Judge M K GandhamMr A McMurdo MCIEHMr B Singleton for the ApplicantDr D Jacklin, counsel from St Philips Chambers for the RespondentDate 21 August 2025Property: 36 Burleigh Mews, 102 Friar Gate, Derby DE1 1EXType of application: Appeal against a prohibition order Sections 20 & 21 and paragraph 7(1) of Schedule 2 to the Housing Act 2004
DECISION
[1]The Tribunal orders that the Prohibition Order dated 27 March 2025 be varied as follows:[2](i) Paragraph 4 on page 1 be amended to state the following:[3]“The Authority prohibits the use of the dwelling for the following purposes:[4]- In relation to the hazards of Excess cold and Fire, the dwelling may not be used for living or sleeping accommodation by any person until such time as the order is varied to delete these hazards following the satisfactory completion of the remedial work listed under the relevant sections of Schedule 1.[5]- In relation to the hazards of Crowding and space and Personal hygiene, Sanitation and Drainage, the Authority prohibits occupation to a maximum of one occupier.”[6](ii) Schedule 1 be varied as detailed in the Appendix to this decision.
REASONS
[2]The First-tier Tribunal (Property Chamber) received an application from Mr Nicholas Brammer (‘the Applicant’) for an appeal under paragraph 7(1) of Schedule 2 to the Housing Act 2004 (‘the Act’).[3]The appeal related to a prohibition order dated 13 September 2024 (‘the Order’), served upon him by Derby City Council (‘the Respondent’), relating to the property known as 36 Burleigh Mews, 102 Friar Gate, Derby, DE1 1 EX (‘the Property’). The Applicant is one of the joint owners of the freehold of 100-102 Friar Gate, of which the Property forms part.[4]Although the Tribunal did not receive the Applicant’s application form until 14 October 2024, which was after the period of 28 days beginning with the date specified in the Order as the date upon which the Order was made (paragraph 10(1) of Schedule 2 to the Act), the Order erroneously referred to an appeal being lodged within 28 days beginning with the date of service.[5]As the Order was sent by post and the application was received within 28 days of deemed service, the Tribunal allowed the appeal under Para 10(3) of Schedule 2 to the Act, having received no objections from the Respondent to do so and being satisfied that there was a good reason for the failure to appeal in time.[6]The Order detailed, in Schedule 1, various defects at the Property with the remedial action that needed to be carried out for the Order to be revoked. Schedule 1 referred to six hazards, all of which were categorised as category 1 hazards: Excess cold; Crowding and space; Personal hygiene, Sanitation and Drainage; Fire; Collision and Position and operability of amenities etc. The Respondent served, with the Order, a Statement of Reasons as to why the decision to take enforcement action had been made.[7]The Tribunal received a bundle of documents from the Respondent and, in addition to the Grounds of Application and enclosures submitted with his application form, received a Response and three videos from the Applicant. The matter was listed for an inspection and hearing to take place on 25 April 2025.[8]On 31 March 2025, the Tribunal received an email from the Respondent confirming that an amended prohibition order (‘the New Order’), dated 27 March 2025, had been served on the Applicant. The Respondent confirmed to the Tribunal that the New Order had been served as the Order contained an incorrect date.[9]The Tribunal, having noted that both prohibition orders related to the same property, parties and defects, and taking into account the overriding objective (and having received no objection from either party), dispensed with the need for the Applicant to make a formal application to appeal the New Order and, to avoid any delay, consolidated the matters under Rule 6 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 (‘the Rules’).[10]The inspection took place on 25 April 2025 but, due to the unavailability of a courtroom, the hearing was unable to proceed on that day and was rescheduled.[11]A public hearing was held on 22 May 2025 at the tribunal’s hearing rooms at Centre City Tower in Birmingham. The Applicant had emailed the tribunal’s offices the previous day to confirm that he would not be attending, and he was not represented at the hearing. Miss Andrea Cameron (a Housing Standards Officer), Mr Darren Gelsthorpe (a Senior Environmental Health Officer) and Mrs Manju Girn (a solicitor), all under the employment of the Respondent, attended on its behalf. The Respondent was represented at the hearing by Dr Daniel Jacklin from St Philips Chambers.[12]The Tribunal, noting that the Applicant had received notice of the hearing, found that it was in the interests of justice to proceed with the hearing in his absence (Rule 34 of the Rules).[13]Following the hearing, the Tribunal received a copy of authorities Dr Jacklin had relied upon at the hearing. Dr Jacklin also raised a further query regarding the proceedings, which the Tribunal has dealt with in its determination below. The Law[14]The Act introduced a new system for the assessment of housing conditions and for the enforcement of housing standards.[15]The Housing Health and Safety Rating System (‘HHSRS’) replaced the system imposed by the Housing Act 1985, which was based upon the concept of unfitness. The HHSRS places the emphasis on the risk to health and safety by identifying specified housing related hazards and the assessment of their seriousness by reference to(1) the likelihood over the period of 12 months of an occurrence that could result in harm to the occupier and(2) the range of harms that could result from such an occurrence.[16]These two factors are combined in a prescribed formula to give a numerical score for each hazard. The range of numerical scores are banded into ten hazard bands, with band A denoting the most dangerous hazards and Band J the least dangerous. Hazards in Bands A to C (which cover numerical scores of 1000 or more) are classified as ‘category 1 hazards’ and those in bands D to J (which cover numerical scores of less than 1000) are classified as ‘category 2 hazards’.[17]Where the application of the HHSRS identifies a category 1 hazard, the local housing authority has a duty under section 5(1) of the Act to take appropriate enforcement action. Section 5(2) sets out the courses of action, which include the making of a prohibition order, that constitute appropriate enforcement action. Where the application of the HHSRS identifies a category 2 hazard, the local housing authority has a power under section 7(1) of the Act to take enforcement action in respect of that hazard. Again, these include the making of a prohibition order.