Emergency Prohibition Order Rejected Due to Lack of Evidence

OUTCOME: Allowed

1 Case Reference : BIR/00CW/HPO/2024/0002 [NAME] : [ADDRESS] [POSTCODE] Applicant: [redacted] Respondent : [redacted] Type of Application : An appeal against an Emergency Prohibition Order under section 45(2) of the Housing Act 2004 Tribunal Members : Judge [NAME] [NAME], JP Date and venue of : 16 December 2024 Hearing Centre City Tower, 5 – 7 [ADDRESS] [POSTCODE] Date of Decision : 27 January 2025 _________________________________________________

DECISION _____________________________________ © CROWN COPYRIGHT 2025 FIRST - TIER TRIBUNAL [NAME] ([NAME])

2 Decision 1. The Tribunal orders that the Emergency Prohibition Order be revoked with effect from the date it was made, being 23 April 2024, and that any associated demand for payment of a charge that may have been issued relating to the same be quashed.

2. The Tribunal orders, under Rule 13(2) of the Tribunal Procedure (First-tier Tribunal)([NAME]) Rules 2013, that Wolverhampton City Council reimburse [NAME] [APPELLANT] the whole of the tribunal application fee and the hearing fee, being a total sum of £330. Reasons for Decision Introduction 3. On 20 May 2024, the First-tier Tribunal ([NAME]) received an application from [NAME] [APPELLANT] (‘the Applicant’) for an appeal under section 45(2) of the Housing Act 2004 (‘the Act’).

4. The appeal related to an Emergency Prohibition Order (EPO) dated 23 April 2024 (‘the Order’), served upon him by Wolverhampton City Council (‘the Respondent’) relating to the [NAME] known as [ADDRESS] [POSTCODE] (‘the [NAME]’).

5. The Applicant is the joint freeholder, together with [NAME] [APPELLANT] (on whom a copy of the Order was also served), of [ADDRESS] (‘the Building’) of which the [NAME] forms part.

6. The Order detailed, in Schedule 1, various defects at the [NAME] and, in Schedule 2, the remedial action that needed to be carried out for the Order to be revoked.

7. Schedule 1 referred to six hazards, all of which were described as being of “imminent risk”. These hazards were in respect of Crowding and Space (Item 1), Excess cold (Item 2), Damp and mould growth (Item 3), Collision and Entrapment (Item 4), Falling between Levels (Item 5) and Position and Operability of Amenities etc (Item 6). The Respondent served, with the Order, a Statement of Reasons as to why the decision to take enforcement action had been made.

8. The Tribunal received a bundle of documents from both parties and an inspection was arranged for 16 December 2024, with an oral hearing thereafter at the tribunal’s hearing rooms in Birmingham.

9. On the day of the hearing, the Tribunal was provided with a trial bundle from the Respondent (‘the Trial Bundle’), together with a further statement from the Respondent and a costs schedule which had been submitted to the tribunal’s office on 12 December 2024.

3 The Law 10. The Act introduced a new system for the assessment of housing conditions and for the enforcement of housing standards.

11. The Housing Health and Safety Rating System (the ‘HHSRS’) replaced the system imposed by the Housing Act 1985, which was based upon the concept of unfitness. The HHSRS places the emphasis on the risk to health and safety by identifying specified housing related hazards and the assessment of their seriousness by reference to (1) the likelihood over the period of 12 months of an occurrence that could result in harm to the [NAME] and (2) the range of harms that could result from such an occurrence.

12. These two factors are combined in a prescribed formula to give a numerical score for each hazard. The range of numerical scores are banded into ten hazard bands, with band A denoting the most dangerous hazards and Band J the least dangerous. Hazards in Bands A to C (which cover numerical scores of 1000 or more) are classified as ‘category 1 hazards’ and those in bands D to J (which cover numerical scores of less than 1000) are classified as ‘category 2 hazards’.

