Unfair practice by Council re hazards in house?

Reply to the comment left by Chris Daniel at 21/03/2018 - 22:03
That was my understanding until I went and re-read S33 (http://www.legislation.gov.uk/ukpga/2015/20/section/33/enacted). S33(1) is a plain statement that once a "relevant notice" has been issues, a S21 cannot be issued and relied upon for a period of time; no caveats.

How do you see that interacting with S33(2)?

Michael,
Sec 33(1) says a Sec 21 Notice can't be GIVEN (my emphasis) After a Notice [ Improvement etc ] has Been served.
Nowhere is there reference to an Improvement Notice Subsequently Invalidating a Sec 21. - in fact, to the contrary, a specific process has to be followed by a tenant in a set order.
If you look at eminent legal professionals, Giles Peaker, Nearly Legal and Tessa's sites, you see the same understanding as you originally believed and as I've outlined here.
PossessionFriend.uk would be comfortable in dealing with a case in these circumstances.
Regards, Chris

Reply to the comment left by Chris Daniel at 22/03/2018 - 13:36
I was not commenting on invalidating an already-issued S21, I was observing that it appears that S33(2) can be entirely circumvented by a tenant going direct to the local authority.

S33(2) (b) effectively says "the tenant must give the landlord an opportunity to fix the issue" and if that opportunity is taken, then the council cannot issue a Relevant Notice under S33(2)(d), and so the LL is then able to serve a S21 at any time.

However, if the tenant does not complain to the Landlord as in S33(2)(a), but instead approaches the local authority directly, then the authority can issue a Relevant Notice (as defined in 33(13)), and S33(1) says the landlord is then prevented from serving a S21 for 6 months.
S33(1) does not say "a relevant notice issued under S33(2)".

Thus it appears that (as in the case of the original article) a tenant can go directly to the council, the council issues a "relevant notice" without giving the landlord the opportunity to address the issue and the LL is then prevented from S21 for 6 months; but if the tenant goes to the LL and the LL addresses the issue, then there is no effect on the LL's ability to use S21.
So the tenant is potentially in a worse position by going to the LL first

Reply to the comment left by Michael Barnes at 22/03/2018 - 23:23
I don't read that part in isolation and neither do other legal commentators I mentioned. I suppose only a case would settle the matter. Regards

S.33(1) and s.33(2) are separate and do different things.

S.33(1) means that no section 21 can be served within 6 months of an Improvement Notice or Emergency Remedial Order being served by the council. There is no requirement for tenant to give notice to landlord of issues.

S.33(2) sets out the conditions under which a s.21 notice can be retrospectively invalidated. In short, T complains to LL. LL doesn’t sort the problem. LL serves s.21 notice. Council then serves Improvement Notice. The s.21 then becomes invalid.

If the original poster received an Improvement Notice, and had not already served a s.21, they now can’t serve one for 6 months from the Notice.

Reply to the comment left by Giles Peaker at 24/03/2018 - 11:56
In your view then, Giles, there is no requirement for a tenant to report an issue to the LL first?

Reply to the comment left by Luke P at 24/03/2018 - 12:01
No requirement. After all, the council could serve an Improvement Notice without the tenant having complained to them either! An inspection for an HMO licence, for example.

But if the LL serves a s.21 before the Improvement Notice is served, it is not invalidated unless the tenant had previously complained in writing to the LL.

Reply to the comment left by Giles Peaker at 24/03/2018 - 12:13
I was inclined to agree, although the spirit of the law is to prevent *retaliatory* evictions and with that in mind, any Improvement Notice received under a licence inspection, for example, or arising not from a complaint by the tenant, any subsequent notice served could not be deemed retaliatory against the tenant and their (lack of) actions.

Prevention of service is not, cannot/should not be, punishment in itself for having defects with the property. It was specifically intended to stop a tenant being evicted for merely raising a repair report…would you not agree?

Reply to the comment left by Luke P at 24/03/2018 - 16:45
I’m afraid this is not something to be agreed with or not. It is the case under the legislation.

33(2) is the retaliatory eviction provision.

33(1) is said to be an encouragement to landlords to keep the property in good condition. The Explanatory Notes say

“The policy rationale for the changes is to prevent tenants from feeling unable to complain about poor property conditions because they fear eviction. The government also intends that the sections should encourage landlords to keep their property in a decent condition and to comply with all legal obligations placed upon them, in order not to lose their right to rely on section 21. The changes that are made to the section 21 procedure aim to make the eviction process more straightforward for both landlords and tenants. The sections do not make any changes to the eviction procedure contained in section 8 of the Housing Act 1988, which provides for the eviction of tenants where there are grounds to do so, for example because a tenant has not been paying rent or has been engaging in anti-social behaviour.”

I’d add that councils don’t serve improvement notices lightly, even where there is a category 1 hazard. There are nearly always ‘informal resolution’ attempts first. The presumption of 33(1) is that there has been a sustained failure by the LL.

Note s.34 means s.33 doesn’t apply where the defect is caused by the tenant.

Reply to the comment left by Giles Peaker at 24/03/2018 - 17:39
So effectively it is punishment in itself. What a disaster.

The situation in your second-to-last paragraph is changing though. A neighbouring authority to me that previously had a great working relationship with LLs and the local LL association are now going straight to formal notice on both Category 1 and Category 2 hazards!