DECISION
Introduction
1.
This is an appeal against a decision of a Residential Property Tribunal
given on 14 January 2010 ordering that an improvement notice served by the
appellant on the respondent under section 11(1) of the Housing Act 2004 be
quashed. The appellant, Bristol City Council, is a local housing authority and
the respondent, Aldford Two LLP, is and has been at all material times the
freehold owner of a first and second floor flat known as The Maisonette, 55A
Westbury Hill, Bristol BS9 3AD, which was let to a couple on an annual assured
shorthold tenancy. The improvement notice alleged that a “category 1 hazard”
existed at the premises in that the heating system (convector heaters) was
inadequate, and it ordered the provision of a gas central heating system or
electric night storage heating system. The present respondent appealed to the
RPT. Its case was that the heating system was adequate and was indeed a more
suitable and cheaper means of heating the flat for tenants such as the present
ones, who had themselves expressed satisfaction with it.
2.
Under the 2004 Act hazards existing in residential premises fall into
one or other of two categories. For a category 1 hazard the housing authority
is required to take enforcement action of one of a number of prescribed types,
of which an improvement notice is one. For a category 2 hazard the authority
has a discretion whether to take enforcement action. Which of these two
categories a hazard falls into is determined by a judgemental assessment, carried
out as prescribed by regulations, under which a numerical score is produced.
The council’s case was that the heating system in the flat was deficient, thus
creating a hazard, and, properly scored, the hazard fell into category 1, thus
making enforcement action mandatory.
3.
In its decision the RPT, which held a hearing at which evidence was
given and carried out an inspection of the premises, expressed its conclusions
briefly. It said:
“6. Conclusions
Having carefully considered all written representations
that had been made together with the evidence that had been given before the
Tribunal the Tribunal reached the following conclusions.
6.1 That a Category 1 Hazard did exist in respect of these
premises and as a result the Respondent had no alternative than to issue an
Improvement Notice.
6.2 However and notwithstanding the above the Tribunal had
noted from their inspection firstly that the tenants themselves had no
complaint about the heating and were happy to control it for the time and the
hours that they wanted in the respective rooms. Secondly that notwithstanding
that it was a cold day outside the premises appeared to be warm and adequately
heated. Thirdly and based on the Tribunal members’ own knowledge and
inspection of many similar premises, that the heating system that was provided
at these premises should be perfectly adequate and is not abnormal for these
types of premises.
6.3 The Tribunal accordingly
orders that the Improvement Notice dated the 8th September 2009 be
quashed.”
4.
The council applied for permission to appeal on two grounds. The first
was that having determined that the heating system constituted a category 1
hazard, it was not open to the RPT as a matter of law to quash the improvement
notice. The second ground was that the conclusions in paragraph 6.2 were
either forensically irrelevant or improperly relied on. The RPT rejected both
grounds.
5.
On 14 May 2010, on the appellant’s application to this Tribunal, I
granted permission. In doing so, I said:
I directed that the appeal should be determined by way of
review.
Housing Act 2004: hazards
and enforcement action
6.
Part 1 of the Act deals with housing conditions, and in Chapter 1 a new
system for assessing housing conditions and enforcing housing standards is
established. Section 2(1) defines “category 1 hazard” and “category 2 hazard”:
“(1) In this Act -
‘category 1 hazard’ means a hazard of a prescribed
description which falls within a prescribed band as a result of achieving,
under a prescribed method for calculating the seriousness of hazard of that
description, a numerical score of or above a prescribed amount;”
“Category 2 hazard” is similarly
defined, and “hazard” is defined as
“any risk of harm to
the health or safety of an actual or potential occupier of a dwelling or HMO
which arises from a deficiency in the dwelling or HMO or in any building or
land in the vicinity (whether the deficiency arises as a result of the
construction of any building, an absence of maintenance or repair, or
otherwise).”
(HMO is a house
in multiple occupation.)
7.
Section 2(3) provides:
“(3) Regulations under this
section may, in particular, prescribe a method for calculating the seriousness
of hazards which takes into account both the likelihood of the harm occurring
and the severity of the harm if it were to occur.”
8.
It is the Housing Health and Safety Rating System (England) Regulations 2005 that contain the prescriptions provided for in section 2(1), and they also
define what “harm” is. I will refer to the Regulations later.
9.
Section 5 of the Act contains the general duty to take enforcement
action in respect of category 1 hazards. As far as material it provides:
“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) making a prohibition order under section 20;
(c) serving a hazard awareness notice under section 28;
(d) taking emergency remedial action under section 40;
(e) making an emergency prohibition order under section
43; …
(3) If only one course of action
within subsection (2) is available 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...”
10.
Under section 8 the authority are required to give reasons for taking
enforcement action. Section 9 provides for the giving of guidance to
authorities in the exercise of their functions, and such guidance has been
given in the Housing Health and Rating System Operating Guidance and the
Housing Health and Safety Rating System Enforcement Guidance, both issued by
the Office of the Deputy Prime Minister in February 2006.
