Appeal Against Emergency Remedial Action Notice Dismissed by First-tier Tribunal

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference : CAM/22UG/HER/2019/0001

P : PAPERREMOTE

Property : 42b [ADDRESS] [POSTCODE]

Applicant: [redacted]

Respondent : [redacted]

Type of Application : Appeal against the service of a notice of emergency

remedial action under s.41 [HA 2004, s.45]

Tribunal : Judge [NAME] of determination : 7th May 2020

DECISION

• Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 1–3

• Expenses incurred . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 4–8

• Material statutory provisions and guidance . . . . . . . . . . . . . . . . . . . . paras 9–19

• The evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 20–32

• Discussion and findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 33–37

1. This appeal is against the service on the applicant of a notice of emergency

remedial action, dated 28th November 2019, under s.41 of the Housing Act 2004.

Service of such a notice is a legal requirement where emergency remedial action

has been taken under section 40 of the same Act. The appeal has been brought,

in time, under section 45 of the Act. This entitles the applicant to challenge the

action taken.

2. While the applicant was content to proceed without an oral hearing directions

were given for a hearing and possible inspection on 5th May 2020. The Covid-19

pandemic then intervened, inspections and face-to-face hearings were halted, and

the tribunal wrote to the parties enquiring how they wished to proceed. Faced

with the option of a paper or telephone hearing or adjourning the case for

perhaps upwards of six months (which was the respondent’s initial suggestion)

the parties both agreed that it be dealt with on paper. The tribunal therefore

proceeded on that basis.

3. For the reasons set out below the tribunal dismisses the appeal against service of

the notice under section 41.

Expenses incurred

4. While the applicant formally appealed against the service of the notice under

section 41 the main issue troubling it was the cost of the remedial work and its

administration, which the respondent local authority has invoiced for :

a. Inv 20171251 dated 04-Dec-19

Emergency remedial action notice £520.00

b. Inv 20171979 dated 14-Jan-20

Cost of emergency remedial action works £798.00

Cost of Officer time 8 hours @ £50 per hour £600.00 £1398.00

£1918.00

5. Section 42 provides for the recovery of expenses reasonably incurred in taking

emergency remedial action under section 40. The expenses become payable after

the expiry of 28 days from the date of the notice but, as an appeal against it has

been brought under section 45, the “operative time” for doing so is suspended

until the end of the period for appealing against this decision to the Upper

Tribunal or, if an appeal be brought, until after a decision has been reached on

appeal confirming the local authority’s decision. Enforcement of payment, and

any appeal against the sum demanded, are formally dealt with by Schedule 3 to

the Act.

6. As the section 45 appeal was filed on 16th December 2019, less than 28 days from

service of the section 41 notice, no invoice already served has yet become payable,

and so the time for appealing under Part 3 of Schedule 3 has not yet begun.

7. While the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules

2013 give tribunals considerable latitude to do justice where the parties have not

been entirely compliant with the tribunal’s rules and procedures rule 2 makes

plain that :

Nothing in these Rules overrides any specific provision that is contained

in an enactment which confers jurisdiction on the Tribunal.

8. The tribunal cannot therefore make any finding on the reasonableness of the fees,

costs and other expenses which the respondent wishes to recover. A few general

observations might be made, but these are non-binding and are not intended to

prejudge the decision of any tribunal which, in the absence of agreement and/or

a sense of proportionality between the parties, may later have to determine the

issue.

Material statutory provisions and guidance

9. Part 1 of the Housing Act 2004, which concerns housing conditions, replaces

concepts of fitness for habitation are replaced by a new Housing Health & Safety

Rating System. This is a system founded on the analysis of 29 specified hazards,

51 types of potential harm (grouped in 4 classes ranging from extreme to

moderate, by severity of outcome), the likelihood of an occurrence that could

result in harm to a member of a vulnerable group within the next 12 months, and

the spread of possible outcomes resulting from it, expressed as a percentage for

each of the classes of harm – to which representative scale points are assigned.

Essentially mathematical, the result of these calculations for each identified

hazard produces a numerical score placing the hazard within one of a number of

bands, ranging from A to C (collectively Category 1) and D to J (collectively

Category 2).1

10. By section 3 a local housing authority must keep the housing conditions in their

area under review with a view to identifying any action that may need to be taken.

