United Kingdom Upper Tribunal (Lands Chamber)

UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2015] UKUT 0489 (LC)

UT Case Number: HA/27/2014

 

                         TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

HOUSING – Houses in multiple occupation – s90 Housing Act 2004 – local housing authority’s powers to impose conditions upon the grant of a license in respect of houses within a selective licensing area – nature and extent of conditions which can be imposed

 

IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE FIRST TIER TRIBUNAL (PROPERTY CHAMBER)

 

 

BETWEEN                        HYNDBURN BOROUGH COUNCIL                        Appellant

 

 

                                                                           and

 

                                                             (1) PAUL BROWN                                   Respondents

    (2) JOHN BARRON                                         

 

 

                                                           Re: 112 Dowry Street,

Accrington,

Lancashire

BB5 1AW

And

144 Avenue Parade,

Accrington,

Lancashire BB5 6QB

 

His Honour Judge Nigel Gerald

                                                                             

Sitting at: Royal Courts of Justice, Strand, London WC2A 2LL

on

2 September 2015

 

Matthew Paul, counsel for the Appellant

Jonathan Manning, counsel for the Respondents

© CROWN COPYRIGHT 2015

 

The following cases are referred to in this decision:

 

Hope and Glory Public House Limited, R v City of Westminster Magistrates Court & Others [2011] EWCA Civ 31.

Clark v Manchester CC [2015] UKUT 129 (LC)

 

 

 

DECISION

Introduction

1.             The appellant local authority appeals against two decisions of the First-tier Tribunal Property Chamber (Residential Property) (“F-tT”) in relation to the amendment and removal of two conditions imposed in licences granted by the appellant on 13 January 2014 under Part 3 of the Housing Act 2004 under a selective licence scheme which had been established under that Part of that Act, permission to appeal having been granted on 28 August 2014 by the F-tT.

2.             The background can be shortly stated.  The first respondent, Paul Brown, is the landlord of 112 Dowry Street, Accrington BB5 1AW, a two-bedroom mid-terrace house with lounge, dining room, kitchen, two bedrooms and a fitted bathroom.  The second respondent, John Barron, is the landlord of 144 Avenue Parade, Accrington, BB5 6QB, a two-bedroom house with kitchen, dining room, lounge and a bathroom.  Both properties are situated within a selective licensing area so designated by the appellant under section 80 of the 2004 Act.

3.             Where a house is situated within a selective licensing area a licence authorising occupation of the house must first be applied for and granted by the relevant local housing authority before it can be occupied save in respect of certain properties which do not apply to this case: see section 85 of the 2004 Act.  It was within that statutory context that the respondents applied for and were granted licences in respect of their respective properties on 13 January 2014. 

4.             When granting licences the local housing authority may impose such conditions as it considers appropriate for “regulating the management, use or occupation of the house concerned”, in addition to certain mandatory conditions which must be imposed, pursuant to section 90 of the 2004 Act.  In respect of both properties the appellant imposed twenty conditions, five mandatory and fifteen discretionary.  For the purposes of this appeal only two discretionary conditions are in issue.

5.             The first is condition 6 relating to the provision and maintenance of a carbon monoxide detector.  In point of fact both properties satisfied that condition in that both had suitable carbon monoxide detectors installed, but only the first respondent, not the second, appealed against the imposition of that condition to the F-tT. He was partially successful in that it was substituted by a new, modified condition by the F-tT and it is that decision which the appellant appeals against.

6.             The second is condition 8, again common to both properties, relating to the provision of a valid electrical report and implementation of any recommendations.  As with condition 6, it appears that both properties had the benefit of such a report, but, nonetheless, both respondents appealed to the F-tT for its removal in respect of which both were successful.  The appellant appeals against the removal of that condition and seeks its reinstatement.

The legislative framework

7.             The 2004 Act creates a new system for assessing housing conditions and standards as well as regulating houses in multiple occupation and those within a selective housing area amongst other things. 

8.             Part 1 is concerned with assessing housing conditions and enforcing housing standards.  In broad terms, local housing authorities are under a duty to keep housing conditions in their area under review with a view to identifying any action that may need to be taken in relation to certain hazards on residential premises identified under Part 1 of the Act, the licensing of houses in multiple occupation under Part 2 of the Act and the selective licensing of other houses in their area under Part 3 of the Act as well as various other matters which are not material for these purposes. 

