Appeal dismissed: HMO fire safety standards upheld

OUTCOME: Dismissed

FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME]) Case reference : LON/00AE/HML/2023/0040 [NAME] : 169 [ADDRESS], [POSTCODE] Applicant : [redacted] Respondent : [redacted] Representative : Ms. [COUNSEL] – Chief Lawyer Type of [NAME] : [NAME] under Schedule 2 to Part 5 of the Act against the decision and conditions of the Local Authority to grant a [NAME] Tribunal members :

Judge [NAME], FRICS Date and Venue of hearing : 5 November 2024 2024 at 10 [ADDRESS], [POSTCODE] Date of decision : 13 November 2024

DECISION

Decision of the Tribunal The Tribunal dismisses the appeal against the conditions attached to the [NAME] to occupy a House in Multiple Occupation relating to 169 [ADDRESS], [POSTCODE] issued on 21 July 2021 and declines to vary the conditions that were imposed

Introduction 1. This is an [NAME] (dated 16 October 2024 – A3) appealing against conditions attached to a [NAME] of a House in Multiple Occupation (HMO) pursuant to paragraph 31(1) of Part 3 of Schedule 5 to the [NAME] 2004 (“the Act”).

2. 169 [ADDRESS], [POSTCODE] (“[NAME]”) is a three-storey house which is rented as a HMO (House in Multiple Occupation). The Applicant is the owner/landlord. The Respondent is the local authority.

3. On 12 July 2021 (A73) the Respondent granted a [NAME] to the Applicant under section 64 of the [NAME] 2004 (“the Act”). Such a [NAME] is required for the operation and management of a House in Multiple Occupation at [NAME].

4. The “Conditions for the Mandatory/[NAME] [NAME] Scheme” (A35) are attached to every mandatory or additional [NAME] [NAME] issued by the Respondent under Part 2 of the Act.

5. Condition 19 states, in relation to “Compliance Works” and states: “[NAME] must ensure that any works found to be necessary by the Council to ensure that [NAME] complies with the Council’s standards for HMOs, are carried out within the specified time period given”.

6. Condition 21 relates to fire safety and states: 24(1) Smoke alarms [NAME] must ensure that; a. A smoke alarm is installed on each storey of the HMO on which there is a room used wholly or partly as living accommodation; and that, b. Each such alarm is kept in proper working order; and that, c. On demand, the Authority is supplied with a declaration by him or her as to the condition and positioning of any such alarms. When considering what smoke alarm installation may be appropriate, hard wired mains operated smoke alarms with battery back-up to BS 5446 should be provided. For the purpose of condition 24, a bathroom or lavatory is to be treated as a room used as living accommodation.

24(2) [NAME] must ensure that: A carbon monoxide alarm is installed in any room in the HMO which is used wholly or partly as living accommodation and contains a solid fuel burning combustion appliance; and that,

Any such alarm is kept in proper working order; and that The Authority is, on demand, supplied with a declaration by him or her as to the condition and positioning of any such alarm or alarms. For the purpose of Condition 24 (2) “room” includes a hall or landing.

7. Condition 22 relates to “Fire precautions” and states: “[NAME] must ensure that all fire precautions provided to [NAME], e.g. fire doors, automatic fire alarm and emergency lighting system(s), etc. are maintained in full working order at all times. Where the HMO is of a type which falls under the remit of the Fire Safety Order, [NAME] must ensure that a fire risk assessment as required under The Regulatory Reform (Fire Safety) Order 2005 is carried out by a [NAME]”.

8. Condition 29 relates to “Compliance with fire safety guidance” and it states: “[NAME] must ensure that all fire precautions are maintained. In determining adequate fire precautions reference should be made to the [NAME] guidance: [NAME], Guidance on fire safety for certain types of existing [NAME] NB where the fire safety provisions in place are below the [NAME] recommended standard, the Council must be notified of any amendments/alterations…”.

9. After an inspection on 4 July 2023, the Respondent sent to the Applicant a letter dated 5 July 2023 (A79) which stated that there had been breaches of the [NAME] conditions which it required to be resolved. With this letter it sent a “Compliance Inspection Schedule” (A80) which required the following work: “Condition 21 – Fire Safety and Smoke Alarms … Based on the [NAME] (2009) Fire Guidance, we recommend the following fire alarm system: Grade D: LD3 coverage + additional detection to the kitchen (heat sensor), lounge and any cellar containing a risk (interlinked).

Condition 22. Fire Precautions … Based on the [NAME] (2009) Fire Guidance, we recommend the following fire alarm system: Grade D: LD3 coverage + additional detection to the kitchen (heat sensor), lounge and any cellar containing a risk (interlinked). …

Condition 29 [NAME] must ensure that… adequate fire precautions are maintained. In determining adequate fire precautions reference should be made to the [NAME] guidance: …”.

10. On 6 July 2024 (A83) the Applicant emailed the Respondent raising issues about the required works. Among other things, he asked, in respect of Condition 21, that the works specified were a recommendation and not a requirement. The same issue was raised in respect of Condition 22, specifically in relation to a Grade D, LD3 system. The Applicant also asks if the current alarms would suffice (Condition 29).

11. The Respondent’s case is that it then contacted the [NAME] on 7 July 2023 (R41) asking for guidance, which it received on 11 July 2023 (R42). This stated that “the minimum fire alarm system should be a Grade A LD2 system which should consist of mains wired heat sensors within the kitchens and mains wired smoke alarms on every storey and within risk rooms..”..

12. As a result, a further letter was sent to the Applicant on 19 July 2023 (A84) with a further Compliance Inspection Schedule attached. This schedule required the following work in respect of Conditions 21 and 22: “Based on the [NAME] (2009) Fire Guidance, we advise that you install the following fire alarm system: Grade A, LD2 System which should consist of mains wired heat sensors within kitchens and mains wired smoke alarms on every storey and within risk rooms Emergency Lighting in the escape routes. As referenced under condition 29 of [NAME] conditions, [NAME] holders should use [NAME] guidance to determine the level of fire precaution within [NAME]. You must provide evidence for Condition 21”

13. The Applicant raised a number of issues about this schedule (A89): it was said that there was, in the Applicant’s view, no further action to be taken in respect of Conditions 21-23 and 29.

