I have been acting for a client who is being threatened with prosecution over his HMO and its condition. There is not really much wrong with it and most of the problems could arguably be blamed on the tenants. However, the local authority does not agree and is threatening to charge my client with a large number of offences. However, they may not be able to as they have not followed their own procedures properly.Any prosecuting body is bound by the Regulator’s Compliance Code. This is a code approved by parliament which is supposed to allow for fair and proportionate regulation of business without creating a climate of fear which damages the economy. It requires regulators to have a code of practice or policy setting out how they will make enforcement decisions. Not all local authorities have such a code but the one I am dealing with certainly does. However, in this case they appear not to be following it and are rushing to prosecution where the policy suggests an alternative course of action.
This is not the only case I have seen recently of this type. Local authorities must follow their own enforcement policies and cannot depart from them without good reason. Usually this will require the written approval of a senior manager as well. Where they do not do so then it is possible to stop prosecutions on the basis that they are an abuse of process.
Landlords managing HMOs must make sure that they are following the requirements of the HMO Management Regulations. These require properties to be kept clean and in good repair. If the tenants a causing the problem then there should be a chain of evidence to show the landlord regularly inspecting the property, putting problems right, and telling the tenants of their responsibilities and obligations.
In addition if you are threatened with prosecution then it is worth obtaining a copy of the enforcement policy of the relevant local authority or asking a solicitor to review it alongside your case. An early approach which sets out why a prosecution would not be in line with the policy and which shows a willingness to put the situation right will often pay off.