Tribunal Upholds Prohibition Order Against Sleeping Room Due to Safety Hazards

OUTCOME: Dismissed

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FIRST – TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

Case Reference : CAM/38UC/HPO/2023/0003

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

Applicant: [redacted]

Respondent : [redacted] environmental health officer) and [NAME] (principal lead officer for the residential regulation team and environmental health officer)

[NAME] : Appeal against a suspended prohibition order Sections 20-23 of, and paragraph 7(1) of Schedule 2 to, the Housing Act 2004

Tribunal Members : Judge Stephen Reeder Valuer Member [NAME] of Hearing : 7 August 2024

Date of Decision : 7 August 2024

__________________________________________________________________________________

DECISION __________________________________________________________________________________

© CROWN COPYRIGHT

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DECISION

1. The tribunal confirms the prohibition order dated 8 March 2023 pursuant to paragraph 11(3) in Part 3 of Schedule 2 to the 2004 Act.

2. No party costs order is made pursuant to section 29(2) of the Tribunals, Courts and Enforcement Act 2007 and Rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal)([NAME]) Rules 2013. No order is made for reimbursement of the [NAME] or hearing fees paid by the applicant.

REASONS

The [NAME], parties and issues for determination

3. This is an appeal against a suspended prohibition order dated 8 March 2023 made pursuant to section 21 of the Housing Act 2004 by [NAME] (‘the respondent’) in respect of the second (top) floor front (road facing) room at [ADDRESS], [NAME] [POSTCODE]. [APPELLANT] (‘the applicant’) is the joint freehold owner of that property.

4. The prohibition order dated 8 March 2023 prohibits the second-floor front bedroom at [ADDRESS], [NAME] [POSTCODE] from being used as sleeping accommodation. Schedule 1 to the notice identifies a category 2 hazard, being ‘hazard no26 : collision and entrapment’. That category is stated to include –

Risks of physical injury from : (a) trapping body parts in architectural features, such as trapping limbs or fingers in doors or windows, and (b) striking (colliding with) objects such as architectural glazing, windows, doors, low ceilings and walls.

The deficiencies giving rise to the hazard are particularised as “the awkward shape of the second-floor front bedroom coupled with low pitches and corners, (which) gives low head room for much of the room and significantly increases the likelihood of collision requiring medical attention”.

5. The operation of the order was suspended until 1 September 2023 or when the then current occupier vacated whichever was the sooner.

6. The statement of reasons for taking enforcement action dated 8 March 2023 states, inter alia –

“It is considered that the most suitable course of action is to serve a Prohibition Order to prevent the second-floor front bedroom from being occupied as sleeping accommodation. The awkward shape of the second-floor front bedroom coupled with low pitches and corners, giving low head room for much of the room significantly increases the likelihood of collision. The likelihood of a collision requiring medical attention is therefore greater than average. The property is rented as an HMO to adults so the room will be occupied by an adult for the next 12 months who are in a vulnerable age group for this hazard (over 16).

It is appropriate to suspend the Prohibition Order because it is not the intention to result in the occupant becoming homeless or being placed into temporary accommodation ; it will allow the occupant sufficient opportunity to find alternative accommodation and the circumstances were not that exceptional as to

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warrant a Prohibition Order having immediate or short term effect. Therefore, the most appropriate action is to be suspend the Prohibition Order and to review the order in 6 months’ time.

The significant nature of the hazard and the risk they pose to occupiers of the property does not warrant the service of a Hazard Awareness Notice ; not requiring remedial action in this instance would not be appropriate.

The nature of the hazard of collision and entrapment does not warrant the service of an Improvement Notice. Remedial works to change the current layout of the room in order to make it suitable for the current number of occupants would not be possible due to the location and layout of the room”.

7. The applicant has filed grounds of the appeal in the following terms -

“Subjective assessment

The claim that there is an ‘above average’ risk of harm related to sloping ceilings on the roadside loft room is a surprising statement and it comes to use without any substantiation or justification that references actual dimensions of the property or detailed layout of the room. This is a subjective assessment which others would deem to be unreasonable, various expert third parties connected with this property (including [NAME], architects, letting agents) have all expressed surprise at the subjective and eccentric nature of this order. Moreover, the [NAME] have previously visited this property and did not raise this as an issue either.

The prohibition order came to us after we had requested the [NAME] to revisit because on a previous visit they had assessed the room to be very marginally undersized, this is the problem we were looking to resolve by inviting them to return and re-measure. If they had determined that it was undersized we would have been able to take remedial action. Some ambiguity meant that we contested the [NAME]’s measurements, so asked them to return to measure a second time. It was during the second visit that they made this subjective assessment about this previously unmentioned issue. We are puzzled that this wasn’t noted on previous visits, nor was it mentioned by building control. The [NAME] comment simply that “there is low head room for much of the room”, this assertion is subjective and makes no mention of dimensions in the room in which height is restricted – we refute this subjective claim. The [NAME] have not made reference to actual measurements and dimensions and made unfounded and subjective assertions.

