Bristol City Council v Aldford Two LLP [2011] UKUT 130 (LC) (30 March 2011)</title> [2011] UKUT 130 (LC)

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE RESIDENTIAL

UT Neutral citation number: [2011] UKUT 130 (LC)

Venue PROPERTY TRIBUNAL FOR THE SOUTHERN RENT ASSESSMENT PANEL, BETWEEN BRISTOL CITY COUNCIL Appellant, and, ALDFORD TWO LLP Respondent, Re: 55D Westbury Hill,, Bristol, BS9 3AD, Before: The President, Sitting at 43-45 Bedford Square, London WC1B 3AS, John Virgo instructed by Head of Legal Services, Bristol City Council, for the appellant, Piers Harrison instructed by public access for the respondent, Cases referred to:, Arrowdell Ltd v Coniston Court (North) Hove Ltd [2007] RVR 39, Dugdale v Kraft Foods Ltd [1976] 1 WLR 1288, The following further cases were referred to in argument:, Land Securities v Westminster City Council [1993] 4 All ER 125, Luton Borough Council v Universal Group HA/6/2007, [2009] EWLands HA_6_2007 , Lands Tribunal, DECISION, Introduction

Between

Bristol City Council

Aldford Two LLP [2011] UKUT 130 (LC) (30 March 2011)</title>

Date 1 February 2011

[1]This is an appeal against a decision of a Residential Property Tribunal given on 14 January 2010 ordering that an improvement notice served by the appellant on the respondent under section 11(1) of the Housing Act 2004 be quashed. The appellant, Bristol City Council, is a local housing authority and the respondent, Aldford Two LLP, is and has been at all material times the freehold owner of a first and second floor flat known as The Maisonette, 55A Westbury Hill, Bristol BS9 3AD, which was let to a couple on an annual assured shorthold tenancy. The improvement notice alleged that a “category 1 hazard” existed at the premises in that the heating system (convector heaters) was inadequate, and it ordered the provision of a gas central heating system or electric night storage heating system. The present respondent appealed to the RPT. Its case was that the heating system was adequate and was indeed a more suitable and cheaper means of heating the flat for tenants such as the present ones, who had themselves expressed satisfaction with it.

[2]Under the 2004 Act hazards existing in residential premises fall into one or other of two categories. For a category 1 hazard the housing authority is required to take enforcement action of one of a number of prescribed types, of which an improvement notice is one. For a category 2 hazard the authority has a discretion whether to take enforcement action. Which of these two categories a hazard falls into is determined by a judgemental assessment, carried out as prescribed by regulations, under which a numerical score is produced. The council’s case was that the heating system in the flat was deficient, thus creating a hazard, and, properly scored, the hazard fell into category 1, thus making enforcement action mandatory. 3. In its decision the RPT, which held a hearing at which evidence was given and carried out an inspection of the premises, expressed its conclusions briefly. It said:

“6. Conclusions Having carefully considered all written representations that had been made together with the evidence that had been given before the Tribunal the Tribunal reached the following conclusions. 6.1 That a Category 1 Hazard did exist in respect of these premises and as a result the Respondent had no alternative than to issue an Improvement Notice. 6.2 However and notwithstanding the above the Tribunal had noted from their inspection firstly that the tenants themselves had no complaint about the heating and were happy to control it for the time and the hours that they wanted in the respective rooms. Secondly that notwithstanding that it was a cold day outside the premises appeared to be warm and adequately heated. Thirdly and based on the Tribunal members’ own knowledge and inspection of many similar premises, that the heating system that was provided at these premises should be perfectly adequate and is not abnormal for these types of premises. 6.3 The Tribunal accordingly orders that the Improvement Notice dated the 8 th September 2009 be quashed.”

[4]The council applied for permission to appeal on two grounds. The first was that having determined that the heating system constituted a category 1 hazard, it was not open to the RPT as a matter of law to quash the improvement notice. The second ground was that the conclusions in paragraph 6.2 were either forensically irrelevant or improperly relied on. The RPT rejected both grounds. 5. On 14 May 2010, on the appellant’s application to this Tribunal, I granted permission. In doing so, I said:

“ Unless the effect of tribunal’s findings at paragraph 6.2 on the adequacy of the heating system is that its conclusion that a Category 1 Hazard existed was wrong (a matter that should be addressed in the appeal), there appears to be a strong argument that it had no power to quash the notice. It is also appropriate to consider in the context of the particular legislation the extent to which a tribunal is entitled to take its own knowledge and experience into account.”

I directed that the appeal should be determined by way of review. Housing Act 2004: hazards and enforcement action 6. Part 1 of the Act deals with housing conditions, and in Chapter 1 a new system for assessing housing conditions and enforcing housing standards is established. Section 2(1) defines “category 1 hazard” and “category 2 hazard”:

“(1) In this Act - ‘category 1 hazard’ means a hazard of a prescribed description which falls within a prescribed band as a result of achieving, under a prescribed method for calculating the seriousness of hazard of that description, a numerical score of or above a prescribed amount;” “Category 2 hazard” is similarly defined, and “hazard” is defined as “any risk of harm to the health or safety of an actual or potential occupier of a dwelling or HMO which arises from a deficiency in the dwelling or HMO or in any building or land in the vicinity (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise).” (HMO is a house in multiple occupation.) 7. Section 2(3) provides: “(3) Regulations under this section may, in particular, prescribe a method for calculating the seriousness of hazards which takes into account both the likelihood of the harm occurring and the severity of the harm if it were to occur.”

