Peter Phits Banfield v Swale Borough Council

This is an appeal from the decision of the First-tier Tribunal in the appellant’s appeal from a financial penalty imposed upon him by the respondent, the Swale Borough Council, for failure to comply with an improvement notice. It has been decided under the Tribunal’s written representations procedure.

Part 1 of the Housing Act 2004 is concerned with the responsibility of local housing authorities for health and safety in rented properties. It introduced a system of classification of hazards; it requires the authority to take enforcement action when Category 1 hazards are found to be present in a property, and enables it to do so when Category 2 (less serious) hazards are present. A range of enforcement actions is available; one of them is an improvement notice (sections 11 to 19 of the 2004 Act), which requires specified action to be taken within a specified time. Failure to comply with an improvement notice, without a reasonable excuse, is an offence (section 30); a local housing authority may prosecute an offender, but alternatively may impose a financial penalty of up to £30,000 (section 249A).

A person on whom an improvement notice is served can appeal against it to the FTT (paragraph 10 of Schedule 1 to the 2004 Act), as can a person upon whom a financial penalty is imposed (paragraph 10 of Schedule 13A to the 2004 Act).

88 Sheppey Road, Sheerness, Kent ME12 is a first floor two-bedroom flat. The appellant, Mr Banfield, holds a long lease of the flat (with 54 years remaining); in June 2019 it was let on an assured shorthold tenancy to Mr Merham Mutishev and his partner.

On 1 March 2023 one of the respondent’s housing officers visited and inspected the flat. On 10 March 2023 the respondent issued an improvement notice which identified one Category 1 hazard (excess cold: space heating not effective, and a number of broken or faulty windows) and six Category 2 hazards including damp and mould (with no extractor fan in the kitchen or bathroom), a defective lock on the front door, a shower not working properly, an intermittent hot water supply to the bath tub, a defective handrail on the stairs, electrical hazards, and fire hazards (no smoke alarm). The notice set out the work required to be done, including upgrading the heating system, wiping down mould and installing extractor fans, repairing or replacing a door and windows, repairing or renewing the shower. getting an electrical inspection and report, installing a smoke alarm and arranging for a Fire Risk Assessment. The work was to be commenced no later than 12 April 2023 and to be completed by 25 May 2023.

On 27 and 28 March 2023 the appellant emailed the respondent, and then the FTT, saying he was appealing against the notice. On 5 May 2023 the FTT replied to the appellant asking him to complete an application form. Nothing further happened in the appeal process.

The respondent carried out a further inspection in June and found that almost none of the work had been done. The housing officer had a number of conversations with the respondent. He said was that he was appealing the improvement notice; it was explained to him that his appeal was not valid. He also said that he had served a section 21 notice requiring the tenants to leave and would therefore not be doing any more of the required work; he was going to renovate the property once it was vacant and then sell it.

On 18 September 2023 the respondent issued a Notice of Intent to impose a Financial Penalty of £6,000 for failure to comply with the improvement notice. After another inspection, a final notice was sent on 14 November 2023 imposing a penalty of £4,800 because some of the work had been done, and offering a reduction to £3,600 if the penalty was paid within 21 days.

The appellant then appealed to the FTT against the financial penalty.

The appellant has acted without legal advice and his written statements to the FTT were not formal documents. He said that some of the work required had been done, including the electrical work, but that he accepted that some had not been done. He said this was largely because of the tenants’ refusal to co-operate and to grant access to his contractors – he paid for a number of visits but eventually the builders refused to return. He could not install an extractor fan because the terms of his lease prevented him from piercing the wall of the flat, and he provided a letter from the freeholder confirming this. He said that the heating system was working but that the tenants refused to use it and had purchased their own heaters to use instead. The heating was an Economy 7 night storage system and he believed that the tenants did not know how to operate it. In summary, he said he had done everything he could to comply with the Improvement Notice and should not be penalised.

The FTT conducted a hearing and heard evidence from the appellant and from two housing officers. In its decision it set out the appellant’s evidence, given at the hearing, that he had had complaints from neighbours about his tenants’ anti-social behaviour. He had never had any complaints before March 2023. He thought he had appealed the improvement notice; he thought he did not have to comply because he was seeking possession of the property, but on being told by the housing officer that he still had to do the required work he arranged for some repairs to be done. He could not do everything because the tenants would not let the builders in. As to the shower, it had been new in 2019, but the water pressure was sometimes low. He had fitted a new smoke alarm as required.

For the respondent the housing officer set out details of the various hazards, and gave evidence that three of the four storage heaters in the flat were not working. He stated that by the time of his latest inspection a smoke alarm had been installed but no Fire Risk Assessment had been carried out, the electrical problems had been resolved, mouldy areas had been cleaned, but the front door had not been fully replaced, no extractor fans had been fitted, no new heating system had been installed and the shower had not been replaced. He explained how the original proposed penalty of £6,000 was calculated, on the basis of “Medium Culpability” (because the landlord was aware of the specific risks to the their tenants and, although they did not intend to cause harm had failed to comply in a reasonable manner) and “Level 2 Harm” (because the property contained multiple hazards which posed significant risk to the health and safety of the occupants). He explained that it had been reduced by 20% to £4,800 because of partial compliance and because of the lack of co-operation from the tenants.

