[2024] UKUT 218 (LC)

The HMO is a mid-terrace, three storey house of traditional solid brick construction. As originally designed it had living accommodation on two floors with an attic above, but in about 2001 the whole house was acquired and refurbished by Mr Curd and the attic was converted into an additional bedroom. At the material time the HMO comprised a kitchen, lounge and one bedroom on the ground floor, with three further bedrooms on the first floor and one in the attic. More recently the building has been extended to the rear at ground floor level.

The HMO has been licensed under the 2004 Act since at least 2010. Conditions included in licences granted in 2013 and 2016 required that all existing fire doors must provide 30 minute fire resistance (denoted by the reference FD30 or FD30s if cold smoke seals are incorporated).

Before granting the 2021 licence the Council’s officers carried out an inspection and formed the view that Category 2 hazards existed in the HMO and that remedial work was required. On 10 November 2020 an enforcement officer sent Mr Curd a list of matters of concern informing him that an improvement notice would be served once a new licence had been issued but that any matters in the list which had been fully addressed would be omitted from the notice. The list included work to improve the standard of protection against fire. It identified that four of the fire doors did not snap shut and that in six examples the gaps between the floor or door frame and the door exceeded the required width (4mm at the top or sides and 8mm at the bottom). The performance of the attic door was also said to have been compromised by the way it had been trimmed to fit the door frame.

The Council’s November 2020 list did not specify remedial work, other than that the issues identified should be “fully addressed”, but Mr Curd commissioned work and supplied details to the Council. It then arranged a further inspection by its own officers and an independent fire door inspector, Mr Whelan.

Mr Curd was present during the inspection and he said that Mr Whelan had not asked any questions about the doors and had asked him not to comment while he carried out his work. Mr Whelan reported to the Council on his observations and recommendations on 23 April 2021 and he later informed the FTT that he had been instructed to apply the British Standard for the installation and maintenance of fire doors.

In his report Mr Whelan reported that the doors were all FD30 doors (except the kitchen door which was FD30s) but described them as “nominal” rather than “certificated”. He explained that a “certificated” door was one manufactured under a product certification scheme, while a “nominal” door was “a fire door without any documentary evidence in support of its intended performance but that in the opinion of the inspector is likely to provide fire resistance for the required time period”. Nevertheless he identified defects with each door which should be remedied to enable the door to achieve its intended fire rating.

Mr Whelan recorded 76 issues affecting the seven doors (although one issue, the absence of smoke seals, was recorded three times in relation to each door). Many of his recommendations involved small adjustments of 2mm or less to achieve the required separation between door and frame, or to ensure that the doors fitted flush with their frames. Others required what appear to be quite modest works such as adjustments to self-closers, the application of mastic around locks and hinges or additional signage.

Some of Mr Whelan’s recommendations did not identify defects but instead recorded areas of uncertainty. In particular, the kitchen door mortice latch and the hinges on each door were said not to be CE marked and Mr Whelan recommended their replacement with CE graded components. He also recorded that he was unable to confirm whether fire stopping had been installed behind the door frames, as this would have required an intrusive inspection involving the removal of the frame architraves.

No copy of the report was supplied to Mr Curd by Mr Whelan, and the Council’s officers waited two months before serving an improvement notice on 21 June 2021. The main hazard identified in the notice was fire and the main remedy was to carry out all of the recommended work identified in Mr Whelan’s report. This requirement was qualified by the statement: “should the sleeping rooms not contain a mains wired smoke alarm linked to the existing fire alarm system, the requirement for cold smoke seals will not be applicable”. None of the bedrooms had mains wired smoke alarms at the time of the Council’s inspection, nor did the notice require that they be provided; the effect of the qualification was therefore to remove 21 of the 76 items from Mr Whelan’s list of recommended works. The notice did not require any intrusive investigation to establish whether the fire stopping behind the door frames was satisfactory. It did require the replacement of unmarked hinges with CE graded substitutes.

The notice required that all of the work be completed by 26 December 2021 but when Mr Curd lodged his appeal to the FTT that deadline was automatically extended by section 15(5) and paragraph 19, 2004 Act and the notice has not yet become effective. The notice will not become operative unless and until it is confirmed on appeal.