Enforcement options

Enforcement action taken will reflect the severity of the offence or nature of the breach, the perceived harm whether actual or potential, the responsible person’s culpability and their compliance history.

We will take all necessary action to adequately protect the occupants’ interest and provide an appropriate deterrent to offenders.

The Council follows the principles set out in the Macrory Review, which sets out that sanctions should:

• aim to change the behaviour of the offender;
• aim to eliminate any financial gain or benefit from non-compliance;
• be responsive and consider what is appropriate for the particular offender and regulatory issue, which can include punishment and the public stigma that should be associated with a criminal conviction;
• be proportionate to the nature of the offence and the harm caused;
• aim to restore the harm caused by regulatory non-compliance, where appropriate; and,
• aim to deter future non-compliance.

There are several types of action that can be taken in relation to any given case, and different action may be necessary as a case progresses. Each case will be considered on its own merits.

When deciding whether to take enforcement action we will;

• comply with relevant legislation,
• be transparent, consistent and accountable
• have regard to the Regulators’ Codewhere applicable
• consider the views of occupiers, owners and other agencies such as the Fire Authority, the Police and other council services,
• adopt a positive and proactive approach to support and protect tenants,
• take a co-ordinated approach where there are shared or complementary enforcement actions,
• consider the severity of the offence or nature of the breach,
• consider the perceived harm to health, safety, community confidence, finances, deprivation, or the environment whether actual or potential,
• consider the responsible person’s culpability in relation to the offence and their compliance history regarding similar offences irrespective of where such contraventions have occurred.
• as far as the law allows, we will take account of the circumstances of the case and the conduct of the owner or agent when determining action,
• have regard to various courses of remedial action and consider what is ‘reasonably practicable’

Outlined below are the main enforcement options available to officers. We take the approach that offenders should pay the cost of enforcement work, and that they should not profit from poor or criminal behaviour.

The Renters Rights Act 2025 sets out a range of new powers in addition to those set out below. These new provisions are set out in Appendix 3 and will be utilised in accordance with the relevant Statutory Guidance and secondary legislation.

Interventions

No Action - Where we are unable to identify any actionable problem we will take no action.

Informal Action – will be considered where:

• Torbay Council’s history of dealing with the specific issue demonstrates informal action will
  achieve compliance in a timely and persistent fashion.

or

• there is demonstrable confidence in the management by the individual (issue is out of character
  and unlikely to be repeated).

and

• the consequences of non-compliance will not pose a risk to health, safety, community confidence,
  finances, deprivation, the environment and or regulation.

and

• there is no legislative requirement to serve formal notice or order.
  With specific regard to the HHSRS and Part 1 of The HA2004; Torbay Council may offer an interim
  opportunity for a Landlord to complete works informally before a notice is considered.

Statutory Notices (including Orders) - Statutory notices will be issued under any of the following circumstances:

• Where the council has a duty to serve notice.
• Where statutory requirements have been breached.
• Where there is a serious risk to residents or the public.
• Where immediate remedial action needs to be taken.
• Where there is a history of non-compliance
• Where there is a lack of confidence in the effectiveness of an informal approach.

Owners or agents may be contacted and given an opportunity to remedy any problems before a statutory notice is served. However in some circumstances the council has a legal duty to serve a Notice, for example where a statutory nuisance or a High hazard under the HHSRS exists.

Realistic time limits will be attached to notices and wherever possible these will be agreed in advance with the person or business on which they are served.

In cases where there is an imminent risk to public health, notices may require immediate compliance.

An extension of time limits will only be granted where there are legitimate reasons for doing so. For example, prolonged bad weather delaying external works. Requests for extensions should be made in  writing to the officer issuing the notice, prior to the expiry date, explaining the reason for the request.

The time limits given on statutory notices not requiring works such as notices requiring information will generally be no more than the minimum statutory period allowed.

Having regard to the relevant statutory power, and where the law allows, a charge may apply when we issue a statutory notice. Further details are set out in ‘Charges, fees and cost recovery’ below.

Where a Notice is served, information relating to the appeals process will accompany the notice.

