivalent of a Class A hazard in a dwelling rented to a single family household and should direct that enforcement and allocation decisions be made accordingly. 5.6. Guidance on how to determine occupancy is particularly important where high demand often results in hidden overcrowding with the consequent difficulty of proving that a landlord knows that a property is overcrowded. The consultation document recognises that this area needs clarification (3.2) but the suggestion that it should be considered in the original rating assessment is inconsistent with the intent that the HHSRS rating relates to property condition not occupancy. It is also unclear how the natural growth of a family will be taken into account. Clarification is needed and should be put included in the most appropriate action Guidance. 5.7. Major changes in the legislative framework inevitably disrupt enforcement work as Officers learn to use new techniques and case law develops to support the new framework. The CIEH believes that this disruption will be worthwhile only if the HHSRS supports tenure neutral housing strategies where intervention is clearly based around health based priorities. For this to happen Guidance must advise Councils to use the rating system to assess the investment and enforcement needs of all housing sectors and draw up plans for strategic intervention accordingly. 5.8. The problems of the use of the system in assessing the relative hazards in HMOs noted above could justify inadequate resourcing of intervention by local authorities in areas with large concentrations of HMOs. The Guidance should recognise this, as indeed should needs indices for regional resource allocation, and overcome the problem through the procedures suggested above for the appropriate prioritisation of enforcement action. 5.9. Enforcement action needs to be clearly understood by tenants and landlords; the CIEH is concerned that a proliferation of notice types with a variety of compliance timetables will cause confusion. This needs to be addressed in the Guidance. 5.10. In view of the considerable housing variations that exists between regions, the legislation should allow for the preparation of regional Guidance on the application of the HHSRS by the regional Government Office in discussion with representative local government organisations. 5.11. The Guidance should set out criteria for what mitigating factors should be considered in deferring enforcement action, such as the frailty of an occupant whose health - 9 -

would be put at risk by extensive building works. Deferred action should only be recommended as a (justifiable) last resort. 5.12. The CIEH questions the value of hazard awareness advice not linked to enforcement action. Local authority EHOs often have to spend a great deal of their time dealing with solicitors working on personal injury case and house purchasing. Use of hazard awareness advice is likely to generate further growth in such work and Guidance should allow local authorities to charge an appropriate fee for providing such advice. It is also essential that local authorities retain the discretion to serve such notices. 5.13. The Guidance should clarify on whom Notices should be served. A number of different definitions exist within the Housing Act 1985, for example Sections 207 and 398; the extent to which offenders can evade responsibility can depend upon which part of the legislation they transgress. The implication that Notices be served on owners (5.5) could reduce delays by managing agents. Placing ultimate responsibility on the owner whilst copying the Notice to all other parties known to have an interest could also eliminate delays. However the ability to serve Notices on Managing Agents when owners cannot be traced, should be retained. The Guidance should clearly identify how this can be done in a way that limits the time taken to make a property safe. 5.14. The Guidance will clearly need to take full account of the requirements of the Human Rights Act; the CIEH believes it should give advice for dealing with circumstances where a tenant or occupier does not want repair or improvement works to be carried out because they believe the works will interfere with the peaceful enjoyment of their home. A right of appeal will be required and the Guidance will need to set out the details of the process. 5.15. The CIEH is concerned that the Regulatory Impact Assessment seems to place more emphasis on the impact on landlords than tenants. 5.16. Local authority EHOs are sometimes confronted with a situation in which a landlord has obtained vacant possession of a substandard house. The CIEH believes that a mechanism for ensuring the attainment of minimum standards before re-letting needs to be enacted. 5.17. Many issues will need to be addressed in producing the Guidance; the CIEH is ready and willing to work with the government in its production to help ensure that the reality of the experiences of practitioners are fully acknowledged and taken into account. 6. Comments on recommendations R1 Local authorities should have a duty to take the most appropriate action to deal with serious hazards, and a power in respect of lesser hazards. 6.1.1. The CIEH supports this recommendation. However, if the duty is to be meaningful and effective there will be a need for ministerial guidance to avoid the current limitations that arise in applying the similar duty to take action - 10 -

