Challenging Prohibition Orders

Hello, My name's Rachel Coyle and I'm a barrister. That six group, today's webinar, is about charging prohibition orders. What are they, how to peel them? What does the law say and what guidance? Very recently, I did such an appeal because they are rare because after they are settled, before they get to court stage. But I did appear in one very recently. It was interesting to see how it played out with the tribunal, but it also meant that there is now some degree of case law on this area which, like I say, is not seen often in tribunal. So today's webinar if don't go through those things, the very basics are charging prohibition orders, whether you are for whether you are a landlord or a tenant or intact tenant who is wanting to change prohibition orders. So you're probably thinking I signed up for this, but I don't I don't actually know what profession older is. Not something do the environment. Maybe so is your property. Yeah, yeah, well, your price is right. Essentially, prohibition orders are orders made by level authority where they think that property is not but effectively fit purposes state in terms of being able to be lived in, uh properly so they want to bring up standard on. It might be that they have to serve Prohibition order on a landlord to encourage internal to do the work on the property. And it might be that whilst the works have done, the talent has to leave. If there is a tenant, When did the landlord? If there s a flannel has to leave or somebody actually owns the property themselves got the property is in such a bad state they have to leave their own property because that has happened very rarely. If there is a potential impact on a neighbor, perhaps in an adjoining property. So permission orders are different to cremate notice served, and I'll get to the differences short day because prohibition orders are designed to encourage the worst. We don't as soon as possible because it's quite urgent. Message We bad because they probably can't really be lived in until the work is done on the property to career. But bringing up to standard. Where's improvement noticed it is possible to live in the property whilst the works of dog to bring it up to a certain standard. So turning to first light Part one housing at 2004 this is the revenue after parliament, which talks about what prohibition orders are now. The legislation, under which local authorities operate is governed by this part of how that 2000 it introduces a system for assessing the condition of residential premises of the use of the system. Reporting how and standards the housing, health and safety rating system. England Regulations 2005 Assign number 5 2003 to 0 rate on the regulations made under the act are essentially off most relevance because there is also guidance as well on this point in the housing, health and safety rating to smooth quarter diners dated February in 2000 six. Those two things together, along with how such does for, is basically what you will need most when dealing with these kinds of cases. Section nine to the Act. The house that stuff before requires local authorities to have regard to that guidance the guys I've just mentioned on also, they have to take into account the regulations in 2000 and five as well. Now the system set up by the House out to 2004 makes reference to Category one and category to hazards on residential premises. The categories are defined in Section two. Wanted T Act. In these terms, Caspi one has it means a hazard off a prescribed description which falls within a prescribed banned as a result of achieving but a prescribed method of calculating the seriousness of hazards of that description numerical school off or above the prescribed amount. Contrary to has it, this means a hazard overprescribe description, which folded in a prescribed banned, does result of achieving under prescribed method for calculating the seriousness off passes of that description. The numerical score below the minimum amount of scrag forecast 31 has it off That description on ah hazard means over any risk of harm to the health or safety of an actual or potential occupier over dwelling or hatillo, which arises for a deficiency that swelling will hate tomorrow or in any building or land in the vicinity. Whether deficiency arises as a result of the construction of money building the nonsense of maintenance or repair or otherwise. So in Rana plane a turn their mouth. Why no so rather plain a term katori one hazards are serious dangers. Category two houses are less serious dangers, and that doesn't sound particularly helpful, but I'll give you some examples of it later. Section full off the house and up to you as a fool provides for inspections of property by local housing. Authorities determine whether category one or category two houses exist on for the making of regulations as to how inspected the premises, that assessment off houses are to be carried out. So there's 2005 regulations. I mentioned so most of the provisions session for six states that where an inspection has been carried out on the property proper opposite the local housing authority is of the opinion. But there's a cash reward, or Caspi to hazard in existence on any residential premises in the authorities district, the officer must, without delay, make a report in writing to the authority which sets out his or her opinion. Together with the facts off the case, Sexual five imposes a duty on a local housing authority to take