Walsall Metropolitan Borough Council v VR Investments Limited

On an appeal against an improvement notice under the Housing Act 2004, the FTT assesses whether the authority was entitled to serve the notice when it did. Later inspection evidence may help establish the earlier condition, but does not replace that relevant date. Special weight is due to an authority’s decision where it involves discretion or judgment; whether walls were damp was a primary fact for the FTT to determine. A category 1 hazard requires a risk of harm arising from a deficiency. The authority must identify the remedial work required. A category 2 hazard does not automatically require an improvement notice, and the FTT need not vary a notice where no party sought variation and the appropriate response was not established.

Walsall Metropolitan Borough Council served an improvement notice under the Housing Act 2004 on VR Investments Limited, which owned a flat affected by historic water ingress and mould. The notice treated damp and mould throughout the flat as a category 1 hazard and required the owner to obtain a damp specialist’s report and complete the work it recommended.

The First-tier Tribunal (Property Chamber) inspected the flat, found the surfaces dry, and quashed the notice. The Council appealed, arguing that the FTT used the wrong date, gave insufficient weight to its assessment, and should have varied the notice to refer to a category 2 hazard. The Tribunal considered whether the FTT had erred in its assessment of the notice and its remedy.

1. Appeal dismissed. A category 1 or category 2 hazard requires a risk of harm arising from a deficiency in the dwelling. The Council’s category 1 score assumed that the walls and ceilings were wet. The FTT found that they had been dry when the notice was served and was entitled to conclude that the category 1 notice was unjustified.

2. The relevant question was whether the Council’s decision was wrong when made, not whether the notice remained justified at the hearing. The Tribunal applied the approach in Hussain (Nasim) v Waltham Forest LBC ([2023] EWCA Civ 733), confirmed in Curd v Liverpool City Council ([2024] UKUT 218 (LC)) and reiterated in Manaquel Co Ltd v London Borough of Lambeth ([2025] UKUT 97 (LC)). Although the FTT’s initial questions used the present tense, its reasons showed that it assessed the condition of the flat on 6 June 2024. Later meter readings could not themselves establish the earlier condition, but the FTT could use them as evidence, particularly because no further work had been done after the notice. Its measurements were taken in the parties’ presence and put to the Council’s officer.

3. The special weight described in Hussain applies where the authority’s decision involves discretion or judgment. Whether the walls and ceilings were wet was a question of primary fact. The FTT could assess the evidence for itself, including the contractor’s photographs and letter. The letter’s lack of a signature, date and independent expert status affected its weight, not its admissibility before the FTT. The FTT was not required to accept the officer’s inference that retained moisture caused the mould.

4. The Tribunal also observed that the Housing Act 2004 places responsibility on the Council to identify the remedial work. A notice which leaves that work to a specialist chosen by the recipient risks disagreement and may make further enforcement impossible without a new notice. Referring to Curd, the Tribunal noted that requiring a recipient to investigate whether a hazard exists may also make a notice invalid. These observations did not determine the appeal.

5. The FTT did not err by quashing the notice rather than varying it. Neither party had requested a variation. In addition, action against a category 2 hazard is discretionary, the FTT had not found that such a hazard existed, and the appropriate remedial work might differ. The Council could reassess the property and decide what action to take. The Tribunal refused the Council’s request for reimbursement of its fees.

1. Upper Tribunal (Lands Chamber) — dismissed the Council’s appeal from the FTT’s decision and refused its request for reimbursement of Tribunal fees.
2. First-tier Tribunal (Property Chamber) — on 16 April 2025, quashed the Council’s improvement notice.