Simon Fletcher & Anor v Portsmouth City Council

On an appeal against an improvement notice, the First-tier Tribunal must explain why the local housing authority was not wrong to choose that form of enforcement, particularly where the authority has substantially over-estimated the seriousness of the hazard. A rehearing does not permit the Tribunal to overlook the significance of an erroneous hazard assessment or the availability of a less intrusive enforcement measure. Where the hazard is low and an improvement notice carries potential criminal consequences, imposing that notice may be disproportionate. The Upper Tribunal may substitute its own decision, quash the notice and set aside consequential costs where the First-tier Tribunal’s reasoning is inadequate.

The appellants, owners of an HMO, appealed against a decision of the First-tier Tribunal (Property Chamber) varying an improvement notice served by Portsmouth City Council. The Council had assessed a fire hazard at score 770, requiring substantial internal alterations. The First-tier Tribunal found that the correct score was 39, making the hazard a lower category 2 hazard, and considered the required works excessive. It nevertheless varied the notice rather than quashing it. The central issue was whether, in light of the corrected assessment and the availability of a hazard awareness notice, the First-tier Tribunal had adequately explained why the Council was not wrong to serve an improvement notice.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside, the improvement notice was quashed, and the order requiring the appellants to pay £653 in costs was set aside.
2. Under paragraph 15(2) and (3) of Schedule 1 to the Housing Act 2004, an appeal is by way of rehearing and the Tribunal may confirm, quash or vary an improvement notice. The Tribunal must decide whether the local housing authority was wrong to serve it.
3. The Tribunal should give special weight to the authority’s views and should only find its decision wrong after according it that weight: Curd v Liverpool City Council [2024] UKUT 218 (LC). That approach does not relieve the Tribunal of the need to explain its conclusion.
4. The First-tier Tribunal had found that the Council’s score of 770 was fundamentally wrong and that the necessary works were excessive. The appellants’ resistance to those works did not explain why an improvement notice, rather than a hazard awareness notice, remained appropriate.
5. In those circumstances, the conclusion that the Council was not wrong to serve an improvement notice required careful explanation. The decision did not provide it. Given the low hazard score, the unusual nature of formal enforcement and the potential criminal consequences of non-compliance, an improvement notice was disproportionate.
6. The Upper Tribunal substituted its own decision. Some remedial work remained appropriate, but any further action by the Council would need to be proportionate.

• Upper Tribunal (Lands Chamber): allowed the appeal against the First-tier Tribunal’s decision, quashed the improvement notice and set aside the costs order.
• First-tier Tribunal (Property Chamber): varied the improvement notice and ordered the appellants to pay £653 in administration costs.