Domestic Landlord Guide – Chapter 6

The following chapter is aimed at both landlords and enforcement authorities, and outlines the steps an enforcement authority may take where it believes a landlord is in breach of the minimum level of energy efficiency provisions. It also broadly sets out what both parties might expect to happen if an appeal is made to the First-tier Tribunal against a compliance notice which an enforcement authority has made, and links to further guidance.

In all cases it is recommended that a landlord and an enforcement authority attempt to resolve any dispute informally first, and take expert advice before the matter progresses to the First-tier Tribunal.

6.1 Compliance and enforcement

6.1.1 Enforcement authorities (regulations 34 and 35)

Every Local Authority is the “enforcement authority” for their area, and will be responsible for enforcing compliance with the minimum level of energy efficiency provisions within their geographic boundaries. A representative or authorised officer of the Local Authority may carry out the enforcement activities including using the information held on the PRS Exemptions Register or produced in response to a compliance notice to monitor compliance, and issue compliance and penalty notices where applicable.

Enforcement authorities can choose which function they wish to use to enforce the minimum standard Regulations – for example they may decide to use Trading Standards Officers or Environmental Health Officers. However, it is ultimately up to individual Local Authority as to how they wish to enforce the minimum standard, taking into account the particular needs of their area.

The authorised officer may check for different forms of non-compliance with the Regulations including:

• since 1 April 2018 whether the property is sub-standard and let in breach of regulation 23 (which may include continuing to let the property after 1

April 2020) (see section 1.2.1 of chapter one);

• where the landlord has registered any false or misleading information on the PRS Exemptions Register, or has failed to comply with a compliance notice (see section 6.1.2 below).

6.1.2 When the enforcement authority may decide to serve a compliance notice (regulation 37)

Since 1 April 2018, where the enforcement authority believes that a landlord may be in breach of the prohibition on letting a sub-standard property (as described in section 1.2.1 of chapter one), or a landlord has been in breach of the prohibition at any time in the past 12 months, the enforcement authority may serve a compliance notice that requests information from that landlord which will help them to decide whether that landlord has in fact breached the prohibition.

The fact that an enforcement authority may serve a compliance notice on a landlord up to 12 months after the suspected breach means that a person may be served with a compliance notice after they have ceased to be the landlord of the property. It is good practice, therefore, for landlords to retain any records and documents relating to a let property that may be used to demonstrate compliance with the Regulations.

Any notice that is served under the Regulations must be in writing and may be sent in hard copy or electronically. Where a notice is served on a corporate body it may be given to the secretary or clerk of that body if a suitable named individual cannot be identified. Where a notice is served on a partnership, it may be addressed to any partner, or to a person who has control or management of the partnership business.

A compliance notice served by an enforcement authority may request either the original or copies of the following information:

• the EPC that was valid for the time when the property was let;
• any other EPC for the property in the landlord’s possession;
• the current tenancy agreement used for letting the property;
• any Green Deal Advice Report in relation to the property;
• any other relevant document that the enforcement authority requires in order to carry out its compliance and enforcement functions.

The compliance notice may also require the landlord to register copies of the requested information on the PRS Exemptions Register. The compliance notice will specify:

• the name and address of the person that a landlord must send the requested information to;
• the date by which the requested information must be supplied (the notice must give the landlord at least one calendar month to comply).

The landlord must comply with the compliance notice by sending the requested information to the enforcement authority and allow copies of any original documents to be taken. Failure to provide documents or information requested by a compliance notice, or failure to register information on the PRS Exemptions Register as required by a compliance notice, may result in a penalty notice being served (see section 6.2.3 below).

The enforcement authority may withdraw or amend the compliance notice at any time in writing, for example where new information comes to light. The enforcement authority may also use the documents provided by the landlord or any other information it holds to decide whether the landlord is in breach of the Regulations.

6.2 Penalties

6.2.1 Financial penalties (regulations 38-45)

Where the Local Authority decides to impose a financial penalty, they have the discretion to decide on the amount of the penalty, up to maximum limits set by the Regulations. The maximum penalties are as follows:

• Where the landlord has let a sub-standard property in breach of the Regulations for a period of less than 3 months, the Local Authority may impose a financial penalty of up to £2,000 and may impose the publication penalty.
• Where the landlord has let a sub-standard property in breach of the Regulations for 3 months or more, the Local Authority may impose a financial penalty of up to £4,000 and may impose the publication penalty.
• Where the landlord has registered false or misleading information on the PRS

Exemptions Register, the Local Authority may impose a financial penalty of up to £1,000 and may impose the publication penalty.

