Wealden District Council
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Private Sector Housing Enforcement Policy 2019

  1. Introduction
  2. Aims and principles of the enforcement policy
  3. Role of the Council in dealing with private sector housing
  4. Legislation
  5. Enforcement procedure
  6. Levels of enforcement action
  7. Sanctions for non-Compliance
  8. Empty dwellings
  9. Houses in multiple occupation (HMOs)
  10. Charges for enforcement action
  11. Other enforcement actions
  12. Confidentiality
  13. Complaints or appeal against enforcement action 

Schedule 1 – Summary of housing legislation

Schedule 2 – Smoke and carbon Monoxide alarm (England) regulation 2015 statement of principles

Wealden District Council is committed to improving standards in private sector housing, bringing empty properties back into use and ensuring that all privately rented accommodation is well managed, properly maintained, safe and habitable.


Although Wealden has some excellent landlords and letting agents, the Council has a vital role to play in tackling criminal, rogue and irresponsible landlords and preventing them from profiting from their non-compliance. We believe that prevention is better than cure and that our role therefore involves actively working with landlords and businesses, to advise on and assist with compliance.

In order to regulate private sector housing, the Council’s Private Sector Housing Team will conduct property inspections, routinely respond to requests for visits and investigate complaints of disrepair together with other teams from within Wealden District Council, including Housing Options, Housing Benefit, Planning and Audit. The team will request information, carry out inspections, process licence applications, bring empty properties back into use, encourage and promote good practice, provide owners and landlords with advice and information, investigate possible offences and, where appropriate, take enforcement action and prosecute offenders.

Wealden District Council will ensure that all appointed officers are suitably trained and qualified to ensure that they are fully competent to undertake their enforcement activity

The overall aim of the policy is to raise standards in the private sector housing stock. This benefits the health and wellbeing of Wealden’s residents and helps maintain the housing stock for future generations.

The principles of the Private Sector Housing Enforcement Policy are to ensure that:

  • Tenants of private landlords and registered providers of social housing live in homes that are free of unacceptable hazards and risks to their health and safety
  • All Houses in Multiple Occupation are safe, well managed and all relevant Management Regulations are adhered to
  • All licensable Houses in Multiple Occupation are licensed and all licensing conditions are met
  • Private housing is not left empty for an unreasonable amount of time and/or becomes an eyesore, unsafe or a nuisance to neighbouring properties
  • The Council meets its statutory obligations in relation to private housing

This policy sets out to ensure the Council undertakes its housing enforcement role in a consistent, practical, open and transparent manner. Any enforcement action will be compliant with relevant legislation and guidelines in line with the principles of good enforcement action outlined in the regulators compliance code.

Principles underpinning the Enforcement Action activity are:

  • Targeted – Enforcement action will target the properties and people that pose the greatest risk, including the owners and landlords that evade licensing and regulation, and those whose properties cause a nuisance or put people’s health and safety at
  • Proportionate – Enforcement action will be proportionate and reflect the nature, scale and seriousness of any breach or non-compliance.
  • Fair and objective – Enforcement action will be based on the individual circumstances of the case, taking all available facts into Officers will carry out investigations with a balanced and open mind.
  • Transparent – Enforcement action will be undertaken in accordance with clearly defined policies and All communications will be easy to understand, with clear reasons being given for any enforcement action taken.
  • Consistent – Enforcement action will be undertaken and monitored to ensure consistency in the interpretation and enforcement of legislation, work with other regulatory agencies and to share and develop good
  • Accountable – Enforcement action will be undertaken in a responsible manner that has a clear purpose. Where appropriate, the Private Sector Housing Team will work closely with landlords, tenants and other stakeholders that have an interest in private sector

The main functions the Private Sector Housing team undertakes to enforce and regulate relevant legislation and regulations are:

  • Complaints: Council officers will respond to complaints from tenants and other residents regarding problem private properties or registered social housing
  • Inspections: Where there is a statutory duty to do so, or in cases where the local authority considers that it is appropriate, an inspection will be conducted by This may include requests from other statutory bodies or teams within the Council.
  • Assessing hazards: Using the Housing Health and Safety Rating System (HHSRS) Officers will assess the likelihood of a property to cause a hazard to A range of enforcement powers are available under the Housing Act 2004 to remove or reduce any hazards identified to an acceptable level.

Leading to action in respect of:

  • Houses in Multiple Occupation (HMOs): HMOs are houses in which the occupants share Officers will inspect HMOs to ensure they meet health and safety requirements.
  • Mandatory HMO licensing: Current legislation requires HMOs to be licensed which have five or more occupants comprising of two or more family units, who share basic amenities such as washing and cooking facilities. . The Council will take steps to ensure that properties that require a licence are licensed and take enforcement action against landlords of unlicensed
  • Empty properties: Properties which remain empty for long periods of time can attract vandalism, crime, and other problems affecting the whole community. The Private Sector Housing Team will work to provide assistance to owners of empty properties to bring them back into use.
  • Overcrowding: When we identify severe cases of overcrowding we will work with the Council’s Housing Options team to ensure customers receive advice and assistance regarding rehousing. Unlike other hazards formal enforcement action may not bring about the most appropriate solution to the housing
  • Rogue landlords: The Government has introduced a number of initiatives to crack down on landlords who knowingly flout their obligations by renting out unsafe and substandard accommodation to These include protections for tenants against “retaliatory eviction”, Banning Orders and civil penalties. The Council will use these initiatives to tackle rogue landlords in the District.
  • Smoke and Carbon Monoxide alarms: Private sector landlords are required to have at least one smoke alarm installed on every storey of their properties and a carbon monoxide alarm in any room containing a solid fuel burning The requirements will be enforced by local authorities who can impose a fine of up to £5,000 where a landlord fails to comply with a remedial notice.

The principal piece of legislation to be used is the Housing Act 2004 and the regulations made thereunder. However, there are circumstances where other pieces of legislation may be more appropriate in dealing with the identified problem such as specific regulations. Officers will be expected to use professional judgement to determine the most appropriate piece of legislation to use.

A summary of the housing legislation currently available is detailed in Schedule 1.

