An Interesting Case Surrounding the Use of Improvement Notices

In this post we will look at an interesting recent tribunal case surrounding the use of improvement notices. We will look at what useful lessons this case might offer to landlords and others who are involved with improvement notices.

What are improvement notices exactly?

Improvement notices are an enforcement action available to local authorities under Part 1 of the Housing Act 2004. They originate from the use of the Housing Health and Safety Rating System or HHSRS to identify hazards in a property. In the case of category 1 hazards the local authority must take action, but in the case of category 2 hazards they have discretion on whether to act.

Improvement notices are just one of the measures a local authority can use when hazards are identified. As with other measures the law specifies in great detail when they may be used, what format they must take, how they must describe the hazard and the remedial action needed. It is a criminal offence for a landlord to ignore these notices. They also have the right to appeal them to the First-tier Tribunal.

The Curd & Liverpool City Council Case

Mr. Bryan Curd is the joint landlord of an HMO in Wavertree, Liverpool. (Very relevant to the case is that he is also a chartered surveyor.) The HMO had been licensed since at least 2010. Conditions in HMO licences issued in 2013 and 2016 included that the property’s fire doors should comply with a standard known as FD30 or FD30s.

Before granting a further licence in 2021 Liverpool City Council conducted an inspection. They identified what they considered to be defects with seven fire doors at the property which would constitute a category 2 HHSRS hazard relating to fire. The Council instructed that these should be fully addressed without specifying the remedial action. The landlord carried out what he considered to be the necessary work and supplied details to the Council.

Following a further inspection, which also involved a specialist fire door inspector, the Council compiled a more thorough report covering claimed defects and ‘areas of uncertainty’. This was not presented to the landlord at the time, and neither was the HHSRS assessment. (The later appeal suggested it perhaps should have been.) Subsequently in June 2021 the Council issued an improvement notice under section 12 of the Housing Act requiring remedial works to the fire doors. This required the work to be done by December 2021.

What happened at the First-tier Tribunal

Mr. Curd subsequently appealed the issue of the improvement notice to the First-tier Tribunal (Property Chamber) or FTT. (This happened at the same time as other appeals relating to the landlord’s properties, which may have served to make this appeal more lengthy than it might otherwise have been.)

Issues raised at the appeal included the certification status of the fire doors and the defects it was claimed they had. The landlord contended that the doors complied with the required standards for that property. He said that many of the issues which the Council had identified either did not require remedial work at all or could be addressed with minor attention or were routine maintenance. These might have been better addressed with informal advice or with a hazard awareness notice. It was not clear whether a hazard existed at all.

Before reaching a decision the FTT inspected the property together with the parties involved. They issued their decision in March 2023.

The FTT decided that issue of an improvement notice rather than a hazard awareness notice had been appropriate. They considered whether the fire doors met the appropriate safety standard, and whether a hazard existed, but this process proved to be inconclusive.

In their decision the FTT allowed the appeal and decided to resolve the situation by varying the improvement notice. Very significantly they said Mr. Curd should: ‘Obtain a report from an independent, suitably qualified fire risk assessor as to fire safety provision within the building with particular reference to the internal doors and thereafter act appropriately upon the findings.’ They also varied the date for completion of remedial work to 31 July 2023.

Subsequently Mr. Curd applied for permission to appeal the decision to the Upper Tribunal (Lands Chamber), which was granted. The appeal surrounded the suitability of the fire doors as well as the use of the improvement notice. In the meantime Mr. Curd had obtained a report from an independent assessor who stated all the fire doors were FD30 fire doors and ‘functioned as required’.

What happened at the Upper Tribunal

At the appeal to the Upper Tribunal Mr. Curd, who represented himself, provided evidence that the fire doors met the Certifire standard in 2000. (It transpired that the Council’s inspector had followed a different standard at their inspection, the relevant British Standard. This may have given rise to the original disagreement between the parties over their suitability.)

At this appeal the Council did not seek to uphold the earlier reasoning of the FTT and conceded that its approach had been wrong in law.

The Upper Tribunal looked at the powers that exist in law to issue an improvement notice. They considered that local authorities could only do this for a category 2 hazard if they are satisfied a hazard exists. They considered the requirement to specify the nature of the hazard and specify the remedial action needed. They said it was clear that neither the local authority nor the FTT could have confirmed an improvement notice which required the landlord to take steps or carry out tests to ascertain whether a hazard existed in the first place. It said this could only be required after hazards had been identified.

The Tribunal pointed out that the FTT had been unable to reach a conclusive decision on whether the fire doors presented a hazard or not. It said that the FTT could have ‘quashed’ the improvement notice because of this. It said that they could not vary it by requiring an independent inspection as they had done.

The Tribunal considered a recent (2023) case in the Court of Appeal known as Hussain (Nasim) v Waltham Forest LBC. This had provided some guidance on how the FTT itself should conduct its business.

The Tribunal drew attention to the time period this case involved and the fact that work to the doors had been carried out since the original inspection. It considered whether the matter should be reconsidered by the FTT. However it said that this now made the case ‘almost entirely academic’, and further time and money spent investigating it would be disproportionate.

On 30 July 2024 Martin Rodger KC, Deputy Chamber President, issued the Upper Tribunal’s decision. In his decision he said: ‘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.’ And he added: ‘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.’

In short the appeal was allowed and the improvement notice was effectively extinguished by way of rendering it inoperative.

Summary

What might we learn from this case?

Improvement notices seem simple in the scheme of things. They appear to be an order to carry out improvements. But they are a lot more complex than they might appear, and can lead both local authorities and landlords into some very complex deliberations. The way they work, or are supposed to, is not always clear not only to landlords but to housing enforcement. This case has certainly provided all parties with some further insight into this type of enforcement action.

This case raises a number of issues: These include what actually is a hazard, when improvement notices can be used and/or are appropriate, what they should contain, what they can require, how they can be satisfied and how they can be varied. It also raised some issues on how the First-tier Tribunal should consider appeals.

It is really relevant that the landlord in this case is a chartered surveyor. So, likely much more knowledgeable about buildings and construction than the average landlord is. He appears to be a diligent landlord with high regard for fire safety. He also most likely had a greater professional interest in ensuring these issues were properly determined – far in excess of what the average landlord would probably have.

Possibly another landlord with less or no specialist knowledge would have taken the improvement notice at its immediate face value. Potentially they could have faced serious consequences had they not complied with it or appealed it.

Although there are potentially many implications of this case there are a few straightforward learnings landlords might benefit from: Firstly any work that is undertaken on a property, especially one subject to licensing, should be carefully documented for possible future use. Secondly, they should always seek to understand any enforcement actions they are subject to and question the validity of them where necessary. Thirdly, and this is closely linked to the second point, they should not hesitate to take expert advice on issues such as these should they require it.

The decision of the Upper Tribunal can be read in full here.