UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2010] UKUT 488 (LC)

UTLC Case Number: HA/4/2012

 

TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

HOUSING – Enforcement Action –improvement notice – appeal to RPT – notice “withdrawn” before appeal – effect of “withdrawal” – whether appellant entitled to determination quashing notice – sections 11-16 Housing Act 2004 – appeal allowed

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF A RESIDENTIAL PROPERTY TRIBUNAL FOR THE RENT ASSESSMENT PANEL FOR WALES

BETWEEN JOHN DANIEL SIMON Appellant

and

DENBIGHSHIRE COUNTY COUNCIL Respondent

 

Re: 10 Bridge Street

Llangollen

Wales

LL20 8PF

 

 

 

 

Before: Martin Rodger QC, Deputy President

 

 

Decision on written representations

 

 

 

 

DECISION

Introduction

1.           This appeal raises two technical questions concerning improvement notices under Part I, Housing Act 2004 (“the Act”).  Those questions are:

(1)  Whether an improvement notice served by a local housing authority under section 11 or 12 of the Act may unilaterally be “withdrawn” by the authority, so as to deprive the recipient of the right of appeal, without the authority formally revoking the notice under section 16 of the Act.

(2)  If not, whether a statement by the local housing authority to the Residential Property Tribunal that it no longer wishes to contest an appeal by the recipient of an improvement notice and is withdrawing the notice, amounts to a revocation of the notice under section 16 of the Act so as to deprive the recipient of the right of appeal.

2.           These questions arise in the context of an appeal by Mr John Simon, the owner of residential premises at 10 Bridge Street, Llangollen (“the Premises”), against a decision of the Residential Property Tribunal for Wales (“the RPT”) given on 26^th June 2012.  The proceedings before the RPT were themselves an appeal by Mr Simon against an improvement notice under section 11 of the Act served on him as the owner of the Premises by Denbighshire County Council on 4 February 2009 (“the Notice”). 

3.           The decision of the RPT was, in effect, that Mr Simon had no right to pursue his appeal, because the Council had withdrawn the Notice in a letter to the RPT on 29 July 2009.  It directed that the hearing fee paid by Mr Simon be repaid by the Council, but declined to make any other order on the appeal.  Mr Simon disputes the correctness of the RPT’s approach which has deprived him of the opportunity of challenging the grounds on which the Notice was originally served.  The Council, for its part, has not abandoned all enforcement action against Mr Simon and has subsequently served further improvement notices requiring the same improvements to the Premises.

4.           This Appeal is brought by way of review of the RPT’s decision with the permission of the Tribunal (Mr George Bartlett QC, President) granted on 14 November 2012.  With the agreement of the parties the appeal has been considered by me on the basis of their written representations.

 

 

The statutory scheme

5.           Part I of the Housing Act 2004 contains a scheme for assessing housing conditions and enforcing housing standards.  Sections 1-4 create a framework for assessing housing hazards as either category 1 or category 2 hazards.  Section 5 imposes an obligation on a local housing authority to take appropriate enforcement action if it considers that a category 1 hazard exits.  Section 7 confers power on a local housing authority to take enforcement action if it considers that a category 2 hazard exits. 

6.           In the case of either category of hazard the enforcement options available to an authority include the service of an improvement notice (sections 11 and 12), the making of a prohibition order (sections 20 and 21), or the service of a hazard awareness notice (sections 28 and 29). 

7.           In relation to either category of hazard, the taking by an authority of any of the permitted course of action does not preclude the existence of a duty, or a power, to take the same course of enforcement action again or a different kind of enforcement action, where they consider that the action taken by them so far has not proved satisfactory (sections 5(5) and 7(3).

8.           Section 11 and 12 of the Act concerns improvement notices relating to category 1 and category 2 hazards respectively.  Such notices may relate to any dwelling, flat or house in multiple occupation and require the person on whom they are served to take the remedial action specified in the notice.  Section 13 identifies the information which an improvement notice must contain, including details of the hazard, the required remedial action and the time scale for commencing and completing that action, together with information concerning the right of appeal against the authority’s decision to serve the notice.

9.           An improvement notice may state that its operation is suspended until a specified time or the occurrence of a specified event (section 14(1)).  If it is not suspended, the general rule laid down by section 15(2) is that an improvement notice becomes operative at the end of the period of 21 days beginning with the day on which it is served.  That period of 21 days is also the time limit within which the recipient of an improvement notice may appeal to the RPT against the notice under Part 3 of Schedule 1 to the Act (Schedule 1, paragraphs 10(1) and 14(1)). 

