Mr S Ahmed and Miss B Ahmed v T B Shiffer and (one of HM Inspectors of Health and Safety): 1801011/2023

EMPLOYMENT TRIBUNALS

Case No 1801011/2023

Between

Mr S Ahmed and Miss B AhmedClaimant

Mr L Hughes, counsel The unanimous Judgment of the Tribunal is:Respondent

Before

Employment Judge JM Wade

In person for appellant

Mr L Hughes (instructed by counsel) for respondent

Date 29 September 2023

JUDGMENT

[1]The notices N-TBS-300123-01 and N-TBS-300123-01A served by the respondent on the appellants on 30 January 2023 are affirmed subject to the following modifications: In 300123-01A “Mrs” is replaced by “Miss”; and in both notices: After “and the matters which give rise to the said risks are:” substitute: “The chimney at the front of the property is supported by a piece of timber under the chimney’s mid feathers; The rear chimney has about 1.5m of chimney remaining on the second floor and again not supported on the underside; and The rear chimney is not supported between first and second floors; And there is a risk of local collapse of the chimney structures/masonry and injury from falling masonry, rendering the property structurally unstable or weakened and unsafe.”

[2]The appellants shall by 30 August 2023 provide to the respondents any documents on which they rely in connection with their opposition to the oral application for costs made on behalf of the respondent today.

[3]The respondent shall by no later than 13 September 2023 provide to the Tribunal and the appellants either a) an application for costs in writing together with any consequent schedule of costs and confirmation of which type of decision, papers or attended hearing, she seeks; or b) confirmation that a costs application is not pursued.

[4]If the costs application is pursued, the appellants may then submit to the Tribunal and the respondent any further grounds of opposition by 27 September 2023 and confirmation of whether they wish the application to be decided by the Employment Judge without a hearing or by the full panel at a hearing at which they attend (or be represented).

[5]A decision/hearing date shall then be fixed as soon as practicable before the full Tribunal or the Judge alone as appropriate with a time estimate of three hours/two hours respectively.

REASONS

Introduction and background (including agreed and other facts)

[1]A prohibition notice can be served by an inspector appointed by an instrument in writing pursuant to section 19 of the Health and Safety at Work Act 1974. Tania Shiffer is an inspector of health and safety duly appointed in accordance with section 19 of The Health and Safety at Work etc Act 1974.

[2]As such she has a number of powers conferred upon her. Local authority building control officers also have distinct powers available to their authorised officers pursuant to the Building Act 1984.

[3]Appeals against Prohibition Notices come to the Employment Tribunals.

[4]Miss Bethany Ahmed is the lawful owner of 51 Haworth Road, Cross Roads, Keighley, BD21 2DH (the premises) since December 2021/January 2022. Mr Shabir Ahmed has undertaken construction works at the premises since it was transferred to Miss Ahmed. The notice was issued to Mrs Ahmed, which was an error in that it was assumed Bethany Ahmed, the registered proprietor at the land registry, was Mr Ahmed’s wife – she is in fact his daughter currently residing in Manchester.

[5]Mr Ahmed has on occasions been assisted by another person in those works, said by Mr Ahmed to be his brother.

[6]An initial enforcement inspection took place at the premises by Paul Inman of building control on 27 September 2022.

[7]Mr Inman did not on that occasion observe the condition of chimney breasts and was primarily concerned on that occasion with the safety issues at the front of the property in connection with the passage of the public.

[8]There were then various failed attempts to gain access to the premises with Mr Ahmed’s consent. Mr Ahmed was and is the principal key holder. A warrant was obtained at the Magistrate’s Court and enforced on 26 January 2023 pursuant to their powers under section 95 of The Building Act 1984.

[9]Prohibition notices were served on the appellants by the respondent on 30 January 2023 pursuant to the inspector’s power under section 22 of The Health and Safety at Work Act 1974.

[10]Attempts to meet Mr Ahmed at the property between late September and January were conducted in an entirely courteous way by Mr Inman and his manager, albeit their attempts to meet with Mr Ahmed at the property did not meet with success.