14. A further letter (R47) was obtained from the [NAME], after further documents were sent to them ([NAME]). This stated that:

“… the minimum fire alarm system should be a Grade A LD2 system which should consist of mains wired heat sensors within the kitchens and mains wired smoke alarms on every storey and within risk rooms. The Provision of the LD3 – Grade D Detection and warning system may be sufficient as set out in Part D, D5 and note 8, however you must be satisfied that the premises meets the risk requirements set out in the case study, see excerpt below.

1. A two storey house occupied by a small group of [NAME], work colleagues, etc, who occupy [NAME] on a single tenancy, who exhibit no unusual high risk factor and who live together very much as a family. [NAME] would be defined as an HMO under the [NAME] 2004. However this arrangement may present no significantly higher risk than an adjacent similar single family house which is not an HMO.

2. A two storey house which has been divided into bedsit rooms occupied by unconnected individuals who live completely separate lives with no knowledge of who is around them in the house. The bedsit rooms each have individual

cooking facilities, a lack of storage space and an inadequate numbers of electric sockets leading to overloading and trailing leads. mainly the occupancy…”.

15. On 20 September 2023, the Respondent wrote again to the Applicant enclosing a further (corrected) inspection schedule (A103), giving until 18 October 2023 for completion of the works. Among the works specified in the schedule were the following: Condition 21 – Fire Safety and Smoke Alarms A smoke alarm is installed on each story of the HMO on which there is a room used wholly or partly as living accommodation. a. Each such alarm is kept in proper working order; and that b. On demand, the Authority is supplied with a declaration by him or her as to the condition and positioning of any such alarms.

Schedule of work to be undertaken: Based on the [NAME] (2009) Fire Guidance, we advise that you install the following fire alarm system:

1. Grade 1, LD2 System as a minimum which should consist of mains wired heat sensors within kitchens and mains wired smoke alarms on every storey and within risk rooms. 2. [NAME]

3. Emergency Lighting in the escape route.

4. As referenced under condition 29 of [NAME] conditions, [NAME] holders should use the [NAME] guidance to determine the level of fire precaution within [NAME]

5. Work should be carried out by a [NAME], and you must provide evidence of compliance by 18th October 2023

Notes: The Fire Commissioner is responsible for enforcing the Regulatory Reform (Fire Safety) Order 2005 (as amended) in London. The Council has consulted the Commissioner with regard to your premises and our compliance inspection schedule is in line with their observations.

16. On 2 October 2023 (A109), among correspondence between the Applicant and the Respondent about the issues, the Respondent said, among other things, this: “We believe that we have been clear in stating what the conditions are and have provided clarification in respect of the fire safety guidance as to how best to satisfy the condition. We have also explained that we have consulted with the [NAME] who has recommended the LD2 [NAME] as a minimum. It would be useful to hear the views of your fire consultant as part of the considerations. We have looked at the [NAME] dates and are satisfied at the start date generated is in line with our processing method. These dates are autogenerated during processing. We will have proposed this date on the stage 1 notice issued. The right to challenge the [NAME] and was provided once the final [NAME] was issued. The allowed 28 days and we note that no appeal was made…”.

17. On 3 October 2024 (A111) the Applicant emailed the Respondent stating:

“A fire consultant or “[NAME]” (to use the correct term) is someone who can perform an agreeable assessment. No one from the council is qualified as a [NAME] or has even attempted any kind of [NAME]-specific assessment, so it is clearly unreasonable to require a generic installation of equipment. This is further evidenced by the fact you more recently requested escape lighting to be added when it has nothing to do with an LD2 Grade A fire alarm system. Furthermore, your requirement is not backed by law or demanded by the 14 year old [NAME] guidance. Please provide the document supporting your claim that the “[NAME]” has "recommended the LD2 Grade A” so I can see the context that your local authority has apparently been advised this for certain properties. I will now be [NAME] a number of FOI requests to find out various information including other legal cases involving the local authority and specific enforcement matters

18. On 12 October 2024 (A111) the Respondent emailed the Applicant stating:

“…In our earlier responses we believe we that we have been clear on the [NAME] conditions and the guidance being relied upon to ensure that the HMO has satisfactory measures of fire safety. We have also confirmed that we have consulted with The London Fire Commissioner (the Commissioner). The Commissioner confirmed that the minimum fire alarm system should be a Grade A LD2 system which should consist of mains wired heat sensors within the kitchens and mains wired smoke alarms on every storey and within risk rooms. [NAME] guidance helps with the interpretation of Grade A – LD2…”.

Documentation 19. The Applicant has provided a bundle of documents comprising a total of 280 pages (references to which will be prefixed by “A__”). The Applicants’ bundle includes: statement of the Applicant (A30), Conditions for the Mandatory/[NAME] [NAME] Scheme (A35), letter in respect of the issuing of a [NAME] [NAME] dated 15 September 2021 with [NAME] (A70), letter dated 5 July 2023 stating that breaches of the [NAME] conditions had been identified with Compliance Inspection Schedule (A79), letter dated 19 July 2023 in respect of alleged breaches of the [NAME] conditions with Compliance Inspection Schedule (A83), Response to Compliance Inspection Schedule (A89), letter dated 20 September 2023 with a corrected inspection schedule (A103), letter dated 11 July 2023 from [NAME] (A113), Freedom of Information Act 2000 request response from the Respondent (A118) and from the [NAME] (“[NAME]”) (A120), letter from [NAME] dated 11 September 2023 (A122), Fire Risk Assessment (A125), [NAME] (A197).

20. The Respondent has provided a bundle of documents comprising 152 pages (“R__”). The Respondents’ bundle includes the statement of Mr. [NAME] ([NAME]) ([NAME]), [NAME] [NAME] (R10), letters from the Respondent dated 7 June 2021 (R18), 15 September 2021 (R19), Notice of grant of a [NAME] (R20), Compliance Inspection Form (R25),

letter from the Respondent dated 5 July 2023 (R27), Compliance Inspection Schedule (R28), letter from the [NAME] dated 19 July 2023 (R31), updated Compliance Inspection Schedule (R32), letter from the [NAME] dated 20 September 2023 (R37), emails between the Appellant and Respondent (R38), letter from the [NAME] dated 11 September 2023 (R47), Conditions for the Mandatory/[NAME] [NAME] Scheme (R51), extracts from the [NAME] 2004 (R86), [NAME] (R91).