10.        In the event of an appeal section 15(5) of the Act applies.  It provides that if an appeal against a notice is made under Part 3 of Schedule 1, the notice does not become operative until the “operative time” determined under paragraph 19 of that Schedule; that time does not occur until the appeal process (including any appeal to the Upper Tribunal) is completed and the notice is finally confirmed, or any period of suspension expires.

 

11.        Provision is made for the revocation and variation of improvement notices by section 16 of the Act.  The following parts concern revocation:

“16 Revocation and variation of improvement notices

This sectionnoteType=Explanatory Notes has no associated

(1) The local housing authority must revoke an improvement notice if they are satisfied that the requirements of the notice have been complied with.

(2) The local housing authority may revoke an improvement notice if—

(a) in the case of a notice served under section 11, they consider that there are any special circumstances making it appropriate to revoke the notice; or

(b) in the case of a notice served under section 12, they consider that it is appropriate to revoke the notice.

….

(5) A revocation under this section comes into force at the time when it is made.

….

(8) The power to revoke or vary an improvement notice under this section is exercisable by the authority either—

(a) on an application made by the person on whom the improvement notice was served, or

(b) on the authority’s own initiative.”

12.        Where an authority decides to revoke or vary an improvement notice, it must serve a notice under paragraph 6 of Part 2 of Schedule 1 to the Act on all those on whom the notice was originally served (paragraph 6(2)).  The content of that notice is prescribed by paragraph 7, which provides as follows:

“7. A notice under paragraph 6 must set out –

(a)  the authority’s decision to revoke or vary the improvement notice;

(b) the reasons for the decision and the date on which it was made;

(c)  if the decision is to vary the notice –

(i)    the right of appeal against the decision under Part 3 of this schedule, and

(ii) the period within which an appeal must be made (see paragraph 14(2).”

13.        Appeals to the RPT are provided for by Part 3 of Schedule 1 to the Act.  The right of appeal against an improvement notice is conferred on the person on whom a notice is served by paragraph 10(1).  The powers of the RPT on an appeal under paragraph 10 are stated in paragraph 15(3), as follow:

“The tribunal may by order confirm, quash or vary the improvement notice.”

14.        The relevant person may also appeal under paragraph 13(1)(b) against a decision by the authority to refuse to revoke or vary an improvement notice, in which case the RPT may by order confirm, reverse or vary the decision (paragraph 18(3)). 

15.        It is also relevant to mention in outline certain other draconian features of the statutory scheme.  By section 30 of the Act, once an improvement notice becomes operative, it is an offence for the person on whom the notice was served to fail to comply with it.  By section 37, an improvement notice is a local land charge, and so is registrable in the local land charges register subject to the provisions of the Local Land Charges Act 1975.  Finally, Schedule 3 to the Act contains a battery of enforcement powers.  These include the right for a local housing authority to enter premises at any reasonable time in order to take the action required by an improvement notice which has not been complied with, and to recover the expenses which the authority incurs in doing so from the person on whom the notice was served.

The facts

16.        I take the following facts, which are recorded by the RPT in its decision, or appear from the documents lodged in support of the appeal, as the basis of my consideration of the appeal.

17.        The Premises are a house in multiple occupation, comprising seven separate bedsits let by the appellant to tenants.

18.        The Notice was served on the appellant by the respondent on 4 February 2009. It informed him that, in the opinion of the respondent, a category 1 hazard existed in the Premises and required that specified works be carried out to remedy the hazard within 90 days.  The hazard was described as “excess cold” caused by a lack of insulation, and the remedial work required by the Notice was the provision of insulating materials, the installation of double or secondary glazing, and the fitting of thermostatic radiator valves and electrical heating appliances in each of the bedsits.

19.        The appellant lodged his appeal against the Notice with the RPT on 24 February 2009, and a hearing was arranged for 18 and 19 August 2009.

20.        On 29 July 2009, without any prior communication with the appellant, the respondent’s solicitor wrote directly to the RPT as follows:

 

“I write to advise the Tribunal that the Respondent Local Authority no longer wish to contest the Appeal against Improvement Notice, brought by Mr Simon, in relation to the above premises.

The Local Authority has taken the view to allow Mr Simon’s appeal and withdraw the Improvement Notice dated 4 February 2009

The Appellant will be notified of the same.”

