Much is made in the press, quite rightly, about poor property standards in the private rented sector.
Even that dependable old landlord favourite the English Housing Survey reveals that whilst standards have made some improvement since the last report, it is still low, compared to other types of tenure.
The job of policing property standards is down to council environmental health officers, whose numbers are woefully short of the task. The 2017 report by HHSRS creator Dr Stephen Battersby, estimates that there are roughly only 2.4 EHOs for ever 10,000 privately rented homes.
Enforcement where problems have been identified is not easy, requiring as it does, reams of paperwork, lengthy timescales to put right and appeals processes that can drag many cases on for eons.
But in the background of all this are a set of regulations that enable local authorities to sidestep much of the nonsense and carry out works to a property where the landlord is not doing it themselves.
These various laws amount to a practice called “Works in default”.
They’ve been around for years but again, because of austerity cuts have been confined to the potting shed of history but there is no need for this. They are a valid and effective tool in the fight against rogue landlords who willfully fail to keep their properties in good repair.
The cost of doing works in default (WIDs) are recoverable from the property owner and a fee for administration of works can also be added.
So when are they appropriate?
WIDs can be done under the Public Health Act 1936 and the Building Act 1984, where the condition of a property constitutes a “Statutory Nuisance”
NCB v. Thorne (1976) largely blew out previously case law and established that “Nuisance”, in the Public Health Acts did not cover tenants affected by property conditions but WIDs can still be used where the property conditions are adversely affecting others, including clearing rubbish, dumped fridges etc from gardens, which would require paying the people to do it, hiring skips, refuse disposal fees and the like. Not forgetting the all important admin fee and a reasonable interest rate, determined by the council itself.
When it comes to property repairs and standards, Section 1 of Schedule 3 of the Housing Act 2004 allows the local authority, with the agreement of the landlord, to carry out works following service of an improvement notice. The Act itself stating:-
“The local housing authority may, by agreement with the person on whom an improvement notice has been served, take any action which that person is required to take in relation to any premises in pursuance of the notice”.
In respect of WIDs carried out to rectify problems under improvement notices the council also have the power to redirect rent to recover the costs.
WIDS may also be taken where the owner is not complying with enforcement notices served on them. Section 178 of the Town and Country Planning Act 1991 stating:-
“Where any steps required by an enforcement notice to be taken are not taken within the period for compliance with the notice, the local planning authority may—
(a)enter the land and take the steps; and
(b)recover from the person who is then the owner of the land any expenses reasonably incurred by them in doing so“.
Sections 77 &78 of the Building Act 1984 also allows councils to take remedial action where a property is dangerous but they have to apply for permission from the Magistrates court before doing the WIDs.
This is not an exhaustive list but gives you a flavour of what can be done.
Getting the money back:
When it comes to recovering costs of WIDs, leaving aside the aforementioned redirection of rents, the council can register a charge on the property in the normal way and force sale to recover if necessary and the cases of Paddington BC v. Finucane (1928), Bristol CC v Virgin (1928) and Westminster CC v. Haymarket Publishing Ltd (1981) tell us that a local authority charge levied in such instances, takes precedence over the mortgage, so an owner facing a forced sale would see the council reimbursed, whilst still potentially leaving the mortgage to be paid on a property they no longer own.
I am stripping down the essentials here in just explaining the general thrust of WIDS and like all enforcement powers they come with their own administrative procedures that can come adrift if they aren’t done correctly.
In the case of Elliot v. Brighton (1980) for instance, the owner successfully pushed the council back on charges by proceeding on the basis that they had a mandatory right to do the works, instead of exercising discretion to do them, so the council lost out on that one for making claims to powers that actually stretched the reality. And not considering their discretion.
But on the flip-side, in Swindon BC v. Forefront Estates Ltd (2012) the council carried out the necessary works under the Building Act and successfully recovered the cost of preliminary inspections, highways management, scaffolding, consulting fees, roof removal, road closures, officer fees, contractor fees and VAT!
So as you can see, WIDs can be an attractive alternative to chasing rogue landlords around the Mulberry bush of broken promises, appeals and a general “Yeah, Yeah, Yeah” approach.
Procedural ducks need to be firmly in a row and there are regulations about timescales for recovering the money but to be honest, whenever I talk to enforcement officers about why they don’t do WIDs, it isn’t because they don’t see the value in them, its just that they know their local authority wouldn’t consider stumping up the cash to do the work upfront.
This is false economy, especially when you consider awesome success stories like Swindon v. Forefront.
How much does it cost having an EHO constantly chasing a rogue landlord who is taking the mick, promising to do it next week, when he can find a plumber/electrician/builder?
How much does it cost in officer time drawing up and enforcing notices and attending appeals?
If a tenant’s boiler is broken and it will cost £1,000 to fix but the repair is being sidelined on promises of “Manana”, why not do it under WIDs?
The heating and hot water is back straight away. The tenant can remain without having to make a homelessness application on the basis that it isn’t reasonable to remain under an HHSRS Cat 1 hazard.
It saves thousands of pounds and it costs rogue landlords thousands of pounds.
What’s not to like?
By Ben Reeve Lewis