[18]Section 9 of the Act requires the local housing authority to have regard to any guidance for the time being given by the appropriate national authority about the exercise of their functions in connection with the HHSRS. In February 2006, the Secretary of State issued ‘Housing Health and Safety Rating System – Operating Guidance’ (‘the Operating Guidance’) which deals with the assessment and scoring of HHSRS hazards. At the same time the Secretary of State also issued ‘Housing Health and Safety Rating System – Enforcement Guidance’ (‘the Enforcement Guidance), which is intended to assist local housing authorities in deciding which is the most appropriate course of action under section 5 of the Act and how they should exercise their discretionary powers under section 7 of the Act.[19]The person upon whom a prohibition order is served may appeal to the First-tier Tribunal (Property Chamber) under paragraph 7 of Schedule 2 to the Act. In relation to such an appeal, paragraph 11 of Schedule 2 states as follows: “11(1) This paragraph applies to an appeal to the appropriate tribunal under paragraph 7.(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 confirm, quash or vary the prohibition order. … ” Background[20]The following brief background to the application did not appear to be in dispute.[21]On 1 May 2024, the Respondent’s Housing Standards Department were referred two anonymous complaints regarding the Property via their Planning Enforcement department. Miss Cameron completed a Land Registry search which revealed the Applicant was an owner of the Property.[22]Miss Cameron carried out an inspection of the Property on 23 July 2024, in the presence of the then tenant Miss Charlotte Danvers. She identified various deficiencies and made a note of the same.[23]Miss Cameron contacted the Respondent’s planning department and the inspector who had dealt with the building control element of the Property. Although the Respondent’s planning officer, who had carried out a site visit on 21 June 2021, did refer to some concerns regarding the size of the apartment, and in section 7.3 of her Officers Report (‘the Officers Report’) noted the proposal created “a very small apartment (approximately 19 sqm floor space)”, she gave her overall approval, noting in the same section: “On balance, it is considered that a satisfactory living environment would be provided.”[24]The Property received planning approval from the Respondent on 22 September 2021 year and a Final Certificate from Approved Building Control Limited in respect of building regulations on 14 April 2022.[25]On 6 August 2024, Miss Cameron undertook an HHSRS assessment of the Property based upon her previous inspection. She determined six category 1 hazards existed.[26]On 4 September 2024, Miss Danvers forwarded a Tik Tok video to Miss Cameron, the content of which criticised the safety of the Property. Miss Cameron received a further Tik Tok video from her manager, which also questioned the legality of the dwelling. The same day, Miss Cameron sent a notice, in accordance with section 239 of the Act, notifying the Applicant, his managing agent and Miss Danvers of her intention to undertake a reinspection of the Property.[27]Amidst several conversations and messages (some heated) that took place between Miss Cameron and the Applicant, the Applicant was informed that Miss Danvers was not comfortable for either him or his representative to attend the second inspection. That inspection took place on 6 September 2024.[28]Following the inspection, Miss Cameron carried out a hazard assessment and, after considering the Respondent’s enforcement policy and the Enforcement Guidance, found that the making of a prohibition order was the most appropriate form of action to be taken. The Order was made on 13 September 2024 and posted by first class post, together with a Demand for Payment of £911.25.[29]On 3 October 2024, Miss Cameron and Mr Stephen Brodrick (a senior Environmental Housing Officer in the Respondent’s Housing Standards Team) met with the Applicant and Mr Barry Singleton (the Applicant’s Representative). Mr Brodrick took various photographs of the Property and there was discussion around the Property having received planning and building approval, and the possibility of an alternative layout for the dwelling. The Property was now vacant.[30]Following the meeting, although the Respondent considered that a prohibition order was still the most appropriate form of action, due to the size of accommodation, the charge for taking enforcement action was waived.[31]The Applicant made an appeal to the Tribunal on 14 October 2024.[32]On 27 March 2025, the Respondent served the New Order on the Applicant, as the Order had an incorrect operative date. Inspection[33]The Tribunal inspected the Property on 25 April 2025. The Applicant was in attendance with Mr Singleton. Mr Gelsthorpe attended on behalf of the Respondent, with Miss Cameron arriving part way through the inspection.[34]Friar Gate lies on the edge of Derby city centre. The Property is located within a development of converted residential apartments — Burleigh Mews Apartments – accessed via a shared front door on Friar Gate, leading through a passageway to the rear of the main building. There is also secure, gated access to the Property from the rear of the development via a hard-standing communal parking area.[35]The Property comprises a two-level studio apartment, converted from a previous single-storey storeroom, the entrance to which is located on a spilt-level courtyard. On the ground floor there was a small kitchen/living area, with an internal staircase leading to an open bedroom on the first floor, partially within the roof space, in which a toilet, washbasin and shower cubicle were also located.[36]The lounge kitchen area included a small L-shaped counter worktop, with fitted sink unit and small electric hob, above an electric oven, fridge and washing machine. The amenities also included a microwave and an extractor fan (located above the hob), with various storage cupboards both above and below the countertop. Items of furniture included, on the ground floor, a small sofa, a television mounted to the wall, a small side cupboard on the first step of the staircase and a TV cabinet (below the television between the staircase and front door) and, on the first floor, a double bed, bedside cabinet and a small set of drawers.[37]The Property was heated via a thermostatically controlled wall heater on the ground floor, although there was a heated towel rail under the eaves on the first floor. The toilet and wash basin fittings were also located predominantly under the eaves, with the shower cubicle next to the same. An extractor fan was located on the ceiling within the shower cubicle.[38]There was no separation between the bathroom furnishings and sleeping area on the first floor, the only delineation between the two being a section of vinyl flooring beneath the bathroom fittings with the remainder of the first floor being carpeted.