Example risk assessment form

Blank risk assessment form

During inspection of the property during June 2010 numerous breaches of the Management Regulations were identified. The inspecting officer noted the automatic fire detection installation was defective and posed an imminent risk of serious harm to occupiers from the hazard of fire. Miss Gamon was immediately required to ensure the fire alarm was working by having it tested by a competent person. Should she have failed to do so emergency action by the Council would have been necessary to protect the occupiers.

Miss Gamon was informed of the HMO Management Regulations breaches by the Council but failed over a significant period of time to carry out necessary works.

Works specified included the requirements to remove stored combustibles restricting safe use of the means of escape in the property, make safe the loose and cracked concrete tiled entrance pathway steps, remedy penetrating damp to the ground floor porch and remove large accumulations of refuse to the rear of the property.

In December 2010 a final inspection was undertaken at which time the fire alarm was again noted as being defective and works to remedy the identified issues under the Management of Houses in Multiple Occupation Regulations had not been done.

Miss Gamon pleaded guilty to 4 separate offences relating to her failure to maintain the fire precautions, means of escape route in the event of fire, communal areas and outbuildings at the property. Total fines of £1,700 were issued by the court with costs of £173.67 awarded to the Council and a £15 victim surcharge.

Cornwall Council cabinet member for housing Mark Kaczmarek said:

“Cornwall Council values the contribution made by well-managed houses in multiple occupation within the local housing market but will continue to intervene in these types of property to ensure minimum standards are maintained. As indicated by this case there are landlords who flout the law by failing to ensure their properties conform to legal requirements. These people can rest assured that in order to protect the health safety and welfare of tenants in private rented accommodation the Housing Service will make every effort to bring them to book. I want to congratulate the Private Sector Housing team for their good work in bringing this successful prosecution.”

The legislation bringing in this requirement is the Domestic Fire Safety (Wales) Measure 2011 and as the title suggests, the provisions only apply to Wales.

A discussion by Ann Jones AM – Labour Assembly Member for Vale of Clwyd is available here:-

PDF

Quick View (via Google Docs)

Welsh Fire Sprinklers Blog

The measures apply to building work comprising of:–

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• constructing a building for use as a residence, or a number of residences
• converting a building, or part of a building, to use as a residence, or a number of residences
• subdividing one or more existing residences so as to create one or more new residences
• amalgamating existing residences so as to create a new residence or new residences.

[r.1(2)]

Residence means any:–

• dwelling-house
• flat
• care home
• residential accommodation for pupils or students of a school, college, university or other educational institution
• room or group of rooms within a building if that room or those rooms are intended to be used for living and sleeping by a person or persons other than as part of a single household which occupies the whole of that building

and where a building contains one or more residences, includes any part of that building intended to be used by those occupying that residence or those residences for purposes ancillary to that occupation in common with one another or with other users of the building.

It would therefore seem to apply if a landlord has a single dwelling and building works are carried out to convert the building into bedsits where the rooms are to be let on individual tenancies.

The enforcement of the measure is by the local authority and a person failing to comply with the measure may be fined up to £5,000.
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I have searched every where for a landlords guide to the Equality Act 2010 and surprisingly there is nothing available so I will give it a go here. In particular, the most common duty under the Act for landlords will be in relation to adapting premises for disabled persons.

Background

The Equality Act 2010 primarily took effect on 1 October 2010 and it consolidates and replaces acts and regulations relating to discrimination for protected characteristics.

Protect Characteristics

The protected characteristics are:

• age;
• disability;
• gender reassignment;
• marriage and civil partnership;
• pregnancy and maternity;
• race;
• religion or belief;
• sex;
• sexual orientation.

[s.4 Equality Act 2010]

Direct Discrimination

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim.

If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.

If the protected characteristic is race, less favourable treatment includes segregating B from others.

[s.13 Equality Act 2010]

Discrimination arising from disability

A person (A) discriminates against a disabled person (B) if—

A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.