Primarily the assessment of housing conditions will be carried out using the Housing Health and Safety Rating System (HHSRS) as set out in the Housing Act 2004. This is a risk based evaluation tool used to identify and protect against risks and hazards to health and safety from deficiencies identified in dwellings. The HHSRS is based on statistical evidence relating to the likelihood and outcome of the occurrence of 29 different hazards. The assessment method results in a score for each relevant hazard which falls within one of two categories:

  • Category 1 hazards – these represent a serious hazard to health and the Council has a duty to take appropriate action
  • Category 2 hazards – these represent a lesser hazard to health and the Council has a discretionary power to take

The range of enforcement matters dealt with by the Council in this policy area is such that there may well be occasions when there is a need to work with other agencies, for example the Fire Authority or the Health and Safety Executive, by carrying out joint inspections.

Before considering any action in respect of a tenanted property, the tenant(s) will normally be expected to have first contacted their landlord or managing agent about the problem. This applies to both private and social housing tenants. Legislation covering landlord and tenant issues requires that tenants notify their landlords of any problems with the property. This is because landlords can only carry out their obligations under the legislation once they have been made aware of a problem. Copies of any correspondence between landlord and tenant, unless confidential, may be required before any action is taken.

There are some circumstances in which this prior contact may not be appropriate, for example:

  • Where the matter appears to present an imminent risk to the health and safety of the occupants;
  • Where there is a history of harassment, threatened eviction or poor management;
  • Where the tenant is old and frail or otherwise vulnerable;
  • Where the tenant’s first language is not English and this is likely to cause difficulty in communicating with the landlord;
  • Where the tenant could not for some other reason be expected to contact their landlord/managing

In these (or other similar) situations, officers may proceed directly with enforcement action.

5.1   Powers of Entry

An authorised officer may enter the premises in question at any reasonable time for the purpose of carrying out a survey or examination of the premises.

However they must have given at least 24 hours’ notice of their intention to do so:

  • to the owner of the premises (if known), and
  • to the occupier (if any).

If access is not successful, or if giving prior warning of entry is likely to defeat the purpose for the entry, then the local authority can obtain a warrant from a Justice of the Peace to provide for the power of entry by force if necessary.

5.2   Power to require information

Private Sector Housing officers have the power to require:

  • documents to be provided under s235 of the Housing Act 2004 to enable them to carry out their powers and duties and including investigating whether any offence has been committed;
  • electrical and gas safety certificates to be provided in relation to Houses in Multiple Occupation under s234 of the Housing Act 2004;
  • any person with an interest in a property to provide details about its ownership or occupation under Section 16 of the Local Government (Miscellaneous Provisions) Act 1976.

It is an offence not to produce the required information as requested. The Council also has the power to:

  • obtain and use Housing Benefit and Council Tax information under Section 237 of the Housing Act 2004; and
  • request and use tenancy deposit information under Section 212A of the Housing Act 2004.

5.3   Enforcement against owner-occupiers

It should be noted that the legislation applies equally to any dwelling whether it is owner occupied, privately rented or rented from a Registered Social Landlord or Charitable Body.

The service of statutory notices and orders and the carrying out of emergency works will normally only be considered where the condition of an owner-occupied property is such that:-

  • It is a danger or a serious health risk to the occupier or members of the public,


  • It is having a deleterious effect on adjoining properties

5.4   Situations where the Council service may not be provided

Where any of the following situations arise, consideration will be given to not providing or cease to provide a service:

  • Where the tenant(s) unreasonably refuse access to the landlord, managing agent or landlord’s builder or engineer, to arrange or carry out works
  • Where the tenant(s) have, in the opinion of the Council, clearly caused the damage to the property they are complaining about, and there are no other items of disrepair
  • Where the tenant’s only reason for contacting the Private Housing Team, in the opinion of the Council, is in order to pursue a higher banding with Sussex Homemove, the Council’s Housing Register. The Council will aim to bring their present accommodation up to standard as a first priority
  • Where the tenant(s) have requested a service and then failed to keep an appointment and not responded to a follow-up letter or appointment card
  • Where the tenant(s) have been aggressive, threatening, verbally or physically abusive towards Officers
  • Where there is found to be no justification for the complaint, on visiting the property
  • Where the tenant unreasonably refuses to provide the Council with relevant documentation

The actions available to improve the standards of private sector housing are broadly divided into 2 categories:

  • Informal Action
  • Formal Action

6.1   Informal Action

The first aim is to improve the housing conditions in the private sector by use of advice and education.

Informal action, that is verbal advice, requests or warnings, or letters and inspection reports, can be used when:

  • the breach is not of a serious nature
  • past experience has shown that such action will be effective
  • there is not a significant risk to the safety or health of the occupant (or the public)
  • informal action will be more effective and/or quicker than formal action
  • there is confidence in the manager/owner

When undertaking enforcement action, officers will be expected to follow the principles of the Enforcement Concordat, which encourages openness, proportionality and consistency. In order to achieve this, Officers will be expected to be transparent in the way they have made decisions by keeping clear records and file notes. All remedial work that is required must be sufficient to remove any risks but not so excessive as to be burdensome. Officers giving verbal or written advice will always clearly differentiate between those items, which are legal requirements, and those that are recommended as good practice.

In order to satisfy these principles it is expected that officers in the first instance will make informal contact with the person responsible for the property containing the hazard. It is anticipated that in many cases an informal approach will achieve the desired outcomes.

However, informal action cannot be allowed to continue indefinitely and there must be a limit attached to the informal action. This is to ensure that there is not scope for further delays to works that are likely to be time intensive. Therefore, a response should be required within 28 days of the date of the first letter. If a response is received and a timescale for completion of the works is agreed then it may not be necessary to serve a legal notice.

If remedial works have not been completed in the agreed time, then consideration will be given to the service of a notice within reasonable timescales.

The delays incorporated within the informal approach are satisfactory where there is not a high risk or the agreed times are short, but where there is a serious hazard or this procedure provides for unacceptable delay, a notice should be served as soon as possible. A Requisition for Information under the Local Government (Miscellaneous Provisions) Act 1976 would be served at this point to establish ownership.

The officer will be required to use discretion on this matter but will be expected to be fully accountable for the decision and make detailed file notes justifying any time delays.

6.2   Formal action

Immediate action:

This includes the power to take emergency action by entry to premises, if necessary, and making safe areas or articles which are a cause of imminent danger of serious harm.

Sufficient information should be obtained at first contact to decide whether a visit is required within 24 hours. This would only occur where there is imminent risk of severe danger/damage for example unsafe or dangerous gas or heating appliances, risk from falling building elements, severe water penetration affecting use of essential rooms e.g. bedrooms, electric shock, failure of the gas/water/fuel supply due to disrepair.

