Guidance

Guidance for local authorities

Updated 28 February 2022

This guidance was withdrawn on 25 March 2022

This guidance has been withdrawn because it’s no longer current. Check up-to-date coronavirus (COVID-19) guidance and information.

Applies to England

What has changed

The government has published its plan for living with COVID-19. This means:

From 24 February

• You will no longer be legally required to self-isolate if you test positive for COVID-19. New guidance will advise people who test positive to stay at home and avoid contact with other people.

• You will no longer be legally required to self-isolate if you are an unvaccinated close contact, and will no longer be advised to test for 7 days if you are a fully vaccinated close contact. The government has published new guidance for people with coronavirus (COVID-19) and their close contacts.

COVID-19 (Coronavirus) and the enforcement of standards in rented properties

Non-statutory guidance for local authorities on enforcing standards in rented properties during the COVID-19 outbreak

The purpose of this guidance is to advise local authorities in England how to effectively enforce standards in rented properties (including housing association properties), meet their legal duties and support landlords and tenants during the unprecedented challenges posed by the coronavirus (COVID-19) outbreak.

Stock-owning local authorities are of course expected to maintain their homes to the same standard as they enforce against others and should have due regard of the guidance in their functions as landlords.

The guidance in this document applies to England only. Some of the measures referred to also apply in Wales.

See guidance for Wales, Scotland and Northern Ireland.

1. Introduction

On 26 March 2020 the Coronavirus Act 2020 came into force. It relates to a wide range of matters associated with the COVID-19. More information about this legislation and all the latest government guidance on COVID-19.

Local authorities may still encounter challenges when inspecting properties in order to assess standards or take enforcement action. This may be because some landlords and tenants still want to exercise caution. Nevertheless , it is important that health and safety standards in privately rented properties are enforced where necessary, considering the associated risks.

This is not statutory guidance issued under section 9 of the Housing Act 2004. The guidance is intended to provide a recommended approach for local authorities, taking into account the coronavirus (COVID-19) outbreak and current public health guidance. Local authorities are not required to have regard to the guidance under section 9(2) of the Act.

2. How should local authorities enforce standards in rented properties?

Local authorities must keep housing conditions under review and have a duty to take appropriate action when they find the most serious ‘category 1’ hazards. Local authorities also have legal duties and powers under other legislation.

These duties and powers are vital to protect tenants, even as COVID-19 remains a risk.

We therefore recommend:

• Ensuring local authorities’ enforcement policies are up to date, reflecting the current situation.
• Always ensuring tenants are kept safe and landlords are supported.
• Ensuring all work is carried out in line with local authorities’ own health and safety policies and procedures.
• Basing all decisions on an assessment of risk.

3. Inspections and investigations

Effective enforcement of standards in rented properties relies on local authority officers visiting rented properties.

Local authorities can safely access properties to carry out a range of works. This includes:

• routine safety inspections, including electricity safety checks and annual gas safety checks;
• essential and non-essential repairs and maintenance; and
• planned or unplanned maintenance activity inside and outside the home

Any inspections or investigations should be undertaken in accordance with the latest government ’working safely during coronavirus (COVID-19)’ guidance.

During this period, we continue to advise that local authorities keep their enforcement policies updated to reflect the changing situation. This includes the use of their powers of entry to gain access to properties and carry out inspections.

Local authorities must also ensure their health and safety policies are up to date and cover officers carrying out inspections and visits during this period. These policies should inform the updated enforcement policies and reflect the latest guidance to help employers, employees and the self-employed understand how to work safely during the coronavirus pandemic.

Local authorities’ legal duties have not changed, but if a local authority considers that it may not be able to comply with those duties in a particular situation it should refer the issue to its borough solicitor/chief legal officer.

A decision to inspect a rented property should be based on risk and in line with a local authority’s resource capacity and enforcement policies. Local authorities should have regard to the fact that some people may still wish to exercise caution. An inspection might be made because:

• There is a duty to inspect because, for example, there is an imminent risk to a tenant’s health due to a serious hazard.
• A serious hazard was previously identified and may still exist.
• The local authority has been made aware that a tenant is vulnerable and it is not clear if they are aware of the presence of hazardous conditions.