Section 4 states that if the authority consider, as a result of any matters of which

they have become aware in carrying out their duty under section 3, or for any

other reason, that it would be appropriate for any residential premises in their

district to be inspected with a view to determining whether any category 1 or 2

hazard exists on those premises, the authority must arrange for such an

inspection to be carried out.

11. Where the proper officer of the local housing authority considers that a survey or

examination of any premises is necessary in order to carry out an inspection

under section 4(2) then he may enter the premises in question at any reasonable

time for the purpose of carrying out a survey or examination of the premises.

However, before doing so he must have given at least 24 hours’ notice of his

intention to do so to the owner of the premises (if known), and to the occupier (if

any).2

12. Section 5(1) of the Act goes on to provide that if a local housing authority consider

that a category 1 hazard exists on any residential premises, they must take the

appropriate enforcement action in relation to the hazard.

13. Section 9 provides that :

(1) The appropriate national authority may give guidance to local housing

authorities about exercising –

(a) their functions under this Chapter in relation to the inspection of

premises and the assessment of hazards,

(b) their functions under Chapter 2 of this Part in relation to

improvement notices, prohibition orders or hazard awareness

notices,

[etc.]

(2) A local housing authority must have regard to any guidance for the time

being given under this section.

1 Housing Health and Safety Rating System (England) Regulations 2005 [SI 2005/3208]

2 HA 2004, s.239 (Powers of entry)

14. To assist Environmental Health Officers in carrying out their duties under this

Part of the Act, and in making their HHSRS hazard assessments, the ODPM (now

the MHCLG) has published two documents providing Operating Guidance and

Enforcement Guidance.3

15. By section 11 of the Act if the local housing authority are satisfied that a category

1 hazard exists on any residential premises, and no management order is in force

in relation to the premises under Chapter 1 or 2 of Part 4, then serving an

improvement notice under that section in respect of the hazard is a course of

action available to the authority in relation to the hazard for the purposes of

section 5. The notice may require the person on whom it is served to take such

remedial action in respect of the hazard concerned as is specified in the notice in

accordance with subsections (3) to (5) and section 13 (which specifies the

required content of a valid notice).

16. By section 40, if the local housing authority are satisfied that a category 1 hazard

exists on any residential premises, are further satisfied that the hazard involves

an imminent risk of serious harm to the health or safety of any of the occupiers

of those or any other residential premises, and no management order is in force

under Chapter 1 or 2 of Part 4 in relation to the premises, then the taking by the

authority of emergency remedial action in respect of the hazard is a course of

section 5.

17. “Emergency remedial action” means such remedial action in respect of the hazard

concerned as the authority consider immediately necessary in order to remove the

imminent risk of serious harm within subsection (1)(b), and such action can be

taken by the authority in relation to any premises in relation to which remedial

action could be required to be taken by an improvement notice under section 11.

18. Section 40(7) provides that within the period of seven days beginning with the

date when the authority start taking emergency remedial action, it must serve a

notice under section 41, and copies of such a notice on the persons on whom the

authority would be required under Part 1 of Schedule 1 to serve an improvement

notice and copies of it. An appeal against service of such a notice is brought

under section 45, and upon considering the matter the tribunal may confirm,

reverse or vary the decision of the authority.

19. As mentioned above, a local authority may seek to recover its reasonable expenses

incurred in carrying out emergency remedial action as provided for in section 42

and Schedule 3.

The evidence

20. Each party has, as directed, submitted a bundle of evidence for the hearing. As

well as the application and directions the documentation before the tribunal

included the respondent council’s statement of case, witness statement by [NAME] (Private Sector Housing Manager), emails, photographs, invoices, the

notice served under section 21, HHSRS assessment and scoring relied upon, the

council’s invoices sent to the applicant, and other helpful documents.

3 05 HMD 03485/A and 05 HMD 03485/B respectively

21. The applicant produced witness statements by [APPELLANT[NAME] (director), [NAME] (hotelier, concerning accommodation that Mr [NAME] had arranged for

the tenants) and [APPELLANT] (the applicant’s handyman who was stood down on

the night in question). In addition he produced contract documents from [COMPANY] (trading as [NAME]), the company that installed

and then removed the door and window pane, photographs, and some alternative

quotes for the repair work.

