Prohibition notice – Category 1 hazard – Excessive cold – Appellant council issuing prohibition notice requiring respondent owner of flat to install heating system – Respondent installing system of electric wall-mounted panel heaters – Respondent contending that system not complying with requirements of notice since not affordable to run – Residential property tribunal discharging notice – Whether affordability a relevant consideration – Appeal allowed
The respondent owned a one-bedroom, ground-floor flat in a pre-1920s terrace house. In September 2010, the appellant council issued a prohibition notice, under section 20 of the Housing Act 2004, prohibiting the use of the flat for human habitation, other than by the respondent, on the ground of excess cold constituting a category 1 hazard. The notice cited the absence of any permanent, fixed and affordable heating in the dwelling and the low level of thermal insulation, and required the installation of a permanent heating system that was capable of being controlled by the occupants and was efficient and affordable to run.
The respondent appealed to the residential property tribunal (RPT). He contended that the hazard had ceased to exist since all the windows of the flat had been double glazed and an adequate heating system had been installed, consisting of wall-mounted electric panel heaters in the living room, bedroom and kitchen and an electric towel rail in the bathroom, with thermostatic controls and timer switches. The appellants argued that the heating system did not meet the requirements of the notice because it was not affordable to run and asserted that an Economy 7 night storage heater system should be installed. They relied on the operating guidance issued by the office of the deputy prime minister in February 2006.
Allowing the appeal, the tribunal found that the guidance imposed no requirement of affordability, as opposed to efficiency. It found that electric heating was efficient and that whether it was affordable would depend on circumstances such as the occupant’s financial circumstances and the cost of electricity compared to other forms of energy, which were irrelevant to a consideration of the health and safety aspects of the property. It concluded that there was no longer any category 1 hazard at the respondent’s property and that the prohibition notice should be discharged.
The appellants appealed, contending that affordability was a material consideration on a proper application of the Housing Health and Safety Rating System (England) Regulations 2005 and the guidance.
Held: The appeal was allowed.
The RPT had erred in considering the cost of electricity to be irrelevant. The cost of running a heating system was potentially a relevant factor since an occupier could be deterred by the cost from using a heating system. Whether the occupier would be so deterred was a matter for the local authority or, on appeal, the RPT. That view was consistent with the guidance, although that guidance had no independent force and was there merely to assist in the application of the statutory provisions.
Cost might be relevant at two stages: the assessment of the hazard and the consideration of what enforcement action, if any, to take in respect of it. In the context of hazard assessment, the question had to be addressed, pursuant to the 2005 Regulations, by reference to the relevant vulnerable group comprising persons over 65 years old. Any proclivity to be deterred from using a heating system for reasons of expense therefore had to be considered in relation to that group. In the context of the decision on enforcement action, regard could be had to the actual and potential occupiers of the property and their circumstances, which could include their means if that factor would affect their proclivity to use the heating system. Other factors might also be relevant; for example, if the rent was inclusive of heating costs, that would render the cost of heating irrelevant, and if the actual occupiers were satisfied with the heating system, their views on the matter would be material in determining the appropriate course of action to take: Bristol City Council v Aldford Two LLP [2011] UKUT 130 (LC) applied.
The case was remitted to the RPT for reconsideration. The RPT should ask whether the generality of occupiers over the age of 65 would be likely to use the respondent’s panel heater system less than a night storage system in cold weather. If not, then the prohibition order should be quashed. If so, then the RPT should ask whether it was probable that, as a result, there would be such risk to the occupier’s health that a category 1 hazard would remain. It the RPT concluded that a category 1 hazard remained, it would be open to it to consider whether some other enforcement action, rather than a prohibition order, was appropriate. If the conclusion was that a category 2 but not a category 1 hazard remained, then the RPT would have to decide whether it merited enforcement action at all, and, if so, whether a prohibition order rather than some other action was appropriate; in considering those question, it would be material to consider the circumstances of the likely occupiers of the flat. Such circumstances could include their probable means, if that was thought to be significant, and whether they might prefer the present system to a night storage system.
Hugh Derbyshire (instructed by the legal department of Liverpool City Council) appeared for the appellant; Tom McVeigh, of the North West Property Owners Association, appeared for the respondent.
Sally Dobson, barrister