Private Sector Enforcement Policy

March 19th, 2019

Humber Landlords Association v Hull City Council (2019) EWHC 332 (Admin) was an unsuccessful judicial review challenge to the Council’s decision by its Cabinet to approve a new private sector housing enforcement policy (“the Policy”). By the Policy, the Council has sought to set out how it intends to carry out its obligations under Part 1 of the Housing Act 2004 (“the 2004 Act”); in particular, how it intends to enforce housing standards and to address hazardous housing conditions. Part 1 of the 2004 Act provides, by Section 1(1):

“… for a new system of assessing the condition of residential premises, and … for that system to be used in the enforcement of housing standards in relation to such premises.”

The Judge ruled that the Policy did not amount to an unlawful fetter on the Council’s discretion. He said at paragraph 44:

“… its terms are not so clearly prescriptive as to amount to an unlawful fetter on the Council’s discretion.”

Another complaint was that the Council had taken account of irrelevant factors, including a wish to protect tenants from retaliatory evictions, and a wish to encourage landlords to join a new Hull Accredited Landlord Scheme (“HALS”). The Judge said:-

“46. A policy, an aim of which is to make it less, rather than more, likely that a landlord can seek a retaliatory eviction, does promote the policy and object of Part 1 of the 2004 Act, and is unobjectionable, and so a wish to protect tenants from retaliatory evictions is not an irrelevant factor.

47. The clear purpose of Part 1 of the 2004 Act (see, for example, section 1(1) of the 2004 Act) is to require local housing authorities to monitor the housing stock in their area and to take appropriate steps to reduce the incidence of sub-standard housing, so that the quality of the housing stock in their area is improved.

48. … a policy, an aim of which is to promote tenant complaints, furthers the purpose of Part 1 of the 2004 Act. Parliament has recognised, in the Deregulation Act 2015, that, nationally, there is a risk of retaliatory eviction if a tenant complains about sub-standard housing and, under that Act, Parliament has taken steps to reduce that risk, so as to make tenant complaints more likely. Because it is more likely that the council will be able to reduce the extent of sub-standard housing in its area, and so the purpose of Part 1 of the 2004 Act will be promoted, if it receives more, rather than fewer, tenant complaints and because it is reasonable to suppose, in the light of the Deregulation Act 2015, that the likelihood of tenant complaints increases the lower the risk of retaliatory eviction, a wish to reduce retaliatory evictions was a legitimate factor for the council’s cabinet to take into account and that wish was not an improper motive for the policy change.

49. Nor is it objectionable that the council wishes to encourage membership of new HALS. As the Enforcement Guidance recognises, accreditation schemes provide a useful mechanism for driving up housing standards and so the promotion of new HALS is capable of promoting the purpose of Part 1 of the 2004 Act.”

“56. … a wish to encourage membership of new HALS and a wish to protect tenants from the risk of retaliatory eviction were relevant considerations in the decision of the council’s cabinet to adopt the Policy.”

“59. … The fact that the ambit of the Deregulation Act 2015 is limited does not mean that there is no case where the risk of a retaliatory eviction cannot be reduced. Nor does it follow, from the fact that the ambit of the Deregulation Act 2015 is limited, that the risk of retaliatory eviction cannot be reduced in many cases where let residential premises are blighted by a hazard. I simply do not follow how, just because it is only possible to minimise the risk of retaliatory eviction in limited circumstances and for a limited period, it is perverse to adopt an otherwise apparently unobjectionable policy, …”

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