5 Enforcement of the Private Rented Sector Minimum Energy Efficiency Standard
5.1.1 Part 4 of the Regulations establish local authorities as the enforcement authorities for minimum energy efficiency standards in the PRS. Each local authority is the enforcement authority for their area. A representative or authorised officer of the local authority may carry out the enforcement activities. The authorised officer may check for different forms of non-compliance with the Regulations including:
- Letting or continuing to let a property that does not comply with minimum standards;
- Failing to comply with a compliance notice; and
- Where a landlord has given false or misleading information for the PRSexemptions register.
5.1.2 Enforcement authorities can choose which function they wish to use to enforce the minimum standard regulations, for example they may decide to use landlord registration teams. However, it is at the discretion of the individual local authority as to how they wish to enforce the minimum standard, taking into account the particular needs of their area.
5.1.3 Local authorities can use existing databases such as Home Analytics and the EPC register to estimate the number of PRS properties in their area that may not meet minimum standards. This can be cross checked with the EPC register and the Register of Landlords.
5.1.4 Local authorities can also check the EPC rating of a PRS property when a landlord registers or reregisters on the landlords register. In addition, if a complaint about a landlord is made to a local authority, the local authority can check the EPC complies with minimum standards at that point, taking account of trigger points and whether the property is in scope (see 2.1.1).
5.1.5 Local authorities may wish to contact members of landlord forums and landlords on the landlord register in their area to help raise awareness of the forthcoming minimum standards.
5.2 Use of a Compliance Notice
5.2.1 Regulation 17 provides local authorities with the ability to serve a compliance notice if they believe that a landlord may have been in breach of regulations for minimum standards for energy efficiency in the PRS, or may have been at any time in the last 12 months.
5.2.2 Local authorities may use a standardised compliance notice (provided to them by Scottish Government) to assist in this process. A compliance notice must specify:
- the name and address of the person to whom the documents or other information required must be provided, and
- the date by which they must be provided, the notice must give the landlord at least one calendar month to comply.
5.2.3 Information which may be collected from landlords includes (either the originals or copies):
- Date of let;
- The current tenancy agreement;
- The EPC certificate which was valid at the time of let, and any other EPC certificate for the property in the landlord’s possession;
- Any qualifying assessment in relation to the property;
- Any other relevant documents, for example, which the enforcement authority considers necessary to enable it to carry out its function under this part of the regulations.
5.2.4 A landlord must provide the information specified in the compliance notice, and allow the local authority to take copies of any original document produced.
5.2.5 A compliance notice may be varied or revoked in writing at any time by the enforcement authority that issued it.
5.2.6 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.
5.2.7 Failure to provide documents or information requested by a compliance notice, may result in a penalty notice being served as set out below.
5.3 Financial Penalties
5.3.1 Part 5 of the Regulations provides local authorities with the powers to impose a financial penalty in relation to breaches of the standard, and discretion to decide on the amount of the penalty, up to maximum limits set by the Regulations.
5.3.2 In addition to the financial penalty, the local authority may add a publication penalty to the financial penalty. This means that the local authority may publish details of the breach and the amount of any penalty imposed on the exemptions register.
5.3.3 The maximum penalties are as follows:
a) Where the landlord has let a property that does not meet minimum standards, in breach of the Regulations for a period of less than 3 months, the local authority may impose a financial penalty not exceeding £2,000, plus the publication penalty;
b) Where the landlord has let a property that does not meet minimum standards in breach of the Regulations for 3 months or more, the local authority may impose a financial penalty not exceeding £4,000, plus the publication penalty;
c) Where the landlord has registered false or misleading information on the PRS Exemptions Register, the local authority may impose a financial penalty not exceeding £1,000, plus the publication penalty;
d) Where the landlord has failed to comply with the compliance notice, the local authority may impose a financial penalty not exceeding £2,000, plus the publication penalty;
e) Where the local authority imposes financial penalties on the landlord as set out above, the total of the financial penalties must be no more than £5000.
5.3.4 It is important to note that this maximum amount of £5,000 applies per property, and per breach of the Regulation. This means that, if a landlord proceeds to let a sub-standard property on a new tenancy after having been previously fined up to £5,000 for having failed to satisfy the requirements of the Regulations, the enforcement authority may levy financial penalties up to £5,000 in relation to that new tenancy.
5.4 Circumstances in which a penalty notice may be served
5.4.1 Regulation 18 (1) provides the local authority with the powers to serve a penalty notice on a landlord where it is satisfied that a landlord has breached Regulation 7 by letting a property that does not meet a minimum standard at the appropriate trigger date (paragraph 2.3.1 above) and does not have a registered exemption.
5.4.2 A local authority may also serve a penalty notice on a landlord if they do not provide the information set out in a compliance notice (Section 5.2 above)
5.5 What will be included in a penalty notice
5.5.1 Regulation 18(2) sets out the requirements for the penalty notice. It must therefore:
- explain which of the provisions of the Regulations the local authority considers 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 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 below).
5.5.2 If the action specified in the penalty notice is not taken in the time specified, the local authority may issue a further penalty notice. When a local authority issues a penalty notice which carries a right of appeal, they must tell the landlord about that right of appeal.
5.6 Reviewing a penalty notice (Regulation 21)
5.6.1 The local authority may review a penalty notice if it becomes aware of new information. A landlord may also ask a local authority to review its decision to serve a penalty notice. The penalty notice must clarify that the landlord can ask for a review, the timeframe for this, and who the request should be sent to.
5.6.2 When a local authority receives a request to review a penalty notice, they must consider the requested information supplied and decide whether or not to withdraw the penalty notice.
5.7 Withdrawing the penalty notice
5.7.1 The local 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.
5.7.2 Regulation 21 provides the enforcement authority with the powers to waive or reduce the penalty, allow the landlord additional time to pay, or modify the publication penalty. The enforcement authority must inform the landlord of their decision in writing, and should do so at the earliest opportunity.
5.8 Appeals Procedure
5.8.1 Regulation 22 establishes the ability of the landlord to appeal the decision of a penalty notice review to the sheriff court of the sheriffdom in which the domestic PR property is situated on the grounds that:
- The issue of the penalty notice was based on an error of fact. The issue of the penalty notice was based on an error of law;
- The penalty notice does not comply with a requirement imposed by the regulations;
- In the circumstances of the case it was not appropriate for the penalty notice to be served on the landlord.
5.8.2 While an appeal is being determined, the penalty notice is suspended, pending the determination or withdrawal of the appeal. The Sheriff may either quash the penalty notice, or affirm the penalty notice, either as it was served, or with any changes as it sees fit.
5.8.3 If the penalty notice is quashed, the local authority must repay any amount paid as a financial penalty.
5.9 Recovery of financial penalties
5.9.1 Regulation 24 sets out the procedure to recover the amount of an unpaid financial penalty from the landlord as a debt owed to the local authority unless the notice has been withdrawn or quashed.
5.9.2 Proceedings for the recovery of the financial penalty may not be commenced:
- before the expiry of the period specified for requesting a review under as established through the penalty notice;
- where a review of a penalty notice has been requested, and before the enforcement authority has served notice of its decision of that review; and
- where the enforcement authority has served a notice of its decision of a review confirming the penalty notice, before the expiry of the period within which the landlord may appeal to the Sheriff Court.
5.9.3 In proceedings for the recovery of a financial penalty, a certificate signed by, or on behalf of, the person having responsibility for the financial affairs of the local authority, and states that payment of the financial penalty was or was not received by a date specified in the certificate, is evidence of the facts stated.