“An Act to make provision about housing conditions; to regulate houses in multiple occupation and certain other residential accommodation; to make provision for home information packs in connection with the sale of residential properties; to make provision about secure tenants and the right to buy; to make provision about mobile homes and the accommodation needs of gypsies and travellers; to make other provision about housing; and for connected purposes.”
“(2) The appeal— (a) is to be by way of a re-hearing, but (b) may be determined having regard to matters of which the authority were unaware. (3) The tribunal may by order quash, confirm or vary the improvement notice.”
“(2) Paragraph 15(2) applies to such an appeal as it applies to an appeal under paragraph 10. (3) The tribunal may by order confirm, reverse or vary the decision of the local housing authority.”
“2 The key issue is whether, as the [UT] held, when hearing such an appeal the FTT makes its own assessment as to whether, on the date of the appeal, someone is a fit and proper person to hold a licence; or whether, as the appellant (“the Council”) contends, the task of the FTT is to determine whether the decision of the local housing authority to grant, refuse or revoke a licence was wrong, and therefore to consider whether the individual concerned was a fit and proper person on the date on which that decision was made. 3 A subsidiary, related issue is whether the FTT is entitled to have regard to information which came into existence after the decision under appeal was taken, or whether the FTT must only consider information that was available at the time of that decision (though this may include information which was not then known to the local housing authority).”
“62 I begin consideration of Ground 1 by referring to the language of paragraph 34 itself. Sub-paragraph (2) states that the appeal is to be by way of a re-hearing, but may be determined having regard to matters of which the authority were unaware. The word “but” which introduces the proviso in (b) is important. In this context it enables something to be done which would not otherwise be permitted. Without the proviso, the FTT would not be entitled to consider matters that were unknown to the primary decision-maker. Thus Parliament cannot have intended there to be a re-hearing in the fullest sense. 63 In my judgment the proviso assists in resolving the issue as to the time at which the question of fitness and propriety must be considered. Were it not there, the FTT would be constrained to consider only those matters that were known to the housing authority, and therefore by necessary implication, known and in existence at the time when the decision was made. That points inexorably to the conclusion that the task of the FTT is to determine whether the decision under appeal was wrong at the time when it was taken. … 73 For those reasons, I have concluded that the UT was wrong to find that it was open to the FTT to decide the appeal by addressing fitness and propriety as at the date of the appeal.”
“103 As Mr Underwood KC [counsel for Waltham Forest] submitted, if the FTT (or, for that matter, the UT or this court) could decide an appeal by reference to the situation as it stood on the date of the appeal, all the discretionary and evaluative powers conferred on the local housing authority could simply be by-passed. It is true that on an appeal the appellate tribunal may consider matters of which the authority was unaware. But those matters must, in my judgment, be restricted to matters which tend to show that the local housing authority’s decision was right or wrong at the time when it was made. Thus the appellate tribunal is not confined to deciding whether on the evidence before it, the local housing authority was entitled to reach the decision that it did. The appellate tribunal may decide that matters of which the authority was unaware show that the authority’s decision was wrong. In that sense, the appellate tribunal is entitled to set aside a decision with which it disagrees. 104 I conclude, therefore, that on an appeal against an authority’s refusal to grant a licence, the question before the appellate tribunal is whether the authority’s decision was wrong. It follows that the FTT was wrong to decide the different question: namely, whether on the facts as they stood at the date of their own decision, Farina or FHCO was a fit and proper person.”
“Excess Cold – Category: 1 Band: A Location: Flats within Dorchester Court The deficiencies giving rise to the hazard including a description of the hazard: WINDOWS 1. The windows to most flats are single glazed and the frames are corroded resulting in rust bloom forcing components of windows apart, and many have broken or missing stays and handles. Many windows have cracked and/or broken glazing. This wastes heat and reduces air temperatures. It also causes draughts and discomfort and can contribute to health effects such as respiratory and cardiovascular conditions and other cold related illnesses.”
“Location: Flats within Dorchester Court WINDOWS 1. Install replica galvanised steel Crittall Windows, that are similar in section size to the existing window units and as close to exact replicas of the existing as possible. The windows should be double glazed, and constructed of clear toughened glass. These windows should be coloured to match recently replaced large windows with the glass units bedded in silicone sealant to mimic traditional putty in appearance. 2. New window hinges and fasteners to be mounted to match existing. 3. Replace timber sub-frames and hardwood cills to all windows and doors with polyester powder coated aluminium sub-frames and ensure the cills match the windows. 4. Ensure the window and door replacement is approved in advance, including any ordering or installing of any components, by the conservation team in the planning department, and that they comply with Part L1B of Schedule 1 of the Building Regulations. 5. Apply for the necessary consents from the local planning authority prior to commencing these works. 6. Produce a programme of work to clearly outline the sequence of activities including the date you undertake to apply for listed building consent, the intended commencement date, the order in which your contractor plans to carry out the work, and the planned completion date regarding the window replacement. A copy to be provided to the Local Authority before any works commence.”
