Improvement Notice Decision: Confirmed Some Issues, Reduced Others

OUTCOME: Allowed in Part

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Case Reference : BIR/00CQ/HIN/2024/0002

Property

: [ADDRESS], Canley, [NAME], [POSTCODE]

Applicant: [redacted]

Respondent

: [redacted] : Mrs [COUNSEL], [NAME] Solicitor and Mr [COUNSEL].[COUNSEL], trainee Environmental Health Officer

Type of Application : Appeal against Improvement Notice under Part 3, Schedule 1

to the Housing Act 2004

Tribunal Members : Mr [NAME].[NAME]. [NAME] B.Sc.(Est.Man.) FRICS

Mr [NAME]. [NAME], JP

Date and Venue of : 29 July 2024 by on-line video Hearing Hearing

Date of Decision : 21 November 2024

____________________________________________________________

DECISION

© CROWN COPYRIGHT 2024

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

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DECISION

1 The Improvement Notice is confirmed in respect of some Issues, some issues are reduced from Category 1 to Category 2 and others deleted as set out below and more particularly in the following paragraphs. All work is required to be undertaken by 1 March 2025.

Issue 1 Category 1

Excess cold: Single glazed windows

Confirmed

Excess cold: Boiler

Deleted

Excess cold:

Front door seal

Confirmed

Excess cold:

Front Bedroom window handle broken Deleted

Issue 2

Category 1

Falling on Stairs

Reduce to Category 2

Issue 3

Category 2

Fire:

Kitchen

Deleted Fire:

Living Room/Hall door

Deleted

Fire:

Kitchen/Hall door

Deleted Fire:

Living Room/Dining Room door

Deleted Fire:

Rear Bedroom

Confirmed

Issue 4

Category 2

Electrical hazards: Understairs Area

Deleted

Electrical hazards: Rear Extension, trailing power cable

Deleted

Issue 5

Category 2

Falling between levels:

Confirmed

Issue 6

Category 2

Water Supply:

Deleted

Issue 7

Category 2

Damp and Mould:

Deleted

Issue 8

Category 2

Food Safety:

Kitchen Food Cupboard

Deleted

Food Safety:

No extractor fan over hob

Deleted

2 Respondent's Claim for Costs

Reduced to £250

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REASONS

Introduction 3 The subject property is a two storey semi-detached house of non-standard construction built post 1945. It had been built for the local authority, [NAME] and by 2006 the Freehold had been sold to Mr [NAME] [APPELLANT], the son of the Applicant, Mr [NAME] [APPELLANT].

4 The tribunal were not shown documentary evidence but understand [APPELLANT] holds a life tenancy in the property. By the date of application the property had been sub- let to Mr [NAME].[NAME]. [NAME] by Assured Shorthold tenancy initially granted for a term of six months from 1 January 2015. At the date of tribunal inspection, Mr [NAME] remained in occupation as a statutory periodic monthly tenant.

5 On 1 November 2023 [APPELLANT] served [NAME] with Notice to Quit under section 21 of the Housing Act 1988.

6 Shortly afterwards, the local authority received a complaint about the condition of the property and on 12 December 2023 Mr [NAME], a trainee Environmental Health Officer employed by the Council, together with colleague Mrs [NAME].[NAME], inspected the property under the Housing Act 2004 ('the Act').

7 On 2 January 2024 the Council served an Improvement Notice on [APPELLANT] identifying two Category 1 hazards and a further 6 Category 2 hazards detailed in the paragraphs below. The Notice required the work to be completed within 49 days, by 1 February 2024.

8 The Council also demanded charges of £435.00 for serving the Notice.

9 [APPELLANT] appealed to the First-tier Tribunal ([NAME]) ('the tribunal') on 29 January 2024 in respect of both the Improvement Notice and Demand for Costs.

10 The tribunal issued Directions on 31 January 2024. The tribunal inspected on 29 July 2024 and held a video hearing the same day.

The Law 11 Under section 11(1) the Housing Act 2004 ('the Act'), a local housing authority has a duty to serve an improvement notice if it considers a category 1 hazard exists in relation to residential property to which the Act applies and no management order is in place. If the authority considers category 2 hazards exist they have 'power' but no 'duty' to serve a Notice under section 12(2) of the Act.

12 The categories of hazard are listed in Schedule 1 to the Housing Health and Safety Rating System (England) Regulations 2005.

13 The Council served a Demand for Payment of a Charge for Enforcement Action under sections 49 and 50 of the Housing Act 2004.

