Upper Tribunal hands down ruling on issuing landlords with improvement notices amid uncertainty over hazards

The Upper Tribunal (Lands Chamber) has been asked to decide whether a local authority should serve an improvement notice on the owner of a house in multiple occupation if there is doubt about whether a hazard exists.

Martin Rodger KC, Deputy Chamber President, heard the case in an appeal by chartered surveyor Bryan Curd against a decision of the First-Tier Tribunal (Property Chamber) over the notice issued by Liverpool City Council.

Mr Rodger said the case concerned an improvement notice issued under section 12, Housing Act 2004, which “raises the issue of how a decision maker (an authority or a tribunal exercising the same powers on an appeal) should proceed where because of uncertainty about the quality or specification of a building component, or for other reasons, there is doubt about whether a hazard exists. 

“Is the decision maker entitled to require the replacement of the component with an alternative of a known specification, thereby removing any risk?  Alternatively, is the decision maker entitled to require the owner of the property to commission tests to establish whether a hazard exists and to carry out any remedial work necessary to bring the building up to standard?”

Mr Curd had challenged an improvement notice that required works on a house he owns, including the replacement of hinges and other door furniture where these did not carry a CE mark for fire safety.

He appealed and the FTT was not satisfied what work, if any, was required to remedy any hazard which might exist. 

It varied the improvement notice by substituting a requirement that Mr Curd obtain a report from an independent fire risk assessor and follow any recommendations.   

Before granting a licence for the house in 2021, council officers inspected it and decided Category 2 hazards existed and sent Mr Curd a list of matters to attend to.

They identified that four of the fire doors did not snap shut and that in six examples the gaps between the floor or door frame and the door exceeded the required width.

Liverpool later sent a fire safety inspector who said the doors were all FD30 doors but described them as ‘nominal' rather than ‘certificated’, the difference being that documentary evidence would exist for the latter.

The inspector recorded 76 issues affecting the seven doors and the tribunal heard some were repeated, or involved small adjustments or “quite modest works”.

Liverpool again issued an improvement notice, which said all of the recommended work fire safety work identified in the inspector’s report should be completed. 

After Mr Curd appealed to the Upper Tribunal, Liverpool did not seek to uphold the reasoning of the FTT and conceded that its approach had been wrong in law as the FTT had not been entitled to vary the improvement notice to require Mr Curd to obtain a report from a third-party assessor to determine whether a hazard existed and then to act on the assessor's findings.

Mr Rodger said that Mr Curd’s counsel had “reasoned, correctly in my view, that a local housing authority's discretion to serve an improvement notice under section 12, 2004 Act arises only if they are ‘satisfied that a category 2 hazard exists’ (section 12(1)(a)). 

“If an authority was not satisfied that a hazard existed it could not serve a notice.”

Even if it could have served such a notice, Mr Rodger pointed out that section 13(2) of the same Act requires an improvement notice to specify the nature of the hazard and the remedial action required, neither of which could be done if the authority had not first satisfied itself that a hazard existed. 

“It was clear, therefore, that the city council could not have served an improvement notice which required Mr Curd to take steps to ascertain whether a hazard existed on the premises,” Mr Rodger said.

“On an appeal, the FTT has no greater or different powers from those of the local authority and it may only vary an improvement notice if it is satisfied that a hazard exists.”   

Mr Rodger refused to reinstate the improvement notice in its original form. 

He said: “The position that has been reached is therefore that I am prepared to set aside the FTT's decision, but I am not in a position to make a decision of my own on Mr Curd's original appeal against either the principle or the detail of the improvement notice.“

Although the most obvious course would be to remit the matter to the FTT for reconsideration, Mr Curd argued successfully against this because the notice is now more than three years old and the HMO has been in continuous occupation since the 2021 inspection. The fire doors require periodic maintenance and one has been replaced as part of a more recent programme of works to extend the kitchen. 

“The question whether the works in [the inspector’s] schedule were required to remedy a hazard which existed at that time is now almost entirely academic and the expenditure of further time and money in investigating it would be disproportionate,” Mr Rodger said.

He allowed Mr Curd’s appeal, set aside the decision of the FTT and said the improvement notice remained unconfirmed and therefore inoperative.

Mark Smulian