ARTICLE

Amongst the issues raised following the Grenfell tower block fire is whether council tenants can use the law to force their landlords to meet proper housing standards. The Housing Health and Safety Rating System (“HHSRS”) sets out such standards but it is councils who are tasked with enforcing the HHSRS. In two otherwise excellent articles, leading housing lawyers have repeated the orthodoxy that councils cannot enforce the HHSRS against themselves – see Aftereffects by Giles Peaker and Legal aid cuts have left residents no way to challenge sub-standard housing by Liz Davies. This is arguably not correct.

Housing Health and Safety Rating System

The HHSRS was brought in by the Housing Act 2004, replacing the previous system based on the test of fitness for human habitation contained in s.604 of the Housing Act 1985. It operates by identifying category 1 or 2 hazards as detailed in the Housing Health and Safety Rating System (England) Regulations 2005 SI 3208. A “hazard” means any risk of harm to the health or safety of an actual or potential occupier of a dwelling which arises from a deficiency within the dwelling, whether the deficiency arises as a result of the construction of any building or otherwise.

Council enforcement of the HHSRS has a number of stages:

• The Council must (i.e. they are under a duty to) keep the housing conditions in their area under review with a view to identifying any action that may need to be taken by them. For example, councils across the country are now looking to find tower blocks, whether council-owned or not, which might have external cladding which is a fire risk.
• If a Council consider, for any reason, that it would be appropriate for any residential premises in their district to be inspected with a view to determining whether any category 1 or 2 hazard exists on those premises, they must arrange for such an inspection to be carried out. For example, if there is any serious doubt about the fire risk posed by cladding, the Council must inspect it to see if there is a fire risk.
• Where an inspection has been carried out and the proper officer of the Council is of the opinion that a category 1 or 2 hazard exists on any residential premises in their district, the officer must make a written report to the Council without delay. For example, if the inspection identifies a fire risk, the officer must put this in a written report to be presented to the relevant Council committee or officers.
• If a Council consider that a category 1 hazard exists on any residential premises, they must take the appropriate enforcement action, i.e. whichever of a number of courses is available or the most appropriate, such as serving an improvement notice requiring the cladding to be changed or making a prohibition order prohibiting flats in the building being let out.
• If a Council considers that a category 2 hazard exists on residential premises, they have a power, not a duty, to take enforcement action, i.e. they can take action but, assuming their reasons are adequate, they don’t have to.

Enforcing against themselves

It was decided in R v Cardiff CC ex p Cross (1981-82) 1 HLR 54 that Councils could not enforce the old fitness for human habitation provisions against themselves because they could not serve notices on themselves. It has been assumed that this remains good law. However, there are strong arguments that it does not:

1. There is nothing in the Housing Act 2004 to suggest that council housing is excluded. Before bringing in the HHSRS, the Government consulted on it and did raise the issue of enforcement against council property but they never reached a conclusion one way or the other.
2. The Housing Act 2004 is not a consolidation or development of existing law but an entirely new system. Therefore, ex p Cross is not binding authority.
3. The reasoning in ex p Cross actually supports the argument that council housing is included in circumstances where the Council has handed over management of its stock to a separate organisation, such as an ALMO.
4. In any event, ex p Cross has no application to a Council's duties or powers under the Housing Act 2004 to keep housing conditions in their area under review, to arrange for inspections of properties and to report on those inspections.
5. Further, the duty in relation to category 1 hazards is to take such enforcement action as is “available” to the Council. At most, the reasoning in ex p Cross only applies to some of the enforcement action provided for under the Act, leaving “available” the other forms of enforcement action.
6. In any event, the law has moved on since the decision in ex p Cross and now envisages that a Council may be obliged to comply with a duty owed to itself. For example, in R (G) v Barnet LBC [2004] 2 AC 208 it was held in the context of the duty to comply with a request for assistance under s.27 of the Children Act 1989 that a Council may be obliged to comply with a duty owed to itself.
7. The Human Rights Act 1998 and, in particular, Article 8 of the ECHR arguably compel the interpretation of the Housing Act 2004 now suggested in order to ensure the tenant’s right to respect for their home and private life.
8. Further, the provisions of the Housing Act 2004 were brought into force, in part, to ensure compliance with the UK's obligations under Art.11(1) of the International Covenant on Economic, Social and Cultural Rights. Again, in the absence of any alternative enforceable right, interpreting the Housing Act 2004 so as to exclude council housing would be inconsistent with Art.11(1).

In my opinion, Councils can enforce the HHSRS against themselves. Some years ago, I took two judicial review cases against one Council on this issue but, in both cases, the Council carried out works to minimise the hazard (condensation damp) so there was no longer a sufficiently strong case to continue with. I hope that this point can be taken up again in the near future.