Volume 3
Chapter 4 Carrying Out The Maintenance Plan
Legislation
s48 (1)
Who is responsible for carrying out the maintenance plan?
4.1. Owners are responsible for securing the implementation of the maintenance plan. This might mean doing the work themselves, or arranging contractors to carry out the work, depending on the requirements of the plan.
4.2. This includes plans which the local authority has devised (either because the owner has not submitted one, or the one which he or she submitted was not appropriate).
What support should the local authority give to implement the plan?
s48 (2)
4.3. The local authority may do anything it considers appropriate to enable or assist the owner of the house to implement the maintenance plan.
s48 (2)(a)
4.4. But if it is using powers under this section it can make payments into a maintenance account only if this is under the new provision to pay in missing shares where an owner is unable to pay (see Chapter 5 Maintenance Accounts).
s48 (2)
4.5. And it can give money to individual owners under this section only if this is a grant in relation to the administration of the maintenance account (see paragraph 5.9).
s71
4.6. Local authorities might wish to use this section to provide practical support to help owners to implement their maintenance plans. They should also be aware that they can provide direct assistance to owners under their Scheme of Assistance for maintenance works, and through s50 and s51.
s49
When can the local authority enforce the maintenance plan?
4.7. The local authority can enforce a maintenance plan if the owner has failed to secure the carrying out of any maintenance which the plan sets out. It can also enforce the plan if the owner has not done anything else which the plan requires.
4.8. In these situations, the local authority can do anything which it considers necessary or appropriate to secure the implementation of the plan.
4.9. This can include varying the plan before it takes any further action. But under this section this does not include paying money into a maintenance account or directly to an owner, other than under the circumstances set out in paragraphs 4.4 and 4.5 .
s71
4.10. Local authorities may wish to use this section to provide practical support and enforcement. But if they wish to provide direct assistance, they should be aware that they can do so under their Scheme of Assistance or their powers under s50 and s51 (see Chapter 5 Maintenance Accounts).
s181-184
4.11. Local authorities have rights of entry to premises (including adjacent land and premises) at any reasonable time for deciding whether owners have implemented a maintenance plan. 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.
4.12. There is no right of appeal against the decision to enforce a maintenance plan.
Recovery of expenses
s59
4.13. The local authority may recover from the owner any expenses it incurs in enforcing a maintenance plan. This can include any administrative expenses incurred, and interest at a reasonable rate from the day on which it first serves the request for payment.
Part 7
4.14. The local authority can also issue a repayment charge against the property to reclaim these costs. There is more information in Annex E Recovery Of Expenses And Repayment Charges.
Policy and Good Practice
Who is responsible for carrying out the maintenance plan?
4.15. The local authority will want to ensure that owners know they are responsible for implementing the plan. And it should also highlight that the local authority can enforce the plan, and will recover costs, if owners do not do this.
4.16. It might be useful if the local authority includes information on the whole process from the point at which it serves the maintenance order.
What support should the local authority give?
4.17. Local authorities will want to think about what support they can give to owners to help them to implement their maintenance plans. By providing appropriate support from the beginning they may be able to reduce the number of maintenance plans which fall to them to enforce.
4.18. The support which owners need is likely to vary depending on the individual requirements of the plans, and the experience and circumstances of the owners. For example, owners of individual houses might require more support than those in tenemental properties where a property manager may be overseeing the implementation (although this is not to say that they will not also require support). Some groups of people may also require more support, such as older people or other equality groups.
4.19. Local authorities can use their Scheme of Assistance to support owners who have a maintenance plan. So the local authority will want to be thinking about what in particular might be useful for these owners when designing their SoA.
Monitoring the implementation of the plan
4.20. The local authority can enforce a maintenance plan if the owner fails to secure its implementation. The authority can also step in if the owner does not do anything else which the plan requires.
4.21. So the local authority will need to have systems in place to identify when this happens. It will need to monitor the plan throughout the whole period which it covers, potentially up to five years.
4.22. The design of the maintenance plan will have an impact on how the local authority can monitor it. A plan with clearly defined targets and timescales will be easier to assess than one which has fewer discrete milestones. The local authority will want to bear this in mind if it designs a standard form (see also Chapter 3 Maintenance Plan).
