First-tier Tribunal varies improvement notice for fire and fall hazards

OUTCOME: Allowed in Part

Case References : MAN/00BY/HIN/2021/0013 MAN/00BY/HMV/2021/ooo4 + ooo6 MAN/00BY/HML/2021/0004

Property : 55, [ADDRESS] [POSTCODE] 33, [ADDRESS] [POSTCODE] 35, [ADDRESS] [POSTCODE] 43, [ADDRESS] [POSTCODE]

Applicant: [redacted] (trading as [APPELLANT])

Respondent : [redacted] Mr [COUNSEL] of Counsel)

Type of Application : 1 Appeal against an Improvement notice: Housing Act 2004 – Sections 40- 45 and Schedule 1 Paragraph 10 (1) 2 Appeal against revocation of HMO licences: Section 70(1)(b) Housing Act Act 2004

Tribunal Members : Mr [NAME] Mr [NAME] of Decision : 10th March 2023

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

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Order : (1) The appeal against the revocation of the HMO licences is refused for the reason herein. (2) The improvement notices in respect of 55, [ADDRESS], Liverpool is varied as set out herein.

A. Application.

1. The [NAME] are the owners and operators of 4 large terraced houses that have been converted into Houses in Multiple occupation (HMOs) to provide shared student accommodation. Although they are situated within close proximity of each other 3 would be regarded as being in the Wavertree district of the city whilst 33, [ADDRESS] is in [ADDRESS].

2. The [NAME] have for some time traded as [COMPANY] ([NAME]) which is an entity having no legal personality of its own. It nevertheless purported to submit applications for licensing of the 4 houses as HMOs.

3. For reasons that are not entirely clear, but which might be regarded as oversight, the local housing authority, Liverpool City Council, in turn purported to grant licences in the name of [NAME] and provide the same to the Applicants.

4. On 12th November 2020 the Council wrote to [NAME] and advised that it proposed to revoke the licences as they no longer considered [NAME] to be a fit and proper person to be the [NAME]. It identified the reason for that decision as being that [NAME] had no legal identity,

5. The Applicants are aggrieved by the decision. It appears to the Tribunal that the reason is understood but that the effect of any revocation may be some adverse effect upon their perceived fitness as owners and operators of HMOs within the City, or elsewhere.

6. There are now, however, 4 new applications for HMO licences in respect of the 4 houses. 3 are in the name of the Applicant [APPELLANT], whilst the fourth, in respect of 43, [ADDRESS] is in the name of his brother, [NAME].

7. Those applications have generated further dispute between the parties as the Council has, as part of the licensing process, imposed conditions upon the new licences in relation to mandatory terms to be inserted into any tenancy granted of accommodation within the houses. There are now further appeals in respect of those conditions. The view of the Applicants has been that the appropriate course of action for the Council to take would be to vary the licences expressed to be in favour of [NAME] into the name of the relevant individual licensee.

3 8. Separately from this issue an inspection of the property at 55, [ADDRESS] by officers of the Council identified a number of concerns in relation to fire safety at this house and resulted in the issuing of an improvement notice under the provisions of the Housing Act 2004 and there is now an appeal under Section 18 and Schedule 1, Paragraph 10 of the Housing Act 2004 (“the Act”) against that notice.

9. The notice is dated 21st June 2021 and is made under section 11 of the Act, requiring certain works to be carried out to the house to remedy hazards referred to in the Notice. The Appeal against the notices lodged by the Applicant, [APPELLANT] and dated 29th June 2021.

10 The provisions of Paragraph 10 of Schedule 1 provide for the person on whom an improvement notice is served to have the right to appeal to a Residential Property Tribunal and, although setting out certain specific grounds of appeal, they do not restrict the overall generality of the paragraph. Thereafter a combination of Paragraphs 12 and 15 envisage an appeal by way of re-hearing, admitting matters not previously considered, to allow the Tribunal to confirm, vary, or quash the Notice.

11 The Notice alleges a number of hazards identified within the property relating to the potential for: • Damp and mould growth (defective seal to ground-floor window sill and bay window to lounge) • Fire (storage of items on second floor landing, location of fridge-freezer, secondary fire exit to yard, fire door provision) • Flames and hot surfaces (direction of boiler expansion pipe discharge)

12 The hazards in question were identified as being category 2 hazards and as such entitled the Council to consider the making of an improvement notice as one of its options to secure remedy.

