Selective Licensing

The Basis for a Collaborative Approach to Addressing Health Inequalities

Paul Oatt

• Editorial: Routledge
• Año: 2019
• ISBN:
  9781000027129
• Edición: 1
• Categoría: Tecnología e ingeniería
• Categoría: Gestión medioambiental

In recent years, the private rented sector has overtaken social housing to become the main housing provider with some of the worse housing conditions that are linked to preventable health inequalities. This book seeks to expand upon previous research in the area with a focus on selective licensing and enforcement, using a case study to illustrate changes in working practices that have been bought about through new powers being made available to local authorities to issue civil financial penalties upon criminal landlords.

The book examines the impact of this legislation on regulatory enforcement in the London Borough of Newham's property licensing scheme, delivered in a multi-agency partnership across its private rented sector, and the outcomes of combining the use of licensing and traditional housing inspections with use of civil penalties in alternative to prosecution to address some of the worse effects of poor housing.

The study also considers the limitations of employing informal actions to address such issues as well as identifying both the barriers to collaboration and the most effective strategies for service delivery where agencies – such as the police, border agency, council tax and local planning, irrespective of inter-agency competition – work together to achieve individual and shared objectives in evolving partnerships. The findings here will be of keen interest to environmental health professionals, academics, and indeed those operating in local authorities themselves.

1 Introduction

Like many environmental health practitioners (EHPs), I studied environmental health across the five disciplines of health and safety, food, pollution, contaminated land and housing choosing to specialise in a housing career because I feel passionately that to get strong working housing enforcement policies right would allow us to really turn the corner on public health. It is surprising to think that we can go out and eat and be confident that a food business with a high star rating is not going to poison us and that we can go to work and be reasonably confident that if we follow health and safety procedures we are not going to get injured. But coming home afterwards to a rented property in large parts of our country could mean a higher exposure to hazards in the very place where we are meant to feel most comfortable and secure.

Since the enablement of the enforcement powers under the Housing Act 2004, there are still many local authorities seeking to address category 1 hazards through informal action. EHPs have status and autonomy to ‘problem solve’ their cases, yet prevalence of informal action is inconsistent with the law and undermining to those officers who seek to enforce under a consistent legally based approach. The first section of this book examines reasons why informal action is prevalent, suggesting it is rooted in poor management and poor understanding of the development and training needs of officers as well as a lack of understanding or regard to the aims and objectives of housing enforcement. Ultimately it fails to change criminal landlord behaviour.

The enforcement under part 1 is usually carried out reactively by way of response to occupier’s complaints, whilst licensing under parts 2 and 3 provides a platform for local authorities to use licensing conditions to improve landlord’s own management practices towards their own properties and improve standards through coordinated multi-agency enforcement. But this must all be underpinned by strong management of enforcement staff.

The case study illustrates a combined approach to using the act appropriately to address licensing and regulation breaches as well as category 1 hazards. The third section examines these different aspects in further detail using the legal analysis made in the recent Brown v. Hyndburn case where an appeal was made by a landlord who argued the council were using licensing conditions to require improvements, which is a function of part 1 of the act. Use of part 1 powers alone as a reactive enforcement model is ineffective and resource-intensive, whereas a combined approach with licensing conditions allows for a more effective model of enforcement. But in order to devise a robust enforcement policy underpinned by licensing, it is crucial to understand the aims of the different parts of the act, why they are separated into parts 1, 2 and 3, and how to make effective use of them.

The fourth section details a policy analysis of Newham’s first five-year borough-wide licensing scheme which was undertaken at the midpoint of the project using Morestin’s ‘Framework for Analyzing Public Policies’, taking account of policy context, justifications and supporting data, using a structured analysis approach developed from a public health perspective.

Finally, a literature review was carried out, and the findings showed that there is not a large amount of literature on licensing and housing enforcement interventions, illustrating the need for more literature on the subject, and this book I hope is a step forward in that direction. The review examines partnership and multi-agency working for which it was necessary to look at other types of public health and housing interventions involving partnerships with other agencies. The lack of available published material from local authorities is largely because enforcement functions have always been seen as a statutory duty, and it is only in recent years where local authorities are forced to make tough decisions over services that the need for evidence-based justifications has come to the fore.

Selective licensing is a tool that can be used as part of a wider evidence-based public health and housing policy. The evidence gathered in joint strategic needs assessments, housing stock condition surveys and other types of evidential analysis has wider uses, and a sharing of resources across services to develop a combined approach to tackling homelessness, antisocial behaviour, poor housing management, poor housing conditions, overcrowding, deprivation and crime starts with the development of shared goals across services underpinned by strong partnerships and support of good staff willing and able to tackle these issues head on.

2 Don’t cross that line!

Any discussion about housing enforcement inevitably centres upon the application of enforcement legislation under the Housing Act 2004 (hereinafter referred to as ‘the act’). This statutory instrument had enabled environmental health practitioners (EHPs) to address poor housing conditions ‘Arising from a deficiency in the dwelling…as a result of the construction… [or] absence of maintenance and repair,’ where exposure to such deficiencies presents ‘a risk of harm to the health and safety of … occupiers’ (p. 3).¹ The most serious classification of this hazard type is a category 1 hazard.

