[2024] UKUT 218 (LC)

Mr Curd presented detailed statement of his position which included the contention that not only were the Premdor doors certificated, rather than nominal fire doors, but that he held a certificate for them which had been issued on 26 July 2000under the “Certifire” scheme. The significance of this certification, Mr Curd explained, was that the installation tolerances (specifically the required gaps between the doors and the door frames) were different from those under the British Standard to which Mr Whelan had referred. The certificate, a copy of which he produced, had not featured in his case to the FTT, which cannot therefore be criticized for failing to have regard to it.

In its statement of case in response to the appeal the City Council did not seek to uphold the reasoning of the FTT and conceded that its approach had been wrong in law. The FTT had not been entitled to vary the improvement notice to require Mr Curd to obtain a report from a third-party assessor to determine whether a hazard existed and then to act on the assessor’s findings.

Mr Adams reasoned, correctly in my view, that a local housing authority’s discretion to serve an improvement notice under section 12, 2004 Act arises only if they are “satisfied that a category 2 hazard exists” (section 12(1)(a)). If an authority was not satisfied that a hazard existed it could not serve a notice. Moreover, section 13(2) requires an improvement notice to specify the nature of the hazard and the remedial action required, neither of which could be done if the authority had not first satisfied itself that a hazard existed. It was clear, therefore, that the City Council could not have served an improvement notice which required Mr Curd to take steps to ascertain whether a hazard existed on the premises. On an appeal, the FTT has no greater or different powers from those of the local authority and it may only vary an improvement notice if it is satisfied that a hazard exists.

Mr Adams rightly distinguished between testing to establish whether a hazard exists and testing to determine the extent of a hazard which an authority has already satisfied itself exists, or to demonstrate that remedial work has been completed successfully. For example, an authority which is not satisfied that the electrical installations in a building give rise to a hazard, may not serve an improvement notice requiring testing to determine whether the installations are free of defects. If, as a result of its own observations or monitoring, the authority is satisfied that there is a hazard (i.e. that the installations are deficient in some way, and that the deficiency gives rise to a risk of harm to the health or safety of an occupier), the remedial work which it may specify in an improvement notice could include proper testing to establish the extent of the deficiencies. An improvement notice could also require proper testing or certification of remedial work to demonstrate that the hazard has been successfully dealt with, since that would be a normal part of any scheme of work to remedy a defect.

The FTT was unable to reach a conclusion on the critical question of whether the condition of the fire doors gave rise to a hazard, saying only that “These may or may not pose a significant risk to the safety of occupiers in the event of fire”. There was insufficient evidence to be satisfied that they were compliant, yet it was “unknown” whether they posed a risk. The FTT could have quashed the improvement notice on that basis, but it could not vary it without first being satisfied that there was a hazard, which was a conclusion it felt unable to reach.

Mr Adams submitted that there was a further difficulty with the FTT’s decision, which was that it had considered the condition of the doors as they were at the time of its own inspection in March 2023, and not as they had been in June 2021 when the notice had been given. As the Court of Appeal explained in Hussain v Waltham Forest, the question whether a local authority’s decision was wrong must be judged as at the date the decision was made by the local authority and, while matters which had existed at that time but were not known to the authority may be taken into account, matters which could not have been known because they occurred only after the decision was taken are irrelevant. The FTT did not appreciate that distinction and referred in paragraph 47 of its decision both to the fact that it was entitled to take into account matters not known to the parties at the time the notice was given, and to the assistance it had received during the inspection in identifying the work carried out by Mr Curd after the notice. In the second of two paragraphs numbered 51 it referred again to the work done by Mr Curd and to “the change of circumstances since the appeal was submitted”.

