Upper Tribunal calls for fresh hearing after setting aside ruling on prohibition orders issued by district council

Judge Elizabeth Cooke and tribunal member Mark Higgin said they could not substitute their own judgment and sent the matter back to a different FTT panel.

Property firm Investview had bought a building in Whyteleafe, which it converted to 15 small flats with view to accommodating homeless people sent by the London Borough of Croydon.

Tandridge inspected the property and its officer issued the prohibition orders.

Hazards found were all described as Category 2 including ‘crowding and space’,  ‘position and operability of amenities’ and ‘flames and hot surfaces’.

The orders required the premises should not be used for human habitation and specified remedial actions.

Investview disputed these concerns and the methods used by the council officer to assess harms and said the FTT was wrong to accept Tandridge’s calculation of the seriousness of the hazards.

It also appealed on the basis that the building is not an HMO for space standards purposes.

The tribunal said Investview’s appeal could not succeed alone on disputes as to which standards were relevant but then turned to the officer’s calculations of potential harms.

By far the largest component of the ultimate score of 863 “was the supposed likelihood of Class I harm, which was heavily weighted”, the tribunal said.

The crucial judgments were about the likelihood of harms and their spread and the officer took these as being the same as the national average.

But it said neither judgment was explained by her, “and it was clear from her evidence in cross-examination that her assessment of the spread of harm was taken from the guidance rather than being something she had thought about.

“Professional judgment is of course acquired and honed by experience; it is not a gut feeling. A judgment is a rational outcome from the consideration of the material on which the expert, experienced professional is able to draw, and he or she must be able to explain that consideration and show why it led to a particular conclusion.”

The tribunal said the officer’s inability to justify some of her figures meant these appeared to be based on “instinct, at best, rather than a judgment.

"She could not point to any experience that led her to conclude that her assessment was appropriate. As to her judgment about the spread of harm, she did not appear to have thought through practical implications of her calculation, which implies that – albeit in a very small number of cases – the lack of space in each unit was life-threatening.”

The tribunal said it failed to see how the FTT could have relied on the officer’s calculations and that it did not explain its rejection of contrary evidence from Investview’s expert witness.

It concluded: “The FTT's acceptance of [the officer’s] calculation appears to be irrational, as well as unexplained; its rejection of [Investview’s expert]evidence that there was no crowding and space hazard is unexplained.

“Those were serious errors and the FTT's decision to uphold the prohibition orders has to be set aside.”

Mark Smulian