Remedial action is possible

If it is determined that the room is in fact undersized, then a prohibition order is not the best way to resolve this situation because remedial works can be easily taken, an improvement notice would have been more appropriate.

We are puzzled that [NAME] alleges that remedial action “would not be possible”, this is an unfounded, subjective statement. In fact the room includes an en-suite with generous dimensions – if necessary the en-suite can be destroyed so that the dimensions of the room would be significantly enhanced. We consider that it would be disappointing to remove private washing facilities from a tenant, but it is at the discretion of the [NAME] to request this action which will remove utility from tenants and mean there is one fewer room available in a city beset by chronic issues of housing shortage.

The context of this is that the [NAME] measured the dimensions of a hard to measure room to be undersized. Their measurements conflict with ours, so we invited them back to re-measure. The most appropriate action would have been for them to advise us of the dimensions so that we could take remedial action is needed, as it is, we haven’t received any indication of their confirmation of measurements and were instead surprised to receive this notice.

In summary, the statements made by the [NAME] on their second visit are unfounded, unsubstantiated and subjective – it isn’t certain that other inspectors would uphold this view, particularly noting that on prior HMO inspections no hazard was identified. Additionally, the prohibition order isn’t reasonable or appropriate as we have sufficient leeway to remedy the problem if it is indeed determined that the room is undersized.

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We hereby appeal that this prohibition notice is revoked”.

8. Judge Wayte made a directions order on 9 February 2024. That order directed the respondent to send to the applicant copies of the calculations used to calculate the hazards and to provide its evidence by a bundle of relevant documents and particularised the necessary contents. That order directed the applicant to respond to that evidence and to provide his evidence by a bundle of relevant documents and particularised the necessary contents. That order provided an annexe which gave guidance on the content of those documents bundles. That order gave permission for the respondent to file a brief reply to the issues raised in any expanded grounds of appeal or other evidence filed by the applicant. That order made directions in respect of any expert evidence. No party has made an [NAME] to rely on any expert evidence pursuant to that order. The covering letter to that order stated that the named interested party, Mr [NAME], had not been joined as a party as it did not appear to be necessary. It invited either party to make representations requesting such joinder by 23 February 2024. No such request has been made.

9. Judge Wayte’s order made on 9 February 2024 helpfully identified for the parties that the issues the tribunal would consider would include –

(a) Has the respondent gone through the necessary steps prior to issue of the prohibition order? (b) Do hazards exist and, if so, of what category? (c) Should the respondent have taken enforcement action? (d) If so, what enforcement action is appropriate and is it the case (as alleged by the applicant) that serving an improvement notice would be the best course of action in relation to any relevant hazard(s)? (e) If a prohibition order is the correct action, do the contents of the order comply with sections 22 and 44 of the Act? (f) Should the tribunal confirm, quash or vary the prohibition order and/or should the prohibition order be suspended for any reason, in accordance with sections 23 and 45 of the Act?

10. This appeal is heard by the tribunal by way of a re-hearing and may be determined having regard to matters of which the first respondent authority were unaware, in accordance with paragraphs 11(2)(a),(b) in Part 3 of Schedule 2 to the 2004 Act.

11. The tribunal may by order confirm, quash or vary the prohibition order pursuant to paragraph 11(3) in Part 3 of Schedule 2 to the 2004 Act.

12. The relevant law is set out at Annex 1 to this Decision.

The inspection

13. Judge Wayte’s order made on 9 February 2024 directed an inspection of the property on the morning of the hearing day subject to the permission to the occupier(s). The tribunal has carried out that inspection. We have been accompanied by [APPELLANT] on behalf of the applicant. We have been accompanied by [APPELLANT] and [APPELLANT] on behalf of the respondent council. The house has been let to student accommodation. We inspected outside of term time at the immediate end of the academic year. The house appeared to be vacant. There were builder’s materials on-site.

14. [ADDRESS], [NAME] [POSTCODE] is a linked detached house with 2 rooms, kitchen and conservatory to the ground floor, 3 rooms and a separate bathroom on the first floor, and two rooms with en-suite shower rooms to the second (top) floor.

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15. The prohibition order and resulting appeal relates to the second (top) floor front (road facing) room. This room is built into the roof space. Visual inspection through the two velux roof windows showed the external roof line follows the internal ceiling line with little depth between the two.

16. The ceiling line to the room provides a vaulted shape. A bed was situated in the central vault. The left-hand vault as you enter had a chest of drawers in it on inspection (and has a small desk and chair in it on the photograph in the documents bundle). The right-hand vault as you enter had a small clothes rail in it. It was only possible to stand upright to full height in the centre of the middle vault or external wall ends of the sides vaults or in the small space as you immediately enter the room. It was not possible to walk between the vaults without ‘ducking’ to avoid the ceiling.

