Tribunal Quashes Suspended Improvement Notice Over Insufficient Evidence

OUTCOME: Allowed

FIRST-TIER TRIBUNAL

PROPERTY CHAMBER

(RESIDENTIAL PROPERTY)

Case Reference : CAM/22UG/HIV/2019/0001

P : PAPERREMOTE

Property : [ADDRESS], [NAME] [POSTCODE]

Applicant: [redacted]

Respondent : [redacted]

notice [HA 2004, ss.11, 12, 14, 15 & Sch 1 Pt 3]

Tribunal : Judge [NAME] of determination : 6th May 2020

DECISION

• Determination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 1–4

• Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 5–12

• Material statutory provisions and guidance . . . . . . . . . . . . . . . . . . . paras 13–21

• The evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 22–27

• Discussion and findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . paras 28 –36

1. This appeal is against the service on the applicant of a notice varying a suspended

improvement notice made by the respondent local authority, the variation notice

being dated 27th September 2019. The original suspended improvement notice

had been made on 6th November 2018. Although the application was not received

at the tribunal office until 24th December 2019 the tribunal was satisfied that the

appellant had a reasonable excuse and, by a directions order dated 23rd January

2020, allowed the appeal to proceed.

2. Although in the application form the appellant said at section 9 that he would not

be content with a paper determination he then went on at section 11 to say “I

hope this can be satisfactorily concluded without a hearing”. The case was

therefore listed for an inspection and hearing on 4th May 2020 but the Covid-19

pandemic then intervened, inspections and face-to-face hearings were halted, and

the tribunal wrote to the parties enquiring how they wished to proceed. Faced

with the option of a paper or telephone hearing or adjourning the case for

perhaps upwards of six months the parties both agreed that it be dealt with on

paper. The tribunal therefore proceeded on that basis.

3. The notice under appeal is in two parts, alleging both Category 1 and 2 hazards.

Served under section 11, it alleged a single Category 1 hazard, viz

Falling on Stairs, etc [HHSRS Hazard Class 21] Band C

The second part, served under section 12, was varied by removing one allegation,

leaving a single Category 2 hazard; viz

Damp & Mould Growth [Class 01] Band F

The allegation removed, an alleged Category 2 hazard of Falling between Levels

[Class 22], was instead made the subject of a Hazard Awareness Notice under

section 29. This was served on the same date.

4. For the reasons which follow the tribunal allows the appeal and directs that the

suspended improvement notice be quashed.

Background

5. In about June 2018 [NAME] [NAME], prospective tenants of a semi-detached

house with garage at [ADDRESS], [NAME], were applying for financial

assistance from the local housing authority under its Homefinder scheme. As

part of that scheme the local authority instructed [NAME], a Private Sector

Housing Officer, to conduct an inspection of the premises by reference to the

Housing Health and Safety Rating System under the Housing Act 2004. He was

given permission to inspect by [NAME] of [COMPANY], a letting agent

who held the keys and was involved in finding the prospective tenants. Although

the applicant states that the agent managing the property was [NAME],

which he had set up with his son, it would appear that Mr [NAME] had ostensible

authority to grant Mr [NAME] entry to the premises.

6. The local authority officer involved with the Homefinder scheme then received

a series of enquiries from Mr [NAME], asking whether Mr [NAME] report was

ready yet. Perhaps because they were anxious not to lose the tenancy [NAME]

[NAME] then decided to borrow the deposit from within their family and not to

proceed any further with their Homefinder application. However, rather like the

question-master in Mastermind, as [NAME] had started his report he decided

to continue with it.

7. The outcome was that he identified what he considered to be a number of

Category 1 and Category 2 hazards and, after some negotiation with the landlord,

an improvement notice was served upon him. However, as the tenants did not

consider that the matters alleged were hazards for them, and disagreed with the

proposed remedial works, the council decided to suspend the effect of the notice

until after their occupation of the premises had ceased.1

8. After further discussions in an attempt to avoid an appeal, proposals made by the

landlord about certain aspects of or alternatives to the proposed works, and a

request for a second opinion from another officer, [NAME] agreed to review

and vary the terms of the suspended improvement notice.

9. The council was and remains insistent that there is a single Category 1 hazard, viz

Falling on Stairs, but this is a collective assessment of three separate things :

a. No guarding to one side of the internal flight of stairs, with a maximum

fall distance of 2.2 metres and a minimum of 1.2 metres

b. Open guarding on both sides of a flight of four external steps from the rear

of the garage down to the patio level

c. A steep semi-circular flight of six steps from patio down to the rear garden

with no handrails to assist ascent and descent.

