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My Flat is Too Cold!

There has been an interesting decision in the case of Liverpool City Council v. Anwar Hadi Kassim [2011] UKUT 169(LC) relating to category 1 hazards under the Housing Health and Safety Rating System (“HHSRS”) of the Housing Act 2004 regarding lack of heating.

The facts are that Mr Kasssim owned a one bedroom ground floor flat in a terraced house. A Notice (a Prohibition Order) was served prohibiting use except by Mr Kassim as there was a category 1 hazard being excess cold and stated “There is no programmable, permanent, fixed and affordable heating in the dwelling. The level of thermal insulation to the dwelling is low”.

Mr Kassim appealed the notice under paragraph 7(10) of Part 3 of Schedule 2 of the Housing Act 2004. He contended that since the Notice he had double glazed all windows and installed an adequate heating system being various electric wall mounted heaters. The council contended that the heating system did not meet the requirements of the Notice because it was not capable of being affordable for a tenant to run the heating system. This contention relied upon Guidance issued by the Office of the Deputy Prime Minister in February 2006.

At first instance the Residential Property Tribunal agreed with Mr Kassim. It concluded that the heating system only had to be efficient and it should not judge the affordability in considering the health and safety aspects of the property. It therefore quashed the prohibition order.

The Council then appealed to the Upper Tribunal (Lands Chamber) saying that the affordability of the system was something which the Guidance referred to and under section 9(2) of the Housing Act 2004 there is a requirement to have regard to the Guidance. The Council put forwarded evidence that there was a need to have regard to affordability which arose from the requirement that any system should be energy efficient. Mr Kassim contended that the term “affordability” was not mentioned at all in the Guidance but “economically” was and in this context meant without waste. It was submitted on his behalf that any system was dependant upon the lifestyle of the occupant and which provider and tariff they chose to use.

The President of the Upper Tribunal determined that the affordability was of “potential relevance” and the cost of electricity was capable of being of relevance. Interestingly he made clear that the Guidance has no independent force but is there to assist in the application of the statutory provisions. The question was whether by reference to a “vulnerable group”, being those over 65, would be deterred from using the system as a result of the expense.

The matter was remitted for certain specific questions to be addressed by the Tribunal.

It is therefore important that in considering potential hazards and how these are addressed that consideration is given to all matters including any costs of operation of any system which may be passed on to an occupant. It is clear local authorities can require the installation of heating systems. Whilst the decision does not go as far as to say they can specify the exact type of system regard can be had to the cost of running any system to be installed particularly if the cost may mean that it will not be used. Each case will depend upon the specific property and the type (or actual) occupant of the same. The moral is that it is always best to try and work with the local authority as far as possible to avoid what was undoubtedly expensive litigation.

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