appropriate of course interaction where considered a category has it exists. Under the section, the local housing authority must take the appropriate enforcement action, the appropriate important action has to be one from the list in subsection. Two off Sexual fine on the list includes an emergency prohibition Order one of section 43 as an example, however, by subsections three and four of sexual by, if only one of the list of causes of action courses of actions available, it must take that course. But if two or more courses of action available, the local house authority must take which ever they consider to be the most appropriate. So it might be that at first blush, the proven I just might be appropriate until they find the property is falling through, in which case on an emergency provisional might be more appropriate. It might be that improvement notice It is possible, but in the words could potentially be done without need of the people occupying to leave the property, which won the most prohibition order, would do you her habit in the people living there while looking. Now what's the work is done, but there is never less at the other considerations, such as finance which might come into it. Is it financially viable toe have living in a property whilst also doing the work required to bring it up to speed. It might be that it's more household. It's worth and therefore most of Prohibition orders more appropriate. So it might. But it's more than one possibility, but one might win in real the day on that basis as an example in Chapter three. If you do want to look at emergency measures, uh, you'll find it's headed emergency matches helpfully. But under Section 41 40 subsection one off that chapter, it's local Housing Authority is indeed satisfied that there is a Category one hazard in existence. And it is satisfied that the hazard involved in imminent risk of serious harm to the health or safety any occupied off those or the residential premises on no management orders in force of the chapter one or two part four relation to the premises. That Emerson Radio action in Respect of Hazard is a course of action available to the authority your relation to the heart of the person section By so under Section 43 the similar power exists to make emergency Prohibition order prohibited any use off the premises specified in the order. So if we turn now to purple, it's like three. You will see the records to 2005. Regulations under regulation by an inspector must have regard to any guidance. Under Section nine, Number two must inspect the premises with a view to prepare an accurate record of their state and condition. A number three prepare. Keep such a record in written or electronic bomb on the regulations. Do you provide an extremely complicated scoring system for the assessment and categorization of houses they used? A computer program is quite common to work this out. The regulations do prescribe descriptions for Category one and category to hazards, and there are also prescribe a method for calculating their seriousness by establishing a new miracle school regulation to defines harm as Harmer than any classes of 1 to 4 set out in Schedule two. The schedule provides that Class one harm is quote such extreme harm as it's reasonably foreseeable as result of the hazard in question, including. And then these are set out as death from any cause and promptly to G lung cancer. Malignant tumors, permanent paralysis below the neck. Regular severe pneumonia heard a lot of consciousness and 80% burn injuries. Class to harm this Is there harm This includes, for example, cardio respiratory disease plus three heart is serious harm and includes gastro and to write us, for example. Again, please have a look at slides in this one. A slight by in class four. It's moderate harm, which is including, for example, regular serious cops on calls. Regulation 31 provides that a hazard is off a prescribed a scripture. The purpose of the act where the risk of harm and associate ID any amount of circumstances listed in schedule one Now regulations seven. Who describes bands of houses from 18 j on the base of a range off numerical scores. So, for example, a band a hazard is one of the Americans floor. 5000 or more abound, be hazard it one with numerical score of 2000 to 4999 and a ban see hazard is one with a numerical score of 2 2999 Regulation eight provides that a hazard foreign within Bands A, B or C is a category one hazards. The matter has it foreign in any other band is a category to hazard. So the numerical School four has it, it helped. Police reached in a number of steps described by regulations six, which will see it slide. Six of the power point slides. The numerical scoring is this. The inspectors required to assess the likelihood during the period of 12 months, but getting with the date of assessment are irrelevant. Occupy. So bring any harm as the results of that hazard us for only one of a range off 16 ratios off likelihood that set out and B but each range. There is also set out a representative scale off range L, as it is called. A formula later falls to be applied and therefore prisons in the range of ratio is like of what? Between one and 4201 in 2400. The rap sense to scalp when the brain is stated to pay 3200 regulations. Six. Does make rappers to a relevant occupy. You're probably thinking, What is that? That is defined. Its regulation 67 on by a mystical matters contained in schedule warm. So that's the numerical school. But the