[s.15 Equality Act 2010]

Adjustments

For the purposes of this article I will split the duty to make adjustments into three categories, namely:

• Adjustments to the services a landlord (or agent) offers including adjustments to lettings literature and tenancy agreements

• Structural alterations to office premises in connection with letting

• Structural adjustments to the tenancy property itself including physical adjustments such as ramps or stair lifts for example

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The Act states that where the absence of an auxiliary aid or service places a disabled person at a substantial disadvantage, and this relates to the provision of information, the steps which it is reasonable for a service provider to take, include steps to ensure that the information is provided in an accessible format. [para 7.48 Equality Act 2010 Code of Practice]

This would include for example printed literature and tenancy agreements to be available in larger print formats for the visually impaired.

Alterations to office premises

The Equality Act 2010 Code of Practice provides a useful example concerning a property selling agent but the principle equally applies to letting agents. Para 7.59:

An estate agent is marketing a new residential property development. It decides to hold detailed presentations for prospective buyers at the company’s premises, at which there will be a talk illustrated with slides. However, the only meeting room available in the building is along a narrow corridor and up a short flight of stairs making access impossible for some and for others allowing access only with discomfort or difficulty. The estate agent obtains a quotation to make its premises more accessible, but the cost is more than it anticipated, and it delays making the alterations.

When disabled people, who are unable to attend a presentation because the room is inaccessible to them, make enquiries, they are merely sent copies of comparatively brief promotional literature. This is unlikely to be a reasonable alternative method of making the service available, and may well leave these disabled people at a substantial disadvantage.

If an issue arose under the Act as to whether the estate agent had failed to comply with its obligations to disabled people, consideration would be given to whether it would have been reasonable to avoid the substantial disadvantage by altering or removing the relevant physical features, or by avoiding them (for example, by holding the meeting at another venue) or whether there was a more effective alternative method of providing the service that could reasonably have been adopted.

If the managing agents office premises are rented and consent is required from their landlord, the Equality Act provides it is reasonable not to make any alterations until the landlord gives consent (but the managing agent must seek the consent and the landlord must not unreasonably withhold consent)

Alterations to let premises

There is no requirement under the Act requiring a landlord to alter a “physical feature” (see below) of the dwelling itself but see below for common parts. However, if a term of the letting prohibits the tenant from making alterations puts the disabled person at a disadvantage, a landlord is required to change the term only so far as is necessary to enable the tenant to make alterations to the let premises so as to avoid the disadvantage (and would be reasonable).

Physical features include steps, stairways, kerbs, exterior surfaces and paving, parking areas, building entrances and exits (including emergency escape routes), internal and external doors, gates, toilet and washing facilities, public facilities (such as telephones, counters or service desks), lighting and ventilation, lifts and escalators, floor coverings, signs, furniture, and temporary or movable items (such as equipment and display racks). Physical features also include the sheer scale of premises (for example, the size of a shopping centre). This is not an exhaustive list. [para 7.61 Equality Act 2010 Code of Practice]

There seems no reason why the Court of Appeal ruling Richard Court (Swansea) Ltd v. Williams 2006 where a landlord was under no obligation to install a stair lift won’t apply under the new Equality Act.

The requirements in relation to let premises are contained in Schedule 4 to the Equality Act.

The most notable requirement on a landlord (or managing agent) is the duty to provide an “auxiliary aid or service”. An auxiliary aid or service is defined by r.8 The Equality Act 2010 (Disability) Regulations 2010 as:

(a)the removal, replacement or provision of any furniture, furnishings, materials, equipment and other chattels (but does not include the “provision” of any item which would be a fixture when installed.)

(b)the replacement or provision of any signs or notices;

(c )the replacement of any taps or door handles;

(d)the replacement, provision or adaptation of any door bell, or any door entry system;

(e)changes to the colour of any surface (such as, for example, a wall or door).

Under (a) above, it seems “equipment” may include an audio-visual fire alarm [para 7.47 Equality ACt Code of Practice]. However, it is our view that if such an item were requested it wouldn’t be an auxiliary aid because it would be a fixture when installed (and therefore not a duty of landlord or agent to install). This would in particular be true in our view if the specialist fire alarm required hard wiring into the mains and permanently fixing to the ceiling.

However, bear in mind using the example of an audio-visual fire alarm above, if the property is an HMO (including building converted into self contained flats) there must be “adequate” fire precautions which is the landlords obligation under the Housing Act 2004. In addition, where there are communal areas, a risk assessment is required under the Regulatory Reform (Fire Safety) Order 2005 which requires that the “occupiers” be taken into account when deciding what fire precaution equipment is required.

