Under Section 71(3) of the Solicitors Act 1974 , where a trustee, executor or administrator is...
The Upper Tribunal (UT) has set aside a decision of the First-tier Tribunal (FTT) which upheld prohibition orders affecting 15 self-contained flats, finding that the FTT had erred in relying uncritically on a local authority’s assessment of risk under the Housing Health and Safety Rating System (HHSRS).
The ruling provides important guidance for property owners and local authorities on how crowding and space hazards must be assessed and the proper role of tribunals when reviewing enforcement action.
Background to the Case
The property comprised a former three-storey office building with a shop front that had been converted into 15 self-contained flats, used to accommodate homeless individuals. Each flat consisted of:
- a single room for living, cooking and sleeping; and
- a small toilet and shower room.
The conversion complied with building regulations, and the property was therefore not a house in multiple occupation (HMO).
Following an inspection, the local authority carried out an assessment under the HHSRS. A housing officer identified crowding and lack of space as a hazard and issued prohibition orders in respect of all 15 flats, requiring that the premises not be used for human habitation unless reconfigured to provide larger living areas.
The property owner appealed to the FTT.
FTT Decision
The housing officer assessed the lack of space as posing a Band D risk, categorising it as a Category 2 hazard under the HHSRS. The FTT accepted the local authority’s interpretation of the statutory framework and its calculation of risk, and upheld the prohibition orders.
The FTT placed no weight on HMO size standards, accepting the local authority’s position that they were irrelevant because the property was not an HMO.
Appeal to the Upper Tribunal
The owner appealed to the UT, arguing that the FTT had:
- wrongly dismissed the relevance of HMO size standards; and
- erred in accepting the housing officer’s calculation of hazard severity without independent analysis.
HMO Size Standards
The UT found that, while the property was not an HMO, HMO size standards could in principle be relevant considerations when assessing space and crowding under the HHSRS.
Although the UT considered the FTT’s reasoning on this point to be confused, it concluded that the FTT had not been provided with sufficient evidence to apply those standards meaningfully. As a result, the FTT’s decision could not be overturned on this ground alone.
Failure to Assess Risk Evidence Properly
However, the UT was critical of the FTT’s approach to the risk calculation itself.
The FTT had:
- accepted the housing officer’s calculation as professional judgment without analysing it; and
- rejected the evidence of the owner’s expert witness, who considered that there was no crowding and space hazard, without providing clear reasons.
The UT emphasised that the FTT’s role is to reach its own decision, not simply to review or defer to the local authority’s assessment. It found it unclear how the FTT could properly rely on the housing officer’s calculation while dismissing the owner’s expert evidence without explanation.
These were described as serious errors of law.
Outcome
The UT set aside the FTT’s decision upholding the prohibition orders. As it was not possible for the UT to substitute its own findings of fact, the matter was remitted for reconsideration by a differently constituted FTT.
Q&A: Housing Enforcement and HHSRS Assessments
What is the HHSRS?
The Housing Health and Safety Rating System is a statutory framework used by local authorities to assess health and safety risks in residential properties.
What is a prohibition order?
A prohibition order prevents a property from being used for human habitation where serious hazards are identified.
Do HMO size standards apply to non-HMOs?
Not directly, but this case confirms they may be relevant considerations when assessing space and crowding risks.
Can tribunals rely solely on local authority assessments?
No. Tribunals must independently assess the evidence and explain why they accept or reject expert opinions.
What does this decision mean for landlords?
It reinforces the importance of challenging enforcement action where risk assessments are unsupported or inadequately analysed.
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