13. Where the application of the HHSRS identifies a category 1 hazard the local housing authority has a duty under section 5(1) of the Act to take appropriate enforcement action. Section 5(2) sets out the courses of action (which include the making of an EPO) that constitute appropriate enforcement action. Where the application of the HHSRS identifies a category 2 hazard the local housing authority has a power under section 7(1) of the Act to take enforcement action in respect of that hazard, however, the making of an EPO is not an option available to them in respect of the same.

14. Section 9 of the Act requires the local housing authority to have regard to any guidance for the time being given by the appropriate national authority about the exercise of their functions in connection with the HHSRS. In February 2006 the Secretary of State issued ‘Housing Health and Safety Rating System – Operating Guidance’ (‘Operating Guidance’) which deals with the assessment and scoring of HHSRS hazards. At the same time the Secretary of State also issued ‘Housing Health and Safety Rating System – Enforcement Guidance’ (‘Enforcement Guidance), which is intended to assist local housing authorities in deciding which is the most appropriate course of action under section 5 of the Act and how they should exercise their discretionary powers under section 7 of the Act.

15. Section 43 of the Act deals with the making of EPOs and section 1 states as follows: “(1) If— (a) the local housing authority are satisfied that a category 1 hazard exists on any residential premises, and (b) they are further satisfied that the hazard involves an imminent risk of serious harm to the health or safety of any of the [NAME] of those or any other residential premises, and (c) no management order is in force under Chapter 1 or 2 of Part 4 in relation to the premises mentioned in paragraph (a),

4 making an emergency prohibition order under this 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 (category 1 hazards: general duty to take enforcement action).” 16. The person upon whom an EPO is served may appeal to the First-tier Tribunal ([NAME]) under section 45(2) of the Act and under section 45(5): “(5) An appeal under subsection (1) or (2)— (a) is to be by way of a re-hearing, but (b) may be determined having regard to matters of which the authority were unaware.” 17. The powers of the tribunal are detailed in section 45(6)(b), which confirms that it may, “confirm or vary the emergency prohibition order or make an order revoking it as from a date specified in that order.” 18. Section 49 of the Act confirms that a local housing authority may recover expenses relating to enforcement action and section 49(1) states as follows: “(1) A local 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 – … (e) making an emergency prohibition order under section 43;” However, under section 49(7) of the Act: “(7) Where a tribunal allows an appeal against the underlying notice or order mentioned in subsection (1), it may make such order as it considers appropriate reducing, quashing, or requiring the repayment of, any charge under this section made in respect of the notice or order.” Background 19. The background to the application was not in dispute.

20. On 5 April 2024, the Council received a complaint in relation to the [NAME] regarding damp and a lack of ventilation, together with inaction by the landlord to rectify the same. The [NAME]’ details were given as those of the landlord. 21. [NAME] [RESPONDENT] [NAME], a Senior Environmental Health Officer employed by the Respondent, was allocated the case and, on 11 April 2024, he served a section 239 inspection notice to the address provided. On 15 April 2024, [NAME] [NAME] received an email from the [NAME] confirming that they provided a let-only service but had notified the landlord of the inspection.

22. An inspection was carried out by [NAME] [APPELLANT] on 15 April 2024 in the presence of the Applicant and [NAME] of the [NAME] - the tenant, her husband and their young child.