11.
Section 11, which deals with improvement notices relating to category 1
hazards (section 12 deals with improvement notices for category 2 hazards),
contains the following provisions:
“11. Improvement notices relating to
category 1 hazards: duty of authority to serve notice
(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
or Part 4,
serving an improvement notice
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) An
improvement notice under this section is a notice requiring the person on whom
it is served to take such remedial action in respect of the hazard concerned as
is specified in the notice in accordance with subsections (3) to (5) and
section 13 …”
12.
Section 13 deals with the contents of improvement notices, and
subsection (1) provides that an improvement notice under section 11 or 12 must
comply with the following provisions:
“(2) The notice must specify, in relation to the hazard
(or each of the hazards) to which it relates -
(a)
whether the notice is served under section 11 or 12,
(b)
the nature of the hazard and the residential premises on which it
exists,
(c)
the deficiency giving rise to the hazard,
(d)
the premises in relation to which remedial action is to be taken in
respect of the hazard and the nature of the remedial action,
(e)
the date when the remedial action is to be started (see subsection (3)),
and
(f)
the period within which the remedial action is to be completed or the
periods within which each part of it is to be completed.
(3) The notice may not require
any remedial action to be started earlier than the 28th day after that on which
the notice is served.”
13.
Section 15(2)
provides that (unless suspended) an improvement notice becomes operative 21
days after being served, the period for appealing against the notice under
Schedule 1. Under section 15(5), if an appeal is made, the notice does not
become operative until the notice is confirmed on appeal or the period for
further appeal expires.
14.
Hazard awareness notices relating to category 1 hazards are dealt with
in section 28, which so far as material provides:
“28. Hazard awareness notices relating to category 1
hazards: duty of authority to serve notice
(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,
serving a hazard awareness notice 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 hazard awareness
notice under this section is a notice advising the person on whom it is served
of the existence of a category 1 hazard on the residential premises concerned
which arises as a result of a deficiency on the premises in respect of which
the notice is served.
(3) The notice may be
served in respect 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 be served in respect of the dwelling or HMO;
(b) if those premises
are one or more flats, it may be served in respect of the building containing
the flat or flats (or any part of the building) or any external common parts; …
(6) A notice under
this section must specify, in relation to the hazard (or each of the hazards)
to which it relates -
(a) the nature of the hazard and the residential
premises on which it exists,
(b) the deficiency giving rise to the hazard,
(c) the premises on which the deficiency exists,
(d) the authority’s
reasons for deciding to serve the notice, including their reasons for deciding
that serving the notice is the most appropriate course of action, and
(e) details of the remedial
action (if any) which the authority consider that it would be practicable and
appropriate to take in relation to the hazard.
(7) Part 1 of Schedule
1 (which relates to the service of improvement notices and copies of such
notices) applies to a notice under this section as if it were an improvement
notice. …”
The Housing Health and
Safety Rating System (England) Regulations 2005
15.
The Regulations prescribe the descriptions of category 1 and category 2
hazards, and they also prescribe a method for calculating their seriousness by
establishing a numerical score. Regulation 2 defines “harm” as harm within any
of Classes 1 to IV as set out in Schedule 2. The Schedule provides that Class
1 harm is “such extreme harm as is reasonably foreseeable as a result of the
hazard in question, including -”, and then are set out “(a) death from any
cause” and, from (b) to (g), lung cancer, malignant tumours, permanent
paralysis below the neck, regular severe pneumonia, permanent loss of
consciousness and 80% burn injuries. Class II harm is “severe harm”
(including, for example, cardio-respiratory disease). Class III harm is
“serious harm” (including, for example, gastro-enteritis). Class IV is
“moderate harm” (including, for example, regular serious coughs and colds).
16.
Regulation 3(1) provides that a hazard is of a prescribed description
for the purposes of the Act where the risk of harm is associated with any of
the matters or circumstances listed in Schedule 1. The list includes: “2.
Exposure to low temperatures.”
17.
Regulation 7 prescribes bands of hazards from A to J on the basis of a
range of numerical scores. Thus a Band A hazard is one with a numerical score
of 5000 or more; a Band B hazard is one with a numerical score of 2000 to 4999;
and a Band C hazard is one with a numerical score of 1000 to 1999. Regulation
8 provides that a hazard falling within band A, B or C is a category 1 hazard
and that a hazard falling within any other band is a category 2 hazard.
18.
The numerical score for a hazard is reached in a number of steps
prescribed by regulation 6. First the inspector is required to assess the
likelihood, during the period of 12 months beginning with the date of
assessment, of a relevant occupier suffering any harm as the result of that
hazard as falling within one of a range of 16 ratios of likelihood that are set
out. For each range there is also set out a representative scale point of
range (L, as it is called in a formula that later falls to be applied). Thus,
for instance, in the range of ratios of likelihood between 1 in 4200 and 1 in
2400 the representative scale point of range is stated to be 3200.