second step requires inspector to assess which of the four classes of harm a relevant occupy is most likely to suffer. The third step is that he or she must assess the possibility off. Each of the three other classes of heart occurring as a result of that hazard has born within a range of percentages of possibility each range. There is also set out a representative scale point of the percentage range known as RS PPR, so, for instance, for the range not 0.15% to no 0.3% the RS PPR is no 0.2%. The fourth step requires Inspector to bring the total Iraq PP ours for the four classes to 100%. To do this, he or she adds the percentages of the three rs PPR's he or she has reached its Step three and takes the total away from 100%. Contribute what is left to the court class of harm, but he or she assessed to be most likely to occur then. The final stuff is the production of the numerical school, the seriousness of the hazard for each the four classes of harm. But each of these l has referred to earlier as movement. Meaningful likelihood is multiplied by eight or US PP R and then by a further factor which weighs mysteriousness of the classes off harm. This factor is 10,000 class 1 1/1000 the class to 300 forecast three Aunt 10 forecast for then. Finally, the panel stuff is at the poor individual American scores to produce the numerical school that can be related to the prescribed batons in case that's a bit much taken. Do have a look at Regulation six, but they are how who set out Stepped on. They are what you need to account for in case there might be any miscalculations by the inspector. If you're representing the landlord, received the notice or order well, tenant, if you're not happy, also want to challenge it going to slice seven, then we are then going to talk about briefly improvement notices. This is one example are what may be served. An improvement notice may be served, whether it's a cash reward or category to hazard, and that is identified. The improved noticed identified at such a level section 12 off the act theatrical being house out down, the person whom it is to be served as tame. As for hazard Awareness, notice, which is like lower down the chain are seriousness of notices and there's corny, no prescribed form. The improvement notice requires a person human to serve to carry out specific remedial action. No relation to Category one hazards the real actual most at least ensure that has been the promises ceases because everyone has it, but it can require more on that is identified at such 11 5 remedial action is actually will removed or reduced. The Hazard section 11 8 uses takes the form of works. The property. An improvement notice can specify alternative schemes of work, leaving the choice of which alternative to adopt. Recipient to the notice. The Warden Kingston upon Whole City Council, $2. 17 Commonwealth Court Appeals Civil Division post 364. In the case of Prem Assess, this is what this case also stated. The case of promises containing flats. Remedial action may be required relations to common parts or any part off the building containing with flats, which may include another flat. The only two authorities satisfy the deficiency from which the hazard arises is situated. The calm, passive building on the action is necessary for the health and safety of any actual touch occupied of one or more of the flats in it. Such 11 34 in section 12 section three. So it's also relevant in the context of flats. What an improvement notice can do is adjust more than the minimum to remove a Category one hazards under Section 11 which is part identified in paragraph. Bike went off the guidance. So the mere existence of a threat off the prop in the property is not in itself a reason for issue in, for example, prohibition order, and therefore it might be served improvement notice. See progress 5.21 guidance. But one does need to consider whether it's more costly. Other said before to go from improving notice as opposed to a prohibition order. Because the perimeter notice you can still stay in the property prohibition order. Get out. We need as much space has become too much work to do, so I do need to consider the cost. And that's also identified. Darden's cargo Fine Point, Teoh Warm five part of 5.11 of the guidance states out when considering serving improvement notice. The wishes of the talent should be considered on extent, which they're able to target repairs as well. It may be that they can tolerate to the pass and improve. Next is sufficient it maybe they may not, and therefore you might be that you have to consider prohibition order. It could be that the person who occupies is indeed vulnerable and therefore couldn't manage with work being done around them. So what's the difference? You improve? Noticing the most prohibition order well on authority may only make the most prohibition order in relation to Category one hazards even as she's coming. Khatibi water Cassity two houses. And that's why that distinctions make clear it's actually forces. You want a contact in most crab issued orders, the authority must be satisfied that has it involves an imminent risk of serious harms. The house is taking any of the occupier of the premises concerned or the residential premises. So I bought it 31 big. An emergency order takes immediate effect. A section 43 to the prohibition on use the premises all the same as what other prohibition orders. The order must be served on the same persons as a normal prohibition order. It must be