Appeal Allowed: Final Empty Dwelling Management Order Revoked

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference : CAM/33UC/HYV/2019/0001

Property : 40 [ADDRESS] [POSTCODE]

Applicant : [redacted]

Representative : [NAME_3] ([NAME_4], [NAME_4])

Respondent : [redacted]

final Empty Dwelling Management Order

[HA 2004, s.132 & Sch 7, para 30]

Tribunal Members : [NAME_7] & C Gowman BSc MCIEH MCMI

Date and venue of : Monday 16th December 2019 at

Hearing The Old Bakery, [ADDRESS], Norwich

Date of Decision : 30th January 2020

DECISION

1. For the reasons which follow the tribunal allows the appeal and, subject to the

applicant reimbursing the respondent local authority for the balance of relevant

expenditure in excess of the total amount of rent or other payments collected or

recovered by it (if any), revokes the final Empty Dwelling Management Order

in relation to the subject premises at 40 [ADDRESS]

[POSTCODE] with effect from 31st March 2020.

2. This will allow the respondent sufficient time in which to give the current tenants

in the subject premises notice to quit, deal with any terminal dilapidations issues

and deliver up vacant possession to the applicant.

Background

3. The tribunal has dealt with the subject premises twice before in connection with

its jurisdiction under the Housing Act 2004, Part 4, Chapter 2 :

a. By its decision dated 26th November 2013 authorising [NAME_5], the local housing authority, to make an interim Empty Dwelling

Management Order (“EDMO”); and

b. By order dated 12th January 2015 refusing the applicant home owner

permission to appeal both the above interim EDMO and a final EDMO

that the respondent local housing authority had made on 25th July 2014.

4. Further to the making of a final EDMO the council invested something in the

order of £30 000 in clearing, repairing and improving the property by way of new

heating and wiring installations, new windows and doors, and upgrading the

kitchen and bathroom so that it was fit for renting. Management costs increased

this to around £30 500.

5. Save for voids totalling no more than 2.5 months the property has been let

continuously from December 2015, the rent received by the council being applied

in reduction of its outlay; so that when [NAME_6] signed a witness statement on

behalf of the council on 23rd September 2019 the balance outstanding had been

reduced to approximately £4 300. The current rent for the property is £595 per

month.

6. On 28th December 2018 the council was contacted by a local form of estate agents

who had bene instructed by the applicant to provide a marketing valuation for the

property. Later there was correspondence concerning the involvement required

of the council in facilitating a sale of the property. By September 2019 the council

was confirming to [NAME_8], acting for the applicant’s mortgagee, that it

would ensure vacant possession (i.e that its tenants would have left) in time for

exchange of contracts.

7. On 3rd July 2019 the respondent issued a notice of refusal in response to the

applicant’s request that it revoke the final EDMO in order that she might resume

occupation of her home. At the time, and currently, the applicant was living in

her mother’s home in a nearby street but felt under family pressure to vacate. The

ground for refusal stated in the notice was that “the property will become or

remain unoccupied.”

8. A fact of which the tribunal was completely unaware until this application is that

at all material times the applicant has also been the freehold owner of another

property at [ADDRESS], Hemel Hempstead. Dacorum Borough Council was

approached by the respondent as part of its enquiries into an application by the

applicant for a determination by [NAME_5] that she was homeless and in need

of accommodation. Dacorum confirmed that it had taken no action under the

Housing Act 2004 concerning [ADDRESS], but that its planning department

had served notice under section 215 of the Town and Country Planning Act 1990

in connection with the adverse impact of the property on the visual amenity of

the area, following this up by carrying out works in default.

Interim and final EDMOs – statutory provisions and purpose

9. Sub-sections 132(2) & (3) of the 2004 Act provide that an interim EDMO is an

order made to enable a local housing authority, with the consent of the relevant

proprietor, to take steps for the purpose of securing that a dwelling becomes and

continues to be occupied, and a final EDMO is an order made, in succession to

an interim EDMO or a previous final EDMO, for the purpose of securing that a

dwelling is occupied.

10. According to official departmental guidance1 :

The intention of EDMOs is to bridge the gap between voluntary measures and

existing compulsory purchase powers. A decision whether to pursue an EDMO

is entirely at the discretion of a LHA. The threat of an EDMO is intended to put

pressure on the owner to enter into constructive dialogue with the authority with

the object of agreeing the best course of action to secure occupation of the

dwelling, thereby avoiding the need for an interim EDMO or, as the case may be,

a final EDMO, to be made.

