Here is a question to the blog clinic from Sheila who is a landlord.
I rent a small terraced house on an AST now in the second year. The tenant went to environmental health because there was damp in a corner of the bedroom. This was rectified by cleaning the gutter.
Env Health sent a letter saying that because downstairs is open plan, I need to put back doors to the sitting/dining room to the hall part.
There have never been doors there since I have had the property 10 years ago and nobody including this tenant have mentioned this.Most of the row of houses are like this. The property has double glazing and central heating and a double door in the hall part to separate the front door.
Is this mandatory to have to go to this expense to do this? Env health have now sent another letter saying they have noted this has not been done and giving me 14 days to do it.
I should start by saying that I am a lawyer not a surveyor and I do not have detailed knowledge of the building and similar regulations. Hopefully one of our readers will be able to comment on the more technical aspects.
However looking at it from a legal viewpoint, Environmental Health do not have the right to arbitrarily come in and order you to carry out changes to your property without a proper reason.
Housing Health & Safety Rating Surveys and the 29 hazards
As your tenant called them in because of the damp, I am assuming that they carried out a ‘Housing Health & Safety Rating Survey’. Under this they will have assessed the property for health and safety against 29 ‘hazards’. These range from excess cold to noise to electrical hazards to damp and mould issues.
If you do a search on the internet under Housing Health & Safety 29 hazards’ you will find several local authority websites with information about the hazards. Here for example is the list provided by >> Stafford BC.
If after assessing the property the Inspector finds that there are hazards, they have a duty to order the property owner to take remedial action if the hazard is classed as ‘category one’ and a power to act (ie they don’t have to) if the hazard is classed as ‘category two’.
If action is taken, this is normally done by serving an improvement notice on the property owner ordering them to carry out remedial works.
Your case
You don’t say if the Council have actually served a formal notice on you or if they are just asking you to do the work. If they have served a notice, then they are supposed to also provide you with information as to why they consider the action to be necessary (Housing Act 2004 s8).
If the Council have served a notice on you, then you need to take advice quickly as you have a 21 day period of time to appeal against it. However as you don’t specifically mention a notice I suspect that the Council have not served it yet, but are planning to do so if you do not carry out the works that they ask for.
I think you need to find out why they consider this work to be necessary. So far as I am aware there are no health and safety issues with open plan properties per se, so presumably there is something about the set up in your property which makes them consider it unsafe. You need to find out what this is.
It is possible for example that they consider the layout to be a fire hazard.
If the demand is unreasonable, you need to try to get them to change their mind so they don’t issue the improvement notice. You may want to consider getting some professional advice from a surveyor familiar with this legislation who can help you here.
If there is justification for their concern, there may be some alternative, less expensive option you can take, which you can suggest to them.
However if the improvement notice has already been served on you, you need to bring an appeal (if one is possible) within the 21 day limit.
If you want to use solicitors for this, it is important that you use a specialist property firm, such as Anthony Gold, as this is a fairly esoteric area of law and your average solicitor who does divorce or personal injury work is not going to know much about it.
Linda says
March 12, 2014 at 8:19 AMHi. We see this a lot and funnily enough I was going to post something myself this week about doors and means of escape so excellent timing.
I think it will be a fire safety issue. The sitting room is classed as a high fire risk room and a simple door could hold the fire back for about 15 mins so I imagine the Envi are looking to increase the fire safety and separation that way.
It probably wouldn’t score as a category 1 or 2 hazard on HHSRS but the council could still argue they have a responsibility. And remember it’s the local authority not the fire service who have power in private rented homes.
Have you conduced a fire risk assessment yourself for the property? This doesn’t have to be war and peace. Just simply looking at how an alarm would be raised and how the tenants would leave the property once alerted. If you have one of these it will strengthen your case with the council as to if a door is needed or not.
I’ve seen landlords re-instate or in your case put up a door (especially to small kitchens) and within the week the tenant has removed them so my advice is whatever action you take do keep your tenants educated as to why it’s being done or it’s just an expensive form filling exercise.
Agreed re: formal notice. some councils now charge for one so it you think you might get one start talking to then straight away as they can be as much as £300.
