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Statement of Principles

Statement of Principles for the Issue of Civil Penalty Charges under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015

Introduction

This statement sets out the principles that we will apply in exercising our powers to require a relevant landlord (landlord) to pay a financial penalty.

Purpose of the Statement of Principles

We are required under these Regulations to prepare and publish a statement of principles and it must follow this guide when deciding on the amount of a penalty charge. We may revise its statement of principles at any time, but where it does so, it must publish a revised statement.

When deciding on the amount for the penalty charge, we will have regard to the statement of principles published at the time when the breach in question occurred.

The Legal Framework

The powers come from the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 (the Regulations), which came into force on 1 October 2015. The Regulations place a duty on landlords (which includes freeholders or leaseholders who have created a tenancy, lease, licence, sub-lease or sub-licence, but excludes registered providers of social housing) to ensure that:

  • a smoke alarm is installed on each storey of premises where there is living accommodation and
  • a carbon monoxide alarm is installed in any room of premises used as living accommodation which contains a solid fuel burning appliance.

AND for tenancies starting from 1 October 2015

  • checks are made by the landlord, or someone acting on his/her behalf, that the alarm(s) is/are in proper working order on the day the tenancy starts.

Remedial Action taken in Default of the Landlord

Where we believe that a landlord is in breach of one or more of the above duties, we must serve a remedial notice on the landlord. The remedial notice is a notice served under Regulation 5 of these Regulations.

Where we are satisfied that a landlord has not complied with a specification described in the remedial notice within the required timescale, we will arrange for the works (remedial works) to be undertaken in accordance with the remedial notice, with the consent of the occupier These remedial works will be undertaken within 28 days of the council being satisfied of the breach. In these circumstances, battery operated alarms will be installed as a quick and immediate response.

Smoke Alarms

In order to comply with these Regulations, smoke alarms will be installed at every storey of residential accommodation. This may provide only a temporary solution as the property may be high risk because of:

  • its mode of occupancy such as a house in multiple occupation or building converted into one or more flats,
  • having an unsafe internal layout where fire escape routes pass through a living rooms or kitchens, or
  • is 3 or more storeys high.

A risk assessment will subsequently be undertaken. This will consider the adequacy of the type and coverage of the smoke alarm system, fire escape routes including escape windows and fire separation measures such as fire doors and protected walls and ceilings. Any further works required to address serious fire safety hazards in residential property, that are not undertaken though informal agreement, will be enforced using the Housing Act 2004, in accordance our Enforcement Policy.

If the landlord fails to take the remedial action specified in the notice within the specified timescale, we may require the landlord to pay a penalty charge. The power to charge a penalty arises from Regulation 8 of these Regulations

A landlord will not be considered to be in breach of their duty to comply with the remedial notice if he/she can demonstrate they have taken all reasonable steps to comply. This can be done by making written representations to us at the address given at the bottom of this document within 28 days of when the remedial notice is served.

We will impose a penalty charge where it is satisfied, on the balance of probabilities, that the landlord has not complied with the action specified in the remedial notice within the required timescale.

The Purpose of Imposing a Financial Penalty

The purpose of us exercising our regulatory powers is to protect the interests of the public.

The civil penalty scheme is designed to encourage landlords to comply with their duties under the legislation.

The aims of financial penalties on landlords are to:

  • Lower the risk to tenants’ health and safety
  • Reimburse the costs incurred by the council in arranging remedial action in default of the remedial notice
  • Change the behavior of the landlord and to prevent future noncompliance
  • Penalize the landlord for not installing alarms after being required to by service of a remedial notice

The civil penalties imposed are intended to be proportionate to the level of non-compliant behavior and to the potential harm outcomes of noncompliance. The council will also consider relevant mitigating circumstances. The penalty will, therefore, be calculated on a sliding scale.

Criteria for the Imposition of a Financial Penalty

Failure to comply with the requirements of a remedial notice allows us to enforce a payment of a penalty charge.

When considering imposing of a penalty, the authority will look at the evidence concerning the breach of the requirement of the notice. This could be obtained from a property inspection, or from information provided by the tenant (or agent) that no remedial action has been undertaken.

For example, landlords can demonstrate compliance with the Regulations by supplying dated photographs of alarms, together with installation records, or confirmation by the tenant that a system is in proper working order.

Landlords need to take steps to demonstrate that they have tested the alarms at the start of the tenancy. Examples of how this can be achieved are by tenants signing an inventory form and that they were tested and were in working order at the start of the tenancy. Tenancy agreements can specify the frequency that a tenant should test the alarm to ensure it is in proper working order.

Criteria for Determining the Amount of a Financial Penalty

In deciding whether it would be appropriate to impose a penalty, the authority will take full account of the particular facts and circumstances of the breach under consideration.

The Regulations state the amount of the penalty charge must not exceed £5,000.

A decision with respect to determining the liability and calculating the penalty amount will be based on the following Consideration Framework.