• Where the landlord has failed to comply with the compliance notice, the Local Authority may impose a financial penalty of up to £2,000 and may impose the publication penalty.

A local authority may not impose a financial penalty under both paragraphs (a) and (b) above in relation to the same breach of the Regulations. But they may impose a financial penalty under either paragraph (a) or paragraph (b), together with financial penalties under paragraphs (c) and (d), in relation to the same breach. Where penalties are imposed under more than one of these paragraphs, the total amount of the financial penalty may not be more than £5,000.

It is important to note that this maximum amount of £5,000 applies per property, and per breach of the Regulation. Given this, it means that, if after having been previously fined up to £5,000 for having failed to satisfy the requirements of the Regulations, a landlord proceeds to unlawfully let a sub-standard property on a new tenancy; the local enforcement authority may again levy financial penalties up to £5,000 in relation to that new tenancy.

Table Two:  

Infringement	Penalty  (less than three months in breach)	Penalty  (three months or more in breach)
Renting out a non-compliant property	Up to £2,000, and/or  Publication penalty.	Up to £4,000, and/or Publication penalty.
Providing false or misleading information on the PRS Exemptions Register	Up to £1,000, and/or Publication penalty
Failing to comply with a compliance notice	Up to £2,000, and/or Publication penalty

It is important to note that the maximum penalty amounts apply per property, and per breach of the Regulations.

Non-Compliance with the Regulations: Financial Penalty Examples

Example 1

If the landlord has let a sub-standard property in April 2018, and has been in breach of the Regulations for two months at the time a penalty notice is served, the enforcement authority could impose a financial penalty of up to £2,000 in relation to that breach. A publication penalty may also be levied against the landlord in question (explained below in 6.2.2).

If the landlord re-lets that property in 2019 to a new tenant, and has again been in breach of the Regulations for less than 3 months at the time the penalty notice is served (or if they are still letting the property on 1 April 2020), that would be a new breach of regulation 23, and the enforcement authority could impose financial penalties in relation to that new breach of up to £2,000.

Example 2

If the landlord lets two sub-standard properties, and in respect of each has been in breach of the Regulations for one month at the time the penalty notice is served, the enforcement authority may impose financial penalties of up to £2,000 in relation to each property plus the publication penalty.

Example 3

If the landlord lets a sub-standard property for more than three months, in breach of the Regulations, registers misleading information on the PRS Exemptions Register in relation to that letting, and fails to comply fully with a compliance notice served in relation to that letting, the enforcement authority could impose a financial penalty of up to £5,000 (up to £4,000 for letting the property, up to £1,000 for registering false or misleading information, and up to £2,000 for breach of compliance notice – but the total is capped at £5,000).

6.2.2 Publication penalty (regulation 39)

A publication penalty means that the enforcement authority will publish some details of the landlord’s breach on a publicly accessible part of the PRS Exemptions Register. The enforcement authority can decide how long to leave the information on the Register, but it will be available for view by the public for at least 12 months.

The information that the enforcement authority may publish is:

• the landlord’s name (except where the landlord is an individual);
• details of the breach;
• the address of the property in relation to which the breach occurred; and
• the amount of any financial penalty imposed.

The enforcement authority may decide how much of this information to publish.

However, the authority may not place this information on the PRS Exemptions

Register while the penalty notice could be, or is being reviewed by the Local Authority (see section 6.2.5), or while their decision to uphold the penalty notice could be, or is being, appealed (see section 6.3).

6.2.3 Circumstances in which a penalty notice may be served

(regulation 38)

From 1 April 2018 onwards, the enforcement authority may serve a penalty notice (relating to a financial penalty, a publication penalty or both) on the landlord where they are satisfied that the landlord is, or has been in the last 18 months:

• in breach of the prohibition on letting sub-standard property (which may include continuing to let the property after 1 April 2020) (see section

1.2.1); or

• in breach of the requirement to comply with a compliance notice (see section 6.1.2); or
• has uploaded false or misleading information to the Exemptions Register.

