FAQs

The Housing and Planning Act 2016 introduced civil penalties that local authorities can impose on a landlord or agent guilty of committing certain defined offences under the Housing Act 2004, as an alternative to prosecution.  In determining an appropriate level of penalty, local housing authorities should have regard to guidance issued by the Department for Levelling Up Housing and Communities and Local Government which sets out the factors to take into account when deciding on the appropriate level of penalty.

This would be persons involved in owning or managing private rented properties who have committed a relevant offence. However, the Council does have the power to impose them on tenants of Houses in Multiple Occupation, for offences under section 234 of the Housing Act 2004, and will consider doing so where it is deemed appropriate.

A civil penalty can be considered as an alternative to prosecution for any of the following offences under the 2004 Act:

• Failure to comply with an Improvement Notice* (section 30);
• Offences in relation to licensing of HMOs (section 72);
• Offences in relation to licensing of houses (selective licensing)(section 95);
• Contravention of an overcrowding notice (section 139); Failure to comply with management regulations in respect of HMOs (section 234).
• Failure to comply with duties of private landlords in relation to electrical installations in accordance with the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020

It can also be used as an alternative to prosecution for breaching a banning order that has been made by the First-tier (Property) Tribunal under section 16 of the 2016 Act.

Section 126 and Schedule 9 of the Housing and Planning Act 2016 enables the Council to impose a civil penalty as an alternative to prosecution for specific offences defined under the Housing Act 2004.

The same criminal standard of proof is required for a civil penalty as for a criminal prosecution. This means that before a civil penalty can be imposed, the Council must be satisfied beyond reasonable doubt that the Landlord committed the offence(s) and that if the matter were to be prosecuted in the Magistrates’ Court, there would be a realistic prospect of conviction.

In determining whether there is sufficient evidence to secure a conviction, the Council will have regard to the Southend Borough Council - Environment and Regulatory Services Enforcement Policy and the Crown Prosecution Service Code for Crown Prosecutors, published by the Director of Public Prosecutions. The finding that there is a realistic prospect of conviction is based on an objective assessment of the evidence, including whether the evidence is admissible, reliable and credible and the impact of any defence.

In order to actually achieve a conviction in the Magistrates’ Court, the Council would need to be able to demonstrate beyond reasonable doubt that the offence has been committed. Similarly, where a civil penalty is imposed and an appeal is subsequently made to the First-tier Tribunal, the Council would need to be able to demonstrate beyond reasonable doubt that the offence had been committed.

The link below takes you to further details on the Evidential Stage of the Full Code Test for criminal prosecutions as set out in the Guide for Crown Prosecutors.

https://www.cps.gov.uk/publication/code-crown-prosecutors

The Council must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction against the Landlord and that the public interest will be properly served by imposing a civil penalty. The following questions should be considered:

• Does the Council have sufficient evidence to prove beyond reasonable doubt that the offence was committed by the Landlord in question?
• Is the public interest properly served by imposing a civil penalty on the Landlord in respect of the offence?
• Has the evidence been reviewed by the appropriate senior colleague at the Council?
• Are there any reasons why a prosecution may be more appropriate than a civil penalty? i.e. the offence is particularly serious and the Landlord has committed similar offences in the past and/or a banning order should be considered.

The weblink below takes you to further details on the Public Interest Stage of the Full Code Test for criminal prosecutions. https://www.cps.gov.uk/publication/code-crown-prosecutors

This would be when a Landlord and or Agent has breached one or more of the relevant offences under the Housing Act 2004, or where they have breached a banning order under the 2016 Act. Enforcement action will be considered on a case-by-case basis in line with the Southend Borough Council - Environment and Regulatory Services Enforcement Policy

The government has laid out statutory guidance as to the process and the criteria that need to be considered when determining civil penalties. These are:

• Severity of the offence
• level of culpability
• level of harm caused to the occupiers
• punishment of the offender
• Deterrence from repeating or committing similar offences
• Removal of any financial benefit derived through the failure to comply

The Council will ensure that the civil penalty acts as a punishment and a deterrent to future offending by the recipient or others and will also take into account any previous patterns of offending, to ensure that no offender should benefit as a result of committing the offence.

