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Volume 3
Chapter 2 Maintenance Order
Legislation
What is a maintenance order?
s42
2.1. A maintenance order requires the owner of a house to produce a maintenance plan. The plan should maintain the house to a reasonable standard.
2.2. The order will specify the period of time the owner will have to submit the plan to the local authority for approval.
2.3. The order can require the plan to cover up to a five year period.
s45 (1)
2.4. The order can require owners to prepare a joint maintenance plan if it relates to two or more houses.
2.5. There is no standard form for a maintenance order.
When can the local authority use a maintenance order?
s42 (2)
2.6. The local authority can serve a maintenance order on a house which the owner has not maintained to a reasonable standard, or if it considers that the owner is unlikely to maintain the property to a reasonable standard.
s42 (2)
2.7. It can also serve a maintenance order on a house where there has been work as part of a work notice or repairing standard enforcement order. But it can do this only if the benefit of that work has been reduced or lost because of a lack of maintenance.
s194 (1)
2.8. The Act defines "house" as any living accommodation which is, or which is capable of being, occupied as a separate dwelling. But this does not include mobile homes, or any other living accommodation which is not a building.
2.9. The definition of "house" includes facilities or areas which are communally owned, as well as other related areas, such as gardens or out-houses. So local authorities can use the new powers to deal with problems with, for example, stairwells, bin stores, roofs, gardens, drying greens, back courts, yards, garages or outhouses.
s69
2.10. Local authorities can issue maintenance orders to the owners of non-residential premises. But they can do so only if the work is needed to secure the maintenance of any house which forms part of the same building.
s193
2.11. Local authorities will also wish to note that the 2006 Act binds the Crown. This means that they do not need the consent of the Crown before serving a notice on a house which it owns, for example on Ministry of Defence housing.
s181 -184
2.12. Local authorities have rights of entry to premises (including adjacent land and premises) at any reasonable time for deciding whether it is appropriate to serve a maintenance order. They should give notice at least 24 hours in advance if they intend to access the land or premises, unless the situation is urgent or if giving such notice would defeat the purpose of the visit. Any person who the local authority authorises to do this must be able to produce written evidence of authorisation from the local authority.
What else does the local authority have to do to use maintenance orders?
s62, 63
2.13. The local authority should issue the maintenance order to the owner of the house. It should consider the requirements of the Act in terms of serving a document (see Annex C Service Of Documents for more information).
s61, 63(7)
2.14. The local authority must register the maintenance order with the appropriate land register. But it does not have to do this until after the period for appeal has passed, or the appeal (if made) has been abandoned or finally determined.
s46 (6)
2.15. The maintenance order will cease to have effect when the local authority registers the maintenance plan.
s64-66
2.16. Owners can appeal the decision to serve a maintenance order within 21 days of receiving notice of the order (see Annex D Appeals for more information).
Policy and Good Practice
2.17. There is no standard form which local authorities must use when they issue a maintenance order. But there are certain things which a maintenance order must include to satisfy the legislation and to enable registration.
2.18. This chapter sets these out, as well as highlighting things which it would be useful for local authorities to consider when designing a maintenance order. It also considers what information local authorities might want to provide to owners when they get a maintenance order. Authorities should also consider the different needs of owners when providing information, for example by using translation, interpretation or alternative formats.
2.19. For ease of reference, the tables in Annex A summarise the points which this chapter raises.
What is a maintenance order?
Reasonable standard
2.20. The maintenance order will require the owner to submit a maintenance plan to secure the maintenance of the house to a "reasonable standard". The Act does not define this term, but the local authority may, for example, wish to make reference to the standard of similar properties in the area (see also paragraph 2.31). We cover this further in the Maintenance Plan good practice section (3.61-3.66).
2.21. However the local authority chooses to define "reasonable standard", it should provide information to owners on this when it serves a maintenance order. This will enable the owner to produce an appropriate maintenance plan.
Time frame for the maintenance plan
2.22. The maintenance order can require a maintenance plan to cover up to a five year period.
2.23. Local authorities can decide how long the maintenance plan should cover, so long as this is no more than five years. Local authorities will want to consider:
- whether they will always stipulate a certain amount of time - and if so, whether that will be the full five years or a shorter period; or
- whether to have a degree of flexibility, for example setting different time periods depending on the individual circumstances of each maintenance order.
2.24. Local authorities will want to consider the resource implications when deciding how long the plan should cover. The authority will have a role to play in monitoring, and potentially implementing, maintenance plans throughout their full duration.
2.25. Authorities will also want to think about the effectiveness of the maintenance plan. For example, if the house is in an area of high turnover then the local authority might prefer to require a plan for the full five year period to ensure consistent maintenance of the property.
