First-tier Tribunal Quashes Improvement Notices Due to Insufficient Evidence

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : BIR/47UE/HIN/2023/0028-0029 Property : Flats 25 and 42, [NAME_1], The Butts, Worcester, [POSTCODE]

Applicant

:

[redacted]

Respondent

Representative : : [NAME_2], Counsel Type of application : Application under Paragraph 10(1) of Schedule 1 to the Housing Act 2004 to appeal against an Improvement Notice in respect of the subject properties

Tribunal members : Judge C Payne (Chair) [NAME_4], JP

Date of Inspection & Hearing : 7 February 2024 Date of decision : 13 September 2024

DECISION

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Decision Summary

The Tribunal determines that the Improvement Notices are quashed.

Background

1. The Property is a former 4 storey office block, which has been converted into residential flats and is used to house students and young professionals. The Tribunal was told that the average age of occupants was 23, with none more than 30 years old.

2. The Applicant is the registered freehold proprietor of [NAME_1], The Butts, Worcester, [POSTCODE]. The property includes Flat 25 and Flat 42 (together “the Flats”) which are the subject of this appeal.

3. The Respondent is the local housing authority with responsibility for enforcement under the Housing Act 2004. In June 2023 they received telephone calls from the occupiers of Flat 25 and Flat 42 complaining about the temperature in the Flats.

4. Notice was given to the Applicant by the Respondent for an inspection to take place on 22 June 2023. [NAME_5], the Building Manager, facilitated the inspection.

5. [NAME_6] and [NAME_7] undertook an inspection on behalf ot eh Respondent on 22 June 2023. They concluded that a Category 1 Hazard of Excessive Heat was present and that the appropriate course of action was to issue Improvement Notices.

6. Improvement Notices were served on 7 July 2023 requiring that the Applicant to take action to “Install windows that open to let air flow in, to all living spaces or alternatively, the installation of a suitably designed, fixed air conditioning system for the building, facilitating each unit of accommodation”. This work to be started by 8 August 2023 and concluded by 30th September 2023. These notices were sent to an incorrect address.

7. The Improvement Notices were then re dated 10 July 2023 and served on 11 July 2023. The amended notices required the remedial works to start on 11 August 2023 and be complete by 3 October 2023.

8. The Applicant raised an appeal directly with the Respondent on 14 July 2023. This was raised on the following basis:

(a) All aids were deliberately turned off to inflate temperatures at the time of the inspection. (b) The UK was experiencing a heat wave at the time of the inspection and the temperature was only noted on one particularly hot day. (c) The other occupiers accepted the weather conditions for the 2 weeks of impact and have not raised complaints (d) To use only 1 day’s worth of data, collected during the hottest month on record since the 1940’s was overzealous and extreme.

(e) Since July, Flat 25 had been vacant and the temperatures recorded over a period of time showing them to be significantly lower.

9. The Applicant made applications to the Tribunal in respect of the Improvement Notices served for Flat 25 and Flat 42 on 18 July 2023.

10. On 3 August 2023 directions were given by the Deputy Regional Judge for the Respondent to provide copies of th calculations used to determine the Category 1 Hazards referred to in the notice by 11 August 2023, and for the parties to them provide paginated bundles to the Tribunal.

11. The Applicant did not provide their Bundle, as directed, on 1 September 2023. On 7 September 2023 further Directions were given to the Applicant to provide their Bundle by 2 October 2023 or risk [NAME_8] their application struck out. It was provided on 28 September 2023. The Council then sought to provide their Bundle of submissions by way of an incomplete series of emails. A full copy of the Respondent’s Bundle was not provided to the Tribunal until the Hearing. The Tribunal allowed the late Bundle to be submitted into evidence.

Inspection

12. The Inspection was attended by [NAME_9] and [NAME_10] of the Applicant and their Building Manager, [NAME_5], who took the Tribunal and the Respondent’s representatives around the building. [NAME_6] and [NAME_7] attended on behalf of the Council with their legal advisor, [NAME_2].