19.
Who is a “relevant occupier” is defined in regulation 6(7) by reference
to particular matters contained in Schedule 1. For paragraph 2 (Excess cold)
the relevant occupier is an occupier aged 65 years or over.
20.
The second step requires the inspector to assess which of the four
classes of harm a relevant occupier is most likely to suffer. Thirdly he must
assess the possibility of each of the three other classes of harm occurring as
a result of that hazard, as falling within a range of percentages of
possibility. For each range there is also set out a representative scale point
of the percentage range (RSPPR). Thus, for instance, for the range 0.15% to
0.3% the RSPPR is 0.2%.
21.
Step four requires the inspector to bring the total of RSPPRs for the
four classes up to 100%. To do this he adds the percentages of the three
RSPPRs he has reached at step three, takes the total away from 100% and
attributes what is left to the class of harm that he assessed to be most likely
to occur.
22.
Step five is the production of a numerical score for the seriousness of
the hazard for each of the four classes of harm. For each of these, L (see
paragraph 22 above) is multiplied by the RSPPR and then by a further factor,
which weights the seriousness of the classes of harm. This factor is 10000 for
Class I, 1000 for Class II, 300 for Class III and 10 for Class IV. The final
step is to add the four individual numerical scores to produce the numerical
score that can be related to the prescribed bands.
The council’s assessment
23.
The council’s environmental health officer, Lisa Williams, carried out
an assessment using the electronic form that is provided for this purpose. The
user of this form simply has to select one of the numbers for case likelihood
(step 1 above, the L number) from the range 1 in 1 to 1 in 5600 and one of the
RSPPRs (step 3 above) from the range 0% to 46.4% for each of the four classes.
He also needs to carry out step 4, unless the percentages already total exactly
100%. The computation is then automatic. The choice of numbers is of course
crucial. To assist the user each of the ranges from which the selection is
made includes a number marked “NA”. This is said to represent the national
average (for the actual case likelihood and the percentage of possibility of
harm for each class).
24.
Ms Williams’s first assessment of the hazard of excess cold, carried out
after an inspection on 8 January 2009 produced a hazard rating score of 3275,
putting it in hazard band B and category 1. The second assessment was carried
out after an inspection on 11 May 2009. By then additional loft insulation had
been installed, and by reason of this, Ms Williams told the RPT, the hazard
rating score was reduced in the second assessment to 1819, putting it in hazard
band C. The form as completed classified the property under “Flats Pre-1920”,
and described the dwelling and the hazard as follows:
“The property is a mid terrace 3
bedroom maisonette above a shop. There is a large reception room, kitchen,
shower room and bedroom to the first floor and 2 further bedrooms and a
bathroom to the second floor. There are wall mounted convector heaters
throughout the property with timers and thermostatic controls. The appliances
provided to the first floor bedroom are undersized.
The second floor is built into the
roof space, however, there is access to a loft which has been provided with
200mm insulation. The level of insulation, if any, between the rafters and
plaster to the sloping ceiling is unknown. The front of the property ahs wood
sliding and sash windows and the rear is fitted with upvc double glazing.”
25.
The list of relevant matters required the entry against each of 10
“relevant matters” of a code: 0 for “satisfactory”, 1 for “not satisfactory”; 2
for “defective”; or 3 for “seriously defective”. Code 0 was entered against
each item except two. The exceptions were “Type of heating provision -
inappropriate or inefficient systems or appliances”, which was given code 3
(for “seriously defective”) and “Size of heating system - system and appliances
inadequate for the size of the dwelling”, which was given code 2 (for
“defective”).
26.
The key element of the assessment leading to the hazard rating score was
the likelihood assessment of an actual case likelihood of 1 in 180, ie a
likelihood that one instance of harm to a resident of 65 or over would occur in
the ensuing 12 months because of excess cold. The justification for this was
stated to be:
“The expensive on-peak electric heating appliances (which
are undersized to two rooms) means the likelihood of a healthy indoor
temperature being maintained during the cold winter months is unlikely and thus
the likelihood of a harmful occurrence is increased above the average for this
age and type of dwelling.”
(The national average likelihood was given as 1 in 340).
27.
Having determined the actual case likelihood (step 1), the officer then
had to carry out steps 2 and 3. She adopted the NAs for the RSPPRs for each of
the four classes (Class I 31.6%; Class II 4.6%; Class III 21.5%; and Class IV
46.4%). The resulting scores were these:
|
Class I
|
10000 x 1/180
|
x 31.6 =
|
1755.56
|
|
Class II
|
1000 x 1/180
|
x 4.6 =
|
25.56
|
|
Class III
|
300 x 1/180
|
x 21.5 =
|
35.83
|
|
Class IV
|
10 x 1/10
|
x 42.3 =
|
2.35
|
Added together these produced a hazard rating score of 1819,
putting the hazard into band C.
28.