9.             Where an area is or is likely to become an area of low housing demand or is experiencing significant and persistent problems with anti-social behaviour, the local housing authority may in certain circumstances designate that area as being subject to selective licensing under Part 3 of the Act.  Where that happens properties may only be let out if the local housing authority has granted a licence to the landlord in respect of which it may, and in certain limited circumstances must, impose conditions regulating its management, use or occupation.  Both properties fall within these provisions.

10.         The power and duty to impose conditions is contained in section 90 of the 2004 Act, entitled “Licence conditions”, which provides as follows:

“(1)    A licence may include such conditions as the local authority consider appropriate for regulating the management, use or occupation of the house concerned.

“(2)    Those conditions may, in particular, include (so far as appropriate in the circumstances) –

(a)    conditions imposing restrictions or prohibitions on the use or occupation of particular parts of the house by persons occupying it;

(b)   conditions requiring the taking of reasonable and practical steps to prevent or reduce anti-social behaviour by persons occupying or visiting the house.

“(3)    A licence may also include –

(a)    conditions requiring facilities and equipment to be made available in the house for the purpose of meeting standards described for the purposes of this section by regulations made by the appropriate national authority;

(b)   conditions requiring such facilities and equipment to be kept in repair and proper working order;

(c)    conditions requiring, in the case of any works needed in order for any such facilities or equipment to be made available or meet any such demands, that the works are carried out within such period or periods as may be specified in, or determined under, the licence.

 “(4)  A licence must include the conditions acquired by Schedule 4. 

“(5)    As regards the relationship between the authority’s power to impose conditions under this section and functions exercisable by them under or for the purposes of Part 1 (“Part 1 functions”)-

(a)    the authority must proceed on the basis that in general, they should seek to identify, remove or reduce category 1 or category 2 hazards in the house by the exercise of Part 1 functions and not by means of licence conditions;

(b)   this does not, however, prevent the authority from imposing (in accordance with subsection (3)) licence conditions relating to the insulation or maintenance of facilities or equipment within subsection (3(a)) above.  Even if the same result could be achieved by the exercise of Part 1 functions;

(c)    the fact that licence conditions are imposed for a particular purpose that could be achieved by the exercise of Part 1 functions does not affect the way in which Part 1 functions can be subsequently exercised by the authority.

“(6)    A licence may not include conditions imposing restrictions or obligations on a particular person other than the licence holder unless that person has consented to the imposition of the restrictions or obligations.

“(7)    A licence may not include restrictions requiring (or intended to secure) any alteration in the terms of any tenancy or licence under which any person occupies the house.”

11.         It is common ground that no regulations have been made by any appropriate national authority under section 90(3) so that there were no conditions requiring facilities and equipment to be made available thereunder.  It is also common ground that the first five conditions imposed by the licences granted by the appellant complied with the mandatory condition requirements set out in Schedule 4 pursuant to section 90(4) of the Act.

12.         Much of the substantive argument centred upon section 90(5) and the extent to which, if at all, the two conditions in issue impinged upon or replicated the local housing authority’s Part 1 functions, specifically its so-called duties in relation to category 1 and 2 hazards. It is therefore appropriate to refer to the material provisions relating to the local authority’s Part 1 functions.

13.         Section 3 of the Act imposes a general duty upon a local housing authority to review housing conditions in its districts. Its material parts are as follows:

“(1)    A local housing authority must keep the housing conditions in their area under review within a view to identifying any action that may need to be taken by them under any of the provisions mentioned in subsection (2).

“(2)    The provisions are:

(a)    the following provisions of this Act-

(i)                 this Part,

(ii)               Part 2 (licensing of HMOs)

(iii)             Part 3 (selective licensing of other houses), and

(iv)             Chapters 1 and 2 of Part 4 (management orders)…”

14.         Section 4 sets out the circumstances in which a local housing authority must arrange for a house to be inspected. It provides that:

“(1)    If a local housing authority consider-

(a)    as a result of any matters of which they have become aware in carrying out their duty under section 3, or

(b)   for any other reason,

“that it would be appropriate for any residential premises in their district to be inspected with a view to determining whether any category 1 or 2 hazard exists on those premises, the authority must arrange for such an inspection tom be carried out.”

