Here is a question to the blog clinic from Sally (not her real name) who is a landlord
We were reported to Environmental Health for damp by a relative (who works for the council) of a tenant.
EH Officer found no damp (aside from some mould in bathroom) but did identify a few other minor defects, one of which was a slack radiator temperature control dial on the boiler. The boiler has a valid LGSR and the heating, hot water and radiators all work (each radiator has a working thermostatic valve). The tenants did not report that there was a problem, in fact, they said that the heating had been working fine.
We arranged for our usual Gas Safe company to tighten the dial and were told shortly after the engineer went round that the invoice for the work was on its way. We have since found out that the work was not completed as the company had staffing problems. We have written evidence to support this.
When EH Officer went back to re-inspect, he found that the dial hadn’t been fixed and also found several new defects. None of these defects were reported by the tenants nor were they mentioned by the EH Officer during the first visit.
We have been asked to attend a formal PACE interview under caution because we are suspected of committing a criminal offence.
Please could someone explain if we can be prosecuted for new defects which we knew nothing about. Also, where do we stand with the Gas Safe company as we were led to believe the work had been done?
Answer
All landlords need to be aware that this is something that can happen to you at any time. It is known as a Housing Health and Safety Rating System inspection (HHSRS).
This is why you need to be sure to have your properties in tip top condition when they are rented out and why you need to deal with any issues that arise, promptly, while the tenants are in occupation.
However, I doubt very much whether you will be prosecuted – provided you get the work done.
Preparing for the interview
It goes without question that you need to get the dial fixed asap. However provided you do this, the Council are unlikely to take this issue any further. After all so far as you were aware it had already been done – and you are able to prove this.
As regards the other defects, the best thing to do (if you can) is to get them fixed prior to the interview.
If this is not possible or if they are things which cannot be done quickly, you need to be able show at the interview that you have taken steps to get the work done and have a schedule showing that it will be completed within a reasonable time scale.
So long as they see that you are acting on the issues, it is most unlikely that the Council will prosecute you. Particularly as you had not previously had notice of these particular defects.
Bringing a prosecution is a serious business and involves a lot of work on the part of the Council Officers. Councils are currently underfunded and understaffed. They are not going to bring a prosecution against a landlord who is already dealing with the issues in hand.
Get advice
However if you have not been able to complete the works before your meeting with the Council, I would strongly advise that you get some legal advice about the best way to approach the meeting.
We have an ‘HMO Hotline’ where landlords can book a telephone advice call with a solicitor (usually David Smith) at Anthony Gold solicitors, who understands this work. This will help you prepare for your meeting and the solicitor will also give guidance on what you should (and should not) say at that meeting in order to get the best outcome for you.
You can find out more about this service here.
Note by the way that if you ignore the Council, and do not get the work done, the Council will eventually take action which would result (if you were convicted) in a criminal record. They will not ‘go away’.
A conviction would be very serious for you, particularly if you have HMO properties, as you would be unable to get a license in your own name and would need to employ a manager.
The Gas Safe Company
Obviously, you have been seriously let down by this company as they have put you at risk of prosecution. Once they realise the situation they should put their best efforts forward to deal with this promptly – and hopefully, should waive all or part of their fees.
If they continue to be unsatisfactory, you always have the option of reporting them to the Gas Safe Register who regulates and licenses gas engineers. They will not be happy about one of their members putting a customer at risk of prosecution and this could put their license at risk.
I think there is a bit more to be said here, starting with the fact that the biggest danger of a HHSRS assessment visit is that the EHO never restricts themselves to what has been complained about and is under a statutory duty to check for all 29 hazards, about 20 of which will never appear unless you live next door to a nuclear power station and have lead piping.
Second PACE is a very heavy handed approach and indeed the Council’s whole approach is heavy handed, so is there more to this story than published here? Showing the apology from the Gas contractor and also confirmation of a work order to another one surely should be enough to satisfy the EHO.
Finally the tenants hadn’t raised any comments on anything the EHO commented on other than the initial boiler control. One therefore assumes this is a London Borough sounds like their typical heavy handed approach.
I’m curious if you know what legislation the local authority claim to be able to interview under caution please?
The PACE guidance specifically says it’s only for “police officers” in “police stations”. Despite looking, I’ve never been able to find any legislation giving the local authority such a power. I don’t deny their right to bring a prosecution, it’s the power to hold an interview under caution I can’t find anywhere.
Who checks their tape recorders? Where are recordings stored? Who has access? What’s their training … and so on.
If an interview for an alleged criminal offence was not conducted according to the PACE rules then a good defence lawyer would apply for any interview material to be struck out. The association of Tenancy Relations Officers who deal with illegal eviction and harassment offences use duplicate tape recordings for interviews often using facilities of housing benefit or Trading Standards departments who will usually undertake most criminal prosecutions
The Association of Tenancy Relations Officers provides training for members and there are also other providers who do similar courses
Interesting thank you. However, it still doesn’t address the point of where the power is. Under public law such a power by some legislation would surely be needed?
Agreed with the Industry Observer that more could be said. Basically as an advice, if you’re called into PACE, I’d advise landlords to turn up with a solicitor as whatever you say will be recorded and anything said may be used as evidence. If private ones are out of budget, speak to your local CABureau.
The heavy-handedness can be because the tenants include small children or elderly? I don’t think it’s particularly a London thing.
From the date of notice, no s.21 can be served for 6 months. Many tenants actually know about this so landlords must carry out repairs and maintain property promptly (Section 11 of Landlord & Tenant Act 1985).
Looking on the bright side, it’s not a demolition or clearance order!
Notice means formal enforcement or Relevant Notice being served does it not?
Has that been issued yet?
And who is to say the landlord’s response within 14 days was not adequate? OK it went pear shaped after that though.
I would say it is at least arguable a s21 could be issued
It looks from the information provided as if no notice had been served at the time the question was asked.
So the landlord would be able to serve a s21 notice if they wished. This notice would only be invalidated if the Council subsequently served an improvement notice (or one of the other two notices set out in the statute).
However, in my view, no notice is going to be served unless the landlord refuses or unreasonably delays in doing the work.
My reading of the question is that the landlord is willing and able to do the work. The only reason it has not been done so far is that (a) their contractor let them down and did not do it, unbeknown to them and (b) this was the first notification they had of the other issues.
In the question, they were just seeking advice regarding the interview with the Council.
I agree with others however that it is always good to get legal advice and ideally be represented at the meeting.
PACE code C is duty, not a power and section 67(9) of the Act specifically states that
“Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of a code”
Section 67(9) of what Act please?
Police and Criminal Evidence Act 1984
http://www.legislation.gov.uk/ukpga/1984/60/section/67
Thank you. That’s really useful.