“Private renters stuck in dangerous homes ‘failed’ by councils” is certainly a catchy headline and it was followed by the equally eye-catching “Tenants who complain of dangerous or potentially deadly faults in privately rented homes are being let down by councils, a BBC investigation suggests.”

We posted a news item highlighting the Beeb’s report on 12th October but how right about local authorities’ enforcement of private rented housing standards was the broadcaster in this instance?

Two supporting metrics were utilised in the BBC’s piece. The first was a housing complaint example from Blackpool and the second was a statistical analysis of complaint numbers versus enforcement numbers gleaned from 60% of the councils that the BBC approached (we’re not told the total number approached) for information about housing standards enforcement figures. However, we’re given no idea why Blackpool in particular was picked as an illustrative example or indeed whether it was even in the 60% of responding councils and, if so, what complaint/enforcement statistics its response contained. The piece says that several tenants complaining of mould were spoken to including a woman in London who spoke of “inadequate heating and insulation” but there is no mention of which boroughs or districts they lived in or whether they had complained to their councils and, if so, been “failed” by the response.

Blackpool Council does use mandatory Houses in Multiple Occupation (HMO) Licensing and discretionary Selective Licensing schemes in its area so it is clear that they are aware that they have a problem with a cohort of private rented sector properties - whether badly managed by the landlord, in poor condition or, with dangerous hazards. In addition, the council has successfully bid for and received (in summer 2022) £987,000 from the Government’s Supported Housing Improvement programme to better enable it to carry out enforcement against rogue private rented sector landlords accommodating vulnerable tenants. So, it’s also clear Blackpool Council has taken strategic action to support private rented sector tenants. Neither the council’s current, publicly available, Housing Strategy nor its Enforcement Strategy, or any departure therefrom, are referenced in the BBC’s report and neither is the council’s selective licensing property compliance activity.

Whilst the images in the report do suggest to the viewer that there was a serious hazard risk inside that particular Blackpool property it was not clear, and there was no direct accusation, that Blackpool Council had “failed” under the terms of the investigation’s Headline. The tenant was, understandably, worried for his safety but, the Council did act on his complaint. The question hinted at but left unanswered (possibly also unasked) was whether they should have done more, done it harder and done it faster in this one particular case.

This brings us to metric 2 in the BBC report - the Housing Standards enforcement statistics analysis. Firstly, it should be said that there is actually an issue surrounding the ability (or lack thereof) of all English councils to provide this type of statistic when asked. A 16th June 2022 study (Local authority enforcement in the private rented sector - commissioned by the Dept for Levelling Up, Housing and Communities - DLUHC) made the point that in 2020, DLUHC itself had sent a survey on housing enforcement activity to all local authorities in England. Out of 318 authorities only 140 (44%) responded. Hence talk within the private rented sector of the corollary to planned Rental Reform legislation being the bringing in of an Ofsted style enforcement league table for all local authorities in England.

Be that as it may, the statistics raised by the BBC are still striking - over a 5 year period: 135,000 hazards recorded of which 42,654 were Category 1 hazards (an immediate risk to safety). However, over the same period, “formal action” was taken by councils in only 25,243 cases and only 1% of recorded faults led to a prosecution. The report does lay out the formal actions a council can take from a basic “hazard awareness notice” through to a prosecution but does not mention in that list the issuing of a “simple caution” (previously called a “formal caution”).

This particular enforcement action means that the landlord or property manager can admit the offence but not be prosecuted. To take this route (as Coventry Council has done recently) the council has to be able to show that it has strong enough evidence that, if there were to be a prosecution, there is a good chance of it being successful. The landlord can be fined and the public purse can be protected and - where the property is inside a selective licence area or is licensed as an HMO, the landlord can also lose their “Fit and Proper Person” status and thus can have their licence to operate that property revoked.

The non-inclusion in the report of the caution route, on its own, could skew perception (if housing standards officers have used cautions) of the “less than 1%” figure the report gives for prosecutions taken by councils. As the report quotes the LGA (Local Government Association) as saying - “prosecution is a last resort.”