Stage 1: Determining the Level of Breach

Stage 1: Determining the level of breach
Determining the Level of Breach
Breach Is there a history of non-compliance within the last 5 years? No: Apply the Level 1 Civil Penalty Calculator
Yes: Apply the Level 2 Civil Penalty Calculator

Stage 2: Determining the Level of Liability

Stage 2: Determining the Level of Liability
Aggravating Factors
Aggravating factor 1 Seriousness of offence.
The length of time the property has lacked working detectors
Has the tenant asked the landlord for working detectors
Has the landlord refused to co-operate
Aggravating factor 2 Is the property overcrowded
Is it occupied by vulnerable persons
Are there other fire hazards such as poor escape, height of premises above ground level or poor electrics
Aggravating factor 3 Gravesham Borough Council has to carry out works in default of the remedial notice
Mitigating Factors
Mitigating factor 1 Is this the landlord’s first offence
Mitigating factor 2 Does the landlord own only one property
Mitigating factor 3 Does the property have any other working alarms

Stage 3: Determining the Penalty Amount

This is done using the civil penalty calculator below. This calculator sets out a sliding scale of penalty amounts for each incidence of non-compliance.

The actual penalty amount will depend on the aggravating and mitigating factors available for the council to consider. I.e. it will be subject to reductions should there be evidence of mitigating factors; it will also look at any aggravating factors that should justify a higher penalty. For example, if aggravating factors 1 and 2 apply the penalty charge will be increased by £500. If only aggravating factor 1 applies, then the penalty charge will be increased by £250.

Civil Penalty Calculator

The Civil Penalty Calculator comprises two levels:

  • The Level 1 table will be used where there is no history of non-compliance during the last five years. The starting point for the calculation of the civil penalty is £2,000 before any additions are applied.
  • The Level 2 table will be used where there is a history of non- compliance within the previous five years. The starting point for the calculation of the civil penalty is £4,000 before any additions are applied.

Where a civil penalty notice has been cancelled following a review or appeal, it shall not be taken into account when calculating any subsequent penalty.

Level 1

Level 1: First Breach
First Breach
Starting Penalty Amount £2000
Aggravating factor 1 Penalty increased by £250
Aggravating factor 2 Penalty increased by £250
Aggravating factor 3 Penalty increased by £500
Mitigating factor 1 Penalty reduced by £250
Mitigating factor 2 Penalty reduced by £250
Mitigating factor 3 Penalty reduced by £250

Level 2

Level 2: Second or Subsequent Breach
Second or Subsequent Breach
Starting penalty amount £4000
Aggravating factor 1 Penalty increased by £250
Aggravating factor 2 Penalty increased by £250
Aggravating factor 3 Penalty increased by £500
Mitigating factor 1 Penalty reduced by £250
Mitigating factor 2 Penalty reduced by £250
Mitigating factor 3 Penalty reduced by £250

Procedural Matters for Penalty Charge Notices

The penalty charge is payable within 29 days beginning with the day on which the penalty charge notice is served.

We have discretion to offer an early payment reduction if a landlord pays the penalty charge within 14 days beginning with the day the penalty charge notice is served. We will reduce the penalty amount by 50 per cent if we receive payment in full within 14 days of the civil penalty notice being served. The reduced penalty amount and the final date by which the landlord must pay it will be clearly shown on the civil penalty notice.

When we are satisfied that the landlord fails to comply with the requirements of the remedial notice, the penalty charge notice will be served within 6 weeks.

Review of Penalty Charge Notice

The landlord may request us to review the penalty charge notice. This request must be in writing and submitted within 29 days from when the penalty charge notice is served.

Where a review is requested, we will consider any representations made by the landlord and decide whether to confirm, vary or withdraw the penalty charge notice. Any mitigation factors will be taken into account and the penalty charge notice may be reduced.

The review will be carried out by the Housing Operations Manager and Assistant Director (Housing).

All representations are to be sent to the address at the bottom of this document. We will notify the landlord of its decision by notice.

If a review is requested before the deadline specified in the civil penalty notice, the landlord will continue to be eligible for the early payment option. If the landlord is still required to pay a penalty following the review of the notice, he/she will be given a fresh notice which specifies a new date by which he/she may pay the penalty at the lower amount.

Appeal

A landlord who has requested a review of a penalty charge notice and has been served with a notice confirming or varying the penalty charge notice, may appeal to the First-tier Tribunal against our decision. Appeals should be made within 28 days from the notice served of our decision on review.

If the penalty charge notice is not paid, then recovery of the penalty charge will be by an order of the court and proceedings for recovery will commence after 30 days from the date when the penalty charge notice is served.

However, in cases where a landlord has requested a review of the penalty charge notice, recovery will not commence until after 29 days from the date of the notice served giving our decision to vary or confirm the penalty charge notice. Where landlords do make an appeal to the First-tier Tribunal, recovery will commence after 29 days from when the appeal is finally determined or withdrawn.

Further Information

All communications for representations made against the Remedial Notice (regulation 5) or the Penalty Charge Notice (regulation 8) are to be sent to:

Linda Lauris
Housing Operations Manager
Gravesham Borough Council
Civic Centre
Windmill Street
Gravesend
Kent DA12 1AU

Email:  private.housing@gravesham.gov.uk

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