What is not clear, however, is whether any of the changed circumstances which the FTT observed concerned the fire doors. The notice included other (relatively minor) items of work and these had certainly been attended to by the time of the inspection. Work had also been done to the fire doors before the notice was served (in response to the list served on 10 November 2020). It was later stated by the assessor engaged by Mr Curd in compliance with the FTT’s decision that the doors were functioning properly. But whether that favourable assessment was the result of a difference of view between the assessor and Mr Whelan or whether further work had been done after Mr Whelan’s inspection is entirely unclear.

Mr Adams sought to raise this issue by means of a cross-appeal, for which permission is required, but as I am satisfied that the FTT’s decision must be set aside in any event because the remedy it prescribed is insupportable, and as I am not satisfied that the error it made in taking recent work into account affected its consideration of the fire doors, I refuse permission to cross-appeal.

Mr Adams nevertheless invited me to set aside the FTT’s decision and to reinstate the improvement notice in its original form on the basis that there was no evidence to challenge it. That would not be a proper course. Although he is not independent, Mr Curd is certainly knowledgeable and he challenged Mr Whelan’s assessment both on numerous points of detail and on the need for FD30 doors. He also challenged the City Council’s determination that an improvement notice was an appropriate form of enforcement. Those challenges were not identified or considered in any systematic way by the FTT so far as the fire doors were concerned. I have not inspected the HMO or been shown material which would enable me to form a view of my own on the disputed aspects of Mr Whelan’s schedule, and Mr Curd has the support of the relevant LACORS guidance on fire safety provisions for his case that while FD30 doors are “ideal” they “need not be insisted on” in low risk shared houses.

Mr Adams also acknowledged that the improvement notice should not have required the replacement of parts of the fire doors which were not defective. Mr Whelan’s recommendation to replace the mortice latch on the kitchen door and the hinges on all of the doors was made because he believed they were not CE marked so that their quality could not be guaranteed, and not because he considered that they were unsuitable or defective. Mr Adams accepted that the City Council could not insist on that approach and that the notice would require variation at least to that extent.

As the City Council refused Mr Curd’s requests for disclosure of its HHSRS assessment, it is not possible to determine what impact the omission of the replacement hinges and latch would have had on the total fire risk score. Nor is it known how the issue of smoke seals was taken into account in the HHSRS assessment; Mr Whelan’s schedule required their installation, but the notice itself made that requirement conditional on the absence of a linked, mains wired smoke alarm in the bedrooms.

The position that has been reached is therefore that I am prepared to set aside the FTT’s decision, but I am not in a position to make a decision of my own on Mr Curd’s original appeal against either the principle or the detail of the improvement notice. In most cases the obvious course of action in that situation would be to remit the appeal to the FTT for reconsideration. But Mr Adams urged me not to do that, and for good reason. The notice is now more than three years old and the HMO has been in continuous occupation since the inspection of 23 April 2021. The fire doors require periodic maintenance in any event, and one has been replaced as part of a more recent programme of works to extend the kitchen. The question whether the works in Mr Whelan’s schedule were required to remedy a hazard which existed at that time is now almost entirely academic and the expenditure of further time and money in investigating it would be disproportionate.

The City Council has more extensive powers under the 2004 Act than the Tribunal. It can, for example, revoke an improvement notice made under section 12 if it considers it is appropriate to do so (section 16(2)(b)). Unlike the Tribunal, it would be entitled to exercise that power without first being satisfied that the original decision to serve the notice had been wrong. One course of action open to the Council would therefore be for it to undertake a further inspection of the HMO to determine whether any continuing hazard exists. If there is no such hazard the Council may wish to revoke the notice (and to the extent that it finds that the work has been done it would be required by section 16(1) to revoke it). If, after considering the relevant LACORS guidance, it finds the same or different hazards it may wish to consider serving a new improvement notice.

The improvement notice has not yet become operative, and it will not become operative unless and until it is confirmed on appeal (section 15(5), 2004 Act). I am unable to confirm the notice, and neither the City Council nor Mr Curd wishes the matter to be remitted to the FTT for further consideration. In those circumstances the notice will remain inoperative indefinitely.