RESIDENTIAL TEAM ENFORCEMENT POLICY

1.0Introduction

1.1This document describes the Enforcement Policy of the Residential Team and forms part of the overall Enforcement Policy of Westminster City Council. This policy is set out in Appendix 1.

1.2This policy draws on advice and guidance contained in the following;-

a)Crown Prosecution Service Code of Practice for Crown Prosecutors – June 1994

b) Home Office Circular 18/1996 – the cautioning of offenders

c)Police and Criminal Evidence Act (PACE) 1984 and associated Codes of Practice

d)Criminal Procedures and Investigations Act (CPIA) 1996.

1.3The Residential Team of Westminster City Council will have regard to the statutory Code of Practice for Regulators detailed in the Legislative and Regulatory Reform (Regulatory Functions) Order 2007. This Code of Practice can be found at Appendix 2.

1.4Westminster City Council is also a signatory to the

Central and Local Government Concordat on

Good Enforcement. By adopting the Concordat we

commit ourselves to these policies and procedures

which contribute to Best Value. A copy of the Enforcement

Concordat is included at Appendix 3.

1.5Officers taking enforcement action shall have due

regard to this policy as well as to all relevant

national guidance and codes of practice. More

detailed guidance for officers on the interpretation

of these codes of practice is available in the form

locally written procedures and protocols.

1.6The policy will be reviewed regularly and, where

necessary, revised to reflect changes in legislation, codes of practice, relevant advice and guidance or in the light of operational experience.

1.7All authorized officers shall have received

appropriate levels of training in the enforcement

procedures referred to in the policy and will receive further training on any changes to the policy.

1.8This enforcement policy will help to promote efficient and effective

approaches to regulatory inspection and enforcement, which

improve regulatory outcomes without imposing unnecessary

burdens. This is in accordance with the Regulator’s Compliance

Code. In certain instances we may conclude that a provision in the

Code is either not relevant or is outweighed by another provision.

We will ensure that a decision to depart from the Code will be

properly reasoned, based on material evidence and documented.

2.0Enforcement Principles

2.1Aims

The Residential Team aims to :-

  • Provide a courteous, efficient and helpful service
  • Respond promptly and positively to complaints about service
  • Ensure that enforcement action is proportionate to the offence in each case
  • Carry out our duties in a fair, equitable and consistent manner
  • Be transparent in dealing with our customers
  • Work with others and develop effective partnerships in achieving these aims.

2.2Standards

In consultation with relevant interested parties we will draw up clear standards for the level of service and performance that can be expected from the Team. We will publish these standards and report our performance against them.

2.3Openness

We will provide information and advice in plain language about the legislation we apply and will publicize this as widely as possible. We will discuss general issues and specific problems with anyone experiencing difficulties.

2.4Helpfulness

We will provide a courteous, efficient and helpful service. Our staff will identify themselves by name and provide a contact point and telephone number for further dealings with us. We will ensure that our enforcement services are effectively co-ordinated to minimise unnecessary delays.

2.5Feedback

We will actively seek the views of those that receive our services and use this information to develop our service.

We will provide well publicised, effective and timely complaints procedures that are easily accessible to all our customers.

2.6Fairness and Risk

We will minimise the cost of compliance by ensuring that any action we require is proportionate to the seriousness of the breach of legislation. As far as the law allows we will take account of the circumstances and attitude of offenders when considering action. We will listen to the views of those who have been affected by the problem that we have been investigating.

2.7Targeting

We will prioritise our activities according to the seriousness of the problem and the degree of benefit experienced by our customers as a result of successful resolution.

We will make regular assessments of our resources and allocate them to support these priorities.

2.8Corporate Enforcement

Our enforcement activities will be consistent with the policies of other sections of the Community Protection Department and of all other Departments of Westminster City Council.

We will work with other sections, departments, authorities and enforcement bodies towards effective enforcement activity. We will do this by means of exchanging information and joint working initiatives.

2.9Consultation

We will consult the people we regulate and involve them in developing both the content and style of the guidance we provide. We will ensure that no person or business is prejudiced when seeking advice or guidance from the team. A customer feedback questionnaire is sent to businesses we have contact with. The comments obtained enable the team to improve the service we offer to our customers. In addition, before contemplating enforcement action, we provide all persons and businesses with the opportunity to comment on the course of action we are proposing (see paragraph 5.4.3.1).

3.0Decision Making

3.1Officers will be authorized and allocated work at a

level commensurate with their qualifications, training and experience.

3.2In carrying out their duties officers in the Team are

required to meet standards laid down in the

Service Specification, which prescribes strict

time scales for resolving matters brought to the

attention of the Team. In many cases this will lead,

where appropriate, to statutory action soon after

involvement.

3.3A decision to initiate enforcement action shall only

be taken by an appropriately qualified officer.

3.4All enforcement decisions shall discussed first with

the officer’s line manager. The final decision to

prosecute shall be taken by the City Solicitor’s

representative.

