Housing – House in multiple occupation (HMO) – Improvement notice – Housing Act 2004 – Appellant council serving improvement notice in respect of fire risk to respondent’s first-floor flat in HMO by reason of inadequate separation from ground-floor flat – Notice served both on respondent and on freehold owner of ground-floor flat – Whether notice properly served on both owners – Whether permissible for notice to specify alternative courses of remedial action – Appeal dismissed
The respondent was the freehold owner of several flats, which he let to tenants, in a house in multiple occupation (HMO) for the purposes of the Housing Act 2004. The freehold of the ground-floor flat belonged to a different owner, who occupied it herself. The appellant council served an improvement notice, under section 12 of the 2004 Act, complaining of a fire hazard to the occupier of the first-floor flat because of inadequate separation from the ground-floor flat. The notice required the provision of additional fire protection, either by plasterboard being applied to the ceiling of the ground-floor flat or the installation of fire resistant material beneath the floor of the first-floor flat. The notice was served both on the respondent and on the owner of the ground-floor flat.
The respondent argued that the ground-floor owner alone should take action since she could remedy the problem by carrying out relatively inexpensive works costing about £1,000 (the first scheme), whereas he would have to carry out expensive and disruptive works to his first-floor flat at a cost of £7,000 (the second scheme).
The respondent’s appeal against the improvement notice was dismissed by the first-tier tribunal (FTT). He appealed to the Upper Tribunal which quashed the improvement notice served on the respondent and, as against the ground-floor owner, varied the notice by deleting the reference to the second scheme of works. She was required to repair the ceiling of her own flat at her own expense. The tribunal held that it was irrational for the appellants to have required the carrying out of the second scheme when a cheaper and easier alternative was available: [2015] UKUT 165 (LC); [2015] PLSCS 124. The appellants appealed contending that the irrationality conclusion was beyond the scope of the appeal; and, in any event, that conclusion was wrong.
Section 11(4) of the 2004 Act provided that an improvement notice might not require remedial action to any part of the building “ … that is not included in any residential premises on which the hazard exists, unless the authority are satisfied— (a) that the deficiency from which the hazard arises is situated there, and (b) that it is necessary for the action to be taken … to protect the health or safety of any actual or potential occupiers … of the flats”.
Held: The appeal was dismissed.
(1) It was common ground that the deficiency which gave rise to the hazard was in the ground-floor flat. Thus section 11(4)(a) was satisfied. The concept of “necessity” in section 11(4)(b), in the context of a scheme for improving housing conditions in the interests of health and safety, included considerations of cost and disruption; and the need to eradicate the cause of the problem rather than merely its symptoms. In looking at the question of possibility in the abstract without regard to cost, disruption and responsibility for the deficiency, the Upper Tribunal adopted too strict a test. However, although the tribunal’s reasoning process might have been flawed, its overall conclusion that it was lawful for the appellants to serve an improvement notice on the ground floor flat owner requiring her to carry out works to the ground floor flat was correct.
(2) It was essential that an improvement notice should not require alternative forms of remedial action where one of the alternatives was to carry out work in premises of which one of the recipients of the notice was the sole owner, and the other was to carry out work either in the premises of the other owner or in both premises. In practice, the better course would be to serve a notice specifying a single course of remedial action by a single owner acting alone. If that was not possible, because a single course of remedial action had to be carried out in premises belonging to different owners, the proposal of alternative courses of action risked making the necessary cooperation more difficult to achieve and should be avoided. If, as in this case, the housing authority concluded that it was necessary to require remedial works to be carried out in a place where the deficiency (rather than the risk) existed, it was difficult to see how it could simultaneously require works to be carried out elsewhere. Whatever meaning was given to the word “necessary”, if the facts dictated that work was carried out in the place where the deficiency (rather than the risk) existed it appeared inconsistent to require different works to be carried out elsewhere.
(3) The tribunal did not have to be satisfied that the inclusion of a particular scheme of works was irrational (and therefore unlawful) before it could exercise the power to vary. The grounds of appeal against an improvement notice were unlimited; and a dissatisfied recipient of such a notice was entitled to appeal on the ground, say, that there existed a cheaper and equally effective alternative to the works required by the improvement notice. Although the Upper Tribunal had used the language of irrationality, it was not a necessary precondition to its exercise of the statutory power to vary the notice. If the tribunal was satisfied that the best way forward was to adopt a scheme of remedial works other than that required by the notice (whether for reasons of cost, efficacy, disruption or any other reason) it might vary the notice to give effect to its decision. Likewise, if it was satisfied that a remedial scheme required in one notice was a better option than one required in another notice, it was entitled to quash the latter and confirm the former. That merely meant that, having heard the evidence, a tribunal was satisfied that there was a better way forward. Accordingly, the Upper Tribunal’s overall conclusion was correct.
Michael Paget (instructed by Kingston upon Hull Solicitors’ Office) appeared for the appellants; The respondent appeared in person.
Eileen O’Grady, barrister
Click here to read a transcript of Wood v Kingston upon Hull City Council