5 23. The [NAME] advised [NAME] [NAME] that they slept in the kitchen/living area as there was excessive mould in the bedroom. They showed [NAME] [NAME] photographs of the bedroom taken by them on 12 April 2024. 24. [NAME] [NAME] found that the [NAME] had no fixed heating in the bedroom or bathroom and that the room temperature in the bedroom was 13.3°C, in the kitchen/lounge area was 16.5°C and in the bathroom was 14.3°C. He was advised by the Applicant that there had previously been fixed heating, however, the tenants had removed the same so that they could obtain a council house. The [NAME] denied this was the case. [NAME] [NAME] did not observe any brackets, wiring or pipework which would indicate fixed heating had ever been installed in the bedroom and bathroom. 25. [NAME] [NAME] noted that there were two oil-filled plug-in heaters with socket timers at the [NAME] (which the Applicant confirmed he had provided), a fixed storage heater in the kitchen/lounge (which he was advised by the [NAME] did not work) and two further electric plug-in convection heaters (which the [NAME] advised that they had purchased themselves). 26. [NAME] [NAME] measured the bedroom as being a size of 7.47 m². He noted that the bedroom had one single glazed, sash window and a UPVC double glazed window which was cracked; that the kitchen/lounge sash window had single-glazing and that none of the opening lights to the sash windows at the [NAME] (which were at 609mm and 650mm over the floor level) had restrictors. 27. [NAME] [NAME] also noticed that the extractor fan in the bathroom was not working and that there was no extractor fan in the kitchen/lounge area.

28. The Applicant confirmed that he had attended the [NAME] after being notified of the inspection and had cleaned away any mould. After the inspection, the Applicant emailed [NAME] [APPELLANT] with a list of other work he intended to carry out urgently. 29. [NAME] [NAME] completed a HHSRS assessment following the inspection, which revealed two category 1 hazards - Excess cold and Crowding and Space, and four category 2 hazards - Damp and mould growth, Collision and Entrapment, Falling between Levels and Position and Operability of Amenities.

30. As the section 239 notice had not been served on the owners, [NAME] [NAME] served a further section 239 notice on 16 April 2024 and a second inspection was carried out on 22 April 2024, which [NAME] [APPELLANT] attended. [NAME] [NAME] noted that the condition of the [NAME] remained the same and he completed a further HHSRS assessment following the inspection which identified the same hazards as his first assessment.

31. On 23 April 2024, [NAME] [APPELLANT] issued the Order which was served on the Applicant and joint owner. [A copy of the Order is annexed to this decision] Inspection 32. The Tribunal inspected the [NAME] on 16 December 2024 in the presence of the Applicant and, on behalf of the Respondent, [NAME] [COUNSEL] and [NAME] [COUNSEL] [NAME] (a

6 solicitor). The [NAME] was empty at the time of the inspection, the previous [NAME] having vacated the same.

33. The Building is located on the corner of [ADDRESS] and [ADDRESS] in Wolverhampton. It comprises, on the ground floor, commercial premises and one residential flat (Flat 1), with two further residential flats (the [NAME] and Flat 3) located on the first floor. The Building is brick-built and fully rendered, with a pitched, tiled roof. The [NAME] is located at the rear of the Building with external walls to two elevations.

34. The two first floor flats are accessed via an internal staircase from the ground floor of the Building, leading to a small hallway on the first floor. The front door of the [NAME] leads directly into an open plan kitchen/lounge area. Both the bathroom (which contained a washbasin, toilet and bath with shower over the same) and bedroom are accessed from the kitchen/lounge area.

35. There was a small UPVC window in the bathroom, a large timber sash window in the kitchen/lounge and two windows in the bedroom, one horizontal UPVC window and one large timber sash window. All windows were double-glazed and fitted with restrictors. None of the windows appeared to have been newly installed, although the Applicant confirmed that the restrictors had been added since the Respondent’s inspection.

36. The Tribunal measured the depth of the external facing walls (which were all internally surfaced in plasterboard) from both bedroom windows and the window in the kitchen/lounge. The measurements recorded were as follows:  Bedroom UPVC window - 350mm,  Bedroom sash window - 375mm  Kitchen/lounge sash window - 380mm 37. All three rooms contained programmable convector heaters attached to the walls. The kitchen units appeared to be of a fair standard and there was a working extractor hood above the cooker hob in the kitchen. The extractor fan in the bathroom was also working and the shower pull cord was at a suitable height.

38. The [NAME] appeared to have been recently decorated and was of a reasonable standard of accommodation with no mould evident. Hearing 39. Following the inspection, a public hearing was held at one of the tribunal’s hearing rooms at Centre City Tower in Birmingham. The Applicant attended and represented himself. [NAME] [APPELLANT] attended on behalf of the Respondent and the Respondent was represented by [NAME] [RESPONDENT].

