Calling out wrongdoing: A general enforcement duty?

[This is the last post of 2025.  It is the first part of a developing set of thoughts about housing standards in Wales, and what we should be doing about them.  Both parts argue that we should be considering (at least) what is going on in Westminster around housing standards and their enforcement.  In this post, I am asking why we don’t have a general enforcement duty and greater scope for civil penalties.  In the next one, which will be the first post in 2026, I will be asking about whether we should incorporate Awaab’s law into Renting Homes – spoiler alert: yes.]

In this post, I want to return to something which has troubled me, and continues to trouble me.  Rightly, I think, in Wales, we consider ourselves to be progressive in terms of housing rights and laws.  That was, in part, what Renting Homes was trying to do, and what the changes to homelessness law broadly are seeking to do.  We might quibble with whether the legislation achieves those aims but, in principle, most of us are seeking to achieve a proper balance and ensure that housing is decent and occupiers have enforcement rights.  However, we can’t deny the statistics:

• ONS data show that, up to March 2025, homes in Wales had a median EPC score of 68 (Band D); smaller rural areas have the lowest score.
• Welsh housing stats suggest that nearly 12,000 dwellings were assessed as having a category 1 and/or 2 hazard
• Around 82% of properties are free from category 1 housing hazards, suggesting that 18% have a relevant hazard
• Around 47% of properties have adequate energy performance

The English Renters’ Rights Act places a general duty on local authorities to take enforcement action, and the civil penalty regime has been expanded by that Act in England.  What stops us in Wales from doing something similar?  What stops us in Wales from having a comprehensive civil penalty regime entitling local authorities to levy a financial penalty on a defaulting landlord instead of bringing a prosecution?  If those two elements were brought forward, in addition to the right of tenants to withhold their rent, would that not be “progressive”?  As the Chartered Institute of Environmental Health Cymru president, Mark Elliott, said at the annual conference in October (I wasn’t there, but the speech is online), “we’ve never shied away from calling out wrongdoing wherever it is found”.

There is a really intersting (and, to be honest, a little depressing) piece of work in medical law by my colleague, John Harrington, and colleagues, about how the devolved governments adopted different regimes for organ donation.  It’s a little depressing because it kind of demonstrates just how petty and competitive legislators can be.  We can demonstrate this by the Westminster government calling their registration scheme in England a “database” so that it looks different to the registration and licensing system we have under the Housing (Wales) Act 2014.

But, if devolution offers a laboratory of social and legal change, we need to take that laboratory seriously, put aside pettiness, and ask ourselves whether, just maybe, other governments (including Westminster) may be on to something.  My colleagues and I have argued that the civil penalty regime was one element which was pushing English local authorities towards greater use of their enforcement powers.  It is, surely, a perfectly proper thing for a local authority to use the full range of its enforcement powers; but, far too often, local authorities rely (and perhaps, over-rely) on what we would call compliance practices, by which we mean working with landlords to ensure their properties meet the relevant standards rather than use enforcement powers against them.  We can argue the toss over whether that kind of practice is lawful (given the duty to enforce where there is an assessed Cat 1 hazard), but a civil penalty regime strikes landlords in their pockets.  If landlords/providers are not fulfilling their obligations, would we actually want them to be in that role anyway?