[2024] UKUT 218 (LC)

Paragraph 10(1) of Schedule 1, 2004 Act provides for appeals against improvement notices to the FTT. Paragraph 15(2) and (3) sets out the powers of the FTT on an appeal:

In Hussain (Nasim) v Waltham Forest LBC [2023] EWCA Civ 733, the Court of Appeal considered the identically-worded paragraph 34 of Schedule 5, 2004 Act (concerning appeals against local authority decisions relating to licensing). It was common ground that although an appeal was to take the form of a re-hearing, that did not mean that the FTT should disregard the view of the local authority and begin its own consideration entirely afresh. On the contrary, because the local authority is the body entrusted by Parliament with the primary responsibility for making such decisions, the FTT should accord its views special weight or deference and should only conclude that one of its decisions is wrong if it disagrees with the decision despite having accorded it that special weight.

The Court of Appeal also concluded in Hussain that the FTT was required to consider whether the decision under appeal was wrong at the time when the decision was taken (and not at the date of the appeal). The matters to which it was entitled to have regard therefore comprised only those which had occurred by the time the decision was taken and which could have been taken into account by the authority if it had been made aware of them.

There was some debate in the current appeal over the material which a local authority should be expected to make available on an appeal to the FTT against a decision to serve an improvement notice. In this case Mr Curd had requested the City Council’s HHSRS assessment but the City Council had refused to provide it. Mr Adams suggested that, since any hazard below the category 1 threshold is necessarily a category 2 hazard, the scoring was irrelevant in a case where only category 2 hazards were alleged. I do not agree. The decision to serve an improvement notice in response to a category 2 hazard is a discretionary one, and the seriousness of the hazard (as measured on the HHSRS scale) is obviously a relevant consideration. Not all category 2 hazards require the service of an improvement notice. It is therefore relevant to the exercise of the discretion by the FTT for it to know the details of the assessment.