21. There is also an “Applicant’s Reply to Respondent’s Statement” and a Skeleton Argument from the Applicant.

22. The Tribunal has had regard to these all these documents.

[NAME]

23. The applicant states that a [NAME] was granted, but “with unreasonable and varying requests for fire safety equipment to be installed”. It is said that the Respondent was not willing to provide a fire safety risk assessment performed by a [NAME] or to indicate any “law, regulation or guidance (including [NAME] 2009) that directly and specifically obliges the Applicant to install a grade A, LD2 fire alarm system and also emergency lighting for the Applicant’s particular type of [NAME]”.

24. It is said that the Applicant had already installed a grade D1, LD3 fire safety system and that after he had provided evidence of the installation of what he understood to be the “agreed and accepted equipment”, the Respondent then made further requests which differed from its published and consulted guidance.

25. It is said that the Respondent failed to include statutory information in the notice, such as the right to appeal, [NAME] it invalid and [NAME] any past notice with such an omission issued in the last six years invalid or entitling the applicants to 28 days from the correct issue of a notice to challenge any past decision in the Tribunal.

26. The Applicant seeks a correction of the start date of the [NAME], as the Respondent applied a start date based on when payment was made, instead of when it processed the [NAME] and formally lists [NAME] as a HMO on its database. It is said that it was not until July 2023 that the [NAME] was issued and [NAME] was put on its schedule for inspection, even though the [NAME] was made more than two years earlier. The Applicant also asks that the [NAME] expiry date is varied to 23 July 2028.

27. There is a Statement of Case (A17) which states, in summary: (a) The Applicant applied for a [NAME] in April 2021 after refurbishing [NAME] and complying with “Conditions for Mandatory/[NAME] [NAME] Scheme”, particularly section 21; (b) [NAME] was inspected on 4 July 2023 for the purpose of [NAME] it as a HMO; (c) At the time of the inspection, the Applicant was a “live-in landlord” with two lodgers in a flat comprising two storeys. One the ground floor there was a self-contained one-bedroom flat which had no access to the upper two floors; (d) The Respondent had never been issued with the [NAME]; (e) After the inspection, the Respondent produced a list of alleged breaches – Compliance Inspection Schedule, which the Applicant says were inaccurately recorded, resulting in corrections on 19 July 2023 and 20 September 2023; (f) [NAME] is national guidance, not law or regulation; (g) [NAME] does not have more than two storeys but the Applicant has installed a system that [NAME] suggests when there are three storeys and mixed use; (h) Only limited information was provided to the [NAME] when it was asked for its observations and [NAME] letter from [NAME] favours the Applicant’s interpretation of [NAME].

28. On 2 August 2024 (A276) the Tribunal issued Directions for the determination of the [NAME]. The directions state that the issues the Tribunal will consider are as follows: (a) Has the [NAME] gone through the necessary steps prior to the granting of the [NAME] and to the imposing of conditions? (b) Is the imposition of conditions, if applicable, appropriate for regulating the management, use and occupation of the HMO, or its condition and content (s.67(1))? (c) Are such conditions appropriate for requiring facilities and equipment to be made available in the HMO for the purpose of meeting standards prescribed under section 65 of the Act (s.67(2)(a))? (d) Should the conditions be varied, for example: (i) as to the terms of any suspension; (ii) as to their extent or specified works; (iii) is the timescale reasonable?

Respondent’s position 29. Mr. [RESPONDENT] witness statement ([NAME]) states, in summary, as follows: 30. [NAME], as a HMO, required a routine inspection. The Applicant submitted a [NAME] [NAME] on 8 May 2021 and a draft [NAME] was issued on 14 June 2021. The final [NAME] was granted on 12 July 2021. 31. [NAME] is a three-storey townhouse. It is a HMO (s.257) which applied to buildings converted into self-contained flat. The layout also means that it could be classified as a s.254 converted house.

32. An inspection was carried out on 4 July 2024. [NAME] was occupied by 4 tenants and the Applicant. It was established that there were fire safety breaches. A schedule of works was sent on 5 July 2023. The Applicant sent an email on 6 July 2023 querying the conditions. Mr. [NAME] contacted [NAME] on 7 July 2023 and on 11 July 2023 they confirmed that [NAME] required a Grade A, LD2 fire alarm system. An amended schedule of works was issued on 19 July 2023. On 26 July 2023 it was confirmed that all conditions had been met, save those which related to fire precautions. A further request for consultation with [NAME] was sent and on 12 September 2023, they responded that the installation of a Grade A Fire Alarm System was required. A final schedule of works was sent on 20 September 2023. Mr. [NAME], in preparing his schedule of works, ensured that the [NAME] were followed.

The Hearing 33. No inspection was carried out.

34. The Applicant attended the hearing and represented himself. The Respondent was represented by Mrs. [RESPONDENT] (Chief Lawyer) and Mr. [NAME] was also in attendance.

35. The Tribunal started the hearing by asking what system was in place at [NAME]. The Applicant confirmed that he had installed a Grade D, LD3 in system, as a result of Mr. [NAME] inspection. Prior to that, there was a battery powered smoke alarms. He confirmed that a Grade D system meant that there was an alarm every storey, and they were interlinked. An LD3 system meant heat detection in kitchens. He said that a Grade A, LD2 system had a [NAME], potentially core points and, subject to what [NAME] suggested, possibly emergency lighting.

36. He confirmed that he had sent the fire safety certificate, which confirmed that the system was Grade D, LD3 (R45) to the Respondent on 17 August 2023.

37. The Tribunal then asked the Respondent which of the [NAME] conditions it said were breached. Ms. [NAME] referred to conditions 19 and 29. It was then established that the real issue was whether there was “adequate” fire precautions at [NAME], having regard to the [NAME] guidance – the Applicant said that there was (i.e. on the basis of the Grade D, LD3 system which he had installed) and the Respondent said that there was not (as a Grade A, LD2 system was needed).

