Smoke and carbon monoxide statement of principles

Statement of principles for determining financial penalties.

Introduction

This statement sets out the principles that Leeds City Council (the council) will apply in exercising its powers to require a relevant landlord (landlord) to pay a financial penalty.

Purpose of the statement of principles

The council is required under these Regulations to prepare and publish a statement of principles and it must follow this guide when deciding on the amount of a penalty charge.

The council may revise its statement of principles at any time, but where it does so, it must publish a revised statement. This statement of principles has been amended to reflect additional requirements introduced by The Smoke and Carbon Monoxide (Amendment) Regulations 2022.

When deciding on the amount for the penalty charge, the council will have regard to the statement of principles published at the time when the breach in question occurred.

The legal framework

The powers come from the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 (the Regulations) which came into force on 1 October 2015. The Smoke and Carbon Monoxide (Amendment) Regulations 2022 amended these Regulations and came into force on 1 October 2022.

Duties of relevant landlords

The Regulations place a duty on all social and private landlords, which include freeholders or leaseholders who have created a tenancy, lease, licence, sub-lease or sub-licence, other than those explicitly excluded in the Schedule to the Regulations.

On or after 1 October 2022, when the premises are occupied under the tenancy, the relevant landlord shall:

1. Ensure at least one smoke alarm is equipped on each storey of the premises where there is a room used as living accommodation.
2. Ensure a carbon monoxide alarm is equipped in any room used as living accommodation which contains a fixed combustion appliance (excluding gas cookers).
3. Ensure smoke alarms and carbon monoxide alarms are repaired or replaced once informed and found that they are faulty as soon as reasonably practicable.
4. Make checks by or on behalf of the landlord to ensure that each smoke and carbon monoxide alarm is in proper working order on the day the tenancy begins if it is a new tenancy (granted on or after 1 October 2022).

Properties licenced under Part 2 (HMOs) or Part 3 (selective licensing) are exempt from Parts 1 to 5 of the Regulations (relating to the enforcement of the Regulations) because the Regulations require the above duties to be incorporated as a licence condition in those properties. Enforcement of the above duties under licenced properties will therefore be pursued through compliance with licence conditions.

Enforcement

Where the council has reasonable grounds to believe that a landlord is in breach of one or more of the above duties, the council must serve a remedial notice on the landlord within 21 days. The Regulations do not require the local housing authority to enter the property or prove noncompliance to issue a remedial notice.

The remedial notice will detail the actions the landlord must take to comply with the Regulations. The landlord has 28 days to comply with the notice.

The landlord is entitled to make written representations to the council in response to the remedial notice within 28 days of it being served. The council must consider any representations and inform the landlord in writing whether they confirm (with or without amendment) or withdraw the remedial notice.

If the remedial notice is confirmed, the notice is no longer suspended, and the landlord must comply with the requirements of the notice within 21 days beginning with the day the landlord is informed that the remedial notice is no longer suspended.

The council must confirm the remedial notice in writing within 7 days of the expiry of the original period for making representations (28 days). The remedial notice will be deemed to be withdrawn if the council fails to inform the relevant landlord within the 7-day period.

Leeds City Council will impose a penalty charge where it is satisfied, on the balance of probabilities, that the landlord has not complied with the action specified in the remedial notice within the required timescale. The penalty will not exceed £5,000.

If the notice has not been complied with the council will arrange for the remedial action specified in the notice to be taken in addition to imposing a financial penalty on the landlord.

A landlord will not be considered to be in breach of their duty to comply with the remedial notice, if they can demonstrate they have taken all reasonable steps to comply.

The purpose of imposing a financial penalty

The purpose of the council exercising its regulatory powers is to protect the interests of the public.

The aims of financial penalties on landlords are to:

• lower the risk to tenant's health and safety
• reimburse the costs incurred by the council in arranging remedial action in default of the landlord
• change the behaviour of the landlord and aim to prevent future non-compliance
• penalise the landlord for not installing alarms after being required to so, under notice
• eliminate financial gain or benefit from non-compliance with the Regulations
• be proportionate to potential harm outcomes, the nature of the breach, and the cost benefit to comply with these legal requirements

Criteria for the imposition of a financial penalty

A failure to comply with the requirements of a remedial notice allows the council to require payment of a penalty charge.