[39]The only window to the Property was a dormer window unit located on the first floor, projecting from the sloped roof to the front of the Property. This was double glazed, and the left-hand side window was capable of being opened fully to allow access onto the sloped roof. An escape ladder had also been attached to this side of the roof.[40]The layout of furniture appeared to have been altered slightly since Miss Cameron’s inspections, as the sofa on the ground floor was further away from the oven door and the double bed was further away from the toilet and shower cubicle, than the measurements set out in the prohibition orders.[41]The Property was decorated to a high standard and appeared to be well maintained. Submissions The Applicant’s Submissions[42]The Applicant had, with his application form, submitted written grounds of appeal by way of a letter from his representative.[43]The written submissions referred to the Property having been granted planning permission and stating that the conversion had been carried out in accordance with the same. The submissions went on to state that the Property had been continuously occupied from 24 March 2022 to 9 September 2024 by different tenants, with the Applicant having received no complaints regarding the standard of accommodation provided.[44]In relation to the category 1 hazards identified by the Respondent, the following comments were made: Excess cold – The submissions referred to the ground floor being open to the first floor with no complaints have been received regarding the heating within the Property. The Applicant referred to being able to install a heater to the first floor if deemed a necessary requirement. Crowding and space — The Applicant submitted that, as the Property was a listed building, the size could not be amended, that all available space had been utilised and that the Property contained all necessary facilities to function and house a single person. Again, it referred to several people having occupied the accommodation since its conversion without issue. Personal hygiene, Sanitation and Drainage — The Applicant referred to the local authority having been informed at planning stage that it was not possible to cordon off the sanitary ware and permission having been granted on that basis. The submissions also referred to the reduced height only being over the actual sanitary fittings, not the whole area of use, and referred to many toilet facilities being sited within lofts and under staircases with similar arrangements. The Applicant submitted that the overall space could be improved by exchanging the current double bed for a smaller double or single bed, and that the Property was intended for use by a single person. The submissions also noted that, contrary to the details on the Order, the shower did have an extractor fan. Fire – The submissions referred to the fact that the first-floor windows could be opened, that the Property had smoke detection and that the Property had met the requirements of building regulations. The Applicant also referred to there being an opportunity to exchange or rearrange the furniture to increase space between the cooker and oven and that the opening size of the windows could be improved with alternate hinges. Collision – The Applicant submitted that the Property had been converted within an existing space which did not allow for the preferred heights stated in the guidance; however, noted that the height had met building regulations and had been accepted by both the planners and building control. Position and operability of amenities – The Applicant considered all facilities were available and operable.[45]The Applicant provided, with the written submissions, a copy of the Order, planning approval and the buildings control Final Certificate.[46]Following receipt of the Respondent’s bundle, the Applicant provided a written Response to the same. In the Response, the Applicant referred to the parts of Miss Cameron’s statement that he did not agree with, which included some of the historical measurements given in relation to the floor areas which the Applicant submitted were corrected prior to planning permission being granted.[47]In relation to the heating, the Applicant disagreed with the assessment of the heating as a category 1 hazard, due to the layout of the Property, and stated that this hazard could easily be resolved.[48]With regard to the location and layout of the Property, the Applicant supplied three videos showing access from the secured gates to the rear of the development, the layout of the Property and the Applicant illustrating the use of the sanitary ware.[49]The Response reiterated that the Property had received building control approval in relation to any fire precautions and means of escape, and that the hinges of the windows could be exchanged if required. The Applicant noted that the Respondent’s Report on Fire Safety Issues had been produced without a site visit having been carried out by the writer.[50]The Response also noted that, although Miss Cameron stated that the final calculation of hazards was scored via a computer program within an electronic matrix, which produced the final calculated scores (her having input the likelihood and harm averages), he stated that this did not present any opportunity to challenge the figures that were originally inputted by her.[51]The Response noted that Miss Cameron had referred to internal failings within the planning department when planning permission had initially been granted, but stated that the Applicant could only proceed on the basis that the permissions had been granted.[52]The Response also noted that Mr Brodrick had confirmed that the Property could be marketed as accommodation as an ‘Air B&B’ or similar but refused any of the Applicant’s offers to make amendments to the accommodation.[53]As the Applicant believed that improvements could be made to the heating, escape arrangements, furniture sizes and layout to resolve issues, he refuted that category 1 designations were appropriate.[54]In addition to the three videos, the Applicant had provided with the Response, an Electric Heater Room Size Calculator printout, together with copies of email correspondence with the Respondent’s planning department and various photographs and still images from the submitted videos. The Respondent’s submissions[55]The Respondent’s bundle contained a witness statement from Miss Cameron, with several documents exhibited to the same including: copy correspondence; photographs taken at inspections; details of Miss Cameron’s calculations of the dimensions of the Property; the Officers Report; the Dwelling Assessment – Hazard Scoring sheet, the Design Guidelines developed by the Respondent’s Housing Standards Team (‘the Respondent’s Design Guidelines’) and a Report on Fire Safety Issues by Derbyshire Building Control Partnership. The bundle also included a copy of the Respondent’s Enforcement Policy and further guidance documents.