15.         Section 5 goes on to provide that if a category 1 hazard exists on any residential premises, the local housing authority is under a duty to take appropriate enforcement action – ranging from serving an enforcement notice to making a prohibition order, serving a hazard awareness notice or taking emergency remedial action. That is to be contrasted with the existence of a category 2 hazard within a house in respect of which, by section 7, the local housing authority is given the discretion, not duty, to implement a somewhat more limited range of enforcement actions.  

16.         Thus, category 1 hazards are considered by Parliament to be so serious that mandatory enforcement action is required whereas category 2 hazards are of a less serious nature such that it is left to the local housing authority to exercise its discretion to take whatever enforcement action, if any, it deems appropriate.

17.         What is, or is not, a category 1 or 2 hazard is not especially straightforward. “Hazard” is generally defined by section 2(1) as being:

“any risk of harm to the health or safety of an actual or potential occupier of a dwelling … which arises from a deficiency in the dwelling… (whether the deficiency arises as a result of the construction of any building, an absence of maintenance or repair, or otherwise)”.

18.         Drilling down a little further, a hazard is the risk of certain specified physical and mental harm (ranging from death to cancer, burns, chronic severe stress, mild concussion and other maladies) to occupants of a dwelling which is reasonably foreseeable as a result of and associated with the occurrence of a range of twenty-nine “matters or circumstances” in the dwelling, which include exposure to carbon monoxide and electricity, the seriousness of which is calculated in accordance with a statutory formula as being category 1 or 2 or none at all: see generally The Housing Health and Safety Rating System (England) Regulation 2005 made under section 2 of the 2004 Act, which have been augmented by Operating Guidance set out in the Housing Health and Safety Rating System (“HHSRS”) providing guidance about inspections and assessment of hazards given under section 9 of the Act. Thus, the existence of carbon monoxide or electricity may, or may not, result in a category 1 or 2 hazard.

Condition 6

19.         Condition 6 of the licence granted by the appellant provides as follows:

“If gas is supplied to the property a suitable carbon monoxide detector must be provided, maintained in good working order and tenants made aware as to its operation.” 

20.         There are two aspects to the F-tT’s decision in relation to this condition.  First that the appellant local housing authority did not have the power to impose a license condition to “provide” a carbon monoxide detector.  The material parts of the F-tT’s decision in this respect are to be found in the following paragraphs of its decision.

“58. The Tribunal accepted the applicant’s submissions that the powers to impose conditions to regulate “management use or occupation” of a Property do not empower the Respondent to impose conditions to install equipment.  There was no duty to provide it under the provisions of the tenancy agreement or statute.  In the absence of any Government Regulations introduced under section 90(3) of the Housing Act 2004 in the Tribunal’s determination the condition was not within the conditions intended by Parliament and available to the Respondent.

“59. Parliament has specifically directed in Schedule 4 of the Housing Act 2004 that mandatory conditions be included for licences in selective areas to provide and maintain smoke alarms, but no similar obligation has been imposed in respect of Carbon Monoxide Detectors.

“60. There is currently no statutory requirement to fit a carbon monoxide detector either from the owner or occupiers or the wider rented sector.

“61. In the circumstances the Tribunal agreed with the Applicants submissions that the Respondent could not impose licence conditions to provide a carbon monoxide detector.”

21.         Secondly the F-tT determined that where a suitable carbon monoxide detector had already been installed, as in the first respondent’s case, the local housing authority did have power to impose conditions in relation to its maintenance.  The material parts of this aspect of its decision are as follows:

                  “62. The Tribunal understands the Respondent’s wishes to improve property conditions in selective licensing areas and there is no criticism of their well motivated desire to reduce risks to health and safety of occupants or rented accommodation and to drive up standards.

“63. All parties agreed that a carbon monoxide detector is clearly desirable in a residential property with gas appliances.

            “64. The Tribunal, whilst recognising that there is no legal duty for a Landlord to install a carbon monoxide detector in a property, there are obviously serious risks presented by carbon monoxide in residential properties, given the low costs of provision it would be desirable if responsible agencies were to introduce legal responsibility in rented accommodation.

“65. Where a carbon monoxide detector is installed in a property, but is not maintained it may give all parties a force sense of security.  Where there is no legal or contractual obligation as to where responsibility lies for its maintenance, both landlord and tenant may believe there is protection, when there is none.  The situation would be clearly not desirable.