17. The room includes a small en-suite shower room immediately to the right as you enter. It has a regular rectangle shape with full ceiling height.

The hearing, argument and evidence

18. The hearing was convened as an in person attended hearing in a conference room at a local hotel

19. The applicant did not attend. We were told that he was abroad on business. The applicant has been represented by [APPELLANT] (architect designer).

20. The respondent has been represented by [RESPONDENT] (area manager and environmental health officer) and [NAME] (principal lead officer for the residential regulation team and environmental health officer).

21. In pre-hearing correspondence, the applicant has requested to amend the name of the applicant from his own name to that of ‘[APPELLANT] which he states is now being used ‘to manage the properties’ and to ensure his family’s privacy. No documentary details are provided for that entity. The [NAME] was made by [APPELLANT] in his own name and in the stated capacity of landlord. The tribunal hearing and decision will relate to the relevant proceedings and property only. There is no material intrusion on [NAME] privacy. The tribunal determined that the request to substitute [COMPANY] was refused as a preliminary at the outset of the hearing. [NAME] did not seek to pursue the issue further and was content to proceed with the hearing.

22. The tribunal has had the benefit of an indexed hearing bundle including all relevant documents. The tribunal has read the documentary evidence with care, and a number of those documents have been referred to by one or both of the parties and so further read and considered during the hearing. In addition the applicant has provided a two page ‘expanded statement of reasons for the appeal’.

23. Photos of the exterior of [ADDRESS] [113] and the interior of the second-floor front room [114,115], together with the external roof plan [153] and internal room plan [153] are in the documents bundle filed. The hazard scoring calculated from the respondent’s inspection on 21 February 2023 is in that bundle [97] the relates floor plan with agreed measurements is in that bundle [95].

24. Consideration of the documents confirms that the respondent correctly completed the necessary steps prior to the issue of the prohibition order. This is not disputed.

25. Consideration of the documents confirms that the identified category D hazard (‘collision and entrapment’). This is not disputed.

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26. Consideration of the documents confirms that the respondent was and is correct to have taken enforcement action as the room was let as a bedroom to an adult in the [COMPANY] (over 16 years) as part of a HMO. This does not appear to be disputed.

27. The contents of the prohibition order comply with sections 22 and 44 of the Act. This is not disputed.

28. The issue on the appeal is whether the service of a prohibition order is the correct and appropriate action. The applicant argues that serving an improvement notice, rather than prohibition order was and is the best course of action in relation to the identified hazard.

29. The applicant argues in his grounds that the hazard assessment and conclusion that there is an above average risk of harm is flawed the ground that it is ‘subjective’ and is without any substantiation or justification that references actual dimensions or detailed layout of the room. He further argues that it is an assessment which “others would deem to be unreasonable [as] various expert third parties connected with this property (including [NAME], architects, letting agents) have all expressed surprise at the subjective and eccentric nature of this order. Moreover, the [NAME] have previously visited this property and did not raise this as an issue either.”

30. The applicant argues in his grounds that the identified hazard can be eliminated or sufficiently mitigated by remedial works. This issue was developed during the hearing.

31. [APPELLANT] stated that the applicant acknowledged the issue with low head room and the risk of collision. He further stated that works to change the roof line would not be practical and would be unlikely to receive planning consent and would be very expensive. No such works were proposed as an intended improvement. He argued that the hazard could be eliminated or mitigated by using the room space as it is now subject to remedial works which might be proposed. It was not clear from him whether such remedial works were actually proposed by the applicant. Mr [APPELLANT] appeared to have a paucity of clear instructions from the applicant. He had not been provided with many of the material documents by the applicant. The tribunal was therefore careful to ensure that relevant documents were shared and/or read during the hearing to support him to represent the applicant’s interests. The tribunal has proceeded on the basis that the applicant does propose the ‘shaping’ and ‘padding’ works and also the ‘en-suite removal’ works which are raised in the ‘expanded statement of the reason for the appeal’ document.

32. [APPELLANT] in behalf of the applicant argued that the shaping of the corner radius to the ceiling to eliminate sharp corners would eliminate or mitigate the identified hazard as it would ‘soften the blow’ of any collision. [RESPONDENT] on behalf of the respondent council argued that such works would not eliminate the hazard or sufficiently mitigate a collision requiring medical attention.

33. [NAME] argued that the padding (using rubber or other soft materials) of the corner radius to the ceiling to eliminate sharp corners would eliminate or mitigate the identified hazard as it would absorb impact and so ‘soften’ the blow of any collision. Again, [NAME] argued that such works would not eliminate the hazard or sufficiently mitigate a collision requiring medical attention.