[56]Miss Cameron’s witness statement included a detailed background to the application, explaining the reason she began her investigation of the Property and steps taken up to the application to the tribunal; her conversations with the planning and building control departments at the local authority, as well as with Derby Fire and Rescue Service; her assessment of the hazards and a response to the Applicant’s grounds of appeal, briefly summarised as follows: Excess cold – Miss Cameron stated adequate heating was required to be able to maintain certain internal temperatures and that heaters should be sited to ensure an even distribution of heat, whilst minimising heat loss through walls and windows. She noted that, for heating, the Property was rated an ‘E’ on the EPC and that the open design of the dwelling encouraged heat loss. Crowding and space — Miss Cameron stated that the size of the dwelling and layout could not be amended and that, as this fell short of the preferred guidance, the Property was not suitable as living accommodation. Personal hygiene, Sanitation and Drainage — Miss Cameron stated that any toilet facility with a ceiling height of 1.5 m would be in contravention of the HHSRS standards and LACORS guidance. She also noted that the tenancy agreement did not refer to the Property only being for single occupancy and that it had a double bed. Fire – Miss Cameron stated that there was no final exit to the first floor and that the window was not an escape window. She also referred to the sloping roof ledge being a hazard in the event of poor weather and that an occupant who was not agile or was of a larger build would be unable to access the escape route in the event of fire. She referred to the Property’s smoke detection system as being inadequate to mitigate the same. Collision – Miss Cameron stated that she noted that the ceiling height on the ground floor was higher than the required standard for LACORS and HHSRS guidance and that she would have been able to overlook this if the ceiling height within the toilet and wash basin area had been higher. She also stated that the limited floor space meant manoeuvrability was dangerous. Position and operability of amenities – Miss Cameron referred to the limited space throughout the Property which meant that the oven door could not be opened for cooking, the escape route was obstructed by furniture and that using the bathroom facilities required a person to be extremely careful and agile.[57]At the hearing, Miss Cameron confirmed that that the Demand for Payment served with the Order had been waived and that the Respondent accepted that there had been a material defect on the Order, which was why the New Order had been served. She stated that the Respondent accepted that the Order was invalid.[58]Miss Cameron also confirmed that Miss Danvers had never made a complaint to the Respondent’s Housing Standards team and that there was no evidence that any complaints regarding the Property had come from a previous tenant, as the complaints made had been anonymous. Miss Cameron also accepted that Derbyshire Building Control Partnership had not carried out a site visit before writing their fire safety report.[59]In relation to the measurements of the dimensions of the dwelling, Miss Cameron confirmed that the dimensions given in the New Order for useable floor space, being 7.8 m² for the ground floor and 5.8 m² for the first floor (which differed slightly from the dimensions at exhibit ACA08 of the Respondent’s bundle), were correct.[60]In relation to the calculation of the hazards, Miss Cameron stated as follows: Excess cold – Miss Cameron confirmed that no measurements of the temperature at the Property had been taken. She stated that there was only one heater and that the first floor would need to borrow heat, as heat given by a towel rail was much lower. She referred to the issue being exacerbated by the Property having three external walls. Crowding and space — Miss Cameron stated that the lack of space would have a serious impact on the mental health of anyone living at the Property, as the dwelling lacked the room and space to be able to live in peace and harmony. She was unable to comment as to whether the overall space would have been deemed sufficient for a one-person bedsit in an HMO. Personal hygiene, Sanitation and Drainage — At the hearing, the Tribunal put to Miss Cameron that the Operating Guidance referred to there being no evidence linking modern conventional water closets with increased risk of spread of disease, with flushing action also not considered a main route of infection (17.12 and 17.13). Miss Cameron referred to her main concern as being the psychological harm that could be caused due to the lack of privacy and embarrassment caused by the lack of separation of the sanitary ware from the bedroom. Miss Cameron stated that use of the toilet would have a serious psychological impact if any tenant had visitors and that Miss Danvers had commented to her that, when she had guests who required the use of the toilet facilities, she would wait outside the house until they had finished. Miss Cameron accepted that paragraph 17.20 of the Operating Guidance referred to a separate compartment for a bathroom under the section entitled “Preventative measures and the Ideal”, so compartmentalisation was not a mandatory requirement, but referred to the current positioning of the sanitary ware as being unhygienic. Fire – Miss Cameron noted that the left-hand side window unit in the Property had been changed and a ladder added since she had inspected the Property. She stated that there was still a sloping roof going down but that the changes made could have affected the categorisation of the hazard as a category 1 hazard if a new assessment was carried out. Collision – Miss Cameron stated that she was unsure as to the structural make-up of the eaves above the sanitary ware and referred to the Applicant in his video as being able to avoid hitting the same, as over time someone would get used to various anomalies. She stated that the eaves above the toilet were well below the 1.9 m referred to in the Operating Guidance, although accepted that the ceiling height of the ground floor was above this height (at 1.95 m) albeit still being below the Respondent’s Design Guidelines of 2.14 m. Position and operability of amenities – Miss Cameron accepted that a change in the layout on the ground floor could increase the limited space, and that changing the double bed to a single bed on the first floor would allow greater manoeuvrability for use of the sanitary ware.[61]At the hearing, Dr Jacklin made the following submissions on behalf of the Respondent regarding the role of the tribunal and its expertise in appeals of this nature.