served on the day that it is made or, if not possible, as soon as possible there after it's actually 43 4 Social 44 Identifies. Order must specify what the almost specifies help you set out in slide nine. Nature of the hazard and the residential premises on which the house it exists. Deficiency. Given rice the hazard the prohibitions imposed the premises in relation to its prohibitions are imposed on origel actual authority. Consider would take results in their revoking the order on that there is a right appeals appropriate tribunal and there's a 28 day time limit or peeling. So they must all feature in emergency Prohibition order and the provision relations, compensation, revocation, variation and forced governing. Normal orders must apply to emergency order that Section 43 subsection by. So what kind of noticed much you give if you're talking about a minister? Prohibition Orders session 239 notices there quietly. 24 hours Notice of intention to inspect to be first given to owners and occupiers. Whether inspection is in relation to a session. Property for housing, health and safety Rated sister just for clarification. Session 239 Notice Also relation relates to other potential causes of action, which may be taken by authority, not strictly just prohibition orders. But it is really important that you do serve these notices and make it clear when you intend to inspect and why you inspected in that section 239 to which sets that out. This is also set out guidance. A target 7.2. The notice should state particular purpose. Not many say it's a section 239 notice, because that means nothing to most people. It should include correspondence information as well, so that the owner or occupier knows who it is to contact. If they feel like this notice isn't right, they shouldn't. They want to repeat if in some on anyone more information as a state. In the case of the of the Mom With Shower County Council on that was in the residential property tribunal, a program by quote. It seems clear that parliament intended that the owner occupied to be given notice that they should could have turned to make representations, if necessary, across the potential gravity important powers in Arizona borough of Camden in 2007. Cargo the team, it was stated, the tribunal is also of the opinion that the purpose of Section 239 protection five there to give a mandatory warning to occupiers and owners often inspection as the opportunity to deal with it before inspection on the service off a notice. Therefore, if example, the days to time inspection is not convenient, Fiona and all the occupier the owner occupied does not know or who to contact. If there is no address, information or correspondence, information provided. So the this is it imported, not it might be that they may want to make representations. So what about authorization? Who? Conserve the notice it in the local authority? Well, if you look at slide 11 that deals briefly with point where there is a delegation authority, which is most common in cases where there are counts concerned like this, it must be lawful on almost local councils Constitution to determine whether the person who has signed the notice has authority to do so in the constitution. Section 243 requires that the authorization is given by adopting chief officer than meaning possession to local government and housing. Out of 1989 the council cannot grant old organization because Section 101 local Corbyn After 1972 states subject to any express provision contained in this act or any act passed after its act on local authority, Mary arranged with discharge off any of their functions by committee or subcommittee or opt of the authority well by any other local authority. In other words, it's gonna be authorization. It has to be by adopting chief officer within the meaning of the 1989. We're not merely one delegated by somebody within the council that isn't within the decoration of Dr Chief Officer. There's no express provision in Section 243 that a Level 30 may range the discharge of any of the functions by committee, it's or committee or out of this authority or any other local authority. Section 243 only refers to deputy chief or chief officers. It doesn't refer such a one on one local woman after 1972 which it's likely broad roasted to where the authorization comes from. So there is nonetheless express reference. I could say to such in two of the 1989 Act, which defines adopted chief officer is so do not be mistaken. Social One of one I know you've probably come across a good deal of local authority work. It can be read in section 243 The concession Wanna one is known event subject to any express provision containing any act passed. Absolutely. Woman at 1972. In other words, there is no express provision setting out how and who in a local party charges and local authorities functions that you want when water one cannot be invoked. Lied on implied When bird Section 243 has an express provision expressly states W chief officer, so be contradictory to the plenary sentences. Section one on one. If, despite Men Express to clear that authorisation lies only with the Dutch chief officer was actually wanna want to be read into Section 243 so being expressing fears, it is Section 4 to 43 years. Any scope for local authorities delegated functions to committees, committees or officers. In case you're wondering. The case of Malcolm Greeley on the London Bora Off Lumbers, which was heard in November 2017 on judgment kind of dining February 2018 is a perfect example of where this all played out as a matter of law. Now it's a case that I are said to be a parent. So in addition, adapts, chief officer is defined also such into eight as a surge of the local government act and housing at 1989 hours. So jumped the fine provisions of this section. A person who at respects or most of the duties off his post. It requires reports directly or is directly accountable. Do one or more of the statutory or non start treaty prophecies. Some of you might be familiar with section 33 of the House, not 2004. You'll see that it's like 12. This is essentially a potential backdoor route to possession in Rome cat cases. So do be aware of this. The case of Marco Greeley was example of that, Um, what section? 