“69. However, in this case we have major concerns about the contents of the Improvement Notice itself. It is clear that the Applicant has carried out certain works which the Respondent concedes have remedied some deficiencies and reduced the extent of certain other deficiencies, and the Respondent has not reinspected or carried out a recent reassessment of the hazards. The Respondent is therefore in difficulty when it comes to evidencing the current position and the extent to which remedial action still needs to be taken. The Respondent has now conceded that the Excess Heat hazard would appear to have been adequately dealt with, but it is not able to demonstrate the current position with the Excess Cold hazard (this being its main current focus) or the Hot Surfaces and Materials hazard.”
“79. It is unsatisfactory that there is significant disrepair within the Estate which has not been attended to over a long period of time, and flat occupiers will have suffered as a result. However, we cannot confirm an improvement notice which for a number of reasons is patently flawed, and we do not have sufficient information or evidence before us for it to be possible to vary it so as to turn it into an improvement notice which fairly and specifically sets out the hazards that exist and the works that need to be carried out in order to alleviate those hazards. 80. In conclusion, the Improvement Notice is much too vague and the evidence before us does not support the Respondent’s conclusions as to the extent of any hazards and the works that need to be carried out. Accordingly, the Improvement Notice is hereby quashed in its entirety.”
“13 Orders for costs, reimbursement of fees and interest on costs (1) Subject to paragraph (1ZA), the Tribunal may make an order in respect of costs only— (a) under section 29(4) of the 2007 Act (wasted costs) and the costs incurred in applying for such costs; (b) if a person has acted unreasonably in bringing, defending or conducting proceedings; (c) in a land registration case, or (d) in proceedings under Schedule 3A to theCommunications Act 2003 (the Electronic Communications Code) 5 including proceedings that have been transferred from the Upper Tribunal.” (Rule 13(1ZA) provides that the FTT may not make an order under Rule 13(1)(b) in proceedings under a number of statutory provisions, but these do not include appeals under the Act). (a) under section 29(4) of the 2007 Act (wasted costs) and the costs incurred in applying for such costs; (b) if a person has acted unreasonably in bringing, defending or conducting proceedings; (c) in a land registration case, or (d) in proceedings under Schedule 3A to theCommunications Act 2003 (the Electronic Communications Code) 5 including proceedings that have been transferred from the Upper Tribunal.”
“35. The current appeal is not against the FTT’s substantive decision to quash the improvement notice, nor did Lambeth question the FTT’s approach to Manaquel’s appeal against the notice in a cross-appeal of its own. The issue is whether the FTT erred in refusing to make a costs order against Lambeth. But it is impossible to determine whether the FTT was impermissibly lenient in its reaction to Lambeth’s conduct without first considering whether the criticisms it made were based on a mistaken appreciation of the real issues in the appeal. Before deciding, for example, whether it was unreasonable for a party to fail to prepare evidence it is relevant to consider whether that evidence would have been relevant to an issue which properly arose for determination. It was for that reason that I asked the parties to consider the relevance of the Court of Appeal’s decision in Waltham Forest v Hussain.”
“48. For these reasons I am satisfied that significant parts of Manaquel’s case were presented to the FTT on a legally incorrect basis. The question for the FTT should have been whether Lambeth was wrong to serve the notice it did, when it did; works done since the service of the notice could not undermine the validity of Lambeth’s decision, nor was there any requirement for Lambeth’s officers to justify or reformulate the notice in the light of those works.”
“62. The FTT described Lambeth’s conduct of the proceedings as “incompetent”… That description was its summary of the whole body of criticism it had directed against Lambeth in both decisions. For the reasons I have explained, many of those criticisms were unjustified. The lack of precision in the improvement notice and the failure to keep records of the inspection were legitimate complaints so far as the windows were concerned, but they did not undermine the notice so far as it related to the other hazards or the actions required to address them and did not justify quashing the notice in its entirety. Lambeth’s inability to produce the hazard score calculation for the hot surfaces and materials hazards justified the complaint that its record keeping was incompetent, but it did not cast doubt on the proposition that the supply of scalding water represented a hazard which required to be remediated. Lambeth’s failure to arrange for a recent inspection and the absence of evidence enabling the FTT to vary the notice were not legitimate complaints and did not reflect badly on the notice. It was not fanciful to suggest that Manaquel might propose variations to the notice, since that is what the statutory scheme envisages. Finally, Lambeth’s suggestion, through Mr Ham, that the hearing be adjourned to enable additional evidence to be prepared showing the current condition of the building was a reflection of the shared misconception about the proper subject matter of the appeal. Manaquel’s case was founded on that misconception and while it ought not to have been acquiesced in by Lambeth, it did not justify singling the authority out for criticism.”