34. [NAME] argued that the reduction in size of the existing en-suite by half of its area to provide an additional area providing full ceiling height into the room would eliminate or mitigate the identified hazard by providing an additional area with full ceiling height. [NAME] argued that

35. [NAME] [NAME] argued that the elimination or material mitigation of the identified hazard down to the average could only be achieved by changing the ceiling line to change the vaulted shape and raise the head height and clearance. She argued that this would necessitate changing the roof line which would require planning permission and vacant possession of the room.

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36. The respondent’s statement of reasons for opposing the appeal [63] record that the [NAME] permission granted for the second-floor front room was for use as a storeroom and not as an occupied bedroom [65]. This is confirmed by the loft floor plan [153] which clearly identifies the intended use as “storeroom”. During the hearing [NAME] stated that his understanding was that [NAME] permission had been given for use as a bedroom within the last 1-2 months. He could not provide any supporting documentation. The tribunal allowed a short adjournment for [NAME] and [NAME] to contact their office and have the records checked to confirm any such permissions. They were able to confirm that a planning [NAME] had been received in respect of [ADDRESS] in May 2024 and that the [NAME] has been approved on 22 July 2024. The tribunal required a verbatim description of the approved works which was read during the reconvened hearing. The works comprise removal of a chimney to the existing roof, retrospective replacement of a dome to the rear. They do not include works to the second-floor front room or permission to use it as a bedroom. [NAME] then asserted that as the submitted plan and description referred to the second-floor front room as ‘bedroom 6’, the [NAME] given gave implied permission to use it as a bedroom. The tribunal rejects that argument. The scope of the works on the 22 July 2024 [NAME] is clear. It does not relate to the second-floor front room and does not provide permission to use it as a bedroom.

Discussion and determinations

37. The prohibition order dated 8 March 2023 clearly identifies the hazard as collision and entrapment causing a risk to injury from striking low ceilings and walls. The deficiencies are clearly particularised as “the awkward shape of the second-floor front bedroom coupled with low pitches and corners, (which) gives low head room for much of the room and significantly increases the likelihood of collision requiring medical attention”.

38. The hazard scoring calculated from the respondent’s inspection on 21 February 2023 provides a clear justification stating “areas or points of low head room are collision hazards. The shape of the second-floor front bedroom is very awkward. The pitches of the dormer significantly reduce the useable floor space, which has been measured to be 6.38m2. The floor space available is narrow and has several low pitches and corners giving low head room for much of the room. The likelihood of a collision requiring medical attention is therefore greater than the average”.

39. The related floor plan with measurements confirms the usable floor calculation and is confirmed to be agreed between the parties.

40. This is a case where the physical inspection of the room by the tribunal has been of great assistance. The size, arrangement and safely usable space in the room is clear. The ceiling line provides a vaulted shape. The external roof line follows the internal ceiling line with little depth between the two. The central vault is the only area with sufficient length or width for a bed. The pitches to the dormer on either side of the central vault restrict the head room so that an average size adult cannot stand vertically. The left-hand vault and right-hand vault each provide a straight external wall for small items of furniture to be placed against (a small chest of drawers and clothes rail was seen on inspection, and a small desk and chair are shown on the photograph in the documents bundle). Such furnishings inevitably sit on floor space with full ceiling height above and so restrict the space in which an average size adult cannot stand vertically. It was only possible to stand upright to full height in the centre of the central vault, to the external wall end of each side vault (subject to furnishings) or in the small space as you immediately enter the room. It was not possible to walk between the vaults without ‘ducking’ to avoid the ceiling.

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41. The tribunal determines that the shaping of the corner radius to the ceiling to eliminate sharp corners would not eliminate the identified hazard or mitigate it to the extent that it could be reasonably described as causing an average risk of relevant injury.

42. The tribunal determines that the padding of the corner radius to the ceiling to eliminate sharp corners would not eliminate the identified hazard or mitigate it to the extent that it could be reasonably described as causing an average risk of relevant injury. It may further exacerbate the hazard by reducing the already low head room and increasing the protruding ceiling pitches.

43. The tribunal determines that the reduction in size of the existing en-suite bedroom by half of its existing area to provide an additional area providing full ceiling height into the room would not eliminate the identified hazard or mitigate it to the extent that it could be reasonably described as causing an average risk of relevant injury. The additional area would be to the immediate right of the entry doorway and would not provide any sufficient area of full ceiling height to enable a change in use of the layout of the room. The additional area would not be wide enough to accommodate the sleeping area and bed. The room floor plan with measurements [95] was carefully considered on this issue in conjunction with the direct observations on the inspection of the room by the tribunal prior to the hearing.