33 years is that Where there's a professional do made was doing to section 33 of the house in 2000 2000 and four. The factors such orders is that it doesn't need to rent out protection cars. Essentially, the talent needs to leave, not the work to be facilitated. So you lose your Tanya. So the real of the rent out protection able to handle to recover possession on the basis that the totality of being reduced to effectively contract with tenancy the Tennessee will still be terminated. Unusual way really by nose to quit when a tendency is periodic, landlord will need to obtain a court order for possession. If this happens, the defendant who depicted in these circumstances may apply to be rehoused by local authority onto the Land Compensation Act 1973 Section 39 Warm. Your authority has a duty to secure that the former tenant will be provided with suitable alternative accommodation on reasonable terms. A displaced talent as a defendant might be their production pretty brought on the basis of their being serves Prohibition order. We're also being title claiming home loss payment the authority pursuant to the Rent Act 1977 Section 29 on Landlord can only obtain possession case of rent out tenants occasionally, you know, for example, by Section one of the ground set out in section 98 on schedule 15 to the act we see slide 13 to that ourself story Already stated a period of tenancy must come to an end in one of the ways prescribed common law, for example, notice to quit Pakistan's being a rental. Tenancy is one of them. The same rules applied, protected talent sees that other tendencies. So once the protected or contractual tenancy has being determined, however, then if and so long as the 10 occupies Dwelling House as his or her residents, they shall be a statutory tenant obsession to one of the act all the time. So you must have Bean re previously protected and made it before it determined Section one. I do the case of starting Brackett 1951. Uh, William One Kings Branch division Place to 648. The tenant must substantially use the premises is his residence. However, you can look a case of Skinner and Greek Geary in 1931. Uh, going to King spent two billion page 546. The occupation as a residence must be continual started tendency to arise into continue. So unlike the Housing Act, 1988 didn't need not occupied premises as his or her own. It's only or principal residents. This means that a tenant can occupy more than one property as his home. Please see the case of Langford Property and Co. And Chairman. That's night of 49.1 King's Bench division Page 29. Breath from Mrs Most, however, uses a home in order to obtain protection and not merely be a place. Use when convenience arises and only rally. BC coast exacting Cohen 19 58 172 States Cause after painted 371 Unfortunately, this means that the cost increases such as Prohibition, order cases the property is not habitable. It can't be used as a home quote. Well, switch from going so it can be possible to state that it is occupied. You know Spotify, the quiet off quote living there. So Sachin 98 1 which you'll see a slight 14 provides that the court may make an order possession of the court to satisfied by suitable alternative combinations available and takes effect. The burden of showing that suitable accommodation is or will be available is on the land to the case of Norman Hardie in 1921.1 chance division. Although it does raise a prime facia case, the burden will shift to the talent makes the Murray 1946 Estates Got that division. States got that about 208. The discretionary grounds, other than suitable accommodation, are set out in part one share to a 15 of the house and out of Gaza. So if the claimant it'll successful under section 33 of the House after 1000 Bull, then they may attempt to allow in Case three I ain't deterioration the condition off blown house to be rid off a rent a tenant. So in relation to discretion grounds that caught my only make an order says it's reasonable to do so at either they're suitable alternative accommodation available or ground under part one or shuttle. Do satisfied. And there are two ways of establishing two for alternative accommodation provided for by part for our schedule. 