[11]The communications from building control became more firm including suggesting that a representative could be sent on Mr Ahmed’s behalf. We find that his brother or another family member or Miss Ahmed could have attended at the property with the keys on an earlier occasion in order to meet with Mr Inman.

[12]Miss Shiffer had not attended at the premises at the time of serving the prohibition notices.

[13]She had discussed the matter with Mr Inman and Mr Perkins at building control.

[14]Further to serving the prohibition notices the respondent saw further photographs which had been taken at the premises by building control on the 26th. She saw these on 31 January 2023.

[15]The premises was boarded by building control pursuant to their powers under Section 78 of The Building Act 1984.

The Law

[16]A statement of the law that applies to this appeal was included in the agreed statement of facts for today.

[17]Section 24 of the 1974 Health and Safety at Work Act 1974 says: Appeal against improvement or prohibition notice.(1) In this section “a notice” means an improvement notice or a prohibition notice.

(2) A person on whom a notice is served may within such period from the date of its services may be prescribed appeal to an employment tribunal; and on such an appeal the tribunal may either cancel or affirm the notice and, if it affirms it, may do so either in its original form or with such modifications as the tribunal may in the circumstances think fit.

(3) Where an appeal under this section is brought against a notice within the period allowed under the preceding subsection, then —………. (b) in the case of a prohibition notice, the bringing of the appeal shall have the like effect if, but only if, on the application of the appellant the tribunal so directs (and then only from the giving of the direction).

[18]The “like effect” is the suspension of the relevant notice or prohibition notice.

[19]At subsection 4 one or more assessors may be appointed for the purposes of any proceedings brought before an Employment Tribunal under this section. In this case the Tribunal did float with the parties the prospect of a site visit, because the issues in connection with this appeal are not matters which frequently come before the Tribunal. In some circumstances we might be helped by either a site visit or some form of expert evidence. Fortunately we have had heard evidence from Miss Spicer, a structural engineer. Further background findings about the works at the premises

[20]We will describe in words our findings from, essentially, plans and photographs as well as oral evidence. The property in question (the premises), as defined, had, historically, two chimneys each comprising chimney breasts over three floors and chimney stacks above the roof line. The rear chimney breast and the stack formed, in effect, one side of an arch type structure, with the other side running inside the rear of the neighbouring property, a butcher’s premises. The front chimney was also shared with the neighbouring property.

[21]Both front and rear chimney breasts in both properties were removed historically at ground floor level, as were the rear chimney stack and front chimney stack, that is before Mr Ahmed’s involvement the chimney stacks were removed, or reduced to a very low level above the roof in the case of the front chimney stack. In lay terms, the bottom and top of the chimney structures had been removed, but the first and second floor structures had been left, with the obvious lack of support from ground up.

[22]During the renovation works which Mr Ahmed was undertaking at the premises, he removed the internal ground floor wall essentially creating one room out of the front and back rooms of the shop. He installed a support - a steel RSJ.

[23]These works were taking place in the premises at the material times. The evidence and other matters

[24]We had a bundle of 300 pages or so. A good deal of that was providing us with the relevant law, but we have had access to many images taken in the property both by Mr Ahmed and indeed by Mr Inman. We heard oral evidence on behalf of the inspector from Mr Inman, building control surveyor, from Miss Shiffer, the inspector herself, and also from Miss Spicer, who is a structural engineer.

[25]We simply say that we are satisfied that these witnesses are witnesses of truth and they gave sensible, frank evidence and we had no reason to doubt anything that was said to us.

[26]We have also heard evidence from Mr Ahmed, the appellant, on his own behalf. We have not heard oral evidence from Miss Ahmed because she did not attend. At the start of the case we took steps (by a call from our clerk to Miss Ahmed) to be satisfied that she had appointed Mr Ahmed to act as her representative in the case. A lay representative is permitted, and indeed common, in this Tribunal.

[27]Nevertheless we have heard no oral evidence from her about, for example, the purpose for which the property was purchased, or any other matters on which she could help us. We were simply told by Mr Ahmed answering a question from Mr Hughes that this a joint investment property, perhaps not such an unusual occurrence in families.