with respect to unfit properties. The duty should therefore specify minimal levels of proactive surveillance to identify substandard properties. 6.1.2. Best Value inspections should assist this process by checking levels of such surveillance and that the HHSRS is being used properly in complying with this duty. 6.1.3. Once it has been decided that hazards falling within Bands A C are present in a property, it is unclear whether or not the notice served can also include items that fall within other grades where there is only a power to act. R2: The most appropriate action should be based on a two-stage consideration: (a) the hazard score determined under HHSRS; and (b) the authority's judgement whether, by virtue of the score and all other relevant considerations, the dwelling contains or gives rise to unacceptable hazards 6.1.4. This recommendation is supported. Clear guidance will be needed however for determining decisions including scope for various approaches to be adopted that are relevant to the local housing provision context. The CIEH is ready and willing to assist in the production of the guidance. 6.1.5. The CIEH is concerned that the continuing assumption throughout the consultation document that some form of aggregate rating will be available for each premises is nowhere supported by an explanation of how that score will be calculated. The original guidance on the rating system only set out how intervention should be prioritised. It did not explain how an aggregate score should be calculated. 6.1.6. There is a need for clarification of the phrase other relevant considerations. R3: In an authority's consideration of whether a duty to take the most appropriate action arises under the two-stage process described in paragraph 4.9, the precondition at (a) should be a hazard scoring 1,000 or more. 6.1.7. It is not clear exactly how the score of 1000 was determined and in particular which factors were taken into consideration. The CIEH is concerned that the threshold for the duty to act appears to be based upon expediency and current resource constraints in which case it could be argued that there is no need to complicate local authority enforcement work by introducing concepts of acceptable risk levels. The CIEH looks to the DTLR to justify the level at which it has been set. 6.1.8. The CIEH believes, however, that the thresholds for determining the duty for local authorities to intervene to deal with substandard housing should be set so as to increase the number of properties brought up to standard. Ultimately this should be determined by identifying the health benefits that could be achieved through a substantial improvement in housing quality and setting the threshold accordingly. - 11 -

6.1.9. The level of risk at which local authorities have a duty to intervene has been set at a level such that the number of properties affected by that duty is relatively unchanged from the figure under the current standard. If this is still considered an acceptable level of risk the CIEH cannot see the justification for setting it at this level. The research carried out to compare the health and safety risks associated with housing clearly demonstrates widespread unacceptable levels of risk. 6.1.10. The scoring system makes reference to work carried out by the Health and Safety Executive on risks associated with manufacturing industry relating to the Equivalent Annual Risk of Death and that the HSE determined what, in their opinion, was an acceptable risk. The HSE has, however, stressed that this type of system is not applicable in all cases and has given as an example the case of risks from Carbon Monoxide poisoning where there has been a huge publicity exercise to reduce the risk of carbon monoxide poisoning despite the figures indicating that the risk of death is 1 in 1,350,000, (i.e. much lower than that proposed) as the risk has given rise to widespread public concern. 6.1.11. Clearly it is important that hazards that could give rise to death or injury are eliminated but occupiers are also concerned about other factors affecting their health and welfare and these should not be excluded or relegated in importance. 6.1.12. Paragraph 4.14 states, there would be a presumption that the severest risks arising from the hazards identified by the authority would trigger the swiftest enforcement action but does not go into detail. Swift enforcement action cannot be achieved using the existing Housing Act provisions due to the many requirements for the service of the notices. 6.1.13. If a threshold score of 1,000 is introduced, its use as a trigger level should be carefully monitored and adjustments made if necessary and appropriate. 6.1.14. The CIEH believes the government should introduce effective monitoring to ensure that the changes do not reduce the effectiveness of local authorities in improving the health, safety and welfare of private sector tenants and should apply appropriate remedies through the Best Value monitoring regime if it does not. R4: Local authorities should take account of the current occupants of a dwelling in determining the most appropriate course of action. 6.1.15. This recommendation is supported; however the CIEH believes the HHSRS as currently proposed does not effectively support this objective as the assessment of the hazard rating of a property is based on vulnerability by age only, in the absence of sufficient statistics on risk by tenure. The CIEH believes that disability and ill health should be included in the assessment of vulnerability. Furthermore, the CIEH does not accept that young and ablebodied people are at less risk in all circumstances. - 12 -