In such cases it may be appropriate to commence formal/emergency enforcement immediately. Emergency measures include Emergency Remedial Action or service of an Emergency Prohibition Order.

Decision to take enforcement action

Enforcement will normally progress from advice to formal enforcement.

An inspection of a property must be carried out and the deficiencies noted. A Notice of Entry will be served under Section 239 of the Housing Act 2004 for this purpose. As the principal piece of legislation, the Housing Act 2004 will be considered to assess whether there are category 1 or category 2 hazards as determined by the Housing, Health and Safety Rating System (HHSRS) within the property. Having made this assessment, dependent on the problems within the property, consideration will be given to the most appropriate course of action to reduce the hazards to an acceptable level. Appropriate and comprehensive file notes, photographs and measurements must be made.

The most appropriate legislation must be identified for dealing with the hazard. Only where the Housing Act 2004 is not appropriate should other legislation be considered.

Consideration must also be given to whether consultation is required with other enforcing bodies. In particular where the hazard of fire is identified there is a duty to consult with the Fire Authority as prescribed under section 10 of the 2004 Act. Other bodies such as the Police, Social Services and the Health and Safety Executive may need to be contacted or other departments within the Council such as Public Health, Planning and Building Control and the Housing Options Team.

Regard must also be had to other schemes that are available to assist with housing repairs. Tenants, homeowners and landlords may be able to access a number of grants and loan schemes, which may negate the need for formal action to be taken.

However, where the offer of grant has been made through any schemes including Energy Efficiency funding schemes, and the landlord or owner subsequently refuses any offers of assistance, it may be necessary to pursue enforcement action.

Not more than one course of action can be taken at a time for the same hazard (unless it is an emergency action) but alternative action can follow if one of the actions taken has proved unsuccessful. Emergency procedures cannot be used for category 2 hazards.

Section 8 Statement of reasons

Under section 8 of the Housing Act 2004, a statement must be prepared detailing which notice provisions are being considered. The statement must also include why the other options have been discounted at this stage. In making these decisions regard must be had to:

  • the seriousness of the situation and the imminent risk to health and safety,
  • the type of hazard and whether it is a priority or target hazard
  • the current occupation and the impact the decision may have on the social exclusion of certain groups of people,
  • the turnover of tenants or occupants to the property,
  • the management of the property,
  • the occupants views including the risk that their tenancy will be terminated because of action by the local Authority
  • the owners views and the mortgagors views
  • the number of hazards within the property and whether they are category 1 or category
  • the enforcement policy and procedures, the private sector housing strategy and housing
  • the decent homes standard

Where there are only category 2 hazards consideration must be given to the overall effect of the multiple hazards and whether they are indicative of a rundown property.

Once a decision has been made the appropriate notice procedure must be followed. When taking any form of action a covering letter and the statement of reasons under section 8 must also accompany the notice and the schedule of works.

6.3   Priorities

The Housing Act 2004 and subsequent HHSRS Regulations 2005 have identified a number of hazard categories that have been found within the home. There are 29 hazards that arise from disrepair, lack of maintenance or poor design. The health effect from these hazards range from death to mental stress and the HHSRS provides the opportunity to compare unrelated hazards such as fire with other hazards such as damp and mould growth. This is done through the calculation of a hazard score. The higher the score the higher the risk posed by the hazard.

This enforcement policy sets the following prioritisation scheme for dealing with hazards. This will be subject to regular review. The principal behind this is detailed below:

  • All category 1 hazards will be dealt with as a priority over category 2
  • Where there are multiple category 1 hazards, those with the highest scores will be a priority over the lower
  • Where there are category 2 hazards, the higher scored category 2 hazards will be dealt with first, unless target hazards have been identified in the
  • Where an officer has identified deficiencies and felt it necessary to hazard-rate them, even if the result is a low category 2 hazard, the officer must consider at the very least offering advice, or if appropriate serve a hazard awareness notice. Where the hazard is a target hazard, any necessary remedial works should be considered.

6.1   Target hazards

Previous private sector stock condition surveys have identified a number of hazards, relevant within the housing stock, which it is considered appropriate to target where they fall within a category two hazard.

These are:

Damp and mould growth Excess cold

Falling on level surfaces Falls on stairs

Falls between levels Fire

Food safety

Personal hygiene, sanitation and drainage

There is also empirical data that non-mains sewage systems are also a cause of complaint.

6.2   Level of remedial works required

As a minimum, category 1 hazards must be reduced to a low category 2.

Where this is not possible all reasonable steps must be taken to reduce the hazards as far as reasonably practicable. In some cases, such as listed buildings, category 1 hazards may remain. This scenario should have been considered when deciding which course of action is most appropriate and may influence the officer’s decision as to which type of enforcement action to take.

Target hazards should be improved to the ideal where this is possible and reasonable to do so.

When deciding on the remedial works, regard must be had to the seriousness of the hazard, the ideal that the property should achieve, and the level of work required that is reasonable to reduce the hazard significantly without incurring excessive cost.

For the hazard of fire, where the property is an HMO, section 10 of the Housing Act 2004 states that the local housing authority must consult with the Fire Authority before taking any action and deciding on the remedial works. A working protocol has been developed in partnership with all the local authorities in East Sussex, including Brighton and Hove City Council and East Sussex Fire and Rescue Service to ensure that this process does not become burdensome.

6.3   Appeals

All correspondence and notices must detail the appeal procedure for the action being taken. This is slightly different for each notice/order and care should be taken to ensure the correct information is included.

Appeals are generally made to the Residential Property Tribunal (RPT). The intention is that the tribunal will be able to make a decision based on paperwork and statements supplied by both parties. On occasion a hearing will be held where both parties must present their cases. There is no requirement for legal representation. The RPT may request to visit the property in question.

This includes the use of statutory (legal) notices, simple cautions, civil penalties, prosecution and works in default. Such action will normally be taken when informal action has failed to achieve a satisfactory resolution and in instances where there is a failure to comply with a notice within the specified time period or there is a subsequent breach of the regulations.

The decision to offer a formal caution, take a prosecution or issue a financial penalty is one that is not taken lightly. Officers recognise that their decision is significant and could have far reaching consequences upon the alleged offender and others.