“66. In the circumstances the Tribunal determined that where a detector is already installed, management/allocation of responsibility of that existing equipment could validly be a condition of the license.

“67. This condition should be amended to read as follows:

“If a carbon monoxide detector is provided in the Property, the licence holder must produce to the tenant (and the Council on request) written confirmation as to which party, landlord or tenant is responsible for maintaining the detector in good working order, including testing and replacing any batteries, and tenants made aware as to its operation.”

22.         The first respondent does not appeal against the imposition of the modified condition 6 even though its breach could result in criminal sanction, one of the objections emphasised in submissions before me.  It is therefore not contested that a local housing authority may impose a maintenance condition in respect of already existing equipment, such as a carbon monoxide detector, but may not require a new one to be installed or, if one has already been installed, retained.

23.         Although it is arguable that, on the facts of this case, there is no material difference between the first part of the original and modified conditions relating to the provision of a carbon monoxide detector because one had in fact been installed, the appellant pointed out that there was a difference of substance between the two because whereas the original version required such a detector be provided (whether or not one was already in situ) if gas was supplied to the property which would require its continued provision for the duration of the licence, whereas the modified version only bites if a carbon monoxide is provided thereby permitting, or perhaps encouraging, the landlord to remove the detector before applying for the license or, perhaps, grant of the first tenancy under the licence so as to avoid any maintenance obligation.

24.         As the appellant rightly points out, the decision provides a disincentive to landlords to install, or retain already installed, carbon monoxide detectors so as to avoid their maintenance even though it was recognised by all and accepted by the F-tT that a carbon monoxide detector was clearly desirable (and its maintenance was minimal, at most requiring occasional replacement of a battery, which could easily be carried out on the required quarterly inspections of the dwelling). The decision thus produces the curious result of reducing, not enhancing or maintaining, the safety of residential premises within a selective licensing area.

25.         It was therefore common ground between the parties before me that the ratio of this aspect of the decision is that it was unlawful for the appellant to impose this condition, as being beyond the powers of the local authority to impose a condition requiring the provision, and therefore continued provision, of a carbon monoxide detector. It was on that footing that the appeal proceeded.

Condition 8

26.         Condition 8 provides as follows:

“The licence holder must ensure, throughout the period of the licence, that the premises are covered by a valid Electrical Installation Condition Report (EICR), where the report states that installation is unsatisfactory this must be remedied within 28 days and the licensing team notified upon completion of such works.  If the report recommends a re-test during the term of the licence, an up-to-date report must be provided to the landlord licensing team within 7 days of the re-test date.”

27.         Both respondents had already obtained EICRs in respect of each property which ran concurrently for the entirety of the term of the respective licences, there being no suggestion before me that either EICR required any remedial works or further testing within the term of the licence. From a practical perspective, this condition required neither respondent to do anything. However, both respondents successfully appealed against the imposition of this to the F-tT and it is against those decisions which the appellant appeals.

28.         The material parts of the F-tT’s decision are as follows:

          “93. Having considered the evidence and submissions, the Tribunal determined that the Respondent could not, in the absence of legislative requirement impose a condition requiring the production of an EICR.

          “94. Regulations exist imposing a duty for landlords to service gas appliances on a regular basis.  No similar duty exists in relation to the serving of electrical installations.

          “95. Landlords have a duty under section 11 (Landlord and Tenant Act 1985) to keep such installations in repair and the council has power under Part 1 of HHSRS where there are otherwise risks to health and safety.  Those powers should be used unless there is otherwise good reason.

          “96. The Tribunal’s view was that this did not consequently fall under the definition of management, and, whilst the council’s intentions were once again laudable, the condition imposing a duty to inspect and possibly improve a property in the Tribunal’s view (there being little by way of Government Guidance on previous caselaw) goes beyond what Parliament intended when introducing the scheme.

          “97.  Paradoxically the increased costs would lead to increased rents (in neighbouring areas of higher demand without any correlating obligations) which would in turn do nothing to address low demand, nor anti-social behaviour, the rise on Detector Selective Licensing.”

Question of law

29.         It being agreed that the essence of both aspects of both appeals raised pure questions of statutory interpretation or construction, it was common ground that the question of whether or not the F-tT had applied the correct test when approaching this aspect of the appeal, also raised by the notice of appeal, was not material. It is therefore not necessary, at this stage, for me to consider whether or not the F-tT should have adopted the approach laid down by Hope and Glory Public House Limited, R v City of Westminster Magistrates Court & Others [2011] EWCA Civ 31.