This list is not exhaustive and should not be treated as conclusive.

It might not be possible to inspect a property due to tenants choosing not to allow access. Updated enforcement policies should address this possibility and consider what a reasonable response would be. For example, in properties where tenants are self-isolating:

• An assessment could be made through photographs, video or live broadcasting by the tenant.
• In cases of very serious risk, when entering a tenant’s home to conduct an inspection, local authorities should ensure strict separation is maintained and that the appropriate personal protective equipment (PPE) is used. Government guidance and the local authority’s own health and safety policy should also be followed. Local authorities should consider whether the risks associated with not rectifying the hazard are higher than the risk of COVID-19 transmission.
• In cases of extremely hazardous conditions, alternative accommodation might be considered as an alternative to emergency remedial action.

The suggestions above are not exhaustive and all decisions should be made on the merits of the individual case and an assessment of risk. Local authorities should have regard to the fact that tenants may still wish to exercise caution.

4. Enforcement action

Local authorities should take the enforcement action that they determine is necessary in accordance with their own priorities and enforcement policies. They should have updated and adapted their enforcement policies as required to meet the changing circumstances caused by COVID-19 and latest government advice regarding the outbreak, and ensure pragmatic, appropriate and risk-based action is taken.

For example:

• Legal notices served under the Housing Act 2004 may, if the notice provides for this, be suspended for a period due to difficulties in completing the works.
• The use of Hazard Awareness Notices should be considered where appropriate. Alternative forms of enforcement action may be considered for the most serious hazards, e.g. a Prohibition Order covering part of a property may be used instead of Emergency Remedial Action.

The above list is intended only as an example and all decisions should be made on the merits of the individual case and based on an assessment of risk and the latest government advice around the outbreak.

5. Proactive and reactive work

Local authorities should continue using a risk-based approach when deciding to undertake proactive enforcement activity. This decision should be taken in accordance with their own priorities, resource capacity, and the latest public health advice.

When conducting reactive work, local authorities may wish to use a triage system to prioritise the most serious risks and protect vulnerable tenants.

Any pro-active or reactive action to protect vulnerable tenants should be undertaken based on a risk assessment and the most recent government advice about the outbreak.

Where property inspections or remedial works are required, local authorities should ensure that these are carried out in accordance with the latest guidance on working safely in people’s homes.

6. Support for landlords and tenants

It is important local authorities work closely with landlords and tenants to ensure standards in rented properties are maintained.

Local authorities should consider contacting landlords and using communications and marketing to emphasise the importance of keeping properties free from hazardous conditions in all cases and particularly so where tenants are more vulnerable, for example older and disabled people. They should also reassure landlords that a pragmatic, risk-based and common-sense approach will be used when enforcement decisions are taken.

Government has produced separate guidance for tenants and landlords.

7. Electrical and gas safety in privately rented properties

The Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 have applied to all tenancies since 1 April 2021.

The Electrical Safety Regulations require landlords to:

• Ensure that the electrical safety standards are met during any period of a tenancy.
• Have the electrical installations in their properties inspected and tested by a person who is qualified and competent, at least every 5 years, or more frequently if the most recent report requires this.
• Provide a copy of the report (known as the Electrical Safety Condition Report or EICR) to their tenants, and to the local authority if requested.
• Carry out investigative or remedial works when required by the EICR requires.

The Gas Safety (Installation and Use) Regulations 1998 require landlords to have an annual gas safety check on each appliance and flue carried out by engineer registered with the Gas Safe Register and to keep a record of each safety check. Further advice can be found on the Gas Safe Register’s website.

Both regulations are clear on the issue of compliance. With regards to the Electrical Safety Regulations, a landlord would not be in breach of the duty to comply with a remedial notice if the landlord can show they have taken all reasonable steps to comply. With regards to a landlord’s duties under the Gas Safety Regulations, a landlord would not be liable for an offence if the landlord can show they have taken all reasonable steps to prevent the contravention.