The Council will consider the following factors to help ensure that the civil penalty is set at an appropriate level:

1. Severity of the offence. The more serious the offence, the higher the penalty is likely to be.
2. Culpability and track record of the offender. A higher penalty will be appropriate where the offender has a history of failing to comply with their obligations and/or their actions were deliberate and/or they knew, or ought to have known, that they were in breach of their legal responsibilities. The Council and the Department for Levelling Up Housing and Communities take the view that Landlords are running a business and should be expected to be aware of their legal obligations.
3. The harm caused to the tenant. This is a very important factor when determining the level of penalty. The greater the harm or the potential for harm (this may be as perceived by the tenant), the higher the amount should be when imposing a civil penalty.
4. Punishment of the offender. A civil penalty should not be regarded as an easy or lesser option compared to prosecution. While the penalty should be proportionate and reflect both the severity of the offence and whether there is a pattern of previous offending, it is important that it is set at a high enough level to help ensure that it has a real economic impact on the offender and demonstrates the consequences of not complying with their responsibilities.
5. Deter the offender from repeating the offence. The ultimate goal is to prevent any further offending and help ensure that the landlord fully complies with all of their legal responsibilities in future. The level of the penalty should therefore be set at a high enough level such that it is likely to deter the offender from repeating the offence.
6. Deter others from committing similar offences. While the fact that someone has received a civil penalty will not be in the public domain, it is possible that other landlords in the local area will become aware through informal channels when someone has received a civil penalty. An important part of deterrence is the realisation that (a) The Council is proactive in levying civil penalties where the need to do so exists and (b) that the level of civil penalty will be set at a high enough level to both punish the offender and deter repeat offending.
7. Remove any financial benefit the offender may have obtained as a result of committing the offence. The guiding principle here should be to ensure that the offender does not benefit as a result of committing an offence, i.e. it should not be cheaper to offend than to ensure a property is well maintained and properly managed.

It is recognised that some of this criteria is replicated, for example the aim to deter from repeating or committing offences. It is also recognised that punishment through issuing a civil penalty is an underlying factor the criteria has been amalgamated into 4 categories for ease of understanding and to ensure that the recipient of a penalty is not “punished twice” for the same offence. The four categories are as follows;

1. Deterrence and prevention
2. Removal of financial incentive
3. Offence and history
4. Harm to tenants

At the first stage of the process the Council will give the person a notice of its proposal (‘notice of intent’) to impose a financial penalty;

The notice of intent sets out:

• the amount of the proposed financial penalty the reasons for proposing to impose the penalty;

and

• information about the right of the landlord to make representations.

The notice of intent must be given no later than 6 months after the Council has sufficient evidence of the conduct to which the penalty relates, or at any time when the conduct is continuing.

A person who is given a notice of intent may make written representations to The Council about the intention to impose a financial penalty;

Any representations must be made within 28 days from when the notice was given.

After the end of the period for representations, the Council must decide whether to impose a penalty and, if so, the amount of the penalty.

If the Council decides to impose a financial penalty, it must give the person a notice (‘final notice’) requiring that the penalty is paid within 28 days.

The final notice must set out:

• the amount of the financial penalty;
• the reasons for imposing the penalty;
• information about how to pay the penalty;
• the period for payment of the penalty (28 days);
• information about rights of appeal; and
• the consequences of failure to comply with the notice.

The Council may at any time: withdraw a notice of intent or final notice; or reduce the amount specified in a notice of intent or final notice.

Yes, a person who receives a final notice may appeal to the First-tier Tribunal against: the decision to impose a penalty; or the amount of the penalty.

If a person appeals, the final notice is suspended until the appeal is determined or withdrawn.

A calculation is made across the 4 dimensions of

Deterrence and Prevention

Removal of Financial Incentive

Offence and History

Harm to tenants

The scoring is cumulative and low scores will produce low fees. High scores will produce a higher fee with a cap of £30,000. The scoring is carried out across the four factors and added at the end. The statutory guidance considers the severity of harm to the tenants to be the most important factor the score along this row is doubled. Harm is defined as greater harm, potential for harm and also takes account of the tenants perceptions of harm.

A house in multiple occupancy (HMO) is a property rented out by at least 3 people who are not from 1 ‘household’ (for example a family) but share facilities like the bathroom and kitchen. It’s sometimes called a ‘house share’.