[62]Dr Jacklin stated that, as the Applicant had failed to attend the hearing and had not provided any “evidence” to support his appeal, it should be dismissed. He stated that the Applicant had, as referred to in the Tribunal’s directions order dated 29 October 2024, been provided an opportunity to instruct an “expert” and obtain an “expert’s report”. He contended that, as the Applicant had failed to do so, and as the Tribunal were not experts in calculating hazards, the Respondent’s calculations and assessment of the hazards were undisputed.[63]Dr Jacklin referred to the deference that should be afforded to the decision of a local housing authority and submitted that it was for the Applicant to adduce evidence that the Respondent had been incorrect in their decision to take the enforcement action they did, and it was only if the Applicant had shown that the Respondent should have reached a different decision, that the Tribunal could remake the decision itself.[64]In support of his submissions, Dr Jacklin referred to the decisions of the Court of Appeal in Sutton v Norwich City Council [2021] EWCA Civ 20 and Waltham Forest LBC v Hussain [2022] UKUT 241(LC), as well as the decisions of the Upper Tribunal in Clark v Manchester City Council [2015] UKUT 0129 (LC) (‘Clark’).[65]Following the hearing, Dr Jacklin sent an email to the tribunal’s offices, attaching copies of the above authorities together with the decision of the Upper Tribunal in Curd v Liverpool City Council [2024] UKUT 218 (LC) (‘Curd’) and the decision of the Supreme Court in Tui UK Limited v Griffiths [2023] UKSC 48 (‘Griffiths’).[66]In his email, Dr Jacklin stated that the Respondent maintained that the appeal should be dismissed, as the Respondent’s evidence was uncontroverted within the meaning of the Griffiths decision. He also submitted that the Respondent had not been provided with any measurements, photographs or any other evidence the Tribunal had taken on its inspection; that he was unsure of any powers which allowed the Tribunal to take measurements and photographs and that the Tribunal should consider whether it had “fallen into the trap of investigating the Appellant’s appeal on his behalf”, which was not the role of an adversarial tribunal. The Tribunal’s Deliberations and Determinations[67]The Tribunal considered all of the submissions and evidence submitted by the parties, briefly summarised above. The Tribunal’s Expertise and Role[68]Firstly, the Tribunal considered the various matters of procedure and role of the Tribunal as raised by Dr Jacklin at the hearing and in his subsequent email.[69]Contrary to Dr Jacklin’s submission at the hearing, and as respectfully pointed out to him at the hearing, the First-tier Tribunal in this Chamber (‘the FTT’) is a specialist tribunal with expertise in property law. As recently stated by Judge Cooke in the Upper Tribunal decision in Monier Road Limited v Blomfield [2025] UKUT 157 (LC) (‘Blomfield’): “the FTT is a tribunal whose judges and members have considerable expertise in property law and in a number of other disciplines” (paragraph 57) One of the members of the tribunal panel was a senior environmental health officer with knowledge, experience and expertise in conducting HHSRS calculations.[70]In relation to the deference that should be given to the Respondent’s decision, the Tribunal accepts the same. The procedure on the conduct of such appeals was recently restated by Judge Cooke in Fletcher v Portsmouth City Council [2025] UKUT 172 (LC), (referring to Deputy President Martin Rodger KC at paragraph 13 in the Curd decision): “The appeal is a re-hearing, but the FTT should give special weight or deference to the local housing authority’s views and should only conclude that one of its decisions is wrong if it disagrees with the decision despite having accorded it that special weight”.[71]The Tribunal also notes that, as set out in Curd, the FTT is required to consider whether the decision under appeal was wrong at the time the decision was taken and not at the date of the appeal.[72]Although acknowledging the FTT’s expertise, the authorities do make it clear that the FTT cannot ignore the evidence that it is before it without giving reasons for doing so and must also explain why its expertise might lead it to draw conclusions contrary to the evidence (paragraphs 57 to 59 of the Blomfield decision).[73]Often matters that come before the FTT are brought by parties without legal representation and many do not have any understanding of the procedures and rules. Although it is true that in this matter the Applicant failed to attend the hearing and his written submissions did not include a witness statement or an expert’s report disputing Miss Cameron’s calculation of the hazards, this is not unusual in appeals that come before the FTT.[74]The Applicant had made it quite clear in his grounds of appeal that he wished to appeal against the issuing of the prohibition order and went through each of the hazards in turn identifying why he did not agree with the Respondent’s assessment and the categorization of any hazards as category 1 hazards. He also produced three videos, one demonstrating the use of the toilet and wash basin.[75]Accordingly, as in the Curd decision, despite not relying on expert evidence, it was apparent from the information provided by him what the Applicant was disputing. This was not only the Respondent’s assessment of the hazards but also the remedial action that the Respondent had stated was required to be taken.[76]Unlike in the Griffiths decision, which commenced before the county court, the FTT is a specialist tribunal. In addition, once an appeal is brought before it, the appeal is by way of a re-hearing not a review; the FTT can find, after affording deference to the local authority’s decision, that it disagrees with it.[77]This distinction was emphasized by the Deputy President Martin Rodger QC at paragraph 41 in the Clark decision: “On issues which depend on weighing and assessing a number of different factors (tasks which the F-tT with its relevant experience and composition is well equipped to undertake) reasonable people may well arrive at different conclusions. On a rehearing an appellant is entitled to expect that the F-tT will make up its own mind. In doing so it is not required to adopt the approach advocated by Mr Madden of starting with a blank sheet of paper, and it is entitled to have regard to the views of the local housing authority whose decision is under appeal. How influential those views will be is likely to depend on the subject matter; Buxton LJ’s recommendation that a county court judge should be slow to disagree with the views of the authority does not seem to me to apply with the same force to a specialist tribunal.”[78]Accordingly, the Tribunal does not accept Dr Jacklin’s submission that the appeal should be dismissed.