13. The occupier of Flat 42, [NAME_11], met with the Tribunal during the Inspection. Mr [NAME_11] told the Tribunal that the temperature was fine at the time of the Inspection. It had only been an issue for a couple of particularly hot weeks in the summer. He confirmed that he had been using a basic thermometer to estimate the temperature of the room, which was not calibrated. Readings had not been recorded over a period of time by him. His partner was asleep in Flat 42 as they work night shifts. As such, it was not available for inspection.

14. During the inspection the Tribunal were able to inspect Flat 7, which is similar in layout to Flat 42 but has north facing windows. The flat has large windows with roller blinds. Vents for the air exchange system were observed and the ceiling fan above the bed. The temperature in the flat was comfortable.

15. The Tribunal were unable to access Flat 25 which now has a new occupier. They were shown Flat 39, which is directly above Flat 25 and has the same configuration, being north east facing. Large windows with solar reflective glass and roller blinds were present. The air exchange system was noted and the ceiling fan above the bed. The Tribunal were told that the air exchange system pulls air from outside the building in through a filter and that, when switched on creates a complete air exchange in the flat 3-4 times per hour. It does not heat or cool the air, which remains at the temperature outside. There are panel heaters in each Flat and the

building has general parameter heating. The temperature in the Flat was comfortable.

The Hearing

16. Mr and Mrs [NAME_10] and [NAME_5] attended the hearing on behalf of the Applicant. [NAME_6], [NAME_7], [NAME_2] and [NAME_12] (a paralegal) attended on behalf of the Respondent. The Respondent was represented by [NAME_2] of Counsel.

17. The Tribunal was informed that [NAME_6] received a call from [NAME_13], the then occupier of Flat 25, on 16 June 2023 complaining of the heat within the Flat. He stated that a portable evaporative cooler had been provided by the Applicant but that Flat 25 was still 25 degrees Celsius. No evidence of the temperature reading was provided to the Respondent.

18. The Respondent contacted the Applicant who explained that the planning restrictions prevented opening windows being installed. They advised that the flats benefitted from solar reflective window blinds and an air handling ventilation system. They had offered the occupiers mobile air conditioning units during the heat wave.

19. On the 19 June 2023 the Respondent’s [NAME_6] received a further call from [NAME_13] saying his Flat was too hot and the Respondent’s [NAME_7] received a call from [NAME_11], the occupier of Flat 42, concerning the temperature in his flat, which he claimed were reaching 31 degrees Celsius. Evidence of these readings was not provided to the Respondent.

20. An Inspection was undertaken by the Respondent’s [NAME_6] and [NAME_7] on 22 June 2023. [NAME_14] did not bring any device, calibrated or otherwise, for measuring temperature with them to the inspection. The Tribunal were advised at the hearing that [NAME_14] guessed that the outside temperature at the time of the inspections was approximately 28 degrees Celsius from weather reports for the area.

21. On inspection of Flat 25, [NAME_6] noted the tenant had a digital thermometer that suggested the temperature in the room was 29.9 degrees Celsius. The occupier told [NAME_6] the temperature in the room ranged between 26 to 32 degrees Celsius. No evidence of other readings was provided to support this statement.

22. [NAME_6] noted that Flat 25 ‘felt extremely hot and stifling upon entering’. She noted that the electric air conditioning unit and an electric fan provided by the Applicant were present had been turned on during the visit. No note was taken of whether the solar reflecting blinds had been used or the air exchange system was turned on. Her notes recorded that the hall outside the Flat felt cooler.

23. [NAME_6] then accompanied her colleague, [NAME_7], to undertake an inspection of Flat 42. They noted that the flat has 2 large south facing windows. [NAME_6] felt that flat was ‘as hot and stifling’. [NAME_7] in her report notes that the

property had high grade solar reflective windows and blinds installed and that air is circulated through a mechanical ventilation heat recovery system (MHVR), which draws air from outside and circulates it. It was noted that, during the inspection, the tenant had turned the air circulation system off.

