Update: Civil Penalties under the Housing and Planning Act 2016
The fixed penalty scheme introduced by the Housing and Planning Act 2016 has now come into effect and local authorities can now enforce several housing related regulations and laws by giving a civil penalty rather than prosecutions in the criminal courts. This will apply to any offences committed on or after 6 April 2017.
Although landlords and agents consider that a financial penalty is less of a problem than a criminal conviction, the reality is that the penalties will be substantial (up to £30,000 per offence) and as it will be much quicker, easier and cheaper for local authorities to award a penalty than prosecute landlords, we are expecting to see a lot more enforcement action. What’s more, since local authorities are able to keep the financial penalty (unlike the fines in criminal cases, which are simply passed to the treasury) housing standards enforcement is going to become increasingly self-funding.
The Government has also now issued statutory guidance on the operation of the civil penalties. Local authorities must follow this guidance when they use their powers to impose a civil penalty. Frustratingly, the guidance was only published the same day that the penalties came into force and so it will take time for it to be reviewed by local authorities and for their policies to be brought into line.
The guidance contains a number of interesting points for local authorities to consider:
- Local Authorities need to produce written policies on when to prosecute and when to issue a civil penalty. They should then decide which option to pursue on a case-by-case basis in line with that policy. As this guidance will not yet exist it will need to be produced urgently by local authorities and approved internally.
- Local authorities also need to develop a policy on what is the appropriate level of civil penalty. This is not something that has been done for them in either the law or guidance from central Government. Again this will need to be done locally.
- What is going to be done with the proceeds of these penalties needs to be considered – the money raised can only be used for certain purposes, as set out in The Rent Repayment Orders and Financial Penalties (Amounts Recovered) (England) Regulations 2017. These restrict the use of funds to matters related to enforcement of standards in the PRS. Local authorities will need to make sure they have calculated those figures to justify the allocation of funds.
- Although the guidance refers to the Crown Prosecution Service Code for Crown Prosecutors is far from clear whether the guidance expects local authorities to consider the Public Interest test when deciding whether to take any enforcement action. A prosecution (and presumably by extension a penalty notice) can only be brought where it is in the public interest to do so – how will local authorities ensure that where appropriate a decision is made about whether to take no enforcement action?
Until local authorities draw up a policy to deal with all of these issues they will not be able to make effective use of their new powers.
The Housing and Public Law team at Anthony Gold advises private landlords and local authorities in connection to housing standards enforcement, including all the offences under the Housing Act 2004 which are covered by this civil penalty regime. We can advise on the development of enforcement policies which comply with public sector duties and are effective in combatting rogue landlords. For more details please contact Robin Stewart or David Smith .
We are hosting a seminar aimed at local authority officers on 15 June 2017 to give guidance on fixed penalties and RROs . Please click here to find out more information.
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