Bristol City Council v Aldfrod Two LLP [2011] UKUT 130 (LC)

The Upper Tribunal (Lands Chamber) has recently ruled on the proper use of improvement notices under the HHSRS. When I say recent I should actually say a little while ago. You can blame the recent spate of good weather and a short spell of leave for the slightly reduced speed of posting on this.

Anyway, dragging my gaze back from sunny blue skies to the hard grey world of statistics, the situation concerns the use and scoring of the excess cold hazard. In this case Bristol CC had inspected a property which was heated entirely by convector heaters. Most EHOs have a strong dislike of these heating systems and a powerful preference for gas central heating which they see as more energy efficient, environmentally friendly, effective and controllable. There is good cause for this belief in many cases but it is not a universal truth.

Here the EHO considered that the convector heating was wholly inadequate for the task and revised the likelihood of an incident under the excess cold profile upwards from the national average of 1 in 340 to 1 in 180. This generated a score in excess of 3000. She then issued an improvement notice based on the high score thus obtained requiring the fitting of a gas central heating system or electric night storage heating. After, the fitting of loft insulation there was a reinspection at which the score was lowered to 1819. Both scores disclosed category 1 hazards requiring the Council to take action.

The landlord, the interestingly-named Aldford Two LLP, appealed to the RPT. The RPT inspected the property and heard evidence from both sides. It made an order that the scoring should stand but that the Council should not enforce the improvement notice issued. The Council appealed on the basis that the RPT could not require it not to act where a category 1 hazard existed. It also complained that the RPTs reasoning was incorrect and that the RPT had substituted its own decisions, based on their inspection for that of the Council. In particular the Council complained of three items that the ROT had advanced as being the reasons for preferring its own views:

1. The fact that the tenants appeared happy with the system;
2. The perception by the RPT members on inspection that the property was warm inside while it was cold outside;
3. The belief by the Tribunal members that, based on their own experience, electric heaters were adequate for a property of this type.

The LC started with a consideration of the underlying HHSRS system and the inspection by the Council. It noted, with some surprise, that the EHO had produced a score which meant that there was a 1 in 570 chance of a death occurring from cold in the property in the next 12 months which it clearly found to be unlikely.

Before the RPT the landlord had contested the finding by the EHO that the heating system was ‘seriously defective’. It had produced a heat loss calculation which showed that the heating system was adequate for the property and this had been accepted by the EHO in her witness statement. The EHO had however continued to state that the heating was below the norm for this type of property and, based on an EPC she had produced, cost an excessive amount to heat the property as compared to the alternatives the Council was seeking. The landlord contended that the cost of heating the property was not a relevant consideration for the purposes of the HHSRS and that the figures produced by the Council were, in any event, incorrect.

The LC heard submissions on the above issues and also invited further written submissions on whether it should (or could) quash the improvement notice and substitute a hazard awareness notice. The submissions on this issue were diametrically opposed with the two sides taking the positions one would expect.

The LC began its conclusions by finding that the reasons the RPT had given for quashing the improvement notice were inadequate. Given that the RPT appeared to accept a category 1 hazard existed it could not simply quash the enforcement notice without substituting an alternative means of enforcement. This was held by the Council to be all that was necessary as granting their appeal would restore the original improvement notice. The LC did not agree with that and ruled that there were two matters for it to consider:

1. Whether the RPT were right to accept that a category 1 hazard existed; and
2. Whether the improvement notice was the most appropriate form of enforcement action and whether a hazard awareness notice would not have been more appropriate.

Before answering these questions the LC first considered the three arguments advanced by the Council for setting aside the decision of the RPT based on the three reasons given above. The LC, while accepting that the RPT decision did not give sufficient reasons, was not prepared to hold that the three issue the Council complained of were correct. It was perfectly in order for the RPT to take into account the expressed views of the occupants who were, after all, in the best position to know if the property was adequately heated or not. While the RPT could not use this as the sole point of determination it was certainly one of the areas they could take into account. Equally, it was open to the RPT to consider whether a property was warm or cold during their inspection. This is something that an EHO would form a view on and the RPT had no less a right to form such a view. The final, and most contentious area was the application of the knowledge and experience of the tribunal. Tribunal members have been cautioned many times against applying their own knowledge and experience in a manner which outweighs the evidence presented to them. Decisions must be based on the presented evidence and not on evidence gathered or created by the tribunal itself. However, the RPT had not done that here. The Council had presented evidence that the heating system was inadequate and the landlord had presented evidence that it was. The Tribunal was perfectly entitled to prefer the landlord’s evidence and was entitled to use it’s experience and knowledge to justify that preference.

Having disposed of the Council’s criticisms of the reasons given in the RPT decision the LC returned to the two main questions it had set itself. It criticised the RPT for not considering whether the Council had correctly scored the property. While not going so far as to score the property itself the LC made clear that it considered the scoring to be excessive and expressed doubt as to the 1 in 500 chance of death figure. It held that the RPT would probably have reduced the score had it turned it’s mind to this question and based on that the installation of a new heating system was an unreasonable demand. Accordingly, the LC held that the improvement notice should be quashed and that a hazard awareness notice should be substituted for it.

Comment
This is the second occasion on which the LC has commented on the relatively uncertain quality of the statistics which underlie the HHSRS. It has also again brought to the fore the problems that many EHOs (and to be fair most of the population) have with statistics. In this case the EHO had made a huge adjustment to the likelihood of an incident under the cold hazard occurring. Due to the high chance of a serious outcome under that profile this had created the unlikely scenario that the property had a 1 in 570 chance of causing death (or an equivalent extreme harm) in the next 12 months due to cold. This is a statistical likelihood that, if accurate, would be (you will have to excuse the pun) chilling. If an event becomes more likely then it is not normally true to say that the outcome of that event becomes more serious. However, it is common for EHOs to increase both the likelihood of an event and also to shift the percentage outcomes of an accident towards the most serious outcomes simultaneously or at least to leave them unchanged. It is also common for changes to be made in national averages which are very large with little consideration as to how those averages were determined in the first place and where the property falls in the spectrum of properties nationally. It is this mindset, which probably has more basis in feeling that actuality, which produces the very badly skewed scoring found in this case.
I have been a, admittedly somewhat outspoken, critic of the tendency of many EHOs to enter a property and “see” what needs doing and then batter the HHSRS scores into making it fit their preconception. While this is entirely natural and is a partly an effect of having too little time it goes against everything the HHSRS was designed to do. EHOs really need to think carefully about the statistical underpinning of the HHSRS and what they are doing when they adjust the numbers the system is based on. Changes in likelihood and outcome are often made too readily and are too big to be sustainable under close scrutiny. EHOs must try to put aside their notions and accurately process the statistics first to produce an accurate score which will stand up to scrutiny and then consider their enforcement options rather than starting from the other end.
Before anyone lambasts me I should state clearly that I am a great supporter of EHOs and the HHSRS in general and agree that a substantial number of properties in the Private Rental Sector are below the necessary standard (often far below). However, not using the HHSRS system properly and accurately is ultimately counter-productive and is a serious waste of local authority time and resources.