7.1   Formal Cautions

Where someone has committed an offence or offences and fully accepts responsibility for the offence(s), Officers may offer a Formal Caution where the circumstances suit a Formal Caution rather than a Court case.

Formal Cautions may be considered where:

  • The defendant has admitted their guilt;
  • The defendant is aged 18 or over;
  • The defendant must understand the significance of the caution and agrees to be given a Formal Caution, and
  • Civil penalties are not appropriate or cannot be

In deciding to proceed with a caution regard is given to Home Office Circular 18/1994 – Cautioning of Offenders

If the defendant agrees to receive a Formal Caution, the Council will seek to recover the costs of the investigation as part of the Formal Caution process. If they do not agree to receive a Formal Caution, they will usually be alternative sanction.

7.2   Financial Penalties

Civil Penalties

Since 6 April 2017, local housing authorities have had the power to impose civil (financial) penalties of up to £30,000 on individuals and organisations as an alternative to prosecution, to use robustly as a way of clamping down on rogue landlords.

The Government recommends that the actual amount of financial penalty imposed should reflect the severity of the offence and consider the landlord’s previous record of offending.

The Housing and Planning Act 2016 section 126 and Schedule 9 enables the Council to impose a civil penalty as an alternative to prosecution for certain housing offences:

Section 30 – Failure to comply with an Improvement Notice Section 72 – Offences in relation to licensing of HMOs

Section 95 – Offences in relation to selective and additional licensing of houses under Part 3 of the Act

Section 139 – Offences of contravention of an overcrowding notice Section 234 – Failure to comply with HMO Management Regulations

Factors to be considered in deciding whether to issue a civil penalty instead of a prosecution are:

  • the nature and seriousness of the offence e. the scale and scope of the offence and the potential for harm
  • the culpability of the offender g. the attitude and history of the landlord
  • the circumstances of the tenant and the actual harm caused
  • impact on the wider community
  • whether a civil penalty is likely to act as a greater punishment or deterrent to the individual
  • whether the offender has admitted the offence
  • whether a Rent Repayment Order is to be sought
  • whether a Banning Order is to be sought

A financial penalty will only be considered in the circumstances set out above in respect of decisions to prosecute and where there is sufficient evidence to demonstrate beyond reasonable doubt that the offence has been committed.

The presumption will be in favour of prosecution for the most serious offences.

The decision on whether to use civil penalty powers and the level of penalty imposed will be made in accordance with the Council’s Private Sector Housing Civil Penalties Policy.

The Smoke and Carbon Monoxide Alarm (England) Regulations 2015

These regulations give a power to the authority to impose a financial penalty where a landlord has failed to comply with a Remedial Notice.

The Council has set that the maximum fixed penalty charge of £5000 is imposed where a landlord has failed to comply with a remedial notice, subject to a reduced early payment period discount of £500, and that the Statement of Principles attached at Schedule 2 will be followed in determining the penalty charge in each case.

Repayment Orders

A Rent Repayment Order is an order made by the First-tier Tribunal requiring a landlord to repay a specified amount of rent, capped at 12 months.

The Housing Act 2004 introduced Rent Repayment Orders to cover situations where the landlord of a property had failed to obtain a licence for a property that was required to be licensed, specifically offences in relation to licensing of HMOs.

Rent Repayment Orders have since been extended through the Housing and Planning Act 2016 to cover a much wider range of offences, described below:

  • Failure to comply with an Improvement Notice (under section 30 of the Housing Act 2004)
  • Failure to comply with a Prohibition Order (under section 32 of the Housing Act 2004)
  • Breach of a Banning Order made under section 21 of the Housing and Planning Act 2016 (from April 2018)
  • Using violence to secure entry to a property (under section 6 of the Criminal Law Act 1977)
  • Illegal eviction or harassment of the occupiers of a property (under section 1 of the Protection from Eviction Act 1977)

Rent Repayment Orders can be granted to either the tenant or the local housing authority. If the tenant paid their rent themselves, the rent must be repaid to the tenant. If rent was paid through Housing Benefit or through the housing element of Universal Credit, the rent must be repaid to the local housing authority.            If the rent was paid partially by the tenant with the remainder paid through Housing Benefit/Universal Credit, the rent would be repaid in equivalent proportions.

A Rent Repayment Order can be made against a landlord who has received a civil penalty in respect of an offence, but only at a time when there is no prospect of the landlord appealing against that penalty.

The Council must consider a Rent Repayment Order after a person is the subject of a successful civil penalty and in most cases the Council will subsequently make an application for a Rent Repayment Order to recover monies paid through Housing Benefit or through the housing element of Universal Credit.

The Council will also offer advice, guidance and support to assist tenants to apply for a Rent Repayment Order if the tenant has paid the rent themselves.

The Redress Scheme

The Redress Schemes for Lettings Agency Work and Property Management Work (Requirement to Belong to a Scheme etc) (England) Order 2014 introduced a requirement for letting agents and property managers to belong to an approved redress scheme. The redress scheme must be approved by Government or designated as a Government administered redress scheme.

Where the Council is aware of an offence, it is required to take enforcement action relating to activities undertaken within the district and may serve a Notice on the perpetrator requiring the payment of a monetary penalty of an amount determined by the Council.

The expectation in Government guidance is that a monetary penalty of £5,000 should be considered the norm and the penalty must not exceed this amount. A lower penalty should only be charged if the Council is satisfied there are extenuating circumstances.

The Council has set the penalty charge at £5,000 with the Head of Housing and Property Services authorised to vary the penalty when there are extenuating circumstances and upon receipt of written representations

7.3   Prosecution

Where there is a breach of a notice or an order the officer must investigate the offence and prepare the case for prosecution. This may involve interviewing relevant people under caution, following the relevant parts of the Police and Criminal Evidence Act 1984.

Where prosecution is likely, the person or company committing the offence will be invited to attend a taped interview in order to have the opportunity to express their reasons for the offence.

Where the responsible person does not turn up to the interview or is unable to attend, a maximum of two further attempts should be made to accommodate the interviewee.

It is not essential to carry out an interview, however, it is considered good practice to establish ‘reasonable excuse’ under caution before prosecution is pursued further.

The case will be presented to the Council’s legal department who will decide if the prosecution should be pursued.

In making this decision the legal department will have regard to the Code for Crown Prosecutors (Prosecutors employed by the Crown Prosecution Service). This is to ensure that fair and consistent decisions about prosecutions are made. Officers must also refer to this code when considering the merits of pursuing a prosecution.