13 Directions as to the future conduct of the appeals was given by a Deputy Regional Judge of the Tribunal on 2nd March 2022 and the matter then listed for hearing before the Tribunal on 26th January 2023 when it had the opportunity of inspecting the properties and thereafter conducting a video hearing.

14 It does appear that as a matter of listing and the way in which these various matters have been dealt with up to now by the parties and the Tribunal that the matters for consideration on 8th February are: Three appeals against decisions to revoke existing HMO licences (33,[ADDRESS], 35, [ADDRESS], and 43, [ADDRESS]) Two appeals against decisions to grant licences, relating to the additional terms required by the Council (33, [ADDRESS] and 35, [ADDRESS]) One appeal against an improvement notice (55, [ADDRESS])

4 15 The Tribunal would hope that in the light of its decisions herein in relation to the revocation of existing and grant of new licences the parties will be able to make progress in respect of the remaining matters.

B. Inspection

16 On the morning of 26th January 2023 the Tribunal inspected the 4 properties in the company of officers of the Council, Mr [NAME] and his property manager Miss [NAME]. The Tribunal had little difficulty in inspecting the 4 houses with the assistance also of a number of occupiers of each of the properties and was able to satisfy itself as to the nature of the accommodation provided in each of them.

17 It was only in relation to 55, [ADDRESS] that the Tribunal was directed to specific issues within the property in respect of matters raised in the improvement notice. In view of work carried out to the property in the length of time that had elapsed for this appeal to progress the Tribunal was able to direct its attention to those items remaining outstanding as points of issue between the parties.

18 It noted particularly that items remained stored in the second-floor alcove that could impede egress for an occupier on that floor, the area of the wall and sill in the bay to the ground floor lounge and the fitting of the fire doors throughout the premises.

The Law

19 The law relating to the revocation and/or varying of an existing [NAME] in respect of an HMO is found firstly in Section 69 Housing Act 2004 in relation to variation: (1) The local housing authority may vary the [NAME]- (a) If they do so with the agreement of the [NAME] (b) If they consider that there has been a change of circumstances since the time when the [NAME] has been granted A change of circumstances includes any discovery of new information

20 Thereafter Section 70 provides for revocation: (1) The Local housing Authority may revoke a [NAME]- (a) If they do so with the agreement of the [NAME] (b) In any case mentioned in subsection (2)… (2)(a)… (b)where the authority no longer consider the [NAME] is a fit and proper person to be the [NAME]

21 The law relating to the service and content of Improvement Notices as they relate a situation where there is a category 2 hazard is set out in Sections 12-13 Housing Act 2004 and appear below:

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22 Section 12 makes similar provision for category 2 hazards to Section 11 of the Act which relates to category 1 hazards by incorporating relevant provisions from that earlier section to the effect that: (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 subsections (3) and section 13. (3) The notice may require remedial action to be taken in relation to the following premises- (a)… (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 Section 11(4) (1) 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 is 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 (2) 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 2 hazard, but (b) may extend beyond such action

6 (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. 23 Contents of improvement notices (1) An improvement notice under section… 12 must comply with the following provisions of this section. (2) The notice must specify, in relation to the hazard (or each of the hazards) to which it relates— (a) whether the notice is served under section 11 or 12, (b) the nature of the hazard and the residential premises on which it exists, (c) the deficiency giving rise to the hazard, (d) the premises in relation to which remedial action is to be taken in respect of the hazard and the nature of that remedial action, (e) the date when the remedial action is to be started (see subsection (3)), and (f) the period within which the remedial action is to be completed or the periods within which each part of it is to be completed. (3) The notice may not require any remedial action to be started earlier than the 28th day after that on which the notice is served. (4) The notice must contain information about— (a) the right of appeal against the decision under Part 3 of Schedule 1, and (b) the period within which an appeal may be made. (5) In this Part of this Act “specified premises”, in relation to an improvement notice, means premises specified in the notice, in accordance with subsection (2)(d), as premises in relation to which remedial action is to be taken in respect of the hazard.

Evidence and submissions

23 The Tribunal received a very considerable amount of documentation from the parties by way of submissions and supporting material, much of which was duplicated by virtue of the number of properties under consideration. Notwithstanding this, the number of issues for its consideration were relatively clear. 24 It was however clear that for the reasons that the Applicants set out they wished to oppose any suggestion that the existing licences be revoked. The alternative for them was a variation to the correct [NAME]’s details.

