Bryan G Curd v Liverpool City Council

An improvement notice may be served only where the authority is satisfied that a category 2 hazard exists. The notice must identify the hazard, the deficiency causing it and the remedial action required. It cannot require the owner to investigate whether a hazard exists. Investigation or certification may be required to establish the extent of an identified hazard or to verify completed remedial work. On appeal, the tribunal has no wider power than the authority and must determine whether the authority’s decision was wrong when made, while respecting the authority’s statutory responsibility.

Liverpool City Council served an improvement notice under section 12 of the Housing Act 2004 concerning fire doors at a house in multiple occupation. The First-tier Tribunal allowed the appeal in part but varied the notice to require an independent fire risk assessment and compliance with its recommendations, because it could not determine whether the doors created a hazard.

The appellant challenged that approach. The Council conceded that the First-tier Tribunal had acted unlawfully, but sought reinstatement of the original notice. The central issues were whether an improvement notice could require investigation of the existence of a hazard, whether defective or merely uncertified components could be required to be replaced, and what order should follow.

1. Appeal allowed. The First-tier Tribunal’s decision was set aside. The improvement notice remained unconfirmed and therefore inoperative.
2. Under section 12 of the Housing Act 2004, an authority may serve an improvement notice only if satisfied that a category 2 hazard exists. Section 13 requires the notice to specify the nature of the hazard, the deficiency giving rise to it and the remedial action required. The First-tier Tribunal has no greater or different power on appeal.
3. An improvement notice cannot require an owner to commission testing to discover whether a hazard exists. Testing may be included where the authority is already satisfied that a hazard exists and the testing determines the extent of the deficiency or verifies that remedial work has successfully dealt with it.
4. The First-tier Tribunal had been unable to conclude that the fire doors created a hazard. Its finding that they might or might not pose a significant risk did not justify varying the notice to require further investigation and compliance with a third party’s recommendations. The lawful course on that evidence was to quash the notice, not to substitute an investigative requirement.
5. The appeal must be by way of rehearing, but the tribunal must assess whether the authority’s decision was wrong when made. It may consider matters existing at that date which were unknown to the authority, but not subsequent changes. This followed the approach explained in Hussain (Nasim) v Waltham Forest LBC [2023] EWCA Civ 733.
6. The Upper Tribunal declined to reinstate the original notice. The First-tier Tribunal had not systematically considered the appellant’s challenges, and the Council accepted that components which were not shown to be defective could not be required to be replaced merely because their certification was uncertain. Given the age of the notice and the passage of time, remittal would be disproportionate. The Council remained able to inspect the property, revoke the notice where appropriate, or serve a new notice.

• Upper Tribunal (Lands Chamber): Appeal allowed; the First-tier Tribunal’s decision was set aside and the improvement notice remained unconfirmed and inoperative.
• First-tier Tribunal (Property Chamber): The appeal against the Council’s improvement notice was allowed in part. The notice was varied to require an independent fire risk assessment and compliance with its recommendations.