21.        Notwithstanding the final sentence of that letter the respondent took no steps to inform the appellant that it no longer wished to contest his appeal.  He became aware of its decision only because an RPT clerk e-mailed a copy of the letter to him on 3 August 2009, asking whether, in view of its contents, he wished to withdraw his appeal.  The appellant responded later that day, also by email, saying:

“In the light of the contents of the Denbighshire letter there would seem little purpose in proceeding with the appeal, and I confirm that I will withdraw my appeal.

 

I will confirm this in writing to you once I have received the letter from Denbighshire.”

The final sentence of the appellant’s letter indicates that he expected to receive written confirmation from the respondent of its position, and shows that he did not intend conclusively to withdraw his appeal until that had occurred. 

22.        On the following day the RPT clerk cancelled the arrangements for the two day hearing of the appeal and informed the respondent by e-mail that it had done so. The e-mail was not addressed or copied to the appellant, and he later complained that he had received no further contact regarding the appeal from the respondent or from the RPT.

23.        Despite the “withdrawal” of the Notice, the respondent took no steps to remove an entry which it had procured, recording the Notice against the Premises in the register of local land charges. 

24.        At first, no explanation was given by the respondent for its decision to withdraw the Notice.  It was not until 15 June 2012 that it was suggested for the first time by the respondent that the Notice had been served incorrectly.  No point relating to service of the Notice appears ever to have been taken by the appellant, who has questioned the accuracy of the respondent’s explanation.

 

25.        On 16 May 2011, more than 18 months after the “withdrawal” of the Notice, the respondent served nine further improvement notices in relation to the Premises (one for each of the seven bedsits, one for the internal common parts, and one for the external building fabric). These notices informed the appellant of the respondent’s view that the premises were subject to the same category 1 hazard, excess cold, and required the same remedial work as the original Notice.  The notices also added a catalogue of additional hazards in respect of which remedial action was required, most falling within category 2.

26.        On 1 June 2011 the appellant appealed to the RPT against the nine notices.  He pointed out that “technically” his original appeal remained outstanding, which, he said, gave rise to a number of concerns.  Since the most recent notices covered the same ground as the original Notice “I should not be paying twice for what is effectively one appeal”.  He also invoked the principles of natural justice and double jeopardy and concluded “clearly I should not expect to have to go through such a process time after time merely because the Council wishes to impose its will in matters where I believe it is incorrect”. 

27.        In subsequent correspondence with the RPT, the appellant maintained that he had never withdrawn his original appeal against the Notice, for which he had paid a hearing fee of £150. He accused the respondent of an abuse of process in the manner in which it had abandoned its defence of his original appeal only to raise the same complaints again in subsequent notices.

28.        The appeal against the Notice, which had originally been due to take place in August 2009, was eventually heard by the RPT on 24 July 2012.  After the hearing but before the decision was sent to the parties, the respondent served a further notice dated 15 June 2012, revoking the Notice under section 16 and paragraph 6 of Part 2 of Schedule 1 to the Act.  The notice of revocation stated that it was given because the Notice had not been properly served.

The RPT’s decision

29.        In its decision of 26 June 2012, the RPT drew attention to section 15(5) of the Act, which provides that an improvement notice which is the subject of an appeal does not become operative until it is confirmed on appeal and the time for any further appeal has expired.  The RPT went on:

“We consider that the Notice having been withdrawn by the Council that it is not possible for the Landlord’s first [appeal] to proceed.  The Notice once served does not become operative until either the period of 21 days (the period for making an application to the tribunal) has expired or, if an appeal is made, the date of this Tribunal’s decision (and the time for appeal to the Upper Tribunal) has passed.  We determine that until the Notice becomes operative it can be withdrawn by the Council and notwithstanding that they appear not to have directly informed the Landlord that it was withdrawn, that it was.

We do not consider that the provisions of the Act relating to revocation apply as these can only operate once a notice has become operative.”

30.  The RPT ordered that, if the application fee for the first appeal had not been refunded to the appellant by the respondent, it should be, and made no order as to costs.

The Appellant’s Case

31.        The Appellant makes a number of points in support of his appeal, which I will summarise:

(1)    His e-mail of 3 August 2009 did not withdraw his original appeal against the Notice (presumably because he never received the written confirmation of the respondent’s decision to concede the appeal, and so never confirmed his willingness to withdraw the appeal).

(2)    The hearing should have gone ahead on 18 August 2009, and the RPT should have allowed the appeal and quashed the Notice.

