Communities and Local Government CommitteeWritten evidence submitted by Gerald Kennedy

Further to the above, these are my own personal views and do not represent those of the RICS of which I am a member.

Quality of Private Rented Sector Housing:

Based upon my own substantial contract and accreditation experience, the properties which fail to comply do so primarily because of local authority non-enforcement of the legislation. The main issue for the Committee is therefore: law and order.

(a)The Committee should be aware of the two main housing standards:

The 2004 Housing Act for serious Category 1 and 2 hazards (mandatory enforcement), eg cold, falling object hazards, falling from heights AND

The Environmental Protection Act 1990 where there is a “statutory nuisance” (ie damp, mould, sewage, defective drainage, rodent and cockroach infestation). Councils are required to act under the EPA and failure to comply with the notice constitutes a criminal offence.

Examples of non-compliance were:

Wychavon D C (Worcestershire) which had removed the EPA notice template from the Private Housing Sector system therefore preventing notice service.

Cherwell DC which maintained a “damp and mould” data base, gave telephone “advice” and refused to inspect. The Department “did not use” the EPA.

East Lindsay DC: refused to inspect premises upon my own complaint during accreditation visits.

Such policies effectively de-criminalize serious hazards, offer immunity from prosecution to individual landlords and result in collusion.

The other most common feature I noted in many local authorities, was the “repeat referral” where previous complaints for the same address had not resulted in any statutory action. Wychavon had a system whereby a case was logged and then immediately closed, with no enforcement action.

(b)EHO’s and Private Sector Housing Officers often have no specific diagnostic building surveying skills (which fact has been recognized by the CIEH) and therefore cannot both identify the defects and specify the necessary works. The situation with Lettings Agencies is potentially serious, because their staff have no remit to inspect for what may be fatal hazards: as the law stands, it is possible for properties to be let in any condition. This problem requires urgent action: no property should be let with Category 1 or 2 hazards.

Levels of Rent

These should be pegged back to Housing Association levels and capped; moreover no private landlord should receive full rent when there are Category 1 and 2 hazards. 50% should be held back as an incentive for them to co-operate, which is the view of many senior Council officers.

Regulation of Landlords and Rogue Landlords

All Private Sector landlords should be prescribed as above but the term “Rogue landlord” should be discontinued. Councils cannot enforce legislation on the basis that landlords either are or are not a “rogue”; the hazard occurs at the property, not in relation to the landlord. The Committee should also make reference to the “Concordat” published by the Cabinet Office in 1998, which many officers cite as being a justification for non-enforcement because it encouraged Councils to adopt a noon-enforcement approach.

The average landlord wants specialist technical advice because they have been misled by Council officers (see above) lacking specialist knowledge and also by jobbing builders who persuade them to carry out unnecessary works at great cost. Most of them are not ARLA members.

Letting Agents can only be regulated if changes are made to security of tenure, since it is the A.S.T. which is effectively fuelling the present chaos. If the A.S.T. was abolished, this would reduce the number of transactions and the ability of agents to constantly relet non-compliant properties.

Regulation of HIMOs: is a significant problem. HIMOs may be subject to a licensing scheme but being older properties, always have significant Category 1 and 2 HHSRS hazards including Excess Cold, poor heating, falling object hazards. Councils have a blind spot in this respect: because they concentrate upon fire detection (a potential but not current hazard) they overlook current hazards as above and therefore perpetuate low standards. Student HIMOs are also a significant blind spot—and are often not inspected.

This is bizarre in that the occupants, by definition, are vulnerable young people.

Tenancy Agreements/Security of tenure: the agreement should contain a summary of HHSRS hazards and the contact details/address of the Private Sector team.

The A.S.T. should be abolished as it acts as disincentive for tenants to complain (which it is supposed to do) often for serious hazards such as lack of a GasSafe certificate or rodent incursion. It also significantly inhibits Councils from enforcing the law, because they are frightened that complainants will be evicted. A.S.T.s also cause Councils significant extra work because they produce homelessness which has to be investigated, and also the additional expense of providing tenants with deposit/bond money for another private tenancy.

The A.S.T. should be replaced by a five-year term (Shelter’s suggestion) and this idea is also supported by most reasonable landlords and better agents, because it ensures continuous rental income.

Compliance with homelessness duties varies but is better where some Councils pre-inspect to ensure that properties are Category 1 and 2 hazard-free. Since most applicants want a secure tenancy, a private tenancy will never be the preferred option. The A.S.T. does not in my view discharge the duty because of lack of security. The Committee should also examine HHSRS standards in temporary accommodation including that owned by RSLs.

Gerald Kennedy, M.R.I.C.S.
Consultant Chartered Surveyor, Birmingham
(in a personal capacity)

January 2013


1. On standards, most councils operate via a complaint from the tenant; this should be changed to a proactive system of Officer Initiative, so that the onus is removed from the tenant and serious hazards can be visually identified and acted upon.

2. All Councils should be required use a national inspection pro-forma (like an M.O.T.) and should be told to use the EPA first, since it is quicker and more effective. The action should be time-limited to prevent informal notices being served by Councils who wish to delay matters.

3. The suggestion from GOEM (in 2009) that squads of independent EHOs and Surveyors, be sent into sub standard Councils, should be set out nationally, with the provision that notices and summonses should be checked off on a computer alert system administered centrally

January 2013

Prepared 16th July 2013