[8]It is the Housing Health and Safety Rating System (England) Regulations 2005 that contain the prescriptions provided for in section 2(1), and they also define what “harm” is. I will refer to the Regulations later. 9. Section 5 of the Act contains the general duty to take enforcement action in respect of category 1 hazards. As far as material it provides:

“5 Category 1 hazards: general duty to take enforcement action (1) If a local housing authority consider that a category 1 hazard exists on any residential premises, they must take the appropriate enforcement action in relation to the hazard. (2) In subsection (1) ‘the appropriate enforcement action’ means whichever of the following courses of action is indicated by subsection (3) or (4) - (a) serving an improvement notice under section 11; (b) making a prohibition order under section 20; (c) serving a hazard awareness notice under section 28; (d) taking emergency remedial action under section 40; (e) making an emergency prohibition order under section 43; … (3) If only one course of action within subsection (2) is available to the authority in relation to the hazard, they must take that course of action. (4) If two or more courses of action within subsection (2) are available to the authority in relation to the hazard, they must take the course of action which they consider to be the most appropriate of those available to them...”

[10]Under section 8 the authority are required to give reasons for taking enforcement action. Section 9 provides for the giving of guidance to authorities in the exercise of their functions, and such guidance has been given in the Housing Health and Rating System Operating Guidance and the Housing Health and Safety Rating System Enforcement Guidance, both issued by the Office of the Deputy Prime Minister in February 2006. 11. Section 11, which deals with improvement notices relating to category 1 hazards (section 12 deals with improvement notices for category 2 hazards), contains the following provisions:

“11. Improvement notices relating to category 1 hazards: duty of authority to serve notice (1) If - (a) the local housing authority are satisfied that a category 1 hazard exists on any residential premises, and (b) no management order is in force in relation to the premises under Chapter 1 or 2 or Part 4, serving an improvement notice under this section in respect of the hazard is a course of action available to the authority in relation to the hazard for the purposes of section 5 (category 1 hazards: general duty to take enforcement action). (2) An improvement notice under this section is a notice requiring the person on whom it is served to take such remedial action in respect of the hazard concerned as is specified in the notice in accordance with subsections (3) to (5) and section 13 …” 12. Section 13 deals with the contents of improvement notices, and subsection (1) provides that an improvement notice under section 11 or 12 must comply with the following provisions: “(2) The notice must specify, in relation to the hazard (or each of the hazards) to which it relates - (a) whether the notice is served under section 11 or 12, (b) the nature of the hazard and the residential premises on which it exists, (c) the deficiency giving rise to the hazard, (d) the premises in relation to which remedial action is to be taken in respect of the hazard and the nature of the remedial action, (e) the date when the remedial action is to be started (see subsection (3)), and (f) the period within which the remedial action is to be completed or the periods within which each part of it is to be completed. (3) The notice may not require any remedial action to be started earlier than the 28th day after that on which the notice is served.” 13. S ection 15(2) provides that (unless suspended) an improvement notice becomes operative 21 days after being served, the period for appealing against the notice under Schedule 1. Under section 15(5), if an appeal is made, the notice does not become operative until the notice is confirmed on appeal or the period for further appeal expires. 14. Hazard awareness notices relating to category 1 hazards are dealt with in section 28, which so far as material provides: “28. Hazard awareness notices relating to category 1 hazards: duty of authority to serve notice (1) If - (a) the local housing authority are satisfied that a category 1 hazard exists on any residential premises, and (b) no management order is in force in relation to the premises under Chapter 1 or 2 of Part 4, serving a hazard awareness notice under this section in respect of the hazard is a course of action available to the authority in relation to the hazard for the purposes of section 5 (category 1 hazards: general duty to take enforcement action). (2) A hazard awareness notice under this section is a notice advising the person on whom it is served of the existence of a category 1 hazard on the residential premises concerned which arises as a result of a deficiency on the premises in respect of which the notice is served. (3) The notice may be served in respect of the following premises - (a) if the residential premises on which the hazard exists are a dwelling or HMO which is not a flat, it may be served in respect of the dwelling or HMO; (b) if those premises are one or more flats, it may be served in respect of the building containing the flat or flats (or any part of the building) or any external common parts; … (6) A notice under this section must specify, in relation to the hazard (or each of the hazards) to which it relates - (a) the nature of the hazard and the residential premises on which it exists, (b) the deficiency giving rise to the hazard, (c) the premises on which the deficiency exists, (d) the authority’s reasons for deciding to serve the notice, including their reasons for deciding that serving the notice is the most appropriate course of action, and (e) details of the remedial action (if any) which the authority consider that it would be practicable and appropriate to take in relation to the hazard. (7) Part 1 of Schedule 1 (which relates to the service of improvement notices and copies of such notices) applies to a notice under this section as if it were an improvement notice. …”