24. [NAME_7] noted that the occupier of Flat 42 had been provided by the Applicant with two portable air conditioning units. One was turned on during the inspection, and noted as potentially being faulty. This had not been reported previously. [NAME_5] confirmed it would be addressed promptly now that he was aware of the issue. The second unit was not turned on. [NAME_7] had no calibrated device with which to measure the temperature. She noted the tenant had a thermometer in the room suggesting the temperature was 30 degrees Celsius.

25. [NAME_14] carried out an HHSRS assessment based upon their inspection using the figures contained in the statutory guidance. It was noted that the highest risk group, for excessive heat were people over the age of 65. They concluded that a Category 1 Hazard of Excessive Heat was present at the Property. They considered the Respondent’s obligation to take action where a Category 1 hazard is identified and determined that an Improvement Notice was necessary stating to the Tribunal that “.. particularly given the time of year and high-level ambient temperatures, it was not reasonable to expect an occupant to cope in excessively high indoor temperatures due to either lack of opening windows to allow air flow, or a fixed form of air conditioning in his flat.” They felt the hazard identified was too severe for a Hazard Awareness Notice, and a Demolition Order was not appropriate.

26. The Tribunal noted that, when giving reasons for the decision, [NAME_14] had quoted sections of guidance rather than explaining how they had chosen to apply that guidance to this particular case. They also provided no explanation for the timescales set, which were clearly not sufficient for the Applicant to seek planning and freeholder consent, commission and carry out works of this nature.

27. The Respondents advised the Tribunal that this was the first inspection concerning excessive heat that [NAME_14] had ever undertaken and that they did not have any device made available to them to measure the temperature during their inspection. They had received some basic training in 2017 and had not done any further training to ensure their knowledge in this area was up to date since that time.

28. When the notices were prepared on 6 July 2023, they were sent to the wrong address for the company. The Applicant is a company and the up-to-date registered address for the company is publicly available at [NAME_15]. The Respondent’s failure to check they were using the correct address when drafting the notices meant that they had to be reissued on 11 July 2024.

29. The Applicants informed the Tribunal that they have been landlords since 2017. They specialise in providing housing to students and young people in work. They did not deny that the weather was particularly hot at the time the complaints were made. The Applicant understands that it was the hottest June since the 1940s.

Many residential properties, with their windows open, were experiencing high temperatures.

30. The Applicant confirmed that the planning permission for the building does not allow for opening windows. Therefore, they have solar treated windows, blinds, an air exchange system and ceiling fans installed. The tenants can turn off the air exchange system and do not always keep the blinds down when it is sunny. As the weather was so hot, additional air conditioning units were offered to all occupiers.

31. The building manager, [NAME_5], asked the Tribunal to note that the occupier of flat 42 had not reported any issue with the air conditioning units provided until the inspection took place. Both Flat’s occupiers were in occupation in the summer of 2022 when similar temperatures were recorded, and no complaint was made. In both flats the occupiers were not making use of the temperature limiting measures available to them. At the time of inspections, the occupiers had not made use of the blinds and had turned off the air exchange system, the ceiling fan and the air conditioning units. The Solar film had also been removed from the windows.

32. The building manager, [NAME_5], also noted that on the 19 June 2023, the occupier of Flat 42 was on holiday in south Wales and was not present at the Property when he called to make the complaint to the Respondent. At that time he was looking for a way to exit his tenancy before the end of the contractual term.

33. [NAME_5] also advised the Tribunal that the occupier of Flat 25 had moved out in July 2023, [NAME_8] received a job offer to work elsewhere. The occupiers of Flat 42 were given the option to terminate their lease and have chosen to stay. After Flat 25 became vacant, temperature readings were recorded regularly in the flat with the "cooling" aids in use and the temperature was significantly lower in those readings suggesting there is no issue with the temperature in the flat if aids are used correctly.