10. The notice requires that the lack of guarding be remedied by the installation of

boarding or vertical spindles with a gap between them of no more than 100mm,

and the installation of a handrail to one side of the patio retaining wall and a

second, freestanding railing close to it and to be used in conjunction with it on

the semi-circular steps. The tenants do not want guarding to the internal stairs,

as this not only makes it difficult to manoeuvre furniture and bulky objects but

might also create a sense of claustrophobia. So far as the steps down to the lawn

are concerned the appellant is content to provide one handrail against the wall,

but no more. The tenants do not want either, but certainly not a freestanding rail

which they regard as unattractive as well as unnecessary.

11. Although the council was originally concerned about falling between levels, and

wanted a low picket fence at the edge of the patio to be replaced by a barrier at

least 1100mm high, that has since been dropped and is now the subject-matter

of a Category 2 hazard awareness notice.

12. The sole Category 2 hazard named in the varied notice subject to appeal is the

hotly disputed issue of damp and mould growth. The appellant is insistent that

there is no mould, that some of the damp might be caused by a leaking pipe, and

that an old house will seasonally display signs of damp. Nevertheless, he has

taken the advice of a [NAME], investigated the leak, hacked back and

replaced plaster to an internal wall, inserted a chemical DPC to the front and rear

walls, installed additional air bricks and a french drain to keep the latter clear

from obstruction. Some or all of this work may have taken place after the

council’s re-inspection in July 2019.

Material statutory provisions and guidance

13. An improvement notice is one of the remedies available to a local authority under

Part 1 of the Housing Act 2004, which concerns housing conditions. By Part 1 the

old concepts of fitness for habitation are replaced by a new Housing Health &

1 As the tenants were occupying under a fixed term assured shorthold tenancy they were initially

alarmed that they would have to leave after its expiry, so works could be undertaken, but they

were reassured by the council that the suspension would continue so long as they remained in

occupation – which could be medium to long term

Safety Rating System. This is a system founded on the analysis of 29 specified

hazards, 51 types of potential harm (grouped in 4 classes ranging from extreme

to moderate, by severity of outcome), the likelihood of an occurrence that could

result in harm to a member of a vulnerable group within the next 12 months, and

the spread of possible outcomes resulting from it, expressed as a percentage for

each of the classes of harm – to which representative scale points are assigned.

Essentially mathematical, the result of these calculations for each identified

hazard produces a numerical score placing the hazard within one of a number of

bands, ranging from A to C (collectively Category 1) and D to J (collectively

Category 2).2

14. By section 3 a local housing authority must keep the housing conditions in their

area under review with a view to identifying any action that may need to be taken.

Section 4 states that if the authority consider, as a result of any matters of which

they have become aware in carrying out their duty under section 3, or for any

other reason, that it would be appropriate for any residential premises in their

district to be inspected with a view to determining whether any category 1 or 2

hazard exists on those premises, the authority must arrange for such an

inspection to be carried out.

15. Section 5(1) provides that if a local housing authority consider that a category 1

hazard exists on any residential premises, they must take the appropriate

enforcement action in relation to the hazard. Section 7(1), by contrast, provides

that if a local housing authority consider that a category 2 hazard exists on any

residential premises, they may take the appropriate enforcement action in

relation to the hazard.

16. Section 9 provides that :

(1) The appropriate national authority may give guidance to local housing

authorities about exercising –

(a) their functions under this Chapter in relation to the inspection of

premises and the assessment of hazards,

(b) their functions under Chapter 2 of this Part in relation to improvement

notices, prohibition orders or hazard awareness notices,

[etc.]

(2) A local housing authority must have regard to any guidance for the time being

given under this section.

17. To assist Environmental Health Officers in carrying out their duties under this

Part of the Act, and in making their HHSRS hazard assessments, the ODPM (now

the MHCLG) has published two documents providing Operating Guidance and

Enforcement Guidance.3

18. Sections 11 and 12 then respectively make provision for the taking of appropriate

enforcement action (which includes service of improvement notices) in the case

of Category 1 and Category 2 hazards. The material parts of section 8 provide

that :

(1) This section applies where a local housing authority decide to take one of the

2 Housing Health and Safety Rating System (England) Regulations 2005 [SI 2005/3208]

3 05 HMD 03485/A and 05 HMD 03485/B respectively

kinds of enforcement action mentioned in section 5(2) or 7(2) (“the relevant

action”).

(2) The authority must prepare a statement of the reasons for their decision to take

the relevant action.