(3)    The RPT’s decision not to hear the appeal in 2009 was for administrative convenience, and was contrary to its own objective to deal fairly with cases before it.

(4)    The respondent had behaved inconsistently by revoking the Notice after the hearing of his appeal, despite claiming that its letter of 29 July 2009 had been effective to withdraw the Notice.

(5)    The Appellant argues that the RPT misinterpreted the effect of sections 15 and 16 of the Act.  Its decision permitted the respondent to withdraw the Notice without any consequences.  He suggests that the concept that a local housing authority can issue and then withdraw improvement notices once they are challenged, only to re-issue them later as it wishes, undermines the whole appeal process.

The Respondent’s Case

32.        The respondent submissions can also be summarised:

 

(1)    The Notice was withdrawn because, when preparing for the original appeal, the respondent concluded that it had not been served correctly.

(2)    The effect of section 15(5) of the Act, was that because the appellant had brought an appeal against the Notice, it did not become operative and could be withdrawn at any time.

(3)    The withdrawal of the Notice was not communicated to the appellant by the respondent directly, but the clerk’s e-mail of 3 August 2009 to the appellant was sufficient for that purpose.

(4)    The RPT was right to refuse to consider the original appeal on the grounds that the Notice had been withdrawn.

(5)    The revocation notice of 15 June 2012 had been served “for completeness”.

(6)    Having re-inspected the Premises in 2011 the respondent considered that category 1 hazards were still present and it was therefore obliged to serve further improvement notices on 16 May 2011. 

(7)    The respondent submits that the May 2011 improvement notices are valid, although they remain under appeal to the RPT.  In particular it argues that there is nothing in the Act which prevents it from serving further improvement notices raising the same issues as were addressed in a previous notice which was withdrawn.

Issue 1 - can an improvement notice be withdrawn?

33.        It is common ground that the Notice did not become operative while the appeal against it remained unresolved.  The basis of the RPT’s decision was that for as long as the Notice was not operative it was capable of being withdrawn by the respondent, and that once the Notice was withdrawn, there was nothing against which the appellant could pursue his appeal.

34.        The Act itself does not refer to the “withdrawal” of an improvement notice.  In the terminology of the Act a notice may become operative, or it may be suspended, revoked, amended, quashed or confirmed.  The Act lays down a transparent procedure with clear consequences for each of those steps, but says nothing of withdrawal. The withdrawal of a notice is an informal concept with no statutory foundation.  Because of the informality which attends it, the use of the expression is liable to create uncertainty and confusion, as it has in this case.  In the operation of a statutory scheme which confers intrusive powers on local housing authorities and imposes criminal sanctions for non-compliance, such informality ought to be avoided.

 

35.        The RPT’s justification for giving recognition to the respondent’s extra-statutory withdrawal of the Notice was that the Notice had not yet become operative and that, until it became operative it was capable of being withdrawn.  It does not seem to me that is a permissible approach to the statutory scheme because the consequences of a notice not yet being operative are spelled out in the Act itself.  It is true that an improvement notice does not become operative until it has been confirmed on appeal or the time for appealing has expired.  No offence is therefore committed by the recipient of a notice who fails to comply with it before it has become operative.  Additionally a notice which has not yet become operative is not a local land charge.  Nonetheless a notice is still valid and amenable to the operation of the statutory scheme in the period before it becomes operative; where the Act intends that a specific provision will not apply to a notice before it becomes operative it says so expressly, as in section 30(1) (offences) and in section 37(2) (local land charges).  There is nothing in the Act which postpones the power of an authority to amend or revoke a notice until after it has become operative.  The fact that the Act allows for a period when an improvement notice need not be complied with pending the possibility of a successful appeal is therefore no justification for the adoption of informal or ad hoc procedures during that period.

36.        In my judgment therefore the only courses of action open to a local housing authority which wishes to abandon its reliance on an improvement notice are either to revoke the notice under section 16 of the Act, or, if there is an appeal, to consent to the appeal being allowed, and to an order by the RPT quashing the notice.

Issue 2 – was the Notice revoked?

37.        I have also considered whether it is possible in this case to treat the respondent’s e-mail of 29 July 2009, in which it informed the RPT that it was “withdrawing” the Notice, as a revocation of the Notice employing non-statutory language.  There is no prescribed form of notice of revocation and, on ordinary principles of the interpretation of statutory or contractual notices, any communication making it clear to the ordinary recipient that it is the authority’s intention to revoke an improvement notice could potentially be valid, even if the language of revocation was not employed. There are however three difficulties with that approach in this case.  

