In continuing preparations for the new building safety regime, local housing authorities may wish to take stock of their duties under the Housing Act 2004 (2004 Act).
The 2004 Act imposes a duty on local housing authorities to review housing conditions in their areas with a view to identifying actions that may need to be taken under the 2004 Act and other statutes. If a local housing authority considers that it would be appropriate for any residential premises to be inspected as a result of such a review (or for "any other reason") in order to establish whether a Category 1 or 2 Hazard exists (as defined in the 2004 Act), then the local housing authority must arrange for an inspection to be carried out. Given widespread safety concerns following the Grenfell fire, it is difficult to see how a local housing authority would not have "any other reason" to carry out inspections if there are fire safety concerns. Any inspection should be carried out in accordance with the Housing Health and Safety Rating System (England) Regulations 2005.There is a corresponding enforcement duty conferred by the 2004 Act, which relates to Category 1 Hazards only. Local housing authorities must take the most appropriate of the seven identified actions in response to an identified Category 1 Hazard, and only one action may be taken at a time. A statement of reasons should be supplied, and there is a right of appeal against any action taken. This can be a contentious and resource intensive process — it may require the drafting and serving of notices, monitoring of compliance, prosecution for non-compliance and responding to appeals.
The 2004 Act makes provision for the recovery of reasonable expenses in relation to certain enforcement actions, such as identifying who to specify in notices and serving notices. Expenses can be recovered from the person on whom an enforcement notice is served by further serving a demand for payment. Where enforcement action is taken, expenses relating to the inspection of the premises may also be sought.
Should a local housing authority be unsuccessful in its enforcement actions, it may be faced with the situation of knowing a property is unsafe but also knowing that the freeholder and leaseholders will not / cannot take the necessary action to make the property safe. Local housing authorities may feel that the only reasonable course of action open to them is to use the discretionary emergency powers provided in the 2004 Act, which allow them to undertake emergency remedial works. There are obvious cost implications for this course of action which will need to be carefully worked through, alongside a consideration of all possible funding options.
