Housing – House in multiple occupation – Licence – Respondents owning houses in area of selective licensing for HMOs – Appellant local housing authority granting licences to use houses as HMOs subject to conditions requiring provision of carbon monoxide detector and electrical report – Section 90 of Housing Act 2004 – First-tier tribunal ruling that appellants having no power to impose such conditions where not so required by statute – Whether such power existing – Whether imposition of the conditions conflicting with appellants’ duties under Part 1 of Act – Appeal allowed
The respondents were the landlords of two residential properties in Accrington, Lancashire. Both properties were situated in an area designated by the appellant local housing authority for selective licensing of houses in multiple occupation (HMOs) under Part 3 of the Housing Act 2004. In January 2014, the appellants granted licences to the respondents to let their properties as HMOs. Pursuant to section 90 of the 2004 Act, the appellants imposed various conditions on the grant of the licence to regulate the management, use or occupation of the houses, in addition to the mandatory conditions contained in Schedule 4 to the Act.
One of the conditions required the provision and maintenance of a carbon monoxide detector if gas was supplied to the property and another required the provision of a valid electrical installation condition report (EICR) and implementation of any recommendations. In fact, both properties already had carbon monoxide detectors and both respondents had already obtained EICRs in respect of each property which ran for the entire term of the licences, and in respect of which no remedial works or further testing was required.
On appeal to the first-tier tribunal (FTT), the first respondent challenged the requirement for a carbon monoxide detector and both respondents challenged the requirement for an EICR. Allowing the appeals, the FTT held that: (i) the powers to impose conditions to regulate “management use or occupation” of a property did not extend to conditions requiring the installation of equipment, such as a carbon monoxide detector, in the absence of any duty to provide such an item under the provisions of the tenancy agreement or statute or any government regulations under section 90(3); and (ii) it was not permissible, in the absence of any legislative requirement, to impose a condition requiring the production of an EICR. The FTT did hold that, where a suitable carbon monoxide detector had already been installed, it was permissible to impose conditions in relation to its maintenance, and it varied the terms of the relevant condition accordingly. The appellants appealed.
Held: The appeal was allowed.
While the appellants were under no duty to require installation of a carbon monoxide detector or the production of an EICR, that did not mean that they had no power to do so. The power to impose conditions would be rendered nugatory if a local housing authority could only require measures which they had been mandated to impose as a duty, and the discretion explicitly vested in a local housing authority by section 90(1) of the 2004 Act would be reduced to nothing, or almost nothing. The whole purpose of the new system related to housing standards. The power to impose conditions “regulating the management … of the house concerned” was worded deliberately widely, so as not to trammel the ambit of the discretion vested in the local housing authority to impose conditions appropriate to the range of housing stock within their area. There was nothing in section 90 itself or elsewhere in the 2004 Act to cut down the apparently wide ambit of the power.
Section 90 enabled a local housing authority to impose appropriate conditions regulating how the house concerned was “managed” as well as how it was “used” or “occupied”. The concept of “management” was well understood and generally used within the world of landlord and tenant. Where a house was occupied by someone other than the landlord, it was almost invariably the landlord who would be responsible for maintenance of boilers and electrical installations. One aspect of the management of a house was ensuring that its facilities, such as gas appliances and electrical installations, were and continued to be in proper and safe working order. Due to their specialist, technical and potentially dangerous nature, gas appliances and electrical installations required regular, careful and expert inspection and testing and appropriate maintenance or remedial works to carried out by a suitably qualified individual. Thus, the management of a house might involve having some sort of system for routine inspection, testing and maintenance of gas appliances and electrical installations to ensure their proper and safe operation. Equally, constant monitoring of the safe and efficient performance of gas appliances and the effectiveness of the associated ventilation, by provision of a working carbon monoxide detector, could properly be regarded as one aspect of the management of tenanted accommodation. Both could be said to fall within the concept of “management” envisioned by section 90(1). It followed that the provision of a carbon monoxide detector and regular inspection and testing of electrical installations fell within the normal, straightforward and sensible management of a house which was to be let out to third parties and could be the subject of a licensing condition imposed by the local housing authority.
The fact that parliament had legislated, through the mandatory conditions, for annual inspection, testing and certification of gas boilers did not mean that such matters fell outside the concept of “management” of a house but simply meant that parliament had considered that aspect of management to be so important as to require the imposition of mandatory requirements. The risk of malfunction and, further, its consequent health and other risks were a legitimate and proper concern of the landlord when managing the house and so within the purview of the consideration of the local housing authority when considering the appropriateness of the imposition of conditions additional to those mandated by parliament. The power to impose conditions was directed at conditions appropriate to “management” of the house in question and it might or might not extend to requiring “improvements”, as opposed to mere “repairs”.
The imposition of conditions requiring a carbon monoxide detector and EICR report were not unlawful by reason of any conflict with the local housing authority’s functions under Part 1 of the Act with regard to category 1 and 2 hazards. While the appellants could not require such measures by way of enforcement action under Part 1 in relation to such hazards unless they had first inspected the properties, there was nothing to suggest that there was anything to put the appellants on notice that a category 1 or 2 hazard might exist in either of the respondents’ houses. The mere fact that gas might be supplied to the houses and that there were electrical installations possibly needing routine management did not suffice for that purpose. The duty to inspect had not been engaged and none of the appellants’ functions were exercisable under Part 1 in relation to the respondents’ properties. It followed that the imposition of the conditions was nothing more than legitimate regulation of management of the house concerned pursuant to section 90. The appellants’ original conditions were reinstated accordingly.
Matthew Paul (instructed by the legal department of Hyndburn Borough Council) appeared for the appellants; Jonathan Manning (instructed by Bury & Walkers, of Leeds) appeared for the respondents.
Sally Dobson, barrister
Click here to read transcript:Hyndburn Borough Council v Brown and another