15. The first is to obtain a local authorities tip cut that it will provide a suitable alternative accommodation. This is Brennan like tapping in practice, however, because of the pressures on the lists. On the second kiss, a landlord a prayer alternative. Beautiful accommodation can be provided or will be provided by satisfying certain requirements. Burst the first Nice security Tanya. The alternate accommodation must be left on a protected tenancy of some other type of Tennessee provides reason. The equivalent security Kenya. Second is requirements that relates to premises themselves the conditions, which must be satisfied that the accommodation must be reason suitable to the needs of the talent in his or her family. As regards approximate of your place of work and either a similar as regards rental and extent to accommodation fortified bone houses provided the neighborhood by any housing authority capacities needs as regards extent or, in the opinion, the court timina. So is the 10 turned off her family well, really suitable to the means of the tenant. That's the needs of the tentative and or his family as regards extent in character that if any French was provided for use under the protected or started tempting question, birches provided for use in the accommodation which is similar to that or provided or is really suitable to the needs off the talent on his family. Bluesy slide 15 for a brief briefs and opposites are the discretionary grounds. Reason why make references does is because Section 33 means that if there is a prohibition order that is served in a rent activity case, you will lose your security of tenure. But that is not the end of the world, because it might be that it that it unsuccessful there are discretion counted. There were anyway, i e. There is a deterioration the property president to leave and that had a quote with a choke op. Whether that's awesome, discretion was not that alternative. Suitable accommodation. But again, such of this tree is a backdoor. Routes get possession if you are ramped up tenant. So it might be if you run up tenant, you could allow somebody into the property to do repairs of a period of time. Rather, wait until the properties in such a bad state that you won't run the risk of Prohibition. Order seeking Teoh kick you out while by inches security of tenure. And I not only return on a contract with times basis or provided accommodation elsewhere, which is not necessarily a rent up tendency, so do be aware of that. In the case of Malcolm Greeley, that was one such case where he was a rent a tenant. You've been rent up down in war countless number of years on the property was in a state of disrepair. There's a question Mark was not. It should be a prohibition. Order improving nights to something else. You know, we ran walls. It shouldn't be a prohibition order. The words could be doing around him were happy words. We don't around him. We passed the locations around him. Improve a nice would be more appropriate gross margin. It's about authorization, any event for science section to notice. But it all turned on the fact that there had been no to quit. Section 33 that was not possible would be denied upon. And that was what sparked the appeal that was made by him. Malcolm Greedy is a tenant. Please take me to slide 16. It's actually fortify the house at 2004. There's a Roger Peels Residential Property tribunal against decisions to take enforcement action, but normally sits by the owner. But by no means confined to that. As a case of Malcolm really demonstrates, talents can also bring appealed on the appeal process. Relation to return it is set out. Also, such aborted by it will be planning to such into the nineties and on your friend the tenant will man or such owner has 28 days after that order. The Prohibition order has been made to appeal to the acting Tea Party chamber to give you an idea, I think in my hearing that I dealt with it lasted from especially property from, I think telescope morning writing by three to be heard, tribunal submissions and witness evidence being concluded. A six with no judgement. Anything better since submissions on some points to the organization. You're not trying. You know, hearing that was evidence had by turning himself not greedy about how he felt about the repairs, but they could be doing with him in the property. Oh, no. How he felt about that after the guidance, but also through the environmental health officer was cross examined. Well, to how he decided why Admitted provisional inappropriate. What has a square and wild how I arrived at high school. Did you use the correct procedure, Regulation six, But also the person of him who delegated that function to him. I signed up to 39 nighties and whether she has dark pedal authorization. So it was an interesting case. You may find that in these cases I don't just think about prohibition orders. What are they? Is it Kathy? One has it all, not. You Also need to think about the procedural elements is well with these cases because there are groups that local parties to jump through. If you are that of authority out there will represent. Local authorities are listening to this. Do you bear in mind those procedural steps? Authorization delegation? Look at what the Constitution says of the council. Look at that suit protection to 39 notice. Is it ballot really important? Consideration? Because that's enough to turn case when it's had What do you hope? You found that useful. I know it's quite a lucky one, but it's because it's quite a uninterested area. Um, it's probably had to become more prevalent because there are more. More. Builders are old, dilapidated or needing renovation, especially with non done on big major cities. Alignment. So this might be called more more common uncertainly as people become more and more aware of their environmental health rights, which is essentially what this is. This is full of down to what actually is she was living or not. Um, so thank you very much. We listen to this webinar