6.1.16. There are, however, additional burdens on the local authority resulting from this approach. If the current occupiers are taken into account the local authority will have to reassess the situation each time there is a change in occupancy. Although a suspended Improvement Notice could be served if the current occupier is not in the vulnerable group relating to the identified hazards, these Notices would then have to be reviewed annually. It would be preferable if the legislation required the landlord to inform the local authority when there is a change in circumstances. It is also essential that any requirement placed on landlords will need realistic penalties to ensure compliance. It is far more likely to work for owner occupiers if the Notice is a local land charge as it will be declared at the time of sale. 6.1.17. The risk from fire is significantly increased when occupants of a dwelling do not live as a household and do not know of each other's movements. The current hazard scoring does not take account of this. It suggests that a dwelling with a single A in a particular category should be a higher priority for action than one with 24 B hazard properties even if these relate to areas such as fire hazards which are known to be of particular risk to HMO residents. As suggested above this can be taken account of if guidance on how a local authority should identify the most appropriate action specifies the need to recognise that the overall prioritisation proposed by the original HHSRS assessment can be modified to take account of high-risk occupancy. 6.1.18. The assessment of each dwelling independently under the new rating system appears to preclude any assessment of the additional risk posed by neighbours in HMOs, for example in relation to fire hazards. The guidance on assessing overcrowding (HHSRS Guidance Annex C Chapter 13) is considerably less exacting than that currently applied. It is not clear how a power to deal with discomfort (4.21-4.23) can form part of a system which is designed to prioritise on the basis of risk. In the absence of information as to how these concerns can be addressed, the CEIH believes that the current proposals could further weaken the legal protection for the country's most vulnerable tenants, unless the provisions currently contained in Sections 352 and 358 of the Housing Act 1985 are maintained. 6.1.19. There are no hazards to reflect intensity of occupation, the number of persons or the ages; furthermore, sexual overcrowding is missing. This is due to the fact that the HHSRS prescribes that each letting is separately assessed; the relationship between lettings is ignored. There is often a high turnover of tenants in HMOs and rapid transfer between letting to single family households and to multiple occupancy; consideration of only current occupiers is therefore inappropriate. 6.1.20. Housing strategy should aim to improve standards over time; this will not be achieved if identified hazards are not remedied. The scenario of considering the current occupier without any safeguards for the local authority will not encourage landlords to raise standards. If the decision is based on the potential occupant the use of mitigating circumstances as described in paragraph 5.8 and the suspension of Notices can still be applied where appropriate. In the case of - 13 -

an empty property the assessment will need to be based on the potential occupier. R5: Improvement Notices should replace Repair Notices 6.1.21. This recommendation is supported; the key issue here however, is not the name but the effectiveness of the new Notices. The concept that an Improvement notice may specify differing timescales for action to remedy hazards of different severity is welcomed, allowing as it will, local authorities to continue to carry out works in default where adequate progress towards compliance has not been made. 6.1.22. The CIEH believes it is imperative that the timescales for Improvement Notices should be the same as the provisions under Section 80 of the Environmental Protection Act 1990 to allow a reasonable time to be specified in which works should start and be completed. This would enable local authorities to tackle the most serious hazards within timescales that would reduce any occupants exposure to hazards such as electrocution. 6.1.23. Improvement Notices should come into force as soon as they are made. Different time-scales for hazards where longer response times would be reasonable and appropriate could still be permitted. 