[2023] UKUT 292 (LC)

Mr Thompson wanted these proceedings to come to an end as soon as possible. Mr Ward was without instructions on the course the Council would prefer if the FTT’s decision was set aside. Since the FTT appears to have accepted the evidence given by Mr Thompson there does not seem to me to be necessary to remit the original appeal to it for further consideration. The convenience of the parties and the need to allocate a proportionate share of judicial resources, and no more, to this matter, both point strongly in favour of redetermination by this Tribunal. That is what I will do.

The offence in respect of which the financial penalty was imposed was that, contrary to section 30(1), 2004 Act the appellant failed to comply with an improvement notice which had been served on it. That requires consideration of what remedial action the improvement notice required, whether that remedial action was taken within the time allowed by the notice, and whether, to the extent that it was not, the appellant had any reasonable excuse for that failure.

I make three further preliminary points.

First, this is not an appeal against the improvement notice itself and it is not open to the appellant to contest the remedial action specified in the notice (as he seeks to do by asserting that an integrated fire alarm was unnecessary) or to suggest that the notice should have been served on someone else; it is too late to challenge the content of the improvement notice.

Secondly, it is not an answer to the defence of reasonable excuse that the same facts could have been relied on in an appeal against the enforcement notice. Thus, the practical difficulties of gaining access to Flat 2 are relevant to the defence of reasonable excuse and may be relied on, even though they could also have provided the basis for an appeal against the enforcement notice.

Thirdly, the appeal is against the Council’s decision to impose the financial penalty. It is apparent that the Council took account of remedial action by the appellant to comply with the improvement notice after 7 December 2021, the date by which it was satisfied the offence had been committed, and it imposed no penalty in respect of matters which had been resolved by October 2022. Weight should be given to the Council’s view on which matters merited a penalty and which did not. I will therefore consider only those matters which the Council relied on when it determined that a penalty should be imposed.

The relevant remedial action required in respect of fire hazards was in two parts: to identify and remedy the fault in zone 2 of the fire detection system, meaning Flat 2; and, apart from the retention of small set of shelves for post, “the escape route must be kept clear at all times and not used for storage”. In each case the action was to be begun by 23 September 2021 and completed within two months of that date.

The remedial action required in response to the “fall on stairs” hazard was simply “clear the cellar stairs of all items”.

I am satisfied that the appellant had a reasonable excuse for its failure to comply with the notice in respect of the work required within Flat 2. It made repeated attempts to arrange access and sent its contractor to the premises on at least one occasion after giving notice to the leaseholder. It received no response to any of its approaches and was unable to get in to do the work. Assuming it was reasonable to expect the appellant to commence proceedings to obtain an injunction (which was not action specified in the notice) the two months allowed by the notice was insufficient to enable that to be done (as Mr Ward acknowledged). The appellant’s contractual power of entry on reasonable notice was for inspection only. If it wanted to do work within Flat 2 it needed first to give two months’ notice. Even if it had given that notice and then gone to Court to obtain an injunction it could not have done so by 23 November and would not have been able to carry out the work by 7 December.

I take the same view of the failure to keep the escape route clear at all times. The appellant arranged for the hallway to be cleared on a number of occasions (the main stairs themselves were not obstructed, only those to the cellar which are not on the escape route). This is a small building and the cost of employing someone to attend regularly to remove obstructions would be disproportionate. The items stored in the hallway did not prevent the residents from coming and going, and the risk being guarded against was that their escape from the building might be obstructed when they were trying to leave quickly, possibly in the dark, and possibly while there was smoke in the common parts. I take those matters into account. I bear in mind also that by the time someone reached the obstruction they would already be on the ground floor and close to the main door of the building.

As for the fall on stairs hazard, which was concerned only with the stairs down to the cellar, accessed by residents and others for storage and to read gas metres, the evidence is that the notice was complied with by the removal of the obstructing items, but that these were later returned. The notice did not specify as remedial action that the stairs must be kept clear at all times (unlike the action in respect of the escape route). The statement in an improvement notice of the action required to be taken is important because it informs the recipient what they must do to avoid committing a criminal offence and it establishes what the Council must prove beyond reasonable doubt has not been done if it wishes to prosecute or impose a financial penalty. It follows that, in this respect, the appellant did not commit the offence of failing to comply with the improvement notice.

Even if the improvement notice is to be understood as including an implied requirement to keep the cellar stairs clear of trip hazards, I would be satisfied that the appellant had a reasonable excuse for non-compliance.

In my judgment the refusal of cooperation by the leaseholder of Flat 2, and his persistence in returning items removed from the escape route, and from the cellar stairs, provides a reasonable excuse for non-compliance with both limbs of the notice in the circumstances of this case. I am satisfied that the appellant was not obliged to commence proceedings in order to comply with the improvement notice and that its inability to achieve compliance without proceedings contributes significantly to its defence. In considering whether the excuse relied on by the appellant is a reasonable one I take the following into account. The notice required “works” and did not refer to legal proceedings. The appellant tried repeatedly but unsuccessfully to obtain access and to keep the escape route and cellar stairs free of obstruction without resorting to proceedings. The building was equipped with a functioning integrated alarm system serving the common parts, the cellar, and two of the three flats (that did not eliminate the hazard in the event of fire, but it must have reduced it substantially). The residents of the building were not in any vulnerable category and the escape route was by means of a single flight of stairs. The escape route was narrowed by the presence of items in the hallway at the bottom of the stairs which were returned to the same position when removed by the appellant. The requirement of access to the cellar was infrequent, the cellar was now lit and a new handrail had been fitted. The occupiers were themselves long leaseholders and had responsibilities to provide access and not to block the means of escape or common parts. The cost of litigation would have been passed on by the appellant to the three leaseholders, who already had difficulty in paying the regular service charges.