The Housing Health and Safety Rating System (England) Regulations 2005

[15]The Regulations prescribe the descriptions of category 1 and category 2 hazards, and they also prescribe a method for calculating their seriousness by establishing a numerical score. Regulation 2 defines “harm” as harm within any of Classes 1 to IV as set out in Schedule 2. The Schedule provides that Class 1 harm is “such extreme harm as is reasonably foreseeable as a result of the hazard in question, including -”, and then are set out “(a) death from any cause” and, from (b) to (g), lung cancer, malignant tumours, permanent paralysis below the neck, regular severe pneumonia, permanent loss of consciousness and 80% burn injuries. Class II harm is “severe harm” (including, for example, cardio-respiratory disease). Class III harm is “serious harm” (including, for example, gastro-enteritis). Class IV is “moderate harm” (including, for example, regular serious coughs and colds).

[16]Regulation 3(1) provides that a hazard is of a prescribed description for the purposes of the Act where the risk of harm is associated with any of the matters or circumstances listed in Schedule 1. The list includes:

“2. Exposure to low temperatures.”

[17]Regulation 7 prescribes bands of hazards from A to J on the basis of a range of numerical scores. Thus a Band A hazard is one with a numerical score of 5000 or more; a Band B hazard is one with a numerical score of 2000 to 4999; and a Band C hazard is one with a numerical score of 1000 to 1999. Regulation 8 provides that a hazard falling within band A, B or C is a category 1 hazard and that a hazard falling within any other band is a category 2 hazard.

[18]The numerical score for a hazard is reached in a number of steps prescribed by regulation 6. First the inspector is required to assess the likelihood, during the period of 12 months beginning with the date of assessment, of a relevant occupier suffering any harm as the result of that hazard as falling within one of a range of 16 ratios of likelihood that are set out. For each range there is also set out a representative scale point of range (L, as it is called in a formula that later falls to be applied). Thus, for instance, in the range of ratios of likelihood between 1 in 4200 and 1 in 2400 the representative scale point of range is stated to be 3200.

[19]Who is a “relevant occupier” is defined in regulation 6(7) by reference to particular matters contained in Schedule 1. For paragraph 2 (Excess cold) the relevant occupier is an occupier aged 65 years or over.

[20]The second step requires the inspector to assess which of the four classes of harm a relevant occupier is most likely to suffer. Thirdly he must assess the possibility of each of the three other classes of harm occurring as a result of that hazard, as falling within a range of percentages of possibility. For each range there is also set out a representative scale point of the percentage range (RSPPR). Thus, for instance, for the range 0.15% to 0.3% the RSPPR is 0.2%.

[21]Step four requires the inspector to bring the total of RSPPRs for the four classes up to 100%. To do this he adds the percentages of the three RSPPRs he has reached at step three, takes the total away from 100% and attributes what is left to the class of harm that he assessed to be most likely to occur.

[22]Step five is the production of a numerical score for the seriousness of the hazard for each of the four classes of harm. For each of these, L (see paragraph 22 above) is multiplied by the RSPPR and then by a further factor, which weights the seriousness of the classes of harm. This factor is 10000 for Class I, 1000 for Class II, 300 for Class III and 10 for Class IV. The final step is to add the four individual numerical scores to produce the numerical score that can be related to the prescribed bands. The council’s assessment

[23]The council’s environmental health officer, Lisa Williams, carried out an assessment using the electronic form that is provided for this purpose. The user of this form simply has to select one of the numbers for case likelihood (step 1 above, the L number) from the range 1 in 1 to 1 in 5600 and one of the RSPPRs (step 3 above) from the range 0% to 46.4% for each of the four classes. He also needs to carry out step 4, unless the percentages already total exactly 100%. The computation is then automatic. The choice of numbers is of course crucial. To assist the user each of the ranges from which the selection is made includes a number marked “NA”. This is said to represent the national average (for the actual case likelihood and the percentage of possibility of harm for each class). 24. Ms Williams’s first assessment of the hazard of excess cold, carried out after an inspection on 8 January 2009 produced a hazard rating score of 3275, putting it in hazard band B and category 1. The second assessment was carried out after an inspection on 11 May 2009. By then additional loft insulation had been installed, and by reason of this, Ms Williams told the RPT, the hazard rating score was reduced in the second assessment to 1819, putting it in hazard band C. The form as completed classified the property under “Flats Pre-1920”, and described the dwelling and the hazard as follows:

“The property is a mid terrace 3 bedroom maisonette above a shop. There is a large reception room, kitchen, shower room and bedroom to the first floor and 2 further bedrooms and a bathroom to the second floor. There are wall mounted convector heaters throughout the property with timers and thermostatic controls. The appliances provided to the first floor bedroom are undersized. The second floor is built into the roof space, however, there is access to a loft which has been provided with 200mm insulation. The level of insulation, if any, between the rafters and plaster to the sloping ceiling is unknown. The front of the property ahs wood sliding and sash windows and the rear is fitted with upvc double glazing.”

