Investview Limited v Tandridge District Council

When assessing a crowding and space hazard under the Housing Health and Safety Rating System, standards not directly applicable to the accommodation may nevertheless be relevant by analogy. The Nationally Described Space Standards and local HMO standards can provide useful comparative evidence, although neither determines the result for self-contained flats outside the HMO regime. An HHSRS assessment must be based on rationally explained professional judgment. The assessor must explain the basis for the likelihood and class of harm figures used in the calculation. A tribunal conducting a rehearing must reach its own decision and explain why it accepts or rejects material expert evidence.

Investview Limited owned 15 self-contained flats converted from former offices. Tandridge District Council served prohibition orders under the Housing Act 2004, identifying category 2 hazards including crowding and space. The First-tier Tribunal upheld the orders, relying on the council officer’s HHSRS assessment.

Investview appealed on two grounds: whether the First-tier Tribunal wrongly disregarded HMO space standards as an analogy, and whether it was entitled to accept the council’s calculation of the likelihood and seriousness of harm. The Upper Tribunal also considered whether the First-tier Tribunal had adequately explained its treatment of the competing expert evidence.

1. The appeal was allowed. The First-tier Tribunal’s decision was set aside and the matter was remitted to a differently constituted panel for a fresh decision.
2. The First-tier Tribunal was wrong to suggest that the Decent Homes standards had been superseded by the Nationally Described Space Standards. The Decent Homes Standard concerns social landlords and category 1 hazards. The Nationally Described Space Standards were relevant only by analogy in this case, and the council was not requiring compliance with them.
3. Local HMO standards were also relevant by analogy, even though the flats were not HMOs. The fact that the flats exceeded some HMO standards was relevant alongside the fact that they fell below the Nationally Described Space Standards. However, the appeal could not succeed on that ground because the appellant had not provided the First-tier Tribunal with sufficient information about the local standards.
4. The HHSRS score depended materially on the likelihood of harm and the spread of harm between classes I to IV. Professional judgment must be a rational outcome of considered material and experience. It is not sufficient to describe an unexplained figure as professional judgment. The council officer could not justify the likelihood figure of 1 in 180 or explain why the national spread of harm had been adopted.
5. The First-tier Tribunal was required to reach its own decision rather than merely review the council’s decision. Its acceptance of the HHSRS calculation was unexplained and appeared irrational. Its rejection of the appellant’s expert evidence that there was no crowding and space hazard was also unexplained. Those were serious errors.
6. The Upper Tribunal could not substitute its own judgment. The First-tier Tribunal was likely to need to consider the other hazards identified in the prohibition orders.

• Upper Tribunal (Lands Chamber): The First-tier Tribunal’s decision upholding 15 prohibition orders was set aside. The matter was remitted to a differently constituted panel for rehearing.
• First-tier Tribunal (Property Chamber): The prohibition orders were upheld.