Deadline for submission of maintenance plan
2.26. The Act does not specify how long the maintenance order should give owners to submit their maintenance plans to the local authority for approval.
2.27. Local authorities will want to decide on a time period which is reasonable. This might depend on:
- whether the local authority is providing a template for the maintenance plan;
- how detailed the plan is to be;
- the complexity of the problem(s) with the house which the local authority has identified;
- whether it is requiring owners to involve professionals in drawing it up, for example in case the owner needs time to get several quotes; and
- whether assistance is available through the local authority's Scheme of Assistance.
2.28. See also the Policy and Good Practice section of Chapter 3 for more information on the content of the plan.
2.29. The local authority will be responsible for devising plans where owners do not comply with maintenance orders. So it will be important that local authorities give owners a realistic amount of time to submit their plans. Otherwise the local authority may end up having to produce an excessive number of maintenance plans itself (see also Chapter 3 Maintenance Plan).
When can the local authority use a maintenance order?
Previous maintenance
2.30. Local authorities can serve a maintenance order where an owner has not, or is unlikely to, maintain his or her house to a reasonable standard. Paragraphs 2.20 and 2.21 highlight that the Act does not define this term.
2.31. The local authority will want to devise a framework for assessing what a "reasonable standard" is, so that it can justify its decision for serving a maintenance order (owners can appeal against that decision (see Annex D Appeals for more information). This will also help local authorities when assessing plans which owners have submitted, since the plan must also secure the maintenance of the property to a "reasonable standard" (see also 3.61-3.66 on assessing the plan).
2.32. There is nothing to stop local authorities making reference to the local area when determining what standard is reasonable. But the local authority will want to ensure it can defend its decision.
Link to work notices
2.33. Local authorities can serve a maintenance order where the benefit of a work notice has been reduced or lost due to a lack of maintenance.
2.34. Local authorities will not be able to serve work notices until Chapter 5 of the 2006 Act is in force. So it may even be several years before a local authority can issue a maintenance order under this category. There will need to have been sufficient time for the local authority to have issued the work notice, for the owner to have implemented it, and for the benefit of it to have been reduced or lost due to poor maintenance.
2.35. So there is no automatic follow-on between a work notice and a maintenance order. Local authorities can issue a maintenance order immediately after a work notice only if they are satisfied that the house is unlikely to be maintained to a reasonable standard. For example, the local authority might decide to take this view if it had issued the work notice to fix a problem which had been caused due to a lack of maintenance, and there was no evidence to suggest that the owner's attitude had changed.
2.36. As there is likely to be an element of subjectivity to this decision, it will be important for the local authority to have the evidence to support it, in order to justify it if the owner appeals.
2.37. Local authorities might also want to think about what information they give to owners who receive work notices. For example, the local authority could provide information at the point of completion of the work notice on what maintenance is needed, and how to go about it. Authorities should ensure owners are aware of what can happen if they do not maintain their property, that is to say that the local authority can serve a maintenance order.
2.38. The local authority might also want to consider how it will monitor houses where there have been work notices. This might enable it to approach owners as soon as a problem starts to develop. This could prevent the local authority having to serve a maintenance order at a later date.
Link to repairing standard enforcement order
2.39. Local authorities can also issue a maintenance order where the benefit of a repairing standard enforcement order has been reduced or lost through a lack of maintenance.
2.40. The Private Rented Housing Panel will inform each local authority about all repairing standard enforcement orders issued in its area, which will alert the local authority to buildings where there could be problems, even if the necessary work was carried out by the landlord, not the local authority. The authority will want to consider what information it gives to landlords to advise that it can use a maintenance order if they do not maintain their property.
2.41. The Repairing Standard powers came into force in September 2007. The Scottish Government has produced separate guidance on these powers, which is available via the website at www.scotland.gov.uk.
Identifying houses
2.42. Local authorities will want to think about how they will identify potential houses for maintenance orders.
2.43. It is likely that information will come from a variety of sources. Local authorities might already be aware of houses, or members of the public might highlight properties to them. Authorities will need to decide how they will manage and/or prioritise these cases.
2.44. The local authority might choose to be proactive in identifying houses for maintenance orders. It will want to think about what information it already has, and what resources are available if it wants to gather more.
2.45. Some possible sources of information might be:
- local house condition survey - either through looking at existing surveys, or commissioning add-on local surveys to get more detail. Local authorities would need to think about resources for this.
- existing databases, for example of previous grant recipients. This might highlight clusters of properties which would benefit from longer term maintenance work. Local authorities may already be monitoring these properties as part of the conditions of grant. This might also mean that the authority will have evidence of the property's previous state (that is to say from the standard on completion of the notice) to compare to its current state.