[25]The list of relevant matters required the entry against each of 10 “relevant matters” of a code: 0 for “satisfactory”, 1 for “not satisfactory”; 2 for “defective”; or 3 for “seriously defective”. Code 0 was entered against each item except two. The exceptions were “Type of heating provision - inappropriate or inefficient systems or appliances”, which was given code 3 (for “seriously defective”) and “Size of heating system - system and appliances inadequate for the size of the dwelling”, which was given code 2 (for “defective”).26. The key element of the assessment leading to the hazard rating score was the likelihood assessment of an actual case likelihood of 1 in 180, ie a likelihood that one instance of harm to a resident of 65 or over would occur in the ensuing 12 months because of excess cold. The justification for this was stated to be: “The expensive on-peak electric heating appliances (which are undersized to two rooms) means the likelihood of a healthy indoor temperature being maintained during the cold winter months is unlikely and thus the likelihood of a harmful occurrence is increased above the average for this age and type of dwelling.” (The national average likelihood was given as 1 in 340).

27. Having determined the actual case likelihood (step 1), the officer then had to carry out steps 2 and 3. She adopted the NAs for the RSPPRs for each of the four classes (Class I 31.6%; Class II 4.6%; Class III 21.5%; and Class IV 46.4%). The resulting scores were these: Class I 10000 x 1/180 x 31.6 = 1755.56 Class II 1000 x 1/180 x 4.6 = 25.56 Class III 300 x 1/180 x 21.5 = 35.83 Class IV 10 x 1/10 x 42.3 = 2.35 Added together these produced a hazard rating score of 1819, putting the hazard into band C.

[28]All but 62 of the hazard rating score was attributable to Class I harm - death or other extreme harm. It is worth pausing at this point to note that what the officer had in this way concluded was that there was a 1 in 570 chance (180 ÷ 31.6) that in the next 12 months a person aged 65 or more living in this flat would either die or suffer extreme harm because of cold conditions there. It was effectively this that prompted the service of the notice. The landlord’s case in the LVT

[29]The landlord, in the person of Mr Richard Goodman, a member of the respondent company, told the LVT that the company had bought the property in 2007. It had let the ground floor shop and spent £50,000 in refurbishing the upper two floors to provide a four-bedroom maisonette. It was let to a couple, Ms I Hume and Mr S Tunn, on an assured shorthold tenancy at a rent of £675 per calendar month. The property was not really suitable for families with young children or elderly occupants due to the limited steep staircase access and lack of outside amenity space, but it was ideally suited to working adults occupying on a short-term basis, and this was the purpose for which it was designed and occupied. The company had considered the installation of gas central heating, but had dismissed this, mainly due to the fact that there was no existing gas supply to the building and it was technically difficult to run one in. Electric storage heaters were not considered, primarily because they had less flexibility to provide instantaneous heating. It was the company’s experience that the tenants likely to rent these premises required heat for specific times during the day, usually for an hour or so first thing in the morning and on return from work in the late afternoon until bedtime. This was what the current occupiers required. The company considered that the thermostatically and timer controlled wall-mounted convector heaters that had been installed were the most appropriate to the rental market. The tenants were happy with the premises, and the landlord should not have a particular type of heating forced upon it.

[30]Mr Goodman said that the landlord had let two maisonettes in Henbury to tenants on the council’s housing list, both of which had identical heating arrangements to those in the subject premises, and this had produced no adverse comment from the council or the tenants.

[31]Mr Goodman said that in the light of the Government’s definition of fuel poverty (where heating costs are in excess of 10% of the household income), and taking the council’s estimate of the cost of heating the premises using the existing system (£1,316 per annum), the combined income of the occupants would need to be below £13,160 per annum before there would be fuel poverty. This, he said, was virtually impossible.

[32]Evidence for the landlord on the costs of heating the property was given by Alec Turner, a chartered building surveyor. He drew attention to the dependence of the council’s case on the existence of a hazard due to excess cold on the score of 1819, and he pointed out that this was stated to be based on a type of heating that was “seriously defective” and a size of heating that was stated to be “defective”. However, in her witness statement Ms Williams had said that on the basis of a heat loss calculation provided by the company on 4 November 2009 she was now satisfied that the size of the heating appliances provided to each room was adequate. Mr Turner suggested that in the light of this the hazard rating score needed to be recalculated. Moreover, he said, the description of the type of heating as “seriously defective” seemed inappropriate to him when it was accepted as being perfectly adequate to heat the accommodation.

[33]Mr Turner went on to produce calculations of the annual heating costs, setting out the parameters that he had adopted. His cost calculation for night storage heaters was £867, and he calculated the cost of panel heaters, taking account of the likely number of hours that they would be in operation each day, at £797. Thus, he said, the panel heating system was less costly than the night storage option, and the system was adequately sized and sufficient to provide the required heat to the accommodation.

