Smoke and Carbon Monoxide Alarm (England) Regulation 2015
Introduction
This statement sets out the principles that Wealden District Council (the Council) will apply in exercising its powers to require a relevant landlord (landlord) to pay a financial penalty under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 (the Regulations)
The legal framework
The Regulations introduce the following requirements for all landlords during any period beginning on or after 1st October 2015 when the premises are occupied under the tenancy—
- a smoke alarm is equipped on each storey of the premises on which there is a room used wholly or partly as living accommodation;
- a carbon monoxide alarm is equipped in any room of the premises which is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance; and
- checks are made by or on behalf of the landlord to ensure that each prescribed alarm is in proper working order on the day the tenancy begins if it is a new
Regulation 8 provides that the Council may require the landlord to pay a penalty charge if the Council is satisfied on the balance of probabilities that the landlord on whom it has served a remedial notice under regulation 5 has failed to take the remedial action specified in the notice within the period specified. The penalty charge must not exceed £5000.
The Regulations exclude the following tenancies:
- Shared accommodation with landlord or landlord’s family
- Long leases
- Student halls of residence
- Hostels and refuges
- Care homes
- Hospitals and hospices
- Other accommodation relating to healthcare provision
The scope of this document
Regulation 13 of the regulations requires the Council to prepare and publish a statement of principles which it proposes to follow in determining the amount of a penalty charge.
The Council may revise its statement of principles and, where it does so, it must publish the revised statement.
Where a penalty charge is made, the Council must have regard to the statement of principles published and in place at the time when the breach in question occurred, when determining the amount of the penalty charge.
In particular the Council will have regard to satisfying the balance of probabilities that the landlord has failed to take the remedial action required in the notice.
This document sets out the principles which the Council will apply and will have regard to when exercising its powers under regulation 8 of the regulations.
The purpose of imposing a financial penalty
The primary purpose of the Council’s exercise of its regulatory powers is to protect the interests of the public, although they may have a punitive effect. The primary aims of financial penalties will be to:
- change the behaviour of the
- eliminate any financial gain or benefit from non-compliance with the
- be proportionate to the nature of the breach of the regulations and the potential harm
- aim to deter future non-compliance.
- reimburse the costs incurred by the Council in undertaking work in default
Criteria for applying the penalty charge
By virtue of regulation 8, a failure to comply with the requirements of a remedial notice allows the authority to require payment of a penalty charge.
In considering the imposition of a penalty the Council will have regard to evidence of any breach of the requirement of the notice and whether it is satisfied that on the balance of probabilities that the landlord on whom it has served a remedial notice under regulation 5 has failed to take the remedial action specified in the notice within the period specified.
Then 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.
A financial penalty allows the council, amongst other things, to eliminate financial gain or benefit from non-compliance.
A financial penalty charge will therefore be considered appropriate where a landlord has failed to comply with the requirements of a remedial notice.
Criteria for determining the amount of penalty charge
Regulation 8(2) states the amount of the penalty charge must not exceed £5,000.
Having regard to:
- consequences of not complying are potentially serious injury or death
- landlords will have been given 28 days’ notice in which to comply
- the duty placed on landlords is not onerous or expensive
- the administration burden on the local authority for enforcement
- the requirement on the local authority to undertake works in default It is considered appropriate that the maximum penalty charge of £5000 is considered
The period within which the penalty charge is payable is 28 days beginning with the day on which the penalty charge notice is served.
The Council has the discretion to specify that if a landlord pays the penalty charge within a specified earlier period a reduction in the penalty charge may be applied.
The Council may also exercise a similar discretion where the landlord gives written notice to the Council that the landlord wishes the authority to review the penalty charge notice.
Of these two discretions, the Council confirms it will only exercise the discretion to reduce the penalty charge in relation to payment within a specified “early payment” period in recognition of early admission of liability and savings in administration costs.
The specified period for early payment is within 14 days beginning with the day on which the penalty charge notice was served.
Procedural requirements
The penalty charge notice must be served within 6 weeks from the date on which the Council was satisfied, on balance of probabilities, that the landlord had failed to comply with the requirements of the Remedial Notice.
The penalty charge notice must state:
- the reasons for imposing the penalty charge;
- the premises to which the penalty charge relates;
- the number and type of prescribed alarms (if any) installed at the premises;
- the amount of the penalty charge;
- the obligation to pay that penalty charge or to give written notice of a request to review the penalty charge;
- how payment of the charge must be made; and
- the name and address of the person to whom a notice requesting a review may be sent.
The landlord may request a review of the penalty charge notice within the 28 day notice period..
The review will be undertaken by the Property Services Manager.
In deciding whether to confirm, vary or withdraw the penalty charge notice the review will take into account all representations made. The representations will
be considered on their own merit in respect of that case and in particular the following may be considered relevant in deciding any reduction in the charge made:
- Good attitude and cooperation with the Council – in cases where the offender has cooperated fully with the Council in investigating the breach of the regulations.
- Immediate and voluntary remediation – when the offence was brought to the attention of the offender they immediately rectified any breach of the
- No previous history of non-compliance with other Housing legislation – if this is a first breach of any housing related
- Any relevant personal
- Undue financial hardship – if the fine would cause the offender undue financial hardship such that it might not be able to continue to
A notice of the review decision will be served on the landlord.
The landlord may appeal to the First-tier Tribunal against the local housing authority’s decision. The grounds for appeal are:
- the decision to confirm or vary the penalty charge notice was based on an error of fact;
- the decision was wrong in law;
- the amount of the penalty charge is unreasonable;
- the decision was unreasonable for any other reason .
Where a landlord appeals to the First-tier Tribunal, the penalty charge notice is suspended until the appeal is finally determined or withdrawn.