[79]What is clear from the Upper Tribunal decisions, and emphasized in Blomfield is that, where any evidence given is contrary to the knowledge and experience of the tribunal panel, it must draw this to the attention of the witnesses and explain in its decision why it reached a different conclusion.[80]The FTT often carries out site inspections, not only to understand how the local authority came to its decision and afford deference to it, but to be in a position to make its own decision based on its findings if so required. In this case, the hazards included those relating to the size of the dwelling and heights of the ceilings. In order to make its own decisions on those matters, and noting that there may have been a discrepancy in the figures Miss Cameron had written in her note of the dimensions (ACA08) and those detailed in the prohibition orders, the Tribunal was obliged to take measurements of its own.[81]During the hearing, there was discussion regarding the room dimensions, in which Miss Cameron confirmed that the measurements set out in the prohibition orders issued were the correct ones. The Tribunal did not need to serve the Respondent with its measurements as, after resolving this discrepancy, it agreed with the measurements of the room and ceiling heights taken by Miss Cameron.[82]In relation to any photographs taken, these were taken with the permission of the Applicant and used as an aide memoire at the hearing. They are not evidence and have not formed any part of the Tribunal’s decision making.[83]As such, the Tribunal did not investigate the Appellant’s appeal on his behalf. It carried out a site inspection, obtained such information as would be needed if it was required to remake the decision and put any information at the hearing to Miss Cameron which might have suggested that her evidence was wrong as it was required to do. The Tribunal’s Deliberations[84]The Tribunal noted that, at the hearing, the Respondent accepted that the Order was invalid. As such, the Tribunal’s decision relates to the New Order.[85]As stated above, the Tribunal may, under the Act, confirm, quash or vary the prohibition order but cannot take into account works carried out since the prohibition order was made.[86]In this matter, it was quite clear from the Tribunal’s inspection that some works had been carried out to the Property since the issuing of the original prohibition order, in particular one of the windows on the first floor had been changed to allow it to open fully and an escape ladder had been installed to the roof.[87]Although the New Order was not made until 27 March 2025, as the Applicant failed to attend the hearing, the Tribunal had no evidence before it as to when such works were carried out and, consequently, cannot be sure that such works were completed prior to the New Order being made. Accordingly, the Tribunal cannot and has not taken these works into account when making its determination.[88]As during Miss Cameron’s inspections of the Property she had found that six category 1 hazards existed, the Respondent was required, under section 5(1) of the Act, to take appropriate enforcement action.[89]As to whether the assessment of the hazards as category 1 hazards was correct, the Tribunal makes the following comments in relation to each of the hazards identified and the remedial action required.[90]Excess cold The Tribunal accepted that although there was a small towel rail to the first floor, the only thermostatically controlled heater was on the ground floor and that this, combined with the split-level design of the Property, meant that a category 1 hazard for Excess cold existed.[91]Whether or not the Applicant had received any complaints regarding the heating from a particular tenant was not relevant to this assessment. In addition, being able to remedy the hazard in a simple way (such as adding a heater to the first floor) did not change the assessment of the category of hazard but might have been relevant in determining the appropriate enforcement action to be taken.[92]The Tribunal considered that the remedial action set out in the New Order (as slightly amended and with the exception of point 2, which would be extremely difficult for the Applicant to evidence) was appropriate.[93]Crowding and space The Respondent had, in the New Order, noted that the first-floor accommodation at the Property was only 5.8 m², which was less than the LACORS guidance of 6.51 m² or above for a bedroom for one person, with the kitchen/diner being 7.8 m², less than the recommended room size for one person being 8 m². The Respondent also noted that there was no separate lounge, for which the recommended size in the LACORS guidance for one person was 11 m². As a result of the same, the Respondent found that the size of the accommodation was not suitable for anyone to occupy.[94]At the hearing, Miss Cameron stated that the reference to the Property being suitable for the occupation of one person on page 8 of the New Order (in relation to the Fire hazard) was made in error, and that the Respondent’s view remained that the Property was not suitable for residential accommodation at all but might be suitable for use as an ‘Air BnB’ or other short-term rental.[95]Although the Tribunal accepted that the recommended measurements set out in the New Order were taken from the LACORS guidance, as put to Miss Cameron at the hearing, this was simply guidance. As stated by the Upper Tribunal in Clark, such guidance, “is not a substitute for consideration of whether a specific house is reasonably suitable for a particular number of occupiers” (paragraph 51). In relation to the Respondent’s Design Guidelines, provided at ACA14 in the Respondent’s bundle, the Tribunal noted that this would be relevant and merit respect but would not bind the Tribunal when making its own assessment (paragraph 53 in the Clark decision), nor would the fact that the Property had been granted planning permission and buildings consent.[96]Having carried out its inspection, the Tribunal found that the Property was more akin to a two-level bedsit with cooking facilities (there being no ‘living room’ to speak of) rather than a one-bedroom flat, so was not directly comparable to any of the examples set out in the Respondent’s Design Guidelines.[97]The Tribunal also noted that the Operating Guidance places a strong emphasis on lack of space in overcrowded conditions and matters which could affect social interaction between members of a household (such as the need for personal space and privacy) but at paragraph 11.14 confirms that open plan arrangements may be acceptable for dwellings with a single person.[98]Based on its inspection the Tribunal found that, although the size of the first floor (being 5.8 m² having discounted the 1.5m slope of the eaves) was below the minimum LACORS guidance, due to the open nature and split-level layout, it did not feel enclosed or crowded. It also noted that the size of the kitchen/diner was only just shy of the recommended room size by 0.2 m² and that the combined space amounted to 13.6 m² of usable space.