If the notice served is an improvement notice under Part 1 of the HA2004, then works can be completed 'by agreement’ as described by Part 1 of Schedule 3 of the HA2004. A decision as to whether to undertake works in agreement will be made on a case by case basis taking into account the financial implications to the Council.

Where the requirements of a notice are not complied with, further action will considered, including works in default, the imposition of a civil penalty (where available) or the instigation of prosecution proceedings.

The following options are available under the Housing Act 2004;

• Serve a Hazard Awareness Notice (HAN) under section 28 or 29.
  This type of notice may be used for minor low scoring hazards or as an interim option where we have no reason to believe a resolution won't be achieved in a timely manner. It may also be used to notify owners about more serious hazards.

 

• Serve an Improvement Notice under section 11 or 12
  This action will be the normal action taken in most cases where repair or improvement is the most appropriate course of action and there are High or Mid/Low hazards and a HAN is not considered appropriate. Situations where there are significant Mid/Low hazards are described in Section 4 above - ‘Assessing Conditions’. Where action in relation to the fire hazard involves an HMO or the common parts of flats the council will consult with the Fire Authority.

 

• Serve a Suspended Improvement Notice under section 14
  We may decide to suspend an improvement notice where it is appropriate to do so. We will consider the HHSRS Enforcement Guidance in order to reach this determination.

 

• Make a Prohibition Order under sections 20 and 21.
  This action will be taken to prohibit the occupation of all or part of a building for a specified use by a particular number or description of persons (such as a certain age group) or by a defined number of households. This action will be taken when the cost of remedying the defect is excessive or it is not reasonably practicable to carry out works due to a landlords circumstances or the nature of the works required.

 

• Make a Suspended Prohibition Order under section 23
  We may decide to suspend a prohibition order where it is appropriate to do so. We will consider the HHSRS Enforcement Guidance in order to reach this determination.

 

• Take Emergency Remedial Action under section 40
  This action will only be taken where there is an imminent risk of serious harm. The Council will arrange for the hazard to be mitigated at the earliest opportunity. The officer will attempt to contact the owner first before taking such action but if they are unable to act immediately or cannot be contacted, action will be taken at the owners cost. A decision as to whether to undertake emergency action will be made on a case by case basis taking into account the financial implications to the Council.

 

• Make an Emergency Prohibition Order (EPO) under section 43
  This action will be taken where there is an imminent risk of serious harm and it is not practicable or too costly to carry out works. This action will have the effect of preventing the use of part or all of the premises and would require immediate vacation of the property by the occupiers. A decision as to whether to make an EPO will be made on a case by case basis.taking into account the general availability of suitable alternative accommodation and the financial implications to the Council.

 

• Make Management Orders under multiple sections
  Interim Management Orders (IMOs) can be made where there is no realistic prospect of a property licence being granted. By making an IMO the management and rental income from a property is taken away from the current landlord for up to a year. The money is used to carry out necessary works to reduce any significant hazards in the property, to maintain the property and to pay any relevant management expenses. Following an IMO the Council can apply for a Final Management Order (FMO) to be approved that can last for up to five years. The Council may allocate a private company to manage the property. Where the health, safety and welfare of occupants need to be protected (as described by section 104), the council may apply to the First-tier Tribunal for authority to make an IMO for privately rented accommodation that is not covered by a current licensing scheme. The Council may also make an IMO for properties where a banning order has been made. A type of management order can also be made for empty dwellings (see Chapter 2 of HA2004 and ‘Empty homes’).

 

• Making a Demolition Order under section 265 (Housing Act 1985 as amended by section 46 Housing Act 2004)

This action will be taken when it is considered to be the most appropriate course of action, usually when there are one or more serious category 1 hazards, the property is usually detached or there is a building line separating it from other properties, the adjacent properties will be stable and weatherproof or can readily be made so, it is in a potentially unsustainable area or it is causing severe problems to the amenity of the neighbourhood and repair would be very costly, it is not listed or of other historical interest.

 

• Declaring a Clearance Area under section 289 (Housing Act 1985 as amended by section 47 Housing Act 2004)

This action will be considered where similar circumstances to those for determining if a demolition order exist but where it is necessary for the Council to acquire the land either for its own purposes or to sell on for either new build or other purposes.

