First Floor Flat, 152 Upper Street, London N1 1RA: LON/00AU/HIN/2014/0036 LON/00AU/HIN/2014/0036
DECISION
[28]The tribunal observed that the letter of 11 September invited the recipient to contact to arrange a meeting. Its tone is appropriate given the seriousness of the conditions at the property and conveys in the correct tone the importance that appropriate works are carried out. The Council had a duty to take action when it identifies a Category 1 hazard and it cannot have been expected to know or investigate the age of the recipient or Mr Samuels' particular circumstances before writing.[29]It seems clear to the tribunal that the Appellants could have sought to avoid the issue of an Improvement Notice if they had responded promptly to the letter of 11 September and that the Council would, as Mr Whittingham said in evidence, have engaged with Mr and Ms Samuels if they had received a favourable response from them before deciding on any final action to be taken. More notice of the inspection would have been preferable but, (as discussed below) this has certainly caused no prejudice to the Appellants.[30]As far as the HHSRS assessment is concerned, the tribunal finds nothing compelling to undermine the judgement of the environmental health officer. The likelihood of an occurrence and the range of probably harm outcomes is combined using a standard method to give a score in respect of each hazard. The assessment has been carried out in accordance with the principles in the Housing Health and Safety Rating System Operating Guidance (the official guidance document) and that the numerical values used for the likelihood of an occurrence and the harm outcomes are in line with the examples given in the guidance.[31]The guidance provides with regards to a Category 1 hazard that “an improvement notice will be an appropriate means of mitigating hazards, where works of mitigation are practicable and occupants are vulnerable”. The tribunal is satisfied that an Improvement Notice was an entirely appropriate step in the current case and was not persuaded that the absence of the current works in the 2010 Improvement Notice presents a ground of appeal. There are clear hazards present and the occupant now has a visual impairment.[32]The subject premises are indeed a dwelling and Mr Dennett's home. The tribunal rejects the suggestion that the works should not be ordered because the tenant does not want them. Every residential occupant is entitled to have basic services available for washing and sanitation. The tenant's explanation for having covered the bath was that the water heater had broken and there were problems with the plumbing. It would be wrong to predict how the tenant would use such services if they were again available, and the fact that he has made do without is no argument for continuing to withhold them. The kitchen sink does not provide adequate sanitation facilitation as it is used for food preparation. The WC is of adequate size to fit a wash hand basin, and a second one in the bathroom is not necessary. On the basis of its visit to the property the tribunal rejects the suggestion that the light at the top of the stairs is sufficient to prevent falls on them. Furthermore, the tribunal agrees with the observation of the Respondent any future care needs may be difficult to provide without appropriate washing and kitchen facilities.[33]Mr and Ms Samuels clearly understand the risks posed to the tenant by the condition of the premises. In correspondence Ms Samuels remarked “[i]t is extremely likely that he may fall and suffer injury”. It was reasonably apparent to the local authority from the various written responses from Mr and Ms Samuels that no remedial works would be carried out to the premises. The tribunal entirely disagrees with the contention for the Appellants that the local authority had taken a disproportionate approach. The first Improvement Notice was not issued until more than seven weeks after the inspection. This was easily sufficient time for the Appellants to have taken practical steps to ensure remedial works were carried out.[34]It is clear to the tribunal from the evidence and submissions that the Appellants' interest in obtaining vacant possession of the premises has influenced their approach. The Tribunal does not consider that Mr Dennett’s rehousing position is at a stage where it can reasonably be taken into account in deciding what steps to take under the Act. Given that when travelling they could have made themselves available by email, the tribunal sees no good reason why they have failed to carry out even the works which they agree are necessary.[35]The tribunal found evasive and inadequate the explanations put forward by Mr and Ms Samuels for having failed to carry out any work at all on the premises since the Council's first inspection. This undermined entirely their suggestion that an Improvement Notice had been unnecessary and negotiation would have achieved an appropriate result. They had failed to carry out even minor items important for the health and safety of the tenant – such as securing a loose floorboard and repairing the toilet. The tribunal firmly rejects the suggestion that a Hazard Awareness Notice would have been appropriate for hazards of this seriousness requiring works on a relatively urgent basis. A prohibition notice is clearly not necessary or appropriate in the current case given the practicality, practicability and low cost of the necessary works.[36]Whilst Mr and Mrs Samuels referred to the very low fair rent of £40 being paid for the flat, this rent does not relieve them of obligations to the tenant, and the landlord clearly receives a significant income from the commercial premises downstairs, in respect of which they are making an investment. Order[37]The appeal is dismissed and the Improvement Notice confirmed with one variation. It is varied only in that Item 2.2 on the chedule of works attached to this decision is amended to read “Provide and fit to the WC compartment a wash hand basin with a constant supply of hot and cold water”.[38]The notice becomes operative at the end of the period for further appeal, if no such appeal is brought. Costs[39]Mr Samuels challenged the costs of £570 sought by the Council, which Ms Cafferkey said were standard costs for the service of an Improvement Notice (and a cap if work costing more than £570 had been carried out). The Council had not served a schedule of costs in accordance with the directions, but Mr Whittingham said he spend 10.5 hours by the time he issued the Improvement Notice - 8 hours deciding whether to service notices (including 3.5 hours for telephone calls, emails and inspection, but excluding a second visit to the property) and 2.5 hours drafting the notice. The hourly rate used by the Council was £54.81. Mr Samuels challenged the number of hours work that had been carried out in preparation of the notice,[40]The tribunal considers the local authority's charge for expenses is reasonable and arises from the matters in respect of which it may charge under section 49(2). The tribunal dismisses the appeal against the charge of £570. Name F. Dickie Date: 24 March 2015