Improvement Notice Appeals Assessed on Facts When Notice Served

The Court of Appeal has confirmed that, when ruling on an appeal against an improvement notice served under Part 1 of the Housing Act 2004, the First-tier Tribunal (FTT) should consider how matters were at the date of service, rather than at the date of the hearing.

A company that owned eight Grade II-listed blocks containing 96 flats had been served with an improvement notice by the local housing authority. The company appealed to the First-tier Tribunal (FTT). At the hearing of the appeal, both parties proceeded on the basis that the FTT should assess the validity of the notice as at the date of the hearing. The FTT observed that the housing authority had not reinspected or carried out a reassessment of the hazards identified, a number of which had been remedied or reduced since the notice was served. The notice was quashed in its entirety.

The company then applied under Rule 13(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 for an order requiring the housing authority to pay its costs. Dismissing the application, the FTT criticised the housing authority's conduct of the appeal but concluded that it had not acted unreasonably. The company appealed to the UT.

The UT noted the Court's earlier decision in Waltham London Borough Council v Hussain and Others that the FTT's task in considering an appeal against a licensing decision under Part 3 of the Act was to determine whether the decision was wrong on the date it was made. The UT found that the same test applied to appeals against improvement notices under Part 1. The question for the FTT should have been whether the housing authority was wrong to serve the notice it did, when it did. The works the company had carried out since then were irrelevant.

The FTT had failed to answer the question of whether there was a reasonable explanation for the housing authority's conduct. However, it was implicit in the Rules that there is no injustice in each party bearing its own costs. Despite the flaws in the FTT's reasoning, the UT found that the appeal could be disposed of fairly by refusing to set aside the decision not to make an order for costs.

Ruling on the company's further appeal, the Court of Appeal found that the UT had been right to conclude that Hussain was determinative of the date issue. The purpose of Parts 1-4 was to confer a wide range of statutory powers on local housing authorities with a view to improving the standard of residential accommodation in their area. Parliament had deliberately chosen to delineate the nature and powers of the FTT, when hearing appeals against a whole variety of decisions by local housing authorities, in materially identical terms. It was quite impossible to suppose that Parliament had intended the same words to be interpreted differently for some appeals than for others.

One of the reasons why the UT had refused to set aside the FTT's decision on costs was that, once the date issue had been resolved correctly, it could be seen that few of the company's criticisms of the housing authority had been justified. The fact that the housing authority had not appealed the decision to quash the improvement notice would not prevent it from relying on the date issue if the question of costs were remitted to the FTT: the issue was not whether the notice should have been quashed or which party had been successful, but whether the housing authority had acted unreasonably. The appeal was dismissed.