By D
27/10/2010

Two More Housing Act 2004 Appeals Reach the Lands Tribunal

Relatively few appeals to the RPT reach the Lands Tribunal. However decisions in two have recently been published on their website.

Hanley v Tameside Metropolitan Borough Council is an appeal against the service of a Prohibition Order. These Orders are made under the HHSRS, in Part 1 of the Housing Act 2004, and prohibit the use of a property, or part of it, by all persons or a specified group as a result of serious hazards assessed under the Act.
In March 2009 such an order was made by T against H as a result of water ingress in a house he was letting to 4 people. The making of the Order was appealed to the RPT which denied the appeal but allowed a further appeal to the Lands Tribunal on the basis that there was an arguable point of law in respect of the relationship between the HHSRS and the Building Regulations.
H had asserted that the hazards which T had identified and served the Order in relation to could no be hazards as they complied with the Building Regulations or could easily be made to comply. The RPT took the view that the Building Regulations and the HHSRS would necessarily give rise to inconsistency and conflict but where that occurred the HHSRS would take primacy. Building Regulations were secondary legislation while the HHSRS was primary legislation. It also held that where a hazard was identified the fact that Building Regulations had been complied with was irrelevant. It was these two issues which H sought to appeal to the Lands Tribunal.
The Lands Tribunal did not agree that the Building Regulations would necessarily lead to conflict with the HHSRS, particularly if the purpose of both was taken into account. Happily this conclusion had not been followed up by the RPT so it was not of substantial relevance. The LT did not accept the assertion by the RPT that the HHSRS should take precedence as it was primary legislation, particularly as the mechanism of the HHSRS is set out in secondary legislation itself.
More importantly the LT did not agree with the bald assertion that compliance with the Building Regulations was immaterial where a hazard had been identified. Such a position was unsustainable in the face of statements in the HHSRS Operating Guidance. In this point the RPT had fallen into error.
However, they had not used this erroneous reasoning in relation to all the hazards named on the Prohibition Order and the LT concluded that the RPT had considered the Prohibition Order justified on the basis of hazards which had not suffered from errors in relation to assessment of the Building Regulations.
Therefore, while the LT concluded that the RPT had made an error of law in discounting the importance of the Building Regulations it was not prepared to set aside its decision and the Prohibition Order was confirmed.

In Bolton Metropolitan Borough Council v Patel the RPT considered Emergency Remedial Action under the Housing Act 2004. This is also a remedy under the HHSRS where serious hazards are identified which pose an imminent risk of serious harm to an occupant.
B identified found category 1 hazards within a rented property owned by P which all related to a failure of the boiler and consequential lack of heating and hot water and also to exposed electrical wiring. B elected to take emergency remedial action. P appealed this decision to the RPT.
The RPT concluded that B had been wrong to carry out emergency remedial action in relation to the boiler but accepted that it had been correct to do so in relation to the exposed wires. It varied the order to reflect this. B sought permission to appeal on the basis that the RPT had wrongly interpreted or wrongly applied the relevant law and this was granted by the RPT.
The LT started by making an important point about the HHSRS assessment method as a whole. The HHSRS produces a numerical score for each hazard based on a series of calculations relating to likelihoods of an accident occurring and the probable level of injury as a result of such an accident. While these initial figures are based on statistics it is unclear how these have been derived and they are commonly amended by EHOs to reflect local conditions, as they are supposed to be. This amendment process means, as the LT pointed out, that the ultimate score produced is largely based on a series of decisions made by the EHO on the scene. Therefore, while the score might create an “impression of methodological accuracy … the truth may be that it is the product of no more than a series of value judgements based on little understood statistics of questionable validity.”
The EHO in this case had made a substantial alteration from the standard statistics for excess cold which consider excess deaths among the 65+ age group on the basis of the actual occupiers of the house. This was inappropriate as the consideration is meant to be given on the basis of a notional occupier (who in relation to excess cold is the 65+ age group) not on the basis of the actual occupiers of the property. In doing this the officer had concluded that there was a 1 in 31.6 chance of an excess cold incident in the next 12 months that would result in death. This was a “surprising conclusion”. The RPT had taken issue with this assessment as did the LT.
However, this was not the substance of the appeal as the RPT had still concluded that excess cold was a substantial hazard in the property (albeit not quite as life threatening as the EHO had asserted). The challenge was over whether the RPT had properly concluded that there was not a ‘serious risk’ of ‘imminent harm’ as required by the Act. The RPT had concluded that the harm was not imminent within the 5 days that B had advanced to them as an upcoming period of cold weather but B asserted before the LT that this was incorrect and the RPT should have considered imminent to be a period of up to 28 days which would have been when the next possible course of action that could be taken by B would have become possible, being an improvement notice.
The LT did not accept this. An improvement notice does not actually come into effect after 28 days as there is a period after that during which it can be appealed. Further, the Act was never drafted in such a way as to link emergency remedial action with improvement notices. The LT did not conclude however that there could never be a link between a decision to carry out Emergency Remedial Action and the 28 day period required to make an improvement notice. The appeal was therefore dismissed.
Due to the LT’s refusal to make a final pronouncement on any link between emergency action and improvement notices this decision is one which turns on its facts. However, the statements about statistics and the use of them by EHOs, while obiter, are very interesting. There have been a number of cases before the RPT where EHOs have made highly questionable judgements in relation to likelihoods of incident and levels of harm. It seems that the LT is also concerned by this and has given a clear warning which EHOs should take on board.

D is a solicitor specialising in landlord and tenant matters with a London firm.

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