4.0Enforcement Framework – Housing Act 2004 Part 1 – Housing Health and Safety Rating System

4.1The Council has a duty to act when Category 1 type hazards are found. It also has discretionary power to act in respect of a Category 2 hazard. The courses of action available to the Council where they have either a duty or power to act are to :

  • Serve an Improvement Notice requiring remedial works
  • Make a Prohibition Order, which closes the whole or part of a dwelling or restricts the number or class of permitted occupants
  • Suspend the Improvement Notice or Prohibition Order
  • Serve a Hazard Awareness Notice
  • Take Emergency Remedial Action*
  • Serve an Emergency Prohibition Order*
  • Make a Demolition Order*
  • Declare a Clearance Area*

* Category 1 hazards only

The Council will consider taking action in respect of both category 1 and category 2 hazards where appropriate.

The Council has developed a separate policy for dealing with a Crowding & Space hazard. Action will be taken depending on the hazard band score and circumstances will dictate whether a full Prohibition Order or a Suspended Prohibition Order will be made. Further information is available on request.

4.2While the hazard rating is based on the most vulnerable potential

occupant, the Council will be able to take account of the actual occupant in deciding the most appropriate course of action. Where the Council takes action and the property owner does not comply, power is available for the Council to act in default (i.e. carry out the work itself and recover the cost from the owner) and/or prosecute (see 5.4.3.3 & 5.4.3.4).

4.3Tenure - In considering the most appropriate course of action, the Council will have regard to the extent of control that an occupier has over works required to the dwelling. In normal circumstances this will mean taking the most appropriate course of action against a landlord and in most cases this will involve requiring works to be

carried out.

It is unlikely that time-limited enforcement action will be taken

against an owner occupier where works may be necessary to their

own home.

However, in some circumstances the Council may require works carried out within a certain time frame where it considers there is an imminent risk of serious harm to the occupiers themselves or where the condition of the dwelling is such that it may adversely affect the health and safety of persons outside the dwelling.

4.4Charging for enforcement action – power has been provided in the

Act for the Council to charge and recover reasonable costs incurred in taking the most appropriate course of action. The Residential Team has in place a policy to determine when it will make a charge. This policy is reviewed regularly and a copy of the policy can be found at Appendix 4.

5.0Enforcement Options

5.1Enforcement decisions must be fair, consistent,

balanced and relate to common standards that ensure the public is adequately protected.

5.2In order to achieve and maintain consistency it is

important that all relevant guidance and codes of practice are given due consideration.

5.3In coming to a decision on the most appropriate

means of enforcement, the officer shall consider,

amongst other relevant factors, the following;-

  • the seriousness of the offence
  • the degree of willfulness involved
  • the offender’s past history
  • the consequences of non-compliance
  • the likely effectiveness of the various enforcement options.

5.4The enforcement options will include;-

1) No action

2)Informal action

3)Formal action

(a)service of notice

(b)formal caution

(c)prosecution

(d)works in default

(e)making Orders.

5.4.1 No Action

It may be appropriate to take no action when;-

  • the officer believes the service request does not warrant investigation by the Residential service, on grounds that it is clearly outside our area of operation or its triviality
  • on investigation, breaches of the legislation are not discovered
  • taking action will seriously aggravate the relationship of landlord and tenant and thereby prejudice more major considerations.

5.4.2 Informal Action

Informal action to achieve compliance with legislation

may include the following;-

(a)Offering verbal or written advice

(b)Verbal warnings and requests for action

(c)Warning letters

(d)Mediation.

The circumstances in which informal action may be appropriate include;-

  • The act or omission is not serious enough to warrant formal action
  • The offender’s past history reasonably suggests that informal action will secure compliance
  • Confidence in the individual/organization is high
  • The consequences of non-compliance will not pose a significant risk.
  • Where informal action may prove more effective than a formal approach. This may be particularly relevant in the case of voluntary organizations using volunteers.
  • Where statutory action is not possible, but it would be beneficial in a wider public health context to urge a particular outcome.

5.4.2.1 Verbal advice, warnings and requests for action

Advice from officers will be put clearly and simply and will be confirmed in writing explaining why any remedial work is necessary and over what time scale. We will make sure that legal requirements are clearly distinguished from best practice advice.

Written documentation must :

  • Include all the information necessary to make clear what needs to done to comply with legal requirements and, where necessary, why.
  • Include the legislation contravened, measures necessary to ensure compliance and the consequences of non-compliance
  • Clearly differentiate between legal requirements and recommendations of good practice.

5.4.2.2 Mediation

A mediation service is available in some Westminster wards. Mediation is a possible alternative where, after investigation, an officer determines that the problems being complained of are incapable of resolution through other formal or informal means. The use of mediation services may also be appropriate where an aggrieved individual has no wish to pursue action to resolve a nuisance by legal means.

5.4.3 Formal Action

5.4.3.1 Service of Notices/Orders

We will serve notices/orders where it is appropriate to do so unless there are good reasons for not doing so. In responding to complaints received in connection with residential premises the Team has a wide range of enforcement options available to it and uses these in accordance with this policy. Notices/orders generally ask for work to be carried out, ranging from minor to substantial. Some notices/orders will ask for activities to be modified, or to cease or for occupation levels to be adjusted.