38. The Applicant said that the Respondent had used words such as “recommendation”, “advise” and “suggest” and that [NAME] did not prescribe what needed to be done. The Respondent said that it had two recommendations from the [NAME] which said that the system needed to be Grade A, which it could not ignore. It said that it needed a decision from the Tribunal as to whether that was reasonable and that, without a decision from the Tribunal, it could not ignore the [NAME]’s recommendations.

39. The Applicant then raised the issue of the date of the [NAME] and said that the Respondent had not produced any evidence to show the date that the [NAME] was issued. He queried when the [NAME] was really issued and whether it was only when it was discovered that [NAME] needed to be inspected. The Tribunal queried its power to vary the [NAME] date and the Applicant was asked what the loss was to the Applicant as the Respondent was saying that [NAME] was licensed. The Applicant said that he had not received what he had paid for if the Respondent had not processed the [NAME].

40. The Applicant then gave evidence. He said that The Smoke and Carbon Monoxide Alarm (Amendment) Regulations 2022 set out the bare minimum required for rental properties.

41. He referred to A51, condition 24(1) which he said came from Schedule 4, para. 4 [NAME]. It was put to the Applicant that he was not challenging the condition, but the interpretation of it by the Respondent, that it required a Grade A, LD2 system. The Applicant referred to A104 (the final schedule provided by the Respondent) and he said that the wording in relation to Condition 21 was that the Respondent “advised” installation of a Grade 2, LD2 system and that was not consistent with what the Respondent was saying at the hearing – if the Grade A, LD2 system was part of the condition and necessary because of a fire hazard or breach, he questioned why the Respondent continue to use the word advise? He asked if it was because they knew that they could not compel a certain level of system? He referred to the “Notes” section on A104 and said that this was misleading as the 2005 order gave the Fire & Rescue Authority (“FRA”) power to inspect buildings, but makes the person responsible for fire safety in the building carry out the risk assessment, which he said he had done (A125). He said that what the Fire Commissioner was responsible for enforcing were not things which were in legislation and the Respondent had used the Fire Commissioner term to back up what they were saying.

42. The Applicant referred to R6, para. 16 and said that the Respondent had introduced the fact that it had relied on s.10 [NAME] 2004. The 2004 Act introduced the [NAME] and s.10 was clear that it only required contact with the FRA if a fire hazard of Category 1 or 2 was scored and there was no hazard identified here. It was said that there was no obligation to consult with the [NAME]. The Tribunal asked the Applicant if he was saying that it was unreasonable for the Applicant to have consulted the [NAME] and he said that the Respondent was overreaching and they did not have to consult. He said that [NAME] was guidance and it was for the landlord to assess the risk. He said that he could not see any evidence there was a hazard or need to consult the [NAME]. He asked, if this was such a “big concern” why did the Respondent wait until he had queried the right to impose condition? The Applicant read from s.10 [NAME] 2004 and he said that that section only applied to emergency measures.

43. The Applicant referred to the letter from the [NAME] mentioned at R7, para. 18 and he said that he had evidence (A120) that the [NAME] had no record of that letter existing. He referred to the letter of 11 September 2023 (A122) and the reference to a Grade D system being sufficient. The Applicant asked how the author could know better than someone who had performed a risk assessment in person? The Applicant said that he was the “responsible person” in law. He referred to the case study and said that we did not know what information the [NAME] had received from the Respondent and the [NAME]’s response were just observations based on what they had been told.

44. The Applicant said that the letter at A122 had an error as the case study at D5 (A239) was about 3-4 storey buildings but the letter referred to a two-storey house. He said that [NAME] did fall within the scope of D5 as the escape routes were protected, the doors were 30 minute doors, they separate each room from escape route and walls were of sound traditional construction, there was a fire blanket (there were no extinguishers but that was only recommended) and the fire safety signs were there from the outset. He referred to para. 1.3 (A201) which made clear the document did not set prescriptive standards, but was guidance for assessing the adequacy of precautions. It said that alternative fire risk assessment methods may be equally valid, so the level of fire detection features could be adjusted depending on the risk that had been assessed. He referred to the photographs of [NAME] and the floor plan and said that [NAME] was not a typical 3-storey house – there was ground floor access from the ground floor and also from the first floor (which was the ground floor at the back) so, in the same way as a two-storey house, if someone was trapped on the first floor, s/he would have access to the ground floor exit. The Applicant said that he had taken this into account when assessing the risk. He said that the Respondent had never asked for his fire assessment and it was not shown to the FRA.

45. The Applicant said that the case studies could not cover every eventuality and there was a caveat to that effect (para. 9.4 – A209).

46. The Applicant explained the differences between a [NAME] compared to a Grade D system. He said that they were not that different looking at the bigger picture – there was the [NAME] and the call points. He said that a [NAME] was less good than a Grade D system as in the former one is reliant on the [NAME] which [NAME] said only had to be inspected every six months, and one is reliant on a tenant seeing the error message/light. With a Grade D system, there had to be a monthly test of the interlined system which was a better way of ensuring that the system was working as it should. Call points would be excessive for the size and nature of [NAME]. Even the Respondent in the second schedule mentions a [NAME] generally, and did not specify a [NAME]. Grade A would be unreasonable and would bestow no fire safety benefit.

47. Ms. [APPELLANT] then asked the Applicant questions as follows:

48. He was referred to A239 and he was asked if D5 was the picture at the top of he page. He said that none of the case studies matched, but the guidance could not cover every situation, but [NAME] was most like D5, D7 and D15. The Applicant referred to A122 and he said that he did not know what the author had had regard to, to think that D5 was a close match as he had not seen [NAME] or photographs. He confirmed that the picture at the top of A239 did say D5. It was put to him that it refers to a shared house of three or four storeys and that shared house was defined at para. 35.2 (A236) and he confirmed this. Ms. [APPELLANT] read out the definition of shared house and the Applicant confirmed this but said it had to be understood in light of para. 33.4. It was put to the Applicant that this did not fit [NAME] and he said that para. 33.4 said that [NAME] did no have to meet the definition. He said that it fitted that definition better than that of “bedsit” as there were not cooking appliances in the bedroom, he knew the people he was living with, it was a communal, social [NAME].

