Housing Act and Work in Default where Owner will not permit entry

Having a debate with colleagues about a slightly different topic to my normal empty homes one.

What is the best procedure to facilitate carrying out work in default to an owner-occupied property where they owner will in all likelihood prevent access?

This is the first time my colleague will have carried out such work and I have my thoughts about what is needed but they differ from those of others. My concern that that s35 appears to enable the court to order the owner to permit access and the owner can be fined for then denying access. It does not seem to indicate the court may also then authorise a warrant to carry out the work. I can only see warrant provision for entry to survey the property. Am I mistaken in thinking a court order and a warrant are two separate things?

If a court order is not also a warrant how then does the LA carry out work if an owner denies access? Is the notice provision contained in Schedule 3 what should be used - without the need for a warrant? Do we just keep fining this lady until she relents and permits access?

I have used the Schedule 3 notice for empty properties on the basis that the owner had not been in contact to deny access.

Is our current legal advice correct that we cannot enter a property without a warrant or is this an assumption that has been made? Our previous legal officer advised that entry for WID is by the notice per Schedule 3.

Any thoughts please.



Housing Improvement Notices

Hi Sue

Your interpretation of the legislation is correct.

Your powers to undertake works in default is provided in Schedule 3 (3) - without agreement.

The LA must serve a notice of intention to enter and execute works prior to intending to do works in default, it states sufficiently in advance which was seven days under the Housing Act 1985 (as amended) – person served with the notice and any occupier

There is an offence of obstruction under Sch 3 (5) – (owner/workmen) but only if they were on site for the purpose of carrying out the works, so if the owner is on site and had no intention to do work  - they will not be committing an offence. (This is to avoid a clash of workers) – also defence of reasonable excuse

As you state you do have the option to secure a Court Order against the owner to require them to permit the works be done - Section 35 HA 2004. However, all you can do is prosecute for non-compliance.

The level of fine on summary conviction is £20 a day – so if they refused access over a year it could amount to a significant amount, plus you can prosecute for non-compliance of the notice at the same time.

You do have power on entry provisions under Section 239 (1) (b)   & warrant provisions Section 240 (2)(b)(i) to inspect the premises with a view to establishing whether the improvement notice has been complied with but not to do works in default.

It is a significant deficiency in the Housing Act 2004, not just for dealing with difficult owner occupiers but also for empty homes.

Other options

Could the problem be resolved using other legislation that has warrant provisions to do works in default such as the Building Act 1984 or Environmental Protection Act 1990.

Local Government Act 1972, local authorities can apply to the civil courts for injunctions in certain circumstances (Public Nuisance etc)– whether the circumstances warrant it in this case? Hammer to crack a nut?

In addition, on a practical level it is very difficult to get a contractor to do works on site when the owner or occupier does not want the works done. I have had owner / landlords stealing materials from site, booby trapping properties, securing the property with additional locks, throwing bricks through windows, when you have only just completed them (at nights).

Can be very challenging to resolve these cases.

You have put the owner on notice of the deficiencies at the property, so you have complied with your legal requirements under the Act.

If they deem that they do not want the works done or are happy to live with the risks, then is it seldom in the public interest to prosecute (Magistrates – low fine for a lot of work) and if impractical to do works in default due to the individual, then I cannot see that you can be criticised.

But as always it depends on the individual circumstances of the case.


Andrew Lavender