Levels of fine to be set
The guidance document issued by MHCLG provides the following considerations when determining the level of a civil penalty;
Severity of the offence
The more serious the offence, the higher the penalty should be. In order to measure the severity of the offence the following criteria will be used;
Level one - Major impact
Serious and substantial risk to the health and safety of the occupiers and/or community as a result of the offence, with potentially life threatening results or loss of major limbs. Housing defects posing such a risk maybe associated with electrical hazards, carbon monoxide exposure, fire safety risk, explosions, structural collapse and falling elements or significant collision and entrapment issues. They may be associated with hazards assessed under the HHSRS, conditions of an HMO licence or be a failure to comply with the HMO Management Regulations. These examples do not represent an exhaustive list.
For each Level 1 issue considered a score of 5 will be added.
Level two - Serious Impact
Serious risk to the health and safety of the occupiers and/or immediate neighbours, potentially leading to serious injury or disease requiring prolonged treatment and/or hospital admission. Housing defects posing such a risk maybe associated with collision and entrapment issues, falls, asbestos, biocides or lead exposure, excessively cold or hot conditions, radiation or hot surfaces. They may be associated with hazards assessed under the HHSRS, conditions of an HMO licence or be a failure to comply with the HMO Management Regulations. These examples do not represent an exhaustive list.
For each Level 2 issue considered a score of 3 will be added.
Level three - Minor impact
Risk of injury or disease to the occupiers potentially resulting in treatment at the doctors. Housing defects posing such a risk maybe associated with damp and mould issues, overcrowding, hygiene or food safety issues. They may be associated with hazards assessed under the HHSRS, conditions of an HMO licence or be a failure to comply with the HMO Management Regulations. These examples do not represent an exhaustive list.
For each Level 3 issue considered a score of 1 will be added.
A one-off premium of 10 points will be added where any hazard or issue would affect more than 1 household i.e. whole building issues or common parts issues in HMO's. This is to ensure that the scope of the hazard or issue is considered in addition to its ability to harm
Culpability and track record of the offender
A higher penalty will be appropriate where the offender has a history of failing to comply with their obligations and/or their actions were deliberate and/or they knew, or ought to have known, that they were in breach of their legal responsibilities. Landlords are running a business and should be expected to be aware of their legal obligations.
In order to measure the culpability of the perpetrator the following criteria will be used;
- Deliberate - An intentional breach by a landlord or property agent or flagrant disregard for the law for example by failing to comply with a notice or regulations. For Deliberate acts a score of 20 will be added
- Reckless - An actual foresight of, or wilful blindness to the risk of offending but decides to take the risk nevertheless for example failing to comply with a strict liability in the HMO regulations. For Reckless acts a score of 15 will be added
- Negligent - The failure of the landlord or property agent to take reasonable care to put in place and enforce proper systems for avoiding the offence, for example partial compliance with a schedule of work to an enforcement notice but failure to fully comply with all schedule items. For Negligent acts a score of 10 will be added
- Low or no culpability - The offence committed has some fault on the part of the landlord or property agent, but there are other circumstances. For example, obstruction by the tenant to allow a contractor access for repairs, or damage caused by tenant negligence. For Low culpability acts a score of 5 will be added.
A premium will be added where the requirement to licence a property under Parts 2 or 3 of the Housing Act 2004 has not been complied with.
Where a landlord or person managing fails to obtain a licence without direct contact by the Councils requiring them to do so a score of 5 will be added.
Where a landlord or person managing fails to obtain a licence despite direct contact by the Councils requiring them to do so a score of 15 will be added.