Common Parts

It should be noted I have been unable to locate a commencement order for paragraphs 5, 6 and 7 of Schedule 4 which is detailed below so I’m not entirely sure as I write this whether the parts discussed below in relation to common parts are yet in force. However, it’s still worthy of discussion (because it might be in force and I just couldn’t find it.)

In relation to common parts, a disabled person may request structural alterations (known as physical features in the act). Consent must be requested to carry out the works, and that consent must not be unreasonably withheld. If such a request is made, all persons (such as other occupiers who share the common parts) who may be affected by any alteration must be consulted.

If the landlord agrees works are reasonably required, the landlord and the disabled person must agree in writing the rights and responsibilities of each of them in relation to the step.

The agreement must, in particular, make provision as to the responsibilities of the parties in relation to—

(a)the costs of any work to be undertaken;

(b)other costs arising from the work;

( c)the restoration of the common parts to their former condition if the relevant disabled person stops living in the premises.

It is always reasonable before the agreement is made for the landlord to insist that the agreement should require the disabled person to pay—

(a)the costs referred to in paragraphs (a) and (b) above, and

(b)the costs of the restoration referred to in paragraph (c ).

Any agreement made passes with the interest in land with any subsequent disposal of the property.

What is meant by ‘reasonable’ steps?

The duty to make reasonable adjustments places service providers under a responsibility to take such steps as it is reasonable, in all the circumstances of the case, to have to take in order to make adjustments. The Act does not specify that any particular factors should be taken into account. What is a reasonable step for a particular service provider to have to take depends on all the circumstances of the case. It will vary according to:

• the type of service being provided;

• the nature of the service provider and its size and resources; and

• the effect of the disability on the individual disabled person.
  However, without intending to be exhaustive, the following are some of the factors which might be taken into account when considering what is reasonable:

• whether taking any particular steps would be effective in overcoming the substantial disadvantage that disabled people face in accessing the services in question;

• the extent to which it is practicable for the service provider to take the steps;

• the financial and other costs of making the adjustment;

• the extent of any disruption which taking the steps would cause;

• the extent of the service provider’s financial and other resources;

• the amount of any resources already spent on making adjustments; and

• the availability of financial or other assistance.

[paras 7.29 – 7.30 Equality Act 2010 Code of Conduct]

Summary

In summary,

• A managing agents office may need the alteration of physical features in order to comply with the duties under the Act.

• Tenancy agreements and letting literature will generally need to be made available in other formats.

• There is no requirement to alter a physical feature of a let dwelling (but you must not unreasonably withhold consent for the tenant to make reasonable alterations)

• A landlord will normally have to provide an auxiliary aid or service which is:

  • the removal, replacement or provision of any furniture, furnishings, materials, equipment and other chattels (but does not include the “provision” of any item which would be a fixture when installed.)

  • the replacement or provision of any signs or notices;

  • the replacement of any taps or door handles;

  • the replacement, provision or adaptation of any door bell, or any door entry system;

  • changes to the colour of any surface (such as, for example, a wall or door).

Useful Links

Equality and Human Rights Commission

Equality Act 2010

The Equality Act 2010 (Disability) Regulations 2010

Equality Act Codes of Practice[/amember_protect]

The LACORS fire safety guidance provides useful guidance on the intervals by which different types of alarm system should be tested.

The two types referred to in this article are Grade A systems and Grade D and E systems.

For full details of the difference between Grade A, and Grade D and E systems, see [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']table C2 on page 24 of the LACORS guidance but briefly, Grade A is the system which is controlled by a panel normally located in the hallway. This is the usual type of alarm for a 3 or more story property. A Grade D and E system is one which has mains operated with battery back-up inter-linked detectors but there is no panel and normally call points (break glass points) are not required. This type of system is normally suitable for a one or two storey property.

The guidance sets out the typical intervals that detectors should be tested. Although Grade A is suggested to be weekly (see below), if you continue reading, the guidance goes onto state “It is recognised that the above arrangements represent the ideal. While they may be possible in buildings with a resident landlord or a dedicated caretaker or housekeeper, in most situations for premises covered by this guide such arrangements may be impracticable” and continues “Where this proves to be the case tenants should be given clear instructions on how to test grade D or E alarms within their dwelling using the test button…”

Paragraph 32.5 of the guidance on page 34 states:

Grade A systems

Routine testing

At least one detector or call point in each zone should be tested weekly to ensure correct operation of the system. Any defect should be recorded in the log book and action taken to correct it.

