Conduct
There is a clear distiction of the conduct of an individual and a civil servant in general . While the individual is a free entity which act in accordance with his free will, any action is only limited by the criminal law.
In case of a civil servant the officer has a very clear code of conduct that states in legislation how to hgo about performing his/her duty, deviation from this can constitute at times serious violations that in the case of a free individual would not apply. The relevant authority would be liable both criminally and civilly from any deviation from the standard code of conduct established by law.
An officer or civil servant has to act within the applicable law. HE/she a law enforcer any action have to be respectful of the law. The law establishes procedures and how can things be done or not done. For example a HMO inspector is not supposed to detain, stop against their will any person inside the house for any reason. Also the HMO enforcer cannot inspect mobile phones of persons found in a house they are inspecting. They cannot act in ways to pressurise (harass , invade privacy ) and make people cry in the premises they are inspecting. Although this is obvious this is one of the behaviour experienced in one of our HMO inspections. A Police officer may have powers of arrest within the law but a n HMO officer does not have powers of detention and, questioning , or seizing and inspecting the residents’ mobile phones
The law set in law hoe to access the HMO and proper notice have to be served by the officer to the manager and the residents well in advance. HMO inspectors cannot conduct surpricse visits and forced entry requires an appropriate warrant issued my the magustrate courts.
Any conduct that ius not cmopliant with
We have
Eash request must be accompained not by an argument but
1 citing the law applicable
2 explaining how the law is applicable to the spoecific case.
Example 1
FOr exmaple a room cannot be considered unhihabitable becasue the boiler is placed in the loft above it. The orcgument was that if the builre needed access for manitenance this was not possible because the tenant would have refused access. This is only an argument and the re is no law that states that. BEcause there is no law that stated that the p[resence of a boiler renders a roiom not habitable is enough to make this request unlawful. However in theis case the argument itself is dismisse by the fact that in several instances each
ROOM needs to be accessed anyway even if the tenants requses it. This is in the case where exssential maintenance of the fire alarm is required. most HMOs have smoke detectors in the room and those require periodic inspection and access cannot be denies for this. Therefor eht eargument was dismissed because
1 The request was not based on law
2 the argument if true would have rendered most HMOs with smoke alrms in the romms not operable.
Whenre the size of teh room instead is less than the minimum standard 6.51sqm then this is an apporpriate request for rendering the room not habitable by an adult. This si an example of a lawful request as it is based on legislation. The legislation states that the mminimum size for an habitable room of an adult is 6.51 sqm
Any document request by the council.
The council can only request only documents thta the law allow it to request. Threfore any document request to be acceptable has to be justified quoting the relevant law and citing the relevant paragraph. Only quoting the law might not suffice as seen in several cases the law quated was not applicable to the specific request.
Theafter inspection reports and requests for mandatory manitence repair, prohibitions etc. action to the landlord.
Every request for works, prohibitions needs to be backed by the relevant lesilation in clear terms. For example a room cannot be considered inhabitable based on arguments. There need to be spesific resons within the law.
Eash request must be accompained not by an argument but
1 citing the law applicable
2 explaining how the law is applicable to the spoecific case.
Example 1
FOr exmaple a room cannot be considered unhihabitable becasue the boiler is placed in the loft above it. The orcgument was that if the builre needed access for manitenance this was not possible because the tenant would have refused access. This is only an argument and the re is no law that states that. BEcause there is no law that stated that the p[resence of a boiler renders a roiom not habitable is enough to make this request unlawful. However in theis case the argument itself is dismisse by the fact that in several instances each
ROOM needs to be accessed anyway even if the tenants requses it. This is in the case where exssential maintenance of the fire alarm is required. most HMOs have smoke detectors in the room and those requirre periodic inspection and access cannot be denies for this. Therefor eht eargument was dismissed because
1 The request was not based on law
2 the argument if true would have rendered most HMOs with smoke alrms in the romms not operable.
Whenre the size of teh room instead is less than the minimum standard 6.51sqm then this is an apporpriate request for rendering the room not habitable by an adult. This si an example of a lawful request as it is based on legislation. The legislation states that the mminimum size for an habitable room of an adult is 6.51 sqm
Example 2
…….
If a request is based on an argumen and no supporting law is found or prorvided.