40. Although the Tribunal had only received sight of the Respondent’s further statement and Trial Bundle at the hearing, as [NAME] [NAME] confirmed that most of the information contained in the same was a repetition of that already submitted, and as the Applicant had confirmed that he had received a copy of the documentation on 12 December 2024, the Tribunal allowed the Respondent to rely on the same.

7 41. As no costs application had been made to the Tribunal by the Respondent, [NAME] [RESPONDENT] confirmed that the costs schedule submitted by the Respondent could be disregarded. Submissions The Applicant’s submissions 42. The Applicant confirmed that he had been a landlord for over 20 years and submitted that he had always had good relationships with his tenants, providing them quality accommodation.

43. He stated that the [NAME] had been let to Ms [APPELLANT], as the sole tenant and occupant of the flat, through [NAME] on 17 May 2022. He stated that the tenancy had initially been for a fixed term of six months and continued as a periodical tenancy thereafter, with the tenant being liable for payment of all [NAME] under the agreement. The Applicant accepted that the [NAME] was only suitable for occupation by one person.

44. The Applicant disputed that any complaint had ever been made to him regarding any mould at the [NAME] and contested a number of observations that had been made by [NAME] [APPELLANT] during the initial inspection.

45. The Applicant stated that the [NAME] did have wall mounted storage heaters at the commencement of the tenancy, which was evidenced in the energy performance certificate (‘the EPC’) that had been issued for the [NAME] on 13 May 2020. He stated that these were also detailed on the Electrical Installation Condition Report dated 7 May 2023 (‘the EICR’) which had been issued for the [NAME] during the tenancy. The Applicant submitted that [NAME] [APPELLANT] had failed to notice the metal panel backing and spur for the storage heater that had previously been in the bedroom and that, had he been asked to, he would have pointed these out to [NAME] [NAME], together with the fuse board where each heater had a breaker.

46. The Applicant submitted that [NAME] [APPELLANT] had also failed to check whether the wall mounted heater in the kitchen/lounge had been working on the day of the inspection, simply choosing to rely upon the statement given by the [NAME] that it was not working instead.

47. The Applicant stated that he had informed [NAME] [APPELLANT], and the Respondent in correspondence following the inspection, that he believed the other heaters had been removed by the [NAME] as they wanted to be rehoused by the local authority. He further submitted that he was only made aware that the heaters had been removed when he visited the [NAME] after being notified of the inspection.

48. The Applicant stated that when he visited the [NAME] he cleaned all of the walls down, to remove any mould, and provided the [NAME] with oil filled radiators as an interim measure.

49. As the Applicant had washed down the walls on the weekend prior to the inspection, he disputed that the moisture measurements recorded by [NAME] [NAME] were correct, as

8 he contended the walls would still have been damp at that time. In addition, he queried whether the measuring equipment used in recording the various readings taken on the day had been calibrated prior to the inspection.

50. With regard to the windows, the Applicant confirmed that all of the windows were double glazed and was surprised that [NAME] [NAME] had failed to record the same correctly, despite inspecting the [NAME] twice. The Applicant stated that this point was also raised by him in his correspondence with the Respondent following the inspection.

51. In relation to the specification of the walls, the Applicant disputed that the walls were simply solid brick walls and referred to the 2007 planning documents for the conversion of the flats included within the Trial Bundle. He submitted that the external walls had been upgraded with thermally insulated plasterboard as suggested in those documents. Again, the Applicant referred to his reporting of this to the Respondent following the inspection.

52. Based on the above, the Applicant contended that the Order should not have been issued due to the errors in the inspection, as well as the actions of the [NAME] in creating the excess cold, damp and overcrowding at the [NAME].

