The Upper Tribunal (UT) recently set aside a decision of the First-tier Tribunal (FTT) upholding prohibition orders in respect of 15 flats, finding that the FTT had erred in accepting the local authority’s calculation of the risk posed by the lack of space in the flats under the Housing Health and Safety Rating System (HHSRS).
The building in which the flats were situated had formerly been a three-storey office with a shop front before being converted into 15 self-contained flats, which were used to accommodate homeless people. Each of the flats comprised a single room for living, cooking and sleeping, and a small toilet and shower room. As the flats complied with building regulations, the building was not a house in multiple occupation (HMO).
The local authority inspected the property and a housing officer carried out an HHSRS assessment. Prohibition orders were issued in respect of all 15 flats, listing crowding and space as a hazard and requiring that the premises not be used for human habitation. The orders specified that the required remedial action was to reconfigure the property to provide a larger floor space for living, cooking and sleeping. The owner of the building appealed to the FTT.
The housing officer’s opinion was that the flats did not provide sufficient space to adequately separate different household activities, to store personal possessions or to safely arrange furniture. She had calculated that the level of risk posed by the lack of space put the hazard in Band D, making it a Category 2 hazard. The FTT accepted the local authority’s arguments on the applicable statutory regime and the calculation of the seriousness of the hazard under the HHSRS, and upheld the prohibition orders.
The owner made a further appeal to the UT on the grounds that the FTT had been wrong to give no weight to HMO size standards and to accept the local authority’s calculation of the hazard level.
The owner argued that while the building was not an HMO, the size standards applicable to HMOs were relevant considerations. The UT considered that the FTT’s decision about the relevant standards exhibited some confusion. However, while in principle HMO standards were relevant, the FTT had not been shown enough information to be able to take them into consideration, and its decision could not be faulted on that basis.
The FTT had not analysed the housing officer’s calculation of the hazard level but had accepted it as her professional judgment in the absence of any competing figure from the owner’s expert witness, who had not carried out a calculation because he thought there was no crowding and space hazard. Noting that the FTT was required to reach its own decision rather than reviewing the local authority’s decision, the UT failed to see how the FTT could have relied on the housing officer’s calculation. Equally, the FTT’s rejection of the evidence of the owner’s expert witness that the size of the units was not a hazard was unexplained. Those were serious errors and the decision to uphold the prohibition orders had to be set aside. It was not possible for the UT to substitute its own judgment, and the matter was remitted for reconsideration by a differently constituted FTT.