6.1.24. Repairs notices are currently served upon the person having control of a property or the person managing in the case of houses in multiple occupation. Further clarification of these terms is required, in particular, what constitutes receipt of rent. Local authorities have encountered difficulties in the enforcement of repairs notices when managing or letting agents who merely collect rent argue that they have no control over the authorisation of repairs and that the responsibility for repair still lies with the property owner. 6.1.25. In many cases following service of repairs notices, landlords argue that they cannot carry out the required work whilst the tenant remains in occupation. Local authorities are not usually able to provide temporary accommodation and there appears to be no obligation upon landlords to rehouse directly or to pay for temporary alternative accommodation in the private sector. Clarification of the landlord s responsibilities in this respect would greatly assist in avoiding the lengthy periods of stalemate which can develop following the service of a notice. 6.1.26. There is a need for clarity regarding the contents of notices, including issues such as specification of remedial works, options to reduce hazard scores and specifying the ideal. Clearly for some hazards there will be a range of options for the owner/landlord. Remedial action to deal with one hazard must not contribute to another hazard. 6.1.27. The Law Commission s recommendation that landlords should be responsible for ensuring that a property is fit for human habitation for the whole period of the lease (granted for less than seven years) is supported. Under the - 14 -

HHSRS, the property should be kept free of hazards in band A to C. A property should also be free of all major hazards at the commencement of a tenancy. 6.1.28. The new enforcement framework will need to recognise the difficulties caused to enforcement through inconsistent powers across tenures and problems with changes in ownership. For example by limiting the application of the Management Regulations to HMOs, Officers have difficulty following through enforcement action when an owner or landlord claims a rented property has moved to single household occupancy. Some local authorities require Notices under Section 358 of the 1985 Act to deal with overcrowding, to be re-served after changes in ownership. The new enforcement framework should prevent landlords exploiting such ambiguities to evade their responsibilities. 6.1.29. The CIEH would oppose any restriction on EHOs taking action to address hazards with scores below the proposed F score cut-off for enforcement action. Once action is taken, with appropriate grant support, it is appropriate to rely on an EHO's professional judgement as to the works to be completed to bring a property up to an acceptable standard. 6.1.30. No matter how much effort is made by Local Authority officers towards a successful prosecution there is still no guarantee that the landlord will comply with the Notice. It is recommended that Courts be given powers to order Specific Performance. 6.1.31. CIEH welcome the emphasis in the consultation paper on the need to implement the Enforcement Concordat, particularly since it is the implementation that delivers many of the requirements of the Best Value Performance Indicator 166 covering all Environmental Health services. R6: Prohibition Notices should replace Closing Orders; and Demolition Orders should be retained in order to provide an alternative to closure 6.1.32. It is unclear from the Consultation Paper what benefits will be derived from calling Closing Orders and Overcrowding Notices by a single title. In their impact on an owner or landlord there is far more similarity between closure and demolition action than between closure and dealing with overcrowding. Since they are intended to achieve clearly distinct objectives, use of the same name could cause confusion. 6.1.33. The retention of the power in respect of demolition where it is found to be the most appropriate course of action, as defined by current guidance (17/ 96), is a necessary alternative to prohibition. 6.1.34. The CIEH believes that Prohibition Notices are intended to cover an unrealistically wide range of enforcement situations; they should be used to replace Closing Orders. The CIEH also believes that they are inappropriate to deal with overcrowding. - 15 -

6.1.35. The proposals for the Prohibition Notices do not appear to extend to some of the matters which may be tackled using overcrowding powers under section 358 Housing Act 1985, for instance, specifying that a particular room currently used as a bedroom should not be so used because it is needed as a living or dining room. It also fails to mention whether the requirements for an assessment of sexual overcrowding in Part X Housing Act 1985 will be retained. 6.1.36. The indication in paragraph 5.9 that there could be circumstances where an immediate Prohibition Notice could be served is welcomed. The CIEH is concerned that, unlike the present system of a Closing Order which has a robust system to effect the closure, the Immediate Prohibition may be difficult to administer to achieve any real immediacy. Local authorities will need clear, expeditious procedures for granting authority to facilitate urgent action. 