53. Following the hearing, the Applicant provided a copy of the EPC and EICR to the Tribunal at its request. The Respondent’s submissions 54. [NAME] [APPELLANT] contended that, although the Applicant had raised a number of issues in his application, the appeal should be limited to the points concerning the glazing and insulation at the [NAME]. She contended that neither the cause of a hazard nor the failure of the Applicant to be aware of the same, were relevant considerations under Part 1 of the Act.

55. As the Respondent had found that category 1 hazards existed, [NAME] [RESPONDENT] stated that the local authority were required to take one of the courses of action open to them and that an EPO was considered to be the most appropriate course of action. 56. [NAME] [NAME] confirmed that, despite the Order referring to each of the six hazards found at the [NAME] as constituting an “imminent risk”, that only the first two items, Crowding and Space and Excess cold, were calculated as category 1 hazards. With regard to the other hazards, he accepted that these were low scoring category 2 hazards. [NAME] [NAME] also accepted that the Statement of Reasons had failed to properly explain which of the hazards had been assessed as category 1 hazards and why the Respondent had decided to make an EPO.

57. At the hearing, [NAME] [NAME] explained that it was a combination of the two category 1 hazards together which resulted in him assessing that there was an imminent risk of serious harm to the health or safety of the [NAME] and that an EPO was the appropriate course of action. He also referred to taking into account the vulnerability of the [NAME] – Ms [NAME] was pregnant, English was neither her

9 nor her husband’s first language (which might have been a barrier to them accessing help) and that their child was only a few months old.

58. In relation to Crowding and Space, [NAME] [NAME] noted that Ms [NAME] had previously been issued with a section 21 notice in March 2023 and submitted that the Applicant could have taken action to reduce the overcrowding as soon as he had been made aware of the number of [NAME] at the [NAME]. [NAME] [NAME] accepted that, as the [NAME] was now vacant, this hazard no longer existed but confirmed that it was still only suitable for one occupation by one person.

59. When calculating the score for Excess cold, [NAME] [NAME] confirmed that he was not sure as to the exact structure of the walls but that no evidence had been provided by the Applicant that the walls had been insulated. He stated that he had based his assumptions on the age of the [NAME] and construction methods at the time, as well as the very low temperatures he had recorded during the inspection, which he stated would have been unusual had the walls been insulated.

60. The Respondent provided calibration certificates to indicate that it was unlikely that there would have been any significant inaccuracies in the temperature recordings taken but [NAME] [NAME] accepted that the photographs showed that the bedroom window had been open when he had been measuring the temperature and that this could have influenced the same. He also accepted that the [NAME] had been provided with oil-filled plug-in heaters by the Applicants and that all of the windows had, in fact, been double glazed, not single glazed as noted in his report. 61. [NAME] [NAME] confirmed that had he re-calculated the scores on the morning of the hearing, due to the double-glazed windows and fixed heating, the [NAME] would not have been assessed as being a category 1 hazard now. 62. [NAME] [NAME] noted that glazing was only a recommendation in the Order and that the evidence indicated that the walls were made of solid brick.

Accordingly, [NAME] [NAME] submitted that the appeal should be dismissed or, if the Tribunal found otherwise on those two points, the Order simply be varied to reflect the Tribunal’s findings. The Tribunal’s Deliberations and Determinations 63. The Tribunal considered all of the evidence submitted by the parties, briefly summarised above. The Tribunal may, under the Act, confirm or vary the Order or make an order revoking it as from a specified date. Deliberations 64. As set out above, EPOs are a type of emergency measure which local authorities have a discretion to make in relation to residential premises when they are satisfied that a category 1 hazard exists, when that hazard involves an imminent risk of serious harm to the health or safety of any of the [NAME] of those or any other residential premises and where no management order is in force under Chapter 1 or 2 of Part 4 of the Act in relation to those premises. In this case, there was no evidence put forward that any management order existed in relation to the [NAME].

10 65. Although the Tribunal noted that various works had been completed to the [NAME] on its inspection, the appeal is by way of a re-hearing and not based on works carried out since the Order was made. The Tribunal can, however, take into account when making its determination matters of which the Respondent had been unaware at the time of making the Order.

