How to establish whether a request from a council officer is lawful or not.
You will be surprised how may of the requests made by the council officers are not based in law, and they are completely subjective. Additionally, in several cases completely made up altogether.
You will find that the council officers send you long reports after their visits, and these reports look overwhelming with loads of jargon. Most of the time it is 80% nonsense, do not worry.
So the question is how to fight back the nonsense? Simple, ask them to state for each request what specific law they are using to make that specific request. What they sometimes say is:”it is a request made under housing act 2004“. The problem is that the housing act 2004 has limited and specific scope therefore what they can ask for is very limited and it has to adhere to the legislation.
However, the council officers sometimes go to outrageous extents like saying that under “housing act 2004” the entire building needs to be repointed or the exterior repainted. This is of course not true. Housing act 2004 does not say anything about the appearance of the building at all.
This does not mean that the council officer can mention a general law or statutory instrument that is not relatable to the specific request. For each request, it needs to be clear that there is a law or regulation which clearly s grants that specific request to be complied with. For example, if they ask you to remove a fridge from a corridor because it is alleged by the council or the fire brigades that it is a fire risk, the council officer must show what law or regulation states that a fridge cannot be placed in a fire escape route. Their request must not be subjective, it has to be stated in law clearly how each specific request is necessary. The law has to be clearly relatable to the request made.
For example, relating back to the fridge the council officer asked to be removed from a corridor (fire escape route), apparently there is no law or regulation stating that a fridge cannot be placed in the fire escape route. Since there is no evidence that fridges pose a real risk of fire there is no such requirements. To prove that fridges pose a risk of fire there must be studies that corroborate this hypothesis, then these studies can be used in court by the council. Since there are no such studies and relevant legislation, removal of Fridge/s from corridors is not a requirement as long as there is a clear passageway to get out from the building. The width of the passageway can be down to the smallest size of a door opening. Therefore, the distance between the fridge and the wall allowing people to go through it has to be in the region of 72 cm. (the width of a door opening)
The council officer, in this case, never managed to justify this fridge removal requirement by law. Then they said that the fridges caused obstruction to the exit. After that the council officer said both the council officers and the fire brigades agreed this is a legal requirement. To this I replied that The space between the fridge and the wall is wider than the standard opening of a door and whether the council officers and the fire brigades agree on anything this does not make legislation. In other words because they agreed on a requirement it does not mean that they had just made a Law that is enforceable in court. Laws are passed by parliament and approved by royal consent, not by an agreement between the council and the fire brigades.
After that I never heard back.
As another example, I had a letter sent by the council saying that under housing act 2004 I had to repaint the outside of the house. This if of course not a lawful request, because whether something is well painted is a subjective matter, and there is nothing in the 2004 housing act on HMOS that involves safety due to the painting of the exterior of the property.
After that request was denied I never heard back.
The council officer is never powerful at all.
If the council officer becomes unreasonable, do not be scared or antagonise him/her and you can point out how foolishly he/she might be acting. Tell them that in their face with no fear if you want . At times I have done precisely that and nothing happened , on the contrary, they tended to back down a lot. In fact at the time of writing there is almost nothing they can do because they need ultimately to prosecute you andporsecuituions are expensive and risky. They could be liable civilly if they make legal mistakes and you could challenge the council in court.
Why are council officers not that powerful?
It is because all they have to do is enforce the law, and it is very easy to comply with the law. The council officers have no power to issue fines. Only the magistrate courts can issue fines after successful prosecution .
In the unlikely case you are not 100% compliant with some regulations, they must allow you time and space in order to comply. They cannot immediately take legal action. It is too risky, and sometimes even counterproductive to their goal to have you to become compliant.
And remember in the worst case scenario it is very hard to prosecute you. Any monetary penalty must be issued by the courts after a successful persecution. Prosecutions are difficult, risky and expensive forthe council, and if you fight back they may even lose on the basis of procedural mistakes alone.
How do the council take action against you?
Assuming that you have applied for an HMO licence, you should not fear any council officer, because they have no power to issue fines. Any punishment can only be enforced through the courts.
This is not a hard and fast rule but the council prefer to take to court those landlords who are very small and will not amount to any defence. They are very scared of taking a large landlord to court. First remember that the council does not have any real power to issue fines, they can only start prosecutions and court proceedings like you and me can. Also remember whenever the council does anything in court they end up spending like crazy because they have to employ lawyers that are not in house. Sometimes the council has in-house lawyers, but they are few and far in between and they tend to leave the council very fast for some reason.
In case you have not applied for a licence and there is a fire or somebody died in the property, then they can act no matter what. It does not matter whether you are a small or big landlord, the council after an incident is sometimes under political pressure to be seen to have taken some action, to calm down possible outcry. Therefore, once again, always apply for the HMO licence and comply with all fire regulation in your building.
So whatever action the council want to take, they require a court order almost every time. Therefore when it comes to take action firstly they usually need to try whatever they can through your voluntary cooperation. Then failing that they are left with no option other than to take court action.