Low-level and inconsistent sentences for housing-related offences are often cited by local authorities as being a contributing factor to the relatively low number of prosecutions. 

The Sentencing Council, an arms-length organisation for the judiciary that promotes transparency and consistency and issues guidelines that the courts in England and Wales must follow when passing a sentence, has, for many years, received requests and representations from various stakeholders within the private rented sector (PRS) to produce guidance for housing offences. With the enactment of the Renters’ Rights Act and its forthcoming implementation, the council has decided that now is the right time and is looking to develop and issue sentencing guidelines for this area. 

The Sentencing Council is currently consulting the public on a proposed new package of guidelines to be issued in relation to housing offences, in particular, two guidelines relating to nine offences of unlawful eviction and unlawful harassment of tenants and four guidelines covering offences related to houses in multiple occupation (HMOs) and other housing standards offences. 

The consultation is seeking views on a number of the proposals, including:

• The factors set out as relevant for the levels of culpability and harm

• The ranges and starting points for sentencing/fine levels for individuals and for organisations by offence severity (as set out in the matrix of culpability and harm)

• The mitigating and aggravating factors to be taken into account

• The guidance on obtaining financial information

• Brief guidelines to cover a breach of an overcrowding notice.

You may ask why prosecution numbers matter if local authorities can just turn to civil penalties to address the issue. It really boils down to deterrence, the severity of an offence and public benefit. While financial penalties have been strengthened and expanded under the Renter’s Rights Act, they remain capped, whether at £40,000 for repeat and more serious offences or £7,000 for initial or minor non-compliance. However, for many of these offences, there is the option of taking a prosecution instead, which, if convicted, would incur an unlimited level of fine. Equally, local authorities can publicise prosecution cases; this cannot be done with financial penalties to the same degree, and so has a public benefit in increasing awareness. As such, in each case, a decision needs to be made on which option to go with, as the use of one precludes the other. Whether to take a prosecution or issue a civil penalty should ultimately be based on what is most appropriate for the case, not on an automatic default or a perception that it is the easier option.

The Sentencing Council acknowledges the need for such a considered decision; the intention is that the new guidelines will not only increase the consistency of sentences and levels of fines but also help local authorities differentiate when a financial penalty or prosecution approach is most suitable. The consultation sets out that the proposed guidelines operate independently of the civil enforcement regimes currently within the housing regulatory sector, but that they would still support the overall enforcement framework and assist local authorities and the courts in understanding their options for tackling housing offences.

The consultation is currently open and runs until 9 April 2026. 

What does ‘reasonably practicable’ mean in the context of investigating a complaint about a potential statutory nuisance? 

. . . where a complaint of a statutory nuisance is made to [a local authority] by a person living within its [area][district], to take such steps as are reasonably practicable to investigate the complaint. (Section 79 of the Environmental Protection Act 1990 / Section 64 of the Clean Neighbourhood and Environment (Northern Ireland) Act 2011)

Reasonably practicable is a phrase that appears in various legislation and is not solely related to functions associated with environmental health. It is often used to reduce the burden of a duty that might otherwise appear to be open-ended. It is a phrase that is used to qualify duties placed on public authorities, employers and others. 

A leading case that is regularly cited in debates on this issue is the House of Lords’ decision in Marshall v Gotham Co [1954] AC 360. The question there was whether the mine owners had done everything that was reasonably practicable to make sure the roof of a passage in their mine was safe. They were sued both for negligence and breach of statutory duty. They were found not liable under either head – the meaning given to the word ‘practicable’ was that it was possible for something to be done with known means or resources or capable of being carried out in practice. The court also held that adding the word ‘reasonably’ did not further qualify the duty.