The code of practice details two tests, which govern the decision-making process. A case must pass both tests to show that prosecution is appropriate. The two tests are described below.

The Evidential Test

The Prosecutor must be satisfied that there is enough evidence to provide a realistic prospect of conviction against each defendant on each charge. The defence case must be considered and how this is likely to affect the prosecution case.

The Prosecutor must consider whether the evidence is reliable and can be used.

The Public Interest Test

If the evidential requirements are met, Officers must then consider whether the public interest requires a prosecution. It is not the case that Officers will simply prosecute because an offence has been committed. There should generally be a public interest in bringing such an offence to Court.

Public interest factors that can affect the decision to prosecute usually depend on the seriousness of the offence or the circumstances of the offender. Some factors may increase the need to prosecute but others may suggest that another course of action would be more appropriate.

In considering the public interest to prosecute, the officer must decide how important each factor is and its relationship to the prosecution. They must then make an overall assessment based on the merits of each individual case.

7.4   Injunctive Actions

In certain circumstances, injunctive actions may be used to deal with repeat offenders and dangerous situations, or to prevent harassment or illegal evictions.

7.5   Works in default

The Council has been given powers under the Housing Act 2004 and other legislation to carry out works in default where a person has been required to do works by formal notice or order, but has failed to either start works or make adequate progress.

Works in default can be carried out instead of a prosecution or in addition to a prosecution or a civil penalty charge.

In deciding whether works in default is an option, the officer must consider the imminent risk to health and safety and whether undue delay would put the occupier, visitors or the public at increased risk. They must also consider whether there are finances in place to carry out the work and what the minimum works required would be to remove the risk.

Works in default cannot be carried out if, as a result of the action a second, different hazard will result. Any remedial works must be extensive enough to remove the hazard and leave the property in a safe condition.

This is a discretionary power.

Discussions will be required with Legal and Financial Services due to the cost implications of this procedure. Although it is anticipated that the cost of the works will be recovered, it is not guaranteed that this money will be paid back promptly.

It is proposed that works in default should be used where there is an imminent risk to health and safety and where the remedy is relatively easy to achieve. If it is to be used in other circumstances, full justification based on the merits of the case will be required.

It is also proposed that it should be used in conjunction with prosecution or a civil penalty charge where it is appropriate to do so. This would be dependent on the nature of the hazard but should be considered due to the delays often experienced during the prosecution procedure. The delays often result in the remedial action being postponed leaving the occupier living in unacceptable conditions.

7.6   Action by Agreement

The Housing Act 2004 also makes provision for remedial works to be carried out by agreement. This is where the local authority arranges for the works to be carried out at the request of the person responsible and they are then charged for the full cost. When it is carried out in default without agreement the local authority can recover expenses reasonably incurred plus interest.

In order to use this provision the officer must be confident that the cost of the works will be repaid in full once the work is complete.

If the costs incurred by works in default or by agreement cannot be paid they must be placed as a charge against the property. The Enforced Sale Procedure may then be used if considered appropriate.

7.7   Banning Orders

The Housing and Planning Act 2016 introduced a power for the first-tier tribunal to serve a Banning Order on a landlord or property agent. The order can only be made by the first-tier tribunal after a case is brought by the local authority.

The implications of a Banning Order are set out in s14(1) of the Act and prevent a person from:

  • letting housing in England;
  • engaging in English letting agency work;
  • engaging in English property management work; or
  • doing two or more of those

A Banning Order offence is an offence of a description specified in The Housing and Planning Act 2016 (Banning Order Offences) Regulations 2017.

The Council will only consider applying for a Banning Order where the evidence justifies this course of action and it is considered to be in the public interest to protect against rogue landlords.

7.8   Rogue Landlord Database

The national database allows local housing authorities in England to make and view entries made by other local housing authorities.

The Council has a duty to make an entry on the register where a Banning Order has been made and has discretion to make an entry where a person has been convicted of a Banning Order offence, but no Banning Order has been made or has received two or more civil penalties for Banning Order offences within a period of 12 months.

The Council will have regard to the statutory guidance made under Section 30(7) of the Housing and Planning Act 2016 in deciding whether to make an entry under section 30 (discretionary entries), and the specified period for which the entry will be maintained.

An empty property can impact on the quality of the local environment, creating a poor image of an area. It may lead to increased fear of crime, attract anti-social behaviour and make a place less attractive for local people to live in. It is acknowledged that each empty property is a wasted resource, particularly where there are limited opportunities for meeting housing needs in the area.

The Council will strive to work with owners of empty properties to bring them back into use through an informal approach in the first instance by offering assistance where appropriate. This may include advice, empty property loans and use of the rent deposit schemes.

In cases where a long-term empty property is not being brought back into use despite informal action, formal enforcement action may be considered including:

  • Service of Empty Dwelling Management Orders allowing the council to take over Management of the Property to facilitate it being brought back into use
  • Service of a section 11 or section 12 Housing Act 2004 Improvement Notice
  • Service of a section 215 Town and Country Planning Act 1990 notice to require proper maintenance of
  • Service of section 79 Building Act 1984 notice to remedy a building or structure which is seriously detrimental to the amenities of the
  • Service of a section 77 or section 78 notice under the Building Act 1984 where a building is dangerous, dilapidated or emergency works are required (section 78).
  • Service of a section 29 notice under the Local Government (Miscellaneous Provisions) Act 1982 to require works to prevent unauthorised
  • Service of a section 80 notice under the Environmental Protection Act 1990 to abate or prevent a statutory
  • Declaration of a Demolition Order under section 265 of the Housing Act 1985 or declaration of a Clearance Area under section 289 of the same
  • In some cases, other action can be considered including Compulsory Purchase Orders (CPO) and enforced sale to recover charges owed to the

As HMOs are higher risk than single family homes, the conditions, facilities and management are more closely regulated. Some HMOs are subject to mandatory HMO licensing.

Under the Housing and Planning Act 2016 the requirement for HMO licences were extended from the 1st October 2018 to all HMOs that are occupied by 5 or more persons forming more than one household who are sharing facilities.

Prospective HMO licence-holders must complete an application form, supply various documents and pay their licence fee. Inspections are usually undertaken as part of the application process but may happen at any time during the lifetime of the licence.