Routine maintenance

A six-monthly service should be carried out by a competent person, usually a specialist alarm engineer, under a maintenance contract. It entails a full test to ensure compliance as specified in with BS 5839: part 1, section 6. It should be recorded in the log book and a periodic inspection and test certificate issued.

Grade D and E systems

Routine testing

These systems should be tested every month by use of the test button on the smoke alarm.

Routine maintenance

All alarms should be cleaned periodically in accordance with the manufacturer’s recommendations.

All systems

It is recommended that all detectors should be tested at least once a year to ensure that they respond to smoke. Tests should not involve the use of open flame or any form of smoke or non-specific aerosol that could contaminate the detection chamber or the electronics of the detector. Suitable specific test aerosols are available. The test is usually carried out by a specialist alarm engineer under a maintenance contract and should be recorded in the log book, with a periodic inspection and test certificate issued.

It is recognised that the above arrangements represent the ideal. While they may be possible in buildings with a resident landlord or a dedicated caretaker or housekeeper, in most situations for premises covered by this guide such arrangements may be impracticable. Where this proves to be the case tenants should be given clear instructions on how to test grade D or E alarms within their dwelling using the test button, along with clear recording and reporting instructions for any faults or false alarms on the system. Grade A systems are more specialist and resident testing will be inappropriate unless there is a trained individual in the property. Clear fault and false alarm reporting arrangements should be put in place, and the responsible person or his/her agent should respond to reports at the earliest opportunity.

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Most significant cases are listed including appeals relating to prohibition orders and improvement notices. The hazards include excess cold, falling on stairs and procedural issues.

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Upper Tribunal

Bolton Metropolitan Borough Council v Patel [2010] UKUT 334 (LC)

This appeal was in relation to the interpretation of “imminent risk” which is a requirement of emergency remedial action or an emergency prohibition order. However, interesting comments were also made about assessments (highlights added):

It is to be noted that what the inspector was required to do was to produce an assessment of the likelihood of any one case occurring in a 12 month period and the percentage possibilities of each class of harm, not in relation to the actual occupiers but in relation to an occupier of 65 or over [excess cold]. [para 29]

The factual basis of the score for Excess Cold here was that the house was without central heating, with space heating being provided by halogen heaters.  The actual occupants of the house were not relevant to the scoring system, since the score had to be based on the likelihood of a “relevant occupier” suffering harm as the result of the hazard, and the relevant occupier for Excess Cold is a person aged 65 or more… [para 38]

The local authority had calculated excess cold hazard due to the central heating not working as a 1 in 10 chance of a 31.6 percent possibility of death or other serious harm “imminently” despite the fact that the occupiers had halogen heaters. This resulted in a score of 31600, a “remarkably high score”.

The RPT said that it was not convinced that the likelihood of serious harm from excess cold was as high as the as the council claimed.  Its reasons for saying this were that, in contrast to the council’s suggestion, the weather forecast showed that it was not unusually cold for the time of year; that in any event the occupiers were not wholly without heating; and that they had already been without heating for several months.  Those were matters that led the RPT, essentially as a matter of common sense, to question the very high hazard rating that the council’s assessment showed… [para 40]

Onto the question of “imminent risk” and “serious harm”:

Serious harm means anything contained (but not limited to) in the hierarchy of harm contained in the HHSRSR2005 excluding class 4 (moderate harm).

