[2024] UKUT 24 (LC)

132 Aldykes in Hatfield is a two-storey detached house with a kitchen and two other rooms on the ground floor and a bathroom and three bedrooms on the first floor. It has been owned by the respondent and her husband since 2010. Each of the rooms in the house is let to separate individuals who share the kitchen and bathroom; the house is therefore an HMO. Since 1 October 2018 it has been subject to mandatory licensing under Part 2, 2004 Act.

In August 2019, after carrying out works required by the Council, the respondent was granted an HMO licence with effect from 1 October 2018, for a term of 5 years. The licence authorised the occupation of the property by up to five people in five separate households and identified the respondent as the manager and owner.

It is the Council’s practice to inspect HMOs half-way through the term of a licence but, due to the Covid 19 pandemic and its associated restrictions, the mid-term inspection of 132 Aldykes was not carried out until 27 October 2021. The inspector was Ms Cooper, one of the Council’s private sector housing team. The respondent did not attend and later questioned whether Ms Cooper had given proper notice of her visit, but the FTT appears to have been satisfied that she did.

Ms Cooper was admitted by one of the tenants who told her that there were six or more people living at the property. Because of Covid restrictions her inspection was limited to the kitchen, bathroom and hallways on the ground and first floors, and she did not inspect any of the bedrooms. She was unable to form a view about the number of people living at the property. While carrying out her inspection she completed a property inspection form and took a number of photographs which provide a contemporaneous record of what she observed.

The fire detection installations in the property are powered by mains electricity, but on the first floor Ms Cooper could hear intermittent bleeping from two of the bedrooms indicating that the backup batteries in smoke detectors had run down; she also observed that the emergency lighting did not function when the mains power was disconnected and that two smoke or heat detector heads had been partially removed and disabled (one in the kitchen and one in the ground floor hallway). On inspecting the bathroom she found damp and mould affecting the ceiling and the tiles around the bath.

In the hallway Ms Cooper found a sofa completely blocking the door of one of the ground floor rear rooms (the room has another door leading to the rear garden of the property). An internal corridor leading from the kitchen to the rear door was narrowed by other items of furniture and there were boxes and a roll of carpet on the first floor landing. In the kitchen the fire door was wedged open, a fire blanket was missing from its holder on the wall, and an electric extension lead ran along the floor across the entrance from the hallway.

Later the same day Ms Cooper telephoned the respondent who explained that she had not visited the property for some time due to the Covid pandemic. Ms Cooper asked her to replace the disabled fire detectors within 24 hours, failing which she would arrange for emergency remedial work to be carried out. When Ms Cooper attended the property the following day, she recorded that the disabled detector heads had already been replaced in response to her instruction.

Two days later, on 29 October 2021, Ms Cooper sent a letter to the respondent enclosing a schedule of works which she required to be carried out to the property. The letter was headed with a reference to the 2006 Regulations and stated that the schedule was being served without prejudice to any legal action the Council might subsequently take. Ms Cooper also required the respondent to produce test certificates for appliances and installations and risk assessments.

The schedule of works is important because it contained details of matters of concern to the Council which were later omitted from the notices of intent. Eight separate items of work were identified. The first four related to fire safety and required remedial work to be undertaken within seven days: all the fire detection to the property was to be put in full working order and evidence was to be provided; a new fire blanket was to be supplied for the kitchen; the sofa blocking the rear ground floor bedroom door was to be removed; the kitchen door was not to be wedged open.

The remaining items in the schedule of works concerned the maintenance of the common parts and required work to be carried out within four weeks. Cables were not to be permitted to trail across the floor and further electrical sockets might be required to avoid this; a spindle missing from the first-floor handrail guarding the stairs was to be replaced; the kitchen extractor fan was not working and was to be repaired; and the bathroom was to be put in a good state of repair which might require it to be refurbished.

The FTT later recorded that all of the work required by the schedule of works had been completed by the end of 2021. All but one of the test certificates and risk assessments had also been provided. The one missing certificate, an electrical installation condition report (EICR) valid from the date of expiry of a previous report in May 2020, was not provided within the seven days requested by Ms Cooper’s letter but was supplied later.

The letter of 29 October and the schedule of works were sent to the respondent by email. Attached to the email were copies of the photographs taken by Ms Cooper on her first visit showing the defects which concerned her.

The respondent did not reply to an invitation to attend an interview under caution and did not attend the interview appointment. On the day of the appointment Ms Cooper and her manager decided to initiate financial penalty proceedings by serving a notice of intent. They made a record of their discussion in which they itemised the matters they had taken into account when deciding to serve the notice; these included all of the matters which had been included in the schedule of works as well as the absence of the EICR certificate.

On 2 February 2022 the Council’s officers served three notices of intent on the respondent. Only two of those notices are relevant to the appeal; the third, which concerned the delay in supplying the EICR certificate, was subsequently confirmed by the FTT (but with a reduced penalty) and there has been no appeal from that decision by the respondent.