4.23. The local authority may already have systems in place to monitor the condition of houses over a period of time. For example, there may be arrangements to monitor houses which the local authority has previously supported through grants. Or environmental health colleagues might have a system for tracking properties they have dealt with in the past.
4.24. It will be up to each local authority to develop a programme for monitoring maintenance plans which is appropriate to its circumstances. It will want to consider factors such as existing arrangements for monitoring, the design of the maintenance plan, and the available resources (for example in terms of staff commitment). Paragraphs 4.25-4.30 set out one possible approach.
How will the authority monitor the plan?
4.25. The local authority could require owners to submit a return to show their progress against the maintenance plan to date. The local authority could provide a pro-forma for return to make it easier for owners to respond, and for the authority to assess their progress.
4.26. Property managers (where applicable) could take a role in coordinating this response. But the owners should be aware that ultimately the responsibility to implement the plan lies with them.
4.27. If the return identified a problem, or if owners did not make a return, the local authority could then carry out a follow up on-site survey, to compare the current state of the house with the schedule of maintenance set out in the plan. The authority would need to decide who would be responsible for these surveys, for example private sector policy officers or qualified surveyors. Again, this might depend on the level of detail which the maintenance plan contains.
4.28. The benefit of this approach is that owners would primarily be responsible for satisfying the local authority that they are implementing their plan. The authority would only need to become more involved on a practical basis if there was a problem with this return.
4.29. The local authority could also decide to combine these elements, for example by asking owners to make returns as well as carrying out surveys on a random basis as a form of quality control.
4.30. The amount of available resources is likely to determine how pro-active the local authority will be in terms of monitoring houses.
How often will the authority monitor the plan?
4.31. The local authority should also consider how frequently it intends to monitor the progress of maintenance plans. It will need to check plans frequently enough to identify problems in good time. But it will also want to ensure that this is not so frequent that owners are unlikely to make the returns or the local authority is unable to cope with the volume of responses.
4.32. It should make sure that the returns are appropriate in terms of what the maintenance plan sets out. If the plan identifies maintenance which the house needs on a yearly basis, then it would make sense for the local authority to require a yearly return from the owner shortly after each of these deadlines. If, however, the work is done on a 2 yearly cycle, a yearly return might not always be useful in identifying whether or not the owner was implementing it.
4.33. The local authority will want to think about when it asks owners to make their returns. It might decide to focus all the returns to one point of the year, for example tying it in to the end of the financial year. Or it could decide to stagger returns across the year, by asking owners to submit returns by the end of a particular month, depending on when the local authority first approved the plan. Important factors here might be how many maintenance plans the local authority will be monitoring, and what pressures staff might have at various points in the year.
4.34. It might also be useful for the local authority to consider whether it will have any form of ad hoc returns, in addition to the formalised cycle. This might be something it would want to think about after a period of particularly heavy weather, for example, to find out whether owners were implementing any part of the maintenance plan in relation to identifying and dealing with storm damage.
Enforcement of the maintenance plan
4.35. The local authority should only take action to enforce a plan where the owner has failed to secure its implementation, or to do anything else which the plan requires him or her to do.
4.36. Local authorities are not obliged to take action in these circumstances. But they will want to consider the consequences of not doing so. The house in question may potentially fall into disrepair if it is not maintained. And other owners might realise that the local authority is not taking enforcement action.
4.37. If, on the other hand, the local authority takes action to enforce any plan as soon as an owner fails to implement it, this might act as an incentive for other owners to take responsibility for implementing their plan.
When should the local authority enforce the plan?
4.38. Local authorities will need to think about how they will determine when they need to take enforcement action. Again, the design of the maintenance plan is likely to help with this. If the plan sets out clearly defined and measurable targets, it will be easier for the local authority to assess when an owner has failed to carry these out.
4.39. The local authority should also think about what steps it will take before enforcing the plan. Contacting the owners in the first instance might be enough to get them to take responsibility for implementing the plan.
4.40. For example, the authority should advise owners that it has identified a problem with the implementation of the plan, and what will happen if the owners do not rectify this (in terms of enforcement). Owners may not be aware of the problem. Or they may have a valid reason for not having taken certain action which the maintenance plan sets out.