In Jenkins v Allied Ironfounders Ltd [1970] 1 WLR 304, the court held that it was not reasonably practicable for the floor of the foundry to be swept continually throughout the day to remove any loose metal from the castings. It also highlighted the earlier decision of Edwards v National Coal Board [1949] 704 at 712:

• ‘Reasonably practicable’ is a narrower term than ‘physically possible’ and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it be shown that there is a gross disproportion between them — the risk being insignificant in relation to the sacrifice — the defendants discharge the onus on them.

In West Bromwich Building Society Ltd v Townsend [1982] ICR 257, a Principal EHO had served an improvement notice under the Health and Safety at Work etc. Act 1974 on the Building Society. This required them to fit ‘bandit screens’ at a particular branch to protect the cashiers and was regarded by the council as a test case covering similar premises throughout their area. While the tribunal upheld the notice, it was quashed on a further appeal to the High Court. The question to be decided was whether it was a reasonably practicable measure at the actual location, taking into account the risks, costs and physical ability. It was not appropriate to assess this based on general desirability and could not be a test case. The court also held that such a notice could not ask for more works than required by the building regulations.

More recently, in R (on the application of Friends of the Earth) v Secretary of State for Business, Enterprise and Regulatory Reform [2010] HLR 18, a challenge about an alleged failure to deliver on targets in the Fuel Poverty Strategy was dismissed, as the availability of current resources was a relevant factor which qualified the statutory duties of the government. 

The Northern Ireland Court of Appeal reviewed this recent case: ‘In the matter of an application by Noeleen McAleenon for Judicial Review’ [2025] NICA 44. The case included a challenge as to whether the council had taken reasonably practicable steps to investigate complaints of an odour nuisance from a waste disposal site. A duty under section 64 of the Clean Neighbourhood and Environment (Northern Ireland) Act 2011 mirrors the statutory nuisance duty for the rest of the UK under section 79 of the Environmental Protection Act 1990. Both the High Court and the Court of Appeal agreed that a council witness had been wrong to characterise the Northern Ireland Environment Agency (NIEA) as having primary responsibility for the site. However, the steps they had taken (as set out at paragraph [11] of the judgment) included 46 visits over several months, as well as close liaison with the NIEA. On this basis, both courts were clear that the council had discharged its qualified duty to investigate and had come to a reasonable conclusion that there was no such statutory nuisance.

What is reasonably practicable, and whether the steps taken will stand up to a challenge, depends on the nature of the complaint and what is practicable in the specific circumstances. The seriousness of the matter complained of, and the scale of the impacts, will be relevant to deciding the level of resources to be applied, as will the resources actually available. Taking the pandemic as an example, clearly, what was practicable then was even more limited than perhaps it would be at a different period of time. 

As an example: I have long doubted the general lawfulness of simply sending out noise diary sheets and closing a complaint if no sheets are returned within a short time. And as Lambeth LBC found out in 2018, refusing to investigate domestic noise complaints unless three separate households complained about the same source within a month was held to be unlawful by the Local Government and Social Care Ombudsman (Report 17 018 747). Lambeth was required to amend its policy to ensure compliance. 

Each case must be taken on its own merits and carefully considered. One size does not fit all.

For practical guidance refer to RIAMS procedures - Guidance Note: Factors When Assessing Statutory Nuisance (MP64), and Abatement Notices (MP5), available on RIAMS Libraries. 

The review of the Housing Health and Safety Rating System (HHSRS2) has laid the groundwork for significant improvements in the enforcement of housing standards. With the technical framework now agreed, attention turns to the next critical phase: implementation through the parliamentary process. This article explores how these reforms become law.

The HHSRS is embedded in primary legislation (the Housing Act 2004), but detailed operational changes, such as hazard amalgamation and updated guidance, require secondary legislation. This is achieved through statutory instruments (SIs), which enable the government to introduce technical reforms through parliamentary oversight. The HHSRS in England currently operates under the Housing Health and Safety Rating System (England) Regulations 2005 (SI 2005/3208), which provides the statutory framework for hazard assessment and enforcement under the Housing Act 2004.