All but 62 of the hazard rating score was attributable to Class I harm -
death or other extreme harm. It is worth pausing at this point to note that what
the officer had in this way concluded was that there was a 1 in 570 chance (180
÷ 31.6) that in the next 12 months a person aged 65 or more living in this flat
would either die or suffer extreme harm because of cold conditions there. It was
effectively this that prompted the service of the notice.
The landlord’s case in the LVT
29.
The landlord, in the person of Mr Richard Goodman, a member of the
respondent company, told the LVT that the company had bought the property in
2007. It had let the ground floor shop and spent £50,000 in refurbishing the
upper two floors to provide a four-bedroom maisonette. It was let to a couple,
Ms I Hume and Mr S Tunn, on an assured shorthold tenancy at a rent of £675 per
calendar month. The property was not really suitable for families with young
children or elderly occupants due to the limited steep staircase access and
lack of outside amenity space, but it was ideally suited to working adults
occupying on a short-term basis, and this was the purpose for which it was
designed and occupied. The company had considered the installation of gas
central heating, but had dismissed this, mainly due to the fact that there was
no existing gas supply to the building and it was technically difficult to run
one in. Electric storage heaters were not considered, primarily because they
had less flexibility to provide instantaneous heating. It was the company’s
experience that the tenants likely to rent these premises required heat for
specific times during the day, usually for an hour or so first thing in the
morning and on return from work in the late afternoon until bedtime. This was
what the current occupiers required. The company considered that the
thermostatically and timer controlled wall-mounted convector heaters that had
been installed were the most appropriate to the rental market. The tenants
were happy with the premises, and the landlord should not have a particular
type of heating forced upon it.
30.
Mr Goodman said that the landlord had let two maisonettes in Henbury to
tenants on the council’s housing list, both of which had identical heating
arrangements to those in the subject premises, and this had produced no adverse
comment from the council or the tenants.
31.
Mr Goodman said that in the light of the Government’s definition of fuel
poverty (where heating costs are in excess of 10% of the household income), and
taking the council’s estimate of the cost of heating the premises using the
existing system (£1,316 per annum), the combined income of the occupants would
need to be below £13,160 per annum before there would be fuel poverty. This,
he said, was virtually impossible.
32.
Evidence for the landlord on the costs of heating the property was given
by Alec Turner, a chartered building surveyor. He drew attention to the
dependence of the council’s case on the existence of a hazard due to excess
cold on the score of 1819, and he pointed out that this was stated to be based
on a type of heating that was “seriously defective” and a size of heating that
was stated to be “defective”. However, in her witness statement Ms Williams
had said that on the basis of a heat loss calculation provided by the company
on 4 November 2009 she was now satisfied that the size of the heating
appliances provided to each room was adequate. Mr Turner suggested that
in the light of this the hazard rating score needed to be recalculated.
Moreover, he said, the description of the type of heating as “seriously
defective” seemed inappropriate to him when it was accepted as being perfectly
adequate to heat the accommodation.
33.
Mr Turner went on to produce calculations of the annual heating costs,
setting out the parameters that he had adopted. His cost calculation for night
storage heaters was £867, and he calculated the cost of panel heaters, taking
account of the likely number of hours that they would be in operation each day,
at £797. Thus, he said, the panel heating system was less costly than the
night storage option, and the system was adequately sized and sufficient to
provide the required heat to the accommodation.
34.
Ms Williams told the RPT that the heating system “was deemed to be worse
than the typical for a dwelling of this age and type.” The electric convector
heaters were considered inappropriate and inefficient due to the high cost involved
in adequately heating a large, solid walled, 3 bedroom maisonette, which had
single glazed sliding sash windows to the front elevation. The high cost of
adequately heating the property meant that it was less likely that a healthy
indoor temperature would be maintained, particularly in the cold winter months,
and that was considered to contribute to an increased hazard likelihood ratio.
She said that she had produced an Energy Performance certificate in November
2009 and this showed that cost of heating would be £1316 per annum, while
fan-assisted storage heaters would cost £745 per annum and gas central heating
£617. The heating system was considered to be worse than typical for a
dwelling of the type and age of the subject premises. She was, however, now
satisfied, on the basis of a heat loss calculation provided by the landlord on
4 November 2009, that the size of the heating appliances provided to each room
was adequate.
The appellant’s case
35.
For the council Mr John Virgo said that it was agreed that there were
two issues. The first was whether for the purposes of the 2004 Act (and in
particular section 5) it was open to the RPT, having found that a Category 1
hazard existed at the property, to direct the council to take no action in
respect of it. He submitted that it was not. Section 5(1) provided that, if a
local housing authority considers that a Category 1 hazard exists on any
residential premises, they must take the appropriate enforcement action in
relation to the hazard; subsection (2) defined “the appropriate enforcement
action” to mean such of the identified courses of action (improvement notice,
etc) as were indicated in subsections (3) and (4); and subsections (3) and (4)
required action to be taken - either the only course of action open to the
authority (subsection (3)) or, if more than one course of action is open to
them, the most appropriate one (subsection (4). The taking of no action was
not a course that was open to the council, therefore. By quashing the
improvement notice the RPT in effect directed the council to take no action in
respect of the hazard. This it could not properly do. The second issue was
whether the RPT was entitled in reaching its decision to take into account, as
it had done, the three matters referred to in paragraph 6.2 of its decision -
the absence of complaint by the tenants as to the adequacy of the heating
system; the tribunal members’ personal perception at the time of their
inspection as to whether the property appeared to be warm or adequately heated;
and the tribunal members’ knowledge and inspection of other similar premises.