11. In this case both an interim and then a final EDMO were made. What then of

bringing the order to an end? Section 137(4) provides that :

The authority must from time to time review –

(a) the operation of the order and in particular the management scheme

contained in it,

(b) whether, if the dwelling is unoccupied, there are any steps which they

could appropriately take under the order for the purpose of securing that

the dwelling becomes occupied, and

(c) whether keeping the order in force in relation to the dwelling (with or

without making any variations under paragraph 15 of Schedule 7) is

necessary to secure that the dwelling becomes or remains occupied.

12. Schedule 7 provides much greater detail, including on revocation and appeals.

On the former, paragraph 16 provides as follows :

(1) The local housing authority may revoke a final EDMO in the following cases –

(a) where the authority conclude that there are no steps which they could

appropriately take as mentioned in section 137(4)(b) or that keeping the

order in force is not necessary as mentioned in section 137(4)(c);

(b) where the authority are satisfied that –

(i) the dwelling will either become or continue to be occupied,

despite the order being revoked, or

(ii) that the dwelling is to be sold;

(c) where a further final EDMO has been made by the authority in respect

of the dwelling so as to replace the order;

(d) where the authority conclude that it would be appropriate to revoke the

order in order to prevent or stop interference with the rights of a third

party in consequence of the order; and

(e) where in any other circumstances the authority consider it appropriate

to revoke the order.

(2) But, in a case where the dwelling is occupied, the local housing authority may

not revoke a final EDMO under sub-paragraph (1)(b), (d) or (e) unless the

relevant proprietor consents.

(3) A revocation does not come into force until such time, if any, as is the operative

1 Guidance Note on Empty Dwelling Management Orders : Department for Communities and

Local Government (July 2006), para 1.1

time for the purposes of this sub-paragraph under paragraph 33 (time when

period for appealing expires without an appeal being made or when decision to

revoke is confirmed on appeal).

(4) The power to revoke an order under this paragraph is exercisable by the

authority either –

(a) on an application made by a relevant person, or

(b) on the authority’s own initiative.

(5) Where a relevant person applies to the authority for the revocation of an order

under this paragraph, the authority may refuse to revoke the order unless the

relevant proprietor (or some other person) agrees to pay to the authority any

deficit such as is mentioned in paragraph 23(4).

(6) In this paragraph “relevant person” means any person who has an estate or

interest in the dwelling (other than a person who is a tenant under a lease

granted under paragraph 2(3)(c) or 10(3)(c)).

13. Amongst more general provisions, sub-paragraphs 23(4) & (5) provide that :

(4) Sub-paragraphs (5) and (6)2 apply where, on the termination date for an

interim EDMO or final EDMO, the total amount of rent or other

payments collected or recovered as mentioned in paragraph 5(3) is less

than the total amount of the authority’s relevant expenditure together

with any such amounts of compensation as are mentioned in subparagraph

(2)(b) above.

(5) The authority may recover from the relevant proprietor—

(a) the amount of any relevant expenditure (not exceeding the deficit

mentioned in sub-paragraph (4)) which he has agreed in writing

to pay either as a condition of revocation of the order or

otherwise, and

(b) where the relevant proprietor is a tenant under a lease in respect

of the dwelling, the amount of any outstanding service charges

payable under the lease.

14. By paragraph 30 an owner can appeal against a refusal to revoke an EDMO, and

by paragraph 32 the tribunal may confirm, reverse or vary the decision of the

local housing authority. If the appeal is against a decision of the authority to

refuse to revoke the order, the tribunal may make an order revoking the order as

from a date specified in its order.

Inspection and hearing

15. The tribunal inspected the subject premises at 10:00, immediately before the

hearing. Also present were [NAME_6] for the respondent and the current tenant,

who showed the tribunal around. Neither the applicant nor her representative

attended.

16. A description of the condition of the premises when they were inspected by the

tribunal in 2013 can be found at paragraphs 10–13 of the decision dated 26th

November 2013.3 By contrast, the metal [NAME_9] windows and the external doors

have all been replaced with PVCu double glazed units and the approach to the

front door is presentable, laid to gravel. Internally, the bedrooms were neatly

appointed and furnished. The [NAME_10] and several small children were

2 Sub-para (6) concerns interim EDMOs, so is not quoted

3 CAM/33UC/HYI/2013/0001

in the large living room to the rear, so the tribunal did not venture much beyond

the door. The bathroom suite was modern, and by comparison with the previous

inspection the kitchen was a revelation. It was light, airy and fitted with modern

units. The rear garden was kept reasonably neat, although the respondent had

erected a fence across the rear, reserving an area (with shed) for storage beyond

that part subject to the tenancy. A new shed for the tenant’s use had been erected

on the footings found previously behind the garage.