Licences are issued by the local authority and conditions may be attached to the licence (including the maximum permitted number of occupants and households that can occupy the property). Works may be required to meet minimum standards prior to the licence being issued. Licences are issued for up to a five-year period and a new licence must be applied for before the end of that period.

The HMO licensing regime includes arrangements for assessing the suitability of the premises for the number of occupants, including the adequacy of the amenities. It also provides for the assessment of the fitness of a person to be the licence holder and the potential management arrangements of the premises.

The Council charges for HMO licences. The charges are reviewed regularly and current fees are detailed on the Council’s website.

It is a criminal offence if a person controlling or managing an HMO does not have the required licence. Failure to comply with any condition attached to a licence is also an offence under section 72 of the Housing Act 2004. In cases where a licensable HMO property is found to be operating without a licence or licence conditions are not met, sanctions will be considered including financial penalty or prosecution.

Where a non-licensable HMO is being badly managed and/or is in a poor state of repair appropriate enforcement action will be considered primarily under the Housing Act 2004 or The Management of Houses in Multiple Occupation (England) Regulations 2006 and will be dealt with in accordance with the enforcement approach set out in the main body of this policy.

Local authorities have the power to make a reasonable charge as a means of recovering expenses incurred in serving of Statutory Notices under the Housing Act 2004.

It is the Council’s policy that a charge is made for the service of a notice or order under the Housing Act 2004, except for hazard awareness notices. Charges are determined on the basis of actual time spent by officers on the chargeable activities and the appropriate hourly rate for those officers. Charges will therefore be applied for the time spent on visiting the premises following service of notice of entry, considering what action to take, drafting the notice and administration costs in serving the notice and payments.

The government advises that the personal circumstances of the person should be taken into account before charging them for the cost of enforcement action. However when making a decision on whether to waive costs the Council will have regard to the fact that where a person is providing accommodation for others the paramount duty is to ensure the accommodation is safe and healthy to live in. By following this concept it means that only in exceptional personal circumstances will charges be waived or reduced at the discretion of the Head of Housing and Property Services.

Caravan Sites and Mobile Homes

The Private Sector Housing Team are responsible for the licensing of single and family residential caravan sites.

Caravans and mobile homes are not covered by the provisions of the Housing Act 2004 or the Housing, Health and Safety Rating System although the HHSRS may be used as an indication of the level of risks present in the accommodation but caravans cannot be subject to the enforcement provisions.

Mobile home and caravan sites in Wealden all have conditions attached to the site licence. Any decisions concerning breaches of site licences are likely to be complex due to implications any enforcement action may have on the occupants of the site. For this reason the Council works with site owners on an informal basis in the first instance to improve site conditions.

The only choice for formal enforcement is direct prosecution leading eventually to the removal of the site licence and closure of the site rendering the residents “homeless”. The Caravan Site and Control of Development Act 1960, the legislation for the purpose of enforcing site licence conditions, currently provides no provision for the service of Improvement Notices or works in default as permitted in other health and safety based legislation. However where the site conditions are such to be a significant risk to the health and safety of the occupants formal enforcement action will be pursued.

The Council will at all times comply with the terms of the General Data Protection Regulations 2016 and act in accordance with the Privacy Notice for Private Housing Services. However, in the case of prosecution and witness statements, it may be required to reveal the names and addresses of both parties involved.

Those affected by enforcement decisions have a right to complain or appeal against the decision. This can be done in one of two ways:

Complaints about the service – may be referred through the formal Council complaints process operating at that time

Appeals – There are usually rights of appeal against formal action. Advice on how to appeal will be clearly set out in writing at the time the action is taken.

Policy Review

This policy will be reviewed annually or as circumstances dictate with regard to legislative changes.

Contact Information

For further information on private sector enforcement issues, the Property Services Section can be contacted as follows:

By telephone: 01323 443321

By email: privatehousing@wealden.gov.uk or through the council’s website at www.wealden.gov.uk

By post: Property Services Section, Housing Service, Wealden District Council, Council Offices, Vicarage Lane, Hailsham, East Sussex, BN27 2AX

 Or by calling at the Council Offices 9.00 am and 5.00 pm weekdays.


Summary of Powers

Environmental Protection Act 1990

Section 80

Notices can be served if the officer is of the opinion that there is a statutory nuisance at the premises. The premises must be deemed prejudicial to health or a nuisance.

A statutory nuisance is any house in such a state as to be prejudicial to health or a nuisance.

Prejudicial to health is defined as injurious or likely to cause injury to health.

A nuisance is taken to be anything that interferes with the use and enjoyment of a neighbouring property or which materially affects the comfort and quality of life of the public at large.

Housing Act 1985

Section 17

Power to make a Compulsory Purchase Order

A Compulsory Purchase Order may be served upon the owner of land or property by the Council to acquire the land for the public good, usually at a valuation set by the district valuer.

Section 265

Power to make a Demolition Order

The service of a Demolition Order is one of the actions that can be taken where category 1 hazards (under the Housing Health and Safety Rating System) are present.

A Demolition Order requires the property to be vacated within a specific time and subsequently demolished. It is a criminal offence to allow the property to be occupied after the Demolition Order has come into effect. If the person upon whom the order has been served does not demolish the building, the Council

can demolish it instead and recharge the person accordingly.

Section 289

Declaration of Clearance Area

A Clearance Area is an area that is to be cleared of all buildings. The Council shall declare an area to be a Clearance Area if each of the residential building contains a category 1 hazard and the other buildings in the area are dangerous or harmful to health and safety. The Council is required to consult on the declaration of a Clearance Area and publish its intentions.

Owners and in certain cases occupiers of properties are compensated accordingly.

Housing Act 2004

Sections 11 and 12

Power to serve an Improvement Notice

The service of an Improvement Notice is one of the actions that can be taken where category 1 hazards (under the Housing Health and Safety Rating System) are present.

This course of action is also available where category 2 hazards exist.

An Improvement Notice under this section requires the recipient of the notice (usually the owner but not in all cases) to carry out certain works within a specified time scale. If the notice is not complied with, the Council can carry out the work in default and recharge the person upon whom the notice was served. Not keeping to a notice is a criminal offence and the Council is able to prosecute the person who received the notice, or issue a financial penalty.

An Improvement Notice can be suspended, varied or revoked.


Sections 20 and 21

Power to serve a Prohibition Order

The service of a Prohibition Order is one of the actions that can be taken where category 1 hazards (under the Housing Health and Safety Rating System) are present.