7 25 The Council was of the view that variation was not appropriate. Section 69 of the Housing Act requires either consent of the [NAME], or a change of circumstances. It did not feel able to vary by consent as it did not consider the [NAME] to have been validly granted to a [NAME] in the first place. Nor was there any change in circumstances. The named licensee continued to be a non- legal entity. 26 Similarly, opposing positions were adopted in relation to the additional terms of the tenancy required by the Council in respect of the new licences being granted. They are required as matter of policy by the Council, viewed as being necessary to enable the Council properly to oversee the HMO sector within the city and to control the effect of such properties in the neighbourhoods where they are predominately situated. 27 The Tribunal had the opportunity of considering the very detailed observations of both parties within the documentation supplied and by consideration of them during the course of the hearing. 28 The position in relation to the improvement notice for 55, [ADDRESS] is rather different. The Tribunal gained the impression, rightly, or wrongly, that there is a battle of wills between the Applicant and the Council in which neither will concede ground to the other. 29 The Applicant appears to regard the Council as over-zealous in its pursuit of the Applicants and notwithstanding some issues being identified in respect of that house the overall record of the Applicant and his brother, working together under the name of [NAME], with regard to the standard of accommodation provided and the landlord/tenant relationship within their extensive portfolio, suggested a step short of an improvement notice, in the form of a hazard awareness notice, would have been sufficient. 30 The Council, however, felt that particular concerns in relation to 55, [ADDRESS] needed to be addressed in a manner that secured action to remedy defects within a reasonably short timeframe. The hazards identified in respect of fire were clear and the others identified by the Council at its inspection were a sufficient cause for concern so at to require intervention. 31 The Tribunal were assisted at its own inspection of the property firstly by the work that had been done in the not inconsiderable time between the lodging of the appeal and the hearing date and secondly by the assistance of [NAME] in relation to the issues with the fire doors at the property. 32 The hazard of damp and mould growth gaps at first floor level to the seals between double glazing units and brickwork had been resolved. Some work had been done to clear the grooving under the sill of the bay window where rainwater was being allowed across the grove to run against the wall and contribute to the occurrence of damp or mould on the interior wall.

8 33 Cracked glazing that could contribute to excess cold had been repaired in the front bay.

34 The fridge freezer has been removed from under the stairs and the secondary exist through the kitchen modified to reduce the risk of obstruction to exit paths.

35 The boiler expansion pipe has been adjusted.

36 The internal fire doors to the individual bedrooms and common parts were viewed by the Tribunal with the parties an Mr [NAME] in some detail and the Tribunal was able to see at first hand the issues raised in the report that accompanied the improvement notice. The Applicant’s view is that the issues identified were not necessarily real. The difficulty for the Council is that in the absence of clear identification of the standard to which the doors are manufactured and installed there is no proof that they are satisfactory for the purposes for which they are intended.

37 The Tribunal returned to these issues at the hearing and further explored the views in respect of the internal doors in particular, the Council conceding that other issues had been satisfactorily resolved so as to leave the tribunal to consider: • The damp issues arising in relation to the bay window and sill to the lounge • The use for storage of the area on the 2nd floor landing adjacent to the fire exit route • The adequacy or otherwise of the internal doors in relation to fire, heat and smoke protection.

38 The interior doors were the issue that took up some considerable time at the hearing whilst the Tribunal considered at length the views of the parties as to their adequacy, based largely upon the premise that they were satisfactory and compliant with relevant guidance and law, but that this may, or may not, be sufficiently documented and, in the absence of such documentation what remedial work was required. 39 There were similar diverse approaches from the parties in relation to the terms and conditions of the licences to be granted replacing those that the Council was proposing to revoke, together with other conditions imposed upon the [NAME] as to how tenancies, tenants and flats are to be managed. 40 They are set out in the new licences granted and are addressed at length by the parties within the documents submitted to the Tribunal (particularly in Mr [NAME] bundle at page 38 onwards and by the Council within its bundle at page 290 onwards.

9 41 The Council may be described as having a significant hands-on approach to ensuring that tenancy agreements address directly a number of social issues likely to be found in the housing market, particularly HMOs with their likely characteristic od more transient occupancy. It also relies upon a policy that seeks an element of uniformity within all the licences it issues relating to the oversight it exercises over HMOs. The Applicants regard themselves as responsible landlords likely to be able to deal with those issues within the terms of less complex agreements, nevertheless sufficiently comprehensive in their content to allow such issues to be addressed if they arise. 42 In view of the manner in which these matters have been listed the Tribunal has not considered those matters at any length within the hearing and will be re-visited should that prove necessary.

