[2025] UKUT 97 (LC)

The Art Deco Estate consists of eight separate Grade II-listed blocks containing 96 flats, of which at the material time 73 were let on assured shorthold tenancies and the remaining 23 on long residential leases. Manaquel acknowledges that in some respects the Estate was in a dilapidated condition.

On 20 October 2021 Lambeth served an improvement notice requiring Manaquel to carry out works to “Flats within Dorchester Court”. The notice contained a schedule which identified what were considered by Lambeth to be Category 1 and Category 2 hazards. The most serious Category 1 hazard was excess cold, attributed to the condition of the windows of “most flats” (without further identification), and to deficiencies with the heating and hot water system. The other Category 1 hazard was from hot surfaces and materials caused by the excessive temperature of the hot water provided to the flats. Excess heat, again due to the condition of the heating and hot water system in the plant room, substations and individual flats was identified as a Category 2 hazard.

The improvement notice contained a second schedule identifying action required to address the hazards which, if taken, would result in the notice being revoked under section 16 of the 2004 Act. To address the excess cold caused by corroded frames, broken window components and broken glazing, Manaquel was required to instal replica galvanised steel, double glazed Crittall windows, to match the existing windows as closely as possible. Works were also required in the plant room, substations, heating network and dwellings. The specified action mostly comprised works but included the provision of a programme of works and liaison with planning officers to approve the window replacement in advance. Lambeth required the works to begin by 24 November 2021 and to be completed within 15 months. Failure to comply with the notice would be a criminal offence, exposing Manaquel to the risk of civil penalties, rent repayment orders and other sanctions and disabilities.

Manaquel’s appeal to the FTT against the improvement notice was submitted only two weeks after the notice had been served. Amongst the points made in the grounds of appeal at that early stage were that some of the measures had already been attended to and that instructions for other items were “being urgently implemented”. Manaquel also challenged the validity of the notice on the basis that Lambeth had disregarded its intention to redevelop the Estate pursuant to a planning consent which was awaiting determination by Lambeth’s own planning committee. The application sought consent for the construction of additional flats on top of the existing blocks, the replacement of the existing windows, alterations to services, engineering works and the installation of new biomass boilers. It was said that all of the enforcement issues would be addressed once planning permission had been granted and that to carry out the works in the schedule prematurely would involve significant and unnecessary duplication and additional expenses for Manaquel and the leaseholders.

A period of almost 2 years elapsed between the service of the improvement notice on 20 October 2021 and the hearing of Manaquel’s appeal in October 2023. Documents prepared for the hearing included an “update tracker” dated 28 August 2023, which I have not been shown but which I understand to have been Manaquel’s record of works done since the service of the improvement notice.

In his skeleton argument for the FTT Mr Isaac KC pointed out that works undertaken following the service of the notice would have reduced the likelihood and severity of any harm arising from the excess heat hazard; details of those works were given, including the installation of thermostatic valves on radiators and adjustments or replacements of weather compensation valves for each block. As far as the hazard of hot surfaces and materials was concerned, it was accepted that excessively hot water temperature within the flats “potentially constitutes a hazard”, but this had been addressed by adjustments made by Manaquel’s heating contractor. As regards the excess cold hazard, Mr Isaac accepted that, where they existed, poorly fitting windows, broken components and broken glazing might cause an increase in draughts, but doubted the severity of the problem and criticised the notice for failing to identify which flats suffered from which faults.

At the hearing before the FTT Lambeth adduced evidence from Ms Ward of its Private Sector Housing Enforcement Team who explained that her team had received a number of complaints from residents of the Estate during the winter of 2020/21 about problems with heating. They had undertaken inspections between March and June 2021 leading to the service of the improvement notice in October that year. Ms Ward accepted during her evidence that Lambeth had not reinspected the Estate in the two years since the notice was served. She acknowledged there was no detailed record of the condition of the windows or other problems in any specific flat, and that notes of the inspections had not been kept.

As recorded by the FTT in its decision, it was put to Ms Ward by Mr Isaac KC that, for the purpose of the appeal, the relevant assessment date for the hazards was the day of the hearing, as it was a re-hearing. Ms Ward accepted that improvements had been carried out by Manaquel since the service of the notice and that it was possible that there was no longer an excess heat hazard.

Lambeth’s counsel, Mr Ham, does not appear to have dissented from Mr Isaac KC’s proposition that the relevant date of assessment was the date of the hearing. That presumably contributed to his decision not to ask the FTT to uphold the improvement notice in its entirety and his acceptance that there were reasonable grounds for varying it. He suggested that the hearing might be adjourned to enable an up to date schedule of work to be prepared if the FTT was not prepared to accept his submission that the notice should be interpreted flexibly and in a common-sense way (so that, for example, new double glazed windows installed in some of the flats before the notice was served were not required to be replaced).

On 17 November 2023, the FTT handed down its decision on the appeal, in which it quashed the improvement notice in its entirety. It had inspected the Estate and began its analysis by saying that it was clear, “and readily conceded by Manaquel”, that there was significant disrepair. It continued, at [69]:

“However, in this case we have major concerns about the contents of the Improvement Notice itself. It is clear that the Applicant has carried out certain works which the Respondent concedes have remedied some deficiencies and reduced the extent of certain other deficiencies, and the Respondent has not reinspected or carried out a recent reassessment of the hazards. The Respondent is therefore in difficulty when it comes to evidencing the current position and the extent to which remedial action still needs to be taken. The Respondent has now conceded that the Excess Heat hazard would appear to have been adequately dealt with, but it is not able to demonstrate the current position with the Excess Cold hazard (this being its main current focus) or the Hot Surfaces and Materials hazard.”

The FTT also criticised the improvement notice as not being specific enough. It said that Lambeth did not suggest that all of the windows needed to be replaced, but it was not clear which of them the remedial works were intended to apply to. Lambeth had also failed to demonstrate that its hazard scoring and schedule of works had a sufficient evidential base due to an absence of records, and it had conceded that there may no longer be an excess heat hazard in the common parts. The FTT concluded that it could not confirm an improvement notice which was “patently flawed”, and because of insufficient information it could not vary the notice so that it “fairly and specifically sets out the hazards that exist and the works that need to be carried out in order to alleviate those hazards.” It regarded it as “unsatisfactory that there is significant disrepair within the Estate which has not been attended to over a long period of time, and flat occupiers will have suffered as a result.”

Having secured the dismissal of the improvement notice Manaquel then made an application under rule 13(1)(b) of the FTT Rules for an order requiring Lambeth to pay its costs. It supported its application with a schedule showing that it had incurred costs of more than £145,000 in pursuing its appeal.