A Prohibition Order under this section requires the recipient of the notice (usually the owner but not in all cases) to cease or limit the use of a property or part of the property for residential purposes. Prohibition Orders may also relate to the use of the premises by a specified number of people. Not keeping to an Order is a criminal offence and the Council is able to prosecute the person who received the notice, if he has intentionally failed to keep to it.

An Prohibition Order can be suspended, varied or revoked

Sections 28 and 29

Power to serve a Hazard Awareness Notice

The service of a Hazard Awareness Notice is one of the actions that can be taken where category 1 or 2 hazards (under the Housing Health and Safety Rating System) are present.

A Hazard Awareness Notice advises the person on whom it is served (usually the owner, but not in all cases) of the existence and the nature of the hazards identified, and the works considered to be required to address the hazard. The notice is

advisory only – it does not require the recipient to take any action.

Section 40

Power to take Emergency Remedial Action

Where the Council are satisfied that a hazard(s) under the HHSRS presents an imminent risk of serious harm to the occupiers of the property or other residential premises, it can take Emergency Remedial Action.

This means that the Council can arrange for works to be undertaken to remove the risk of harm. Within 7 days of starting the work, they must serve a notice under section 41 of the Act on the person having control of the house explaining the action taken. The Council have powers to recover expenses incurred in

taking emergency remedial action.

Section 43

Powers to make an Emergency Prohibition Order

Where they are satisfied that a hazard(s) under the HHSRS presents an imminent risk of serious harm to the occupiers of the property or other residential premises, it can make an Emergency Prohibition Order.

This prohibits the use of the premises of part of the premises for residential use, with immediate effect. The Council must serve a notice on the person having control of the property on the day (or as soon as possible) that the Emergency Prohibition Order is


Section 64

Licensing of HMOs and other houses

The local authority must licence Houses in Multiple Occupation which meet a specified description (In October 2018 this was expanded to include all dwellings with five or more occupiers forming two or more households and sharing a facility). They also have discretion to introduce licensing schemes for other HMOs or other houses to address specific local issues.

It is an offence to fail to licence a licensable HMO or house, for

which the local authority may prosecute or issue a financial penalty.

Section 73

Power to apply to the First Tier Tribunal for a Rent Repayment Order

Where a licensable HMO is not licensed, the Council can apply to the First-tier Tribunal for an order requiring the landlord of the HMO to repay any housing benefit paid in respect of the HMO.

The Housing and Planning Act 2016 extended the power to apply for a Rent Repayment Order where a landlord has



committed one of the following offences (it is not necessary that they have been convicted):

–  Illegal eviction or harassment

–  Failure to comply with an Improvement     Notice

–  Failure to comply with a Prohibition Order

–  Control or management of an unlicensed HMO or house

–  Failure to comply with a Banning Order

–  Violence for securing entry under the Criminal Law Act 1977 The local authority has a duty to consider applying where it becomes aware that a landlord has been convicted of a relevant


Section 102

Interim Management Orders (IMO)

Where an HMO, which is required to be licensed is not licensed, and there is no reasonable prospect of it becoming licensed or action is considered necessary to protect the health, safety or welfare of occupants of a HMO or persons living or owning property in the vicinity, the local authority may make an Interim Management Order (IMO).

An IMO can last for up to 12 months and enables the local authority to take steps to secure the proper management of an HMO, or to protect the health, safety or welfare of occupants of a HMO or persons living or owning property in the vicinity.

An IMO gives the council rights to collect rents and carry out works to the property.

An IMO may also be made in respect of any other dwelling, but only with the authority of the Residential Property Tribunal.

Section 113

Final Management Orders (FMO)

A local authority can serve a Final Management Order following an Interim Management Order, where, on expiry of the IMO, the HMO is required to be licensed and there is still no reasonable prospect of it becoming licensed or the Order is considered necessary to protect the health, safety or welfare of occupants of a HMO or persons living or owning property in the vicinity, on a long term basis.

A Final Management order can last for up to five years.

Section 139

Overcrowding Notices

Where the Council considers that excessive numbers of people are (or are likely to be) accommodated in a non-licensable HMO, they may serve an Overcrowding Notice on the owner or a person having control of the house.

It is a criminal offence to breach an overcrowding notice, for which the Council may prosecute or issue a financial penalty.

Section 234

HMO Management Regulations

Managers of HMOs are required to comply with the HMO Management Regulations 2006 which specify duties to keep the property and facilities within it safe, clean and in good repair.

It is a criminal offence to breach the management regulations for which the local authority may prosecute or issue a financial


The Smoke and Carbon Monoxide Alarm Regulations 2015

Regulation 5

Remedial Notice

Where the Council has reasonable grounds to believe that a landlord is in breach of his/her duties under these regulations, they must serve a Remedial Notice on the landlord giving him/her 28 days in which to carry out the actions specified in the


Regulation. 7

Duty to arrange remedial action

Where a local authority is satisfied, on the balance of probabilities, that a landlord has failed to comply with a Remedial Notice, it must arrange to undertake the actions in the



Regulation 8

Power to issue Penalty Charge Notice

Where a local authority is satisfied, on the balance of probabilities, that a landlord has failed to comply with a Remedial Notice, they may require the landlord to pay a penalty


Housing and Planning Act 2016

Sections 14-27

Power to apply for a Banning Order

The local authority may apply to the First tier Tribunal for a Banning Order in respect of any person or corporate body who has been convicted of a Banning Order offence.

The effect of a Banning Order is to ban that person/company from being involved in letting and/or management of property or being involved in any company which carries out those activities.

Sections 28-29

Database of Rogue Landlords and Agents

The government has established a database of rogue landlords and give access to local authorities.

A local authority has the power to maintain the database and must include details of any landlord who has received a Banning Order.

They may include landlords who have been convicted of Banning Order offences, or who has received at least two financial penalties in 12 months for Banning Order offences, but

authorities must first give notice to the landlord which may be appealed.

Other Miscellaneous tools:

Building Act 1984 section 59/60

Used to deal with defective drainage issues in existing buildings.

Building Act 1984 section 64/65

Used where sanitary conveniences are insufficient or in need of replacement and are considered prejudicial to health or a nuisance.

Building Act 1984

section 76

Used where the property is so defective so as to be prejudicial to health. This notice notifies the person responsible of the local authority’s intention to remedy the problem (similar to work in default).

