DECISION
Introduction
1. This is an appeal from a decision of the Eastern Rent Assessment Panel Residential Property Tribunal (“RPT”) following a hearing on 15 August 2007. The Tribunal made its decision on the 30 August 2007 and it was distributed to the parties on 3 September 2007. The matter before the RPT was an appeal by Universal Group (“Universal”) against an emergency remedial notice served by Luton Borough Council (“Luton”) in respect of Flat 11, Regency Place,
2.
3. The appeal was conducted under the standard procedure, rather than the simplified procedure and took the form of a complete re-hearing. It follows that the evidence before the Lands Tribunal was not the same as that before the RPT. In particular none of the evidence adduced by Universal before the RPT was presented before the Lands Tribunal and the evidence called by
The Legislative framework
4. Local authorities have been given wide powers to deal with deficiencies in the standard of housing provided to tenants. The powers range from requiring works to be done, to carrying out the works themselves, to prohibiting use of the premises. The local authority’s officer will have to inspect the premises, consider whether specified hazards exist, categorise the hazards, see what courses of action are available, and decide what course to follow. The legislation under which they operate is contained in Part 1 of the Housing Act 2004 which introduced a new system for assessing the condition of residential premises and for the use of the system for enforcing housing standards. The Housing Health and Safety Rating System (
5. The new system set up by the Act operates by reference to the existence of “category 1” and “category 2” hazards on residential premises. The categories are defined in section 2(1) of the Act in these terms:
“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 hazards of that description, a numerical score of or above a prescribed amount;
“category 2 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 hazards of that description, a numerical score below the minimum amount prescribed for a category 1 hazard of that description; and
“hazard” means 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).”
In rather plainer terms, category 1 hazards are serious dangers: category 2 hazards are rather less serious matters
6. Section 4 provides for inspections of property by local housing authorities to determine whether category 1 or category 2 hazards exist and for the making of regulations as to how inspections of premises and assessments of hazards are to be carried out. Amongst other provisions, by section 4(6) where an inspection has been carried out and the proper officer of the local housing authority is of the opinion that a category 1 or category 2 hazard exists on any residential premises in the authority’s district the officer must without delay make a report in writing to the authority which sets out his opinion together with the facts of the case. Section 5 imposes a duty on a local housing authority to take appropriate enforcement action where it considers a category hazard exists. Under the section the local housing authority “must take the appropriate enforcement action”. The appropriate enforcement action has to be one from the list in subsection (2). The list includes emergency remedial action under section 40 or an emergency prohibition order under section 43. However by subsections (3) and (4) if only one of the listed courses of action is available, it must take that course but if two or more courses of action are available the local housing authority must take whichever they consider to be the most appropriate.
7. Under regulation 5 an inspector must (a) have regard to any guidance under section 9, (b) inspect the premises with a view to preparing an accurate record of their state and condition, and (c) prepare and keep such a record in written or in electronic form. The regulations provide an extremely complicated scoring system for the assessment and categorisation of hazards: hence the use of computer programmes to assist in working them out.
8. Chapter 3 of the Act is headed “Emergency Measures”. Under section 40(1) if the local housing authority is satisfied that a category 1 hazard exists, and it is satisfied that the hazard involves an imminent risk of serious harm to the health or safety of any of the occupiers of those or any other residential premises, and no management order is in force under Chapter 1 or 2 of Part 4 in relation to the premises, emergency remedial action 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. Under section 43 a similar power exists to make an emergency prohibition order prohibiting any use of the premises specified in the order. Breach of a prohibition order is a criminal offence.
Facts
9. Regency Place,
10. On 26 April 2007 Mr. Kostarz, an experienced and well-qualified officer employed of
11. On Friday 27 April 2007 Mr Kostarz returned to the premises accompanied by two other Council Officers, Mr Davey and Mr Fenney. There they discovered a carpenter who said he was boarding the building up but could not do so because flats 10 and 11 were still occupied. While they were there the occupant of Flat 10 emerged and said he was leaving. Mr Kostarz carried out a rapid assessment of the premises and considered that it was obvious that there were category 1 hazards. These hazards arose as a result of the lack of the electricity supply and the lack of a water supply. He considered that emergency remedial action ought to be taken. Mr Kostarz, before making any final decision, contacted his line manager Mr Hudson and spoke to him over the telephone. Following the discussion, Mr Hudson carried out his own desktop calculation of the risk. He too concluded that there were category 1 hazards present in the premises as a result of the lack of a water supply and an electricity supply. He decided to take emergency remedial action under section 40 and Schedule 3, para 3 of the Housing Act 2004. Notices of intention to take that action were hand delivered to flats 7, 10 and 11.
12. The action consisted of sending one of the Council’s plumbers to the premises together with an electrician. Their instructions were to restore the water supply and the supply of electricity to the premises. The plumber was readily able to restore the supply of water, but on doing so discovered that the fire hoses had been turned on and they were pouring large quantities of water into the premises. The fire hoses were then turned off by the plumber and the source of the flooding of the premises ceased. Had there been any evidence of any other leaks the plumber would not have left the water turned on. The electrician was unable to carry out any work because the equipment for the supply of electricity had been tampered with in a section owned by the electricity company EDF.