14 On receipt of an Appeal, the tribunal is required to reach its Decision by way of re-Hearing under section 15(2)(a) of Schedule 1, Part 3 of the Act and may by order confirm, quash or vary an improvement notice under section 15(3) of the Act.

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Facts Found 15 The tribunal inspected the property on 29 July 2024 in the presence of the sub-tenant, Mr [APPELLANT]. Neither the Applicant nor Respondent were represented.

16 The Tribunal inspected the property internally and externally in relation to the hazards identified in the Notice.

Issues 17 The issues listed in the Improvement Notice are summarised as follows:

Issue Hazard

Summary Description ______________________________________________________________

Category 1

1 Excess cold Single glazed windows were ill fitting and providing little

insulation or draught proofing.

The boiler was faulty as it operated intermittently.

The seal around the front door provided inadequate draught proofing.

A front bedroom window handle was broken.

2 Falling on stairs The stair handrail was inadequate and difficult to grip.

Category 2

3 Fire

Kitchen. There was no heat detector.

Living Room / Hall door failed to close properly.

Kitchen / Hall door failed to close properly.

Living Room / Dining Room required a Smoke detector.

Rear Bedroom. Polystyrene ceiling tiles required removal.

4 Electrical hazards Consumer Unit. Loose plastic cover.

Rear extension. Trailing power cable to ceiling light.

5 Falling between levels. The front bedroom sill height was too low and the opening

casement needed a restrictor.

6 Water supply The rear downpipe discharged to paving.

7 Damp and Mould There was no mechanical ventilation in the bathroom.

8 Food Safety A door was missing from a low level cupboard.

There was no ventilation or extractor over the kitchen hob.

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Preliminary Issue 18 The initial question for the tribunal is whether the Improvement Notice had been correctly served on the right person. The parties' submissions and tribunal Decision are as follows.

19 Applicant

In [APPELLANT]'s opinion, the Notice should correctly have been served on three parties; the freeholder Mr [NAME] [APPELLANT], himself as life tenant and the sub-tenant Mr [APPELLANT] as they were each responsible for different aspects. He suggested 'structural issues' should have been Mr [NAME] [APPELLANT]'s responsibility, defects caused by the tenant's occupation were Mr [APPELLANT] responsibility and any residual liability under the Act was his responsibility.

20 Respondent

Mrs [APPELLANT] for the Council said [APPELLANT] was the correct person for service as he collected the rack rent and was the person in control of the property under the Housing Act 2004 Schedule 1, Part 1.2(2)(a).

21 Tribunal

There was no doubt that [APPELLANT] was the party to which rack rent should be paid and the person in control of the dwelling for the purposes of service of a Notice. The Tribunal finds he was the correct person to be served. However, he was not liable for items or defects caused by the sub-tenant's occupation.

Hearing 22 The Hearing was held by on-line video on 29 July 2024.

23 Applicant

[APPELLANT] represented himself.

24 Respondent

[NAME] was represented by in-house Solicitor Mrs [COUNSEL] with witness evidence by Mr [COUNSEL] who had prepared the Improvement Notice and was the Officer responsible for the case. Mr [NAME] explained that at the date of his inspection on 12 December 2023 he had been employed as a trainee Environmental Health Officer for four months having taken up his position in September 2023. He was attending a part-time course in Environmental Health at Wolverhampton University. Prior to that, he had been employed in the homeless persons group of the city housing department and had a degree in building surveying from [COMPANY].

25 Freeholder

Mr [NAME] [APPELLANT] was neither present nor represented.

The Parties' Submissions and Tribunal Findings on each point

Category 1 Issue 1

26 Excess cold: Single glazed windows

27 Appellant

Mr [APPELLANT] acknowledged that the windows were single glazed but said in his view there was no requirement to replace them as the property was rated in EPC Band D for letting purposes which demonstrated that they met the required standard of insulation.

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28 Respondent

The Notice stated that the windows were 'slim aluminium frames' providing little thermal insulation and were worn/degrading throughout. There were no thermal breaks, there was potential for cold air penetration and they were not to the standard of modern double glazing.

29 Tribunal

The tribunal noted the windows were not 'slim aluminium frames' as described by Mr [NAME] but standard post-[NAME] galvanised steel frames. Over time, there had been a build-up of paint which prevented them closing correctly, some were showing signs of corrosion where the galvanising was worn and some of the handles were loose. They were allowing draughts into the house and the Tribunal agrees with the Council that they need replacement with modern double glazed units.

