Round #1130

The environmental health officer at a local authority assessed mould in a child's bedroom at a privately rented flat and recorded it as HHSRS Category 2 hazard band E for damp and mould growth under the Housing Health and Safety Rating System (England) Regulations 2005. Landlord says "Cat 2 means no enforcement action is required". Tenant has a four-year-old asthmatic child. Under sections 5 and 7 of the Housing Act 2004, what enforcement options does the council have on a Category 2 finding and what factors guide the choice?

# Enforcement Options for Category 2 Hazards Under the Housing Act 2004 ## 1. The Statutory Framework: Dispelling the Landlord's Misconception The landlord's assertion is **legally incorrect**. Section 5 of the Housing Act 2004 imposes a **mandatory duty** on the local housing authority regarding Category 1 hazards, but **section 7 expressly preserves discretionary enforcement powers for Category 2 hazards**. A Category 2 finding does not create a safe harbour from enforcement; it simply shifts the regime from mandatory to discretionary. --- ## 2. The Duty/Power Distinction | Hazard Category | Statutory Basis | Nature of Obligation | |---|---|---| | Category 1 (Band A–C, scores ≥1,000) | s.5 HA 2004 | **Mandatory** — authority *must* take the most appropriate enforcement action | | Category 2 (Band D–J, scores <1,000) | s.7 HA 2004 | **Discretionary** — authority *may* take enforcement action using the same menu of measures | Band E sits squarely within Category 2 territory, but the discretion under s.7 is a **power coupled with a public law duty to consider its exercise rationally**, not a power to ignore the hazard entirely. --- ## 3. The Menu of Enforcement Actions Available Under Section 7 Section 7(2) cross-refers to the enforcement measures in **Part 1 of the Act**. All of the following are available for Category 2 hazards: ### 3.1 Improvement Notice (ss.11–21 HA 2004) - Requires the **person having control** (typically the landlord/managing agent) to carry out specified remedial works by a specified date. - The notice must specify the hazard, the deficiency causing it, the works required, and the start/completion dates. - A **suspended improvement notice** (s.14) can be issued where works are deferred pending, e.g., tenant vacation or seasonal conditions, but must still compel eventual compliance. - **Practical utility here**: This is typically the **most proportionate first-step** tool for mould caused by structural defects (penetrating damp, inadequate ventilation, thermal bridging), as it directly requires remediation. ### 3.2 Prohibition Order (ss.20–21 HA 2004) - Prohibits use of all or part of the premises, or restricts categories of occupants. - A **suspended prohibition order** can prohibit re-letting until remediation occurs. - Less appropriate as a primary response here unless the hazard score is approaching the upper end of Band D/E and the dwelling is otherwise wholly unsuitable. ### 3.3 Hazard Awareness Notice (s.28 HA 2004) - A **non-enforceable notice** informing the person having control of the existence and nature of the hazard. - Carries **no criminal sanction for non-compliance** and no works requirement. - Appropriate only where the hazard is minor or where an informal approach has a realistic prospect of success. - **Important caveat**: Given the presence of an asthmatic child (see vulnerability factors below), relying solely on a hazard awareness notice would be difficult to defend as a rational exercise of discretion and could be challenged by judicial review if the child's health deteriorates. ### 3.4 Emergency Remedial Action (s.40 HA 2004) - The authority itself carries out works where there is an **imminent risk of serious harm**. - Costs recoverable from the person having control. - Unlikely to apply on these facts unless there is acute structural failure causing flooding or wholesale penetrating damp posing immediate risk. ### 3.5 Emergency Prohibition Order (s.43 HA 2004) - Immediate prohibition without prior notice where risk of imminent serious harm. - Same caveats as above. ### 3.6 Demolition Order / Clearance Area (ss.265–306 TCPA/HA 2004 regime) - Not relevant on these facts. --- ## 4. Factors Guiding the Discretionary Choice Under Section 7 The statutory guidance issued under s.9 HA 2004 (**ODPM/DCLG Operating Guidance 2006**) and the **HHSRS Enforcement Guidance** identify the following factors as material: ### 4.1 The Calculated Risk Score and Band - Band E produces a hazard score in the range **512–999**. - The higher the score within that band, the stronger the case for formal enforcement rather than a hazard awareness