First-tier Tribunal Upholds Prohibition Order Against Residential Premises

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME]) Case Reference : CAM/22UN/HPO/2021/0012 [NAME] : [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME] [APPELLANT] [NAME] Respondent : [redacted] Representative : Ms [COUNSEL] of Counsel Type of Application : Appeal against prohibition order - sections 20-23 and paragraph 7(1) of Schedule 2 to the [NAME] 2004 Tribunal Members : Judge N [NAME] C Gowman MCIEH MCMI BSc Venue and date of hearing : [COMPANY], 43 [ADDRESS] [POSTCODE] on 18 January 2022 Date of Decision : 24 January 2022

DECISION

2

Decision of the Tribunal The Tribunal dismisses the appeal and confirms the prohibition order dated 22 July 2021. The Tribunal’s determinations Background 1. This is an appeal against a prohibition order dated 22 July 2021 in respect of [ADDRESS] [POSTCODE] (“the [NAME]”). The prohibition order is expressed to prohibit the use of the [NAME] for human habitation and residential use.

2. The Applicant’s application is dated 11 August 2021 and Directions of the Tribunal were issued on 23 September 2021, leading to a final hearing on 18 January 2022. The hearing and inspection 3. The final hearing took place at the [COMPANY], 43 [ADDRESS] [POSTCODE] on 18 January 2022.

4. The Applicant was represented at the hearing by [NAME] [APPELLANT] [NAME], accompanied by the Appellant’s son, [NAME] [COUNSEL]. The Respondent was represented by Ms [COUNSEL] of Counsel.

5. The Tribunal heard oral evidence of fact on behalf of the Applicant from [NAME] [APPELLANT] [NAME]. [NAME] [APPELLANT] works as the Head of [APPELLANT] for a local authority other than the Respondent.

6. The Tribunal heard oral evidence of fact on behalf of the Respondent from: (i) Ms [RESPONDENT], a [NAME] employed by the Respondent in its [NAME]; (ii) [NAME] [RESPONDENT], a [NAME] employed by the Respondent in its [NAME];

3 (iii) [NAME] [NAME], an Environmental Health Officer employed by the Respondent in its [NAME]; and (iv) [NAME] [NAME], a [NAME] employed by the Respondent in its [NAME].

7. The Applicant’s representatives confirmed that they had received a copy of the Respondent’s hearing bundle. However, they did not have the bundle with them at the hearing and the Respondent’s representatives lent them an unmarked copy of the bundle. The Tribunal paused the hearing in order to give [NAME] [NAME] time to re-read the written statements of each of the Respondent’s witnesses before questioning them. The Tribunal also arranged for a short break to take place between the witness evidence and the parties’ closing submissions.

8. The Tribunal inspected the [NAME] immediately before the hearing. The [NAME] is situated above a [NAME] and it comprises two rooms plus a shower/WC. There are no kitchen facilities. At the time of the Tribunal’s inspection, there were two beds in each room with makeshift screens separating the bed areas. There were racks to hang clothes, other storage spaces, chairs and portable electric heaters. In one of the rooms there was a television. At the time of the Tribunal’s inspection, there were few personal belongings in either of the rooms. There were replacement uPVC double glazed windows to the front elevation and there was broken and missing glazing to the window of the shower room. The issues 9. The Directions dated 23 September 2021 identify a number of issues for the Tribunal to consider. The only issue in dispute at the hearing was whether the or not the [NAME] comprises “residential premises”.

10. It is the Applicant’s case that the [NAME] does not comprise “residential premises”; that the [NAME] 2004 (“the 2004 Act”) therefore does not apply; and that the Respondent has no jurisdiction to issue a prohibition order. The Respondent contends that the [NAME] is a “dwelling” and that it therefore comprises “residential premises” within the meaning of the 2004 Act.

11. The 2004 Act contains the following provisions (emphasis supplied): 5 Category 1 hazards: general duty to take enforcement action

4 (1) If a local [NAME] authority consider that a category 1 hazard exists on any residential premises, they must take the appropriate enforcement action in relation to the hazard. (2) In subsection (1) “the appropriate enforcement action” means whichever of the following courses of action is indicated by subsection (3) or (4)– (a) serving an improvement notice under section 11; (b) making a prohibition order under section 20;

21 Prohibition orders relating to category 2 hazards: power of authority to make order (1) If– (a) the local [NAME] 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 make a prohibition order under this section in respect of the hazard.

1 New system for assessing [NAME] conditions and enforcing [NAME] standards …(4) In this Part “residential premises” means– (a) a dwelling; (b) an HMO; (c) unoccupied HMO accommodation; (d) any common parts of a building containing one or more flats. (5) In this Part– “building containing one or more flats” does not include an HMO; “common parts”, in relation to a building containing one or more flats, includes– (a) the structure and exterior of the building, and (b) common facilities provided (whether or not in the building) for persons who include the occupiers of one or more of the flats; “dwelling” means a building or part of a building occupied or intended to be occupied as a separate dwelling; “external common parts”, in relation to a building containing one or more flats, means common parts of the building which are outside it; “flat” means a separate set of premises (whether or not on the same floor)– (a) which forms part of a building, (b) which is constructed or adapted for use for the purposes of a dwelling, and (c) either the whole or a material part of which lies above or below some other part of the building; “HMO” means a house in multiple occupation as defined by sections 254 to 259, as they have effect for the purposes of this Part (that is, without the exclusions contained in Schedule 14); “unoccupied HMO accommodation” means a building or part of a building constructed or adapted for use as a house in multiple occupation but for the time being either unoccupied or only occupied by persons who form a single household.