[34]Ms Williams told the RPT that the heating system “was deemed to be worse than the typical for a dwelling of this age and type.” The electric convector heaters were considered inappropriate and inefficient due to the high cost involved in adequately heating a large, solid walled, 3 bedroom maisonette, which had single glazed sliding sash windows to the front elevation. The high cost of adequately heating the property meant that it was less likely that a healthy indoor temperature would be maintained, particularly in the cold winter months, and that was considered to contribute to an increased hazard likelihood ratio. She said that she had produced an Energy Performance certificate in November 2009 and this showed that cost of heating would be £1316 per annum, while fan-assisted storage heaters would cost £745 per annum and gas central heating £617. The heating system was considered to be worse than typical for a dwelling of the type and age of the subject premises. She was, however, now satisfied, on the basis of a heat loss calculation provided by the landlord on 4 November 2009, that the size of the heating appliances provided to each room was adequate. The appellant’s case

[35]For the council Mr John Virgo said that it was agreed that there were two issues. The first was whether for the purposes of the 2004 Act (and in particular section 5) it was open to the RPT, having found that a Category 1 hazard existed at the property, to direct the council to take no action in respect of it. He submitted that it was not. Section 5(1) provided that, if a local housing authority considers that a Category 1 hazard exists on any residential premises, they must take the appropriate enforcement action in relation to the hazard; subsection (2) defined “the appropriate enforcement action” to mean such of the identified courses of action (improvement notice, etc) as were indicated in subsections (3) and (4); and subsections (3) and (4) required action to be taken - either the only course of action open to the authority (subsection (3)) or, if more than one course of action is open to them, the most appropriate one (subsection (4). The taking of no action was not a course that was open to the council, therefore. By quashing the improvement notice the RPT in effect directed the council to take no action in respect of the hazard. This it could not properly do. The second issue was whether the RPT was entitled in reaching its decision to take into account, as it had done, the three matters referred to in paragraph 6.2 of its decision - the absence of complaint by the tenants as to the adequacy of the heating system; the tribunal members’ personal perception at the time of their inspection as to whether the property appeared to be warm or adequately heated; and the tribunal members’ knowledge and inspection of other similar premises. Mr Virgo submitted that it was not lawful for the RPT to take these matters into account. The respondent’s case

[36]For the landlord Mr Piers Harrison in his initial submissions accepted that if there was a category 1 hazard at the premises the notice should not be quashed. In later submissions, however, he said that if there was a category 1 hazard but a hazard awareness notice was the most appropriate course of action, then it would be proper to quash the improvement notice. He contended nevertheless that the council had erred in its assessment in taking into account the cost of heating the flat and had failed to give sufficient weight to the improvements that had been carried out to the property, so that a conclusion as to whether there was a category 1 hazard could not be reached on the basis of that assessment, and there was insufficient evidence for the tribunal to re-score the property. The consequence was that the notice should be quashed.

[37]The cost of heating the flat was not a relevant consideration, Mr Harrison said, in the light of the matters affecting likelihood and harm outcome for excess cold listed on page 62 of the Operating Guidance. The one on which the council would have to rely was “(d) Type of heating provision - inappropriate or inefficient systems and appliances”. A heating system which was not as cost effective as, for instance, night storage heaters, would only be harmful if the occupier could not afford to run it in cold months. In order to consider whether there was a likelihood of harm on that basis it would be necessary to launch into a detailed inquiry of both the likely cost of the system and the affordability of such costs to the likely occupiers, but the council had only considered the first and not the second of these factors. In the absence of a consideration of the latter factor cost was not a relevant consideration. On the other hand the fact that the landlord had redeveloped the flat in accordance with building regulations was a material consideration, and the council’s assessment had ignored this. The Operating Guidelines gave a national average likelihood of harm for pre-1920 flats of 340, but that must be, Mr Harrison said, for a typical pre-1920 flat and not one, like the subject premises, which had recently been improved. Had the council taken this into account it would have realised that there was a strong argument that the correct national average likelihood to use was that for non-HMO flats post 1979, and that alone would endure that there was no category 1 hazard. Further submissions

[38]Following the hearing I invited submissions from counsel on a further matter. Under section 5(2) of the Act one of the courses of action open to an authority in relation to a category 1 hazard is: (c) serving a hazard awareness notice under section 28. Paragraph 5.39 of the Enforcement Guidance says that a hazard awareness notice is a possible response to a category 1 hazard where no management order is in place. It continues:

“There may be circumstances where works of improvement…are not…reasonable, in which case a hazard awareness notice might be appropriate.”

It appeared, therefore, that one of the courses of action open to the authority in the present case was to serve a hazard awareness notice. And it also appeared that a possible ground for an RPT (or the Upper Tribunal on appeal) to quash an improvement notice under paragraph 15(3) of Schedule 1 would be that a hazard awareness notice would have been the most appropriate of the courses of action available to the authority (see section 5(4)). I invited submissions on this and as to (a) whether I should determine whether the improvement notice should be quashed on this ground and (b) if so, what matters I should take into account for that purpose.