Decision

44. The tribunal confirms the prohibition order pursuant to paragraph 11(3) in Part 3 of Schedule 2 to the 2004 Act.

Costs

45. Having regard to the outcome and circumstances of the [NAME] no order is made for the reimbursement of the [NAME] or hearing fees paid by the applicant.

46. No party has made any [NAME] in relation to costs. In considering whether to exercise its power to award costs the tribunal have careful regard to section 29(2) of the Tribunals, Courts and Enforcement Act 2007 and Rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal)([NAME]) Rules 2013 read against the overriding objective in Rule 3 of the 2013 Rules. The tribunal is mindful of the guidance given by the Chamber President and Deputy President in [ADDRESS] [COMPANY] v [NAME], [NAME] v [NAME], [NAME] v [NAME] Rd Management [COMPANY] [2016] UKUT 0290 (LC). The tribunal has in any event considered whether any party has acted unreasonably in bringing, defending or conducting the proceedings and concluded not. No party costs order is made.

Stephen Reeder Judge of the First Tier Tribunal, [NAME]

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ANNEX 1 : THE LEGISLATIVE PROVISIONS

The Housing Act 2004 addresses the enforcement of housing standards and the relevant provisions are set out below.

Enforcement of housing standards

Section 5 : Category 1 hazards: general duty to take enforcement action

(1) 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. (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) [NAME] a prohibition order under section 20; (c) serving a hazard awareness notice under section 28; (d) taking emergency remedial action under section 40; (e) [NAME] an emergency prohibition order under section 43; (f) [NAME] a demolition order under subsection (1) or (2) of section 265 of the Housing Act 1985 (c. 68); (g) declaring the area in which the premises concerned are situated to be a clearance area by virtue of section 289(2) of that Act. (3) If only one course of action within subsection (2) is availble to the authority in relation to the hazard, they must take that course of action. (4) If two or more courses of action within subsection (2) are available to the authority in relation to the hazard, they must take the course of action which they consider to be the most appropriate of those available to them. (5) The taking by the authority of a course of action within subsection (2) does not prevent subsection (1) from requiring them to take in relation to the same hazard— (a) either the same course of action again or another such course of action, if they consider that the action taken by them so far has not proved satisfactory, or (b) another such course of action, where the first course of action is that mentioned in subsection (2)(g) and their eventual decision under section 289(2F) of the Housing Act 1985 means that the premises concerned are not to be included in a clearance area. (6) To determine whether a course of action mentioned in any of paragraphs (a) to (g) of subsection (2) is “available” to the authority in relation to the hazard, see the provision mentioned in that paragraph. (7) Section 6 applies for the purposes of this section.

Section 6 Category 1 hazards: how duty under section 5 operates in certain cases

(1) This section explains the effect of provisions contained in subsection (2) of section 5. (2) In the case of paragraph (b) or (f) of that subsection, the reference to [NAME] an order such as is mentioned in that paragraph is to be read as a reference to [NAME] instead a determination under section 300(1) or (2) of the Housing Act 1985 (c. 68) (power to purchase for temporary housing use) in a case where the authority consider the latter course of action to be the better alternative in the circumstances.

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(3) In the case of paragraph (d) of that subsection, the authority may regard the taking of emergency remedial action under section 40 followed by the service of an improvement notice under section 11 as a single course of action. (4) In the case of paragraph (e) of that subsection, the authority may regard the [NAME] of an emergency prohibition order under section 43 followed by the service of a prohibition order under section 20 as a single course of action. (5) In the case of paragraph (g) of that subsection— (a) any duty to take the course of action mentioned in that paragraph is subject to the operation of subsections (2B) to (4) and (5B) of section 289 of the Housing Act 1985 (procedural and other restrictions relating to slum clearance declarations); and (b) that paragraph does not apply in a case where the authority have already declared the area in which the premises concerned are situated to be a clearance area in accordance with section 289.

Section 7 Category 2 hazards: powers to take enforcement action

(1) The provisions mentioned in subsection (2) confer power on a local housing authority to take particular kinds of enforcement action in cases where they consider that a category 2 hazard exists on residential premises. (2) The provisions are— (a) section 12 (power to serve an improvement notice), (b) section 21 (power to make a prohibition order), (c) section 29 (power to serve a hazard awareness notice), (d) section 265(3) and (4) of the Housing Act 1985 (power to make a demolition order), and (e) section 289(2ZB) of that Act (power to make a slum clearance declaration). (3) The taking by the authority of one of those kinds of enforcement action in relation to a particular category 2 hazard does not prevent them from taking either— (a) the same kind of action again, or (b) a different kind of enforcement action, in relation to the hazard, where they consider that the action taken by them so far has not proved satisfactory.