[28]We also heard oral evidence from Mr Ahmed, some of which was corroborated by email. Otherwise we simply say this: we would be reluctant to make a finding of fact based only on the oral evidence of Mr Ahmed and we would look in all circumstances for some form of corroboration. That is the assessment we reached having heard the inspector’s case put to him in cross examination. He was a reluctant witness from whom it proved difficult to have answers to straightforward questions. The grounds of appeal

[29]As far as the grounds of appeal are concerned these were set out by Mr Ahmed acting as a litigant in person. We have borne in mind that the inspector has been fully and throughout represented by both solicitors and experienced counsel. In contrast Mr Ahmed, also acting for Miss Ahmed, is a litigant in person acting for another litigant in person. We have to put the parties on an equal footing as best we can. He was quite rightly entitled to a good deal of latitude in the way these proceedings have been conducted to enable him to participate fully and ask the questions that he wished to ask. We have afforded him that opportunity.

[30]Coming to the grounds of appeal we are acutely aware that our appellate jurisdiction is very limited. We can cancel or affirm the notice, or affirm with modifications.

[31]We would be very reluctant to express any view about the alleged contraventions that also form part of the notice because that is a matter that may come before a different jurisdiction - it is certainly not a matter for us. We are not, for example, in a position to make any finding about whether Mr Ahmed is a competent person within the meaning of the notice. That is not territory into which we are going to stray.

[32]As far as the grounds of appeal are concerned, Mr Ahmed says this. “It is alleged that the chimney and its supporting structures have been removed without suitable replacement of any form of additional support mechanisms rendering the property structurally unstable or weakened and unsafe”.

[33]His position on that is that the allegation is without foundation and he goes on to describe how historically parts of the chimney structure or structures have been removed. We have made findings that we agree with him in that respect (and it has been accepted by Miss Spicer) - Mr Ahmed is right about the historic removal of parts of the structures.

[34]He makes that point because he feels it has been suggested that he personally has removed a chimney breast on the ground floor – he has not. It is clear that these works have taken place before his acquiring of the property, or coming to do work in the property, more correctly put.

[35]We make no comment on his competence for the reasons that I have explained. As to whether there is risk in the property as a result of historic removal and then further works taking place, we are broadly speaking satisfied that there is risk of falling masonry and risk of injury. In that respect we do not accept his view that there is no risk in that property currently, as he puts, it in those simple terms.

[36]The other aspect of his grounds of appeal is that he finds it ridiculous that a structural report is being requested when it is not necessary. That is, in essence what is required to be done by the notice, and in that respect, again, we are against him. We do not find that it is “not necessary” to have the opinion of a structural engineer in relation to these circumstances – in short the sufficiency of support where chimneys have been removed in the past.

[37]As to the allegation that there is inconsistency in treatment between Mr Ahmed and his neighbour, this is a Tribunal that frequently addresses allegations of unequal treatment, discrimination and victimisation. Such an assessment requires us to consider the circumstances of each person.

[38]There are two (we might call them “twin”) adjoining properties. In the right hand twin there are no works being carried out. In the left hand twin property Mr Ahmed has been carrying out works including the removal of a wall and its support by steel and other works. If we were to be considering whether there had been unequal treatment it would have to be unequal treatment in like circumstances. That is, we have to imagine if the butcher in the twin premises had taken out a wall, and started renovation works on his property in similar circumstances, and had not engaged with Mr Inman and building control, would he have been treated any differently. Would he have been treated more favourably than Mr Ahmed, and of course he would not. It is absolutely plain to the Tribunal that the reason for the notice was that it was considered in good faith and on reasonable grounds that there was risk of injury to persons in that property arising from the works. Mr Ahmed agreed that above the rear staircase there was unsupported chimney masonry which could fall. Further the front first and second floor chimney breasts were unsupported at the ground level.

[39]The idea that this notice was served as some form of victimisation is without evidential foundation. We have found Mr Inman a witness of truth about it, as indeed, we consider the inspector in this matter, Miss Shiffer, to be. The notice has been issued in good faith for good reasons.

