Simon Fletcher & Anor v Portsmouth City Council [2025] UKUT 172 (LC)

[2025] UKUT 172 (LC)Case No LC-2024-764
IN THE UPPER TRIBUNAL (LANDS CHAMBER)
AN APPEAL AGAINST A DECISION OF THE FIRST-TIER TRIBUNAL (PROPERTY CHAMBER)
Ref: CHI/00MR/HIN/2023/0042
Venue Royal Courts of Justice, Strand,
Between
MR SIMON FLETCHERAppellantMRS IVA FLETCHERAppellantPORTSMOUTH CITY COUNCILRespondent
5 June 2025
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
HOUSING – IMPROVEMENT NOTICE – whether the FTT erred in varying, rather than quashing, an improvement notice having found that the local housing authority had seriously over-estimated the seriousness of the hazard.
38 Hudson Road,Southsea,PO5 1HDUpper Tribunal Judge Elizabeth CookeDetermination by written representationsMs Elizabeth Bowden for respondent© CROWN COPYRIGHT 2025The following cases were referred to in this decision:Curd v Liverpool City Council[2024] UKUT 218 (LC),Date 2025-06-05

Introduction

[1]This is an appeal from the decision of the First-tier Tribunal to vary an improvement notice served upon the appellant by the respondent local housing authority; the appellant says that in light of the FTT’s finding that the hazard at the property was considerably less serious than the respondent thought it was, and of the fact that the respondent could have served a hazard awareness notice instead, the FTT should have found that the respondent had been wrong to serve the improvement notice and the FTT should have quashed it.[2]The appeal has been decided under the Tribunal’s written representations procedure. The appellant has not been legally represented; the respondent has been represented by Ms Elizabeth Bowden of counsel.

The legal background: improvement notices and appeals

[3]Part 1 of the Housing Act 2004 is about housing conditions; Chapter 1 makes provision for the enforcement of housing standards and introduced a system for assessing housing conditions by reference to the existence of category 1 and category 2 hazards.[4]A "hazard" is defined in section 2(1), 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 … (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise)".[5]The Housing Health and Safety Rating System (England) Regulations 2005 sets out a system for the assessment of the seriousness of hazards, known as an HHSRS assessment, whereby hazards are given a numerical score or rating calculated by reference to the level of harm they could cause and the likelihood of it occurring. Regulation 7 then sets out the “prescribed bands” used to give an overall score to a hazard: for example, band A is a hazard that scores 5,000 or more, band D scores 500 to 999, band H scores 20 to 49, I scores 10 to 19, J scores 1 to 18. Hazards within bands A to C are category 1 hazards, bands D and below are category 2 hazards.[6]Section 5 of the 2004 Act gives local housing authorities a duty to take enforcement action when they are aware of category 1 hazards; section 7 gives them a discretion to do so in respect of category 2 hazards. The types of enforcement action referred to include improvement notices, prohibition orders and hazard awareness orders. Their titles are self-explanatory; an improvement notice requires the recipient to take remedial action in respect of the hazard concerned, while a prohibition order prevents the use of the building or part of it. Failure to comply with either is a criminal offence, and the authority’s decision to serve the notice or order can be appealed to the FTT. By contrast, a hazard awareness notice brings a hazard to the attention of the recipient; failure to take action is not an offence and there is no provision for an appeal.[7]Section 8 of the 2004 Act requires a local housing authority that decides to take enforcement action to provide a statement of reasons for the decision to do so, explaining why that particular form of enforcement was chosen. Section 9 requires local housing authorities to have regard to national guidance, and such guidance has been published by the government in relation to both the operation of the rating system and to the enforcement of housing standard (and can easily be found online).[8]Section 13(2) of the 2004 Act provides for the contents of an improvement notice: it must specify the nature of the hazard and the residential premises on which it exists, the deficiency giving rise to the hazard, the premises in relation to which remedial action is to be taken and the nature of that remedial action.[9]Paragraph 10(1) of Schedule 1 to the 2004 Act provides for appeals against improvement notices to the FTT. Paragraph 15(2) and (3) sets out the powers of the FTT on an appeal:
“(2) The appeal– (a) is to be by way of a re-hearing, … (3) The tribunal may by order confirm, quash or vary the improvement notice.”
[10]On an appeal the FTT must decide whether the local housing authority was wrong to serve the notice. 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 (Curd v Liverpool City Council [2024] UKUT 218 (LC), the Deputy President Mr Martin Rodger KC at paragraph 13).