In order to update the current statutory instrument, there are two possible principal parliamentary procedural routes. The first is ‘negative resolution procedure’, thought to apply to around 75% of secondary legislation made. Under this approach, the SI is made and laid before Parliament and becomes law automatically unless annulled within 40 ‘parliamentary sitting’ days. MPs or Lords can table a ‘prayer’ motion to annul, but debates are rare and annulments even rarer. This procedure is typically reserved for routine measures and technical updates.

Alternatively, under an ‘affirmative resolution procedure,’ both Houses must actively approve a piece of secondary legislation before it can become law; this usually applies to legislative changes of greater significance. The process involves:

1. Drafting and laying the instrument in draft form for scrutiny

2. Legal clarity and compliance are examined by the Joint Committee on Statutory Instruments

3. Delegated legislation committees in the Houses of Commons and the Lords debate the SI; approval by both Houses is mandatory.

In urgent cases, a ‘made then laid’ format allows the SI to come into force immediately, subject to retrospective approval within 28–40 days. During the COVID‑19 pandemic, for instance, the government utilised the ‘made then laid’ (made affirmative) procedure extensively, particularly under the Public Health (Control of Disease) Act 1984.

Implementation through the parliamentary process

The changes proposed as part of the HHSRS review have set a clear direction for modernising housing safety standards. However, these reforms cannot take effect until they pass through one of the formal legislative processes described above. 

Moving from policy to practice is more than just an administrative step; it is the next critical mechanism that transforms the recommendations and draft guidance developed as part of the HHSRS review into statutory law. In practice, these stages involve:

1. The government confirming HHSRS2 recommendations

2. Drafting and preparing the SI through government legal teams

3. Laying the draft SIs before Parliament, either as made (negative procedure) or laid in draft (affirmative procedure)

4. The process of parliamentary committee review, including debate and scrutiny where required

5. Parliamentary approval or annulment to determine whether the SI becomes law.

Extensive progress has been made in developing the technical framework for HHSRS2. However, we have reached the critical stage: the review’s findings must now transition from technical development into statutory law, the point at which policy becomes enforceable by local authorities. 

See also

UK Parliament, Tracking the progress of delegated legislation, available at: https://guidetoprocedure.parliament.uk/collections/PMJWVx9p/tracking-the-progress-of-delegated-legislation (accessed 8 January 2026).

Joe Marshall, Secondary legislation: How is it scrutinised?, Institute for Government, 19 May 2020, available at: https://www.instituteforgovernment.org.uk/explainer/secondary‑legislation‑scrutiny (accessed 8 January 2026).

The Renters’ Rights Act is moving closer in its preparation for the commencement of Phase one on 1 May 2026. The Ministry of Housing, Communities and Local Government (MHCLG) has published a draft version of regulations (with the finalised version to be provided in March) that are required to be laid by statutory instrument setting out the information that must be included in the written statement of terms that landlords will be required to provide to tenants. The written statement must be provided for all new tenancy made on or after 1 May 2026 and for existing tenancies must be provided as an information sheet to the tenant by 31st May 2026. 

The requirement to both provide a written statement of terms and that the statement includes all the required information as set out in these draft regulations is a legal duty placed on the landlord. As such, it is one of the aspects that will be enforceable by local authorities and which, if not complied with, could result in a financial penalty of up to £7,000 being issued. One of the many ways that financial penalties and their use have been strengthened through the Renter’s Rights Act.  

A couple of quick things picked out from the draft regulations; 

• Firstly, for local authority enforcement, the requirement for the inclusion of an address in England or Wales at which notices may be served on the landlord by the tenant (Schedule 1, Part 1, sect 3) could be a helpful aspect for other investigations and action.

• Secondly, the requirement for there to be statements explaining the landlord’s obligations under different regulations and legislation (Schedule 1, Part 1, sect 12-16) has potential to help increase general awareness among tenants, which typically sits at a relatively low percentage otherwise, of the regulations there to help them.