[40]As far as the remaining parts of the grounds of appeal are concerned, it cannot be said that there is no risk to persons within the premises arising from the works. It was absolutely clear that another person had also worked in the premises, and may do so in the future, and we were told that was Mr Ahmed’s brother, but in any event “another person”.

[41]As for employees and the lack of them, which is another ground of appeal. We find that Mr Ahmed is not directly employing any employees at the premises. We did not hear a great deal, but that is what he says, and the images and other evidence corroborate that, broadly.

[42]His submission though appears to ignore that the provision applies to injury to any other person. He himself is a person, and it would be entirely wrong for a state regulator to ignore, as it were, the risk to any person within those premises, whoever they are. That ground has no merit. We add that the costs of a fatality or a profound injury or even a slight injury do not fall on the injured person or the deceased person. The burden and grief falls on their friends, family and the state, including the NHS. The idea that risk of injury should be ignored because it is “me” ie Mr Ahmed doing the work, is plainly misconceived.

[43]The final ground of appeal is on the basis that the inspector is taking instruction from the local authority. That is also plainly not the case. We accept the oral evidence that her enforcement team/health and safety team (albeit not Miss Shiffer personally because it was before her time) had been involved in a case of a chimney breast collapse and the death of a young construction worker. It is unsurprising, faced with a building control surveyor saying, “I have been unable to meet the proprietor or the person carrying out the works at the property and I am very concerned”, that the inspector would deal with this matter as she has in these circumstances. She has statutory responsibility for health and safety in the construction sector.

[44]That deals with the merits of the appeal, of which there are very little, albeit the overall impression given by the notice is that Mr Ahmed himself has removed chimney stacks, and on that we broadly speaking accept his position that he has not (or had not at the point of the notice). Conclusion and Decision

[45]We come to our decision about what steps we take in relation to the notice. We cannot, given our conclusions above, cancel it. The options remaining are to affirm it as it stands, or to affirm it with modifications.

[46]We consider that it is very important when a draconian notice or injunction of this kind is issued to a contractor or controller of premises, that there is absolute clarity about the matters considered to be causing risk in the premises at the time, and why the notice is being issued. That is in the interests of justice on general principles. We consider, having explored matters during this hearing, that a modification is required arising from our findings of fact about the property and what in fact existed on the ground. Further the form of address for Miss Ahmed ought to be correct.

[47]Turning to the notice at page 25, we modify the section which begins after the words “the said risks are” and we consider Mr Inman’s words, who visited and reported matters, should replace the words of Miss Spicer in the advice that she provided on 28 M 2023. Miss Spicer was very fair in her oral evidence and very clear that whatever impression was given by the notice the risk that she had advised for and considered there was localised collapse and falling masonry and that in the two locations with which we were concerned was entirely supported by the photographs and other evidence that we had in front of the Tribunal and it was a very measured way of describing the circumstances.

[48]To that extent we modify the notice and then it is absolutely clear that the circumstances on the ground were those as described by Mr Inman at the time, also taking into account Miss Spicer’s, as structural engineer reviewing matters on paper in March.

[49]The modification will apply to the notice to both Mr Ahmed and Miss Ahmed. Both notices are to be amended as follows: After “and the matters which give rise to the said risks are:” substitute - “The chimney at the front of the property is supported by a piece of timber under the chimney’s mid feathers; The rear chimney has about 1.5m of chimney remaining on the second floor and again not supported on the underside; and The rear chimney is not supported between first and second floors; And there is a risk of local collapse of the chimney structures/masonry and injury from falling masonry, rendering the property structurally unstable or weakened and unsafe.”

[50]It seems to us that the recipient of a notice needs to have that clarity in the issue of a notice in circumstances where there are two chimneys at the property and the structure is as we have described it. That clarity helps identify where the risks arise and so we modify it to that extent, replacing the current words: “the chimney and its supporting structures have been removed without suitable replacement of any form additional support mechanisms rendering a property structurally unstable or weakened and unsafe.”