49. The Applicant confirmed that the tenants did have separate tenancy agreements. He also confirmed that the downstairs tenant had a separate tenancy agreement.

50. The Applicant was asked if he had been told on 19 July 2023 by Mr. [NAME] that [NAME] would need a [NAME], and this was after he had been told he would need a Grade D system and the Applicant said that this was what the documents said.

51. The Applicant was asked to confirm that he had not got back to the Respondent until 19 August 2023 to say that he had installed a Grade D system and that he had sent confirmation of this (R45) on 17 August 2023. He said that he had queried the need for the installation of a Grade D system (A89) but the Respondent had not responded. He was referred again to R45 and he said that he could not see what the attachments were but he would trust it was the report as the Respondent said, and he confirmed that the date was 17 August.

52. The Applicant confirmed that the “second” [NAME] letter (R47) was sent even though he did not agree with its contents. He was asked to confirm his position in respect of the first letter and he said that, on the evidence from [NAME], the letter did not exist in terms of them sending it officially and that it was not an official letter.

53. The Applicant was asked if he was saying that the Respondent did not have the right to consult [NAME] under any circumstances. He said that the law suggested not, but he would leave it to the Tribunal to work that out. He said that he didn’t know what the position was in terms of the Respondent being entitled to consult and over-reaching.

54. The Applicant was asked to confirm that he had no evidence confirming the Respondent was prohibited from consulting the [NAME]. The Applicant said that the Respondent referred to s.10 2004 Act but it had not complied with s.10. He said that he did not know the law.

55. The Tribunal asked the Applicant to confirm that A192 was a plan of [NAME] and he confirmed that it was. He was asked about the [NAME]’s letters and he said that a [NAME] would not be of benefit as in an emergency, with alarms going, it was unlikely any would resident would run to the [NAME] to see where it was going off. If they heard an alarm, tenants would close the doors, and raise the alarm.

56. The Tribunal asked the Applicant about the fact that he had installed the Grade D system having been notified that a [NAME] was required. He said that the fire risk assessment suggested that what the law required was already there, that he was the “responsible person”.

57. The Applicant was asked about the fire risk assessment he had done and the fact that, on his assessment, the battery-powered system was sufficient. He confirmed that smoke alarms were one every floor, on the communal escape routes but that there was nothing in the kitchen. He was asked about the fact that the assessment said that the system in place was satisfactory, but that it was not, and the Applicant said that he knew that now. He said that Mr. [APPELLANT] was not sure during the inspection what system was needed and then the Applicant received the first schedule which referred to a Grade D system. He received it on 6 July 2023 and ordered the alarms and was then waiting for them to be delivered. He then had then installed and the fire safety certificate was issued. He said that the system was installed about a day or a few days before the date of the certificate. He was asked why he had not stopped the installation once he had received the second version of the schedule, and he said that the alarms had already been purchased and that he had determined that a [NAME] was “too much”. He was asked if he could still have used the detectors on a [NAME] and he said that they would not have worked with a [NAME] system. He said that he was hopeful that the Applicant had misunderstood and the references were only to “advice” and there was nothing in law or in [NAME] which meant that he had to instal a particular system. He said that he would have happily complied with a requirement to instal a Grade

D system, but he was not willing to accept a Grade A. It was put to him that he carried on at his own risk, and he said that it was unsatisfactory to leave the battery system which was in place and that he agreed that an interlinked Grade D system was reasonable.

58. It was put to the Applicant by the Tribunal that [NAME] did not fit within D5 and he said that it did not strictly match D5. The Applicant said that he did not mind the cost, if the work needed to be done, but the [NAME] was “too big a leap” from what was required and the lower risk that he had determined.

59. Mr. [NAME] then gave evidence. He confirmed that he had worked for the Respondent for 7 years and he had been a [NAME] officer for 4 years. He had a Bachelors degree in commercial law and business management, and a CIH in [NAME]. He was asked why he had contacted the [NAME] in July 2023 and he said that when he sent the initial schedule of works to the Applicant, it was challenged by the Applicant and his best option was to contact [NAME] to get an answer as he had initially recommended a Grade D system. The [NAME] came back and specified a [NAME] and he confirmed that he had followed that recommendation in his second schedule (19 July 2023). He was asked why he chose to follow that recommendation and he said that it was because of [NAME]’s lay out - self-contained on the ground floor with cooking facilities which presented a heightened fire hazard and a [NAME] would allow the [NAME] to immediately attend to a fire as the panel would identify where it was.

60. Mr. [NAME] was asked what information he had sent to [NAME] and he said he sent the floor plan, a photograph of [NAME] and information as to occupation and facilities (a self-contained and communal kitchen). Upon receiving the certification from the Applicant, he sent it to [NAME] for a second consultation in case they were happy with the existing system and [NAME] came back and said [NAME] still needed a [NAME].

61. Mr. [NAME] referred Mr. [NAME] to [NAME] and he was asked what he had sent to the [NAME]. He said that he had sent the fire alarm certification and the letter of 11 July 2023 and the evidence as to the new fire system.

62. The Applicant then asked Mr. [APPELLANT] questions as follows:

63. He was referred to [NAME], para. 3 and he was asked when the [NAME] was completed. Mr. [NAME] said that [NAME] was licensed from 2021. He confirmed that the Respondent’s [NAME] conditions required documents to be displayed in [NAME] and that only the [NAME] was not displayed. He was asked where in the evidence were the records, emails, or a trail that proved the final [NAME] was issued on date he said it was. Mr. [NAME] said that the evidence was on the [NAME] and that there was evidence on the [NAME] showing that it was sent out on the date it said it was.

64. Mr. [NAME] was referred to [NAME], para. 2 and he was asked as to the reason his manager accompanied him on the inspection. Mr. [NAME] said that there was no particular reason.

65. Mr. [NAME] confirmed that he was a “trained” EHO as he had [NAME] [NAME] and that he was entitled to conduct rating system assessments, conduct prosecutions, and issue CPN’s. He confirmed that he was not a trained and qualified fire officer, risk assessor or a landlord in the [NAME] [NAME].