6.1.37. The CIEH does not believe that overcrowding can be effectively judged by use of the rating system. This is an area where it is appropriate for standards to remain the basis for enforcement. 6.1.38. The HHSRS does not deal with management issues in houses in multiple occupation. It is imperative that the proposed review of the Housing (Management of Houses in Multiple Occupation) Regulations 1990 and the National HMO Licensing Scheme deal with those matters which are omitted from the HHSRS. 6.1.39. It is welcomed that the Government is still committed to the licensing of HMOs. The proposal to include fire precautions, provision of amenities and prevention of overcrowding with HHSRS is less convincing. An HMO needs to be looked at holistically; the CIEH does not believe that the survey of each unit of accommodation separately is appropriate. 6.1.40. Notices should be clear. Clarity is reduced if a single type of Notice is expected to serve too great a variety of objectives. It will also be reduced if it includes too great a variety of timescales for compliance. There should be one timescale for the completion of emergency repair works and another for removing other defects and appeal rights should be appropriate to these objectives. 6.1.41. Current guidance on the appropriate course of action expects EHOs to compare the relative merits of repair or clearance. This comparison will be made more difficult by the proposal to use separate procedures to determine the case for demolition or for repair. 6.1.42. The CIEH believes that it should be possible to require the immediate rehousing of tenants to suitable accommodation to remove them from a severe hazard and works to remedy the severe hazard which must be carried out before the person may return. This option is presently available under the statutory nuisance provisions in the Environmental Protection Act 1990. - 16 -

R7: Local authorities should have power to suspend the actions required by Improvement and Prohibition Notices and should be required to review their requirements at least every 12 months; and Suspended Notices should replace Deferred Action Notices 6.1.43. The CIEH supports the principles of this recommendation; however, the current use of deferred action Notices is minimal and deferred action of any sort (e.g. Direction Orders, action on use of rooms above pubs) is administratively intensive and can reduce the capacity of a local authority to effectively deal with substandard housing. Re-inspection should only be needed in the event of a change in occupancy; setting a rigid time requirement for re-inspection is needlessly restrictive. This would be administratively simplified if a duty is introduced whereby landlords and potential landlords are required to inform Local Authorities of any change of tenure. 6.1.44. The CIEH is concerned that if local authority officers are expected to survey a premises under the HHSRS every time a survey is made following a request for service, many suspended notices will accumulate especially in large conurbations. However, this could be avoided if local authorities are able to serve Improvement Notices following a partial survey and identification of certain hazards. An assessment of the hazards and risks could then be made so that the property could be placed in a programme of proactive full inspections for the identification of all hazards. 6.1.45. The CIEH believes that hazards identified in suspended notices should be subject to a separate notice. In the event of an appeal against the notice, some parts of the notice may become suspended as part of the resultant variation of the notice. 6.1.46. A provision should be included to enable, in appropriate circumstances, a Suspended Notice to be cancelled wholly or replaced by another action (such as an Improvement Notice, Prohibition Notice, Demolition Order or Hazard Awareness Advice) before expiry. R8: The appeal procedures should remain unchanged 6.1.47. The CIEH believes that improvement and prohibition notices relating to serious hazards, i.e. where the health and safety of the occupants is placed at imminent risk should not be suspended in the event of an appeal. As mentioned in the consultation paper, this would be a similar situation to the non-suspension of an Abatement Notice under the Statutory Nuisance (Appeals) Regulations 1995 where conditions are injurious to health. 6.1.48. Following the judgment in R v Bristol City Council, ex parte Everett, EHOs are unable to deal quickly with life threatening housing conditions such as defective wiring and unguarded stairs. Although the use of disrepair powers under Section 190 of the 1985 Act to address such issues has been increased, they are less effective since some landlords misuse appeal procedures to avoid or delay compliance. If the HHSRS is to fill this void the enforcement framework will need to provide scope for: - 17 -