Mr Virgo submitted that it was not lawful for the RPT to take these matters
into account.
The respondent’s case
36.
For the landlord Mr Piers Harrison in his initial submissions accepted
that if there was a category 1 hazard at the premises the notice should not be
quashed. In later submissions, however, he said that if there was a category 1
hazard but a hazard awareness notice was the most appropriate course of action,
then it would be proper to quash the improvement notice. He contended
nevertheless that the council had erred in its assessment in taking into
account the cost of heating the flat and had failed to give sufficient weight
to the improvements that had been carried out to the property, so that a
conclusion as to whether there was a category 1 hazard could not be reached on
the basis of that assessment, and there was insufficient evidence for the
tribunal to re-score the property. The consequence was that the notice should
be quashed.
37.
The cost of heating the flat was not a relevant consideration, Mr
Harrison said, in the light of the matters affecting likelihood and harm
outcome for excess cold listed on page 62 of the Operating Guidance. The one
on which the council would have to rely was “(d) Type of heating provision - inappropriate
or inefficient systems and appliances”. A heating system which was not as cost
effective as, for instance, night storage heaters, would only be harmful if the
occupier could not afford to run it in cold months. In order to consider
whether there was a likelihood of harm on that basis it would be necessary to
launch into a detailed inquiry of both the likely cost of the system and the
affordability of such costs to the likely occupiers, but the council had only
considered the first and not the second of these factors. In the absence of a
consideration of the latter factor cost was not a relevant consideration. On
the other hand the fact that the landlord had redeveloped the flat in accordance
with building regulations was a material consideration, and the council’s
assessment had ignored this. The Operating Guidelines gave a national average
likelihood of harm for pre-1920 flats of 340, but that must be, Mr Harrison
said, for a typical pre-1920 flat and not one, like the subject premises, which
had recently been improved. Had the council taken this into account it would
have realised that there was a strong argument that the correct national
average likelihood to use was that for non-HMO flats post 1979, and that alone
would endure that there was no category 1 hazard.
Further submissions
38.
Following the hearing I invited submissions from counsel on a further
matter. Under section 5(2) of the Act one of the courses of action open to an
authority in relation to a category 1 hazard is: (c) serving a hazard awareness
notice under section 28. Paragraph 5.39 of the Enforcement Guidance says that
a hazard awareness notice is a possible response to a category 1 hazard where
no management order is in place. It continues: “There may be circumstances
where works of improvement…are not…reasonable, in which case a hazard awareness
notice might be appropriate.” It appeared, therefore, that one of the courses
of action open to the authority in the present case was to serve a hazard
awareness notice. And it also appeared that a possible ground for an RPT (or
the Upper Tribunal on appeal) to quash an improvement notice under paragraph
15(3) of Schedule 1 would be that a hazard awareness notice would have been the
most appropriate of the courses of action available to the authority (see
section 5(4)). I invited submissions on this and as to (a) whether I should
determine whether the improvement notice should be quashed on this ground and
(b) if so, what matters I should take into account for that purpose.
39.
Mr Virgo, in responding to my note, accepted that the range of options
open to an authority dealing with a category 1 hazard included the service of a
hazard awareness notice and that it would be open to an RPT or the Upper Tribunal
on appeal to quash an improvement notice on the ground that an improvement
notice was not the most appropriate course of action. He said, however, that
there was no evidence as to the reasons for the council opting for an improvement
notice rather than a hazard awareness notice. Mr Virgo said that the guidance
in paragraph 5.39 of the Enforcement Guidance was potentially anomalous in that
under section 28(6)(e) a hazard warning notice must include particulars of the
remedial action considered practicable and appropriate; and if the relevant
works were considered practicable and appropriate it was difficult to see why
an improvement notice requiring them to be undertaken would be inappropriate.
40.
In any event, Mr Virgo said, there was no evidence as to the cost of
compliance with the requirements in the improvement notice and nothing,
therefore, to enable the reasonableness of the expenditure to be taken into
account. Nor was there any evidence that installation of the heaters indicated
as required by the notice was impracticable due to some feature of and peculiar
to the subject property. It would be wrong in principle for the Upper Tribunal
to quash the notice on the basis of an unexplored possibility that the wrong
form of notice might have been served.
41.
Mr Harrison said that there was nothing to suggest that the RPT was
aware that a possible course for it was to quash the improvement notice on the basis
that the service of a hazard awareness notice would have been more appropriate.