In considering the imposition of a penalty, the authority will look at the evidence concerning the breach of the requirement of the notice. This could be obtained from a property inspection, or from information provided by the tenant or agent that no remedial action had been undertaken.

For example, landlords can demonstrate compliance with the Regulations by supplying dated photographs of alarms, together with installation records or confirmation by the tenant that a system is in proper working order.

Landlords need to take steps to demonstrate that they have met the testing at the start of the tenancy requirements. Examples of how this can be achieved are by tenants signing an inventory form and that they were tested and were in working order at the start of the tenancy. Tenancy agreements can specify the frequency that a tenant should test the alarm to ensure it is in proper working order. Additionally, they should record any tests made by or on behalf of the landlord throughout the tenancy, as well as any recording any response made to reports made by the tenant that the alarms require repair or replacement.

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 charge will be considered appropriate if the council is satisfied, on the balance of probabilities, that the landlord who had been served with remedial notice under Regulation 5 had failed to take the remedial action specified in the notice within the time period specified.

Criteria for determining the amount of a financial penalty

The Regulations state the amount of the penalty charge must not exceed £5,000.

The penalty charge comprises two parts, a punitive element for failure to comply with the absolute requirement to comply with a remedial notice and a cost element relating to the investigative costs, officer time, administration and any remedial works arranged and carried out by the council's contractors.

The penalty charge is payable within 29 days beginning with the day on which the penalty charge notice is served.

The council has discretion to offer an early payment reduction if a landlord pays the penalty charge within 14 days beginning with the day the penalty charge notice is served.

The charges are as follows:

Review and appeals

If a landlord does not agree with a penalty charge notice, they can make a request to the council for it to be reviewed. This request must be made in writing and within 29 days, as per the time period specified in the penalty charge notice.

After receiving a request for a review, the council must consider any representations made by the landlord, decide whether to confirm, vary or withdraw the notice, and serve a notice of its decision on the landlord. Where the council decides to confirm or vary a penalty charge notice, the landlord will be informed that they can appeal to First-tier Tribunal. Appeals should be made within 28 days from the notice served of the council's decision on review.

Recovery of penalty charge

The council may recover the penalty charge as laid out in the Regulations. Any unpaid penalty charge shall be pursued for payment.

If the penalty charge notice is not paid, then recovery of the penalty charge will by an order of the court and proceedings for recovery will commence after 30 days from the date when the penalty charge notice is served.

However, in cases where a landlord has requested a review of the penalty charge notice, recovery will not commence until after 29 days from the date of the notice served giving the council's decision to vary or confirm the penalty charge notice. Where landlords do make an appeal to the First-tier Tribunal, recovery will commence after 29 days from when the appeal is finally determined or withdrawn.

Remedial action taken in default of the landlord

If the notice has not been complied with the council will arrange for the remedial action specified in the notice to be taken in addition to imposing a financial penalty on the landlord.

This work in default will be undertaken within 28 days of the council being satisfied of the breach and where the occupier consents. In these circumstances, battery operated alarms will be installed as a quick and immediate response.

Smoke alarms – In order to comply with these Regulations, smoke alarms will be installed at every storey of residential accommodation. This may provide only a temporary solution as the property may be high risk because of:

• its mode of occupancy such as a house in multiple occupation or building converted into one or more flats,
• having an unsafe internal layout where fire escape routes pass through a living rooms or kitchens, or
• is 3 or more storeys high

A full fire risk assessment will subsequently be undertaken, with regards to Leeds City Council Fire Safety Principles and LACORS Housing - fire safety guidance. This will consider the adequacy of the type and coverage of the smoke alarm system, fire escape routes including escape windows and fire separation measures such as fire doors and protected walls and ceilings. Any further works required to address serious fire safety hazards in residential property, that are not undertaken though informal agreement, will be enforced using the Housing Act 2004, in accordance with the council's Enforcement Policy.

Carbon monoxide alarms – In order to comply with these Regulations, a carbon monoxide alarm will be installed in every room containing a fixed combustion appliance (excluding gas cooker).