[99]The Tribunal found in its assessment of the hazard that, although the accommodation was small, it was not a category 1 hazard but a high scoring category 2 hazard and that the Property should be restricted to the occupation of one person.[100]Personal hygiene, Sanitation and Drainage The Tribunal accepted that there was a distinct lack of privacy when utilising bathroom facilities and that, ideally, any sanitary accommodation should be located in a separate compartment with a door that could be locked.[101]When considering the likelihood and range and severity of harms, however, it found that the likelihood of harm caused by the lack of separation of the bathroom facilities from the sleeping area was very low taking into account the modern sanitary ware fitted and surrounding features – the placement of the toilet next to the wash basin, the addition of vinyl flooring around the sanitary ware, the boxing off of any pipework and the tiled splash back and tiling within the shower cubicle.[102]The Tribunal accepted that if the facilities were shared there could be a greater risk of contamination. The Tribunal also accepted that a single occupant might be embarrassed should they have visitors and either they or their visitors required use of the facilities.[103]Taking into account all of these factors, the Tribunal found that the Respondent’s calculation of the hazard was too high, with the Tribunal’s assessment resulting in a low scoring category 2 hazard.[104]In relation to items one and two in the remedial action required for this hazard in the New Order, the Tribunal found that these related to manoeuvrability and were not relevant to this hazard. In addition, the Tribunal noted that there was an extraction fan already fitted to the shower room, which the Applicant had referenced in his grounds of appeal and could be partially seen in one of the Respondent’s photographs. As such, the Tribunal found that this should not have been included within the remedial action required.[105]Based on the Tribunal’s low assessment of the hazard but noting that there could be an increased risk if facilities were shared, the Tribunal found that the Property should be restricted to the occupation of one person.[106]Fire As stated above, although works had been carried out to the Property to improve fire safety by the time of the Tribunal’s inspection (and the Tribunal being satisfied that the new window unit and layout could serve as a fire escape window), the Tribunal could not take these into account as it had no evidence at the hearing as to what date the alterations had been made.[107]The Tribunal agreed that, based on the details of the layout of the Property and installations that had been present at the time of Miss Cameron’s initial inspections, which were not refuted by the Applicant, the hazard was a category 1 hazard and that the remedial action set out in the New Order relating to the installation of an escape window, with the Property already restricted to the occupation by one person, was appropriate.[108]The Tribunal found, however, that it would be inappropriate to include positioning of furniture in the remedial action required in a prohibition order, as this would be something outside of the landlord’s control once the Property was let and noted that the Property could, potentially, be let unfurnished.[109]Collision The Tribunal noted that the height of the ceilings on the ground floor as recorded by Miss Cameron, and accepted by the Tribunal, was 1.95 m. Although this was lower than the Respondent’s Design Guidelines, the Operating Guidance referred to relevant matters as low beams and ceilings “well under 1.9 m” (paragraph 26.18). Accordingly, the Tribunal found that the ceiling height on the ground floor was not a hazard.[110]In relation to the position of the wash basin, the Tribunal noted that the ceiling height was 1.7 m, that the wash basin was boxed in at the back and protruded forward and that any risk of collision with the ceiling would be further lowered as anyone using it would be standing in front of it with a clear view of the eaves.[111]In relation to the use of the toilet, the ceiling height was lower at 1.5 m and, although the Tribunal noted the Applicant’s submission - that the reduced height was only over the actual fitting - and that someone would need to bend to get on and off the toilet, it considered that there was still some risk of harm being caused when using the same. The Tribunal found, however, that the likelihood of a collision would reduce with familiarity and that the risk of serious harm was, in any event, minor.[112]As such, the Tribunal found that its assessment of the hazard was a low scoring category 2 hazard.[113]Position and operability of amenities The Tribunal noted that this hazard referred to physical strain associated with functional space, in particular the use of kitchen and bathroom facilities, as well as items such as electric sockets, windows and storage. Any deficiencies relating to floor area were more suited to the Crowding and space hazard.[114]Miss Cameron, at the hearing, accepted that changing the furniture layout on the ground floor, by removing the current sofa and replacing it with suitable alternative furniture, and increasing the space on the first floor by changing the double bed to a single bed, would allow greater manoeuvrability to be able to use both the kitchen facilities and sanitary ware on the first floor.[115]The Tribunal accepted that, during the Respondent’s inspections and based on Miss Cameron’s measurements, the sofa on the ground floor was too close to the oven and the double bed on the first floor was closer to bathroom fittings than when the Tribunal carried out its inspection. As stated above, the Tribunal found that it would be inappropriate to include positioning of such items in a prohibition order, as the positioning of furniture would be something outside the landlord’s control once the Property was let and the Property could, potentially, be let unfurnished.[116]In relation to the low headroom above the toilet and wash basin, the Tribunal accepted that these could, for someone tall, be awkward to use.[117]Taking into account the above, the Tribunal found that the Respondent’s assessment of the hazard as being a category 1 hazard was too high and determined that the hazard was, again, a low scoring category 2 hazard. Tribunal’s Determination[118]The Tribunal, having found that it did not agree with some of the assessments of the hazards made by the Respondent, went on to consider whether the enforcement action taken was appropriate and whether it should confirm, quash or vary the New Order.