17. The start of the hearing was delayed in part by the applicant’s desire to submit a

number of additional bundles of documents, each with a handwritten list of

contents, to supplement the respondent’s witness statement and exhibits. She

was also helpfully represented by [NAME_3], a [NAME_4] from

the charity [NAME_4]. [NAME_6] represented the respondent council.

18. While a number of the written points that [NAME_11] raised in her documents

attempted to go back over old ground, which the tribunal was not prepared to let

her re-open, [NAME_3] confirmed that he had been involved for the previous year

concerning the applicant’s hoarding issues, and he focussed on issues of mental

illness, vulnerability and the local authority’s duty4 to her under section 42 of the

Care Act 2014 :

...to make (or cause to be made) whatever enquiries it thinks necessary to enable

it to decide whether any action should be taken in the adult’s case (whether

under this Part or otherwise) and, if so, what and by whom.

19. [NAME_3] informed the tribunal that there is a care plan in place. If the situation

were to arise again he would have expected [NAME_5] to act differently; rather

than a narrow environmental health issue it is a broader health issue , and the

council would have to take account of s.42 safeguarding under the Care Act, with

a joint meeting with adult social care from Norfolk, [NAME_11]’s GP, and other

relevant organisations.

20. [NAME_6] interjected that [NAME_5] wrote and asked to converse with social

services, the GP, insurers, etc – on the making of the interim order; and again in

about May 2014 the council did exactly the same, asking for consent to speak

with these other bodies. [NAME_11] then commented that she was suffering from

depression and was not opening her mail, so the council’s approach was failing

her considerably. She said that her permission was not required in order to ask

social services to get involved.

21. [NAME_3] said that the s.42 process would have brought certain things into play,

including help with coping as a householder, and her ability to maintain a safe

and habitable home. She would have made that test (i.e. she was unable to cope).

If someone fails in two of those areas, they are deemed eligible for support from

adult social services or the NHS, depending on the nature of the support needed.

Insofar as the inability to get into the kitchen, and failing to maintain a habitable

home are concerned, his organisation can train fire officers in how to handle

severely hoarded properties.

4 NB. In Norfolk this duty falls on the County Council, which is responsible for social services, not

the District Council

22. The applicant had commented that her mum is a hoarder, and lots of projects get

started and not finished – which is also typical of hoarders. She said that her

sister is a hoarder, and these are mental health disorders which come from some

type of abuse in the past, or poverty – so they don’t want to throw things away.

23. She said that her mother (at whose home she was then living) does not have

central heating at 93. The project was started by her father, but never finished.

The radiators are hanging off the walls, with pipes not attached – and it had been

like that since the 1970s or 80s. He was a very capable man, so it was all very

strange.

24. [NAME_3] was keen to emphasise that, unlike in the past, [NAME_11] now had

external support. [NAME_12] has been allocated, and MIND had provided one

hour’s support for the last five years, about hoarding. She also had support

workers from Together (a national mental health charity) who visit her two hours

per week. They are not allowed to help her at her mum’s house, because of

safeguarding issues - including threats of violence from family members. Her GP

is also involved as well. Dr [NAME_13] had outlined previously her health needs (she

had written a letter to the tribunal for the attempted appeal – she was then at the

walk-in clinic at Castle Mall, but was now at [ADDRESS]).

25. [NAME_11] explained that her income at present is ESA and PIP. The Hemel

Hempstead property is subject to a loan of about £25 000, payable at £60 per

month. Her plan was to retire, and she was hoping to rent it out, but she said

that the mortgage company know that she will get a pension lump sum in a few

years.

26. As for [ADDRESS], she would have to let out a couple of rooms, and could get

more than the amount being paid to [NAME_5] for the whole property. Asked

about what would happen to all her goods that are in storage, [NAME_11] was

rather vague. She had visions of sorting out all her stuff, sell it on eBay, then use

the space for a table tennis table – but her mum (who had some prowess at the

sport in her youth) was far too frail for that now. That had been taken away from

her, and from her mum.