[39]Mr Virgo, in responding to my note, accepted that the range of options open to an authority dealing with a category 1 hazard included the service of a hazard awareness notice and that it would be open to an RPT or the Upper Tribunal on appeal to quash an improvement notice on the ground that an improvement notice was not the most appropriate course of action. He said, however, that there was no evidence as to the reasons for the council opting for an improvement notice rather than a hazard awareness notice. Mr Virgo said that the guidance in paragraph 5.39 of the Enforcement Guidance was potentially anomalous in that under section 28(6)(e) a hazard warning notice must include particulars of the remedial action considered practicable and appropriate; and if the relevant works were considered practicable and appropriate it was difficult to see why an improvement notice requiring them to be undertaken would be inappropriate.

[40]In any event, Mr Virgo said, there was no evidence as to the cost of compliance with the requirements in the improvement notice and nothing, therefore, to enable the reasonableness of the expenditure to be taken into account. Nor was there any evidence that installation of the heaters indicated as required by the notice was impracticable due to some feature of and peculiar to the subject property. It would be wrong in principle for the Upper Tribunal to quash the notice on the basis of an unexplored possibility that the wrong form of notice might have been served.

[41]Mr Harrison said that there was nothing to suggest that the RPT was aware that a possible course for it was to quash the improvement notice on the basis that the service of a hazard awareness notice would have been more appropriate. Had it been so aware, there was good reason for supposing that it would have adopted that course. There was no reason why the Upper Tribunal should not now adopt that course. In its appeal notice the landlord had raised the argument that any further upgrading of the property in the next 5-10 years would be inappropriate and uneconomical for the owners. Both Ms Williams’s witness statement and the statement of reasons attached to the improvement notice sought to explain why the service of an improvement notice was the appropriate course. There was evidence on the efficacy of the installed heaters and on the comparative costs. Although the council did not have the opportunity to make submissions on those matters in the RPT it now had that opportunity, so that any procedural unfairness was cured. Conclusions

[42]The RPT’s decision contained little in the way of reasoned explanation, and the three matters contained in paragraph 6.2 were, in my judgment, insufficient in the absence of further explanation to justify the quashing of the notice. The RPT had concluded that a category 1 hazard existed at the premises, and under section 5(1), therefore, the council were obliged to take appropriate enforcement action. Accordingly it was only open to the RPT to quash the notice if it was of the view that some enforcement action other than the service of the enforcement notice was appropriate. It did not, however, consider what other enforcement actions, if any, were open to the council. Mr Virgo contended that this alone was sufficient to require that the appeal against the RPT’s decision should be allowed. I do not accept this. There are two matters that need to be considered before it can be concluded that the decision to quash the notice was unlawful. The first is whether the RPT was correct in accepting that a category 1 hazard existed, and the second is whether the service of a hazard awareness notice would not have been the appropriate enforcement action for the council to have taken. I will consider each of these matters. Before doing so, however, I must deal with Mr Virgo’s submission that the RPT was in error in respect of each of the reasons that it gave in paragraph 6.2 for quashing the notice.

[43]As to the first reason - that the tenants themselves had no complaint about the heating and were happy to control it for the time and the hours that they wanted in each room - Mr Virgo said that this was irrelevant both to the question whether a category 1 hazard existed and to the proper determination of the issue “as to which of the menu of statutory options was the appropriate one to direct to be taken.” I do not accept this. While it is correct that the assessment to be made of the likelihood of harm must be made by reference to a hypothetical person of 65 or over, it does not seem to me that an RPT must leave out of account any views expressed by the persons who actually experience day in and day out the operation of the heating system. The fact that the occupiers were happy with the system would not on its own be sufficient reason to conclude that there was no category 1 hazard in respect of excess cold, but it is undoubtedly, in my view, part of the factual matrix to which the RPT could properly have regard. As for determining the appropriate course of action to take in respect of the hazard, the views of the occupiers are manifestly material, in my judgment. I refer to this point further below.

[44]Secondly, Mr Virgo said, the subjective view of the RPT members as to whether the property appeared to be warm or adequately heated at the time of the inspection was forensically irrelevant to the issues of whether a category 1 hazard existed and the proper determination of which of the course of action was the appropriate one. Again, I do not accept this. I have little doubt that an environmental health officer, inspecting premises for the purpose of investigating whether the hazard of excess cold existed, would take note of whether the premises were in fact cold, and it would undoubtedly, in my view, be a material matter for him to take into account. Likewise if the premises were not cold. Like the views of the occupiers this would be part of the relevant matrix of facts. There was no error on the RPT’s part, in my judgment, in taking this factor into consideration in reaching their decision.

[45]Mr Virgo said, thirdly, that it was forensically improper for the tribunal to take into account their “own knowledge and inspection of many similar premises.” In particular neither party had had any opportunity to interrogate the RPT members as to the extent of their knowledge and as to the identity and details of the “many similar premises”, nor had either party had the opportunity to adduce further evidence to address or contradict the asserted knowledge” of the tribunal members. In contending that the failure to accord these opportunities vitiated the RPT’s decision Mr Virgo relied in particular on a passage in the judgment of the Employment Appeal Tribunal (chairman Phillips J) in Dugdale v Kraft Foods Ltd

[1976] 1 WLR 1288

at 1294H- 1295B:

“The members of industrial tribunals are appointed because of their special knowledge and experience, and we have no doubt that they are entitled to draw upon itin playing their part in assisting the tribunal as a whole to reach a decision. The main use which they will make of this knowledge and experience is for the purpose of explaining and understanding the evidence which they hear. Certainly, they are entitled to use their knowledge and experience to fill gaps in the evidence about matters which will be obvious to them but which might be obscure to a layman. More difficult is the case where evidence is given which is contrary to their knowledge and experience. If such an occasion arises, we think that they ought to draw to the attention of the witnesses the experience which seems to them to suggest that the evidence given is wrong, and ought not to prefer their own knowledge and experience without giving the witnesses an opportunity to deal with it. Provided that this opportunity is given there seems to us to be no reason why they should not draw on their own knowledge and experience in this way also. But it is highly desirable that in any case where particular use is made by an industrial tribunal of the knowledge and experience of one or more of their members in reaching their decision this fact should be stated, and that particulars of the matter taken into account should e fully disclosed.” 46. The Lands Tribunal in Arrowdell Ltd v Coniston Court (North) Hove Ltd [2007] RVR 39 at paragraph 23 said this about the use by members of their knowledge and experience: “It is entirely appropriate that, as an expert tribunal, an LVT should use its knowledge and experience to test, and if necessary to reject, evidence that is before it. But there are three inescapable requirements. Firstly, as a tribunal deciding issues between the parties, it must reach its decision on the basis of evidence that is before it. Secondly, it must not reach a conclusion on the basis of evidence that has not been exposed to the parties for comment. Thirdly, it must give reasons for its decision.”

[47]The way in which the RPT relied on its knowledge and experience in the present case does not in my judgment amount to a procedural error that substantially prejudiced the council. Whether there is a procedural error in relation to the use by a tribunal of its knowledge and experience, and whether substantial prejudice has been suffered as a result, will necessarily depend on the matter under consideration and the nature of the tribunal’s reliance on its knowledge and experience. Here the case for the council was that the type of heating provision was “seriously defective” and that, scored as it was, the house had a worse than average rating in relation to the hazard of excess cold. The landlord said that the system was ideal for the tenants’ requirements, and that it had let two maisonettes in the area to tenants on the council’s housing list, both of which of these had identical heating arrangements to those in the subject premises, and there had been no adverse comment from the council or the tenants. The RPT said that, based on its members’ knowledge and experience of many similar premises, the heating system provided ought to be perfectly adequate and was not abnormal for such types of premises. In so concluding what the tribunal was doing, in my view, was to reach a conclusion on a matter that had been the subject of conflicting evidence by bringing to bear its own general knowledge and experience. It was fully entitled to do this. There was no particular evidence that it needed, for reasons of fairness, to disclose to the parties. To have provided a full list of the many similar premises and their heating systems, even if this had been possible, would have been inappropriate, since an examination of the facts relating to them would have been disproportionate and the results inconclusive.

[48]None of the criticisms directed at the RPT’s three reasons are made out, in my view. I turn, therefore, to the first of the two matters referred to above, whether the RPT was correct in accepting that a category 1 hazard existed at the premises. The basis for Ms Williams’s hazard rating score of 1819 was her opinion, entered on the assessment form in May 2009, that the type of heating was “seriously defective” and the size of the heating system was “defective”. After that assessment had been made additional heating was provided, and Ms Williams accepted that this made the size of the heating system satisfactory. She did not, however, revise her assessment. As far as the type of heating is concerned, the RPT for its part, so far from accepting Ms Williams’s characterisation of it as seriously defective, considered it to be perfectly adequate and not abnormal for the type of premises. In these circumstances the RPT was in my judgment clearly in error in not considering a downwards revision of the assessment, and there is a strong possibility that, had it done so, it would have concluded that there was no category 1 hazard. To put it no higher, it might well have concluded that the risk that in the next 12 months a person aged 65 or more living in this flat would either die or suffer extreme harm because of cold conditions there was substantially less than 1 in 570 (see paragraph 28 above). 49. The second matter to be considered is whether a hazard awareness notice would not have been the appropriate action for the council to have taken. Mr Virgo, in responding to my note, said that there was no evidence as to the reasons for the council opting for an improvement notice rather than a hazard awareness notice. That is not the case. In its “Statement of reasons for decision to take enforcement action” dated 8 September 2009 the council set out its reasons for serving an improvement notice rather than taking another kind of enforcement action. Having said that an improvement notice was practical and proportionate and that the required works would reduce the risks to the occupants to an acceptable level, it went on:

“The significant nature of the hazard and the risk posed to the occupants would not warrant service of a Hazard Awareness Notice as this only raises awareness of the hazard but does not require any action to be taken. This could lead to the occupiers continuing to be exposed to the identified hazard.”

The statement went on to say why neither a prohibition order nor emergency remedial action nor an emergency prohibition order nor demolition nor clearance would be appropriate.