66. Based on the evidence submitted, together with its inspection of the [NAME], the Tribunal noted that there had been a number of errors in [NAME] [NAME] assessment of the hazards that were present.

67. Firstly, it was quite clear that all of the windows at the [NAME] were double glazed and that this had been the case at the time both inspections had been carried out by [NAME] [NAME]. [NAME] [NAME] had also failed to check to see whether the storage heater in the kitchen/lounge area was working and had measured the internal temperature of the [NAME] without closing the windows. In addition, having measured the depth of the external walls, the Tribunal considered that it should have been evident to [NAME] [NAME] that some insulation had been installed to them, most likely by the provision of insulated plasterboards.

68. The Tribunal also found that, based on the information given in the EPC and EICR, that the [NAME] had, at some time in the recent past and during Ms [NAME] tenancy, benefited from heating through electric storage heaters.

69. The Applicant had been adamant that the [NAME] had removed the fixed heating and, although [NAME] [RESPONDENT] submitted that this was not something which the Respondent could take into account under Part 1 of the Act, the Operating Guidance states (at paragraph 2.33) that the HHSRS is “concerned only with those deficiencies that can be attributable solely or partly to the design, construction and/or maintenance of the dwelling”. Deficiencies solely attributable to the behaviour of the [NAME], should therefore be disregarded.

Accordingly, if the [NAME] had removed the fixed heating this should not have been included in any initial assessment of the hazards at the [NAME].

70. Based on the evidence before it – and in particular noting that there had been fixed heating at the beginning of the tenancy, that the tenant was responsible for the [NAME] at the [NAME] (so the removal of any fixed heating would have been of no clear benefit to the Applicant) and that the Applicant had consistently denied removing the same and submitted he only became aware of this on his attendance at the [NAME] the weekend prior to the inspection – the Tribunal found that it was more likely than not that the fixed heating had been removed by the [NAME].

71. Having taken into account all of the above, the Tribunal found that a category 1 hazard for Excess cold did not exist at the [NAME].

72. In relation to the category 1 hazard for Crowding and Space, although the Tribunal accepted that the Applicant had only let the [NAME] to Ms [APPELLANT], when assessing this hazard, current occupation is taken into account. The Tribunal found that the measurements of the rooms, as detailed in the Order, appeared fairly accurate and

11 that the [NAME] was severely overcrowded at the time of the Respondent’s inspection.

73. It was unclear as to when the Applicant exactly became aware that the [NAME] was being occupied by more than one person but as he appeared to have been aware that Ms [NAME] was complaining that the [NAME] was too small, the Tribunal found it was prior to the notification of the inspection.

74. The Tribunal accepted that a category 1 hazard was likely to have existed for Crowding and Space.

75. In relation to the other hazards referred to in the Order, the Tribunal found that these were all low scoring category 2 hazards, as agreed by [NAME] [NAME] at the hearing, and that, despite the wording in the Order, that they posed no imminent risk of harm.

76.

Accordingly, the Tribunal went on to consider whether the criteria for making an EPO under section 43(1) of the Act were met and, if so, whether the making of an EPO was the appropriate enforcement action the Respondent should have taken in this matter under section 5 of the Act.

77. In considering that question, the Tribunal had to decide whether the category 1 hazard identified involved an “imminent risk of serious harm to the health and safety” of the [NAME] of both the [NAME] (and any other premises).

