Regulator or landlord?

The introduction of the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020 (“the Regulations”) has extended the mandatory electrical inspection requirements to local authority landlords and has brought into sharp focus an increasingly common practical problem - what should a local authority do when a tenant refuses access? Many look to an apparently established practice of securing warrants under the Environmental Protection Act 1990, or Housing Act 2004.

It was reported last year that one Local Authority had successfully used this argument to secure an EPA warrant for the purposes of obtaining an Electrical Installation Condition Report (EICR). However, this is problematic for the reasons explored in this article.

For new tenancies granted since November 2025, social landlords have been required to ensure that a valid EICR is in place. Existing tenancies must be brought into compliance by 1 November 2026.

For most landlords, the legal position is relatively straightforward. A refusal of access is addressed through the civil courts by seeking an injunction to enforce the tenant's contractual obligation to permit entry. Such proceedings are often time-consuming and expensive and do not always provide an immediate solution. There also remains a lingering question of the extent to which such injunctions can permit entry by force. It is perhaps unsurprising, therefore, that some local authorities have begun considering whether the statutory rights of entry contained within the Environmental Protection Act 1990 ("EPA 1990") or the Housing Act 2004 provide an alternative route.

The attraction is obvious. Both statutory schemes contain powers permitting entry, and where necessary entry under warrant, for the purpose of carrying out regulatory functions. The question is whether those powers are available where the authority is seeking access, not in its capacity as regulator, but as landlord seeking to discharge its own statutory obligations in respect of its properties.

This article argues that they are not.

The Regulator and the Regulated

The statutory distinction between a local authority acting as regulator and acting as landlord lies at the heart of the issue.

Private landlords and private registered providers experiencing access difficulties must rely upon their contractual rights, enforced through the civil courts.

Local authorities also possess statutory enforcement powers under the EPA 1990 and the Housing Act 2004. Those powers exist because the authority acts as the public regulator responsible for enforcing housing standards and environmental health within its district.

The question is whether those regulatory powers can properly be exercised where the authority is itself the landlord whose compliance is in issue.

In my view, the statutory schemes strongly suggest that Parliament intended the answer to be no.

Both the EPA 1990 and the Housing Act 2004 establish a regulatory framework directed towards third parties. The legislation distinguishes clearly between those exercising regulatory functions and those upon whom regulatory obligations are imposed. Nothing within either statutory scheme suggests that Parliament intended local authorities to invoke coercive regulatory powers against occupiers of their own housing stock in order to facilitate compliance with obligations owed by the authority itself as landlord under other legislations.

Such a construction would effectively collapse the distinction between regulator and regulated.

The consequences of following through with these powers illustrates the difficulty.

Under section 80(1) EPA 1990:

"Where a local authority is satisfied that a statutory nuisance exists, or is likely to occur or recur in the area of the authority, the local authority shall serve an abatement notice..."

Section 80(2) then requires that notice to be served upon the person responsible for the nuisance or, where appropriate, the owner.

Where the premises are owned and managed by the local authority, that person will ordinarily be the authority itself.

Similarly, under section 5(1) of the Housing Act 2004, where a Category 1 Hazard exists the authority is under a duty to take the appropriate enforcement action. The statutory notices are generally served upon the person having control of, or managing, the premises. Again, in relation to local authority housing stock, that person is the authority itself.

In other words, if the Local Authority identified the nuisance/hazard which it alleges, the legislation places upon it a duty to take enforcement action. In the case of its own properties, that would mean enforcement against itself.

The statutory schemes therefore contemplate enforcement against regulated persons, not self-enforcement.

Parliament established distinct regulatory functions which assume separate legal actors. The legislation does not envisage a local authority investigating itself, determining that it has failed to comply with its own obligations and then taking formal enforcement action against itself.

That conclusion is reflected in the authorities.

In R v Cardiff City Council ex p Cross (1983) 6 HLR 1, the Court of Appeal confirmed that a local authority could not exercise housing enforcement powers in relation to properties which it owned.

Likewise, in Ratcliffe and Others v Sandwell Metropolitan Borough Council [2002] EWCA Civ 6, the Court of Appeal held that a local authority could not serve an abatement notice upon itself under the EPA 1990, observing:

"It cannot have been in the contemplation of Parliament that a local authority would serve an abatement notice on itself."

Section 79(1) EPA 1990 imposes a duty upon local authorities to:

"inspect its area from time to time to detect any statutory nuisances which ought to be dealt with under section 80..."

The statutory duties are therefore expressly linked to nuisances capable of being addressed through the section 80 enforcement regime. If Parliament did not contemplate section 80 operating in respect of a local authority's own housing stock, it follows that section 79 cannot properly require the authority to investigate its own properties for the purpose of triggering enforcement action that the legislation itself does not permit. It must follow that a Local Authority cannot then use warrants of entry to investigate nuisances which is had now power to enforce against.

The same reasoning applies equally to the Housing Act 2004 and its related provisions.

Rights of Entry – Single Purpose Warrants

Even if the foregoing analysis were wrong, a separate difficulty remains.