[51]Were we satisfied, on the evidence of a competent person - a structural engineer or otherwise - that the risk had been sufficiently addressed, plainly we would not maintain the notice at all. Indeed, the Inspector was clear that if, by this appeal, she had been satisfied the matters had been addressed, she would not have opposed the appeal. We were not so satisfied.

[52]The decision of the Tribunal in this case will be documented in the same way that we address other decisions of this Tribunal. A short Judgment will be signed by me today and it will come to the parties as soon as it can sensibly be sent. The reasons that I have recorded will only be provided to the parties if a request is made, and if a request is to be made, it must be copied to the other party and it must be made within 14 days of the short Judgment being sent to the parties.

[53]As far as the ongoing position between the parties is concerned, it is clear to the Tribunal, as we have indicated in our reasons, that there was risk of injury or worse, and the notice was served in good faith to protect against that risk. In order for the inspector to be satisfied that the risk has been addressed, the works must be assessed to establish whether the mitigating measures in place sufficiently address that risk. We were told an engineer’s report would cost a few hundred pounds, and it seems to the Tribunal that no doubt Miss Ahmed and Mr Ahmed between them, given this is an investment property, can attend to that in the way that they have attended to a report supporting the sufficiency of the RSJ. JM Wade

Introduction

[1]On 9 August 2023 the Tribunal gave an extempore judgment in the claimants’ appeal against the respondent’s prohibition notices in respect of safety at the second appellant’s property – the first appellant is her father, and representative in these proceedings, and controller of works at the property. The judgment was sent to the parties on 14 August 2023.

[2]The respondent made an oral costs application at the conclusion of the hearing. The appellants’ position was that the respondent had been influenced by a campaign of racial harassment conducted by the local authority towards the second appellant and that the application for costs was more of the same. The Tribunal therefore directed the following: 2 The appellants shall by 30 August 2023 provide to the respondents any documents on which they rely in connection with their opposition to the oral application for costs made on behalf of the respondent today.

[5]A decision/hearing date shall then be fixed as soon as practicable before the full Tribunal or the Judge alone as appropriate with a time estimate of three hours/two hours respectively. 3. The appellants provided no documents in opposition to the oral application, later suggesting this was because the reasons were not sent until 29 September. On 11 September 2023 the respondent nevertheless sent to the appellants and the Tribunal a costs bundle and application/skeleton. 4. On 29 September 2023 the Tribunal sent to the parties the written reasons for the 9 August Judgment. 5. On 12 October 2023 the Tribunal received from the first appellant documents by post, including manuscript comments on the written reasons, a new structural report, and a letter of “appeal”.

[6]On 16 October 2023 the Tribunal reminded the appellants of order 4 above.

[7]On 6 November 2023 the first appellant provided the appellants written opposition to the respondent’s costs application. The appellants’ simple position was, it could not be said the appeal had no chance of success because a) it was accepted by the Tribunal, and b) the Tribunal modified the notice, and the appeal had therefore succeeded. The first appellant also complained of the losses and costs he had incurred as a result of the inspector’s “tactics”.

[8]As to the first of these matters – it is unfortunate that the Tribunal issues standard correspondence saying, “your appeal has been accepted”, as it does for employment related claims. This communication would be better expressed – “your appeal has been received” – all that the communication is intended to convey is that the appeal will now be served on the respondent. It is not intended to convey that any assessment of its arguability has been made by the Tribunal. This typically happens at a case management discussion and in these proceedings a final hearing was listed after a case management hearing without any warning to the appellants that any part of their assertions had little reasonable prospects of success. It also appears that no such warning was issued by the respondent “without prejudice save as to costs” or at all.

[9]Finally, as no party had sought a hearing before the Tribunal to determine this matter, I directed I would address the costs application on paper, deliberating alone.