In such case case law can be produced. Meaning previous court judgements can be porduced and to support the request. In the absenbce of past relevalt court judgements, peer reviewd studies can be provided to support the request. Therefore if for exammple the council requires ta fuseboard to be boxed in due to fire risk ,the relevant legislation stating that states a fusseboard and elecrric meter has to be fire proffed wthis fire proofing board. In the absence of legislation, case law or peer review studies can be provided to support the request.
It seems clear thet there is no fire material in a fuse board for it to cause any significant danger. fuseboards and electric meters anre not considered a fire risk otherwhise they would not be allowable. electric cables are made out of copper mainly and and plastic insulation. in case of a short cisrcuoit in the cables the breakers would prip to prevemtn tthe cables from overherading therefore preventing a loocal heated source that couls start a fire, therefore the proper preakers are there to protect the cables from overheating. However in the event that despite the breakers where failing (lulikely because in casue of breaker failure the breaker remains in the open position), the spark would not be able to ignite anything as thetre is not a woodden casing. The presence of a wooden casing (even if meant to retard the spread of fire) would be the only source of combustible. In the light of this a woodden boxing seems to greatly increase risks of fire. This is becasue in the unlikelly event of a spark casue by a short circuit there would not be a source of material to ignite versus a wooden box which is likely to catch fire.
Prosecutions attempts.
It is omportant to nore that the legislation is very encompassing and reasonally any landlord can fall short of few minor compliance to the relevNT legislation at times. for exmaple the copy of A license may not be presnt in the house at the time of inspoection. This is the reason for us launcing a freedom of inforation act request to assess whether the approachtaken by the council is fair or balanced or not. After all if the
It is coomon knoewledge that prosectuions are olnly allowasble in case of persisted non compliance. the purpose of porsecutions are only a deterrent and if the landlord or moangement company is found willing to cooperate there is no reasonable motive to invest in a prosecution.
We have never been subject to any prosecutions and we are fully compliant with all majour legislation. In the unlikely case of attempted prosecuiton we will:
ammount a strong full defense showong:
1 our compliance with the legislation.
We will launch a series of Freedom of Infomation act to understand if the action against us un proportionate in respect with other cases. We will requst all records of past inspoections of any HMO in the relevant city.
We will audit the conduct of the inspector and the council inn connnection with adherance with the stanrads procedures imposed by the law. If any non compliance is found this
In case of a inspection date we porposed a earlier inspection date than what has beenm proposed by the council this will be pointed out.
All records of missed appointments cancelled within 24 hours from the agrreed date and time will be submitted to the courts.
Our records of similar circumstances of our HMO protpolion wich ne
Any element of subjectivity will be challenged in full.
If prior inspections failed to
Porsecutions attempts.
The concept of “No material harm”.
The concept of “no material harm” or “material Harm” in law is a well known legal tool which has to be used in court in order to prove that a damage of some sort had been caused by any third party. For example a legal dispute where there is no direct of indirect financial loss cannot be brought successfully to court. In order to be successful in court “material harm ” has to be proven first. Which is to say ,whatever breach of contract, regulation, action, event etc directly or indirectly caused a “meterial harm” for example a financial loss that otherwise would not have occurred. In other words the test for “material harm ” is if the specific action, or event did not occur then would have the loss occurred? if a loss would not have occurred then it is likely the thre was “material harm” caused by that particualr event or action etc. The concept of mnaterial harm is unsed also in criminl court and the judge or porsecutor ussually takes the viw that for minor infractions that do not cause any “haterial harm” court time shall not be unsed and a waring letter may suffice.
Therefore in case HMO license had nbben applied for, access was granted whenever Lawfully requested for inspections, and cooperation and engagement is shown then the chanses of any successful prosecuiton are very remote.
Inspector entrnace without appropriate notice been served.
Inspectors openiing draws, inspecting wardrobes and any personall items.
Inspectors have the only duty to inspect the dwellings for fire safety and compliance. Tghe inspection of any internal fixtures of the property that contanins items belonging to any resident or any person present at the time is considered misconduct. This is beacue this is clearly not the function of the officer.
Insoectors detaining people in the house.
In any insoector including firebrigades ingages in behaviour that is conducive of the detantion of any person in the dwelling this very likely constitutes a serious offence. The technical teerm is abuse of office.
insopector seazing mobile phones and insspoeting their content.
