Agenda item

[Report of the Assistant Director for Environment and Community Safety. To be introduced by the Cabinet Member for Environment.] The report  will seek  agreement to the amount of penalty charge to be paid for non compliance of a remedial notice in relation to the Smoke and Carbon Monoxide Alarm Regulations 2015 and any concession for early payment.

The Cabinet Member for Environment introduced the report which set out the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 which imposed obligations on the Council to inspect premises and enforce the requirements for landlords to provide tenants with smoke detectors and carbon monoxide alarms in their premises.

It was noted that this fire protection related regulation already applied to HMO’s and was now applied, through the new legislation, to all rented accommodation, including family dwellings, of which, there were a significant number in the borough.

Enforcement of this new policy would have huge resource implications for the Council.

Therefore there would be a sound communications strategy to alert landlords, letting agents and tenants of the statement of principles and penalty charges process for related to these mandatory regulations. During the early stages of the communications strategy, the Cabinet Member was recommending there be limited use of the penalty fines to allow landlords and letting agents the opportunity to be informed of the new legislation and to conform to the new requirements.

The report was also recommending a sliding scale of charges applied, reflecting the type of properties in the occupancies in rental sector.

RESOLVED

1. To adopt the policy statement set out at Appendix 1.

2. To agree that Penalty Charges Notices (PCN) administered follow the Statement of Principles as set out in Appendix 3.

Reasons for decision

A penalty charge of up to £5000 can be imposed for failure to comply with a Remedial Notice served under these regulations. However, as per Appendix 3 and the guidance provided by the legislation, officers were recommending a sanction which is based on a sliding scale and an early discount for not progressing to the review and appeal stage.

In keeping with this it was recommended that each landlord should be charged accordingly based on each individual offence, thus averting any challenges by landlords or variations following First Tier Tribunal hearings.

Any penalty charge should be set at a level which is proportionate to the risk posed by non-compliance with the requirements of the legislation and which will deter non-compliance. It should also cover the costs incurred by the Council in administering and implementing the legislation.  The authority has no other means of recovering the cost of remedial action than by imposition of a penalty charge.

Fire and Carbon Monoxide are two of the 29 hazards prescribed by the Housing Health and Safety Rating System and can result in death and serious injury.  In the case of fire, the absence of working smoke alarms in residential premises is a significant factor in producing worse outcomes.

As previously stated, the provision of smoke detectors and carbon monoxide alarms does not place an excessive burden on a landlord. The cost of the alarms is low and in many cases they can be self-installed without the need for a professional contractor. The impact on occupiers, damage to property and financial costs resulting from a fire or Carbon Monoxide poisoning event are far out of proportion to the cost of installing alarms.

For these reasons, an effective incentive to comply with these Regulations must be set, as the enforcement of these regulations and the attributed penalty charge is the deterrent in these cases. It is understood that the imposition of the maximum potential fixed penalty charge, that being £5,000 under the regulations or the penalty proposed under our sliding scale, can present an excessive financial burden in relation to the low cost of the works. This is however balanced against the risk and the fact that all reasonable opportunity will have been given to landlords to comply with the regulations prior to any penalty charge being levied. A recipient of a fixed penalty charge has a right of appeal.

Having an effective penalty charge to act as a deterrent in these cases is being sought. It is however hoped that with an effective communications strategy in place the need to use these regulations, certainly the issuing of a Fixed Penalty Notice for failing to comply should be substantially reduced.

It is proposed that a successful communications program that targets both landlords, letting agents and tenants will reduce if not eliminate the need for Council intervention under these regulations. Informing landlords and agents of their duty and through promoting the Fire Authorities free smoke detectors we hope landlords will proactively respond to such a campaign and ensure that detectors are in place and that existing detection works.

It was also essential that the communications programme is designed in such a way that it educates tenants on their rights at the same time as empowering them to also be responsible for their own safety, to take action for themselves, to check that these measure are in place, especially at the beginning of new tenancies and to confront agents and landlords who have failed in their duty themselves before involving the local authority.

Alternative options considered 

The Regulations oblige the Council to enforce them, and to publish a statement of the principles upon which it will calculate penalty charges. It is not therefore open to the authority to opt-out.

The issuing of a civil penalty is what the Regulations provide as a sanction for non-compliance. The alternative option to be considered would be to charge the maximum sanction on each occasion non compliance takes place.

The £5000 figure is specified within the regulations as the upper figure for the penalty sanction.

This is not considered appropriate; the structure of the Regulations assumes that the amount of the penalty charge will be determined by the application of stated principles, and the landlord affected is entitled to appeal to the First Tier Tribunal on the ground that the penalty charge imposed is unreasonable.

If it had been intended that a local authority should have power to impose the maximum penalty for any and every breach of the Regulations, then the First Tier Tribunal would not have been given power to reduce a charge as “unreasonable”.

The requirement to publish a statement of principles on the basis of which the charge will be calculated would be unnecessary if there were no requirement to take the circumstances of each case into account in calculation of the charge.

Furthermore, breaches of Housing legislation punishable as offences rarely attract, on conviction, a fine of the maximum available.  The punishment is tailored to fit the crime.  By analogy, so must the penalty charge.