4.41. The local authority must give notice to owners if it intends to exercise its rights of access (as paragraph 4.11) to establish whether or not owners are implementing their maintenance plans. The authority should ensure that it identifies any equality issues in advance of giving such notice. In particular it should consider the legal requirements embodied in the separate Disability, Gender and Race Equality Duties.
What action will the local authority take?
4.42. If the local authority is satisfied that it needs to step in to enforce the maintenance plan, it will need to determine how much action it will take.
4.43. The local authority can do anything which it considers necessary or appropriate to secure the implementation of the plan. If it wants to provide assistance to owners, it should be aware that it can pay money into a maintenance account only to cover a missing share, in certain circumstances. And under its maintenance plan powers it can only give grant to owners if this is to cover certain administrative costs around the maintenance account (see Chapter 5 Maintenance Accounts for more information). Paragraphs 4.3-4.10 also consider this issue, including the separate issue of assistance under the Scheme of Assistance.
4.44. So local authorities will have quite a lot of flexibility in terms of how much, or how little, they intervene to secure the implementation of the plan.
4.45. The local authority should make an assessment of the action it needs to take on the basis of each individual maintenance plan. It is ultimately the owner's responsibility to implement the maintenance plan, so it would be good practice for the local authority to look to do as little as possible to get the plan back on track for owners to take forward. For example, if the plan sets out the required maintenance on an annual basis, the local authority might want to carry out those elements for the current year, and hand the implementation back to owners to take forward in subsequent years.
4.46. There may be situations where the local authority thinks that it is appropriate to take on the management of the plan for the rest of the period which it covers. But this is likely to be only after the local authority has taken enforcement action on a number of occasions, where owners are continually failing to secure the implementation of the plan.
4.47. And if the local authority takes on physical aspects of the maintenance plan, such as carrying out maintenance or arranging for assessments, it will need to decide whether this should be done in-house or through external contractors. It will want to consider how to apply existing procurement or tendering practices it uses to ensure that this is value for money, since it will be reclaiming the costs from the owner (see Annex E for more information on repayment charges).
4.48. Alternatively, it may be that the local authority only needs to offer support in terms of providing advice to owners on how to arrange to do the work. For example, it might decide to hold meetings for owners in a block where a maintenance plan is slipping, to provide advice to owners on how to engage contractors.
4.49. The resources available to the local authority will also have an impact on how much enforcement action it takes. It can recover expenses from owners, but it will need to cover the costs in the first place.
Recovery of expenses and repayment charges
4.50. It will be up to the local authority to decide when to register a repayment charge. But if it does this as soon as possible after it has enforced a notice, this may act as an incentive to owners to take responsibility for implementing the rest of their plans themselves, rather than relying on the local authority to do it.
4.51. There will be a cost for registering a repayment charge.
4.52. More information on repayment charges is available in Annex E.
What happens on completion of the maintenance plan?
4.53. There is no provision in the Act to extend maintenance plans beyond the five year period.
4.54. But there is nothing to stop the local authority from serving another maintenance order, if it thinks this is appropriate in terms of meeting the requirements under the Act for issuing a maintenance order.
4.55. For example, the local authority may have had to step in continually to enforce the maintenance plan on a particular house. It might take the view that the owner of the house is therefore unlikely to continue to maintain it once the maintenance plan has come to an end.
4.56. In this situation, the local authority may want to serve another maintenance order under the provision that the house is "unlikely to be maintained to a reasonable standard". But the authority will want to ensure that it has sufficient evidence to support this decision, as the owner will have a right of appeal against the maintenance order.
4.57. It is likely that the majority of owners will be taking responsibility for maintaining their properties by the end of the period of the maintenance plan. The local authority may want to encourage owners to continue with a maintenance plan on a voluntary basis, for example by agreeing a plan with the factor (if there is one). The local authority can continue to provide support, for example by providing a standard form, or through their powers around maintenance accounts.
4.58. The local authority might also want to consider if and how it will continue to monitor properties once a maintenance plan has ended. For example, it might want to include a walk-by assessment on a yearly basis so that it can identify if a problem with poor maintenance recurs.
4.59. As part of the longer term strategy on maintenance plans, the authority might also want to consider how it will assess the impact of serving a maintenance order. It might be useful for business planning purposes to be able to show whether the use of maintenance orders has taken properties from a state of poor maintenance to a culture where owners are increasingly taking responsibility.