Housing Act 2004 – Improvement notice – Appellant housing authority serving improvement notice on respondents in respect of category 1 hazard flowing from inadequate heating system in maisonette let to tenants – Residential property tribunal quashing notice on ground that heating adequate notwithstanding existence of category 1 hazard – Whether RPT wrongly replying on own knowledge and experience in finding heating to be adequate – Whether entitled to quash notice where category 1 hazard found to exist – Whether hazard awareness notice more appropriate form of enforcement action than improvement notice – Appeal dismissed
The respondent owned a maisonette which it let to tenants on an annual assured shorthold tenancy. The appellant housing authority served an improvement notice on the respondent, under section 11(1) of the Housing Act 2004, alleging that a category 1 hazard existed at the premises, owing to an inadequate heating system, and requiring that it be remedied by replacing the existing convector heaters with a gas central heating system or night storage heaters. In finding that the hazard from excess cold fell into category one, such as to require mandatory enforcement action, the appellant had applied the numerical scoring system prescribed by the Housing Health and Safety Rating System (England) Regulations 2005.
The respondent appealed to the residential property tribunal (RPT). It argued that the heating system was adequate and was a more suitable, and cheaper, means of heating the flat for the existing tenants, who had themselves expressed satisfaction with it.
The RPT found that there was a category 1 hazard at the flat, such that the appellants had been obliged to take enforcement action in respect of it. However, it went on to note that the tenants themselves had no complaint about the heating and that, on its inspection of the flat, the premises had appeared to be warm and adequately heated despite it being a cold day outside. It further found that, based on its own knowledge and inspection of many similar premises, the heating system that was provided at the premises should be perfectly adequate and was not abnormal for those types of premises. It concluded that the improvement notice should be quashed.
The appellants appealed. They contended that: (i) having determined that the heating system constituted a category 1 hazard, the RPT could not, as a matter of law, quash the improvement notice; and (ii) the matters that the RPT had taken into account in concluding that the heating was adequate were either irrelevant or had been improperly relied on.
Held: The appeal was dismissed.
(1) The RPT’s decision contained little in the way of reasoned explanation. The three matters that it relied on in support of its conclusion that the heating was adequate, namely the absence of complaint by the tenants, the tribunal members’ personal perceptions of the warmth of the flat on their inspection and their knowledge and inspection of other similar premises, were insufficient, in the absence of further explanation, to justify the quashing of the notice. Where the RPT had concluded that a category 1 hazard existed at the premises, such that, under section 5(1) of the 2004 Act, the appellants were obliged to take appropriate enforcement action, it was not open to it to quash the notice unless it reached the view that some other form of enforcement action was more appropriate. The RPT had failed to consider what other enforcement actions, if any, were open to the appellants.
(2) However, the three matters that the RPT had taken into account in reaching its decision were not irrelevant. It had been entitled to take into account 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. While the assessment of likely harm had to be made by reference to a hypothetical person of 65 or over, that did not mean that an RPT had to leave out of account any views expressed by the persons who actually experienced the operation of the heating system on a daily basis. The fact that the occupiers were happy with the system was not, on its own, sufficient reason to conclude that there was no category 1 hazard in respect of excess cold, but it did form part of the factual matrix to which the RPT could properly have regard. The views of the occupiers were also manifestly material when determining the appropriate course of action to take in respect of the hazard. 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 also relevant to both the issues of whether a category 1 hazard existed and which course of action was the appropriate one. 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 that would be a material matter for him to take into account. There was no error by the RPT in taking that factor into consideration in reaching its decision.
Regarding the third matter relied on by the RPT, it had been entitled to take into account its own knowledge and inspection of similar premises. The way in which it had relied on its knowledge and experience did not amount to a procedural error that had substantially prejudiced the appellants. Whether there was a procedural error in relation to the use by a tribunal of its knowledge and experience, and whether substantial prejudice had been suffered as a result, would necessarily depend on the matter under consideration and the nature of the tribunal’s reliance on its knowledge and experience. In the instant case, the RPT had used its knowledge and experience to reach a conclusion on an issue, namely the adequacy of the hearing system, which had been the subject of conflicting evidence from the parties. It had been entitled to proceed in that manner. 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 that had been possible, would have been inappropriate, since an examination of the facts relating to them would have been disproportionate and the results inconclusive: Arrowdell Ltd v Coniston Court (North) Hove Ltd [2007] RVR 39; [2013] PLSCS 278 applied.
(3) The RPT had erred in finding that a category 1 hazard existed in circumstances where it did not accept the appellants’ characterisation of the heating as seriously defective, and, on the contrary, found it to be perfectly adequate and not abnormal for the type of premises. When confronted by cases in which enforcement action by councils was in issue, RPTs should not shy away from making their own assessment of the hazard and should not treat the figures given for national averages as compelling. Although any such assessment had to take account of those figures, it had to be reached in the light of the evidence given in relation to the facts of the particular case. Reasons would have to be given for it, and the RPT would bring its knowledge and experience to bear in evaluating the evidence and reaching its conclusion. The RPT in the instant case should first have determined whether the evidence showed that there was a category 1 hazard, by examining the council’s assessment and the reasons for it and reaching a conclusion in the light of that and all other relevant material, and giving reasons for its conclusion. There was a strong possibility that, had it taken that approach, it would have concluded that there was no category 1 hazard. If it concluded that there was a category 1 hazard, but its experience and common sense suggested that to require a new heating system was inappropriate, then it should have gone on to consider the alternatives. Had it done so, it would almost inevitably have concluded that a hazard awareness notice was appropriate. Although the RPT’s decision was flawed, it had leapt to the correct conclusion, which was that the improvement notice should be quashed. It was unnecessary to remit the matter back to it for re-consideration since the appellants themselves accepted that a hazard awareness notice was the most appropriate course.
John Virgo (instructed by the legal department of Bristol City Council) appeared for the appellants; Piers Harrison (instructed by direct access) appeared for the respondent.
Sally Dobson, barrister