… As far as “serious harm” is concerned, it said that the Act did not offer any guidance as to what sort of harm constitutes “serious harm”. That is correct, but the Regulations do identify a hierarchy of harm– extreme harm (Class I), severe harm (Class II), serious harm (Class III) and moderate harm (Class IV). Thus, for the purposes of the Regulations serious harm excludes moderate harm, and, although there is no express provision requiring the Regulations to identify what harm is serious harm for the purposes of section 40, it is, I think, implicit in section 2 that the Regulations will, or at least may, include this identification. Certainly, it seems to me, an authority could not be criticised if they treated as serious harm any harm falling within Classes I, II and III (excluding, therefore, Class IV), and in my view it would be right for them to do so. [para 41]

And, “imminent risk” is essentially established from the likelihood element of the hazard calculation (highlights added):

“… The adjective “imminent” is obviously not there for the purpose of suggesting that the risk must be one that does not at present exist but is likely to arise soon. It is perhaps in the nature of a transferred epithet qualifying “serious harm” – the risk must be one of serious harm being suffered soon. The degree of risk (or the likelihood, or the chance) that a state of affairs may give rise to an incidence of harm is necessarily time-related. That is why the Regulations require an inspector to assess the likelihood of harm being suffered within a specified period. The use of “imminent” implies, in my judgment, a good chance that the harm will be suffered in the near future. …” [para 43]

Hanlet v Tameside Metropolitan Borough Council [2010] UKUT 351 (LC)

If something complies with building regs (or could easily be made to comply) this is a “material consideration” for a tribunal:

Firstly, in paragraph 23 of the decision the RPT says that where a hazard has been identified under the provisions of the Housing Act 2004, compliance with the Building Regulations is not a material consideration.  I have no doubt that, stated thus bluntly, that is an error of law.  It must be a “material consideration” whether something that is said to be a hazard either complies with the building regulations or might, without too much trouble, be made to comply with the building regulations. It is evident from the HHSRS Operating Guidance that in many instances (hazards on stairs for example; see paragraph 21.29) the building regulations are directly relevant.  Of course, the fact that a situation that is described as a hazard nonetheless complies with the building regulations does not mean that it cannot be a hazard. It is possible for a hazard under the Housing Act and HHSRS Regulations to comply with the building regulations, yet still be a hazard … in my view, is plainly a material consideration that the Tribunal must bear in mind. [para 25]

Secondly it does not seem to me to be accurate to say that compliance with the Building Regulations in remedial work will only be material to the extent that it removes the identified hazard. (my underlining) In the case of stairs there will always be some residual hazard. Compliance with the building regulations might reduce the hazard.  In the context of this legislation the distinction is important. The reduction in hazard might mean that if the matter was recalculated it would be a hazard of a different order. It might mean that the RPT or relevant authority might take a different view of the action that is required. [para 26]

Luton Borough Council v Universal Group HA/6/2007

The landlord had disconnected the water and electricity supply to the property (it would seem on purpose for eviction purposes) and LBC carried out emergency remedial action reinstating the services. The RPT stated that an emergency prohibition order was more appropriate as submitted by the landlord (who had a vested interest in obtaining such an order because the tenants would have to vacate) and Luton appealed.

Luton produced much more evidence than they did at the RPT hearing and submitted:

… that the draconian step of an emergency prohibition order could only be justified where no other measure can reasonably be expected to enable the tenant to occupy his home in safety. Any interference with the right to occupy must be necessary, not just desirable. It is a matter of proportionality. If, as in this case, the tenant could remain in his home if works costing £215.00 were carried out it would not have been proportionate to evict him from his home, probably putting him on the street. Article 8 of the Convention on Human Rights was applicable: see Cosic v Croatia: ECHR Application 28261/06 at para.22 [para 25]

The Lands Chamber agreed:

In the present case on the evidence before me (as opposed to the different evidence which was put before the RPT) there is no basis for assertion that Luton failed to carry out the necessary procedural steps in acting as it did. There were (as was common ground) category 1 hazards on the premises. Those could be dealt with, and were dealt with, at a cost of £215. No reasonable person would have considered it justifiable to deprive Mr Skepelhorn of his home in order to avoid executing work costing £215. Luton’s decision to carry out its obligation to take appropriate enforcement action by taking emergency remedial action was the correct decision. If it had decided (as Universal suggested) that an emergency prohibition order would have been the proper course, that would have been an impeachable decision because the enforcement action would not have been the appropriate enforcement action. [para 29]

Residential Property Tribunal

Procedure

Aggarwal v Leicester City Council Midland Rent Assessment Panel 4 Feb 2010

Paragraph 10(1) Housing Act 2004 provides that “the person on whom an improvement notice is served may appeal to a residential property tribunal against the notice”. The applicant in this case was one of two persons and the tribunal considered if both persons needed to make the application.

