civil penalty notices · ∗both needed to be signed off by a portfolio holder ∗all councillors...

Civil Penalty Notices

Aran Hennessy Principal Environmental Health OfficerMatthew Gilmour Enforcement Officer

∗ Section 126 of the Housing & Planning Act 2016∗ A financial penalty ∗ Up to £30,000 per offence∗ Specified offences∗ A civil route for a criminal offence∗ Punishment

What is a CPN?

∗ Schedule 9 reads:∗ “After section 249 insert—∗ 249A Financial penalties for certain housing

offences in England∗ The local housing authority may impose a financial

penalty on a person if satisfied, beyond reasonable doubt, that the person's conduct amounts to a relevant housing offence in respect of premises in England.”

Schedule 9

∗ Should have own locally adopted policy on determining when you’ll issue a CPN and how much it will be.

∗ Nottingham has 2 documents, “when” is in our enforcement policy, simply another tool.

∗ “How much” it will be is a detailed document called civil penalties enforcement guidance.

Policy

∗ Nottingham’s constitution means that the power to impose a civil penalty was automatic

∗ However, two delegated decision documents did need to be drafted∗ The first to adopt our local policy for calculating civil

penalty amounts∗ The second to authorise any spending of money

collected from civil penalties∗ Both needed to be signed off by a Portfolio Holder∗ All Councillors were given the opportunity to query the

decisions

Introducing CPNs

∗ Must have regard to the guidance from the DCLG

Guidance

∗ Before you decide if you’re going to issue a CPN, you must ensure that you can prove the offence beyond reasonable doubt, and that it is in the public interest.

The Test

“relevant housing offence” means:

∗ failure to comply with an improvement notice∗ Section 72 offences

∗ Failure to licence∗ Unauthorised number of occupants∗ Breach of licence conditions

∗ Section 95 offences (Selective licensing offences)∗ Section 139(7) offences (overcrowding notice)∗ Section 234 offences (management regulations)

The Offences

CAN’T prosecute & issue CPN for same offenceCAN’T issue a CPN for each hazard on an Improvement Notice. CAN’T issue more than 1 CPN for continued breach of same offence.

CAN issue a CPN for each breach of management regulation's. CAN issue a CPN to more than 1 person for the same offence.

Can do – Can’t do

∗ Can only issue a CPN once for an offence

∗ Needs to be beyond reasonable doubt

∗ May not see the money

∗ How the Tribunal will react

Risks

∗ Step 1:∗ Issue a “notice of intent” & give 28 days to make

representations. ∗ Step 2:∗ Issue a final notice, recipient has 28 days to appeal

to the RPT. ∗ Step 3:∗ Paid up? Spend it on Enforcing Part 1-4 of the HA

2004

Procedure

∗ The First Trier Property Tribunal will re-hear the entire case.

∗ Can consider things we didn’t know about. ∗ Can confirm or cancel the CPN, or vary the

amount. ∗ Can dismiss an appeal if it is frivolous, vexatious or

has no real prospect of success.

The First-tier Tribunal

∗ Need a certificate from your Chief Financial Officer∗ Apply to the Courts for a Court Order, use the

County Court bailiffs to enforce that order. ∗ Still won’t pay?∗ Bailiffs to their home to remove possessions∗ Money taken from their wages∗ Take money from their bank account∗ Charge against any property they own, option for

forced sale available.

Refuse to Pay

Nottingham’s Approach to Civil Penalties

Matthew Gilmour – Enforcement Officer

The Essentials of a Charging Matrix

• Severity of the offence• Culpability and track record of the offender• The harm caused to the tenant• Punishment of the offender• Deter the offender from repeating the offence• Deter others from committing similar offences• Remove any financial benefit the offender may have

obtained as a result of committing the offence• Income and assets of the offender

The Nottingham Model• The Penalty Calculation

• Financial Benefit Obtained from Committing the Offence

The Final Penalty Amount

Culpability TableVery High Deliberate breach of or flagrant disregard for the law

High

Offender fell far short of their legal duties; for example, by:

• failing to put in place measures that are recognised legal requirements or regulations;

• ignoring warnings raised by the local Council, tenants or others;

• failing to make appropriate changes after being made aware of risks, breaches or offences;

• allowing risks, breaches or offences to continue over a long period of time.

Serious and/or systemic failure by the person or organisation to comply with legal duties.

Medium

Offender fell short of their legal duties in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories.

Systems were in place to manage risk or comply with legal duties but these were not sufficiently adhered to or implemented.

Low

Offender did not fall far short of their legal duties; for example, because:

• significant efforts were made to address the risk, breaches or offences, although they were inadequate on this occasion;

• they have offered a reasonable defence for why they were unaware of the risk, breach or offence.

Failings were minor and occurred as an isolated incident

Offender’s Culpability

Seriousness of Harm Risked Table

Level AThe seriousness of harm risked would meet the guidance for Class I andClass II harm outcomes in the Housing Health and Safety Rating System.

Level BThe seriousness of harm risked would meet the guidance for Class IIIand Class IV harm outcomes in the ‘Housing Health and Safety RatingSystem.