66. He was asked about his initial assessment that a Grade D system would be sufficient. He said that there were other fire precautions which were not addressed (fire door needed self-closure and intermescent seals) and he thought that a Grade D system in conjunction with addressing those matters, would be sufficient. This was based on his inspection. He was asked why he had “got it wrong” and he said that he had not got it wrong but had then consulted with [NAME] following the Applicant challenging the need for a Grade D system. He said that it was the [NAME] who said the system should be Grade A.

67. Mr. [NAME] was referred to R6, para. 13-14 and he was asked if the specification of a Grade D system was a recommendation or mandatory. He said that it was a recommendation but if it was in the schedule of works, the landlord would be expected to do those works. He said it was mandatory once the landlord had been advised to install it.

68. Mr. [RESPONDENT] confirmed that R7, para. 18 was correct. He was asked where on A86 it said the requirement was mandatory and Mr. [NAME] said that the wording did not say that. He said that the Respondent could look into that, and repeated that once it was included in a schedule of works, it became mandatory. He confirmed that the Applicant raised this issue at the time in emails. He was asked why the wording did not make clear that this was a mandatory requirement. He said that the Respondent used the word “advise” but it would expect the works to be done. He said that he sent the email at R44 and he did use the word “advised” but he said what was required, provided a deadline and confirmed that the other conditions had been addressed.

69. Mr. [NAME] was referred to A86 and he agreed that there was nothing in the wording that said the Applicant must install the system he suggested.

70. Mr. [APPELLANT] defined a [NAME] as one equipped or accompanied by emergency lighting, it is mains wired, interlinked and has a fire [NAME]. He was asked why some of those elements were missing from A86 and whether the reason was that he did not think that a [NAME] would have a [NAME]. Mr. [NAME] disagreed with this and said that all Grade A systems had control panels.

71. Mr. [NAME] was referred to A120 and it was put to him that there was no record of the letter of 11 July. Mr. [NAME] referred to the paragraph that referred to

an email dated 11 July. The Applicant clarified that this referred to the email the Respondent sent the [NAME], but they had no record of the letter they sent. Mr. [NAME] said that he could not comment on that, but he did have evidence that the letter was sent by the [NAME]. He confirmed that the letter at A122 had a reference number and was a digital colour copy. He confirmed that the letter at A133 was sent by email. He had not included that email in the bundle, but he believed that a copy of the letter was sufficient. He said that he received the letter on 11 July 2023. He had contacted the [NAME] on 7 July 2023 initially. He was asked if it was possible that he did not see the 11 July 2023 email/letter until after he had done the schedule on 19 July 2023 and he confirmed that he had seen it on 11 July. He was asked if he or someone else had received the [NAME] letter after 19 July, around 4 August, but a [NAME] contact had backdated the letter and Mr. [NAME] said this was incorrect.

72. Mr. [NAME] said that [NAME] did not send someone to inspect [NAME]. It was confirmed that the Respondent had not asked for the risk assessment at A125 so it could not have been sent to [NAME]. No internal photographs were sent. Mr. [NAME] as asked if he had explained to [NAME] about the circumstances that would increase or lower the risk and he said that he had made aware of the firm alarm systems in place initially and the one that was now installed, as well as the fact that there was a self-contained unit on the ground floor with its own cooking facilities. He did not tell them about the FD30 doors. He had advised them of the escape route but not about the combustible material. He was asked if it was possible that [NAME] did not have all the information it needed to make an accurate judgment and to give observations. He said that it had the most important information. He was asked if it was possible that the [NAME]’s observations were incorrect, and they had got it wrong. Mr. [NAME] did not accept this. He was referred to A122 and the reference to a two-storey house. He said that the [NAME] did not get that wrong, they used that as a recommendation and were saying that if [NAME] were wo-storey, Grade D would be sufficient.

73. Mr. [NAME] was asked if there were hazards at [NAME] and he confirmed that, from his inspection, there were. He was asked if there were still hazards and he said that there were – relating to fire, there was no [NAME], having regard to the size of [NAME], the self-contained unit and additional communal kitchen, the fact that there could be a maximum occupancy of up to 7 people. He was asked if the hazards were emergency hazards and he said potentially they were.

74. Mr. [NAME] confirmed that smoking, a sofa next to a gas hob and storing combustible items in a hallway cupboard were all fire hazards. He said that use of a Grade D system instead of a Grade A, on its own, could be a hazard. He said that there was no reference to a hazard in the evidence and said that the [NAME] had responded to eliminate hazards. He said that they were serious enough for him to take action and when asked why he had “left it” for a year, he said that he had not. He confirmed that he had not done a [NAME] assessment and said that he had determined the hazards based on his experience and his observation of [NAME]. It was put to him that his training would dictate that he cannot do an assessment without scoring, he said that he had avoided wasting time and went to the experts. He said that [NAME] did not have

category 1 hazards but they were borderline. When asked how he had assessed this, he said that there would be scoring if the matter was referred to enforcement, and this was a compliance schedule of works. If the works were not carried out, there would be further inspections. He denied that he was speculating and said that he saw [NAME] and said that the system [NAME] had at the time of his inspection was not sufficient. He said that any [NAME] which is three-storeys required a Grade A fire alarm, in particular properties that have not been used as shared house and, based on his inspection, [NAME] was not used as shared house, and that was where the hazards existed.

75. The Applicant read s.10 and asked what the fire hazards were that he said were close to category 1. He said that it was the lack of fire alarm systems he observed in his inspection.

76. Mr. [NAME] was asked if he admitted that s.10 did not require him to contact [NAME]. He said that if there was any concern, he would always consult them. He said that before taking action, the local authority could consult the [NAME].

77. Mr. [NAME] was asked what factors would have made a Grade D system acceptable at [NAME]. He said that if it were no longer used as a HMO. The Applicant referred to the [NAME] guidance and it was put to Mr. [NAME] that a HMO could have three storeys. He replied that this was for a shared house, not a HMO. He said that [NAME] was a bedsit style HMO, with a mix of self-contained cooking facilities, and communal cooking facilities. The Applicant said that a bedsit is where each occupant has his/her own personal cooking facilities (R135). It was put to Mr. [NAME] that [NAME] did not have little or no communal living. His response was that, based on his inspection there was only a shared use of kitchen. There was more than one tenancy agreement. He confirmed that [NAME] is guidance and that the Applicant was the “responsible person”.