The factual background and the FTT’s decision

[11]The appellants are the joint freehold owners of 38 Hudson Road, Southsea. It is a terraced house with five bedrooms, let to five students who share a living room and kitchen. It is a house in multiple occupation, or HMO, as defined in the Housing Act 2004, it is required to be licensed under the 2004 Act, and the appellants hold an HMO licence. No complaint has been made about the condition of the property by the tenants.[12]In November 2023, following a routine inspection and some correspondence with the appellants, the respondent served an improvement notice on the appellants. The notice specified that there was a category 2 fire hazard at the property. The respondent took the view that the open-plan nature of the living room and stairs increased the risk of a fire spreading from the living room; it calculated a score of 770 which put the hazard into band D (see paragraph 5 above). The notice required that the stairs be enclosed from floor to ceiling and that a new wall should be installed to separate the lounge from the stairs and form a corridor from the lounge to the front door.[13]At the same time the local housing authority served a hazard awareness notice on the appellants in relation to the risk of “falling between levels”, because the first floor windows lacked window restricters. This was again assessed as a category 2 hazard with a score of 28. The section 8 statement of reasons explained that this was regarded as the appropriate form of enforcement in view of the fact that it was most unlikely that children would be present on the premises.[14]The appellants took the view that the layout of the house was not a fire hazard and that the work required would be unnecessary and would have negative consequences for the occupiers. They obtained their own risk assessment from a Ms Alice Ibbotson which concluded:
“The design of this property provides a good standard of life safety in case of fire with early warning throughout the escape route and extended into all risk rooms. Well fitted fire doors to all bedrooms and a full fire door to the kitchen and the ground floor rear bedroom. Although the layout is not ideal in that the living room is open to the escape route there are alternative means of escape via bedroom windows, compensatory detection throughout and fire doors throughout. Although a basic fire blanket and fire extinguisher has been provided in the main kitchen other portable firefighting equipment has not been provided as the use of such equipment in a fire situation cannot be controlled and may encourage residents without suitable knowledge, training or experience to return to a fire scene that they cannot safely control. The fire safety policy for the property is simultaneous immediate evacuation and is not supported by the provision of portable firefighting equipment. This is clearly communicated to the occupants. A system of record keeping for all inspections must be established and records of inspections and resulting actions maintained for future reference and review”
[15]Ms Ibbotson also recommended the addition of smoke seals and self-closing devices to some of the doors. Accordingly the appellants took the view that the much larger-scale work required by the respondent was unnecessary; and for various reasons they thought it was unfeasible). They appealed the improvement notice to the FTT.[16]The FTT conducted a site visit and a hearing, and heard evidence from both parties. I do not need to go into the evidence or the details of each party’s position because there is no appeal from the FTT’s finding that the respondent’s assessment of the nature of the hazard was wrong and that the correct score would be 39 – still a category 2 hazard, but in band H, not D. Whilst the FTT agreed that the open plan design of the living room could amount to a fire risk it disagreed fundamentally with the respondent’s officer’s assessment of the severity of that risk, stating that her calculations were either unexplained or inconsistent with the HHSRS Operational Guidance and with the worked examples provided by the parties (sourced, if I have understood correctly, from the Chartered Institute of Environmental Health). The FTT then said this:
“48. The Tribunal considered whether in the light of that revised assessment it was reasonable for an improvement notice to have been served at all. It concluded in the light of the evidence that it was reasonable for the Respondent to have done so. This is because it is clear that the Applicants did not respond to the Council’s concerns in a reasonable manner, their correspondence did not indicate a willingness to engage in an informal process or follow advice with a view to improving the safety for the occupiers of 38 Hudson Road. The Tribunal found Mr Fletcher in his letter of 15/08/2023 clearly told the local authority that he did not expect them to respond to his representations criticising the assessment and proposed works. The Tribunal also found that he had failed to implement all the recommended works given by [his own witness] in the action plan attached to her Fire Risk Assessment that he had obtained in July 2023. By the time of our inspection on the date of the hearing, he had still not done so. 45. As to the works proposed in the improvement notice. The Tribunal agreed with Mr Fletcher that the works proposed were excessive.”
[17]The FTT therefore varied the improvement notice: the work required to be done was stated to be:
“(i) the doors to each of the bedrooms should be fitted with smoke seals, intumescent strips and self-closing devices. (ii) the locks to the bedroom doors of the first-floor bedrooms and the fifth bedroom should be removed.”
[18]The appellants were also ordered to pay the respondent’s administration costs of £653.[19]The appellants appeal, with permission from the FTT, which said in granting permission:
“It is arguable that the Tribunal may have erred in reaching the conclusion that it was reasonable for an improvement notice to be served on the Applicants in the light of its findings that the Respondent’s HHSRS assessment was flawed and that the HHSRS Category 2 hazard score was H rather than D (as scored by the Respondent). This is also a matter of wider public importance and guidance from the Upper Tribunal would assist future Tribunals. Permission to appeal is granted on this ground.”