The fact that an enforcement authority may serve a penalty notice on a landlord up to 18 months after the suspected breach means that a person may be served with a penalty notice after they have ceased to be the landlord of a property.

6.2.4 What will be included in a penalty notice (regulation 38)

The penalty notice may include a financial penalty, a publication penalty or both.  The penalty notice will:

• explain which of the provisions of the Regulations the enforcement authority believes the landlord has breached;
• give details of the breach;
• tell the landlord whether they must take any action to remedy the breach and, if so, the date within which this action must be taken (the date must be at least a month after the penalty notice is issued);
• explain whether a financial penalty is imposed and if so, how much and, where applicable, how it has been calculated;
• explain whether a publication penalty has been imposed;
• where a financial penalty is imposed, tell the landlord the date by which payment must be made, the name and address of the person to whom it must be paid and the method of payment (the date must be at least a month after the penalty notice is issued);
• explain the review and appeals processes (see sections 6.2.5 and 3 below), including the name and address of the person to whom a review request must be sent, and the date by which the request must be sent; and
• explain that if the landlord does not pay any financial penalty within the specified period, the enforcement authority may bring court proceedings to recover the money from the landlord (see section 6.2.6).

A further penalty notice may be issued if the action required in the penalty notice is not taken in the time specified.

As noted above, when an enforcement authority issues a penalty notice which carries a right of appeal, they must tell the landlord about that right of appeal. Typical wording might be:

“You have a right of appeal against this decision to the General Regulatory Chamber (GRC) of the First Tier Tribunal. If you wish to appeal you should do so within 28 days of the date of this letter by writing to (Leicester address).

You can obtain an appeal form from that address or from the tribunal website at (website address).”

Further details on the First-tier Tribunal appeals process (including postal and web addresses) are set out below at 6.3.

6.2.5 Circumstances in which a penalty notice may be reviewed or withdrawn (regulation 42)

An enforcement authority may decide to review its decision to serve a penalty notice, for example when new information comes to light.

A landlord also has the right to ask the enforcement authority to review its decision to serve a penalty notice. This request must be made in writing. The penalty notice must tell the landlord how long they have to make this request, and who it must be sent to. When the enforcement authority receives the request, it must consider everything the landlord has said in the request and decide whether or not to withdraw the penalty notice.

The enforcement authority must withdraw the penalty notice if:

• they are satisfied that the landlord has not committed the breach set out in the penalty notice;
• although they still believe the landlord committed the breach, they are satisfied that the landlord took all reasonable steps, and exercised all due diligence to avoid committing the breach; or
• they decide that because of the circumstances of the landlord’s case, it was not appropriate for the penalty notice to be served.

If the enforcement authority does not decide to withdraw the penalty notice, it might decide to waive or reduce the penalty, allow the landlord additional time to pay, or modify the publication penalty, and must explain the appeals process (see section 6.3) and how financial penalties can be recovered (see section 6.2.6).

Whatever they decide, the enforcement authority must inform the landlord of their decision in writing, and should do so at the earliest opportunity.

 6.2.6 Recovery of financial penalties (regulation 45)

If a landlord does not pay a financial penalty imposed on them, the enforcement authority may take the landlord to court to recover the money. In proceedings for the recovery of a financial penalty a certificate signed by or on behalf of the person with responsibility for the financial affairs of the enforcement authority and stating that payment of the financial penalty was or was not received by a given date, will be accepted as evidence of the landlord’s non-compliance with the penalty notice. Note however that the enforcement authority may not take the landlord to court to recover the money:

1. during the period in which the landlord could ask the enforcement authority to review their decision to serve the penalty notice, or while they are reviewing their decision to serve the penalty notice; or
2. during the period in which the landlord could appeal to the First-tier Tribunal (see section 6.3 below), or while there is an ongoing appeal to the First-tier Tribunal, against the penalty notice.

6.3 Appeals

6.3.1 Appeals to the First-tier Tribunal (General Regulatory Chamber) (regulations 43 and 44)

The First-tier Tribunal (General Regulatory Chamber) is administered by Her Majesty's Courts and Tribunals Service and is the home for a range of rights of appeal. Where a landlord asks the enforcement authority to review a decision to serve a penalty notice and, on review, they decide to uphold the penalty notice, the landlord may then appeal to the First-tier Tribunal against that decision if they think that:

• the penalty notice was based on an error of fact or an error of law;
• the penalty notice does not comply with a requirement imposed by the Regulations; or
• it was inappropriate to serve a penalty notice on them in the particular circumstances.