A landlord could show reasonable steps by keeping copies of all communications they have had with their tenants and with engineers as they tried to arrange the work, including any replies they have had. Landlords may also want to provide other evidence they have that the installation, appliance or flue is in a good condition while they attempt to arrange works. This could include the servicing record and previous landlord gas safety check records.

8. Questions and answers

The following Q&A is not exhaustive and is not meant to be legal advice.

8.1 Hazards

Q. What about the legal duty that local authorities must take the appropriate enforcement action if they consider that a category 1 hazard exists on any residential premises?

A. Local authorities should:

• Consider carefully what would be appropriate enforcement action during the current situation and update enforcement policies accordingly.
• Prioritise resources to ensure vulnerable tenants and risks to health are targeted.

8.2 Property licensing

Q. What about the legal duty that local authorities have to ensure that all applications for licences are determined within a reasonable time?

A. For mandatory House in Multiple Occupation licensing and non-mandatory schemes (selective licensing and additional House in Multiple Occupation licensing) which are already in place, local authorities should:

• Contact landlords who are waiting for licences to be determined to explain potential delays.
• Take individual landlords’ circumstances into account where licence fee payments may have been delayed due to the current situation.
• Prioritise high-risk licensable properties if this is necessary to protect vulnerable tenants and target imminent risks to health.
• Continue as usual for non-mandatory licensing schemes which are already in place but, as with all enforcement, take a pragmatic and common-sense approach to enforcement action.

Where local authorities are in the process of introducing selective or additional Houses in Multiple Occupation licensing schemes, but these are not yet in force they should:

• continue to take an approach that has regard to local circumstances.
• be prepared to pause the process completely where it is not safe and reasonable to continue or if it will conflict with latest government advice regarding COVID-19

8.3 Protection from unlawful eviction and harassment

Q. What about local authorities’ power to prosecute landlords for unlawful eviction or harassment?

A. Local authorities should:

• Update all advice and guidance to ensure tenants and landlords are aware of the changes to the eviction timescales arising from the Coronavirus Act 2020. From 1 October 2020 all notice periods will return to the pre-Covid position.
• Prioritise protecting vulnerable tenants from eviction and harassment.

Local authorities continue to have prevention, relief and main homelessness duties. Where a tenant is at risk of eviction the local authority should work with the landlord to prevent homelessness.

8.4 Scheduled inspections, e.g. gas, electricity

Q. What about the requirement for landlords to ensure certain installations are in place or safe, for example gas, fire alarms, emergency lighting?

A. Before escalating enforcement actions local authorities should consider carefully if landlords can show evidence that they have been unable to carry out inspections or works, despite having taken reasonable steps.

When conducting inspections, you should follow the latest government guidance on working safely in peoples homes.

8.5 Dealing with anti-social behaviour in rented properties

Q. What action should local authorities be taking during the period affected by COVID-19 to deal with instances of anti-social behaviour?

A. Local authorities should continue to:

• Work with landlords and tenants to constructively resolve instances of anti-social behaviour and address the underlying causes.
• Manage licensed Houses in Multiple Occupation by ensuring Anti-Social Behaviour conditions are adhered to or take appropriate enforcement action as necessary.
• Use the powers available to them through the Anti-Social Behaviour, Crime and Policing Act 2014 to address instances of anti-social behaviour. These powers are unaffected by the provisions of the Coronavirus Act 2020. You may wish to read the statutory guidance for frontline practitioners on the use of the Anti-Social Behaviour powers.
• Prioritise cases where the health and wellbeing of tenants and the wider public is at risk.

8.6 Dealing with overcrowding

Q. What action should local authorities be taking if they are concerned about overcrowded or shared accommodation?

A.

• Local authorities have enforcement powers to require landlords to remedy serious overcrowding hazards.
• However, we expect local authorities to take a common-sense approach to using these powers.
• We recommend landlords and tenants work together wherever feasible in order to help to support vulnerable residents.
• Tenants in shared housing may still be concerned about the transmission of COVID-19.
• Local authorities should consider giving advice and guidance and working with landlords and tenants to support this.
• Local authorities should consider whether persons seeking help because of overcrowded conditions should be assessed under homelessness legislation, where their circumstances and needs indicate it may not be reasonable for them to continue to occupy that accommodation.