[50]The case for a hazard awareness notice rather than an improvement notice, when related to the advice in the Enforcement Guidance, is, in my judgment, unquestionably strong. The question is whether it is reasonable in the circumstances to require in these premises the replacement of the recently installed convector heaters with night storage heaters. The justification given by the council for serving an improvement notice rather than a hazard awareness notice was the “significant nature of the hazard and the risk posed to the occupants”. The evidence was that the maisonette was by its nature likely to be occupied by a working couple and that a system of convector heaters, so far from creating a hazard for them, was effective and convenient. The needs and preferences of the actual occupiers, as well as those of the vulnerable group considered for the purpose of the assessment, are in my judgment material to the choice of the enforcement action to be taken. Moreover even on the council’s assessment the hazard is a band C hazard, the bottom band in category 1, and that assessment, as I have said, is likely to be too high. So far from being reasonable in these circumstances to require a new heating system to be installed it would in my judgment be palpably unreasonable to require this.

[51]The next question is whether, having reached this conclusion, I should dismiss the appeal (leaving the improvement notice quashed as the RPT decided) or remit the matter to the RPT for them to reach a fresh decision. Mr Virgo urged that it would be unfair to the council to determine the appeal in this way without giving them the opportunity to address the choice of enforcement action. The answer to this is that, contrary to Mr Virgo’s suggestion, the council have stated their position on the choice between an improvement notice and a hazard awareness notice, and they have, in the light of my note, had the opportunity to address this further but have not done so. Mr Harrison submitted that it would be disproportionate to remit the matter to the RPT for further hearing, and I agree. The conclusion that I have reached is one that is open to me on the material before me, and it is unnecessary to remit the case.

[52]I would add this. The appeal in this case has arisen because the RPT failed to give any proper consideration to the assessment of the hazard on which the council’s case depended and failed to give adequate reasons for its decision to quash the improvement notice. The 2004 Act, the Regulations and the statutory guidance have created a system of assessment that is complex and which may seem forbidding to RPTs. By reducing to numerical terms essentially subjective judgements of risk the system may give a misleading impression of scientific precision to the assessment results. The objective standards provided to guide the subjective judgements- national averages of the incidence of harm and of distribution between the four classes - have a statistical basis that is self-evidently fragile. What has been done is to produce a national average probability of the incidence of each of the 27 different categories of harm for dwellings of 8 different categories and national average distributions of the probabilities between the four classes of seriousness of harm. Such average values are only as dependable as the statistics that underlie them, and it is evident that they have been derived by routes that, in the absence of direct statistical evidence, are inevitably indirect. The Operating Guidance itself makes this clear. 53. In the case of the hazard of excess cold the Operating Guidance in Annex D paragraph 2.03 states that the statistics for Class I (death etc) were derived from data from cold/winter related mortality (apparently, therefore, from the statistics of excess winter deaths in the over-65 population), Classes II and II from Hospital Episode Statistics and Class IV from statistics of new GP consultations. The Guidance goes on to say:

“2.09 The main causal factor for excess winter deaths appears to be changes in ambient (outdoor) temperature, but seasonal infections, and changes in behavioural patterns, air pollution levels and micronutrient intake may also account for some of the seasonal pattern. 2.10 The extent to which housing contributes is not clearly known, but the indication is that people living in dwellings that are poorly heated are at significantly greater risk. There is less evidence on the relationship between housing characteristics and health other than mortality. However, it is very probable that the findings in relation to cold-related mortality can be extended in broad terms to cardio-respiratory morbidity and health related quality of life.”

[54]It is against this background that the national average actual case likelihood of 1 in 340 and the national average distribution of that likelihood between the four classes of harm must be viewed. The distribution is expressed with what appears to be great accuracy, down to one decimal percentage point. For Class I it is given as 31.6%. Because of the weighting given to Class I harm (10 times that for Class II and 1000 times for Class IV) the percentage figure adopted is clearly of great significance to the result of the assessment. But the basis for it, as for the actual case likelihood, has a fragility that the Guidance itself makes clear.

[55]The conclusion to be drawn from this, in my view, is that RPTs, when confronted by cases in which enforcement action by councils is in issue, should not shy away from making their own assessment of the hazard and should not treat the figures given for national averages as compelling. Any such assessment must take account of those figures, but it must be reached in the light of the evidence given in relation to the facts of the particular case. Reasons must of course be given for it. The tribunal will bring its knowledge and experience to bear in evaluating the evidence and reaching its conclusion, and it will, importantly, bring common sense to bear in the judgement that it makes.

[56]In the present case the RPT leapt to a common sense judgement that the improvement notice should be quashed. That conclusion was right, in my view, for the reasons that I have given. But what it ought to have done was to determine whether or not the evidence showed that there was a category 1 hazard, examining the council’s assessment and the reasons for it and reaching a conclusion in the light of this and all other relevant material and giving reasons for its conclusion. If it concluded that there was indeed a category 1 hazard, but its experience and common sense suggested that to require a new heating system to be installed was inappropriate, then it should have gone on to consider the alternatives. Had it done this, it would, almost inevitably in my view, have concluded that a hazard awareness notice was appropriate and the improvement notice should be quashed.

[57]The appeal is dismissed. Dated 30 March 2011 George Bartlett QC, President

Bristol City Council v Aldford Two LLP [2011] UKUT 130 (LC) (30 March 2011)</title> [2011] UKUT 130 (LC)

Cited in 8 later judgments