22. The facts leading up to the respondent’s decision to take emergency remedial

action can be set out quite briefly. At 16:54 on Friday 22nd November 2019, as

light was failing, the respondent council was contacted via its website by Ms [APPELLANT], tenant of the subject first and second floor flat and mother of a 10-

month-old baby. She and her partner had arranged with the applicant, their

landlord, that it would arrange for the replacement of a bedroom window/fire

escape and the front door. A fitter had attended that day and installed a new

PVCu window and entrance door but, after phoning the landlord to discuss

payment, was evidently dissatisfied with the outcome and removed the pane of

glass from the window and the entire door from its frame. They were left open

to the elements in late November, and the premises insecure, at the start of a

weekend.

23. Mr & Mrs [RESPONDENT], the directors of the [COMPANY], were on their way to the

airport for a weekend away in Prague when contacted by the council. They could

not contact the window installation company and tried their handyman, but he

was stuck on a job in Ipswich and could not guarantee when he could turn up. As

Mr [NAME] admitted at a joint meeting with the council in February 2020, when

the council officer made clear that unless the landlord could arrange for the work

to be done by 21:00 it would arrange for it and invoice him for its expenditure

and management time he authorised the respondent to proceed and invoice him

for its work and stood down his handyman, Mr [NAME].

24. He had offered to put the tenants up short-term in a hotel in Clacton, and pay for

their transport, but they declined the offer as they had a lot of baby equipment

and did not want to leave their worldly possessions unattended for days in a flat

with a wide open front door and a bedroom window missing its single doubleglazed

sealed unit. They preferred to stay and guard their belongings, regardless

of the cold.

25. The council officer attending, Mr [NAME], conducted a swift HHSRS assessment

and determined that Category 1 hazards were present. As there seemed no other

means of arranging for the work to be done over the weekend while the landlord

was out of the country and left no managing agent to deal with the problem, Mr

[NAME] decided that emergency remedial action under section 40 was required.

26. As appears from the section 41 notice, the nature of the hazards were described

as :

1. Excess cold

2. Entry by intruders

The deficiencies giving rise to the hazards were listed thus :

1. No front door

2. No glazing to 2nd floor rear bedroom window

3. Solid brick construction

4. Large heat loss perimeter of 3 external walls

5. Property is accessed to the rear via a poorly lit shared alleyway

6. Property is overlooked and in a densely populated area

27. The works specified in Schedule 2 to the notice were :

a. to fabricate and fit a temporary door to the entrance which allows egress

and ingress, provides a degree of thermal comfort, prevents uncontrollable

draughts and is lockable for security purposes, and sufficient to deter

unauthorised access, and

b. to supply and fit temporary boarding to the second floor rear bedroom

window that prevents uncontrollable draughts and allows for egress in an

emergency and is sufficient to deter unauthorised entry.

28. He contacted the fitter who had installed and then removed the door and glazing,

but he refused to come back because of the landlord’s refusal to pay for it. He

contacted Mr [RESPONDENT], but there was too much uncertainty about when or if his

handyman – already on another job in Ipswich – would be able to attend and take

the required action. He tried other firms, but many were reluctant. Eventually

he found one willing to come out, provided Colchester would pay.

29. The work was done that night. A very unattractive but serviceable door was

fabricated out of sterling board. The contractor who attended was concerned not

to damage the PVCu door frame installed earlier, partly held in place by mastic

that was still setting. He could not therefore use the old wooden door which had

been taken off and left in an alley, and so secured the new door to the old timber

door surround.

30. In his witness statement Mr [NAME] explains how on 27th September 2019 he

appointed [NAME] to replace one window and the entrance door to the flat.

On 29th September he paid a £90 deposit, and the work was due to be undertaken

on 14th November 2019. He then outlines how the appointment was cancelled by

the company, rescheduled, and how it failed to show up more than once. On the

day in question the fitter did not turn up until 12:00.

31. He explains how the fitter asked for the final payment before he proceeded to

finish the work, whereupon [NAME] reminded him that the contract stated :

Payment of balance must be made on installation.

The fitter continued and then rang back, asking for an immediate transfer into his

bank account. Mr [NAME] was on a train, received a message from the fitter with

photo of the door off, and then tried unsuccessfully to contact him again.