“68 I therefore agree with Mr Isaac that the FTT’s decision was flawed. It was flawed not only because the FTT was persuaded by Mr Isaac himself of the importance of matters which, on a proper analysis, were irrelevant, but also because it failed to answer its own question whether the conduct about which there were legitimate grounds of complaint was open to some reasonable explanation. The first flaw pervades the decision and undermines many of the criticisms on which the application for costs was originally based, but it does not cast doubt on the FTT’s conclusion that Lambeth’s conduct was not unreasonable. But the second flaw vitiates that conclusion because the FTT did not consider, in relation to each of the faults it found with Lambeth’s conduct, whether there was a reasonable explanation. It simply asserted, without proper explanation, that its conduct of the proceedings was not unreasonable.”
“12 Proceedings on appeal to Upper Tribunal (1) Subsection (2) applies if the Upper Tribunal, in deciding an appeal under section 11, finds that the making of the decision concerned involved the making of an error on a point of law. (2) The Upper Tribunal– (a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) if it does, must either– (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision. (3) … (4) In acting under subsection (2)(b)(ii), the Upper Tribunal– (a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and (b) may make such findings of fact as it considers appropriate.” (a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) if it does, must either– (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) re-make the decision. (a) may make any decision which the First-tier Tribunal could make if the First-tier Tribunal were re-making the decision, and (b) may make such findings of fact as it considers appropriate.”
“75 … (a) Two grounds concerned the form of the notice and the argument that it was “unsavable by variation” and therefore doomed to fail. (b) Two relied on Lambeth’s failure to reinspect and its reliance on the hazards of excess heat and hot surfaces and materials despite the works done by Manaquel to improve the operation of the heating and hot water system. (c) Two concerned Lambeth’s failure to disclose the record of its inspections and its hazard score calculations for the hot surfaces and materials hazard. (d) One suggested an inconsistency between reliance on the highest level of Category 1 hazard in respect of excess cold, and a statement in the improvement notice that a prohibition order was not required because there was no “imminent risk of serious harm to the health and safety of the occupants”. (e) And one focussed on Mr Ham’s invitation to the FTT to adjourn the hearing to allow more evidence to be adduced.”
“78 As to ground (a), I have already explained why the lack of precision in the notice raised no doubt about two of the three hazards or more than two thirds of the prescribed actions and did not justify quashing the notice in its entirety. Variation (in the sense of prescribing different work to reflect the current condition of the Estate) was not a problem for Lambeth. What properly remains of ground (a) in support of the charge of unreasonable conduct is therefore that Lambeth served, and did not withdraw, an improvement notice requiring the installation of new double glazed windows throughout the Estate without excluding those flats which already had double glazing or identifying the flats where work was required. The FTT was entitled to regard the notice as flawed in that respect. But, the FTT having acquitted Lambeth of vexatious behaviour, and having found Ms Ward to be an experienced professional who took her responsibilities seriously, it is not difficult to see a perfectly reasonable explanation for the form of the notice, namely, that as Ms Ward explained in her evidence, Lambeth considered it unnecessary to identify each window, or each flat. It would have been obvious on inspection which windows were not already double glazed, and if there was any doubt, it could be resolved by liaison with Lambeth’s officers which the notice also required. The notice appears to me to be capable of a common sense reading and to be adequate for its purpose. The FTT was persuaded to take a different view, but the availability of an alternative interpretation of the notice would make it very difficult for the FTT to conclude, were it asked again, that there was no reasonable explanation for the form it took. 79. As to ground (c), Lambeth’s failure to preserve records of inspections is certainly a ground on which it could be found to have conducted the proceedings unreasonably. The absence of one of the hazard scores was of little or no consequence as the existence of the relevant hazard was not seriously disputed, but it was a further example of poor record keeping by Lambeth which could be taken into account.”
“83. I have come to the conclusion that, in these proceedings, enough is enough, and that, taking all of the matters I have identified into account, despite the flaws in its reasoning, the appeal can be disposed of fairly and justly by refusing to set aside the FTT’s decision not to make an order for costs.”
“the question for the FTT should have been whether Lambeth was wrong to serve the notice it did, when it did; works done since the service of the notice could not undermine the validity of Lambeth’s decision, nor was there any requirement for Lambeth’s officers to justify or reformulate the notice in the light of those works.”
“If permission is granted on ground 1, and the appeal on that ground succeeds, my assessments of the merits of the appeal will have been flawed and my determination could be set aside without the need to consider ground 2. If the approach I took to the Hussain point was correct, I do not consider that it can sensibly be argued that the conduct of the proceedings by the local authority should be judged on a false view of the material which was legally relevant to the question to be determined by the FTT.”