78. The Applicant put to him that there was no one who had performed a more thorough inspection and he agreed with this.

79. The Tribunal asked Mr. [NAME] about A192 and whether the position would be different if it became a three-storey HMO without the separate one-bedroom flat. Mr. [NAME] said that the main thing was that it was three storeys and used as a HMO and so the view of [NAME] would stand.

80. Ms. [NAME] said that adequate fire precautions was the relevant condition. The question was whether it was adequate? Whether the system needed to be Grade D or A? She said that the letters from the [NAME] recommend Grade A. On that basis of that, the council felt it had to adopt that. The Tribunal had heard from the Applicant that he had not started to install the system until after he had been told it would need to be a [NAME]. He had chosen to continue. It was said that the fire risk assessment needed to be done by a [NAME], suitably qualified. It was said that if the Respondent was to deviate from the recommendations of the [NAME], it would need assurance from Tribunal that that

was the correct course. It needed to ensure that the tenants were not at risk. She referred to the witness statement of Mr. [APPELLANT] which stated that the Applicant was sent a draft [NAME] and a final [NAME] in September 2021.

81. The Applicant said that there were limited conditions that could be imposed by law on a landlord in terms of fire safety. He said that “adequate” was the key word and this was determined by [NAME]. He referred to the case of [NAME] and said that in that case there was an inspection by the fire officer, which we did not have here. He accepted that the Respondent had a right to contact who it wanted to understand the law and safety requirements, but advice needed to be credible, thorough and done to a sufficient standard. If a fire officer was involved and had done an assessment which then said Grade A, he said that that would change everything and it would trump his assessment. His assessment was in person and whilst his initial assessment was not as good, it was now of an adequate standard. He referred to [NAME] and the difference between a shared house and a bedsit. He said that there was no legal definition of those terms. He said that some local authorities used the case studies as prescriptive standards, but they were examples, and one size did not fit all. Mr. [NAME] had talked about how the only situation which would result in a lower grade would be if [NAME] were not a HMO but this was not consistent with [NAME]. Hazards as serious and require enforcement action and Mr. [APPELLANT] referred them today was guesswork.

82. The Applicant said that he was the responsible person, he had done the risk assessment (and an updated assessment). He said that he knew the tenants, who he selected. He knew he [NAME]. He said that no one else had visited and done an assessment which was more credible than his. He agreed that [NAME] should be followed, but with some flexibility and it should be used as guidance but it was for him to determine what was adequate.

Statutory regime 83. The [NAME] of [NAME] is provided for by Part 2 of the Act. An [NAME] for a [NAME] is made to the [NAME], which is the Respondent. The Respondent can grant or refuse a [NAME] (s.64) and may include such conditions as the [NAME] considers appropriate (s.67).

84. By Paragraph 31 of Part 3 of Schedule 5 to the [NAME] 2004:- (1) The applicant or any relevant person may appeal to the appropriate tribunal against a decision by the local [NAME] authority on an [NAME] for a [NAME]-

(a) to refuse to grant the [NAME] , or (b) to grant the [NAME]. (2) An appeal under paragraph (1)(b) may, in particular, relate to any of the terms of the [NAME].2.

85. Paragraph 34 states that an appeal is to be by way of a re-hearing but may be determined having regard to matters of which the authority was unaware. [NAME] v Hussain [2023] EWCA Civ 733. The Tribunal may confirm, reverse or vary decision of the [NAME].

86. Section 10 of the [NAME] 2004 states as follows: (1) This section applies where a local [NAME] authority— (a) are satisfied that a prescribed fire hazard exists in an HMO or in any common parts of a building containing one or more flats, and (b)intend to take in relation to the hazard one of the kinds of enforcement action mentioned in section 5(2) or section 7(2). (2) Before taking the enforcement action in question, the authority must consult the fire and rescue authority for the area in which the HMO or building is situated. (3) In the case of any proposed emergency measures, the authority’s duty under subsection (2) is a duty to consult that fire and rescue authority so far as it is practicable to do so before taking those measures. (4) In this section— • “emergency measures” means emergency remedial action under section 40 or an emergency prohibition order under section 43; • “fire and rescue authority” means a fire and rescue authority under the Fire and Rescue Services Act 2004 (c. 21); • “prescribed fire hazard” means a category 1 or 2 hazard which is prescribed as a fire hazard for the purposes of this section by regulations under section 2

Determination of the Tribunal

87. As stated above, the issue for the Tribunal is not so much the Conditions imposed for the [NAME], but whether the Applicant has complied with them and/or the Respondent’s interpretation of them. He does not say that the Condition (19) that he must ensure that any works found to be necessary by the Council to ensure that [NAME] complies with the Council’s standards for HMOs, are carried out within the specified time period given is an unreasonable one, but he does say that the requirement in the second and third schedules to install a Grade A, LD2 system, is an unreasonable one. Similarly, he does not say that the Condition (29) that requires him to have “adequate fire precautions” is unreasonable, but his contention is that the system currently installed in [NAME] (being a Grade D, LD2 system) meets this Condition.

88. As was said in [NAME] v [NAME] and Portland Borough Council CHI/9UJ/HMV/2019/0005 [22]: ‘It goes without saying that fire precautions and alarm systems are of fundamental and paramount importance and local councils and fire authorities depart from the [NAME] at their peril. This Guide is not statutory or prescriptive provided that alternative arrangements that are equally effective are implemented. The recommendations are based on the principles of fire risk assessment. At paragraph 22.4 of the Guide it states that the standards recommended in part 6 table 1 are to be regarded as “base guidelines”. They are appropriate for premises of “normal risk”. Where the risk is lower or higher than normal “then a lower or higher provision of detection and warning may be appropriate.”’ 89. The Tribunal notes the constitution of [NAME], being a self-contained flat on the ground floor, with a three bedroom “maisonette” on the first and second floors – the layout is complicated by the fact that the ground rises, so there is also “ground-floor access” from the first-floor.