Accordingly, they remain a deficiency resulting in a Category 1 hazard and the Applicant is required to replace them.

30 Excess cold: Boiler

31 Appellant

Mr [APPELLANT] said he believed the boiler fault had been caused by the tenant's occupation but in any case he produced evidence that it had been repaired in March 2024.

32 Respondent

Mr [RESPONDENT] said he would re-consider whether the boiler fault should remain in issue.

33 Tribunal

The Tribunal finds the boiler has been repaired and deletes this item from the Notice.

34 Excess cold: Front door seal

35 Appellant

Mr [APPELLANT] said the sub-tenant had replaced the front door lock and damaged the seals.

36 Respondent

The Notice said the seal was ineffective and allowing cold air ingress.

37 Tribunal

The Tribunal found the front door seal to be faulty, permitting excess draughts and requires the front door to be replaced with a new pvu Unit at the same time as the windows.

38 Excess cold: Front bedroom window handle broken

39 Appellant

Mr [APPELLANT] acknowledged that the windows were single glazed but said in his view there was no obligation to improve them as the property was rated in EPC Band D for letting purposes which demonstrated that they met the required standard of insulation. He said the sub-tenant had fitted an external camera with trailing leads around the casements that prevented them closing.

40 Respondent

The Notice stated the handle was broken making it difficult to close the casement.

41 Tribunal

This item is superseded by the requirement to replace the windows and is deleted.

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Category 1 Issue 2

42 Falling on Stairs

43 Appellant

Mr [APPELLANT] said he lived nearby in the same type of house with the same type of handrail and it had not caused a problem.

44 Respondent

The Notice said the handrail was difficult to grasp as it could only be partly held without a full hand grip. It was also too short as it was too low to reach at the top of the stairs.

45 Tribunal

The tribunal did not consider this a major issue as it was a type of handrail widely fitted in properties of this age. However, to reduce the risk of falling, the tribunal requires the Applicant to install a new handrail (as per the Local Authority's specification) but reduces this to a Category 2 hazard.

Category 2 Issue 3

46 Fire: Kitchen

47 Appellant

Mr [APPELLANT] said the [NAME] had inspected the house in 2023 and found it safe without a heat detector in the kitchen. There was no requirement for a heat detector to be fitted but he had fitted one in any case to reduce the risk, together with a new smoke detector between the kitchen and living room.

48 Respondent

The Notice noted there was no heat detector and required one to be fitted.

49 Tribunal

A heat detector has been fitted by the Applicant. This item is deleted.

50 Fire: Living Room/Hall door

51 Appellant Mr [APPELLANT] did not consider this a problem.

52 Respondent

The Notice stated the door could not close completely and required it to be adjusted.

53 Tribunal

The tribunal did not find this a major problem and deletes the item.

54 Fire: Kitchen/Hall door 55 Appellant Mr [APPELLANT] did not consider this a problem.

56 Respondent

The Notice stated the door did not latch securely and required it to be adjusted leaving gaps no greater than 4 mm.

57 Tribunal

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58 Fire: Living Room/Dining Room

59 Appellant Mr [APPELLANT] did not consider this a problem.

60 Respondent

The Notice requires an additional smoke detector to be fitted at the threshold of the Living Room and Dining Room.

61 Tribunal

The tribunal did not find this a major problem as there are already smoke detectors in the ground floor rooms. This item is deleted.

62 Fire: Rear Bedroom

63 Appellant Mr [APPELLANT] said the polystyrene ceiling tiles had been fitted by the tenant without permission.

64 Respondent

The Notice said the tiles could allow rapid spread of fire and should be removed.

65 Tribunal

The tribunal agrees the tiles need to be removed as a Category 2 hazard.

Category 2 Issue 4

66 Electrical hazards: Understairs Area

67 Appellant The EICR (Electrical Installation Condition Report) commissioned in January 2023 had not indicated a problem when the property was inspected. Mr [APPELLANT] said the damage to the consumer unit door had been caused by the sub-tenant and was not his responsibility.

68 Respondent

The Notice recorded the plastic cover to the Consumer Unit being damaged and required it to be repaired and certified by a qualified electrician.

69 Tribunal

Having seen the satisfactory EICR and tenant's items being stored in the cupboard around the consumer unit, the tribunal finds it highly likely to have been caused by the tenant's occupation. Accordingly this item is deleted.

70 Electrical hazards: Rear Extension, trailing power cable

71 Appellant Mr [APPELLANT] said the trailing cable and light had been added by the sub-tenant and was not his responsibility.