78. In determining the second part of that question, the Tribunal took in to account the comments of the Upper Tribunal in Bolton Metropolitan Borough Council -v- [NAME] [2010] UKUT 334. In relation the meaning of “serious harm”, at paragraph 41, the then President of the Chamber, George Bartlett QC stated: “As far as “serious harm” is concerned, it said that the Act did not offer any guidance as to what sort of harm constitutes “serious harm”. That is correct, but the Regulations do identify a hierarchy of harm – extreme harm (Class I), severe harm (Class II), serious harm (Class III) and moderate harm (Class IV). Thus, for the purposes of the Regulations serious harm excludes moderate harm, and, although there is no express provision requiring the Regulations to identify what harm is serious harm for the purposes of section 40 , it is, I think, implicit in section 2 that the Regulations will, or at least may, include this identification. Certainly, it seems to me, an authority could not be criticised if they treated as serious harm any harm falling within Classes I, II and III (excluding, therefore, Class IV), and in my view it would be right for them to do so.” 79. He went on to consider the meaning of “imminent risk” and, at paragraph 43 stated: “As a matter of linguistic analysis “imminent risk” may appear to present something of a problem, since it is clear from the underlying purpose of section 40 that the risk – the chance of serious harm occurring – is, or at least may be, an existing risk. The adjective “imminent” is obviously not there for the purpose of suggesting that the risk must be one that does not at present exist but is likely to arise soon. It is perhaps in the nature of a transferred epithet qualifying

12 “serious harm” – the risk must be one of serious harm being suffered soon. The degree of risk (or the likelihood, or the chance) that a state of affairs may give rise to an incidence of harm is necessarily time-related. That is why the Regulations require an inspector to assess the likelihood of harm being suffered within a specified period. The use of “imminent” implies, in my judgment, a good chance that the harm will be suffered in the near future.” 80. The Tribunal noted that the three [NAME] had all been residing at the [NAME] for several months without any evidence that they had come to any “serious harm”. The Respondent had also failed to show why the risk of any harm was “imminent” i.e. would be suffered in “the near future”, as the decision of the Upper Tribunal in Bolton made clear the word “imminent” implied. 81. [NAME] [NAME] had referred to the potential vulnerability of the [NAME], and to English not being their first language as being a potential factor, Ms [NAME] had, independently of any assistance from the local authority or other third-party organization, made a complaint to the Respondent regarding the alleged hazards at the [NAME].

82. In addition, although the Applicant had stated that he had not previously received any complaints regarding damp at the [NAME] (with no evidence provided to the Tribunal that this was not the case) and that the fixed heating had been removed by the [NAME], he had attended the [NAME] the weekend prior to the inspection and cleaned down the walls, removing any mould, and supplied the [NAME] with radiators as an interim method of extra heating.

83. As such, even if the Tribunal had found that a category 1 hazard for Excess cold had existed, which it did not, the Tribunal would still not have found that the hazards identified involved an “imminent risk of serious harm to the health and safety” of the [NAME] of the [NAME]. Determination on EPO 84. Although the Tribunal found that there was potentially one category 1 hazard at the [NAME] for Crowding and Space, the Tribunal found there was insufficient evidence to indicate why this hazard involved an imminent risk of serious harm to the health or safety of any of the [NAME] of either the [NAME] or any other residential premises. Consequently, the Tribunal found that the Respondent should not have made an EPO.

85.

Accordingly, the Tribunal determined that the Order should be revoked from the date it was made and that any associated charge for expenses that may have been issued by the Respondent relating to the same be quashed. Order under Rule 13 86. The Tribunal can, on its own initiative, under Rule 13(2) “make an order requiring a party to reimburse to any other party the whole or part of the amount of any fee paid by the other party…”. In this matter, the Applicant had paid an application fee of £110 and a hearing fee of £220.

13 87. Having found that the Respondent had made some serious errors in their assessment of the hazards, which had been brought to their attention prior to the hearing by the Applicant, and as the Tribunal has found that the Respondent should not have made an EPO, the Tribunal finds it appropriate to make an order under Rule 13(2) requiring the Respondent to reimburse to the Applicant both the application fee and the hearing fee. Appeal 88. If either party is dissatisfied with this decision, they may apply to this Tribunal for permission to appeal to the Upper Tribunal (Lands Chamber). Any such application must be received within 28 days after these written reasons have been sent to the parties (Rule 52 of The Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 2013). [NAME] ………………………… Judge [NAME]

14 Appendix