Hanley v Tameside Metropolitan Borough Council concerned an appeal from the Residential Property Tribunal (RPT) against the service of a Prohibition Order. Bolton Metropolitan Borough Council v Patel concerned an appeal from the RPT on Emergency Remedial Action.
The Housing Health and Safety Rating System (HHSRS) was introduced by the Housing Act 2004 and represents one of the more far reaching and significant parts of the act. Under its provisions Environmental Health Officers (EHOs) have powers to inspect properties, identify hazards and after scoring the hazards placing them in either one of two categories, category 1 hazards being the most serious hazards and usually attracting more severe enforcement methods. The EHO can then issue the landlord with orders for remedial action. Enforcement actions range from Hazard Awareness Notices which are not enforced to Prohibition Orders, ordering the Premises to be vacated until the identified hazards have been rectified.
The Prohibition Order in Hanley was made by the council as a result of a water ingress into the house he was letting to four people. An appeal to the RPT was refused but it allowed a further appeal to the Lands Tribunal on the basis that there was an arguable point of law. The landlord argued that as the building conformed to the Building Regulations or could be easily made to comply they could not be hazards for the purposes of the HHSRS.
There were two issues the Lands Tribunal had to deal with. Firstly whether the HHSRS would take precedence over the Building Regulations. The RPT held that if the hazard was identified under the provisions of the Housing Act, compliance with the building regulations was not a material consideration.
The Lands Tribunal found that this interpretation was an error of law. It must be a material consideration if an alleged hazard conforms with the building regulations. Furthermore the tribunal found that there was no conflict between the two legislative provisions.
However the Prohibition Order was not set aside as the erroneous reasoning did not form part of the reasoning of the RPT.
Bolton considered Emergency Remedial action, another of the enforcement actions available to EHO’s. The hazards identified were failure of the boiler and consequential lack of heating, hot water and exposed electrical wiring. The RPT found that it was correct that emergency remedial action was ordered on the basis of the exposed electrical wiring but not for the repair of the boiler. The argument raised before the LT was whether the RPT had properly concluded there was not a ‘serious risk’ of ‘imminent harm’ as required by the Act. The landlord argued that the interpretation of ‘imminent’ should be that of 28 days as opposed to 5 days which the RPT had interpreted after which the next possible action could be taken, namely an improvement notice. The LT did not accept this as an improvement notice has an additional period in which an appeal could be lodged and furthermore the act was not drafted to link emergency remedial action with improvement notices. The appeal was therefore dismissed by the LT.
The LT however made an important observation about the HHSRS system stating, in relation to the method of hazard assessment
The great danger of a numerical score produced in this way is that it creates the impression of methodological accuracy, whereas 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 statistics that the hazard calculation tables are based on have also been criticised. The statistics embody a ‘notional occupier’ test, as opposed to testing the hazard against the actual occupants. The test for Excess Cold is based on a ‘bare statistic’ of total winter deaths for over 65s.
A further concern lies in the ability of EHO’s to decide whether the likelihood of a hazard occurring should be increased. It is this subjective element that can result in extra-ordinary results as the EHO’s decision acts as a multiplier. For example in the present case the the EHO had radically increased the risk of harm by excess cold assessing that there was a “1 in 31.6 that an occupier of the house would within the next 12 months die or suffer some other form of extreme harm…” The court noted that this was a surprising conclusion.
From these decisions Landlords and their agents should be mindful that although properties may be compliant with the Building Regulations, and compliance may be a positive sign that they are HHSRS compliant, there may be divergence. Furthermore as the HHSRS system currently stands EHO’s have a wider discretion than may initially be thought. Therefore to ensure compliance hazards should be interpreted conservatively.