Tribunal Quashes Improvement Notice Due to Repair Obligation Misunderstanding

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AS/HIV/2024/0001 Property : [ADDRESS], Ruislip, Middx. [POSTCODE]. Applicants : [redacted] Representative : [COUNSEL] [NAME] (Asset Manager) Respondent : [redacted] Representative : [COUNSEL] [NAME] (Private Sector Housing Officer) Type of [NAME] :

Appeal in respect of an Improvement Notice: Sections 11 and/or 12 and paragraphs 10-12 of Schedule 1 to the Housing Act 2004.

Tribunal Members :

Judge Robert Latham Steve Wheeler MCIEH CEnvH

Date and venue of Hearing : 29 November 2024 at 10 [ADDRESS] [POSTCODE] Date of Decision : 23 December 2018

DECISION

(1) The Tribunal allows the appeal and quashes (i) the improvement notice dated 20 June 2024 and (ii) the demand for payment of £532, namely the expenses incurred by the Respondent in serving the notice.

2 (2) The Tribunal determines that the Respondent shall pay the Applicants £330 within 28 days of this Decision, in respect of the reimbursement of the tribunal fees paid by the Applicant. The [NAME]

1. On 3 July 2024, the Applicant issued this appeal which had been imposed by the London Borough of [NAME], the Respondent, on 20 June 2024. The Grounds of Appeal state: “We were not aware of the extent of the damages as the tenant is difficult to communicate with. Attached is a list of 8 items the improvement notice highlights, of which only points 1, 4, 6 and 7 were ever reported to us. Points 1 and 4 were highlighted by us as the main concern and therefore we began our works rectifying these issues. Over the last few months, we have had specialists attend the roof to find the root cause of the damp. It is only once the root of the issue is found, that we can then complete the rest of the work.”

The Applicant attached a number of invoices in respect of works which had been executed.

2. On 1 August 2024, the Tribunal has issued [NAME] (amended on 6 November) pursuant to which: (i) The Applicant has filed a Bundle of Documents (53 pages). Reference to this Bundle will be prefixed by “A.__”. (ii) The Respondent has filed their Bundle (45 pages) containing the material on which they seek to rely in support of his appeal. Reference to this Bundle will be prefixed by “[NAME]”. (iii) The Applicant has filed a brief Reply (1 page).

3. The [NAME] alerted the parties to the procedure for the appeal. The appeal would be by way of a re-hearing, but could be determined having regard to matters of which the council were unaware. The Tribunal would need to consider the following issues: • Has the LHA gone through the necessary steps prior to issue of the improvement notice? • Do hazards exist and if so what category? • Should the Council have taken enforcement action?

3 • If so, what enforcement action is appropriate? • If an improvement notice is the correct action, should the terms be varied (e.g. specified remedial works and/or timescale)? The Hearing 4. The Applicant was represented by [NAME] [APPELLANT] [NAME]. He is employed as the Applicant’s Asset Manager. However, he only took up his employment in May 2024. He concluded his submissions by stating that [NAME]’s approach “severely lacked due diligence”.

5. The Respondent was represented by [NAME] [RESPONDENT] [NAME], a Private Sector Housing Officer employed by the Respondent. He was accompanied by [NAME] [RESPONDENT], a legal executive, and [NAME] [NAME], his Team Leader. 6. [NAME] [NAME] and [NAME] [NAME] gave evidence. The Background

7. This [NAME] relates to [ADDRESS], Ruislip. This is a two bedroom flat above commercial premises. There is also a living room, kitchen and bathroom. Access is via an external staircase at the rear. The flat had been occupied by a tenant, Ms [APPELLANT]. On 6 July 2024, Ms [APPELLANT] surrendered her tenancy, owing arears of £7,804. She has not provided a witness statement and did not give evidence.

8. In May 2023, [COMPANY] acquired the freehold of a block in [ADDRESS] which consists of 14 commercial units with 18 flats above. Flat 81B is part of this block. It seems that Ms [APPELLANT] was already a tenant when the freehold was acquired. The [NAME] engaged KMP to manage the Building.