Submissions

30.         Mr Paul for the appellant submitted that the requirements for the provision of a carbon monoxide detector and a valid EICR fell within the appellant’s general discretion or power to impose conditions “regulating the management, use or occupation of the house concerned” as envisaged by section 90(1) and were not in conflict with or derogation of its – as distinct from the landlord’s – function to identify, remove or reduce category 1 and 2 hazards by the exercise of its Part 1 functions as provided by section 90(5), although in closing submissions Mr Paul slightly softened his position and indicated that the condition might perhaps be regarded as falling within the appellant’s Part 1 functions. In the alternative, he argued that if either of these conditions was in breach, the appellant nonetheless retained a discretion to impose such conditions as indicated by the s90(5) requirement that the authority must “in general” exercise its Part 1 functions.

31.         Mr Manning for the respondents submitted that the requirement to provide a carbon monoxide detector and a valid EICR went beyond “regulating the management, use or occupation of the house concerned” and was in contravention with or derogation of the section 90(5) requirement that Part 1 function be achieved by exercise of the local housing authority’s Part 1 functions. The appellant should, it was submitted, have inspected each property and then taken appropriate enforcement action, such as serving an improvement notice, a prohibition notice or service of a hazard awareness notice, rather than saddling the respondents with these conditions.

Discussion, and decision

32.         Before considering the merits of the appeal, it is important to bear in mind that the purpose of installing a carbon monoxide detector is to detect the dangerous build up of carbon monoxide within a dwelling. Carbon monoxide is produced by the incomplete burning of gas in boilers (and fires) which have been badly fitted or inadequately maintained. If there is inadequate ventilation owing to blockages in the flue, chimney or air vents or if they have not been kept clear, carbon monoxide will be unable to escape. This may allow a dangerous concentration of carbon monoxide quickly to build up which, if excessive, might cause harm to occupants, the seriousness of the risk to health depending upon the concentration levels.

33.         To reduce this risk, gas boilers must be properly installed and regularly serviced, which would – or should – be part of any normal, routine maintenance programme otherwise the boiler can not be properly and safely used. The risk is such that Parliament has, by section 90(4) of the Act, mandated that a local housing authority must impose a condition that landlords must produce a current Gas Safety Certificate which must be forwarded annually to the local housing authority. Such a certificate does not of course provide any assurance that there will be no build up of carbon monoxide during the forthcoming year if a problem develops within the boiler or the ventilation serving the boiler becomes blocked or, if there is such a build up, any means of it being objectively monitored during the year.

34.         A carbon monoxide detector, by contrast, contains sensing technology which, during the currency of its operation, accurately measures the levels of carbon monoxide and the time of exposure thereto. It is inexpensive, perhaps around £25 to £30 and £40 to fit. The alarm is designed to sound before carbon monoxide levels become threatening, which could happen quite quickly even when a gas boiler has been certified as being safe, for example if a post-certification problem develops within the boiler or its ventilation. If the alarm sounds, it might indicate that the appliance is malfunctioning and/or that the ventilation (flue, chimney or vents) has become blocked, either event requiring immediate attention so as to ensure proper and safe functioning of the boiler. It is therefore an adjunct to the annual gas safety check, intended to provide a ready-reckoner or additional check or safeguard during the year: it is right to say that its provision has not been mandated by Parliament by primary or secondary legislation.

35.         Turing to electrical installations, the only way that problems caused by defects within electrical installations – which can be affected by many things such as age, wear and tear, corrosion, damage, excessive loading as well as environmental factors such as damp and heat – can be identified and corrected before developing into a major fault or malfunction is by inspection and testing on a regular basis. An EICR is relatively inexpensive, costing around £100 to £120 if carried out as part of a five year rolling maintenance (and management) programme.

36.         The purpose of an EICR is to confirm, so far as reasonably practicable, whether or not electrical installations within a dwelling are in a satisfactory condition for continued and safe service. It involves the testing of existing electrical services and systems that conduct electricity around the dwelling. It covers all of the hard wiring and electrical fixtures such as fuse boards, lighting outlets, switches, socket outlets and details any observed damage, deterioration, defects, dangerous conditions and any non-compliances with present-day safety standard which might give rise to danger and specifies any necessary remedial work. Again, its provision has not been mandated by Parliament by primary or secondary legislation in respect of houses within a selective licensing area.