[119]As set out above, the Tribunal found that two category 1 hazards existed at the time the Respondent made its decision, with a further four low scoring category 2 hazards. As such, enforcement action was required to be taken.[120]In relation to which enforcement action was appropriate, the Tribunal accepted that, at the time the Respondent made its decision, the risks posed by the Fire hazard were a serious category 1 hazard and that only the imposition of a prohibition order could restrict the number of occupants to one to minimise the Crowding and space and Personal hygiene hazard. As such, the Tribunal found that the making of a prohibition order was the most appropriate form of enforcement action.[121]As the Tribunal did not agree with the assessment of several of the hazards set out in the New Order and, consequently, the remedial action noted in respect of the same, the Tribunal orders that the New Order be varied as set out in paragraph 1 above. As the Collision and Position and operability of amenities hazards were low scoring category 2 hazards, with no remedial action that could be taken to mitigate the same, the Tribunal found that they should not be included in the prohibition order. Appeal[122]If either party is dissatisfied with this decision, they may apply to this Tribunal for permission to appeal to the Upper Tribunal (Lands Chamber). Any such application must be received within 28 days after these written reasons have been sent to the parties (Rule 52 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013). M K GANDHAM ………………………… Deputy Regional Judge Appendix Schedule 1 Category 1 Hazards This part of the notice is served under section 20 and 21 of the Housing Act 2004. Residential property in which category 1 and category 2 hazards exist and to which prohibitions are imposed by the order: Flat 36, Burleigh Mews, 102 Friar Gate, Derby, DE1 1EX Nature of the hazard: Excess Cold The deficiencies giving rise to the hazard:• There is only a heated towel rail with no thermostatic control on the first floor and the entire dwelling is open plan. Consequently, there is a lack of sufficient heating or temperature control on the first floor. Remedial action which the authority considers would be appropriate in relation to the hazard:[1]Install an additional heater to the first floor. The heater shall have controls to permit the occupier to control the intensity and timing of heat output.[2]This electrical work is to be carried out in accordance with the IET regulations; BS7671 and by a NICEIC qualified electrical engineer (or equivalent). A copy of the manufacturer’s instructions shall be left with the occupier and the Benchmark document competed by the installer, a copy of which shall be provided to andrea.cameron@derby.gov.uk[3]The heater shall be so sited as to ensure an even distribution of heat whilst minimising heat loss through walls and windows. Nature of the hazard: Crowding and Space (actual) A habitable floor area is the useable floor area of any room used as a bedroom, living room or kitchen. Space taken up by fitted units are counted in the floor area calculation, but chimney breasts, ensuite bathroom or shower rooms, staircases, access lobbies, passageways and landings are not. The deficiencies giving rise to the hazard:• The bedroom is occupied by one person but is only 5.8 m2. The LACORS Operating Guidance minimum bedroom standard for one person sleeping is 6.51 m2.• The kitchen/diner is only 7.8 m2 and has no separate lounge.• As no consideration has been given to the space taken by the stairs or the bathroom when determining the room sizes in this dwelling, the property is only suitable for one occupier. Remedial action which the authority considers would be appropriate in relation to the hazard:[1]The maximum number of people who can occupy the property is one adult. Nature of the hazard: Personal hygiene, Sanitation and Drainage The deficiencies giving rise to the hazard:• There is no separation between the shower room and the remainder of the property as the entire dwelling is open plan, offering no privacy for any user of the bathroom facilities. Remedial action which the authority considers would be appropriate in relation to the hazard:[1]None required as occupation is limited to one adult. Nature of the hazard: Fire The Building Regulations 2010, Fire Safety Approved Document B1, 2019 edition incorporating 2020 and 2022 amendments states that dwellinghouses with two or more storeys more than 4.5m above ground level (2.6) should:a. Provide an alternative escape route from each storey more than 7.5m above ground level. At the first storey above 7.5m, the protected stairway should be separated from the lower storeys by fire resisting construction (minimum REI 30) which dies not apply here. However the following applies when escaping from upper storeys a maximum of 4.5m above ground level: Where served by only one stair, all habitable rooms (excluding kitchens) should have either of the following. a. An emergency escape window or external door, as described in paragraph 2.10.b. Direct access to a protected stairway, as described in paragraph 2.5a. The deficiencies giving rise to the hazard:• The kitchen/diner habitable floor area is only 7.8 m2 with no additional lounge space. The sofa is sited 250 mm from the oven door. The small size and shape of the kitchen/diner and stairs position make it difficult to position the furniture - a sofa or dining table, as they are adjacent to the cooker, without the furniture also being in close proximity to a source of ignition.• There is no protected escape route, no secondary means of escape, no separation between the two floors, and no internal doors anywhere in the property. This open plan layout poses a risk to the occupiers if a fire starts unnoticed in the kitchen, as the escape route from the bedroom will be compromised and decreases the chance of the occupant making a safe escape before asphyxiation occurs. However, it was noted that the travel distance from the sleeping area to a final exit point is a short distance. Remedial action which the authority considers would be appropriate in relation to the hazard:[1]Install an escape window on the first floor ensuring:a. i. A minimum area of 0.33m2. ii. A minimum height of 450mm and a minimum width of 450mm (the route through the window may be at an angle rather than straight through). iii. The bottom of the openable area is a maximum of 1100mm above the floor.b. People escaping should be able to reach a place free from danger from fire.c. Locks (with or without removable keys) and opening stays (with child-resistant release catches) may be fitted to escape windows.d. Windows should be capable of remaining open without being held All alteration works regarding fire safety shall be carried out by a competent person and are to comply with The Building Regulations 2010, Fire Safety, Approved Document B1, 2019 edition incorporating 2020 and 2022 amendments.