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The price of cold homes

Llinos Griffiths15/07/2015 - 15:05

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The flat was found to have a Category 1 hazard
The flat was found to have a Category 1 hazard

A recent landmark tribunal ruling could mean that EHOs across the country will be able to demand landlords replace inadequate and expensive heating systems if their tenants cannot afford to properly heat their home. Liverpool City Council EHO Llinos Griffiths gives a step-by-step guide of the long and complex case.  

A full account and advice for EHOs wanting to pursue similar action against landlords can be downloaded here. 

Little did I know the journey that was ahead of me when I identified a Category 1 Hazard of Excess Cold at a typical and inconspicuous flat in the Picton Ward of Liverpool.

I am of course referring to the case at Flat 1, 31 Botanic Road which has seen three lower tribunal hearings, an upper tribunal hearing and been subject to debate at the House of Commons. This was a flat that had no heating system, had rotten single glazed windows and solid brick walls when the original Improvement Notice was served. The owner advised us that the tenant moved out and that he intended to use the flat for his own purpose. This resulted in the Improvement Notice being revoked and a Prohibition Order made in its place. This Prohibition Order prohibited the occupation of the flat by any person other than the landlord. The landlord appealed against this order and on the 1 March 2011 the case was heard at the first of the lower tribunal hearings.

By the hearing date, the property had been double glazed and electric panel convector heaters and an electric towel rail had been fitted. All heaters were switched on during the panel’s visit and the flat was very warm. The tribunal quashed the prohibition order on the basis that heating by electric is 100 per cent efficient and that the system in place was capable of heating the space as we had experienced earlier that day.

The tribunal determined that there was no requirement for a heating system to be affordable, only efficient. It did not accept our argument that efficiency also encompassed the running cost of the heating system, i.e. the energy/heat generated per penny spent, thereby making a system producing 12,500 kWh for a year for £748 more efficient than one costing £1,826.

We were told that this was incorrect, the cost of the heating system is what distinguishes how affordable it is and that it has nothing to do with its efficiency. The tribunal chair stated during the proceedings that a modern gas combi boiler is 84 per cent efficient because some of the energy is wasted through the flue and pump operation, inferring that gas central heating was therefore less efficient than gas central heating. Tried as we might, we could not convince the panel that day.

We swiftly decided to appeal this decision and we were granted leave to appeal. The Upper Tribunal found that the comparative running cost of a heating system is capable of being relevant, given that persons in the vulnerable age group were ‘less well off than the general population’. It remitted the case back to the lower tribunal.

The Upper Tribunal’s conclusions outline three points residential property tribunals must consider in similar cases, which are:

  1. Whether the generality of the occupiers in the vulnerable age group would be likely to use the panel system less than a night time storage system (or other system) in cold weather.
  2. If the answer to the first question is yes, the second question is whether it is probable that as a result there would be such a risk to the occupier’s health that a Category 1 hazard would remain.
  3. The third question is in respect of appropriate enforcement action. It would be material to consider the likely occupiers of the premises, including their probable means if this was thought to be a factor.

The Upper Tribunal’s decision means that other authorities may well be asked for evidence to answer these questions to justify their enforcement action, where the comparative running cost or ‘affordability’ of the heating system is in issue.

The evidence that I put together for our case included data compiled through the Building Research Establishment’s XCC - excess cold calculator - https://www.excesscold.com/ to demonstrate the comparative running costs, copies of HHSRS worked examples that made reference to running cost and/or which identified a Category 1 hazard where panel heaters were in place and census data from data from the Office of National Statistics.

I had to justify my HHSRS assessment down to the very last detail. Thankfully the tribunal agreed with me on this occasion and confirmed the improvement notice.

The advice that I could give any EHP preparing for tribunal proceedings is not to assume that because the tribunal is an expert tribunal that the panel members understand the HHSRS as well as you do, so don’t take anything as a given.

Being EHPs, risk assessment and the impact of the environment on health is second nature to us. So what we might see as obvious may not necessarily be to other professionals like judges, lawyers or building surveyors who have their own fields of expertise. In the main, these are the people sitting on the panel and who we need to convince if we are to be successful.

Provide copies of the Operating Guidance in your bundle and reference the relevant passages in your report. Likewise provide relevant HHSRS Worked Examples to support you hazard assessment. Make sure that your HHSRS assessment is as detailed and as self-explanatory as possible. Always serve full, detailed and case specific section 8 notices, so that the reasons why you have chosen a particular action over another are clear.

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