Section 8 Reasons for decision to take enforcement action

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

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(5) In subsection (4)— (a) the reference to Part 1 of Schedule 1 to this Act includes a reference to that Part as applied by section 28(7) or 29(7) (hazard awareness notices) or to section 40(7) (emergency remedial action); and (b) the reference to Part 1 of Schedule 2 to this Act includes a reference to that Part as applied by section 43(4) (emergency prohibition orders). (6) If the relevant action consists of declaring an area to be a clearance area, the statement prepared under subsection (2) must be published— (a) as soon as possible after the relevant resolution is passed under section 289 of the Housing Act 1985, and (b) in such manner as the authority consider appropriate.

Section 9 Guidance about inspections and enforcement action

(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, (c) their functions under Chapter 3 in relation to emergency remedial action and emergency prohibition orders, or (d) their functions under Part 9 of the Housing Act 1985 (c. 68) in relation to demolition orders and slum clearance. (2) A local housing authority must have regard to any guidance for the time being given under this section. (3) The appropriate national authority may give different guidance for different cases or descriptions of case or different purposes (including different guidance to different descriptions of local housing authority or to local housing authorities in different areas). (4) Before giving guidance under this section, or revising guidance already given, the Secretary of State must lay a draft of the proposed guidance or alterations before each House of Parliament. (5) The Secretary of State must not give or revise the guidance before the end of the period of 40 days beginning with the day on which the draft is laid before each House of Parliament (or, if copies are laid before each House of Parliament on different days, the later of those days). (6) The Secretary of State must not proceed with the proposed guidance or alterations if, within the period of 40 days mentioned in subsection (5), either House resolves that the guidance or alterations be withdrawn. (7) Subsection (6) is without prejudice to the possibility of laying a further draft of the guidance or alterations before each House of Parliament. (8) In calculating the period of 40 days mentioned in subsection (5), no account is to be taken of any time during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than four days.

Section 10 Consultation with fire and rescue authorities in certain cases

(1) This section applies where a local housing authority— (a) are satisfied that a prescribed fire hazard exists in an HMO or in any common parts of a building containing one or more flats, and

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(b) intend to take in relation to the hazard one of the kinds of enforcement action mentioned in section 5(2) or section 7(2). (2) Before taking the enforcement action in question, the authority must consult the fire and rescue authority for the area in which the HMO or building is situated. (3) In the case of any proposed emergency measures, the authority’s duty under subsection (2) is a duty to consult that fire and rescue authority so far as it is practicable to do so before taking those measures. (4) In this section— • “emergency measures” means emergency remedial action under section 40 or an emergency prohibition order under section 43; • “fire and rescue authority” means a fire and rescue authority under the Fire and Rescue Services Act 2004 (c. 21); • “prescribed fire hazard” means a category 1 or 2 hazard which is prescribed as a fire hazard for the purposes of this section by regulations under section 2.

Prohibition orders Section 20 Prohibition orders relating to category 1 hazards: duty of authority to make order (1 )If— (a) the local housing authority are satisfied that a category 1 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, [NAME] a prohibition order under this section in respect of the hazard is a course of action available to the authority in relation to the hazard for the purposes of section 5 (category 1 hazards: general duty to take enforcement action). (2) A prohibition order under this section is an order imposing such prohibition or prohibitions on the use of any premises as is or are specified in the order in accordance with subsections (3) and (4) and section 22. (3) The order may prohibit use of the following premises— (a) if the residential premises on which the hazard exists are a dwelling or HMO which is not a flat, it may prohibit use of the dwelling or HMO; (b) if those premises are one or more flats, it may prohibit use of 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 prohibit use of the building (or any part of the building) or any external common parts. Paragraphs (b) and (c) are subject to subsection (4). (4) The notice may not, by virtue of subsection (3)(b) or (c), prohibit use of 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 are satisfied— (a) that the deficiency from which the hazard arises is situated there, and (b) that it is necessary for such use to be prohibited in order to protect the health or safety of any actual or potential occupiers of one or more of the flats. (5) A prohibition order under this section may relate to more than one category 1 hazard on the same premises or in the same building containing one or more flats. (6) The operation of a prohibition order under this section may be suspended in accordance with section 23.

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Section 21 Prohibition orders relating to category 2 hazards: power of authority to make order

(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 make a prohibition order under this section in respect of the hazard. (2) A prohibition order under this section is an order imposing such prohibition or prohibitions on the use of any premises as is or are specified in the order in accordance with subsection (3) and section 22. (3) Subsections (3) and (4) of section 20 apply to a prohibition order under this section as they apply to one under that section. (4) A prohibition order 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. (5) A prohibition order under this section may be combined in one document with an order under section 20 where they impose prohibitions on the use of the same premises or on the use of premises in the same building containing one or more flats. (6) The operation of a prohibition order under this section may be suspended in accordance with section 23.