34. During the course of the hearing, the Applicant advised the Tribunal that they had other witness evidence and documentation that had not been submitted. When asked why this information had not been provided, it was brought to the Tribunal’s attention that [NAME_2], the Respondent’s legal representative, had advised the Applicants, who are litigants in person, not to provide submissions to the Tribunal. The Tribunal was surprised that a legal professional would seek to dissuade a party from presenting their case. [NAME_2] could only apologise for [NAME_2]’s inappropriate conduct.

35. [NAME_5] advised the Tribunal that no other occupiers had made any complaints. He also noted that the temperatures complained of by the occupiers were similar to the outside temperatures at that time. As such, the ability to open a window would have had little impact. The cost of seeking planning permission to install opening windows and the installation cost would be significant with limited impact.

36. He said that, if the equipment supplied had been used by the occupiers, then the internal temperatures would have been lower. The Applicant had looked into the possibility of installing an air conditioning system in the building but that would

cost in excess of £250,000 and make the utilities cost so high that the flat would no longer be affordable for the occupiers. Over the summer the Applicant purchased 42 mobile air conditioning units and offered them to every flat. They still have 15 in storage as many of the occupiers did not feel they were needed.

The Law

37. The Respondent is responsible, under statute, for the operation of a regime designed to evaluate potential risks to health and safety from deficiencies in dwellings, and to enforce compliance with the standards required. The scheme is called the Housing Health and Safety Rating System (“HHSRS”). It is set up in the Housing Act 2004 (“the Act”), supplemented by the Housing Health and Safety Rating System (England) Regulations 2005 (“the Regulations”).

38. The scheme set out in the Act is as follows:

(a) Section 1 (1) provides for a system of assessing the condition of residential dwellings and for that system to be used in the enforcement of housing standards in relation to such premises. The system (which is the HHSRS system) operates by reference to the existence of Category 1 or Category 2 hazards on residential premises.

(b) Section 2 (1) defines a Category 1 hazard as one which achieves a numerical score under a prescribed method of calculating the seriousness of a hazard. A Category 2 hazard is one that does not score highly enough to be a Category 1 hazard. The scoring system is explained later.

(c) "Hazard" means any risk of harm to the health or safety of an actual or potential occupier of a dwelling which arises from a deficiency in the dwelling.

39. Under section 9(1)(b) of the Act, the local authority is required to have regard to the HHSRS guidance when carrying out their functions in relation to improvement notices, prohibition orders or hazard awareness notices.

40. The HHSRS Enforcement Guidance at paragraph 5.4 states: -

An improvement notice under section 11 or 12 of the Act is a possible response to a category 1 or a category 2 hazard. Under section 11, action must as a minimum remove the category 1 hazard but may extend beyond this. For example, an authority may wish to ensure that a category 1 hazard is not likely to reoccur within 12 months, or is reduced to category 2, or both. Such work would need to be reasonable in relation to the hazard and it might be unreasonable to require work which goes considerably beyond what is necessary to remove a hazard.

41. Section 4 of the Act provides the procedure to be followed by a local authority before commencing any enforcement action. If the local authority becomes aware that it would be appropriate for any property to be inspected with a view to determining whether a hazard exists, it must carry out an inspection for that purpose.

42. The right to carry out the inspection is derived from section 239 of the Act. This section gives the local authority a power of entry for the purposes of carrying out a section 4 inspection. The inspector must have been properly authorised to carry out that inspection, and (in sub-section 5), the authorised officer must have given at least 24 hours’ notice of his (her) intention to inspect to the owner (if known) and the occupier (if any).

43. Section 5(1) of the Act provides that

“If a local authority consider that a category 1 hazard exists on any residential premises, they have a duty to take the appropriate enforcement action in relation to the hazard”.

44. Section 5(2) says that the appropriate enforcement action means whichever of the following courses of action is indicated. Those courses of action are:

(a) Improvement notice (b) Prohibition order (c) Hazard awareness notice (d) Emergency remedial action (e) Emergency prohibition order (f) Demolition order (g) Declaration of a clearance area

45. Section 5(3) of the Act says that if only one course of action within Section 5(2) is available to the authority in relation to the hazard, they must take that course of action. Section 5(4) says that if two or more courses of action within subsection (2) are available to the authority in relation to the hazard, they must take the course of action which they consider to be the most appropriate of those available to them.