Level CAll other cases not falling within Level A or Level B (e.g. where anoffence occurred but the level of harm to the tenants or visitors doesnot meet the descriptions for Level A or Level B).

Harm to the Tenants

Seriousness of

Harm Risked

Culpability

5+ 5 4 3

5 4 3 2

4 3 2 1

Deliberate breach of or flagrant disregard for the lawOffender fell far short of their legal duties; for example, by:

• failing to put in place measures that are recognised legal requirements or regulations;

• ignoring warnings raised by the local Council, tenants or others;

• failing to make appropriate changes after being made aware of risks, breaches or offences;

• allowing risks, breaches or offences to continue over a long period of time.

Serious and/or systemic failure by the person or organisation to comply with legal duties.Offender fell short of their legal duties in a manner that falls between descriptions in ‘high’ and ‘low’ culpability categories.

Systems were in place to manage risk or comply with legal duties but these were not sufficiently adhered to or implemented.Offender did not fall far short of their legal duties; for example, because:

• significant efforts were made to address the risk, breaches or offences, although they were inadequate on this occasion;

• they have offered a reasonable defence for why they were unaware of the risk, breach or offence.

Failings were minor and occurred as an isolated incident

Very High

High

Medium

Low The seriousness of harm risked would meet the guidance forClass I and Class II harm outcomes in the Housing Health andSafety Rating System.

The seriousness of harm risked would meet the guidance forClass III and Class IV harm outcomes in the ‘Housing Health andSafety Rating System3.

All other cases not falling within Level A or Level B (e.g. wherean offence occurred but the level of harm to the tenants orvisitors does not meet the descriptions for Level A or Level B).

Level A

Level B

Level C

Determining the Penalty Band

Penalty Level Penalty Band

£600 - £1200

£1200 - £3000

£3000 - £6000

£6000 - £15,000

/ £15,000 - £30,000

Seriousness of

Harm Risked

Culpability

Very High High Medium Low

Level A

Level B 5 4 3

Level C 4 3 2

5+ 5 4 3

2

1

Determining the Penalty Band

Starting AmountThis is the minimum amount

that will be imposed

Upper LimitThis is the maximum amount that will be

imposed before financial benefit is

added

?

Determining the Actual Penalty Calculation Amount

The Offender’s Income & Track Record

Penalty Level Relevant Weekly Income

1Gross rental income or

management fees for the property where the offence occurred or to

which the offence relates

2

3

4

5 / 5+All income for the offender

(carry out a financial assessment)

Penalty Level % of Relevant Weekly Income

1 50% of relevant weekly income





5+ 600% of relevant weekly income

Considering the Offender’s Income

• They all relate to offences, notices etc. from the last 2 years

• They all have Yes / No answers

• We can prove the answers to the tribunal

• We can prove the relevance of the questions to an assessment of a person’s track record

Considering the Offender’s Track Record

so, how many civil penalties have been imposed on them in that timeframe?

Has the landlord accepted any cautions for relevant1 offences in the last 2 years? If so, how many cautions for relevant offences1 have they accepted in that timeframe?

Has the landlord been sent a letter, in the last 2 years, which informed them that they are now subject to a ‘straight to enforcement action’ approach?

Has the landlord owned or managed a property where the term of an existing licence for the property, under the Housing Act 2004, was reduced due to enforcement action or significant concerns, in the last 2 years?

Has the landlord breached any relevant2 notices, which resulted in works in default being carried out, in the last 2 years? If so, how many times have works in default been carried out under such circumstances in that timeframe?

Has the landlord owned or managed a property where a licence for the property, under the Housing Act 2004, was revoked due to enforcement action or significant concerns, in the last 2 years?

Has the landlord been prosecuted for any relevant3 offences in the last 2 years? If so, how many times have such prosecutions taken place in that timeframe?

Has the landlord owned or managed a property which was subject to an interim or final management order under the Housing Act 2004 in the last 2 years?

Has the Landlord been the subject of a banning order under the Housing and Planning Act 2016 in the last 2 years?

Score % Score %

0 0% 21 55%

1 5% 23 60%

3 10% 25 65%

5 15% 27 70%

7 20% 29 75%

9 25% 31 80%

11 30% 33 85%

13 35% 35 90%

15 40% 37 95%

17 45% 39+ 100%

Considering the Offender’s Track Record Continued

1. Starting Amount for the Penalty Band

2. The amount to be added as a result of the offender’s income

3. The amount to be added as a result of the offender’s track record

Add the three

amounts together

The Penalty Calculation

The Penalty Calculation Continued

Is the amount higher than the upper limit for the Penalty Band?

Use the Upper Limit for the Penalty Band

Use the total from the three amounts added together

Did the offender obtain any financial benefit from committing the offence?Considering Financial Benefit

Add this amount to the Penalty Calculation amount

Use the Penalty Calculation amount

Simple, right?The Nottingham Model

The Penalty Calculator

civil penalty notices · ∗both needed to be signed off by a portfolio holder ∗all councillors...

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