37.         Turning now to the question of law, namely, whether a local housing authority has the power to impose either of these conditions, the kernel of both aspects of the F-tT’s decision is that because the appellant local housing authority was under no duty to require installation of a carbon monoxide detector or production of an EICR it had no power to do so and, it seems, that neither fell within the ambit or definition of “management” within section 90(1) of the Act.

38.         This, in my judgment, is a non-sequitur. It does not follow from the fact that a local housing authority is under no duty to do something, such as imposing specified license conditions, that it does not have the power to do so. If that were so, it would render nugatory the power to impose conditions as a local housing authority could only do that which it had been mandated to impose as a duty. This would so cut across the discretion explicitly vested in a local housing authority by section 90(1) of the Act that it would be reduced to nothing, or almost nothing, in circumstances where the whole purpose of the new system relates to housing standards. It also begs the question as to what “management … of the house concerned” encompasses.

39.         The first question, therefore, is to ask whether or not the requirements for provision of a carbon monoxide detector (and its maintenance) and of an EICR (and implementation of any recommendations) falls within the power to impose conditions “regulating the management … of the house concerned”. Those words are very, and in my judgment deliberately, wide so as not to trammel the ambit of the discretion vested in the local housing authority to impose conditions appropriate to the range of housing stock within their area, some “management” issues – such as gas appliances and electrical installations – being common to all properties with gas and electricity and some specific to the vagaries of the “house concerned”.

40.         What these powers are intended to do is enable a local housing authority to impose appropriate conditions regulating how the house concerned is “managed” as well as how it is “used” or “occupied”. There is no statutory definition of “management”. It is however a word and concept which is well understood and generally used within the world of landlord and tenant, always bearing in mind that the house being managed is to be occupied by someone other than the landlord and it is the landlord who almost invariably (but not always) will be responsible for maintenance of boilers and electrical installations in dwellings invariably let on assured shorthold tenancies.

41.         An aspect of the management of a house is ensuring that it is facilities, such as gas appliances and electrical installations, are and continue to be in proper and safe working order during the currency of the lease and, where applicable, the term of the licence, bearing in mind that the local housing authority will not generally re-visit the licence during its usually five year term. Due to their specialist, technical and potentially dangerous nature, gas appliances and electrical installations require regular, careful and expert inspection and testing and appropriate maintenance or remedial works to carried out by a suitably qualified individual. If, for example, a tenanted house burnt down as a result of fire caused by defective wiring readily detectible by routine inspection and testing, it would be natural to describe that house as having been badly managed because had there been a system in place for regular and routine inspection and testing of the wiring the defect would have been revealed and remedial works carried out so preventing the fire.  

42.         Thus, the management of a house can involve having some sort of system for routine inspection, testing and maintenance of gas appliances and electrical installations to ensure their proper and safe operation. Equally, constant monitoring of the safe and efficient performance of gas appliances and the effectiveness of the associated ventilation by provision of a working carbon monoxide detector can properly be regarded as but one aspect of management of tenanted accommodation.

43.         It can not sensibly be said, in my judgment, that neither falls within the concept of “management” envisioned by section 90(1). The fact that Parliament has for example legislated that there be annual inspection, testing and certification of gas boilers by the mandatory imposition of licence conditions in respect of houses within a selective licensing area does not mean that Parliament regards that as being outwith the “management” of a house. All it means is that Parliament has determined that it regards the avoidable risks of malfunctioning to be so important that certified inspection of gas boilers must be compulsorily imposed as part of the “management” of the house. The risk of malfunction and, further, its consequent health and other risks are therefore a legitimate and proper concern of the landlord when managing the house and so within the purview of the consideration of the local housing authority when considering the appropriateness of the imposition of conditions additional to those mandated by Parliament. This is therefore an illustration of what Parliament regarded as being properly encompassed within conditions regulating the management of houses, and not by way of limitation of what conditions a local housing authority can impose.