46. Section 11 of the Act sets out the duty of the Respondent to serve notice and states the following: -

(1)If— (a)the local housing authority are satisfied that a category 1 hazard exists on any residential premises, and (b)no management order is in force in relation to the premises under Chapter 1 or 2 of Part 4, serving an improvement notice 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). (2)An improvement notice under this section is a notice requiring the person on whom it is served to take such remedial action in respect of the hazard concerned as is specified in the notice in accordance with subsections (3) to (5) and section 13. (3)The notice may require remedial action to be taken in relation to the following premises—

(a)if the residential premises on which the hazard exists are a dwelling or HMO which is not a flat, it may require such action to be taken in relation to the dwelling or HMO; (b)if those premises are one or more flats, it may require such action to be taken in relation to the building containing the flat or flats (or any part of the building) or any external common parts; (c)if those premises are the common parts of a building containing one or more flats, it may require such action to be taken in relation to the building (or any part of the building) or any external common parts. Paragraphs (b) and (c) are subject to subsection (4). (4)The notice may not, by virtue of subsection (3)(b) or (c), require any remedial action to be taken in relation to any part of the building or its external common parts that is not included in any residential premises on which the hazard exists, unless the authority are satisfied— (a)that the deficiency from which the hazard arises is situated there, and (b)that it is necessary for the action to be so taken in order to protect the health or safety of any actual or potential occupiers of one or more of the flats. (5)The remedial action required to be taken by the notice — (a)must, as a minimum, be such as to ensure that the hazard ceases to be a category 1 hazard; but (b)may extend beyond such action. (6)An improvement notice under this section may relate to more than one category 1 hazard on the same premises or in the same building containing one or more flats. (7)The operation of an improvement notice under this section may be suspended in accordance with section 14. (8)In this Part “remedial action”, in relation to a hazard, means action (whether in the form of carrying out works or otherwise) which, in the opinion of the local housing authority, will remove or reduce the hazard.

47. Section 12 of the Act sets out the powers of the Respondent to serve notice and states the following: -

(1)If— (a)the local housing authority are satisfied that a category 2 hazard exists on any residential premises, and (b)no management order is in force in relation to the premises under Chapter 1 or 2 of Part 4, the authority may serve an improvement notice under this section in respect of the hazard. (2)An improvement notice under this section is a notice requiring the person on whom it is served to take such remedial action in respect of the hazard concerned as is specified in the notice in accordance with subsection (3) and section 13. (3)Subsections (3) and (4) of section 11 apply to an improvement notice under this section as they apply to one under that section. (4)An improvement notice under this section may relate to more than one category 2 hazard on the same premises or in the same building containing one or more flats. (5)An improvement notice under this section may be combined in one document with a notice under section 11 where they require remedial action to be taken in relation to the same premises.

(6)The operation of an improvement notice under this section may be suspended in accordance with section 14.

48. Paragraph 2 of Schedule 1 of the Act states: -

2(1)This paragraph applies where the specified premises in the case of an improvement notice are— (a)a dwelling which is not licensed under Part 3 of this Act, or (b)an HMO which is not licensed under Part 2 or 3 of this Act, and which (in either case) is not a flat. (2)The local housing authority must serve the notice— (a)(in the case of a dwelling) on the person [NAME_8] [NAME_16] of the dwelling; (b)(in the case of an HMO) either on the [NAME_17] or on the person managing it.

49. Section 263 of the Act defines ‘person [NAME_8] [NAME_16] as follows:-

263 (1)In this Act “person [NAME_8] [NAME_16]”, in relation to premises, means (unless the context otherwise requires) the person who receives the rack-rent of the premises (whether on his own account or as agent or trustee of another person), or who would so receive it if the premises were let at a rack-rent. (2)In subsection (1) “rack-rent” means a rent which is not less than two-thirds of the full net annual value of the premises.

