Housing – Emergency remedial action – Hazards posing risk to health and safety – Sections 40 and 41 of Housing Act 2004 – Respondent landlord disconnecting electricity and water supply to building in which some flats occupied – Appellants taking emergency remedial action under sections 40 and 41 to restore electricity and water – Whether prior written report required – Whether emergency prohibition order more appropriate course of action – Appeal allowed
The respondent was the landlord of a 12-storey building that had flats on the upper storeys. In April 2007, the tenant of flat 11 complained to the appellant council that the electricity and water supplies to the building had been disconnected. An officer of the appellants twice attended the premises and carried out an assessment of the hazards using a simple computer programme. He confirmed a “category 1” hazard resulting from the lack of electricity and water. The appellants took emergency remedial action under section 40 of the Housing Act 2004, involving works to restore the water and electricity supplies. They subsequently served a section 41 remedial action notice on the respondent, from which they sought to recover £215 for the cost of the works plus a £50 administration charge. The appellants’ officer did not prepare a full written report before the notice was served and carried out a full assessment only after the notice had been served and the work completed. The full assessment brought to light additional hazards that had not been identified or referred to in the notice.
The respondent appealed to the Residential Property Tribunal (RPT). It contended that: (i) before taking any action, the appellants had been obliged to produce a written report pursuant to section 4(6) of the 2004 Act and regulation 5 of the Housing Health and Safety Rating System (England) Regulations 2005; and (ii) the appropriate course had not been the service of an emergency remedial notice, but an emergency prohibition order prohibiting use of the premises. The RPT accepted those contentions and reversed the appellants’ decision. The appellants appealed to the Lands Tribunal by way of a complete rehearing with additional evidence. They contended that, inter alia, an emergency prohibition order evicting the occupant of flat 11 from his home would have contravened his rights under Article 8 of the European Convention on Human Rights in circumstances where works costing £215 would enable him to occupy his home safely.
Decision: The appeal was allowed.
(1) There was nothing in section 4(6) of the 2004 Act, or in the 2005 Regulations, that required the written report to be made before any action was commenced. There were a number of occasions when matters should be dealt with first and a detailed report, which could take hours to produce, be made afterwards. The relevant government operating guidance issued under the 2005 Regulations envisaged a fairly rapid assessment of the hazards using a paper scoring form or a scoring programme for a hand-held computer or desktop PC. Although the guidance indicated that an inspection had to be sufficiently thorough to enable all relevant material to be collected, it recognised that, owing to practical considerations, there were limits as to the extent to which an inspector had to go. The appellant’s officer had made a sufficient inspection to enable him to make a properly informed risk assessment. The fact that the computer programme had scored other, less obvious hazards when he made his full report did not mean that his original assessment was inadequate.
(2) In general, a local authority could interfere with a person’s right to respect for his home only if such interference was justified. Such interference must be in accordance with law and be necessary in the interests of public safety or for the protection of health. Had Article 8 been mentioned before the RPT, it would not have concluded that the “appropriate enforcement action” was an emergency prohibition order. In the case of category 1 hazards on premises that could be, and were, dealt with at a cost of £215, no reasonable person would have considered it justifiable to deprive he occupant of flat 11 of his home in order to avoid executing those works. The appellants’ emergency remedial action had been the correct course. Had they decided to make an emergency prohibition order, it would have been an impeachable decision because the enforcement action would not have been appropriate enforcement action: Cosic v Croatia: ECHR Application 28261/06, Kay v Lambeth London Borough Council [2006] UKHL 10; [2006] 2 AC 465 and Doherty v Birmingham City Council [2008] UKHL 57; [2008] 3 WLR 636 applied.
Simon Birks (instructed by the legal department of Luton Borough Council) appeared for the appellants; the respondent did not appear and was not represented.
Sally Dobson, barrister