The following options are available under various other pieces of legislation;

• Ensuring that a dwelling is connected to services by utilising Section 33 of Local Government Miscellaneous Provisions Act 1976

The Council has the power to ensure the re-connection (or to prevent the disconnection) of the gas, electricity or water supply, to lettings within a tenanted property. These powers will only be used where the tenants are not responsible for payment of the bill. In properties occupied by a single tenant it is expected that he/she will arrange for a supply in their own name and reconnection by the Council will not normally be considered appropriate. The owner of the property will be charged the cost of re-connection and/or payment of the bill plus interest. This debt will be recovered either by way of rent from tenants or in the civil court. A decision as to whether to undertake reconnection works will be made on a case by case basis taking into account the financial implications to the Council.

• Ensuring that a dwelling has adequate provision for drainage by utilising section 45 Public Health Act 1936 or section 59 Building Act 1984

Public Health Act 1936 - This allows the LA to take action in respect of defective WCs capable of repair. There is a power of entry in relation to these activities. Enforcement is by way of formal notice. Failing to comply with a notice can lead to work in default and prosecution with ongoing fine.

Building Act 1984 - This allows the Local Authority to take action in relation to certain drainage defects. Enforcement is by way of formal notice. Failing to comply with a notice can lead to work in default, cost recovery and prosecution with ongoing fine.

• Serve an abatement notice under section 80 of Environmental Protection Act 1990

A notice will be served where conditions are determined to be prejudicial to health or causing a nuisance.

With regard to ‘causing a nuisance’ this might be where defects or conditions in one property affect another property or the general public.

Where conditions are ‘prejudicial to health’ of either the occupiers or others affected by the conditions of a residential premises, we may use this power in preference to the Housing Act 2004. Typical situations where this legislation is likely to be used are where there is not an imminent risk of serious harm but where a 28 day delay is considered too long (such as boiler breakdowns or nuisance to neighbouring properties).

Enforcement for failing to comply with a notice may include the Council undertaking works and recovering the costs incurred and/or bringing a prosecution.

• Ensuring the provision of appropriate alarms utilising the Smoke and Carbon Monoxide Alarms (England) regulations

Private sector landlords are required to ensure that smoke alarms and carbon monoxide alarms (if required) are installed and then checked at the start of any new tenancy. Where the council has reasonable grounds to believe a landlord is breach of these requirements there is a duty to serve a remedial notice.

Failure to comply with a remedial notice will lead to the issuing of a Civil Penalty. In order to determine the amount of the penalty the LA must have a Statement of Principles in place. This statement is presented as Appendix 2.

Licensable HMOs are subject to separate, and more stringent, regulations under the Housing Act 2004.

The interventions described above are those most readily used however Torbay Council will consider the use of any appropriate legislation which it is authorised to use.

Section 6A Housing Act 2004 civil financial penalties

Where the Council is required to take appropriate enforcement action under Section 5 Housing Act 2004 in relation to a Category 1 hazard, or a failure to meet a Type 1 requirement, on qualifying residential premises, it may also impose a Civil Financial Penalty under Section 6A Housing Act 2004 when first taking that action. The Council will impose a penalty where it is satisfied, on the balance of probabilities, that the statutory conditions are met and that it would have been reasonably practicable for the responsible person to secure the removal of the hazard or the meeting of the requirement. When considering whether removal of the hazard would have been reasonably practicable the Council may consider:

• How long the responsible person has known about the existence of the hazard;
• Whether practical steps could have been taken to remedy the hazard without disproportionate expense or disruption
• What steps the responsible person has taken to remove the hazard or reduce its impact, including any efforts made to secure the services of specialist tradespeople
• Whether permission from other parties is needed to remove the hazard and the steps the responsible person has taken to secure that permission
• Whether tenants have provided access to the property in order for remedial works to be carried out
• Whether any failure by tenants or occupiers to provide access was beyond the responsible person's control, or whether the responsible person could reasonably have taken further steps to secure access, such as: explaining in writing the existence and seriousness of the Category 1 hazard, the required remedial works, the need for access, the tenants' or occupiers' legal obligations, and the potential consequences of continued refusal; offering a reasonable range of dates and times for access; and serving appropriate formal notices where reasonable and lawful

Non-compliance

Energy Efficiency Enforcement Notices – The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 are designed to tackle the least energy-efficient properties in England and Wales – those rated F or G on their Energy Performance Certificate (EPC). The Regulations establish a minimum standard for both domestic and non-domestic privately rented property, effecting new tenancies from 1 April 2018 and all tenancies from April 2020.