Public Health Act 1936 section 45

Used where there are defective sanitary conveniences due to their repair and/or cleansing ability. They must be in such a state as to be prejudicial to health or a nuisance.

Public Health Act 1961 section 17

Where any drain, private sewer, water closet, waste pipe or soil pipe has not been maintained and can be repaired for less that


Local Government (Miscellaneous Provisions) Act 1976

section 33

Used where services such as the water, gas and electricity supply are due to be, or have been, cut off to a domestic

property due to non-payment of bills. This power is discretionary.

Prevention of Damage by Pests Act 1949

section 4

Used where there is evidence of or harbourage of pests at a property.


This statement sets out the principles that Wealden District Council (the Council) will apply in exercising its powers to require a relevant landlord (landlord) to pay a financial penalty under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015 (the Regulations)

The legal framework

The Regulations introduce the following requirements for all landlords during any period beginning on or after 1st October 2015 when the premises are occupied under the tenancy—

  • a smoke alarm is equipped on each storey of the premises on which there is a room used wholly or partly as living accommodation;
  • a carbon monoxide alarm is equipped in any room of the premises which is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance; and
  • checks are made by or on behalf of the landlord to ensure that each prescribed alarm is in proper working order on the day the tenancy begins if it is a new

Regulation 8 provides that the Council may require the landlord to pay a penalty charge if the Council is satisfied on the balance of probabilities that the landlord on whom it has served a remedial notice under regulation 5 has failed to take the remedial action specified in the notice within the period specified. The penalty charge must not exceed £5000.

The Regulations exclude the following tenancies:

  • Shared accommodation with landlord or landlord’s family
  • Long leases
  • Student halls of residence
  • Hostels and refuges
  • Care homes
  • Hospitals and hospices
  • Other accommodation relating to healthcare provision

The scope of this document

Regulation 13 of the regulations requires the Council to prepare and publish a statement of principles which it proposes to follow in determining the amount of a penalty charge.

The Council may revise its statement of principles and, where it does so, it must publish the revised statement.

Where a penalty charge is made, the Council must have regard to the statement of principles published and in place at the time when the breach in question occurred, when determining the amount of the penalty charge.

In particular the Council will have regard to satisfying the balance of probabilities that the landlord has failed to take the remedial action required in the notice.

This document sets out the principles which the Council will apply and will have regard to when exercising its powers under regulation 8 of the regulations.

The purpose of imposing a financial penalty

The primary purpose of the Council’s exercise of its regulatory powers is to protect the interests of the public, although they may have a punitive effect.

The primary aims of financial penalties will be to:

  • change the behaviour of the
  • eliminate any financial gain or benefit from non-compliance with the
  • be proportionate to the nature of the breach of the regulations and the potential harm
  • aim to deter future non-compliance.
  • reimburse the costs incurred by the Council in undertaking work in default

Criteria for applying the penalty charge

By virtue of regulation 8, a failure to comply with the requirements of a remedial notice allows the authority to require payment of a penalty charge.

In considering the imposition of a penalty the Council will have regard to evidence of any breach of the requirement of the notice and whether it is satisfied that on the balance of probabilities that the landlord on whom it has served a remedial notice under regulation 5 has failed to take the remedial action specified in the notice within the period specified.

Then 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 allows the council, amongst other things, to eliminate financial gain or benefit from non-compliance.

A financial penalty charge will therefore be considered appropriate where a landlord has failed to comply with the requirements of a remedial notice.

Criteria for determining the amount of penalty charge

Regulation 8(2) states the amount of the penalty charge must not exceed £5,000.

Having regard to:

  • consequences of not complying are potentially serious injury or death
  • landlords will have been given 28 days’ notice in which to comply
  • the duty placed on landlords is not onerous or expensive
  • the administration burden on the local authority for enforcement
  • the requirement on the local authority to undertake works in default

It is considered appropriate that the maximum penalty charge of £5000 is considered appropriate.

The period within which the penalty charge is payable is 28 days beginning with the day on which the penalty charge notice is served.

The Council has the discretion to specify that if a landlord pays the penalty charge within a specified earlier period a reduction in the penalty charge may be applied.

The Council may also exercise a similar discretion where the landlord gives written notice to the Council that the landlord wishes the authority to review the penalty charge notice.

Of these two discretions, the Council confirms it will only exercise the discretion to reduce the penalty charge in relation to payment within a specified “early payment” period in recognition of early admission of liability and savings in administration costs.

The specified period for early payment is within 14 days beginning with the day on which the penalty charge notice was served.

Procedural requirements

The penalty charge notice must be served within 6 weeks from the date on which the Council was satisfied, on balance of probabilities, that the landlord had failed to comply with the requirements of the Remedial Notice.

The penalty charge notice must state:

  • the reasons for imposing the penalty charge;
  • the premises to which the penalty charge relates;
  • the number and type of prescribed alarms (if any) installed at the premises;
  • the amount of the penalty charge;
  • the obligation to pay that penalty charge or to give written notice of a request to review the penalty charge;
  • how payment of the charge must be made; and
  • the name and address of the person to whom a notice requesting a review may be

The landlord may request a review of the penalty charge notice within the 28 day notice period..

The review will be undertaken by the Property Services Manager.

In deciding whether to confirm, vary or withdraw the penalty charge notice the review will take into account all representations made. The representations will be considered on their own merit in respect of that case and in particular the following may be considered relevant in deciding any reduction in the charge made:

  • Good attitude and cooperation with the Council – in cases where the offender has cooperated fully with the Council in investigating the breach of the
  • Immediate and voluntary remediation – when the offence was brought to the attention of the offender they immediately rectified any breach of the
  • No previous history of non-compliance with other Housing legislation – if this is a first breach of any housing related legislation.
  • Any relevant personal
  • Undue financial hardship – if the fine would cause the offender undue financial hardship such that it might not be able to continue to

A notice of the review decision will be served on the landlord.

The landlord may appeal to the First-tier Tribunal against the local housing authority’s decision. The grounds for appeal are:

  • the decision to confirm or vary the penalty charge notice was based on an error of fact;
  • the decision was wrong in law;
  • the amount of the penalty charge is unreasonable;
  • the decision was unreasonable for any other reason .

Where a landlord appeals to the First-tier Tribunal, the penalty charge notice is suspended until the appeal is finally determined or withdrawn.