27. [NAME_11] confirmed that she was living at number 93 (mother’s house), on her

own. Her mother was capable of coming home with help. [NAME_3] submitted

that if the order were revoked then it would assist with family dynamics, as there

are disagreements with siblings even on minor matters.

28. [NAME_6] interjected that [NAME_5] were concerned with [NAME_14]

(mother), and had met with the social worker. He did invite the social worker to

open up a conversation concerning the mother, to discover her circumstances,

and [NAME_5]’s position would be influenced by that.

29. The tribunal asked [NAME_3] whether the proposal to share the house with a

lodger was viable, if [NAME_11] was still a hoarder. He commented that being

alone does not assist, and that having company helps.

30. Asked about her financial position, and the viability of living in the house when

there were mortgage debts on two (and Hemel Hempstead was still cluttered,

which would not assist a sale and consolidation of finances), [NAME_11] said that

on [ADDRESS] she had mortgage arrears of £36 548.62 and a total debt now

of £84 857.41. She owed the storage company perhaps £10 000 for unpaid fees.

Asked whether it has a lien on her goods, [NAME_11] said yes, but that she can

collect until the end of January, at which point they will reassess the situation.

31. If she sold Hemel – a two bedroom end terrace worth perhaps £300 000 – that

would pay off her mortgagee, and if she got her health back she could work again,

but she was now much nearer retirement. Psychologically, moving back to

[ADDRESS] was easier than the situation at present. If the order were

revoked, there would be more chance of the treatment plan working. [NAME_3]

said that [NAME_4] would advise the applicant about equity release and other

schemes that may be helpful. [NAME_11] had not exhausted possibilities of

assistance from her former trade union. There would be ongoing support from

[NAME_4].

32. When assessing her financial position one could not overlook the outstanding

debt to [NAME_5] for work done at [ADDRESS], but [NAME_6] said that as

at the hearing date her debt for renovations, etc was now only about £2 240.

33. Before putting the respondent’s case the tribunal remined [NAME_6] that the

purpose of this legislation was to ensure that homes were lived in; not to prevent

houses becoming untidy.

34. He said that he was aware of the Hemel Hempstead property only through his

discussions with Dacorum Borough Council, and that it was not taking any steps,

although the planners had served a s.215 notice. Since 2006 [ADDRESS] had

been substantially unoccupied. The applicant remains the council tax payer.

That property could have been dealt with, and in January 2017 [NAME_5] had

received a letter from [NAME_15], with a plan to sell that to

move closer [to her mother]. Nearly three years on that seems no closer to

happening. Diogenes syndrome will not have helped, but the property had not

been cleared. As for [ADDRESS], the applicant has occupied her mother’s

home, but is struggling as that has not been properly maintained.

35. It was put to [NAME_6] by the tribunal that in 2013 [NAME_11] had sought no

assistance, but now she has ongoing support, including an improved social life

with [NAME_16]. He agreed that [NAME_11] is very earnest in her

intentions, but despite this there had not been any improvement.

36. [NAME_6] submitted that approaching [NAME_11]’s mortgagee might not be her

only recourse. The applicant had made a homelessness application, but this

failed as she owned two properties. She might benefit from social housing. Some

social landlords offer mortgage rescue schemes. It is another option perhaps.

They might even take on ongoing concerns about management of the property

also. [NAME_17] may still do it locally.

37. The hearing ended with [NAME_11] determined that she wished to move back in,

with external support from various resources, and see if she could sort out her

finances. The council rightly pointed to the apparent lack of effort to resolve the

financial and other problems to date. The house was on the market, and it had

agreed with the mortgagee that it would arrange to terminate the current starter

tenancy and move the tenant and her family on elsewhere in time for exchange

of contracts. It therefore expected that the final EDMO was soon going to come

to an end and that the property would soon be occupied by a new owner.

38. [ADDRESS] had been placed on the market largely at the behest of [NAME_11]’s bank, [COMPANY_19], as it had been willing so far to let her sell voluntarily rather

than take action to sell as mortgagee in possession. What would it think of her

current proposal to resume living there? How would she manage to resolve the

arrears problem?

39. The tribunal directed that [NAME_11] approach her bank and ask it to provide its

views in writing by Friday 10th January, allowing the council until Friday 17th in

which to submit its comments. The tribunal would then deliver its decision

before the end of January (the deadline for dealing with the storage company).