notice. - The officer must document the score and ensure the banding is properly derived from the four HHSRS outcomes (Class I: death; Class II: severe; Class III: serious; Class IV: moderate) and their associated spread of harm/likelihood. ### 4.2 Vulnerability of the Occupants — **Critically Important Here** - The HHSRS methodology uses a **vulnerable group** as the notional occupant for scoring purposes. For damp and mould growth, the vulnerable group is **persons aged under 14 years**. - The actual presence of a **four-year-old child with established asthma** is therefore precisely the demographic the scoring methodology is designed to protect. - Damp and mould growth is a **recognised trigger for asthma exacerbation**, respiratory sensitisation, and hypersensitivity pneumonitis in children. This is reflected in the HHSRS Technical Guidance on Hazard 1 (Damp and Mould Growth). - The authority must weigh the **actual health risk** to this specific child against the cost/inconvenience to the landlord. On public law grounds (proportionality, relevance of material considerations), ignoring the child's asthma would be irrational. - If the child's GP or a respiratory consultant has linked the mould to exacerbations, that medical evidence **strengthens the case for formal enforcement significantly**. ### 4.3 Likelihood of Voluntary Compliance - Has the landlord been informally notified and failed to act? Prior non-response favours formal enforcement. - Is the deficiency structural (inadequate envelope, failed DPC, missing or blocked ventilation) or behavioural? Structural defects require landlord action; the officer should not accept spurious "lifestyle" explanations without proper investigation. - The **Homes (Fitness for Human Habitation) Act 2018**, now consolidated into s.9A–9C Landlord and Tenant Act 1985, also gives the tenant a parallel private law route, but does not displace the authority's public law discretion. ### 4.4 History of Complaints and Prior Enforcement - Repeated complaints or prior notices in relation to this or other properties of this landlord inform the risk of non-compliance and may justify moving directly to formal measures. - Check the authority's **database of licensed/unlicensed HMOs** and previous notices. ### 4.5 Nature and Cause of the Defect - The officer must distinguish between: - **Penetrating/rising damp** (structural — plainly landlord's responsibility) - **Condensation mould from thermal bridging** (structural inadequacy — landlord's responsibility under s.11 LTA 1985 as interpreted in *Staves v Leeds CC* [1991] and *Quick v Taff-Ely BC* [1986], noting post-2018 the fitness standard applies) - **Condensation attributed to occupant behaviour** — the officer must scrutinise this carefully; overcrowding, inadequate heating provisions, and lack of ventilation are frequently landlord failures dressed as tenant failures. ### 4.6 Proportionality and Cost of Works - While not a reason to refuse enforcement, disproportionately expensive remediation relative to the severity of a Band E hazard may influence whether a lengthy compliance period is appropriate in an improvement notice. - Conversely, if remediation is cheap (e.g., mechanical ventilation unit, re-plastering, fungicidal treatment following damp-proofing), there is little basis for leniency. ### 4.7 Tenure and Occupation - Private rented sector — full enforcement toolkit applies. - No statutory reason to treat private rented sector less rigorously than other tenures; indeed the Government's **Renters (Reform) Act 2024** and **Awaab's Law** (s.42 Social Housing (Regulation) Act 2023, as yet applying only to social housing but indicative of legislative direction) signal a hardening of expectations. ### 4.8 The "Best Practicable Means" / Most Appropriate Action Test -

## Enforcement Options on a Category 2 HHSRS Finding ### The Landlord Is Wrong on the Law Section 5 of the Housing Act 2004 imposes an **absolute duty** on the local housing authority where it finds a **Category 1 hazard** (bands A–C, scores 1,000+). For a **Category 2 hazard** (bands D–J, scores below 1,000), section 5 is silent — but **section 7 expressly confers a discretionary power** to take enforcement action. Discretionary does not mean no action is available; it means the authority must exercise judgment. The landlord's claim that "Cat 2 means no enforcement action is required" confuses the absence of a *duty* with the absence of a *power*. That reading is incorrect. --- ### The Section 7 Discretionary Powers Available Under **section 7(2) Housing Act 2004**, the authority *may* take any of the following in respect of a Category 2 hazard: | Power | Statutory Basis | Effect | |---|---|---| | **Improvement Notice** | s.11–12 HA 2004 | Requires the landlord to carry out specified remedial works within a set period (minimum 28 days, usually 21 days to comply once operative) | | **Prohibition Order** | s.20–21 HA 2004 | Restricts or prohibits use of part or all of the premises | | **Hazard Awareness Notice** | s.28 HA 2004 | Notifies the landlord of the hazard without compelling works; no criminal sanction for non-compliance — weakest tool | | **Emergency Remedial Action** | s.40 HA 2004 | Available only where there is an imminent risk of serious harm; less likely on a band E Cat 2 unless circumstances escalate | | **Emergency Prohibition Order** | s.43 HA 2004 | Same imminent-risk threshold | The **Improvement Notice** under ss.11–12 is the primary enforcement tool in practice for a Cat 2 damp and mould finding. It must specify the works, the date by which they must begin, and the date of completion. --- ### Factors Guiding the Exercise of Discretion The authority is not free to act capriciously. The following factors govern the choice: **1. Statutory Guidance** The *HHSRS Operating Guidance* (ODPM 2006) and DLUHC's 2023 updated guidance on damp and mould direct authorities to treat damp and mould as a **serious hazard**, not a lifestyle issue. The 2023 guidance (issued following Awaab Ishak's death) explicitly states that Cat 2 findings do not preclude enforcement and that vulnerability of occupants is a material consideration. **2. Vulnerability of the Occupants — the Critical Factor Here** HHSRS scoring already partially reflects vulnerability through the *spread of harm* calculation, but vulnerability is independently relevant to the *choice* of action under s.7 discretion. A **four-year-old child with asthma** falls squarely within the most vulnerable receptor class for hazard 1 (Damp and Mould Growth). Children aged 0–4 are the reference group for this hazard under the Regulations. The presence of diagnosed asthma elevates the risk of serious respiratory harm materially. This strongly supports taking the **Improvement Notice** rather than the weaker Hazard Awareness Notice. **3. Landlord's Response Prior to Formal Action** If the landlord has refused informal requests or failed to engage, the authority is justified in moving directly to an Improvement Notice. The authority is not obliged to exhaust informal routes before exercising s.7 powers, particularly where occupant vulnerability is high. **4. Whether the Score Is Near the Cat 1/Cat 2 Boundary** Band D (score 500–999) sits immediately below the Category 1 threshold. A re-inspection, or a fresh assessment properly accounting for the child's age and asthma, may yield a **Category 1 finding** — at which point the s.5 *duty* to act is triggered and the enforcement options in s.11 become mandatory. The EHO should consider whether the original assessment adequately weighted the vulnerability multiplier. **5. Proportionality and the Improvement Notice Terms** If an Improvement Notice is served, the works specified must be proportionate to eliminating or reducing the hazard: identifying and treating the source of moisture (not merely surface treatment), improving ventilation, and any structural remediation. A notice requiring only bleaching of mould would be challengeable as inadequate. **6. Civil Penalties and Rent Repayment Orders** Non-compliance with an Improvement Notice is a criminal offence under s.30 HA 2004 (unlimited fine). The authority also has power under the Housing and Planning Act 2016 to impose a **civil penalty of up to £30,000** as an alternative to prosecution. The tenant may separately apply to the First-tier Tribunal (Property Chamber) for a **Rent Repayment Order** under s.40 Housing and Planning Act 2016 if the landlord commits the s.30 offence. --- ### Practical Recommendation for the Authority Given a four-year-old asthmatic child as the occupant, the correct course is: 1. **Reassess** whether the vulnerability weighting was correctly applied — a Cat 1 finding may be appropriate. 2. **Serve an Improvement Notice** under s.11/s.12 HA 2004 specifying adequate remedial works. 3. **Do not** rely on a Hazard Awareness Notice alone; this would be a defensible but poor exercise of discretion given the occupant's medical vulnerability and would likely not withstand scrutiny if challenged by judicial review or by a complaint to the Local Government Ombudsman. 4. Record the rationale for the enforcement choice in writing, referencing the child's age, diagnosis, and the 2023 DLUHC damp and mould guidance. The landlord's position has no foundation in sections 5 or 7 of the Act.