Councils will also look to take enforcement action within the principles of the Regulators Code and the Crown Prosecution Code (the Enforcement and Prosecution Concordat Guidelines) and this will mean that there is the option of taking “informal action”. This route allows the council to achieve compliance with legislation, where appropriate, by issuing a warning, giving advice or requesting that any remedial action required be completed within a reasonable time (possibly the route that Blackpool Council initially took in the case noted above). Yet this form of council enforcement also isn’t mentioned in the report though it could also have potentially given more context to the BBC’s statistics.

Prosecutions are not simple affairs. They are resource intensive (both in money and officer capacity terms) and involve an element of risk in terms of outcome. Thanet District Council was recently successful in prosecuting a landlord and her agents (for illegal eviction) but it took 3 years and cost £200,000 including the cost of rehousing the tenant victims. That was just 1 private rented housing prosecution taken by one council. Obviously a collapsing floor or ceiling isn’t the same as an illegal eviction but it can be resolved by means other than prosecuting even if it is a Category 1 hazard.

The DLUHC study mentioned above (as well as reports from the House of Commons Public Accounts Committee and the National Audit Office) go into detail about private rented sector enforcement activity by councils. The picture painted is, in places, stark. After over a decade of cutbacks much capacity (as well as institutional memory) has been lost across council teams. One council referenced by the study only had 0.5 full time employed enforcement officer. Another council had 1.5 FTE officers where the full time officer also had another role within the council structure and the part time officer was a trainee.

The problem is so acute that the Mayor of London’s office now supports, via funding, an apprenticeship scheme to train new housing standards officers. The councils most able, though, to proactively deal with (non HMO) poor or dangerous property standards in the private rented sector are those that use selective licensing as a regulatory tool. This tool gives councils the power to carry out proactive property inspections and get faults and hazards dealt with by a landlord within set timescales or risk the imposition of a £5000 fine per breach of licence conditions and non compliance with standards. Licensing fines can be upto £30,000 in some circumstances. However, the National Audit Office (NAO) in its 2021 report (on regulation of private renting) found that only 65 councils had run a selective licensing scheme “beyond minimum requirements since 2010.”

Our experience at the Home Safe Scheme, working as a Delivery Partner in support of local authorities that use selective licensing, tells us that where 1000 properties are proactively inspected there will be around 3000 faults found. Not all of these will be Category 1 hazards and not all of the landlords of those properties will be rogue landlords but a programme of compliance inspections along with compliance management activity is proven to be able to improve properties and keep them up to standard over the 5 years that a licensing scheme runs for.

With selective licensing schemes, “enforcement” in its broader sense means activity (compliance management) which runs the gamut from the initial legal requirement to apply for a licence and be “fit and proper” to operate as a landlord, through cooperating with compliance inspections, carrying out remedial work on time and where compliance doesn’t happen, the probability of paying a civil penalty to being prosecuted in the most egregious cases.

So, to return to our original question, was the BBC right? Well, to quote the NAO, “The [private rented] sector is highly complex.” This doesn’t let local authorities off the hook but there is more context than the BBC report allowed for. The report does say that its findings “suggest” rather than confirm the basis for the accusation of “failure” and the “letting down” of tenants but a look at environmental health officer caseloads (especially in London boroughs where they can be extraordinary) and local authority resources and capacity would have given a more rounded picture with much more substance. As would a look at how successful licensing schemes (Great Yarmouth being one example) can make all the difference to tenants. As mentioned above, these days local authorities are overwhelmed and under-resourced trying to regulate a “complex” and dysfunctional housing market via, in part, dealing with reactive complaints. It’s not a Blackpool problem, it’s a national problem and whilst the BBC are correct in headlining this problem more substance would have been of more service. Councils do have to be held to account but they are not bad actors. One (unclear) example in one council area doesn’t prove the argument that the BBC report’s headline suggests it is proving. Licensing is just one regulatory tool and more councils do need to get it out of the toolbox but a cursory look at the published strategies and activities of most councils will show just how much effort is being put into improving housing standards and keeping tenants and other residents safe.