Guidance Note 6: Section 225A-225H - Emergency Remedial Action
This note is part of the statutory guidance under s215 of the HRA 2008 (from 1 April 2024)
Applies to England
| Applicable | |
|---|---|
| PRP (For Profit) | yes |
| PRP (Not For Profit) | yes |
| PRP (Registered Charity) | yes |
| Local Authority | yes |
Type of power: enforcement power
Scope
This power enables the regulator to authorise an appropriate person (‘authorised person’) to enter social housing premises to undertake emergency remedial action.
An authorised person may be a member of the regulator’s staff or another person that has been given written authorisation by the regulator. An authorised person may enter the premises with or without a warrant.
Whilst ‘premises’ is not defined in the Act, emergency remedial action can be taken in relation to dwellings and common parts.
An offence will be committed if a registered provider or an officer, of a registered provider or other persons (including tenants) obstructs an authorised person in exercising their powers (section 225F of the Act).
When the regulator will use this power
Section 225B(2)-(4) of the Act sets out the conditions which must be met to use this power:
- a survey of the condition of the premises has been carried out under section 199 of the Act;
- the regulator is satisfied that the registered provider has failed to maintain the premises in accordance with standards under section 193 of the Act and that failure has caused an imminent risk of serious harm to the health or safety of the occupiers of those or other premises; and
- the registered provider has failed to comply with an enforcement notice requiring it to take action to address these failures.
Emergency remedial action is defined in section 225B(5) of the Act and are such works the authorised person considers immediately necessary to remove the imminent risk of serious harm.
The regulator expects registered providers to resolve issues raised by their tenants or the regulator in a timely manner appropriate to their level of risk. The regulator is mindful of its duties to minimise interference and so far as possible to be proportionate. As such, the regulator only anticipates using this power in exceptional circumstances where the health and safety of tenants is at imminent or serious risk.
Process for using the power
Emergency remedial action: power to enter without warrant (sections 225C and 225D)
Where the regulator is satisfied the conditions under section 225B(2)-(4) of the Act have been met, it will identify an authorised person based on the findings of the survey to take emergency remedial action.
The regulator will brief the authorised person on the findings of the survey.
As set out at section 225C(2) and (6) of the Act, before taking emergency remedial action, the authorised person must give a pre-entry notice least 24 hours (unless consent is obtained to earlier entry) before they propose to enter the premises to:
-
the occupier, or any one of the occupiers (where the premises are occupied);
-
if the premises include common parts of a building and there are occupied dwellings in the building that have use of those common parts, the occupier (or any one of the occupiers) of each of those dwellings;
i) the registered provider; and
ii) each proprietor of a registered estate in the premises (within the meaning of the Land Registration Act 2002).
Under section 225D(1) of the Act the pre-entry notice to the occupier or occupiers may be given by fixing it to a conspicuous part of the premises.
The pre-entry notice must comply with section 225C(4). It must:
-
identify the premises to be entered;
-
identify the failure to maintain the premises which has caused the imminent risk of serious harm;
-
state that the authorised person intends to enter the premises and has been authorised by the regulator;
- specify the date (or the first date) that the authorised person proposes to enter the premises to take emergency remedial action;
- specify the power under which the authorised person intends to enter the premises; and
- explain that the registered provider has a statutory right of appeal (as set out in section 225H of the Act).
The authorised person will be able to enter the premises at any reasonable time, or times, to take emergency remedial action and must produce a copy of their authorisation from the regulator on request by an occupier (sections 225C(1) and 225D(3) of the Act).
The authorised person may be accompanied by other persons and take onto the premises such equipment or materials as they think necessary for the purposes of taking emergency remedial action (section 225D(4) of the Act).
Under section 225D(5) of the Act, equipment or materials taken onto the premises may be left until the emergency remedial action has been taken provided that:
-
leaving the equipment or materials in that place does not significantly impair the ability of an occupier to use the premises (including common parts where present); or
-
leaving the equipment or materials on the premises is necessary for taking the emergency remedial action and it is not possible to leave it or them in a place that does not significantly impair the ability of an occupier to use the premises (including common parts where present).
Under section 225E of the Act, the regulator can consider applying for, and then entering the property under a warrant if entry to the premises is refused or other circumstances mean it is necessary.
Emergency remedial action: power to enter with warrant (section 225E of the Act)
Under section 225E(1) of the Act, the regulator may apply for a warrant from a justice of the peace (‘justice’) to enter premises to carry out emergency remedial action. In order to do so, it will need sworn written information from an authorised person that entry is reasonably required to take emergency remedial action.
Section 22E(2) of the Act provides that a justice may grant such an application where they are satisfied one of the following grounds have been met:
- entry to the premises has been sought under section 225C of the Act but has been refused;
- the premises are unoccupied or that the occupier is temporarily absent; or
- there are reasonable grounds to believe that the authorised person will not be able to obtain entry to the premises without a warrant.
Under section 225(6) of the Act, a warrant may authorise persons (‘accompanying persons’) to accompany the authorised person. Accompanying persons will have the same powers as the authorised persons and can only exercise those powers whilst with and under the supervision of the authorised person.
A warrant authorises an authorised person to take onto the premises such equipment or materials as they consider necessary for taking emergency remedial action. The same rules in relation to leaving such equipment on the premises, as set out above, apply (section 225E(5) of the Act).
Where entering pursuant to a warrant, an authorised person must produce a copy of the warrant and the written authorisation from the regulator upon request (section 225E(8) of the Act).
A warrant will continue in force until the emergency remedial action has been taken (section 225E(9)) of the Act).
Costs
Under section 225G of the Act, the regulator may, by notice (’cost notice’) require the registered provider to pay relevant expenses and any interest on such expenses within 28 days beginning with the day on which the regulator provides such cost notice. Relevant expenses are:
-
expenses reasonably incurred by the regulator in deciding to take emergency remedial action and making those arrangements; and
-
the authorised person’s costs in taking emergency remedial action and costs reasonably incurred by the regulator in connection with this.
Appeal process
Under section 225H of the Act, there is a statutory right of appeal to the High Court which can be brought against the decision of the regulator:
-
to make arrangements for an authorised person to take emergency remedial action; and
-
to give a cost notice.
Appeals in relation the regulator’s decision to make arrangements for emergency remedial action
Such appeals must be brought within the period of 28 days beginning with:
-
the day on which the registered provider is given the pre-entry notice; or
-
the day on which the premises were first entered under a warrant obtained under section 225E of the Act (only where the warrant was not obtained on the ground that entry to the premises had been sought under section 225C of the Act but was refused).
Appeals in relation to the regulator’s decision to issue a costs notice in connection with the emergency remedial action
Such appeals must be brought within the period of 28 days beginning with the day on which the registered provider was given the cost notice.
Where a registered provider’s appeal relates to the regulator’s decision to issue a costs notice, it may not cover the regulator’s decision to arrange for emergency remedial action.
The requirement to pay such expenses set out in the cost notice and any interest accrued is suspended during the appeal period (as defined in section 225H(5) of the Act) and no interest accrues during this period.