9. On 18 October 2023, the [NAME] granted the Applicant a 999 year lease of Flat 81B for a term of 999 years from 1 June 2023. The Applicant thereupon became Ms [APPELLANT] landlord. The Applicant engaged [NAME] (“CRAE”) to manage the flat.

10. The Respondent treated the [NAME] and the Applicant as the same legal entity. This is not correct in law. Whilst the companies are linked, they are separate legal entities. They each engaged separate managing agents. The [NAME] would be liable to keep the building, including the roof, in a good state of repair. The Applicant’s liability would be to keep the flat in repair. The Tribunal was not provided with a copy of the lease. However, we are willing to accept that the Applicant would be liable to keep the windows and the front door in repair.

4 11. On 25 March 2024, the Respondent received a complaint from Ms [RESPONDENT] of damp and mould. On 26 March (at R.24), the Respondent wrote to the Applicant stating that complaints had been received in respect of “[NAME] and Mould; Disrepair”. The letter stated that the Respondent believed that the Applicant was the “owner” of the flat. The Applicant was asked to respond within 10 days stating what action it intended to take. The Respondent (at R.22) also wrote to [NAME] in similar terms as “agent/person managing” the flat.

12. On 28 March 2024 (at R.26), [NAME] responded. They stated that the main problem seemed to be the roof. This was not their responsibility, but rather that of KMP who managed the building on behalf of the [NAME]. The agent suggested that the mould growth was due to lack of ventilation. However, roof repairs were to be carried out next day. The tenant had mentioned a hole above the front door. A photo had been requested, but this had not been provided. The front door had been refurbished in October 2023. Here was also reference to the tenant being unable to afford the rent and requesting a section 21 Notice, so [NAME] would rehouse her.

13. On 12 April 2024 (at R.1-11), [NAME] [APPELLANT] telephoned the tenant who stated that the issues had not been resolved. On 18 April 2024, [NAME] [NAME] inspected the flat. He took a number of photographs (at R.27-33).

14. On 20 June 2024, the Respondent served the Improvement Notice on the Applicant which is subject to this appeal: (i) A Category 1 hazard was found to exist in respect of excess cold. There were three factors to this: (a) uncontrolled draught from the front door due to lack of draught excluder from the front door due to lack of draught excluder around the letter box and door frame; (b) a large hole in the facia board above the rear staircase; and (c) a broken catch to a window. (ii) Category 2 Hazard in respect of damp and mould. Three factors were identified: (a) penetrating damp on the walls in two rooms; (b) extract fan in bathroom; (c) extract fan in kitchen; (d) damp mark in ceiling. (ii) Category 2 Hazard in respect of electrical hazards: the fuse tripped when the cooker was used.

15. On 1 July 2024 (at A.23), [NAME] [APPELLANT] responded and stated that the Applicant was addressing them as a matter of priority. However, there were problems in arranging access as the tenant was only at home in the evenings. On 3 July (A.22), [NAME] [APPELLANT] wrote that the tenant had cancelled an appointment as she had a medical appointment. On 3 July, the Applicant issued its appeal. On 6 July (A.37), Ms [APPELLANT] vacated the flat.

5 16. On 26 July (A.24), [NAME] [RESPONDENT] asked the Respondent to suspend the Improvement Notice. The [NAME] had urged the party to consider mediation. [NAME] [NAME] was away between July and August due to an emergency. He was unable to respond.

17. In his statement of case (at A.2-4), dated 20 September 2024, [NAME] [NAME] states that the outstanding works had been completed. He gave details of the dates on which works had been completed. Most of these had been completed on 12 September. The external works had been completed on 11 April. An invoice was provided at A.5. These works had been done before the Improvement Notice had been served.

18. The Respondent had not returned to check the works. [NAME] [RESPONDENT] accepted that the required works had been completed. The Law 19. Part I of the Housing Act 2024 introduced a new system of assessing housing conditions under the Housing Health and Safety Rating System. The Act gives a local housing authority a range of enforcement action that may be appropriate which includes informal action.