Hope this helps.
Ben Reeve Lewis says
March 12, 2014 at 8:28 AMI work in a council and very closely with Environmental Health Residential whose job it is to serve and enforce these notices so I have a certain amount of insight.
Are council’s inefficient? Often yes, are they weighed down by bureaucracy? Absolutely Are they stuck in a time warp? Organisationally yes, BUT You have to bear in mind that councils didnt invent the HHSRS, it was invented by government and then dumped on officers desks to work with and there is little wriggle room.
As is the case in all these matter councils dont invent the rules I’m afraid and staff often tut and gripe about the nonsense they have to do.
The fact that none of the houses in your block have these doors and that they were just designed that way is neither here nor there.
The HHSRS, although well intentioned is a madhouse, probably invented by someone on the autistic spectrum, and I dont mean that as a casual insult. I mean it literally. It is a complex mess of legislation that only makes sense to a certain kind of intelligence and has a similar relationship that a circuit diagram has to an amplifier. Essential for understanding how it works but a poor substitute for the real thing.
It was introduced to be more flexible than the old Section 189/190 notices but it’s a systemic flexibility, which means it gives the impression of being flexible through having myriad shades of grey within it.
For instance as i understand it the steepness of your stairs can be a category 1 hazard, but only when measured against the depth of a step and the age of the person using it. It’s all formulas that remove any individual interpretation and therefore minimises human error.
Does anyone have anything nice to say about the HHSRS?
David Smith says
March 12, 2014 at 8:38 AMThis will be an HHSRS matter. Some local authorities get very exercised by open plan areas. I have even see one demanding sprinklers in open plan areas. You cannot ignore this and if you do you risk being prosecuted. If you wish to contest it you will need a specialist advice from a surveyor or fire safety consultant and then probably some legal help to argue the case. There have been recent upper tribunal decisions on fire safety which may well support your case.
Colin Lunt says
March 12, 2014 at 9:15 AMAs David says this sounds as if it is a HHSRS issue. However you will need to look at the wording of the letter and see exactly what it is that is being said to you. It may be that they have said they will CONSIDER issuing a formal notice under HHSRS if the work suggested is not done within a given 14 day period.
Quite often a Council will issue informal letters because guidance says that they should not be followed before reasonable opportunity is given to consider the issue. The Fire Service have a responsibility to advise households about fire safety (they came to my door just last week) If you contact them they will come out and provide their suggestions for changes or other means or fire prevention. This may enable a negotiation between you and the Council.
If and when a Formal Notice is issued that is the opportunity for the First Tier Tribunal to make a determination of what should be done. It is not uncommon for Tribunals to decide that remedies proposed by a Council are excessive against the risk posed to the tenant.
(Ben although HHSRS is now subject to criticism by government it was originally designed by independent specialists at Warwick University not by government. )
Tessa Shepperson says
March 12, 2014 at 9:27 AMThank you very much everyone for your comments. Hopefully Sheila will be able to take them all on board when deciding what to do.
As David says, ignoring it is not really an option.
Industry Observer says
March 12, 2014 at 7:24 PMTessa you refer to 2 days to appeal to RPTS if it is an enforcement notice that has been served.
I understand it to be 28 days
Ben can you referee here?
The entire key here is the basis the LA is insisting on the work being done. Is it category 1 or 2 – foolish to ignore category 2 I agree, but you must comply with, or object against, a category 1 notice.
Tessa Shepperson says
March 12, 2014 at 7:47 PMI said 21 days which is the time limit in HA 2004 Sch 1 part 3 s14 http://www.legislation.gov.uk/ukpga/2004/34/schedule/1/part/3
However it also says you can appeal out of time.
Jamie says
March 17, 2014 at 4:45 PMLet this be a lesson to any landlords ignoring maintenance requests from their tenants (I’m not saying the orignal poster is necessarily one of those landlords of course).
A small problem left unattended can soon become a very expensive one if a complaint is made to the local authority. The inspector is duty bound to assess the property on all potential risks under the HHSRS, not just the one in the orignal complaint.