The appeal

[20]The appellants’ grounds of appeal are lengthy, and I hope they will forgive me if I summarise. Essentially their argument is that once the the FTT had found that the respondent had dramatically over-estimated the level of fire hazard posed by the property, it should have appreciated that the correct score of 39 was too low to justify varying rather than quashing the improvement notice. They point to one of the worked examples that was before the FTT where a post-improvement score of 34 was regarded as acceptable. They point out that the respondent’s statement of reasons, required by section 8 of the 204Act to explain why a particular type of enforcement action was chosen, no longer explains the service of the notice, because the reasons given have been found to be wrong. They point out that a score of 23 is an average level for a pre-1920 house (according to the government’s HHSRS Operating Guidance, paragraph 24.03). A score of up to 999 does not require enforcement action at all (because only in the case of category 1 hazards is there a duty to take enforcement action under section 5 of the 2004 Act). The appellants acknowledge that the points made by the FTT in paragraph 44 might explain why formal action was appropriate, but they do not explain why an improvement notice was appropriate when the local housing authority could have served a hazard awareness notice instead. Such a notice – which can be used, according to the HHSRS Enforcement Guidance at paragraph 5.38, in the case of a less serious hazard (such as this one) – is far less intrusive, and would leave them to determine the timing of the work.[21]In response, the respondent points out that the FTT has no power to serve a hazard awareness notice, but that is not the point; the FTT’s reasoning had to explain why the local housing authority’s decision to serve an improvement notice was not wrong despite the fact that it had gone so far wrong in assessing the hazard, especially when the obvious lesser form of enforcement action was open to it.[22]The respondent argues that a hazard awareness notice would have been inappropriate because the HHSRS Enforcement Guidance at paragraph 5.43 states “Authorities may wish to use the hazard awareness notice procedure without issuing an improvement notice where an owner or landlord has agreed to take remedial action and the authority is confident the work will be done in reasonable time.” The respondent points out that the appellants had not agreed to take remedial action. That is not to the point, first because paragraph 5.43 does not purport to set out the only circumstances in which a hazard awareness notice is appropriate, and second because the appellants had been asked by the respondent to carry out a drastic internal re-arrangement of their hose and their unwillingness to comply was understandable; what would have been their reaction if the respondent had proposed only the modest steps required by the FTT is not known. In any event, lack of agreement did not prevent the respondent from serving such a notice in relation to the windows.[23]The respondent rightly points out that the fact that the hazard score was wrong does not necessarily mean that the decision to serve an improvement notice was wrong. I agree, but equally in those circumstances the conclusion that the service of an improvement notice was not wrong calls for careful explanation. In my judgment the FTT failed to explain why the respondent having gone so very far wrong in giving the fire hazard a score of 770 was not wrong to serve an improvement notice. It is difficult to elaborate on that without repetition; the numbers speak for themselves, as does the nature of the work the FTT thought needed doing. The appellants’ resistance to the notice that was served, with its incorrect banding of the hazard and its specification of unnecessary work, goes nowhere near to explaining why an improvement notice was appropriate. The FTT’s decision was insufficiently explained and is set aside.[24]Indeed, the decision could not have been properly explained; I substitute the Tribunal’s decision that the respondent was wrong to serve an improvement notice. The level of the hazard was so low that service of an improvement notice would have been unusual and – in view of the potential criminal consequences – disproportionate. The improvement notice is quashed, and the order that the appellants pay costs of £653 is set aside.[25]It remains the case that some work is needed to provide door-seals and remove locks. The appellants have provided some information about progress in doing that work (to which I have not had regard in making the Tribunal’s decision because it post-dates the time at which the improvement notice was served). The respondent will want to be satisfied that the doors are in a safe condition and will no doubt take proportionate action if there are any outstanding concerns.[26]This is a simple case of a decision that was not properly explained by the FTT; had it set out to explain why the respondent had not been wrong to serve an improvement notice rather than a hazard awareness notice it would not have been able to do so in the circumstances. No new issue of principle is involved and no further guidance is necessary. Upper Tribunal Judge Elizabeth Cooke 5 June 2025 Right of appeal Any party has a right of appeal to the Court of Appeal on any point of law arising from this decision. The right of appeal may be exercised only with permission. An application for permission to appeal to the Court of Appeal must be sent or delivered to the Tribunal so that it is received within 1 month after the date on which this decision is sent to the parties (unless an application for costs is made within 14 days of the decision being sent to the parties, in which case an application for permission to appeal must be made within 1 month of the date on which the Tribunal’s decision on costs is sent to the parties). An application for permission to appeal must identify the decision of the Tribunal to which it relates, identify the alleged error or errors of law in the decision, and state the result the party making the application is seeking. If the Tribunal refuses permission to appeal a further application may then be made to the Court of Appeal for permission.

Cited in 1 later judgment