20. Particular difficulties arose in this case, because the [NAME] was responsible for repairing the exterior and structure of the building, whilst the Respondent was responsible for the repair of the flat.

21. Part 1 of Schedule 1 addresses the person on whom an improvement notice should be served.

22. Paragraph 3 provides for the service of improvement notices in respect of flats which are not licensed under Part 2 or 3 “(1) This paragraph applies where any 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 a flat. (2) In the case of dwelling which is a flat, the local housing authority must serve the notice on a person who– (a) is an owner of the flat, and

6 (b) in the authority's opinion ought to take the action specified in the notice.” 23. Paragraph 4 provides for the service of improvement notices in respect of common parts: (1) This paragraph applies where any specified premises in the case of an improvement notice are– (a) common parts of a building containing one or more flats; or (b) any part of such a building which does not consist of residential premises. (2) The local housing authority must serve the notice on a person who– (a) is an owner of the specified premises concerned, and (b) in the authority's opinion ought to take the action specified in the notice. (3) For the purposes of this paragraph a person is an owner of any common parts of a building if he is an owner of the building or part of the building concerned, or (in the case of external common parts) of the particular premises in which the common parts are comprised 24. Section 262(7) defines owner: “In this Act “owner”, in relation to premises– (a) means a person (other than a mortgagee not in possession) who is for the time being entitled to dispose of the fee simple of the premises whether in possession or in reversion; and (b) includes also a person holding or entitled to the rents and profits of the premises under a lease of which the unexpired term exceeds 3 years. The Tribunal’s Determination 25. The Tribunal is allowing the appeal and quashing the Improvement Order because it considers that the Respondent served the Improvement prematurely.

7 26. First, the Respondent did not have regard to the respective repairing obligations of the [NAME] and the Applicant, leaseholder. The Respondent treated them as the same legal entity. They were not. On 28 March, [NAME] had alerted the Respondent to this issue.

27. Secondly, any recipient of the Respondent’s letters, dated 26 March, would reasonably have assumed that the significant concern was the water penetration. The [NAME] had remedied this when [NAME] [NAME] inspected on 18 April.

28. Thirdly, the Category 1 hazard was “excess cold”. This had not been raised in the Respondent’s letter of 28 March. Excess cold is a problem in many dwellings in the UK (See the HHSRS Operating Guidance at p.59). There were three particular problems at this flat: (a) uncontrolled draught from the front door due to lack of draught excluder from the front door due to lack of draught excluder around the letter box and door frame: This was a particular problem at this flat because there was an exterior staircase to the front door at first floor level. This would be much more exposed than a ground floor entrance door. The proposed solution was a draught excluder. This had not been suggested to the Applicant. This measure could have been implemented at modest cost. (b) a large hole in the facia board above the rear staircase: Again, the Respondent had not alerted the Applicant to this defect. This measure could have been implemented at modest cost. (c) a broken catch to a window: Again, only a modest repair was required.

29. It was unclear who had provided the cooker. The tenancy had been granted before either the [NAME] or the Applicant had acquired their interests in the flat.

30. There was a gap of two months between [NAME] [NAME] inspection and the service of the improvement notice. This period should rather have been used to alert the Applicant to the works that were required, to give it the opportunity to resolve them without formal action. The Tribunal was not provided with a copy of the Respondent’s enforcement policy.

31. Given our decision to quash the improvement notice, we are satisfied that the Respondent should refund to the Applicant the tribunal fees of £320 which he has paid. Judge Robert Latham 23 December 2024

8 RIGHTS OF APPEAL

1. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written [NAME] for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The [NAME] for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the [NAME].

3. If the [NAME] is not made within the 28 day time limit, such [NAME] 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 [NAME] for permission to appeal to proceed despite not being within the time limit.

4. The [NAME] for permission to appeal must identify the decision of the Tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal, and state the result the party [NAME] the [NAME] is seeking.