Notices/orders require the recipient to comply with the terms of the notice/order. Most notices/orders allow a lesser or greater amount of time for this, depending on the urgency of the matter. Some notices/orders however, require immediate action to resolve a situation.

In most cases the person receiving a notice/order served under the Housing Act 2004 has a right of appeal to the Residential Property Tribunal if the notice/order is considered unreasonable or defective in any way. If a notice/order is served for which an appeal is possible, the Team will advise the recipient in writing of their right to appeal, and the relevant legal provisions, at the time of service of the notice/order.

In most cases before serving Housing Act 2004 notices/orders we will write to the likely recipient of the notice/order indicating that we are considering taking enforcement action and provide them with time in which to make representations on the course of action proposed. The team has in place a formal representation procedure which allows an independent review of the nature of the representation received.

In the case of certain landlord’s with large portfolios subject to statutory regulation, we will seek to agree a programme of improvements across these portfolios or mechanisms of informal advice. This will be done where we have historical evidence of their willingness to undertake work. The team would only contemplate enforcement action in respect of portfolio properties should this informal arrangement break down. Standards to be achieved will be agreed beforehand and will be clear and unambiguous.

5.4.3.2 Formal Caution

It may be appropriate in certain circumstances to issue a formal caution to deal quickly and simply with less serious offences. There are limited opportunities to use formal cautions in Residential work. It is possible that some offences may be dealt with in this way but advice must be sought from your supervising officer before embarking on this course of action.

The use of formal cautions can divert less serious offences from the Courts and reduce the chances of repeat offences. A formal caution is recognised as a ‘live’ conviction and will remain until spent under the Rehabilitation of Offenders Act 1974. In order to safeguard the offender’s interests, the following conditions must be met before a formal caution can be given ;-

  • There is enough evidence of the offender’s guilt to give a realistic prospect of conviction
  • The offender must admit the offence
  • The offender must understand the significance of a formal caution and give informed consent to being cautioned.

For these reasons if we offer a formal caution to an offender which they refuse to accept then we will normally prosecute.

All formal cautions are recorded and the fact of a previous caution may influence the decision whether or not to prosecute if the person should offend again, and may be cited if that person should subsequently be found guilty of an offence by a court.

5.4.3.3Prosecution

Prosecutions will not be used as a punitive response to minor breaches of legislation.

The following circumstances are likely to warrant a prosecution;-

  • A flagrant breach of the law such that health, safety and welfare has been put at risk
  • A failure to correct an identified serious problem after having been given reasonable opportunity to do so by an authorised officer
  • A failure to comply with the requirements of a statutory notice
  • A history of similar offences
  • An unwillingness, on the part of the individual or business, to prevent a recurrence of the problem.

Where circumstances may warrant a prosecution all relevant evidence and information must be considered to enable a consistent, fair and objective decision to be made.

Before a prosecution is recommended there must be substantial, reliable and admissible evidence that an identifiable person or organisation has committed the offence.

A decision to prosecute must be in the public interest, taking into account the guidance issued by the Crown Prosecution Service in the Code for Crown Prosecutors.

In considering whether prosecution is in the public interest, the following additional factors should be considered;-

  • Whether the offence was premeditated;
  • The need to influence the offenders future behaviour;
  • The effect on the offenders, or a witnesses, physical or mental health, balanced against the seriousness of the offence;
  • The offender has put right the harm caused.

Where a prosecution is considered, regard must be had when assessing any negligence to the fact that the investigating officer has the benefit of hindsight.

5.4.3.4 Works in Default

We will consider the use of this option to secure compliance with the requirements of formal notices/orders where the necessary works have not been carried out in the time allowed without good reason. Before doing the works ourselves we will consider whether there is a realistic prospect the person responsible will complete the works within a reasonable time scale. Where we carry out works in default we will seek to recover all our costs over a fair period, using all the statutory means available. We will use this option in emergency situations e.g. blocked drains, dangerous electrical wiring. In situations where major works are required we will more commonly prosecute offenders except where there is good reason to use the works in default option.

Failure to comply with some notices allows us to consider prosecuting as well as doing the works in default. We will normally only do this where the conduct of the recipient justifies taking both steps. We will have regard to factors such as giving false information, the obstruction of Council staff and the harm or risk of harm caused by the recipient’s delay.

We are also willing to undertake works in default ‘by agreement’, this will decriminalise the case and may reduce the charges.

The decision to carry out works in default must be made by an authorised officer in consultation with their supervising officer.

5.4.3.5Making Orders

We will consider the following options individually or collectively with other enforcement action as particular circumstances warrant ;-

  • Interim and Final Management Orders – to ensure adequate management arrangements are in place in a licensable house in multiple occupation.
  • Compulsory Purchase Orders – to secure the individual or area improvement of property by acquiring a freehold or leasehold interest.
  • Demolition Orders and Clearance – to secure the demolition of individual properties not considered suitable for occupation and includes area treatment when considered appropriate.

Compulsory Purchase Orders will only be used as a lastresort after an owner has been given every opportunity to carry out improvements voluntarily or in compliance with notices. The decision to adopt this course of action must be taken by the Operations Manager in consultation with senior officers in the Housing Services Department.