72 Respondent

The Notice stated that a light fitting was hanging from the ceiling from a loose power cable.

73 Tribunal

The tribunal noted that it was not a permanent light fitting, it was powered from a wall

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mounted socket and intended as a temporary light for DIY use. Accordingly, it was not the Applicant's responsibility and should be deleted from the Notice.

Category 2 Issue 5

74 Falling between levels

75 Appellant Mr [APPELLANT] did not consider this a problem.

76 Respondent

The Notice noted the sill height of 892 mm and required the Applicant to fit a restrictor to the window to avoid the risk of occupants falling from the window.

77 Tribunal

The window is a multi-pane glazed window with timber glazing bars that reduce the risk of

a fall. However, the windows are already required to be replaced as noted above, so this individual item is deleted.

Category 2 Issue 6

78 Water Supply

79 Appellant Mr [APPELLANT] said there used to be a water butt to collect rainwater from the downpipe which the tenant had removed.

80 Respondent

The Notice stated there was no drain to take water from the downpipe and rainwater was washing over the garden paving.

81 Tribunal

This was included in the Schedule under the Hazard Profile 'water supply', which concerns the quality and adequacy of water within a dwelling for drinking and for domestic purposes. The downpipe in question conveys rainwater which is not used in the house and as such the wrong hazard profile has been used. In any event, the tribunal does not consider it a deficiency that should be included in the Improvement Notice. Accordingly it is deleted.

Category 2 Issue 7

82 Damp and Mould

83 Appellant Mr [APPELLANT] said there was no evidence of damp or mould in the bathroom and drew attention to Mr [NAME] email to him of 18 December 2023 stating ' ... and unless I noted excess cold, condensation or mould (which I didn't) we wouldn't specify anything related to insulation.'

84 Respondent

The Notice noted there was no mechanical ventilation in the bathroom and required an extractor fan to be fitted.

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85 Tribunal

The tribunal notes 3 points: 1) there is no legal requirement to retro-fit an extractor fan in a bathroom with an opening window such as this;

2) Mr [APPELLANT] email of 18 December 2023 to the Applicant states he found no evidence of damp or mould;

3) Mr [NAME] site notes, given in evidence, record no damp or mould either. Mr [NAME] was invited to identify anywhere in the notes recording damp or mould but was unable to do so.

Accordingly this item is deleted.

Category 2 Issue 8

86 Food Safety: Kitchen Food Cupboard

87 Appellant Mr [APPELLANT] did not consider this an issue.

88 Respondent

The Notice stated there was a door missing from a low-level food cupboard and required a new door to be fitted.

89 Tribunal

There was no evidence of a missing door to any low level food cupboard. There was a missing drawer front from a low level cupboard but as the drawer was not used to store food it was not a risk. This item is deleted.

90 Food Safety: No Extractor Fan over hob

91 Appellant Mr [APPELLANT] did not consider this a problem.

92 Respondent

The Notice said there was no ventilation or extractor fan over the kitchen hob and required a fan to be fitted.

93 Tribunal

There is no legal requirement to retro-fit an extractor fan in property of this age and there is adequate ventilation in the house. Accordingly this item is deleted.

Respondent's Claim for Costs for Service of Improvement Notice 94 The tribunal is surprised the Respondent addressed the issues by service of Improvement Notice without prior discussion with the Applicant which would have been the normally expected procedure. Furthermore, the tribunal finds the majority of items listed to have been excessive and some included as more of a 'wish list' than schedule of major hazards requiring attention.

95 The main item is the requirement to replace windows and while the house may have achieved a D rating under EPC requirements, those requirements are designed purely to measure the thermal efficiency of accommodation and are not the same standards applied to housing under the Housing Act 2004. The tribunal requires the windows to be replaced and as this was listed in the Improvement Notice together with other valid points which have been reduced to Category 2 hazards, the tribunal allows the Respondent to reclaim

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costs but not those claimed in its Notice, as some of the items listed are found to be irrelevant.

96 Bearing these points in mind, the tribunal finds the Respondent's reasonable costs for service to be £250.00.

[NAME].(Est.Man.) FRICS

Chairman

Appeal

If either party is dissatisfied with this decision an application may be made to this Tribunal for permission to appeal to the Upper Tribunal, [NAME] (Residential Property) on a point of law only. Any such application must be received within 28 days after the decision and accompanying reasons have been sent to the parties (Rule 52 of the Tribunal Procedure (First-tier Tribunal) ([NAME]) Rules 2013).