The FTT found that the appellant had done some of the required work. It said:

“93.

The completed works were as follows:

i)

Damp and mould to kitchen/living room – cleaned and redecorated ii) Door lock replaced iii) Handrail completely rebuilt iv) EICR obtained. v) Electrical ‘tripping’ problem resolved. vi) Smoke alarm provided.

94.

Some works were completed outside the set timescales; others (regarding the heating, shower, window and door replacements, the fire risk assessment and better ventilation) were not dealt with at all. The Tribunal did not accept that the reason for the storage heaters being assessed as ‘not working’ was because the tenants and/or Mr. Nyunt did not know how to work them.

Accordingly the FTT found that the appellant had committed the offence of failing to comply with the improvement notice. It did not accept that he had the defence of reasonable excuse:

“99.

The Tribunal found that Mr. Banfield’s confusion over the Section 21 Notice did not of itself amount to a ‘reasonable excuse’ for not complying with the Improvement Notice. Besides, he had always expressed a reluctance to review the heating system throughout the relevant period, despite evidence that – whether or not the system was adequate – several of the heaters were not working at all. In addition he had apparently made no attempt to arrange for a full Fire Risk Assessment.

100.

In the circumstances of this case the Tribunal found that Mr. Banfield did not have a statutory defence to the allegation. However, there were some mitigating factors (see below).”

Turning to mitigation, the FTT said that it took account of the following factors:

The FTT found that the 20% reduction applied by the respondent was insufficient. It found that the appropriate penalty range within the respondent’s enforcement policy was from £2,000 to £7,999; in light pf the mitigation it imposed a penalty of £3,000.

The appellant’s case in the FTT was that he had not done anything wrong, and that insofar as work had not been done that was due to the various obstacles in his way, in particular the non-co-operation of the tenants. He appeals, with permission from this Tribunal, on the basis that it is arguable that the FTT failed to explain why he did not have a reasonable excuse on the grounds of the tenants’ refusal to give access, the evidence that the heating was not working because the tenants were not operating it correctly, the fact that he was not permitted, under the terms of his lease, to install an extractor fan, and that he was not responsible for low water pressure which caused the shower not to function.

I agree with the appellant that the FTT’s discussion, in its decision, of the possibility of a defence of reasonable excuse was very brief and did not mention the many problems of which the appellant gave evidence; on the other hand, the FTT accepted the existence of so many mitigating factors that one might reasonably wonder why they did not amount to a complete defence. The FTT’s finding about the heating system, on the other hand, was very brief, and does not say why the appellant’s evidence was not accepted.

However, on reading the appeal bundle and in particular the evidence given to the FTT from the housing officer I have concluded that the FTT’s decision was inevitably correct on the basis of the evidence before it. In particular, the evidence about the heating system and about the shower, and about the tenants’ refusal of access, is such that the FTT’s conclusion was inevitable, and readily comprehensible to the parties themselves. There would be no point in setting aside its decision and remitting the matter to the FTT for it to provide further explanation.

As to the heating system, the appellant says that this was an “Economy 7” system; it does not produce heat immediately when switched on. Mr Nyunt, the housing officer who gave evidence and who has also made written representations for the respondent in the appeal, is a Chartered Environmental Health Practitioner with many years’ experience of Housing Health and Safety Rating System assessments. The FTT had his evidence that the heating was not working – and indeed his photographs which show them to be in a poor state. In his written representations Mr Nyunt confirmed that he is trained in the operation of Economy 7 storage heaters and the system was indeed defective at the time of his inspection. In view of that, it is unsurprising that the FTT accepted his evidence.

As to the shower, Mr Nyunt’s evidence was that it was “non-functional”. This is not simply a problem of water pressure but, again, an experienced housing officer’s evidence that it did not work. No evidence has been given to explain why the appellant has not had it replaced, except for his disagreement with the FTT’s assessment.

Finally, it was accepted by the FTT that the tenants refused access. It is difficult to see from the decision what the builders were supposed to be doing on the visits when they were not allowed in; but in his grounds of appeal the appellant has explained that the builders were there to replace windows. They were not there, for example, to install heating or a new shower.

Essentially, too much of the non-compliance with the improvement notice is unexplained by the problems the appellant faced in getting the work done. He did not accept what the FTT found about the heating and the shower and that seems to be the reason why he did not replace them. The heating was the cause, along with the windows, of the Category 1 hazard. Moreover no Fire Risk Assessment had been done.

The FTT’s conclusion about the defence of reasonable excuse was entirely explicable on the basis of the evidence before it. In my judgment the FTT’s decision could have been better explained, but the parties did have the information they needed to understand the FTT’s reasoning and it would be wrong to set the decision aside. The FTT’s decision to reduce the penalty substantially on the basis of the mitigation was likewise an appropriate response to the evidence. The appeal fails.