The current domestic regulations are based on a principle that landlords are expected to meet the costs of improving energy efficiency, subject to a cap. This is an area of enforcement policy we will keep under review.

Where a valid exemption applies, landlords are required to register this on the national PRS Exemptions Register.

Where properties do not meet the minimum level of energy efficiency we may issue a compliance notice requesting information. Where we are satisfied that a property has been let in breach of the regulations we may impose financial penalties (See appendix 4)

Illegal eviction and harassment – The council has powers to investigate and prosecute offences of illegal eviction, harassment and offences committed by letting or management agents under the Protection from Eviction Act 1977.

An illegal eviction is where a landlord evicts a residential occupier without following the correct procedure.

Harassment is where a landlord tries to make a residential occupier decide to leave. This could be by an act or threat of violence, withdrawing services or mis-representing their rights.

The Renters Rights Act 2025 imposes a duty on the Council to enforce the Landlord Legislation. The Landlord Legislation is comprised of the following:

• Chapters 3 and 6 of Part 1 of the Renters' Rights Act 2025,
• Part 2 of the Renters' Rights Act 2025,
• Sections 1 and 1A of the Protection from Eviction Act 1977, and
• Chapter 1 of Part 1 of the Housing Act 1988.

This legislation covers a wide range of behaviours which are clearly summarised in the statutory guidance.

We will fulfil our duty by investigating complaints relating to this legislation and where contravention is established, we will commence proceedings relevant to the offence.

Redress Schemes for letting agency and property management work - The Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014 makes it a legal requirement for all lettings agents and property managers in England to belong to a Government-approved redress scheme.

Torbay Council may seek to establish whether letting agents and property managers belong to an appropriate scheme on a case by basis or by pro-actively reviewing multiple businesses.

When enforcing this legislation we will have regard to Annex C of the guidance document produced by Department for Communities and Local Government titled Improving the private rented sector and tackling bad practice included as Appendix 5.

Where we are satisfied, on the balance of probability that someone is engaged in letting or management work and is required to be a member of a redress scheme, but has not joined one, we will impose a fine. If there are no extenuating circumstances, the fine will normally be £5000. This fine may also be repeated if non-compliance continues.

Works in Default – The Council will consider carrying out works in default or remedial action in the following circumstances;

• Emergency Remedial action under the Housing Act 2004 (as described above);
• Where actions have been required by a Notice and have not been completed within the agreed timescale, or, reasonable progress has not been made towards their completion.

In these circumstances, the Council may organise and carry out the work itself or appoint an agent to complete the work on its behalf and recover the cost of works plus all additional costs including agency fees, administration fees and any interest accrued where payment has not been received promptly. These costs will be charged to the property owner but can also be placed as a land charge on the property for payment when the property is sold or if money is raised against it. As part of the debt recovery process we may seek to enforce the sale of a property depending upon the circumstances.

A decision as to whether to undertake works in default will be made on a case by case basis taking into account the financial implications to the Council.

The Council may also consider prosecution or a financial penalty in addition to carrying out works in default. Following the carrying out of works in default the Council may pursue enforced sale of a property where the legislation allows.

Simple Cautions - The use of Simple Cautions is advocated by the Home Office in situations where there is evidence of a criminal offence but the public interest does not require a prosecution. It may be used for cases involving first time, low-level offences. Decisions to issue Simple Cautions will be made in accordance with the Ministry of Justice – Simple Cautions for Adult Offenders and the Director of Public Prosecutions' Guidance on Charging.