Had it been so aware, there was good reason for supposing that it would have adopted
that course. There was no reason why the Upper Tribunal should not now adopt
that course. In its appeal notice the landlord had raised the argument that
any further upgrading of the property in the next 5-10 years would be
inappropriate and uneconomical for the owners. Both Ms Williams’s witness
statement and the statement of reasons attached to the improvement notice
sought to explain why the service of an improvement notice was the appropriate
course. There was evidence on the efficacy of the installed heaters and on the
comparative costs. Although the council did not have the opportunity to make
submissions on those matters in the RPT it now had that opportunity, so that
any procedural unfairness was cured.
Conclusions
42.
The RPT’s decision contained little in the way of reasoned explanation,
and the three matters contained in paragraph 6.2 were, in my judgment,
insufficient in the absence of further explanation to justify the quashing of
the notice. The RPT had concluded that a category 1 hazard existed at the
premises, and under section 5(1), therefore, the council were obliged to take
appropriate enforcement action. Accordingly it was only open to the RPT to quash
the notice if it was of the view that some enforcement action other than the
service of the enforcement notice was appropriate. It did not, however,
consider what other enforcement actions, if any, were open to the council. Mr
Virgo contended that this alone was sufficient to require that the appeal
against the RPT’s decision should be allowed. I do not accept this. There are
two matters that need to be considered before it can be concluded that the
decision to quash the notice was unlawful. The first is whether the RPT was
correct in accepting that a category 1 hazard existed, and the second is
whether the service of a hazard awareness notice would not have been the
appropriate enforcement action for the council to have taken. I will consider
each of these matters. Before doing so, however, I must deal with Mr Virgo’s
submission that the RPT was in error in respect of each of the reasons that it
gave in paragraph 6.2 for quashing the notice.
43.
As to the first reason - that the tenants themselves had no complaint
about the heating and were happy to control it for the time and the hours that
they wanted in each room - Mr Virgo said that this was irrelevant both to
the question whether a category 1 hazard existed and to the proper
determination of the issue “as to which of the menu of statutory options was
the appropriate one to direct to be taken.” I do not accept this. While it is
correct that the assessment to be made of the likelihood of harm must be made
by reference to a hypothetical person of 65 or over, it does not seem to me
that an RPT must leave out of account any views expressed by the persons who
actually experience day in and day out the operation of the heating system.
The fact that the occupiers were happy with the system would not on its own be
sufficient reason to conclude that there was no category 1 hazard in respect of
excess cold, but it is undoubtedly, in my view, part of the factual matrix to
which the RPT could properly have regard. As for determining the appropriate
course of action to take in respect of the hazard, the views of the occupiers
are manifestly material, in my judgment. I refer to this point further below.
44.
Secondly, Mr Virgo said, the subjective view of the RPT members as to
whether the property appeared to be warm or adequately heated at the time of
the inspection was forensically irrelevant to the issues of whether a category
1 hazard existed and the proper determination of which of the course of action
was the appropriate one. Again, I do not accept this. I have little doubt
that an environmental health officer, inspecting premises for the purpose of
investigating whether the hazard of excess cold existed, would take note of
whether the premises were in fact cold, and it would undoubtedly, in my view,
be a material matter for him to take into account. Likewise if the premises
were not cold. Like the views of the occupiers this would be part of the
relevant matrix of facts. There was no error on the RPT’s part, in my
judgment, in taking this factor into consideration in reaching their decision.
45.
Mr Virgo said, thirdly, that it was forensically improper for the
tribunal to take into account their “own knowledge and inspection of many
similar premises.” In particular neither party had had any opportunity to interrogate
the RPT members as to the extent of their knowledge and as to the identity and
details of the “many similar premises”, nor had either party had the
opportunity to adduce further evidence to address or contradict the asserted
knowledge” of the tribunal members. In contending that the failure to accord
these opportunities vitiated the RPT’s decision Mr Virgo relied in particular
on a passage in the judgment of the Employment Appeal Tribunal (chairman
Phillips J) in Dugdale v Kraft Foods Ltd [1976] 1 WLR 1288 at 1294H-
1295B:
“The members of industrial
tribunals are appointed because of their special knowledge and experience, and
we have no doubt that they are entitled to draw upon itin playing their part in
assisting the tribunal as a whole to reach a decision. The main use which they
will make of this knowledge and experience is for the purpose of explaining and
understanding the evidence which they hear. Certainly, they are entitled to
use their knowledge and experience to fill gaps in the evidence about matters
which will be obvious to them but which might be obscure to a layman. More
difficult is the case where evidence is given which is contrary to their
knowledge and experience. If such an occasion arises, we think that they ought
to draw to the attention of the witnesses the experience which seems to them to
suggest that the evidence given is wrong, and ought not to prefer their own
knowledge and experience without giving the witnesses an opportunity to deal
with it. Provided that this opportunity is given there seems to us to be no
reason why they should not draw on their own knowledge and experience in this
way also. But it is highly desirable that in any case where particular use is
made by an industrial tribunal of the knowledge and experience of one or more
of their members in reaching their decision this fact should be stated, and
that particulars of the matter taken into account should e fully disclosed.”