90. [NAME] describes a “bedsit-type HMO” as follows: These are HMOs which have been converted into a number of separate non- self-contained bedsit lettings or floor-by-floor lets. Typically, there will be individual cooking facilities within each bedsit, but alternatively there may be shared cooking facilities or a mixture of the two. Toilets and bathing/washing facilities will mostly be shared. There is unlikely to be a communal living or dining room. Each bedsit or letting will be let to separate individuals who will live independently, with little or no communal living between tenants. Each letting will have its own individual tenancy agreement and there will usually be a lock on each individual letting door”. A shared house is defined as [NAME] where the whole [NAME] has been rented out by an identifiable group of sharers such as students, work colleagues or [NAME] as joint tenants. Each occupant normally has their own bedroom but they share the kitchen, dining facilities, bathroom, WC, living room and all other parts of the house. All the tenants will have exclusive legal possession and control of all parts of the house, including all the bedrooms. There is normally a significant degree of social interaction between the occupants and they will, in the main, have rented out the house as one group. There is a single joint tenancy agreement. In summary, the group will possess many of the characteristics of a single family household,

although [NAME] is still technically an HMO as the occupants are not all related. The Guidance goes on to state that the exact arrangements will vary from house to house and this may result in “grey areas” in determining whether a house is a true shared house which therefore presents a lower fire safety risk due to the mode of occupation and that each case will need to be considered on its merits, and that even if a [NAME] is occupied as a shared house, the fire risk may still increase if [NAME] is of a non-standard layout or is the occupants present a higher risk due to factors such as limited mobility or drug/alcohol dependency.

91. In terms of the [NAME], [NAME] does not neatly fit into the description of a “shared house HMO” or a “bedsit HMO”. In this case, the tenant of the self-contained flat has a different tenancy agreement to those who live in the “maisonette” and those who live in the “maisonette” have different tenancy agreements to each other, i.e. they are unconnected individuals. None of the rooms in the “maisonette” have their own cooking facilities, there is a communal kitchen. The fact that there is no cooking in bedrooms does reduce the fire risk.

92. [NAME] says alternative fire risk assessment methods may be equally valid. Again, as noted in [NAME], [16], the [NAME] does not prescribe standards and does allow alternative solutions to be proposed, but it states that any alternative arrangement will need to achieve at least an equivalent level of fire safety.

93. The Tribunal has taken all of this into account when deciding whether the existing system is adequate.

94. It also has regard to the fact that a [NAME] has a [NAME] which shows up if there is a fault to the system and the location of the detector which has been activated. Thus, a tenant can see at a glance if there is a problem. With the system currently in place, checks have to be carried out by the landlord on a regular basis to ensure that the system is working properly.

95. The Tribunal does not have a witness statement from the [NAME], but it does have the letters at A113 and A122. It is noted that, in terms of the information given to [NAME] (A124), it was told that [NAME] has a ground floor which was occupied by a couple of two, they had their own self-contained bedroom which has a kitchen and bathroom and the first and second floors were occupied by the landlord and [NAME] who shared a communal kitchen. A floor plan of [NAME] was provided, but it was pointed out that the first floor front and first floor rear usage had been rearranged so the first floor rear was the kitchen/living and the first floor front was a bedroom. It was then told ([NAME]) that the ground floor unit was a self-contained having exclusive use of its own kitchen, bedroom has uPVC double casement doors to the front external which serves as an alternative MOE, the [COMPANY], the report showed an LD3-Grade D and not a LD2 GRADE A alarm system as a minimum.

96. The Tribunal notes the Applicant’s submissions about the letter at A113 (A121) and the Tribunal finds that it was written on 11 July 2013, provided to the Respondent and was taken into account by the Respondent when it produced its second schedule. There is reference to this letter in the email at [NAME] and we have the witness evidence of Mr. [NAME]. In any event, this is a re-hearing and the Tribunal takes account of the two [NAME] letters when reaching its decision.

97. The same point stands in relation to the arguments raised by the Applicant in respect of s.10 [NAME] 2004. Whether there was an obligation to consult the [NAME] or not, the Respondent was clearly entitled to consult and, having done so, at this re-hearing, the Tribunal has the responses.

98. The Tribunal agrees with the Tribunal in [NAME] when it said, in the circumstances of that case, that as [NAME] does not neatly fit into any of the categories illustrated in the [NAME] there needed to be a more nuanced risk assessment.

99. The Respondent sees no reason to depart from the view of the [NAME] that a Grade D, LD3 system is not adequate for [NAME], and that it requires a Grade A, LD2 system. [NAME] does not fall within the risk requirements at A122 which would mean that [NAME] would be suitable for a Grade D, LD3 system (even assuming the storey requirements are met). It notes the risk assessment done by the Applicant (A125) and that he is the “responsible person” for the purposes of The Regulatory Reform (Fire Safety) Order 2005. That does not mean, however, that the Applicant’s risk assessment is conclusive.

100. The Tribunal notes the decision in the [NAME] case, but: (a) each case turns on its facts; (b) the size and occupancy of a [NAME] are very relevant to the potential risk and therefore to the decision as to what system is “adequate”. It is noted that the Applicant was, initially, querying whether the system in place before July 2024 would suffice. The Applicant is the “responsible person” for the purpose of The Regulatory Reform (Fire Safety) Order 2005, but the Tribunal has to note that he has not had any training and does not have any specialist knowledge (save his knowledge of [NAME]). This is contrasted with the Assistant Commissioner from the [NAME]. The Tribunal does not agree with the Applicant’s submission at para. 24 of his Skeleton Argument that only he is in a position to determine adequate fire safety measures.

101. The Tribunal finds that the current system is not appropriate and that the condition to install a [NAME] is reasonable in the circumstances of this particular case. The Tribunal will, however, vary the time for compliance to 20 December 2024.

App for pro rata refund and/or extension of [NAME] period

102. The [NAME] for a refund was not pursued at the hearing and in any event, the Tribunal has not jurisdiction to make this order. Even if it had, it would not have ordered it – the [NAME] was in place.

103. The Tribunal does not make an order extending the period of the [NAME] for the same reasons.

[NAME] for refund of fees

104. As the [NAME] was not been successful, the Tribunal does not make an order for refund of fees.

Judge Sarah McKeown 13 November 2024

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) ([NAME] Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, [NAME] and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).