Section 22 Contents of prohibition orders

(1) A prohibition order under section 20 or 21 must comply with the following provisions of this section. (2) The order must specify, in relation to the hazard (or each of the hazards) to which it relates— (a) whether the order is made under section 20 or 21, (b) the nature of the hazard concerned and the residential premises on which it exists, (c) the deficiency giving rise to the hazard, (d) the premises in relation to which prohibitions are imposed by the order (see subsections (3) and (4)), and (e) any remedial action which the authority consider would, if taken in relation to the hazard, result in their revoking the order under section 25. (3) The order may impose such prohibition or prohibitions on the use of any premises as— (a) comply with section 20(3) and (4), and (b) the local housing authority consider appropriate in view of the hazard or hazards in respect of which the order is made. (4) Any such prohibition may prohibit use of any specified premises, or of any part of those premises, either— (a) for all purposes, or (b) for any particular purpose, except (in either case) to the extent to which any use of the premises or part is approved by the authority. (5) A prohibition imposed by virtue of subsection (4)(b) may, in particular, relate to— (a) occupation of the premises or part by more than a particular number of households or persons; or (b) occupation of the premises or part by particular descriptions of persons.

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(6) The order must also contain information about— (a) the right under Part 3 of Schedule 2 to appeal against the order, and (b) the period within which an appeal may be made, and specify the date on which the order is made. (7) [NAME] of the authority for the purposes of subsection (4) must not be unreasonably withheld. (8) If the authority do refuse to give any such [NAME], they must notify [NAME] of— (a) their decision, (b) the reasons for it and the date on which it was made, (c) the right to appeal against the decision under subsection (9), and (d) the period within which an appeal may be made, within the period of seven days beginning with the day on which the decision was made. (9) [NAME] may appeal to the appropriate tribunal against the decision within the period of 28 days beginning with the date specified in the notice as the date on which it was made. (10) In this Part of this Act “specified premises”, in relation to a prohibition order, means premises specified in the order, in accordance with subsection (2)(d), as premises in relation to which prohibitions are imposed by the order.

Section 23 Suspension of prohibition orders

(1) A prohibition order may provide for the operation of the order to be suspended until a time, or the occurrence of an event, specified in the order. (2) The time so specified may, in particular, be the time when a person of a particular description begins, or ceases, to occupy any premises. (3) The event so specified may, in particular, be a notified breach of an undertaking accepted by the local housing authority for the purposes of this section from a person on whom a copy of the order is served. (4) In subsection (3) a “notified breach”, in relation to such an undertaking, means an act or omission by such a person— (a) which the local housing authority consider to be a breach of the undertaking, and (b) which is notified to that person in accordance with the terms of the undertaking.

Section 24 Operation of prohibition orders

(1) This section deals with the time when a prohibition order becomes operative. (2) The general rule is that a prohibition order becomes operative at the end of the period of 28 days beginning with the date specified in the notice as the date on which it is made. (3) The general rule is subject to subsection (4) (suspended orders) and subsection (5) (appeals). (4) If the order is suspended under section 23, the order becomes operative at the time when the suspension ends. This is subject to subsection (5). (5) If an appeal is brought against the order under Part 3 of Schedule 2, the order does not become operative until such time (if any) as is the operative time for the purposes of this subsection under paragraph 14 of that Schedule (time when order is confirmed on appeal, period for further appeal expires or suspension ends).

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(6) If no appeal against a prohibition order is made under that Part of that Schedule within the period for appealing against it, the order is final and conclusive as to matters which could have been raised on an appeal. (7) Sections 584A and 584B of the Housing Act 1985 (c. 68) provide for the payment of compensation where certain prohibition orders become operative, and for the repayment of such compensation in certain circumstances.

Section 25 Revocation and variation of prohibition orders

(1) The local housing authority must revoke a prohibition order if at any time they are satisfied that the hazard in respect of which the order was made does not then exist on the residential premises specified in the order in accordance with section 22(2)(b). (2) The local housing authority may revoke a prohibition order if— (a) in the case of an order made under section 20, they consider that there are any special circumstances [NAME] it appropriate to revoke the order; or (b) in the case of an order made under section 21, they consider that it is appropriate to do so. (3) Where a prohibition order relates to a number of hazards— (a) subsection (1) is to be read as [NAME] separately in relation to each of those hazards, and (b) if, as a result, the authority are required to revoke only part of the order, they may vary the remainder as they consider appropriate. (4) The local housing authority may vary a prohibition order— (a) with the agreement of every person on whom copies of the notice were required to be served under Part 1 of Schedule 2, or (b) in the case of an order whose operation is suspended, so as to alter the time or events by reference to which the suspension is to come to an end. (5) A revocation under this section comes into force at the time when it is made. (6) If it is made with the agreement of every person within subsection (4)(a), a variation under this section comes into force at the time when it is made. (7) Otherwise a variation under this section does not come into force until such time (if any) as is the operative time for the purposes of this subsection under paragraph 15 of Schedule 2 (time when period for appealing expires without an appeal being made or when decision to revoke or vary is confirmed on appeal). (8) The power to revoke or vary a prohibition order under this section is exercisable by the authority either— (a) on an [NAME] made by a person on whom a copy of the order was required to be served under Part 1 of Schedule 2, or (b) on the authority’s own initiative.