- other databases, for example environmental health.
2.46. Local authorities will want to think about how to manage these processes, for example in terms of coordinating information from a variety of sources. They will also want to think about how to manage the information in terms of deciding on what is the more appropriate response (see paragraphs 2.49-2.55).
2.47. The local authority should also decide what will trigger a maintenance order. The definition of "house" can include gardens, yards and so on, as well as the living accommodation itself. The local authority may wish to develop a policy on what elements of the house will trigger intervention, for example whether it can be a single element or only where there are several problems.
2.48. If the local authority exercises its rights of entry to premises to identify whether a maintenance order is needed (as paragraph 2.12) it should consider any equalities issues in advance of giving notice of this.
Using maintenance orders
2.49. A local authority does not necessarily have to issue a maintenance order on every house which it has identified as not being maintained to a reasonable standard.
2.50. In all cases it would be good practice for the local authority to get in touch with the owner in the first instance. He or she might not be aware that there is a problem, and the threat of a maintenance order might be enough to rectify the situation. Or there may be something the local authority can do to help without having to take statutory action, for example providing information or advice under the Scheme of Assistance or other advice services.
2.51. Even if the owner starts to take responsibility at this stage, the local authority might want to think about how it will continue to monitor the property. For example, it might be appropriate to revisit the property after a reasonable period to check that the owner is continuing to maintain it.
2.52. If the local authority decides that it does need to intervene, it will want to ensure it has systems in place to assess what the most appropriate statutory action would be.
2.53. Chapter 1 considered the potential overlap between maintenance orders and work notices. Local authorities will want to make reference to their policy for assessing the appropriate response, taking account of the issues which paragraph 1.6 sets out, when deciding what action to take. Maintenance orders potentially commit the local authority to staff resource for up to five years, from issuing the maintenance order through to assessing, monitoring and potentially implementing the plan.
2.54. It is also possible that it is more appropriate to deal with the problem using powers other than those under the 2006 Act. For example, environmental health powers might overlap with some issues of poor maintenance.
2.55. It will therefore be important for the local authority to have structures in place to assess the appropriate response once it has identified issues of poor maintenance. And this is likely to include a wide range of colleagues, for example from private sector housing, environmental health, and finance (in terms of identifying the need for the authority to be committed to seeing the maintenance orders and plans through to completion from the start).
What else does the local authority have to do to use maintenance orders?
Service of documents
2.56. The local authority must serve the maintenance order on the owner of the house, as it is the owner who is responsible for drawing up the maintenance plan.
2.57. There is more information on this in Annex C Service Of Documents .
Register
2.58. The local authority is responsible for registering the maintenance order in the appropriate land register. But it does not need to do this until after the period for owners to appeal (21 days from the service of notice), or until any appeal is abandoned or finally determined.
2.59. It is likely that the local authority will already have systems in place to register documents with Registers of Scotland, and should be familiar with the processes for identifying properties and registering documents. It should ensure that it notifies Registers if different people will be involved in the registration of the maintenance documents. If local authorities wish further guidance on how to register documents they can contact Registers of Scotland at customer.services@ros.gov.uk.
2.60. To enable registration, Registers of Scotland have advised that the maintenance order will need to identify the property:
- if the property is in the Land Register, the maintenance order must include the title number of the property. If it is part of a registered title, the order will need to describe the property sufficiently to identify it as a separate unit, for example "southmost flat on first floor of tenement 5 Union Street, Aberdeen part of Title Number ABN1234";
- if the property is in the register of Sasines, the maintenance order must include a description of the property, such as a particular reference or description.
2.61. For properties in the Land Register, the owner may be able to provide the Land Certificate to show the title number. But if not, the local authority should be able to identify this using Land Register Direct (if they are a registered user).
2.62. Local authorities should already have systems in place for identifying properties on the Register of Sasines, for example through a private search company.
2.63. The local authority will be responsible for the costs of registering maintenance orders. As at autumn 2007, the cost of registering a document was £30. Each search on Registers Direct costs approx £5. There is no provision in the Act for the local authority to charge the owner for these costs.
2.64. The local authority does not have to de-register the maintenance order when it registers the maintenance plan.
Appeals
2.65. Owners have 21 days to appeal the decision to serve a maintenance order. It would be good practice for the local authority to ensure that owners are aware of this, for example by including information on this (such as their rights, timescales) when it serves the maintenance order.
2.66. Local authorities should think about how they will respond to appeals from owners. This might include deciding who will be responsible for monitoring the process of the appeal.
2.67. As mentioned above, it will be important for authorities to ensure they have sufficient evidence throughout the process in case owners appeal.
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