Tribunal’s Conclusions and Reasons

43 The revocation of existing licences The Tribunal has some sympathy with the views of the Applicants. In many ways the tenor of the Housing Act creates a stigmatic aura around situations where landlords may be regarded as having issues with compliance with the licensing regime. It appreciates the reason why they would seek a variation of existing licences and not face the possibility of having to explain their position on some future occasion.

44 in one sense this difficulty may be illusory, in that future applications will be in the names of the Applicants who will not have to explain the revocation of licences in the name of [COMPANY], but it may be that they will feel inclined to be transparent about their previous history and engage in some relevant explanation.

45 The Tribunal does, however, express the view that however desirable the possibility of varying the licences, they are, in fact, not licences at all. The regime within the Housing Act for the licensing of HMOs, Sections 61 to 75, clearly envisage a “person” as the [NAME] and that such a “person” should be either an individual or a legal personality, not an [COMPANY]. As there is no “person” there is no [NAME] and the purported grant of such is void. It is necessary to start the licensing process again.

46 Although that position has not been tested in law the Tribunal believes that it is the correct approach to take and there is therefore nothing to revoke. No order is required.

47 The improvement notice in respect of 55, [ADDRESS] Tribunal first of all reminds itself that it is conducting a rehearing of this matter and may take into account matters not within the knowledge or contemplation of the parties at the time the notice was given. It was also assisted by the observations on behalf of the Respondent at the hearing in relation to the work

10 carried out by the Applicant since the notice was given.

48 The Tribunal was therefore left to consider in this respect the matters listed at paragraph 37, above.

49 The bay window sill and damp penetration The Tribunal is not satisfied, upon the evidence submitted and the state and condition of the wall to the bay beneath the bay window at the time of the inspection that this poses a significant risk of permitting the growth of damp or mould in that vicinity. It would hope that as a matter of caution that the groove beneath the sill be dug out and the situation thereafter monitored to ensure no issue subsequently arises.

50 The space being used for storage adjacent to the second floor corridor is hazard. The Tribunal is satisfied that the manner of its use could lead to a significant risk that items could fall to the corridor floor and present a risk in the event of darkness or smoke. The Tribunal is of the view that it would contribute to a risk of falls and trips in addition to escape from fire/smoke.

51 The internal fire doors These may or may not pose a significant risk to the safety of occupiers in the event of fire. The problem is that the answer to that is unknown, but there is clearly insufficient evidence that the doors, to some extent, from door to door, in the manner of their hanging, fitting and alteration are not sufficiently documented as being compliant to fire regulations or guidance. Once again, the Tribunal has some sympathy with the Applicant’s position and is of the view that the situation is best remedied by obtaining a report from an independent, suitably qualified fire risk assessor as to the fire safety provision within the building with particular reference to the internal doors and compliance, or otherwise, with the relevant fire regulations and guidance. The Applicant should then act appropriately upon the findings of that report.

51 The Tribunal gave consideration as to whether the combination of the work done by the Applicant and the views of the Tribunal upon the outstanding matters which were still concerning the Council required the continuation of an improvement notice, or could be addressed within a hazard awareness notice. The Tribunal is only too aware of the serious risks that fire can bring, particularly in a property in multiple occupation and is satisfied that notwithstanding the change in the circumstances since the appeal was submitted, these final two matters should be addressed within an improvement notice.

11 52 The Tribunal is therefore of the opinion that the Improvement Notices should be varied.

The hazards identified are of fire (both in relation to the second- floor landing and the fire doors) and falls at level (the second floor landing)

53 The steps to be taken in respect of the landing are those identified within the original notice (see the Respondent’s bundle at page 811)

54 The step to be taken in respect of the fire doors is that set out in paragraph 51, above: Obtain a report form an independent, suitably qualified fire risk assessor as to fire safety provision within the building with particular reference to the internal doors and thereafter act appropriately upon the findings.

55 The matter of the alcove to the second-floor landing may be addressed by; [NAME] such steps as may be necessary to ensure that any items stored within the alcove are prevented from falling onto, or otherwise obstructing the landing so as to prevent such items being a fall hazard, or obstruction of the pathway to a fire exit.

56 The work should commence no later than 15th April 2023 and be completed by 31st July 2023.

57 The Tribunal is aware of further work now carried out by the Applicant in relation to the doors since the Tribunal hearing. If either party wishes to seek amendment to the timetable in paragraph 55 as a consequence of that work, they may do so. It does not propose to enter into a rehearing in relation to the contents of the notice and it envisages this will remain in force until the requirements have been complied with to the satisfaction of the parties, or it is no longer required.

Tribunal Judge: [NAME] 10 March 2023.