(3) Those reasons must include the reasons why the authority decided

to take the relevant action rather than any other kind (or kinds) of

enforcement action available to them under the provisions mentioned in

section 5(2) or 7(2).

(4) A copy of the statement prepared under subsection (2) must

accompany every notice, copy of a notice, or copy of an order which is served

in accordance with-

(a) Part 1 of Schedule 1 to this Act (service of improvement notices etc),

(b) Part 1 of Schedule 2 to this Act (service of copies of prohibition orders

etc), or

(c) section 268 of the Housing Act 1985 (service of copies of demolition

orders),

in or in connection with the taking of the relevant action.

[emphasis added]

19. Section 14 states that an improvement notice may provide for the operation of the

notice to be suspended until a time, or the occurrence of an event, specified in the

notice. The time so specified may, in particular, be the time when a person of a

particular description begins, or ceases, to occupy any premises.

20. Section 17 goes on to provide, however, that :

(1) The local housing authority may at any time review an improvement notice

whose operation is suspended.

(2) The local housing authority must review an improvement notice whose

operation is suspended not later than one year after the date of service

of the notice and at subsequent intervals of not more than one year.

(3) Copies of the authority’s decision on a review under this section must be served

–

(a) on the person on whom the improvement notice was served, and

(b) on every other person on whom a copy of the notice was required to be

served.

[emphasis added]

21. Appeals are dealt with by section 15 and Part 3 of Schedule 1 to the Act, are by

means of a rehearing (i.e the evidence is looked at afresh, including matters not

known to the council at the time the notice was made) and the tribunal on appeal

may by order confirm, quash or vary the improvement notice.

The evidence

22. Pursuant to the directions issued by the tribunal each party prepared their own

bundle of documents. The respondent’s evidence comprises witness statements

by [RESPONDENT] and his superior officer, [NAME], although for some

reason the latter is treated as an exhibit to Mr [NAME] statement instead of

freestanding evidence. Mr [NAME] also exhibits a significant number of

documents, the original suspended improvement notice and that under appeal,

emails and other correspondence, and a letter/statement from Mrs [APPELLANT], the

tenant, objecting to some of the desired works of “improvement”.

23. Most importantly, as the tribunal has been unable to conduct an inspection, the

respondent’s bundle includes at pages [Resp 31, 34 & 35] colour photographs of

the alleged hazards. At [Resp 31] one can see the internal staircase. As shown on

the plan at [App 26], it ascends from within the ground floor rear room, adjacent

to the entrance to the kitchen. After several steps it turns 90º to the right and

continues up by the side wall next to the garage. On the wall side is a wooden

handrail fixed to the wall. On the room side there is a short newel post at the

turn in the stairs, but otherwise there is no guarding, leaving a triangular void up

to just below ceiling height. While the maximum height to this exposed side may

therefore be 2.2 metres, as claimed, it is unlikely that anyone could slip on the

stairs and fall over the edge until several steps further down, but what guarding

there is at first floor level (if any) is not known.

24. At [Resp 35] can be seen the set of four steps down from the garage to patio level.

On either side is a brick upstand comprising a line of bricks set vertically at each

step, so perhaps 200mm high, and a set of freestanding metal rails with an

upright by the top and bottom steps. The complaint is that there are no vertical

posts or spindles at 100mm intervals.

25. At [Resp 34] are the semi-circular steps descending from the patio. Behind the

low white picket fence along the edge of the patio can be seen, to the left and rear,

the short set of steps and handrails leading from the garage. The concrete patio

is supported by a rendered brick retaining wall, with the steps rising to meet it

between two small brick pillars, each about eight bricks high plus a capstone, or

about 700mm tall. The picket fence on either side is affixed to these pillars and,

although suggested in the council’s evidence that the fence is only about 200mm

high, that cannot be so. It is level with the base of each capstone, and beneath is

a small brick upstand. The council is correct, however, in saying that it does not

come anywhere close to the desired barrier height of 1100mm; high enough to

lean on but without toppling over.

26. At the left of the photograph can be seen a brick wall, being part of a redundant

barbeque at lawn level. The semi-circular steps are each two bricks high, plus the

thickness of a concrete slab and the mortar in which they are bedded; perhaps

170mm. The overall impression from the photograph is of a moderately steep set

of steps. The proposed safety improvement accepted by the appellant is to

remove the barbeque and fix a hand rail to the pillar and retaining wall on that

side of the steps. What he objects to (as do his tenants) is the need to erect a

second, freestanding rail on the steps so that a person ascending or descending

can reach a rail with each hand. This, they say, is unnecessary and would ruin the

look of the steps.