The act states that a local authority ‘must’ take ‘appropriate enforcement action’(p. 5),¹ where a category 1 hazard exists, to serve statutory notices in order to eradicate hazards to health. In 2016, Environmental Health News² reported that local councils rarely use housing powers and are more likely to ‘take informal action’ such as the ‘sending of a warning letter,’ in place of exercising their ‘statutory duty.’

Around the same time, Campbell Robb,³ then Chief Executive of housing and homelessness charity, Shelter, stated in an interview with the Guardian that ‘conditions in many rented homes are as bad as we’ve seen in decades.’ The most common types of hazards in homes according to Shelter⁴ are damp and mould, pests or cold-related issues arising from ineffective heating or poor insulation, along with safety hazards arising from electrical faults, inadequate fire safety or lack of carbon monoxide detection.

The basis of the Environmental Health News article originated from the findings of Dr Stephen Battersby’s survey of local housing authorities.⁵ The purpose of the survey was ‘to assess the extent of any change in activity … particularly as the private rented sector has grown at a time when financial cuts are affecting local authorities.’ The survey showed that between 2012 and 2014 private rented sector inspection rates decreased amidst an increasing prevalence of the category 1 hazards of damp and mould, crowding and space, falling hazards and fire safety, thus bearing out Shelters’ claims. According to the survey findings, informal action rates increased from 13,754 in 2011 to 15,964 in 2015 (pp. 3–6).⁵

This begs the question, why are EHPs not using the tools available to them, to their full capacity? EHPs have professional status and recognised skills. The pathway to becoming an EHP involves studying the subject of environmental health at degree level, and once you graduate you must still pass further exams under the Chartered Institute of Environmental Health (CIEH) to earn the protected title of EHP and thus demonstrate competency in the application of your acquired skills for the protection of public health in whichever of the five environmental disciplines you work in – food, health and safety, pollution, contaminated land or housing.

At the university, I learned the necessary skills needed to analyse and investigate environmental hazards across the five disciplines, the tools of the EHP’s trade. As an EHP one is expected to carry out an annual quota of continued professional development, encouraging a culture of lifelong learning and application of skills based on current knowledge.

Iles argues that society ‘expects professionals to use their status…in the service of society.’⁶ But society having conferred status has difficulty challenging professionals ‘…when they are not using their status in the interests of society.’⁶ This is partly because the knowledge can seem esoteric to the layperson, and it is hard for society to know whether or not the decisions made by professionals are correct, in much the same way that when most of us take our car for a service we are reliant on the mechanic to explain what work needs to be carried out, or when a doctor gives a diagnosis and a prescribes a form of treatment. I am sure that most of the time the information is correct to the best of current available knowledge, but we as laypersons place reliance on the expert to use their esoteric knowledge to act in our best interests.

Informal action is not prescribed as appropriate enforcement under the act (p. 5).¹ The act’s intention is to address category 1 hazards via enforcement. There is a right of appeal via the First Tier Tribunal Residential Property Chamber (FTT), and prosecutions are heard at the magistrates court. One disadvantage during appeals is that the notice becomes suspended pending the outcome, so occupiers continue to be exposed to hazardous conditions until the appeal is heard. The prospect of representing the local authority in these matters is daunting and incentivises preference for informal action rather than entering into litigation with landlords. Conversely, issuing informal demands for works carries no right of appeal, and has no basis in legality.

In 2018, the Guardian reported on the findings of a freedom- of-information request to survey all 349 local authorities in England and Wales about their housing prosecutions, only to find that 53 councils had not prosecuted a single landlord in three years.⁷

I was taught how to survey a property and risk assess, using the Health and Housing Safety Rating System (HHSRS) – a risk-based evaluation tool used to determine the category of hazard that occupiers were exposed to through housing defects. In making these decisions, government guidance states that local authorities should give clear advice to a landlord on what is required of them, providing an opportunity to discuss the circumstances of a case before formal action is taken.⁸

This is consistent with government’s guidance on the principles of good enforcement and policy procedures, to ensure that they were advised in writing in an easy-to-understand manner explaining the need for work to be carried out and over what time scale, with an opportunity to discuss the case, narrow down the issues and clarify them before taking formal action.⁹

Battersby’s survey found that local authorities are breaching their statutory duty through the use of informal means, such as writing a letter to a landlord instead of serving a notice, rather than using it as a prerequisite to taking formal action (p. 11).⁵

This always puts me in mind of the old Warner Brothers cartoons with the ‘don’t cross this line’ routine, which goes something like this – two cartoon characters face off against each other. One draws a line in the sand between them and says, ‘don’t you dare cross it or you’ll be sorry!’ This is like the council informally telling a landlord to carry out works to repair their property, because if they don’t then the council will give ‘consideration to carrying out enforcement action.’ In the cartoon, the character who has been challenged inevitably crosses the line, and immediately another one is drawn, ‘right I’m warning you, don’t cross this line or else.’

To me this is akin to the situation whereupon the landlord has ignored the letter and absent response, the council re-inspects the property and finds it to be still in the same sorry state –full of damp and mould, inadequate heating, lack of fire safety and so on. But instead of serving a notice, the officer opts to write another warning letter, strongly advising the landlord that the works must be carried out over a specified time period or else the council will give ‘serious consideration to carrying out enforcement action,’ and this dance can go on and on exactly like it does in the cartoons, drawing line afte...