44.         Putting it slightly more generally, whatever can properly be regarded as concomitant with the proper and safe management of a house by a landlord falls with the ambit of what the local housing authority can consider when deciding whether to regulate that management by imposing any discretionary conditions additional to those mandated by Parliament. That is the whole purpose of section 90(1): to vest the local housing authority with power to regulate, which in some respects is to reinforce, that which should, or could, properly be regarded as part of the management of the house concerned by the landlord. To regulate, or reinforce, that which a landlord should, or could, be doing by way of managing the house (including his responsibilities in relation to its maintenance) is to do no more than create a clear structure or framework for the management of the house concerned.

45.         In my judgment, it can not be said that the provision of a carbon monoxide detector and regular (in fact only five-yearly) inspection and testing of electrical installations is anything other than the perfectly normal, straightforward and sensible management of a house which is to be let out to third parties. Indeed, in this case it would seem that both respondents themselves accepted and recognised this as both had installed carbon monoxide detectors and carried out EICRs. On analysis, therefore, all the local housing authority was doing was regulating, or reinforcing, that which was already in place. Had neither been in place, there could have been no sensible objection to the imposition of conditions that both be provided to ensure that the management of the house was properly regulated.

46.         In this regard, the respondents rightly did not seek to support the aspect of the F-tT’s decision suggesting that section 90(1) of the Act did not empower a local housing authority to impose conditions which would amount to an “improvement”. That in my judgment was an appropriate concession to make, because the power is directed at conditions appropriate to “management” of the house in question, which may or may not involve “improvements”, which, presumably, is a reference to the common law distinction between “improvements” and “repairs”.  That distinction has no bearing upon the interpretation of this statutory provision or the exercise by a local housing authority of these powers.

47.         The next question is to see whether or not there is anything within section 90 or indeed elsewhere within the Act which could be said to cut down the apparently wide ambit of the powers granted by section 90. All that could be pointed to here were the mandatory conditions imposed by section 90(4) and the absence of any regulations created pursuant to section 90(3) and also the fact that, by contrast, there has been considerably more primary and secondary legislation regulating the mandatory imposition of conditions upon the grant of licences for houses in multiple occupation. For reasons already stated, I do not find this to be a convincing or in any way persuasive argument. In short, their absence can not be indicative of any Parliamentary intent that the local housing authority could not impose these conditions.

48.         Neither is it material that neither of these conditions is necessarily or obviously directed at ameliorating the statutory conditions for the creation of a selective licensing area, namely, that the area is or is likely to become an area of low housing demand or the area is experiencing a significant and persistent problem caused by anti-social behaviour (section 80). The purpose for the creation of the selective housing are does not operate so as to cut down the ambit of the discretion to impose conditions under section 90(1).

49.         The final question is whether or not the imposition of such conditions conflicts with the local housing authority’s Part 1 functions so as to render them unlawful by virtue of section 90(5). This, before me, was the centre piece of the respondents’ argument. The practical effect, if correct, would be that these types of conditions could not be imposed by a local housing authority without first inspecting the “house concerned” in respect of which it was a duty so to do. If that is right, it would mean that the local authority was in effect under a duty to inspect each and every house with a view to determining the existence or otherwise of any of the twenty-nine “matters or circumstances” adumbrated in Schedule 1 to the 2005 Regulations to see whether there is a risk of harm identified in Schedule 2 to that Regulation and that if it did not carry out any such inspection then it did not have the power to regulate, by imposing conditions, what would otherwise be regarded as routine or proper management of a house.

50.         In my judgment, this argument is misconceived. A local housing authority is only under a duty to inspect a house under section 4 of the Act if, as a result of discharging its section 3 duty to keep the housing conditions within its area under review or for any other reason, it considers it would be appropriate for the premises to be inspected. There are therefore two pre-requisites to the duty to inspect arising. First, that during the course of discharging their duty to keep housing conditions under review they have become aware of matters making it appropriate to inspect the house, alternatively, there is some other reason so to do. Secondly, that it considers that an inspection would be appropriate. Neither can be said to be satisfied by the mere fact that gas is supplied to a house or that it has electricity.

51.         In neither of the instant cases is there any suggestion that anything has occurred or that there is anything which the local authority was aware of which might in any way put or have put the local housing authority on notice that there might exist a category 1 or 2 hazard within either house requiring envisaged enforcement action. All the appellant local housing authority was aware of, putting it at its highest, was that gas might be supplied to the houses and that, it rightly assumed, there were electrical installations in respect of which routine management should, or could or might, be being carried out which, it concluded, it would be appropriate to regulate by imposition of conditions 6 and 8.

