Commentary on provisions of Act Monitoring and enforcement Section 32: Emergency remedial action
Section 32 adds sections 225A to 225H to the HRA 2008. These measures enable the regulator, following completion of a survey under section 199, to arrange for an authorised person to take emergency remedial action on premises to remedy specified failures on the part of registered providers that cause an imminent serious health and safety risk. Section 225A provides an overview of the group of sections.
	Section 225B(1) enables the regulator to arrange for an authorised person to take emergency remedial action, as long as:
A survey of the premises has been carried out under section 199;
The regulator is satisfied that the registered provider has failed to maintain premises in accordance with standards under section 193 and that the failure has caused an imminent risk of serious harm to the health or safety of the occupiers of the premises or other premises; and
The registered provider has failed to comply with an enforcement notice requiring it to take action to address the relevant failure.
	Subsection (5) defines ‘emergency remedial action’ as carrying out works which the authorised person considers immediately necessary to remove the imminent risk of serious harm. Subsection (6) defines ‘authorised person’ as a member of the regulator’s staff, or another person who has been authorised in writing by the regulator to carry out the action on its behalf. Subsection (7) allows arrangements for payment to be made when a person other than a member of the regulator’s staff is carrying out emergency remedial action.
	Section 225C(1) provides the power for an authorised person to enter premises at any reasonable time (or times) to carry out emergency remedial action. This power can only be used if an authorised person has given a pre-entry notice in accordance with subsection (2) to:
The occupier or any one of the occupiers (if the premises are occupied);
Where the premises include common parts, the occupier or any one of the occupiers of each of the dwellings in the building that use those common parts;
The registered provider; and
The proprietor of a registered estate in the premises.
	Subsection (3) states that an authorised person need only give a pre-entry notice once, even multiple entries are made. A pre-entry notice authorises any authorised person to enter (not only the authorised person who gave the notice). Subsection (4) provides that a pre-entry notice must:
Identify the premises to be entered;
Identify the failure in question to be remediated;
State that a person authorised by the regulator intends to enter the premises;
Specify the (first) date of proposed entry;
Specify that the power under section 225C will be used to allow the authorised person to enter; and
Explain rights of appeal (set out in section 225H).
	Subsection (5) provides that a pre-entry notice can state that an authorised person would propose to apply for a warrant if they are not allowed to enter the premises. Subsection (6) provides that an authorised person cannot enter a premises before the (first) date specified on the pre-entry notice, or within 24 hours of giving the notice unless the relevant person in respect of a pre-entry notice consents. The relevant person is defined in subsection (7) as the party entitled by subsection (2) to the pre-entry notice in question.
	Subsection (8) defines "common parts" of a building as including the structure, exterior and any common facilities for persons occupying the building.
	Section 225D makes supplementary provision in respect of the power under section 225C. Subsection (1) allows for a pre-entry notice to be given to occupiers by fixing it to a conspicuous part of the premises. Subsection (2) provides that where a pre-entry notice must be given to owners of the premises in question, it may be given by sending it to an address supplied for the purpose of a notice under the Land Registration Act 2002. Subsection (3) states that the authorised person must show a copy of the authorisation from the regulator to an occupier who asks to see it. Subsection (4) allows the authorised person to be accompanied by any other persons they think will be needed for them to conduct the emergency remedial action and to take any equipment or materials that they think are necessary for the action. Subsection (5) and (6) allow any of these materials or equipment to be left in a place on the premises until the action is completed, provided that leaving the materials or equipment there does not significantly impair the ability of an occupier to use the premises (or where relevant common parts of a building) or it is necessary to leave the material or equipment on the premises (or where relevant common parts of a building) and it is not possible to leave them in another place that does not significantly impair the ability of an occupier to use the premises (or common parts).
	Section 225E allows an authorised person to apply for a warrant from a justice of the peace to enter a property and conduct emergency remedial action. Before a warrant may be issued a justice must be satisfied, on sworn information in writing by an authorised person, that it is reasonable for the authorised person to need to enter the property to take the action. Subsection (2) provides that the justice must also be satisfied that the authorised person has tried to enter the premises but that they have been refused entry, that the premises are currently unoccupied or the occupier is temporarily absent, or that there are reasonable grounds to believe entry will not be possible without a warrant. Subsection (3) allows for entry at any reasonable time, and using reasonable force if necessary. Subsection (4) allows the authorised person to take with them any equipment or materials that they think are necessary for the emergency remedial action. Subsection (5) and (6) allow any of these materials or equipment to be left in a place on the premises until the action is completed, provided that leaving the materials or equipment there does not significantly impair the ability of an occupier to use the premises (or where relevant common parts of a building) and it is not possible to leave them in another place that does not significantly impair the ability of an occupier to use the premises (or common parts). Subsection (7) provides that a warrant may allow the authorised person to be accompanied by any other people they think will be needed for them to complete the action properly. Subsection (8) clarifies that ‘accompanying persons’ have the same powers as the authorised person, but that they must be in the company of the authorised person at the time, and be supervised by them. Subsection (9) states that the authorised person must show a copy of the warrant and authorisation from the regulator to anybody who asks to see it. Subsection (10) states that the warrant is in force until the emergency remedial action is completed. Subsection (11) requires the authorised person to leave premises that were unoccupied (or had a temporarily absent occupier) at the time of entry as effectively secured against trespassers as they were found upon entry. Section 225F(1) make it an offence for a registered provider, or an officer of a registered provider, to obstruct an authorised person entering or using powers to carry out emergency remedial action after entry without a warrant. Subsection (2) states that any person commits an offence if they obstruct an authorised person exercising a warrant or powers under section 225B (where the authorised person’s entry was authorised by warrant). Subsection (3) states that a person guilty of one of these offences is liable on summary conviction to a fine not exceeding level 4 on the standard scale. Subsection (4) provides that proceedings must be brought by or with the consent of the regulator or the Director of Public Prosecutions.
	Section 225G(1) allows the regulator to reclaim ‘relevant expenses’ for carrying out emergency remedial action (and interest on those expenses) from the registered provider. Subsection (2) defines ‘relevant expenses’ as reasonable expenses which the regulator has incurred in taking emergency remedial action or deciding whether to take emergency remedial action (as well as any related costs). Subsection (3) states that these expenses must be paid by providers within 28 days of being given notice under subsection (1), and subsection (4) adds that interest may be charged on any sums not paid by the end of this period.
	Section 225H(1) permits a registered provider to appeal to the High Court against decisions by the regulator to enter premises to conduct emergency remedial action, and/or a decision to reclaim ‘relevant expenses.’ Subsections (2) and (3) provide that appeals must be brought within 28 days from the day the registered provider is given the pre-entry/expenses notice, (or in relevant cases the day the premises were first entered under a warrant). Subsection (4) states that a question cannot be raised on appeal against the reclaiming of expenses by the regulator, if it could have been raised on an appeal against the carrying out of the emergency remedial works themselves instead. Subsection (5) states that where an appeal against reclaiming expenses is made, the provider does not need to pay these expenses until the appeal outcome has been determined or the appeal is withdrawn (and the provider also does not have to pay any interest on the expenses owed during this period.)
	These measures will allow the regulator to take emergency remedial action quickly to address issues causing an imminent risk of serious harm to the health and safety of occupiers.