The General Regulatory Chamber (GRC) is governed by a set of Tribunal Rules which can be found here⁵² . General information on the Tribunal can be found here⁵³

If a landlord does appeal, the penalty notice will not have effect while the appeal is ongoing. A landlord may also wish to seek legal advice as part of considering or making an appeal, if they have not already done so.

6.3.2 How to apply to the First-tier Tribunal

Note: the guidance which follows is general; the First-tier tribunal should be contacted for more detailed advice and guidance.

A landlord has 28 calendar days to submit an appeal from the date of the local authority’s decision, and once submitted the landlord is referred to as “the appellant”. The landlord should submit an appeal by sending a notice of appeal to the First-tier Tribunal (General Regulatory Chamber). The notice of appeal can be in the form of a letter, or a completed T98 form which can be found online at

• gov.uk/government/publications/general-regulatory-chamber-tribunal-procedure-rules
• gov.uk/courts-tribunals/first-tier-tribunal-general-regulatory-chamber

formfinder.justice.gov.uk⁵⁴ (Please note: guidance on completing the form can be found at: hmctsformfinder.justice.gov.uk/GetLeaflet⁵⁵).

If submitting an appeal in letter form, the notice of appeal must include the following (taken from rule 22 of the GRC Rules):

• the name and address of the appellant (the landlord);
• the name and address of the appellant’s representative (if any);
• an address where documents for the appellant may be sent or delivered;
• the name and address of any respondent (the enforcement authority);
• details of the decision or act, or failure to decide or act, to which the proceedings relate;
• the result the appellant is seeking;
• the grounds on which the appellant relies; and
• any further information or documents required by a practice direction.

Completed notices of appeal should be sent to:

General Regulatory Chamber

HM Courts and Tribunal Service

PO Box 9300

Leicester

LE1 8DJ

The General Regulatory Chamber can be contacted on 0300 123 4504 and at: grc@hmcts.gsi.gov.uk. Staff cannot give advice about individual cases but can assist with process queries.

Once submitted, the completed notice will be sent by the Tribunal to the enforcement authority, which is referred to as “the respondent”. At this point the

• justice.gov.uk/HMCTS/GetForm.do?court_forms_id=2800
• justice.gov.uk/HMCTS/GetLeaflet.do?court_leaflets_id=2597

respondent will have 28 days after the date of receipt to file a response. Their response must include the following:

• The name and address of the respondent (the enforcement authority);
• The name and address of the respondent’s representative (if any);
• An address for the service of documents;
• Any further information or documents required by a practice direction or direction;
• Whether the respondent would be content for the case to be dealt with without a hearing; and
• A statement as to whether the respondent opposes the appellant’s case and, if so, the grounds for such opposition.

The response must be sent to the appellant (the landlord) as well as to the Tribunal. If the response is provided outside of the 28 day limit the respondent must include a request for an extension of time and the reason why the response is late.

Under rule 24 of the GRC Rules the appellant (the landlord) may provide a reply to the respondent’s (the enforcement authority) response at this point if they wish. If they intend to do so, this must be provided to the Tribunal and the respondent within 14 days. After this point the administrative team will normally refer the appeal to the Registrar or to the Chamber President.

Full details and guidance on the process can be found here⁵⁶.

Based on the facts of the case, the First-tier Tribunal may decide to quash the penalty notice or affirm the penalty notice in its original or a modified form. If the penalty notice is quashed the enforcement authority must reimburse the landlord for any amount paid as a financial penalty under the notice.

 

Guidance for landlords and Local Authorities on the minimum level of energy efficiency required to let domestic property under the Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015, as amended.

This section is a distillation of the published Government regulations and was correct at the time of incorporating within the GO LOCAL EPC site. For a copy of the full original document please select this link THE DOMESTIC PRIVATE RENTED PROPERTY MINIMUM STANDARD.  This publication is licensed under the terms of the Open Government Licence v3.0 except where otherwise stated.