13. EDF was therefore contacted and sent its own engineer to visit the premises and inspect the equipment for the supply of electricity. He discovered the main fuse carriers on the incoming supplies had been removed. He replaced the cut out and power was restored by 6.49pm. Having carried out an inspection the engineers immediately reinstated the supply of electricity to flat 11. The EDF engineer carried out a sufficient inspection to be satisfied that (notwithstanding the flooding which had occurred) it was safe to restore the electricity supply to flat 11 and the common parts. Mr Andrew Skepelhorn was then able to return to the live in his flat where he continued to live until 25 June 2007 despite a possession order being made against him in the Luton County Court on 7 June requiring him to give possession of the flat on the 14 June.
14. The total cost of the works done was £215 to which in seeking recovery from Universal Luton added its administration charge of £50 (its charge is 14 per cent with a minimum of £50).
15. On 2 May 2007
16. Mr Kosartz (1) was familiar with the building having attended the premises in January 2007; (2) had made notes when he visited the building on 26 April 2007; (3) on 27 April 2007 spent some time in the premises, climbing the stairs to the 9th floor; and (4) had, on 27 April 2007, after visiting the building, returned to his office where he had carried out a desktop assessment of the hazards using a simple computer programme which identified in which category each hazard should be placed. He did not prepare a report in writing before service of the notices and did not carry out a full assessment until after the notices were served and the work had been done. The making of the full assessment is a time-consuming and detailed process, the material being entered in a computer programme. Mr Kostarz said the task takes about half a working day. When he did carry it out, the assessment threw up additional hazards which he had not identified on 27 April and which were not referred to in the notice.
17. Universal appealed against the notice. The essence of the appeal, apart from the procedural point, was that category 1 hazards existed at the building but that the appropriate action for
The RPT panel’s decision
18. The RPT’s decision dealt first with issues of law and then with issues of fact. Since the appeal to the Lands Tribunal was by way of re-hearing and the evidence adduced was different it is not necessary to traverse the RPT’s findings of fact on the evidence before it. Its determinations of law are another matter.
19. There is however one apparent finding which straddles the borders of fact and law which should be noted. The RPT appears to have rejected evidence that EDF checked the electrical system for safety on the basis it was hearsay. There is no rule of law, practice or evidence that hearsay evidence will not be admitted in an RPT. Such weight of such evidence may be affected by the fact it is hearsay but it cannot be disregarded simply because it is hearsay, and if the RPT did reject that evidence (as it appears to have done) simply on the basis it was hearsay it was wrong to do so.
20. The next matter of law on which the RPT made a ruling was that it held that a local authority inspector must make a written report under section 4(6) before any action is taken. The RPT itself acknowledged it was wrong in so holding in its reasons for giving permission to appeal against that its finding that
21. The RPT went on to hold that Mr Kostarz was obliged to produce a written report under regulation 5 before taking any action. Again, in my judgment the RPT was wrong. There is nothing in the regulations which requires it. There is no suggestion in the relevant paragraphs of the guidance (paras 4.02 and 4.03) or in the flow chart which appears later in the guidance. There are likely to be a number of occasions when matters should be dealt with first and a detailed report (which as Mr Kostarz testified can take hours to produce) should be produced afterwards. Obvious examples are vulnerable people left without heating in the depths of winter and premises that have been damaged by a gas explosion and left in precarious situation.
22. The RPT went on to criticise
23. In my judgment (whatever may have been the position on the evidence before the RPT) it is clear that Mr Kostarz made a sufficient inspection to enable him to make a properly informed risk assessment. Unlike the RPT I do not accept that because the computer programme scored other less obvious hazards when he made up his full report from his notes his original assessment was inadequate.
24. The next point was as to whether an emergency prohibition order should have been made in place of
25. On this point Luton made submissions to the Lands Tribunal which went far beyond anything made to the RPT. It was submitted that the draconian step of an emergency prohibition order could only be justified where no other measure can reasonably be expected to enable the tenant to occupy his home in safety. Any interference with the right to occupy must be necessary, not just desirable. It is a matter of proportionality. If, as in this case, the tenant could remain in his home if works costing £215.00 were carried out it would not have been proportionate to evict him from his home, probably putting him on the street. Article 8 of the Convention on Human Rights was applicable: see Cosic v
26. Interference would not, in
27. Before the RPT no mention was made of Article 8. In general a local authority may interfere with a person’s right to respect for his home if, and only if, such interference can be justified. Any such interference must be in accordance with law, and it must be necessary in the interests of public safety, or for the protection of the health. This was not a matter which the RPT considered at all on the facts before it. Had the arguments addressed to the Lands Tribunal been addressed to it, it would never have reached the conclusion that the “appropriate enforcement action” would have been an emergency prohibition order.
28. The final matter which the RPT put into the balance in its decision was a point never raised in argument on either side and which neither party was ever given a chance to address, namely that the fact the fire alarm in the premises was not working was a factor which militated in favour of an emergency prohibition order. This was an error on the part of the RPT. Neither party was given a chance to address the issue. If a tribunal is going to take a point of its own motion the parties must be given a proper opportunity to address it. In this instance on the evidence before the Lands Tribunal the Bedfordshire and Luton Fire & Rescue Service were aware of the situation and required certain works to be done but were not pressing for the premises to be closed. In these circumstances the point was not one on which the RPT should have sought to rely because it failed to allow the parties a chance to address the point and (if it had) would have found that it could not properly rely on the point.
Conclusion
29. In the present case on the evidence before me (as opposed to the different evidence which was put before the RPT) there is no basis for assertion that
30. It follows that the decision of the RPT must be set aside and Universal’s appeal against the emergency remedial action must be rejected.
Dated 17 April 2009
His Honour Judge Reid QC