The Law

[10]The Tribunal’s costs provisions are set out within Rules 74 to 84 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (“the Rules”). Application

[11]The respondent’s application was made on the basis that the appellants acted vexatiously, abusively, disruptively or otherwise unreasonably in bringing and/or conducting the proceedings; further that the appeal had no reasonable prospects of success within Rule 76(1)(a) or (b). Earlier strike out/unless order applications had been made by the respondent, but these were in connection with the appellants’ engagement in preparation, rather than the merits of their appeal. Discussion and conclusions

[12]These reasons are to be read with the reasons for the Tribunal’s judgment, referred to above,

[13]As to the allegation that the appellants did not engage in the case management orders for preparation in an orderly or even handed fashion – for this is the gist of the respondent’s position – that is a fair description, but it is not an uncommon approach for litigants in person without lawyers to assist them navigate such a process. The example of supplying partisan disclosure, for example, is very common for litigants in person - it is not necessarily intuitive to supply information which is against your own case. The Tribunal is designed as a largely cost free environment for good reason, and no doubt that was one reason why Parliament gave this Tribunal that particular jurisdiction. I do not consider this a basis to exercise my discretion to make a costs order, relating to that particular conduct.

[14]As to the application never having any prospect of success because it was put on the basis of an allegation of racism, which was always doomed to fail because the complaint against the local authority had not been upheld, that was not the only basis on which the appeal was put. Though surprising, it was an arguable assertion for a litigant in person because of the twin property, as we described it in our reasons – again although this allegation did not succeed – it cannot be said it was not arguable, and indeed we needed to make findings about that twin property and why it did not give rise to any inference of an underlying improper motive.

[15]Further, the appeal was put strongly on the basis that the impression of the notice was that the first appellant had removed the chimney and supporting structures....”. On that issue, the appellants have succeeded factually and a modification has consequently been declared. The respondent would always have had to respond to this appeal, even and explain its position, event without the allegation of racially motivated conduct.

[16]In the round, it is fair to say that while the Tribunal considered the first appellant a reluctant witness, whose evidence required corroboration, it cannot be said that in bringing the appeal in a generally costs free environment, his conduct, when taken in the context of the eventual outcome, is such that I consider it in the interests of justice to exercise my discretion to make a costs order.

[17]Clearly a different costs regime applies in the High Court, where appeal from the Tribunal’s decision lies. The application is dismissed.

Introduction

[1]The appellants are father and daughter. They appeal/seek to reconsider the Tribunal’s decision, given in August last year, to affirm, with some amendments, a prohibition notice relating to works at a property they own, 51 Haworth Road. The chain of events giving rise to this hearing

[2]The Tribunal’s reasons for affirming the Inspector’s notice were sent to the parties on 29 September 2023 and again, on 2 October 2023 in hard copy. On 12 October 2023 the appellants presented a 7 paragraph letter wishing to appeal the Tribunal’s decision for reasons expressed over six paragraphs). The grounds of appeal were: 2.1. The prohibition notice remaining valid made no sense; 2.2. The Tribunal was wrong to accept the evidence of Mr Inman and Miss Spicer; 2.3. The building has always been safe; 2.4. The Tribunal should have visited the site; 2.5. Works were carried out in the next door property; 2.6. The case is similar to HM Inspector of Health and Safety v Chevron North Sea Limited

[2018] UKSC 7

; 2.7. An enclosed structural engineer’s report demonstrated the building had always been safe.

[3]Pursuant to Rule 72 I conducted a “sift” of this reconsideration application, and considered that on the basis of the reasoning expressed in the Tribunal’s reasons, grounds 1, 2, 4 and 5 had no reasonable prosects of success. Grounds 3, 6 and 7 amounted to a reconsideration based on new evidence, a new structural report, and I could not say such an application had no reasonable prospects of success on the face of that August report.

[4]The application was then served on the Inspector and grounds of opposition were filed. The Inspector accepted that if the grounds of opposition pertaining the new report (the Inspector asserted it was not reliable) were to be challenged, there would need to be a hearing. The appellants were then invited to consider whether they still pursued the appeal, and they did. This hearing was listed.

[5]A reserved costs Judgment was also sent to the parties on 15 December 2023, dismissing the Inspector’s costs application arising from the August hearing. This hearing

[6]Mr Ahmed has appeared as a litigant in person. He had assistance in the drafting of the grounds of appeal/reconsideration, but that person could not attend today. He said that he had received the electronic bundle for today’s hearing on Tuesday (28 May 2024), having been sent the skeleton argument on 24 May. He had not been able to print the bundle until Friday, and his eyesight and work over the weekend prevented him reading it. He was invited to apply for a postponement on that basis, but he did not wish to do so.