46.
The Lands Tribunal in Arrowdell Ltd v Coniston Court (North) Hove Ltd
[2007] RVR 39 at paragraph 23 said this about the use by members of their
knowledge and experience:
“It is entirely appropriate that,
as an expert tribunal, an LVT should use its knowledge and experience to test,
and if necessary to reject, evidence that is before it. But there are three
inescapable requirements. Firstly, as a tribunal deciding issues between the
parties, it must reach its decision on the basis of evidence that is before
it. Secondly, it must not reach a conclusion on the basis of evidence that has
not been exposed to the parties for comment. Thirdly, it must give reasons for
its decision.”
47.
The way in which the RPT relied on its knowledge and experience in the
present case does not in my judgment amount to a procedural error that
substantially prejudiced the council. Whether there is a procedural error in
relation to the use by a tribunal of its knowledge and experience, and whether
substantial prejudice has been suffered as a result, will necessarily depend on
the matter under consideration and the nature of the tribunal’s reliance on its
knowledge and experience. Here the case for the council was that the type of
heating provision was “seriously defective” and that, scored as it was, the
house had a worse than average rating in relation to the hazard of excess
cold. The landlord said that the system was ideal for the tenants’
requirements, and that it had let two maisonettes in the area to tenants on the
council’s housing list, both of which of these had identical heating
arrangements to those in the subject premises, and there had been no adverse
comment from the council or the tenants. The RPT said that, based on its
members’ knowledge and experience of many similar premises, the heating system
provided ought to be perfectly adequate and was not abnormal for such types of
premises. In so concluding what the tribunal was doing, in my view, was to
reach a conclusion on a matter that had been the subject of conflicting
evidence by bringing to bear its own general knowledge and experience. It was fully
entitled to do this. There was no particular evidence that it needed, for
reasons of fairness, to disclose to the parties. To have provided a full list
of the many similar premises and their heating systems, even if this had been
possible, would have been inappropriate, since an examination of the facts
relating to them would have been disproportionate and the results inconclusive.
48.
None of the criticisms directed at the RPT’s three reasons are made out,
in my view. I turn, therefore, to the first of the two matters referred to
above, whether the RPT was correct in accepting that a category 1 hazard
existed at the premises. The basis for Ms Williams’s hazard rating score of
1819 was her opinion, entered on the assessment form in May 2009, that the type
of heating was “seriously defective” and the size of the heating system was
“defective”. After that assessment had been made additional heating was
provided, and Ms Williams accepted that this made the size of the heating
system satisfactory. She did not, however, revise her assessment. As far as
the type of heating is concerned, the RPT for its part, so far from accepting Ms
Williams’s characterisation of it as seriously defective, considered it to be
perfectly adequate and not abnormal for the type of premises. In these
circumstances the RPT was in my judgment clearly in error in not considering a
downwards revision of the assessment, and there is a strong possibility that,
had it done so, it would have concluded that there was no category 1 hazard. To
put it no higher, it might well have concluded that the risk that in the next
12 months a person aged 65 or more living in this flat would either die or
suffer extreme harm because of cold conditions there was substantially less
than 1 in 570 (see paragraph 28 above).
49.
The second matter to be considered is whether a hazard awareness notice
would not have been the appropriate action for the council to have taken. Mr
Virgo, in responding to my note, said that there was no evidence as to the
reasons for the council opting for an improvement notice rather than a hazard
awareness notice. That is not the case. In its “Statement of reasons for
decision to take enforcement action” dated 8 September 2009 the council set out
its reasons for serving an improvement notice rather than taking another kind
of enforcement action. Having said that an improvement notice was practical
and proportionate and that the required works would reduce the risks to the
occupants to an acceptable level, it went on:
“The significant nature of the hazard and the risk posed
to the occupants would not warrant service of a Hazard Awareness Notice as this
only raises awareness of the hazard but does not require any action to be
taken. This could lead to the occupiers continuing to be exposed to the
identified hazard.”
The statement went on to say why neither a prohibition order
nor emergency remedial action nor an emergency prohibition order nor demolition
nor clearance would be appropriate.
50.
The case for a hazard awareness notice rather than an improvement
notice, when related to the advice in the Enforcement Guidance, is, in my
judgment, unquestionably strong. The question is whether it is reasonable in
the circumstances to require in these premises the replacement of the recently
installed convector heaters with night storage heaters. The justification
given by the council for serving an improvement notice rather than a hazard
awareness notice was the “significant nature of the hazard and the risk posed
to the occupants”. The evidence was that the maisonette was by its nature
likely to be occupied by a working couple and that a system of convector
heaters, so far from creating a hazard for them, was effective and convenient.