27. In his bundle the appellant, Mr [APPELLANT], produces his witness statement, a

summary of the “now” situation, a plan [App 26] showing the ground floor layout

and the areas of wall to which damp proofing measures were applied, various

technical articles on Protim moisture sensing meters, on damp in old buildings,

an email from his [NAME], and many very helpful photographs. These

include photographs of the damp course installation and repairs to the water

leak, and examples taken from public spaces (probably local authority controlled)

of handrails regarded as acceptable. None have vertical posts or balusters. They

include a set of handrails on the steps outside [NAME] [App42]

and those between beach and promenade at Frinton (Tendring DC) [App 43].

Each set has a central rail running parallel to the top rail. The [NAME] ones

also have a lower rail probably less than 100mm above ground level. At [App 44]

are photographs of the steps outside the National Gallery, in [ADDRESS].

In fairness, these steps are shallower, and divided into groups of four separated

by a wide landing space. There is one large rail near one side to assist the infirm,

but not two close to each other.

Discussion and findings

28. The tribunal has considered all the evidence placed before it, and in particular the

various photographs including those of the damp proofing works and the public

railings on potentially busy sets of steps.

29. Had it not been for the tenants applying for Homefinder assistance from the

council then Mr [NAME] would have had no legitimate reason to seek entry to

the premises under section 4 of the Act. When they abandoned their application

he had, however, carried out his inspection and decided to proceed with his

report. Lumping issues with three sets of steps or stairs together, a finding has

been made that there is a hazard (Falling on Stairs) which is so serious that Mr

[NAME] and Ms [NAME] place it in Category 1, which imposes a duty on the

council to do something about it. It is noteworthy, though, that :

a. The council gives no proper explanation for increasing the average level

of likelihood of risk that is found in the guidance from 1 in 218 to 1 in 32;

and

b. Section 28 provides that a hazard awareness notice is a legitimate course

of action to be taken in respect of a Category 1 hazard.

30. The tribunal cannot be satisfied with the level of assessed likelihood, which has

a dramatic effect on the final scoring. This is particularly so with the two sets of

external steps. Those from the garage have a handrail each side, at a sensible

height, and the brick upstands at each side prevent a foot from slipping sideways

off a wet step. Further, there are only four steps.

31. As for the semi-circular steps, the tribunal cannot understand why the council

insists upon two sets of railings instead of the one by the retaining wall suggested

by the appellant. The tribunal is familiar with busy public spaces where flights

of steps have either one set of handrails or multiple ones set so far apart that one

cannot reach both at the same time, which is what is sought here. One need look

no further than busy railway station steps at Waterloo, [ADDRESS], etc to see

that handrails are quite wide distances apart and only one can be used at a time.

32. As for the internal stairs, there is a triangular gap and a risk that someone might

slip on the carpeted treads, but there is also a handrail easily reached on the other

side. Infilling this gap with spindles, as suggested, would restrict the ability to get

furniture and large, awkward items such as a mattress up and down stairs and be

claustrophobic in effect. If something is required then an easily demountable

glass or perspex screen screwed to the outside edges of the timber surround

might be preferable, but that is a matter for the landlord and perhaps the tenants.

There are no young children here to be concerned about.

33. As for the sole Category 2 hazard now relied upon, the tribunal is satisfied that

the appellant has taken proper advice on the potential sources of the damp

problem and has acted upon it. This may have occurred, or been completed, after

the council’s second inspection in July 2019 but it is a factor that the tribunal is

entitled to take into account.

34. The tribunal also bears in mind the following matters :

a. The appellant is an experienced landlord and been involved in [NAME] and also in [NAME]

b. He prefers medium to long-term tenants, and the current tenants are wellregarded

and anxious to stay for the foreseeable future, as the premises

are convenient for the hospital – where Mrs [NAME] appears to work

c. The council has taken the tenants’ interests into account by suspending

the operation of the improvement notice until after they move out

d. Section 17 states that the local housing authority must review an

improvement notice whose operation is suspended not later than one year

after the date of service of the notice and at subsequent intervals of not

more than one year

e. Both landlord and tenants seek finality; not to have this resurrected every

year.

35. The tribunal is satisfied that the works proposed by the appellant to the semicircular

steps are adequate, and should have been accepted. He acted promptly

on the previous issues of the low first floor windows and the cat flap, and has

sought to engage constructively with the council at every turn.

36. The making of an improvement notice, even a suspended one, was not necessary

and the same is therefore quashed.

Dated 6th May 2020

[NAME]

First-tier Tribunal Judge