5 (6) In this Part any reference to a dwelling, an HMO or a building containing one or more flats includes (where the context permits) any yard, garden, outhouses and appurtenances belonging to, or usually enjoyed with, the dwelling, HMO or building (or any part of it). (7) The following indicates how this Part applies to flats– (a) references to a dwelling or an HMO include a dwelling or HMO which is a flat (as defined by subsection (5)); and (b) subsection (6) applies in relation to such a dwelling or HMO as it applies in relation to other dwellings or HMOs (but it is not to be taken as referring to any common parts of the building containing the flat). (8) This Part applies to unoccupied HMO accommodation as it applies to an HMO, and references to an HMO in subsections (6) and (7) and in the following provisions of this Part are to be read accordingly.

12. The Respondent’s case concerning the other issues identified in the Directions dated 23 September 2021 was not challenged by the Applicant. The Tribunal noted that some of the windows at the [NAME] appeared to have been renewed since the prohibition notice was served with double glazed units and the Tribunal questioned [NAME] [NAME] regarding this. [NAME] [NAME] stated that there remains a category 1 cold hazard at the [NAME] because some windows remain single glazed and because the [NAME] is uninsulated with no fixed controllable source of heating. The Tribunal accepts this evidence.

13. Having considered all the evidence, the Tribunal is satisfied that the Respondent has made out its case concerning the issues which are not in dispute between the parties.

14. As stated in the Directions, in accordance with paragraph 11(2) of Schedule 2 to the 2004 Act, the appeal is by way of a re-hearing but may be determined having regard to matters of which the Respondent was unaware. The Tribunal’s determinations 15. [NAME] [NAME] stated that he does not himself work at the [NAME]. However, he confirmed that [NAME] [NAME] would not be giving evidence and that he would do his best to answer questions. He stated that staff at the [NAME] travel in from London and that they work five days a week. Different members of staff have different working patterns and the days off are not necessarily consecutive.

16. In his witness statement, [NAME] [NAME] states: “Staff travel from London to do their shifts; shift times are long: 10:00 am until 15:00, 17:00 to 2.30 It is not practical for staff to travel back and forth to London, so the owner has provided an area for them to rest, shower and change. Staff are provided with all meals which are taken in the kitchen and [NAME] area, chefs change on out [sic] the chef whites on a regular basis around twice a day.”

6 17. [NAME] [NAME] stated that, due to the staff shift patterns, it is not practical for them to travel to London between shifts and, being on low wages, staff would not be able to afford to travel “to-and-fro” to London. When asked whether the staff sleep at the [NAME], [NAME] [NAME] said: “We prefer to say ‘rest’, shifts are long and arduous”. When asked whether staff must sleep between shifts, [NAME] [NAME] stated that he would call it “resting” and that he did not know whether the staff fell asleep.

18. Ms [NAME] and [NAME] [NAME] both gave evidence that, on 2 July 2021, they carried out an unannounced visit to [ADDRESS] together. Ms [RESPONDENT] stated that a colleague in the [NAME], [RESPONDENT], had received a complaint of a broken window to “the flat” above the [NAME] and that she had suspected that the [NAME] was being used as staff accommodation.

19. Ms [NAME] and [NAME] [NAME] both state that they asked a chef if there were people living upstairs and that he told them four people were living there and confirmed that the [NAME] was his main home.

20. It is the Applicant’s position that all three chefs at the [NAME] speak Bengali and that none of them speak English. When this was put to Ms [NAME] by [NAME] [NAME], she stated that she had spoken in English and that the [NAME] she had spoken to had answered her in English.

21. Ms [NAME] said that she had spoken to a [NAME] in the kitchen who was preparing food. She introduced herself by saying that she was from the Council and that she was enquiring about a broken window. She gave evidence that the [NAME] had understood her. She said she did not ask him for his name. She also said that the [NAME] had appeared nervous on being asked whether the [NAME] Officers could go upstairs to view the [NAME] and that, at this stage he had asked them to return at 5 pm when his boss would be back. 22. [NAME] [NAME] stated that the [NAME] they had spoken to had a heavy accent and was a bit nervous but that he had obviously understood them as he had explained that the owner would be back at 5 pm if they wanted to go upstairs. [NAME] [NAME] confirmed that they did not ask the [NAME] for his name but simply asked whether he was living at the [NAME]. 23. [NAME] [NAME] gave evidence that he visited the [NAME] on 15 July 2015 and that there was one person sleeping in a bed when he walked in. He gave evidence that in one room at the [NAME] there had been two beds and in another there had been two beds and a sofa bed. He had also noted the presence of personal belongings such as bags, clothes and tobacco and he has provided colour photographs. In [NAME] [NAME] view, it was clear that the rooms were being used for sleeping.