The needs and preferences of the actual occupiers, as well as those of the
vulnerable group considered for the purpose of the assessment, are in my
judgment material to the choice of the enforcement action to be taken. Moreover
even on the council’s assessment the hazard is a band C hazard, the bottom band
in category 1, and that assessment, as I have said, is likely to be too high.
So far from being reasonable in these circumstances to require a new heating
system to be installed it would in my judgment be palpably unreasonable to
require this.
51.
The next question is whether, having reached this conclusion, I should
dismiss the appeal (leaving the improvement notice quashed as the RPT decided)
or remit the matter to the RPT for them to reach a fresh decision. Mr Virgo
urged that it would be unfair to the council to determine the appeal in this
way without giving them the opportunity to address the choice of enforcement
action. The answer to this is that, contrary to Mr Virgo’s suggestion, the
council have stated their position on the choice between an improvement notice
and a hazard awareness notice, and they have, in the light of my note, had the
opportunity to address this further but have not done so. Mr Harrison
submitted that it would be disproportionate to remit the matter to the RPT for
further hearing, and I agree. The conclusion that I have reached is one that
is open to me on the material before me, and it is unnecessary to remit the
case.
52.
I would add this. The appeal in this case has arisen because the RPT
failed to give any proper consideration to the assessment of the hazard on
which the council’s case depended and failed to give adequate reasons for its
decision to quash the improvement notice. The 2004 Act, the Regulations and
the statutory guidance have created a system of assessment that is complex and
which may seem forbidding to RPTs. By reducing to numerical terms essentially
subjective judgements of risk the system may give a misleading impression of
scientific precision to the assessment results. The objective standards provided
to guide the subjective judgements- national averages of the incidence of harm
and of distribution between the four classes - have a statistical basis that is
self-evidently fragile. What has been done is to produce a national average
probability of the incidence of each of the 27 different categories of harm for
dwellings of 8 different categories and national average distributions of the
probabilities between the four classes of seriousness of harm. Such average
values are only as dependable as the statistics that underlie them, and it is
evident that they have been derived by routes that, in the absence of direct
statistical evidence, are inevitably indirect. The Operating Guidance itself
makes this clear.
53.
In the case of the hazard of excess cold the Operating Guidance in Annex
D paragraph 2.03 states that the statistics for Class I (death etc) were
derived from data from cold/winter related mortality (apparently, therefore,
from the statistics of excess winter deaths in the over-65 population), Classes
II and II from Hospital Episode Statistics and Class IV from statistics of new
GP consultations. The Guidance goes on to say:
“2.09 The main causal factor for excess winter deaths
appears to be changes in ambient (outdoor) temperature, but seasonal
infections, and changes in behavioural patterns, air pollution levels and
micronutrient intake may also account for some of the seasonal pattern.
2.10 The extent to which
housing contributes is not clearly known, but the indication is that people
living in dwellings that are poorly heated are at significantly greater risk.
There is less evidence on the relationship between housing characteristics and
health other than mortality. However, it is very probable that the findings in
relation to cold-related mortality can be extended in broad terms to
cardio-respiratory morbidity and health related quality of life.”
54.
It is against this background that the national average actual case
likelihood of 1 in 340 and the national average distribution of that likelihood
between the four classes of harm must be viewed. The distribution is expressed
with what appears to be great accuracy, down to one decimal percentage point.
For Class I it is given as 31.6%. Because of the weighting given to Class I
harm (10 times that for Class II and 1000 times for Class IV) the percentage
figure adopted is clearly of great significance to the result of the
assessment. But the basis for it, as for the actual case likelihood, has a
fragility that the Guidance itself makes clear.
55.
The conclusion to be drawn from this, in my view, is that RPTs, when
confronted by cases in which enforcement action by councils is in issue, should
not shy away from making their own assessment of the hazard and should not
treat the figures given for national averages as compelling. Any such
assessment must take account of those figures, but it must be reached in the
light of the evidence given in relation to the facts of the particular case. Reasons
must of course be given for it. The tribunal will bring its knowledge and
experience to bear in evaluating the evidence and reaching its conclusion, and
it will, importantly, bring common sense to bear in the judgement that it
makes.
56.
In the present case the RPT leapt to a common sense judgement that the
improvement notice should be quashed. That conclusion was right, in my view,
for the reasons that I have given. But what it ought to have done was to
determine whether or not the evidence showed that there was a category 1
hazard, examining the council’s assessment and the reasons for it and reaching
a conclusion in the light of this and all other relevant material and giving
reasons for its conclusion. If it concluded that there was indeed a category 1
hazard, but its experience and common sense suggested that to require a new
heating system to be installed was inappropriate, then it should have gone on
to consider the alternatives. Had it done this, it would, almost inevitably in
my view, have concluded that a hazard awareness notice was appropriate and the
improvement notice should be quashed.
57.
The appeal is dismissed.
Dated
30 March 2011
George
Bartlett QC, President