… It would be perverse if one of two persons acting alone could not appeal, if, for instance the other owner was unwilling to make an appeal, was out of the jurisdiction or lacked capacity.

Paxman v Hastings Borough Council CHI/21UD/HIN/2009/0013 9 October 2009

The landlord had basically carried out all works required by the improvement notice by the time of the hearing. Although perhaps academic, the tribunal quashed the notice because they directed themselves that they had to consider the notice at the time of the hearing and therefore had no choice to quash the notice even though it was probably correct at the time the notice was served by the local authority.

Paragraph 15(2) of the [Housing Act 2004] Schedule provides that the appeal “is to be by way of a re-hearing” and that it “may be determined having regard to matters of which the local authority was unaware.” Under paragraph 15(3) the Tribunal has the power to “confirm, quash or vary” the improvement notice. The Tribunal is directed by paragraph 15(2) … to conduct a “re-hearing” of the issue of the improvement notice. [para 19]

and continues …

The tribunal considers that paragraph 15(2) of Schedule 1 to the Act plainly directs that the appeal is to be considered in the light of the circumstances which exist at the date of the hearing. We are therefore permitted to consider the condition of the property at the date of the hearing  … Furthermore, the process of rehearing means that the conduct of the local authority is not generally relevant to this appeal, save insofar as to whether it is appropriate for the tribunal to “confirm” the improvement notice. [para 21]

Authors note: There is a concession at paragraph 26 which states “Even if we are wrong about the above …” I suspect they are. It is submitted that the term “re-hearing” means a “re-hearing” as at the time the local authority made the original decision to serve notice. The hearing is not a “fresh-hearing” for example. This is confirmed by the tribunal being allowed to consider “matters of which the local authority was unaware” The term “was unaware” being in the past tense.

Ms Rani Patel (Appellant) vs London Borough of Brent (Respondent) CI/LON/00AE/HPO/2009/0004 23 November 2009

A local authority may not “withdraw” an improvement notice (or prohibition order). It must be varied or revoked (see Section 16 & 25 of Part 1, Housing Act 2004 which sets out the revocation and variation process for improvement and prohibition notices.)

Evans v LB Camden

This appeal against an improvement notice was heard on 29 August 2007 and was subsequently upheld; because no prior notice of entry had been given to the owner or occupier.

The improvement notice required works to an individual flat in a building containing ten flats. Camden had not received a complaint about this flat, although it had received a complaint about the common parts of the property. When the council officer visited to inspect the common parts following this complaint, he asked to see the flat occupied by the tenant who was showing him around. This inspection led to the service of the improvement notice on the flat, without any prior notice of entry to the flat having been given.

In the Camden RPT decision, the panel said:

“the purpose of section 239(5) is to give a mandatory warning to the occupiers and owners of the inspection and some opportunity to deal with it before the inspection and the service of a notice. Lack of warning in this instance deprived Mr. and Mrs. Evans of such an opportunity and in the Tribunal’s view has invalidated the subsequent steps taken by the respondent in serving the Notice and it cannot now be relied upon.”

However, the judgement makes no direct reference to circumstances where an authorised officer is invited into a property following a complaint from the tenant.

LB Camden was refused leave to appeal to the Lands Tribunal in respect of this decision. As a result, this judgement will set no precedence but could still be taken into account in any future RPT hearing.

Julie Moser (Appellant), Cornwall Council (Respondent) CHI/15UB/HIN/2009/009 21 October 2009

The property lacked any form of heating, the only electric lighting was from table lamps, there was no hot water, the kitchen facilities were basic, electric sockets were present which could have been used for heaters but were not, there was a broken and unstable shower. The local authority issued an improvement notice.

Section 239 Housing Act 2004 requires 24 hours notice to be given by a local authority to the occupiers and owners of the property before entry for the purpose of an inspection.

The Tribunal determined that as no proper notice had been given before the premises were entered by the Council, this entry was unlawful and the Improvement Notice was invalid and therefore quashed. [Also see Evans v LB Campden above and  Reading Borough Council (Respondent) vs Mr J Humble (Appellant) CAM/00MC/HIN/2008/0012 1 April 2009]

Similar to above, a copy of an improvement notice must be served on anybody with a charge on the property (e.g. mortgage company).