Prosecution - Where a Civil Financial Penalty is an available alternative to prosecution, the Council will only consider using its power to prosecute under Part 1 Housing Act 2004 in more serious cases.

The decision to prosecute will be determined by the evidential strength of the Council's case and the relevant public interest factors set down by the Director of Public Prosecutions in the Code for Crown Prosecutors.

In many circumstances, where an offence is committed by a body corporate, legislation enables local authorities to pursue persons involved with the body corporate in addition to, or instead of, the body corporate. These include company officers and, where applicable, company members. The Council will determine, on a case-by-case basis, whether to take enforcement action against any person or persons that they consider fall within the scope of this category in addition to prosecuting the body corporate.

A successful prosecution will impact upon a person's Fit & Proper status in relation to holding a licence for a house in multiple occupation. This could potentially lead to a number of additional actions, which include but are not limited to:

• Revocation of HMO licence(s)
• An Interim or Final Management Order
• Addition to Rogue Landlord Database
• Outcome added to the PRS Database
• A Banning Order
• A Rent Repayment Order

Civil penalties - This section relates exclusively to Civil Financial Penalties issued by the Council for breaches of the below housing law.

The Council has the power to impose a Civil Financial Penalty for the following:

• Unlawful eviction and harassment of occupier as defined under the Protection from Eviction Act 1997
• Failure to comply with an Improvement Notice [s30 Housing Act 2004]
• Failure to address a Category 1 hazard or Type 1 requirement on qualifying residential premises [s6A Housing Act 2004]
• Offences in relation to licensing of Houses in Multiple Occupation (HMOs) [s72 Housing Act 2004]
• Offences in relation to the Selective Licensing of 'houses' [s95 Housing Act 2004]
• Failure to comply with an Overcrowding Notice [s139 Housing Act 2004]
• Failure to comply with a management regulation in respect of an HMO [s234 Housing Act 2004]
• Offences in relation to Regulation 3 of the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020
• Failure to comply with a banning order [s21 Housing and Planning Act 2016]
• Failure to give a written statement of terms under section 16D of the Housing Act 1988
• Failure to give an existing tenant information about changes made by the Renters' Rights Act under paragraph 7(2) of schedule 6 to the Renters' Rights Act 2025
• Attempting to let a property for a fixed term under section 16E of the Housing Act 1988
• Attempting to end a tenancy orally or by service of a notice to quit under section 16E of the Housing Act 1988
• Serving an eviction notice that attempts to end a tenancy outside the prescribed section 8 process under section 16E of the Housing Act 1988
• Relying on a ground where the person does not reasonably believe that the landlord is/will be able to obtain possession under section 16E of the Housing Act 1988
• Relying on a ground knowing the landlord would not be able to obtain possession or being reckless as to whether they would under section 16J of the Housing Act 1988
• Failing to provide a tenant with prior notice that a ground which requires it may be used under section 16E of the Housing Act 1988
• Reletting or remarketing a property before expiry of the 12 month no-let period after using the moving and selling grounds under sections 16E and 16J of the Housing Act 1988
• Discriminating against prospective tenants during the letting process on the grounds that those tenants are in receipt of benefits or have children under sections 33 and 34 of the Renters' Rights Act 2025
• Marketing a letting without stating the proposed rent under section 56 of the Renters' Rights Act 2025
• Inviting or encouraging any person to offer to pay an amount of rent under the proposed letting that exceeds the stated rent under section 56 of the Renters' Rights Act 2025
• Accepting an offer from any person to pay an amount of rent under the proposed letting that exceeds the stated rent under section 56 of the Renters' Rights Act 2025
• Offences in relation to the PRS database [Part 2, Chapter 3 Renters' Rights Act 2025]
• Offences in relation to the landlord ombudsman [Part 2, Chapter 2 Renters' Rights Act 2025]
• Breach of the decent homes standard [Part 3, Renters' Rights Act 2025]

Civil Financial Penalties in respect of these offences operate according to Torbay Council's Civil Penalty Policy.

