Liverpool City Council v Kassim [2011] UKUT 169 (LC)

A thank you to the EHP who brought our attention to this case. The full decision is also available as a pdf at the end of their post until the Lands Tribunal catches up.

Mr Kassim owns a rented flat. It was inspected by Liverpool who found a category 1 hazard under the HHSRS relating to excess cold. They issues a prohibition notice preventing use of the property until such time as K had installed a “fixed, permanent, whole flat heating system. This system must be programmable and capable of being controlled by the occupants, efficient and affordable to run” (emphasis mine).

K applied to the RPT for the notice to be quashed on the basis that since it had been issued he had double glazed all the windows and fitted electric panel heaters in various parts of the property. These were fitted with timer switches and thermostats. K therefore asserted that he had fitted a permanent heating system which heated the whole flat and was fully controllable by the occupants. L disagreed and contested his application on the basis that the heating system was not affordable. L relied on the HHSRS Operating Guidance originally issued by the ODPM in February 2006 and particularly the statement in para 2.20 of Annex D that heating systems “should be appropriate to the design, layout and construction, such that the whole of the dwelling can be adequately and efficiently heated” (my emphasis again).

The Tribunal agreed with K and quashed the notice. L appealed to the Upper Tribunal.

Before the UT L argued that the issue of cost was a relevant consideration. It did so on the basis that if a heating system was too expensive to run then the occupants would not use it. This would mean they were exposed to the effects of excess cold and therefore the mischief that the HHSRS was designed to deal with would remain. The UT ultimately agreed with this argument, with caveats.

The key caveats were in the manner in which this decision is applied. The UT were quick to make clear that the are limitations to the general applicability of this principle. THe HHSRS is meant to be assessed on the basis of the most vulnerable groups and for Excess Cold this means persons over 65. Lack of funds to pay high heating bills could be considered a general characteristic of the over-65 age group. However, other general characteristics of persons living in the area which L had sought to rely on were not characteristics of that age group and were therefore irrelevant.

In deciding how serious the hazard was and thence on what enforcement action to take regard had to be given to the nature of the occupiers and their views. Therefore, if the property was student accommodation where heating was stated as often being included in the rent then the cost of heating would not be a relevant factor and the seriousness of the hazard would be reduced. Then the views of the occupiers had to be taken into account in deciding precisely what enforcement action was appropriate to the hazard level identified.

The UT also made one other key statement. The decision on the relevance of cost of heating was stated to be made “independently of the guidance” although the UT held that it was supported by the guidance. The UT further stated that contrary to the position adopted by L the guidance was there to assist in the interpretation of the statutory provisions and did not have independent force.

The matter was remitted back to the RPT for them to re-make their decision in the light of this guidance.

General Comments
This case shows a new and interesting trajectory by the UT which will start to complicate the HHSRS. This is a movement away from heavy reliance on general principles and towards a consideration of the specifics of each case. This is, of course, as it should be. Every house is different. However, it adds to the expense and complexity of enforcement and increases the pressure on EHOs. That said, it also increases pressure on landlords as they will not be able to rely on fixed principles and will need to consider the facts of the property. It is notable that the views of the occupier were again considered relevant and both sides will have to take far more notice of this in future.
The second point to note is the very clear separation of decision making in the UT. Council officers too often consider the HHSRS on the basis of products and deliverables. By this I mean there is a focus, as in this case, on having good quality efficient heating which tends to dominate all thinking. Here the UT first considered whether there was a hazard. It found there probably was. It then said that a separate consideration had to be applied to the seriousness of the hazard taking into account the characteristics of the property and whether heating was included in the rent. Notably the UT stated that even if a category 1 hazard was held to exist (which requires enforcement action to be taken) the appropriate enforcement action might be a mere Hazard Awareness Notice (which requires no action). In addition, the views of occupiers had to be considered in deciding what enforcement action to take. It was not permissible to jump from cold to storage heaters without running through those intermediate steps.