Section 26 Review of suspended prohibition orders

(1) The local housing authority may at any time review a prohibition order whose operation is suspended. (2) The local housing authority must review a prohibition order whose operation is suspended not later than one year after the date on which the order was made 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 on every person on whom a copy of the order was required to be served under Part 1 of Schedule 2.

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Section 27 Service of copies of prohibition orders etc. and related appeals

Schedule 2 (which deals with the service of copies of prohibition orders, and notices relating to their revocation or variation, and with related appeals) has effect.

SCHEDULE 2 PART 3 Appeals relating to prohibition orders

Appeal against prohibition order Paragraph 7 (1)A relevant person may appeal to the appropriate tribunal against a prohibition order. (2) Paragraph 8 sets out a specific ground on which an appeal may be made under this paragraph, but it does not affect the generality of sub-paragraph (1). Paragraph 8 (1) An appeal may be made by a person under paragraph 7 on the ground that one of the courses of action mentioned in sub-paragraph (2) is the best course of action in relation to the hazard in respect of which the order was made. (2) The courses of action are— (a) serving an improvement notice under section 11 or 12 of this Act; (b) serving a hazard awareness notice under section 28 or 29 of this Act; (c) [NAME] a demolition order under section 265 of the Housing Act 1985.

Appeal against decision relating to revocation or variation of prohibition order Paragraph 9 A relevant person may appeal to the appropriate tribunal against— (a) a decision by the local housing authority to vary a prohibition order, or (b) a decision by the authority to refuse to revoke or vary a prohibition order.

Time limit for appeal Paragraph 10 (1) Any appeal under paragraph 7 must be made within the period of 28 days beginning with the date specified in the prohibition order as the date on which the order was made. (2) Any appeal under paragraph 9 must be made within the period of 28 days beginning with the date specified in the notice under paragraph 3 or 5 as the date on which the decision concerned was made. (3) The appropriate tribunal may allow an appeal to be made to it after the end of the period mentioned in sub-paragraph (1) or (2) if it is satisfied that there is a good reason for the failure to appeal before the end of that period (and for any delay since then in [NAME] for permission to appeal out of time).

Powers of the tribunal on appeal under paragraph 7 Paragraph 11

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(1) This paragraph applies to an appeal to the appropriate tribunal under paragraph 7. (2) The appeal— (a) is to be by way of a re-hearing, but (b) may be determined having regard to matters of which the authority were unaware. (3) The tribunal may by order confirm, quash or vary the prohibition order. (4) Paragraph 12 makes special provision in connection with the ground of appeal set out in paragraph 8.

Paragraph 12 (1) This paragraph applies where the grounds of appeal consist of or include that set out in paragraph 8. (2) When deciding whether one of the courses of action mentioned in paragraph 8(2) is the best course of action in relation to a particular hazard, the tribunal must have regard to any guidance given to the local housing authority under section 9. (3) Sub-paragraph (4) applies where— (a) an appeal under paragraph 7 is allowed against a prohibition order made in respect of a particular hazard; and (b) the reason, or one of the reasons, for allowing the appeal is that one of the courses of action mentioned in paragraph 8(2) is the best course of action in relation to that hazard. (4) The tribunal must, if requested to do so by the appellant or the local housing authority, include in its decision a finding to that effect and identifying the course of action concerned.

Paragraph 13 (1) This paragraph applies to an appeal to the appropriate tribunal under paragraph 9. (2) Paragraph 11(2) applies to such an appeal as it applies to an appeal under paragraph 7. (3) The tribunal may by order confirm, reverse or vary the decision of the local housing authority. (4) If the appeal is against a decision of the authority to refuse to revoke a prohibition order, the tribunal may make an order revoking the prohibition order as from a date specified in its order.

ANNEX 2 : YOUR RIGHT OF APPEAL

A. Rule 36(2) of the Tribunal Procedure (First-tier tribunal) ([NAME]) Rules 2013 requires the tribunal to notify parties about any right of appeal they may have from its decision.

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

C. The [NAME] for permission to appeal must arrive at the [NAME] within 28 days after the date on which the tribunal sends the written reasons for the decision to the [NAME].

D. 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

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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.

E. 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), must state the grounds of appeal, and must state the result the party [NAME] the [NAME] is seeking.

F. If the First-tier tribunal refuses permission to appeal, a further [NAME] for permission may be made directly to the Upper Tribunal (Lands Chamber).