Discussion

40. The tribunal has now seen two letters from [COMPANY_18], the solicitors instructed by

[COMPANY_19]. Both are dated 8th January 2020. The first stated :

The Bank does not intend to take any possession action for the following three

months (from today's date) to allow you time to remedy the breaches of your

mortgage account, whether by agreement with the Bank or by the sale of the

Property.

We suggest that you forward a copy of this response to the Tribunal and to the

Council. If you have difficulty accessing a computer to do this, we are happy to

forward this on as appropriate.

41. The second letter went rather further :

We note you are currently taking steps to market the Property. Please confirm

that you still intend to market and sell the Property if the Council revokes the

Empty Dwelling Management Order. The Bank has already exercised

considerable forbearance in allowing you time to effect a voluntary sale.

Whilst the Bank will agree to defer action for three months from today's date, the

arrears position needs to be resolved. The arrears currently stand at £37,196.87.

A sale of the Property at market value will redeem the account and remedy the

position once and for all.

If, however, you no longer intend to sell the Property, the Bank will require firm

proposals for payment of those arrears, backed up by financial evidence and a

fully completed income and expenditure form. You have mentioned a pension

fund. We do not have any details of that and have not provided any assurances

on the Bank's behalf regarding a delay of action pending that potential pay-out.

Perhaps you could let us have details when responding to this letter.

As for the renting out of rooms in the Property, the terms of your mortgage

provide that any letting is prohibited without consent of the Bank. That said, the

Bank may be prepared to consider this but solely on the condition that the

occupants were lodgers and not formal tenants. The Bank will require full details

of these proposals in order to consider providing its consent.

42. In response to this [NAME_6] wrote to the tribunal :

In addition to demonstrating how the arears will be repaid the bank seeks a clear

financial plan detailing how [NAME_11] intends to meet future mortgage

payments. It is clear that [NAME_11] has not been able to provide the bank with

any evidence to their satisfaction that future mortgage payments will be made.

The bank suggests that [NAME_11] work with [NAME_20] (debt advisor within

[NAME_5]) to come up with a plan to meet the banks stipulated

requirements. [NAME_20] has been approached to provide statement to

accompany this response and provided with the appropriate exemption under

the GDPR. [NAME_11] has however requested that [NAME_20] disclose no

matters to do with her financial situation to myself and [NAME_20] respects this

request to continue her professional relationship with [NAME_11].

[NAME_20]’s continued work with [NAME_11] the bank currently have

received no evidence that either of their two criteria can be met. I would go

further and suggest if [NAME_11] believed [NAME_20] held important

information that would support her application she would be eager for this

information to be released.

The Council is unconvinced that [NAME_11] genuinely has robust plans to address

the arrears to the bank or her future payments and is in the firm belief that no

other conclusion can be reached.

The council therefore urged the tribunal not to revoke the final EDMO.

43. The tribunal reminds itself that the purpose of this legislation is to ensure that

homes are not left empty unnecessarily, so that they can be brought back into use

as homes and not simply capital assets. It is no function of this part of the Act to

regulate how an owner occupies his or her home. The tribunal can try to test how

genuine an expressed desire to resume occupation may be, but not to second

guess an owner’s ability, as against a lender, to remain living there for anything

more than the short term.

44. [COMPANY_19] can persuade the County Court to order possession, rather

than accept an offer of discharge of the arrears by instalments, is not a question

that this tribunal can answer. Neither can it assess whether some other deal that

might involve agreeing a sale of [ADDRESS] and offering it as an alternative

security might not be acceptable. These are matters between borrower, lender

and perhaps the court.

45. Reluctantly, but with that in mind, the tribunal is satisfied that [NAME_11] does

have a genuine intention of resuming occupation of her own home – but this time

in the knowledge that she can call on supporters from various organisations

including [NAME_4]. She is in [NAME_3]’s debt, and she should not let him

and his organisation down.

46. In order to give [NAME_5] time in which to serve notice to quit and bring the

current tenancy to an end, do any necessary end-of-tenancy redecorating and give

vacant possession, the existing order shall be revoked as of 31st March 2020. That

is shortly before the expiry of [COMPANY_19]’ three month deadline for putting forward

a proposal for discharge of the arrears, so [NAME_11] must use this time wisely,

take sound advice, and make as positive a proposal as she can. It is up to her.

Dated 30th January 2020

[NAME_7]

First-tier Tribunal Judge