50. Paragraph 10 of Schedule 1 of the Act states: -

(1)The person on whom an improvement notice is served may appeal to the appropriate tribunal against the notice. (2)Paragraphs 11 and 12 set out two specific grounds on which an appeal may be made under this paragraph, but they do not affect the generality of sub- paragraph (1).

51. Paragraph 11 of Schedule 1 of the Act states: -

(1)An appeal may be made by a person under paragraph 10 on the ground that one or more other persons, as an owner or owners of the specified premises, ought to— (a)take the action concerned, or (b)pay the whole or part of the cost of taking that action. (2)Where the grounds on which an appeal is made under paragraph 10 consist of or include the ground mentioned in sub-paragraph (1), the appellant must serve a copy of his notice of appeal on the other person or persons concerned.

52. Paragraph 12 of Schedule 1 of the Act states: -

(1)An appeal may be made by a person under paragraph 10 on the ground that one of the courses of action mentioned in sub-paragraph (2) is the best course of action in relation to the hazard in respect of which the notice was served. (2)The courses of action are— (a)making a prohibition order under section 20 or 21 of this Act;

(b)serving a hazard awareness notice under section 28 or 29 of this Act; and (c)making a demolition order under section 265 of the Housing Act 1985 (c. 68).

53. Under paragraph 15 (3) of Schedule 1 of the Act a tribunal may by order, confirm, quash or vary an improvement notice.

Decision

54. The questions for the Tribunal to answer in respect of this appeal are: -

(a) Is the Respondent entitled to serve an Improvement Notice and is this the most appropriate course of action? (b) Has the notice been served on the correct party? (c) Does the Tribunal confirm, quash or vary the Improvement Notice?

Is the Respondent Entitled to serve an Improvement Notice and is it the most appropriate course of action?

55. Sections 11 and 12 of the Act entitle the Respondent to serve an Improvement Notice where they are satisfied a Category 1 or Category 2 Hazard exists at the Property. The HHSRS Enforcement Guidance also confirms that the issue of an Improvement Notice is an appropriate response to the presence of Category 1 or Category 2 hazards at a property.

56. The Respondent was satisfied that there is a Category 1 hazard present at the Property. The Category 1 Hazard of Excessive Heat identified was set out in detail in the Schedule to the Improvement Notice.

57. The Tribunal noted that no calibrated measurements had been taken during the Respondent’s inspection of the premises. Account had also not been taken of the fact that the occupiers were not making use of the blinds, air exchange system or air conditioning units at the time of inspection. Taking into account the age of the occupiers in the Property, the Respondent could also not justify the multipliers that have been applied, which resulted in the designation of a Category 1 Hazard. The fact that no other occupiers had complained, and many did not feel the need to accept a portable air conditioning unit was not taken into account.

58. The Respondent has not persuaded the Tribunal that, on the balance of probabilities, a Category 1 Hazard was present at the Property at the time of their inspection in June 2023. The Respondent’s officers did not collect appropriate evidence. The policies and calculations were not appropriately applied, and the justification of the decision was not correctly recorded. The time in which the Applicants were required to carry out works was also wholly unreasonable.

59. At the time of the Tribunal’s inspection, the temperature in the Flats was comfortable and there was no evidence presented of excessive heat being experienced in the units. On that basis, the Tribunal considered that the issue of an Improvement Notice was not a proportionate or reasonable action for the Respondent to take.

60. The Tribunal determines, therefore, that the Improvement Notices be quashed.

Appeal

61. Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal the party appealing must apply, in writing, to this Tribunal for permission to appeal within 28 days of the date of issue of this decision (or, if applicable, within 28 days of any decision on a review or application to set aside) identifying the decision to which the appeal relates, stating the grounds on which that party intends to rely in the appeal, and stating the result sought by the party making the application.

Judge C Payne Chair First-tier Tribunal (Property Chamber)