[7]The Tribunal gave Mr Ahmed the opportunity to say what he wanted to say in support of his application. He added to the written grounds, by saying he had done nothing wrong, he had not removed the chimneys, and the property was safe. The Tribunal asked him questions, including about how he had obtained the new report and whether it could have been provided on the last occasion. He said it could have been.

[8]In light of the difficulties in balancing state funded legal representation with the claimant’s litigant in person status, in a case where this Tribunal has no specialist knowledge of engineering, Mr Hughes was invited to suggest what a lawyer acting for the appellants would say. He said if answering the hypothetical question, acting for the appellants, what could he reasonably argue, he could not argue for revocation on the basis of the new report, and the best that could be achieved was the modification made on the last occasion.

[9]The Tribunal also asked questions of both Mr Ahmed and the respondent in seeking to understand the landscape of the reconsideration application generally.

[10]A skeleton argument had been submitted on behalf of the respondent and it accurately sets out the law on reconsiderations before this Tribunal pursuant to Rule 72, including the principles on admitting new evidence within Ladd v Marshall [1954] All ELR 746.

Conclusions

[11]Ultimately these proceedings are being funded by public expense and we do not wish to add to that expense by taking longer than is necessary to address the position as we see it.

[12]The respondent’s ten page skeleton addresses all the points in the claimant’s letter and we mean no disrespect in not repeating it here. It is clear that we agree that our previous reasons stand to address all matters save for the new report.

[13]As to that, the respondent’s bundle of documents for today evidenced the essential submissions made in the skeleton, and in the respondent’s grounds of opposition to the appeal/reconsideration. The Tribunal could not have known about the latter versions of the report before seeing that bundle today.

[14]In simple terms the respondent said that the new engineering report for load bearing in the premises was not reliable because: 14.1.1. The author was not clearly identified; and 14.1.2. There had been revisions to the report not disclosed to the Tribunal.

[15]As to the first point, Mr Ahmed said he had found the author of the report “on line” and only met him once, and he could not comment further. As to the second point, Mr Ahmed said he had not seen the revisions to the report which are now before this Tribunal or correspondence leading to those revisions, conducted with Ms Spicer, who is the respondent’s structural engineer.

[16]The Tribunal is in the position of having to decide whether it is in the interests of justice to consider new evidence, which the claimant relies on to establish this is a Chevron situation – the property was always safe but the Inspector did not have the evidence to establish that at the time, but she does now.

[17]We do not agree with him for the following reasons.

[18]Firstly, a structural engineer’s report could reasonably have been obtained for the hearing back in August of last year 2023, when we would have had the opportunity to discuss it with witnesses and satisfy ourselves as to the author’s qualifications.

[19]Secondly, the report on which the claimant relies has been revised because the August version contained calculation errors which were later identified by Ms Spicer.

[20]Thirdly, having seen the dialogue between the person instructed by Mr Ahmed and Ms Spicer, in September 2023, we have also observed that the revised version of the report contains two “Fails”, as to a support timber’s bending and deflection. The person providing the amended reports seeks to persuade Ms Spicer to consider other mitigating factors. This is not a sound basis in fact to revoke or change our previous judgment. We note that in September 2023 Ms Spicer said by email: “I have found that the timber is inadequate to support the load from the chimney and floor” and since then there has been no further dialogue.

[21]The prohibition notice is the respondent seeking to do her statutory duty to protect the public and those working in the premises. She is spending public funds to do it. We are sure the best conservation of those funds is for the parties to work together to address the chimney structure support such that all can be satisfied the premises are safe. The appellants believe they are; the respondent has yet to be persuaded.

[22]The appellants’ new evidence, for the reasons above, does not persuade us it is in the interests of justice to vary or revoke our previous decision and it is therefore confirmed. The other grounds of appeal are also confirmed as without merit and the previous judgment confirmed.