32. It was in these circumstances that an urgent alternative was required, but Mr

[NAME] describes the council officer’s approach as “bullish” and that the council’s

involvement was unnecessary. On his return from Prague arrangements were

made and a replacement window was fitted on 6th December. His statement does

not say when a new door was provided.

Discussion and findings

33. Having considered all the evidence the tribunal is entirely satisfied that hazards

to the occupants were created by the applicant’s contractor partly installing and

then partly removing the new window and external door on a Friday evening in

late autumn. Mr [NAME] may regard the company as unreliable, but he chose it.

He also seems to disagree with a contractual requirement for payment on

installation. The fitter was no doubt expecting the landlord or an agent to be

present, with cash or a banker’s draft as agreed, so that payment could be made

that day; not sometime later, when the absent landlord returned from a short

holiday and got around to it – if at all.

34. The tribunal is certainly not endorsing the action taken by the fitter, but as a

result the tenants were placed in a very difficult position as businesses were

closing on a Friday evening, and with no assurance that the landlord would or

could act swiftly to remedy the problem. Mr [NAME] was already committed to

another job and could not say when that would finish or, taking traffic conditions

on the A12 into account, when he would be able to reach the subject premises in

Colchester.

35. An entirely open external door not only deprives the flat of heat but renders it

completely vulnerable to ingress by wind, rain, birds, animals or human

intruders. The door leads straight into the kitchen, where food is to be prepared

and one might expect a baby to be fed. The large dormer window in the bedroom

is equally essential for retaining heat and preventing the ingress of wind and rain.

36. The tribunal is satisfied that the hazards demonstrated are severe enough to fall

within Category 1, and that emergency remedial action was required in this case.

37. That is sufficient to determine this appeal but, as explained in paragraphs 4–8

above, the applicant’s real complaint is about how much the respondent council

expects it to pay for the work. That is not formally the subject matter of this

appeal, but a few general observations can be made :

a. The sums claimed are for officer’s time spent on the case, for the amount

charged by the council’s contractor, and the costs or fees imposed for the

issue and service of the section 41 notice.

b. Section 49 provides that the housing authority may make such reasonable

charge as they consider appropriate as a means of recovering certain

administrative and other expenses incurred by them in respect of their

enforcement activities, and the respondent has provided the tribunal with

a copy Private Sector Housing Enforcement and Civil Penalties Policy,

reviewed in September 2019 and formally adopted in October.

c. In [NAME] v [NAME] Council4, in the context of civil penalties, the

Upper Tribunal observed, at [245] that :

If a local authority has adopted a policy, a tribunal should consider for

itself what penalty is merited by the offence under the terms of the policy.

If the authority has applied its own policy, the Tribunal should give

weight to the assessment it has made of the seriousness of the offence

and the culpability of the appellant in reaching its own decision

and at [248] (again in the context of penalties, but the principle is still

relevant) :

The penalty “matrix” produced by the Council is similar to those adopted

4 [2020] UKUT 0090 (LC) ([NAME], Deputy President, and [NAME])

by other local housing authorities (see for example the scale of penalties

used by the [NAME] reproduced at paragraph 17 of the Tribunal’s

recent decision in London Borough of [NAME] v [NAME]). It is

not necessary that each of these matrixes be identical, and there is no

requirement of absolute uniformity of approach as local authorities are

entitled to respond to the circumstances of their own area. Within limits,

consistency within a local authority area is more important than

consistency between authorities, and tribunals should be slow to rely on

the approach taken by a different authority, or on decisions on appeals

in different areas, as justifying a departure from the policy.

d. On the other hand, in R ([NAME]) v Richmond on Thames LBC,5 (an HMO

licensing case) the Divisional Court held that any fees levied must be

related to the cost of providing the service – not designed to make a profit.

e. As for the contractor’s costs, it is easier to find a builder willing to work in

normal hours rather than out of hours, and to repair something from

scratch rather than finish repairing something that has already been partly

repaired by someone else. This may require acceptance of a larger price

then would be usual if there were no exceptional time constraints.

f. The total amount in dispute is less than £2,000, and the tribunal would

encourage the parties to adopt a proportionate and commercial attitude

to the resolution of this matter.

Dated 7th May 2020

[NAME]

First-tier Tribunal Judge

5 [2018] EWHC 1996 (Admin); [2018] HLR 47