Any HMO inspector cannot
Inpsectors using pressurising techniques to interrogate people in the house.
If the officer uses any conduct that directly or indirecctly causes distress to any person in the dwelling (for exampple causingt hem to cry), this is very clikelly classed as misconduct.
Case of not up to date paperwork
In case the manager has failed to provide an up todate pat test of electrical safety certificate, as long as the manager can produce a statisfactory one wothin a reasonalable time frame this it is very unlikely to prosecure successfully for that reason. This is because the
In case an HMO ionspector challages an existing electrical installation.
The production of an upto date satisfactory Electriocal condition report shall suffice to ensure legal protection from possible porsecutions. Only minor visible faults for example partially bunt sokets can be asked to be replkaced, however it is difficult for the inspector to challange the safety of the electrical installation in general due to the uo to date satosfatory electrical condition report.
What constitutes a lawful entrance from the council for HMO inspections.
Defence for the possible porsecutions and other actions form the council
porvided that
1HMO ;license for applied for
2 the approproicate fire alarm was installed
3 no access was denied to the local council HMO inspector
4 compliance with any REASONABLE remedial action has been achieved, especially those concerining any fire risk.
minor paperwork non compliance from the past can be remedied with up to date certoicictes (like gas safety certificates, Electrical condition reports, pat test reports etc). this is even in case the manager failed to porduce past reports. In case an action is brought against the landlord for example for the missing gas certificate for a specific year when requested , since the non safggety of the system cannot be proven in the past (not possible to porve past material harm), the uyoppo dto date gas certificate is a strong defense in case of any legal action from the council. This is beacuause the uptodate gas safe certificate porves the safety of the system. the same applies to an electrical condition report. pat tests etc.
Also in the unlikely case that despite all the above the council insist in takeing some sort of action wich is damaging tor eh tmanager/landlord then provided that all the 4 above poitns are complied with and any other uptodate relevant certification is made availabel to the council, the manager/landolord canissue a freedom of information act requyst to assess the hoe balanced the action of the council is in his/her case.
TFredom of information act requssts.
Prior to any entrnace or inspection of internal areas of the HMO the council ids required by law to submit the porpert statutory notices to botht he manager /landlord and tenants.
These are some typical questions to consider :
Dis we apply for an HMO license?
Has any “material harm” being caused? See section on “material harm”? If prosecution was attempted in all cases wehre theyre are minor infractions the courts would be overwealmed and the system collaspe. The cases which really reuweeire attention would be overlloked.
Did the Council follow the correct procedures?
Has the council allowed time to the manager to rectify the issues?
Did the council acted without following the appropriate procedures? For example the coucil eentered the property without using the statutory tool to request entry in advance?
Is the evidence gathered ny the council admissible in court. Only the evidence that is gathered using the correct porcedures are admissablein court. Any evidence gathered under duress, gathered without using the staturtory legal tools may be dismissed in court.
Any abuse of powewr occurred? For example, did the coucil invaded the privacy of the occupants, seized and examined mobile phones, detained(put in temporatry arrest) residents? Searched residents. seized mobile phones and inspected them?
Did we take coreective action upon request?
Is the actionn taken by the council proportional in replation to tothers? This is reveaded by Freedom of information act requests?
Is the evidence admissible?
Did we act have a “reasonable excuse” defence?
Does prosecution solve the non compliance and is it porportional versus other cases revealed by the freedom of inforation act?
Has the Council disclosed all relevant information?
Can my case be settled without the need for a formal prosecution?
The porpertionalyty principle
In case of Licensed HMOs
The prosecution action has to be proportional and last resort. The threat of prosecutions is genrnerally sufiicient to make the relevant manager act ont he council’s request. In case the council started prosecutions to a manager who already acted promply and successfully to rectify the isses and it is not porpoertional, this woudl take valuable resources away from the local authority to deal with non compliant managers or cases where material harm had occurred.
Freedom of information Act request
We wil ask
1 what document are requested of each landlord after and or before inclection. This will reveal whether an individual was unfairaly targeted.
2 number of hmo inspections for officer per year.
All documentations porduced and correxponcnce produced for each HMO porperty, including post inspection letters, all correspoondence whith HMO managers, internal correspondence within the council resulting from each insopection.
2 number of prosectutions.
all imbound and outbound emails copied of individual officers over the past 2 years.,