38.        The first is that the e-mail of 29 July 2009 did not refer only to the withdrawal of the notice, but also to the respondent’s wish no longer to contest the appeal which, it suggested, should be allowed.  If the Notice was revoked there would be no basis on which the appeal could be allowed.  The RPT’s powers under paragraph 15(3) of Schedule 1 to the Act are to confirm, quash or vary a notice, none of which is possible if the notice has already been revoked. The e-mail was itself ambiguous, and might have been understood as an acceptance by the respondent that the Notice should be quashed by the RPT. 

 

39.        The second difficulty is that the respondent came nowhere close to implementing the statutory procedure for revocation of an improvement notice.  The procedure contemplated by paragraph 6 of Schedule 1 to the Act requires that notice must be given setting out the authority’s decision to revoke the improvement notice, the reasons for the decision and the date on which it was made.  Section 16(5) of the Act stipulates that a revocation under the section comes into force “at the time when it is made”.  The Act seems to distinguish between an authority’s decision to revoke an improvement notice and the revocation itself, which is complete only when the decision and the reasons for it are communicated by a notice in accordance with paragraphs 6 and 7 of Schedule 1.  In this case there was no communication between the respondent and the appellant and nothing which satisfied paragraphs 6 and 7 until the notice of revocation given on 15 June 2012, almost 3 years after the purported withdrawal of the Notice .

40.        The final obstacle to treating the purported withdrawal of the Notice in this case as a revocation, is the justification which was belatedly given for the decision to withdraw. A notice in respect of a category 1 hazard served under section 11 may only be revoked if the authority which served it consider that there are a special circumstances making it appropriate to revoke the notice.  It will be remembered that a local housing authority has a statutory duty (not merely a power) to take enforcement action when it considers that a category 1 hazard exists.  It is consistent with that duty that once an improvement notice has been served it may not be withdrawn except in special circumstances.  I very much doubt that a failure to serve the Notice could justify a decision to revoke it; on becoming aware that a notice had not been validly served the respondent’s duty would be to ensure that the notice was properly served, not for it to be abandoned.

41.        The authority’s duty to give reasons for a decision to revoke an improvement notice is an important safeguard for recipients of notices, and for their tenants.  If the respondent had informed the appellant in 2009 that it was revoking the Notice because it had doubts about service, he could not have been misled into thinking that no further enforcement action was to be expected.  When he received the respondent’s e-mail withdrawing the Notice, the appellant might reasonably have concluded that the respondent accepted his assertion that there was no category 1 hazard at the Premises and that the remedial work was not required.  The appellant’s annoyance in 2011 on being served with further notices making the same allegations is understandable.

Conclusion

42.        In my judgment the RPT was wrong in July 2009 to cancel the hearing of the appeal on the basis that the Notice had been withdrawn.  The better course would have been for the RPT to treat the respondent’s e-mail as an acceptance by the respondent that the appeal should be allowed and for it to quash the Notice.  It would also have been possible to adjourn the hearing until final confirmation was received from the appellant that he was withdrawing his appeal.

 

43.        The RPT was also in error in its decision of 25 June 2012.  Although the Notice was formally revoked between the hearing and the publication of the decision, the RPT appears not to have been aware of the revocation.  The Notice had not been revoked by the time of the appeal and the correct analysis was that the purported withdrawal had been of no effect.  If the respondent was unwilling to contest the appeal, the RPT should have quashed the Notice. 

44.        The Notice was, however, revoked on 15 June 2012.  There is therefore nothing remaining to be quashed and although I allow the appeal I do not make any further order in relation to the Notice.

45.        The appellant has asked that, if successful, he be awarded his costs of the appeal.  Under Rule 10 of the Tribunal Procedure (Upper Tribunal)(Lands Chamber) Rules 2010 (as amended) the Tribunal’s power to award costs on appeals from the RPT are limited to cases where it considers that a party or its representative has acted unreasonably in bringing, defending or conducting the proceedings.  I do not consider such an award is appropriate in this appeal.  I will, however, order that the appeal fees totalling £450 paid by the appellant be repaid to him by the respondent.  This sum is in addition to the figure of £150 already ordered by the RPT. 

Disposal

46.        The appeal is allowed.  The respondent is ordered to repay to the appellant the sum of £450.

 

 

 

 

 

Martin Rodger QC,

Deputy President

 

15 October 2013