Housing Act 2004 – Improvement notice – Appeal – Appellants bringing appeal against improvement notice served by respondent council – Respondents emailing residential property tribunal indicating that they no withdrew the notice and no longer contested the appeal – RPT holding no right to pursue appeal where notice withdrawn – Whether possible to withdraw notice without formal revocation under section 16 of 2004 Act – Whether respondents’ email amounting to such revocation – Appeal allowed
In February 2009, the respondent council served an improvement notice on the appellant, under section 11 of the Housing Act 2004, requiring him to carry out specified improvements to residential premises in Llangollen, which the appellant let out as seven separate bedsits and which constituted a house in multiple occupation for the purposes of that Act. The appellant appealed against the notice to the Residential Property Tribunal for Wales (RPT). In July 2009, the respondents sent an email to the RPT, indicating that they were withdrawing the notice and no longer wished to contest the appeal, which should be allowed. The RPT then cancelled the scheduled hearing of the appeal.
Meanwhile, the respondents served fresh improvement notices on the appellant requiring the same improvements. In connection with an appeal against those notices, the appellant contended that his original appeal technically remained outstanding and raised an issue as to whether the original notice had been validly withdrawn. It was common ground that the original notice had not become operative while the appeal against it remained unresolved.
The RPT then conducted a hearing of the original appeal. In its decision issued in June 2012, the RPT held that a notice that had not become operative could be withdrawn and that the appellant had no right to pursue his appeal where the respondents had withdrawn the notice to which it related. The RPT ordered the respondents to reimburse the appellant for the hearing fee that he had paid but declined to make any other order on the appeal. In the meantime, after the appeal hearing but before the RPT gave its decision, the respondents had finally given formal notice under section 16 of the 2004 Act revoking the original improvement notice on the ground that it had not been properly served.
The appellant appealed. Issues arose as to: (i) whether a local housing authority could unilaterally “withdraw” an improvement notice so as to deprive the recipient of the right of appeal, without formally revoking the notice under section 16 of the Act; and (ii) whether the respondents’ July 2009 email to the RPT amounted to a revocation under section 16.
Held: The appeal was allowed.
(1) It was not possible informally to “withdraw” an improvement notice. In the terminology of the Act, a notice could become operative, or it could be suspended, revoked, amended, quashed or confirmed. The Act laid down a transparent procedure, with clear consequences for each of those steps, but said nothing of withdrawal. The withdrawal of a notice was an informal concept with no statutory foundation and, because of the informality that attended it, the use of the expression was liable to create uncertainty and confusion. In the operation of a statutory scheme that conferred intrusive powers on local housing authorities and imposed criminal sanctions for non-compliance, such informality should be avoided. The RPT had erred in its view that a notice that had not yet become operative was capable of being withdrawn. That was not a permissible approach to the statutory scheme, since the consequences of a notice not yet being operative were spelled out in the Act itself. A notice was still valid and amenable to the operation of the statutory scheme in the period before it became operative; where the Act intended that a specific provision would not apply to a notice before it became operative, it said so expressly. The fact that the Act allowed for a period when an improvement notice need not be complied with, pending the possibility of a successful appeal, was therefore no justification for the adoption of informal or ad hoc procedures during that period. Accordingly, the only courses of action open to a local housing authority that wished to abandon its reliance on an improvement notice were formally to revoke the notice under section 16 of the Act, or, if there was an appeal, to consent to the appeal being allowed and to an order by the RPT quashing the notice.
(2) There was 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 was the authority’s intention to revoke an improvement notice could potentially be valid, even if the language of revocation was not employed. However, the respondents’ communication in July 2009, informing the RPT that they were “withdrawing” the notice, could not be treated as a revocation of the notice employing non-statutory language. First, the email referred not only to the “withdrawal” of the notice but also to the appeal being allowed; it was ambiguous and could have been understood as an acceptance by the respondents that the notice should be quashed. Moreover, the respondents had come nowhere near to implementing the statutory procedure for revocation of an improvement notice, requiring notice to 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. The authority’s duty to give reasons for a decision to revoke an improvement notice was an important safeguard for recipients of notices and for their tenants. Moreover, it was doubtful whether the reason eventually given would justify revocation. A local housing authority had a statutory duty to take enforcement action when they considered that a category 1 hazard existed. On becoming aware of any defect in service of an improvement notice, the respondents’ duty would be to ensure that the notice was properly served, not to abandon it.
(3) It followed that the RPT had erred in cancelling the 2009 hearing on the basis that the improvement notice had been withdrawn. The better course would have been to treat the respondents’ e-mail as an acceptance that the appeal should be allowed and the notice quashed. It would also have been possible to adjourn the hearing until final confirmation was received from the appellant that he was withdrawing his appeal. The RPT had also erred in its decision of June 2012. Although the notice had been revoked between the hearing and the publication of the decision, it had not been revoked by the time of the appeal and the correct analysis was that the purported withdrawal had been of no effect. Since the notice had in fact subsequently been revoked, however, there was nothing that now remained to be quashed.
The appeal was determined on the written representations of the parties.
Sally Dobson, barrister