Rights of entry constitute one of the most intrusive powers available to public authorities. They authorise entry onto private property, frequently without the occupier's consent and, where necessary, through the use of reasonable force pursuant to judicial warrant.

For that reason, such powers have long been interpreted strictly. The principle of single purpose warrants is well established.

The constitutional principle underpinning this approach is well established. In Entick v Carrington (1765), the courts recognised that public authorities may interfere with private property only where Parliament has expressly authorised them to do so. That principle continues to inform modern public law. Statutory powers must be exercised only for the purposes for which Parliament conferred them.

It follows that a warrant obtained under one statutory power cannot lawfully be used to pursue an entirely different statutory objective.

Schedule 3, paragraph 2 to the EPA 1990 permits entry only:

“(a) for the purpose of ascertaining whether a statutory nuisance exists; or

(b) for the purpose of taking action or executing works authorised or required under Part III.”

Neither purpose encompasses enabling a local authority landlord to comply with obligations imposed by the Electrical Safety Standards Regulations.

Those obligations arise under entirely different statutory regimes.

Similarly, sections 239 and 240 of the Housing Act 2004 authorise entry for the purpose of exercising functions under that Act. Those provisions facilitate the discharge of the authority's housing enforcement responsibilities. They do not create a general power of entry enabling a local authority to fulfil separate landlord obligations imposed by other legislation.

Where entry is sought solely to enable compliance with the Electrical Safety Standards Regulations, the authority is not exercising its regulatory functions under either the EPA 1990 or the Housing Act 2004. It is acting as landlord.

Absence of an EICR is not a statutory nuisance

A further difficulty concerns the suggestion that the absence of a valid EICR may itself constitute a statutory nuisance.

Reliance is placed upon section 79(1)(a) EPA 1990, which includes the following definition of statutory nuisance:

"any premises in such a state as to be prejudicial to health or a nuisance."

At first glance there is an intuitive attraction to this argument. Defective electrical installations plainly present risks to health and safety, and the absence of a current inspection may increase the possibility that such defects remain unidentified, and the premises is therefore said to be, or potentially be, prejudicial to health.

The statutory language, however, has consistently been interpreted more narrowly.

In Birmingham City Council v Oakley [2001] 1 All ER 385, the House of Lords traced the legislative history of section 79(1)(a) back to nineteenth-century public health legislation concerned principally with insanitary conditions conducive to disease.

The House approved the earlier decision in R v Parlby (1889) 22 QBD 520, in which "premises in such a state" referred to premises that were decayed, filthy, dilapidated or otherwise themselves in a condition giving rise to danger.

Similarly, in R v Bristol City Council ex p Everett [1999] 2 All ER 193, the Court of Appeal concluded that, notwithstanding the ordinary meaning of the statutory language, Parliament's concern was directed towards conditions giving rise to infection, disease or illness rather than every conceivable risk of accidental injury.

The House of Lords summarised the position in Oakley by explaining that the provision concerns features of premises which are themselves prejudicial to health because they constitute a source of infection, disease or illness, such as dampness, mould, accumulations of refuse or infestation.

The absence of an EICR is plainly different.

It is not itself a condition of the premises. Nor does it render premises prejudicial to health within the meaning consistently adopted by the courts. Rather, it represents the absence of documentary confirmation that electrical installations have been inspected within the prescribed period.

That may increase the possibility that defects remain undiscovered, however it does not convert the premises into a statutory nuisance.

Indeed, if the contrary were correct, the implication would be remarkable. Every owner-occupied property lacking a recent electrical inspection could potentially be characterised as a statutory nuisance notwithstanding that no statutory obligation exists requiring owner-occupiers to obtain periodic EICRs. How many owner-occupiers living in their private family home undertake 5 yearly EICR inspections?  It is difficult to conclude that Parliament intended section 79 EPA 1990 to operate to deem all such properties as prejudicial to health.

Conclusion

Local authority landlords undoubtedly face genuine practical difficulties in securing access to carry out inspections required by the Electrical Safety Standards Regulations. The public interest in ensuring that homes are safe is beyond dispute.

The existence of that practical difficulty, however, cannot determine the scope of statutory powers.

The statutory frameworks established by the Environmental Protection Act 1990 and the Housing Act 2004 distinguish between the authority acting as regulator and the authority acting as landlord. The relevant enforcement powers, together with the associated rights of entry, exist to facilitate the exercise of regulatory functions. They were not enacted to provide local authority landlords with an alternative means of enforcing access obligations that Parliament has otherwise required landlords to pursue through the civil courts.

Unless and until Parliament legislates expressly to confer such a power, the better view is that local authorities, like every other landlord, must obtain access through the ordinary civil jurisdiction. Regulatory powers of entry cannot properly be used to circumvent that requirement.

Adam Rulewski is Principal Lawyer – Housing, Civil and Prosecutions (Advocate) at the London Borough of Barking and Dagenham.

Addendum: Anthony Collins reports that local authorities have received communication from the Justices' Clerks' Society and Local Government Association that after a review of the law they should no longer be issuing warrants of entry under schedule 3 of the Environmental Protection Act 1990 (EPA).