Rent Repayment Orders (RRO) - Part 2 of the Housing and Planning Act 2016 permits the Council to seek a Rent Repayment Order at the First Tier Tribunal Property Chamber to require the landlord of the property where the offence(s) has been committed to refund rent to the tenants or the Council. S48 of the Housing and Planning Act 2016 places a duty on the Council to consider applying for Rent Repayment Orders.

Where a landlord has been convicted or received a Civil Financial Penalty in respect of the offence, the Tribunal must award the maximum applicable amount, except in exceptional circumstances.

This power will be considered in response to all qualifying offences and where there is sufficient evidence for a successful application to the First Tier Tribunal.

The qualifying offences are:

• Unlawful eviction and harassment of occupier as defined under the Protection from Eviction Act
  1997
• Failure to comply with an Improvement Notice [s30 Housing Act 2004]
• Offences in relation to unlicensed HMOs [s72(1) Housing Act 2004]
• Offences in relation to unlicensed houses [s95(1) Housing Act 2004]
• Failure to comply with an Improvement Notice [s30(1) Housing Act 2004]
• Failure to comply with a Prohibition Order [s32(1) Housing Act 2004]
• Breach of a Banning Order [s21 Housing and Planning Act 2016]
• Using Violence to secure entry [s6(1) Criminal Law Act 1977]
• Knowingly or recklessly misusing a possession ground [s16J(1) Housing Act 1988]
• Letting or marketing of a property within twelve months of using the ‘moving in’ or ‘selling’ ground of eviction [s16J(2) Housing Act 1988]
• Continuous breach of certain tenancy reform requirements [s16J(3) Housing Act 1988]
• Landlord’s failure to become a member of a landlord redress scheme [Renters’ Rights Act 2025, s67]Landlord’s failure to join a PRS database [s92 Renters’ Rights Act 2025]
• Landlord’s failure to comply with the requirements of a PRS database, or in providing false or misleading information to the database operator [s92 Renters’ Rights Act 2025]
• Offences in relation to the landlord ombudsman [s67 Renters’ Rights Act 2025]

An application for an RRO may be in addition to other formal action, such as prosecution proceedings or the imposition of a Civil Penalty. Where the Council has issued a Civil Financial Penalty or pursued prosecution, it will usually apply for a Rent Repayment Order where public funds have been paid to a landlord who has committed a qualifying offence.

S49 of the Housing and Planning Act 2016 enables the Council to assist tenants in applying for Rent Repayment Orders. The Council will usually assist tenants by referring or signposting them to support agencies such as Citizens Advice Bureau or Justice For Tenants.

Banning orders - Part 2, Chapter 2 of the Housing and Planning Act 2016 permits a Council to apply for a Banning Order against a person who has been convicted of one or more of the relevant offences. This would prevent the landlord from:

• Letting housing in England;
• Engaging in English letting agency work;
• Engaging in English property management work; or
• Doing two or more of those things.

The Council may consider a Banning Order for the more serious offenders. It will take into account the seriousness of the offence(s), whether the landlord has committed other offences (or received
any Civil Penalty in relation to a Banning Order offence) and any history of failing to comply with their obligations or legal responsibilities. It will also take into account other relevant factors, including but not limited to:

• The harm, or potential harm, caused to the tenant;
• The need to punish the offender;
• The need to deter the offender from repeating the offence;
• The need to deter others from committing similar offences.

Database of rogues landlords and property agents - The database has been designed to help Local Housing Authorities keep track of rogue landlords and property agents operating across council boundaries.

The Council must place a person on the database if it has successfully made a banning order application. The landlord will remain on the database for the period that the banning order has effect.

Furthermore we will consider if it is appropriate to make an entry on to the database of rogue landlords and property agents when a landlord has been convicted of a banning order offence (even if no Banning Order is sought) or received 2 or more financial penalties over a 12 month period.

In deciding whether to make an entry on the database, and the period of time that a landlord or property agent should stay on the database, we will have regard to the Database of rogue landlords and property agents under the Housing and Planning Act 2016 - Statutory guidance for Local Housing Authorities.

Proceeds of Crime Act 2002 - Where appropriate to the case, the Council, will consider taking proceedings under the Proceeds of Crime Act following a successful prosecution.