Partial inspections to identify serious hazards for immediate action Improvement Notices with short compliance timescales that address those hazards that pose an unacceptable risk (possibly all Class A hazards) Appeal rights limited to those currently available for Notices served under the Section 80 of the Environmental Protection Act 1990 Local authorities empowered to carry out works in default in case of noncompliance even if the event of an appeal. 6.1.49. This would enable comprehensive improvements to be carried out over a longer timescale with the same appeal rights as currently available for Housing Act Notices. It would be appropriate for Guidance to link the level of improvement sought with the availability of grant aid as the government is on record as being committed to raising standards in the private rented sector without reducing its supply. The CIEH is concerned that local authorities should not use high standards and the withdrawal of grant support to, in effect, reduce the supply of private rented accommodation (particularly HMOs), in locations where this would not be justified on the grounds required to obtain special control powers. 6.1.50. The legislative framework should allow, and the Guidance on the most appropriate action should encourage, the identification on initial inspection of Band A hazard scores without having to complete a full inspection of all hazards. It should then encourage the service of Notices similar to those served under Sections 80 or 82 of the Environmental Protection Act 1990 to address all Band A hazards. This should be accompanied by the same powers to carry out Works In Default and charge for their cost as currently exist within the Environmental Protection Act and Section 76 of the Building Act 1984. Since Housing Act appeals can take up to 3 years it would be inappropriate to allow such appeal rights in cases of immediate risk to health. Appeal rights should therefore be the same as under the Environmental Protection Act to allow works in default to be carried out notwithstanding appeals. 6.1.51. The CIEH believes that the HHSRS may increase the abuse of the appeals system to frustrate legitimate enforcement action, since it provides for more flexibility in the interpretation of the rating of a dwelling. Any new primary legislation should place the onus on landlords or owners to progress appeals and should incorporate the establishment of a mutually fair timetable for the exchange of documents between them and the enforcing authority. 6.1.52. Tenants will continue to be have their health and safety placed at risk if current appeal procedures remain for emergency works. Reforms introduced by the Wolfe commission have not reduced delays in County Courts to acceptable levels. Apart from reforms to allow reduced appeal rights for emergency works suggested above, the CIEH questions whether it is still appropriate to deal with housing enforcement as a civil offence when public health and health and safety offences are dealt with as criminal offences. Magistrates Courts provide quick and effective access to enforcement - 18 -

support. Another feasible alternative is specialist housing tribunals to quickly resolve appeals. 6.1.53. The CIEH s concerns are well illustrated by the case of Jepson v Trafford Council, an appeal against a notice under section 352 Housing Act 1985. The landlord was able, by deliberate delaying tactics to prevent the court hearing the Appeal for almost 4 years after the notice had been served. 6.1.54. When an appeal is lodged, because the Housing Act notice is currently immediately suspended until the resolution or withdrawal of the appeal, the tenant is left to endure the unsatisfactory conditions, which warranted the service of the notice, sometimes for unreasonable time periods. In many cases, tenants will vacate the property rather than endure the unsatisfactory conditions complained of, before the appeal is determined, especially in the case of shorthold and assured shorthold tenancies. 6.1.55. The CIEH is currently compiling further evidence in support of its views. R9: Improvement and Prohibition Notices (whether suspended or not) should be registered as local land charges 6.1.56. This recommendation is supported. However, attention is drawn to paragraph 5.1.12 of this submission the need for local authorities to be able to charge for supplying information such as hazard awareness advice to prospective house purchasers and their agents. R10: The primary legislation and the Secretary of State's guidance on intervention should maintain the present position on tenure and not discriminate expressly between the owneroccupied and private rented sectors 6.1.57. This recommendation is supported. The CIEH is committed to the promotion and preservation of public health and therefore supports the principle of the HHSRS to protect the health, safety and welfare of occupants of substandard housing. 6.1.58. Local authorities should have a duty to use investment and enforcement strategies to address the tenures and areas of least safe housing. The current requirement in the consultation paper on the use of the system with respect to social housing is inadequate and falls short of the government's commitment to be tenure neutral in its Housing policy. 6.1.59. The CIEH believes that all tenants deserve equal access to healthy housing. Tenants of local authority owned housing should have the same rights as private sector tenants through the use of Section 82 of the Environmental Protection Act 1990 and ability to using the HHSRS to access their rights under Section 11 of the Landlord and Tenants Act or any subsequent legislation. - 19 -