7 24. In a handwritten notebook entry dated 12 July 2021, [NAME] [NAME] records that, on being asked whether the [NAME] was staff accommodation, [NAME] [NAME] had stated “one person is staying there sometimes”. On being questioned by [NAME] [NAME] concerning the photocopied notebook entries exhibited to his witness statement, [NAME] [NAME] produced the original notebook to be examined. [NAME] [NAME] then took no further issue with the notebook.

25. At paragraph 8 of his witness statement, [NAME] [NAME] states that he believed that the [NAME] was being used by at least 4-5 people sharing rooms who were unrelated and who worked in the ground floor [NAME] and that this caused a crowding and space hazard. On being questioned by [NAME] [NAME], [NAME] [NAME] accepted that he was not sure, “off the top of his head”, how many people would need to occupy the [NAME] in order for it to become crowded. 26. [NAME] [NAME] accompanied [NAME] [NAME] and he confirms the presence of beds all with bedclothing, furniture and racks for the storage of personal belongings and clothing.

27. Ms [NAME] referred the Tribunal to [COMPANY] v Collins UK HL [2001] 43 and to [COMPANY] v Ezekwe [2017] UKUT 277 in relation to the meaning of “dwelling” in other contexts but stated that there are no authorities concerning the meaning of “dwelling” or “residential premises” in the 2004 Act.

28. It is not in dispute that the Respondent has authorised the use of the [NAME] as commercial premises. [NAME] [NAME] submits that the [NAME] falls under the scope of the Regulatory Reform (Fire Safety) Order 2005 (“the 2005 Order”) where the definition of “workplace” includes any premises “not being domestic premises” which are made available to an employee as a place of work including any place “where facilities are provided for use in connection with that place of work”.

29. Residential premises are not defined in the 2004 Act with reference to the 2005 Order. In our view, the issue of whether the [NAME] comprises residential premises is a question of fact to be determined in accordance with the definition set out in the 2004 Act on the basis of the available evidence.

30. We accept, on the balance of probabilities, the evidence of Ms [NAME] and [NAME] [NAME] that on 2 July 2021 they spoke, in English, to a [NAME] who was preparing food in the kitchen of the [NAME] who said, in English, that he was one of four people sleeping at the [NAME] and that it was his only and main place of residence. Ms [NAME] and [NAME] [NAME] corroborate each other’s evidence and they remained consistent on being thoroughly questioned by [NAME] [NAME].

8 31. It was apparent on hearing their response to [NAME] [NAME] questions that Ms [NAME] and [NAME] [NAME] referred to the [NAME] who they spoke to on 2 July 2021 as a chef in their witness statements because they had found him in the kitchen preparing food and had therefore inferred that he was employed as a chef. Neither witness suggests that the [NAME] told them that he was employed as a chef. [NAME] [NAME] does not work at the [NAME] and was therefore unable to give direct evidence concerning its day to day running. We note that it is possible that an English- speaking member of the waiting staff was helping out in the kitchen but, in any event, we accept that Ms [NAME] and [NAME] [NAME] were truthful witnesses.

32. Having reviewed the photographs showing beds and personal belongings which are contained within the hearing bundle, we are satisfied that it is likely on the balance of probabilities that the employee’s statement to Ms [NAME] and [NAME] [NAME] that there were four people sleeping at the [NAME] and that it was his only and main place of residence was true. 33. [NAME] [NAME] did not give evidence contradicting [NAME] [NAME] account that, on 12 July 2021, he had accepted that one person was sometimes staying at the [NAME]. This account is recorded in a contemporaneous note and we are satisfied that it is likely on the balance of probabilities to be accurate.

34. We also accept, on the balance of probabilities, the evidence of [NAME] [NAME] and [NAME] [NAME] including the evidence that someone was found to be sleeping at the [NAME] on 15 July 2021. Given the shift patterns described above and the cost and practical difficulty of travelling to and from London, this evidence is highly plausible.

35. On the basis of the findings set out above, the Tribunal find it likely that, in July 2021, the [NAME] was being occupied as a dwelling. At the time of our inspection, beds were made up, makeshift screens were in place which would provide some privacy between the bed areas, and there was space for the storage of clothing and personal possessions. Whilst the [NAME] may not currently be used a separate dwelling, in light of what we observed and the history referred to above, we find that it is likely that the [NAME] is intended to be occupied as a separate dwelling.

36. The Tribunal therefore finds that the [NAME] comprises residential premises within the meaning of the 2004 Act and we confirm the prohibition order dated 22 July 2021. In making this finding, the Tribunal has applied the ordinary and natural meaning of “dwelling” and “residential premises”.

9 37. We record that it is the Appellant’s position is that he has no absolutely wish to use the [NAME] for human habitation/residential use as prohibited by the prohibition order in any event.

Name: Judge Hawkes Date: 24 January 2022

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 application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28 day time limit, such application 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 application for permission to appeal to proceed, despite not being within the time limit. The application for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the [NAME] and the case number), state the grounds of appeal and state the result the party making the application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).