52.         If, as here, the duty to inspect has not been engaged, there can be no question of any of its functions being exercisable under Part 1 of the Act from which it follows that the imposition of these two conditions is nothing more than regulation of management of the house concerned. In this respect, it must be borne firmly in mind that all these two conditions do is regulate that which a landlord should, or could or might, do as part of its routine management of the house concerned. It is not seeking to use or cause the landlord to carry out its own functions. Indeed, in this case, the fact that both properties already had carbon monoxide detectors installed and provided EICRs demonstrates that, as a matter of fact, there was in existence no category 1 or 2 hazard without which the local housing authority’s Part 1 functions could not be engaged. Equally, it demonstrates that the provision of both were as a matter of fact regarded by these respondent landlords as part of their proper and sensible management of the premises in question, from which there really can be no criticism of the appellant seeking to regulate, or reinforce, that management.

53.         I therefore allow this appeal and determine that it was within the power of the appellant local housing authority to impose conditions requiring the provision of a carbon monoxide detector and an EICR in the terms of conditions 6 and 8.

54.         The only remaining question to deal with is whether it is appropriate that the original conditions be re-instated. I can see no reason why they should not be. Neither can be said to be unreasonable or disproportionate. They impose upon the respondents virtually no additional burden as condition 8 has been complied with and condition 6 has been complied with save as to the first respondent having to maintain the carbon monoxide detector already in situ. But given that the first respondent has not appealed the modified condition 6, no objection being taken to maintenance of the existing carbon monoxide detector, it can not be said the original condition 6 is objectionable.

55.         Objection could, however, be taken to the modified condition 6 because it prima facie offends section 90(6) of the Act by shifting, or permitting the landlord to shift, responsibility for maintenance of the carbon monoxide detector onto the tenant without his consent and which responsibility should, in principle, be that of the licence holder. Further, given that the landlord is by other condition to inspect quarterly and that the only maintenance likely to be required is perhaps a five-yearly replacement of the battery, this would appear to be unwarranted. It follows that the original conditions should be reinstated unmodified.

56.         By way of general observation, it is right to say that as with all things relating to the management of tenanted dwellings, there must always be a sense of proportion and proportionality. Amortised over the five year duration of the licenses, the annual costs per property of provision of a carbon monoxide detector is around £14 and of the EICR is around £24. Those costs can not be described as anything other than modest, particularly when set against the benefit of that which they provide (proper, safe and efficient working of gas appliances and electrical installations) and that which would be expected of a reasonable and responsible landlord, it can not be said that either condition was onerous.

57.         One of the aspects of the respondents’ arguments before the F-tT was that if the cost of providing a carbon monoxide detector and EICR was multiplied by the total amount of properties within their apparently large property portfolios, the cost became excessive. This in my judgment is a fallacious argument because each application must be viewed on a property-by-property basis, not by reference to the totality of a landlord’s property holdings. Another aspect of the respondents’ arguments was the potentially high costs of any remedial works recommended by an EICR. This, in my judgment, was a somewhat erroneous argument because it did not relate to either of the properties in question, and if electrical installations require remedial works it can not be unreasonable to require that those works be carried out.

58.         I should finally add that one of the grounds of appeal was that the F-tT had determined that it was unlawful to impose “blanket” conditions, i.e. conditions in common form applicable to all houses. It was however common ground before me that that formed no part of the ratio of the decision of the F-tT so that it is unnecessary for me to make any determination in relation thereto. Had it been necessary to so do, I would have held without hesitation that there is no objection to conditions relating to the subject-matter of conditions 6 and 8 being in common form for the simple fact that condition 6 only bites if gas is supplied and condition 8 only bites if there is no extant EICR which has not been complied with. Either way, such conditions are quite different from those under consideration in Clark v Manchester CC [2015] UKUT 129 (LC). That case concerned the necessity to inspect and measure prospective houses in multiple occupation to determine suitability on a house-specific basis, which is rather different from the regulation of management of essentially routine matters.

59.         In conclusion, I determine and order that conditions 6 and 8 be reinstated into the respective licences of the respondents, as appropriate.

 

                                                                                                Dated: 11 September 2015

                                                                                                His Honour Judge N Gerald