In, Weingreen Ltd. (Appellant) and Lichfield District Council (Respondent) the Tribunal  declared that the Council had made a significant omission by failing to serve a copy of the improvement notice, within 7 days, on Nationwide Building Society who have a relevant interest as mortgagee.  They therefore determined that the improvement notice was invalid and quashed it.

Miss Rosemary Lazarus vs. Babergh District Council CAM/42UB/HPO/2009/0001 30 July 2009

An emergency prohibition order was incorrectly issued against the property. The EPO was revoked from the time it was issued and so had the effect that it never existed.

[Authors note: This is particularly important wording within the Housing Act and in our view is a useful remedy because if costs were incurred during the prohibition order (e.g. re-housing) which were then found not to be needed, compensation from the local authority via normal complaints procedure may be possible.]

Burton v Cheltenham Borough Council CH1/23UB/HIN/2007/0009 27 November 2007

Although this case may be best placed under the excess cold category below, the case deals with the usual, namely, the local authority failed to consider existing heating in the property (albeit not perfect electric heating). However, in particular the tribunal pointed out:

Paragraph 4.01c of the operating guidance requires the inspector to make an assessment “for each hazard which is obviously worse than average for that age and type of property”.  The Tribunal has to ask whether the state of the Flat on 17 July was obviously worse than the average, particularly in respect of the provision of heating in the Flat.  The Tribunal has had the benefit of inspecting the Flat.  Given the Tribunal’s finding as to the work which was outstanding at the time of the inspection on 17 July and that only 3 heaters were required to bring it up to standard, the Tribunal is not persuaded that the state of the Flat was “obviously worse” than the average.  This view is reinforced by Mr. Dhalech’s evidence that most properties in the private sector would now have a heating hazard… [para 61]

Excess Cold

Mermelstein v London Borough of Camden LON/00AG/HIN/2010/0015 12 August 2010

An improvement notice was served requiring full heating system, double glazing and wall insulation “as a package” to rid the property of a category 1 excess cold hazard. Before the hearing it was agreed by the landlord that heating and secondary double glazing would be installed but wished to appeal against the wall insulation.

The tribunal found that once you take into account the new heating and secondary double glazing, there would be no category 1 hazard left and so wall insulation not required.

Aldford Two LLP v The City Council of Bristol CHI/00HB/HIN/2009/0020 14 January 2010

The property contained standard electric heaters and the local authority said they were insufficient in number and inadequate because they were expensive to run.

The tribunal found a category 1 hazard exists. However, the improvement notice requiring central heating or night storage heaters was quashed:

However and notwithstanding the above the Tribunal had noted from their inspection firstly that the tenants themselves had no complaint about the heating and were happy to control it for the time and the hours that they wanted in the respective rooms. Secondly that notwithstanding that it was a cold day outside the premises appeared to be warm and adequately heated. Thirdly and based on the Tribunal members’ own knowledge and inspection of many similar premises, that the heating system that was provided at these premises should be perfectly adequate and is not abnormal for these types of premises. [para 6.2]

Permission to appeal was refused.

[Authors note: It is submitted that despite the comment "a category 1 hazard exists" this is not likely to be correct. If the place felt warm inside when it was cold outside, how can there be a category 1 (severe likelihood and risk of serious harm) within the property due to being cold?]

Lamvale Properties Ltd v Westminster City Council LON/00BK/HIN/2008/06 18 December 2008

The local authority were “insisting” on gas central heating in a large 5 storey house. The landlord offered a Kalierel Electric System but this was refused by the local authority.

The local authority based the requirement of gas heating on internal guidance but that guidance was not “statutory guidance” and so could not be followed [see para 20 for that very important point. It is submitted that also applies to LACORS fire safety guidance for the "Fire" Hazard].

The statutory guidance requires “Heating should be controllable by the occupants, and safely and properly installed and maintained. It should be appropriate to the design, layout and construction, such that the whole of the dwelling can be adequately and efficiently heated.”

On the basis of the evidence before us the Kalirel Electric System satisfied those requirements and we considered that the Respondent’s insistence on a gas fired system was unreasonable.

Thompson (for the Irene Thompson Trust) v Newcastle under Lyme Borough Council BIR/41UE/HIN/2008/0006 15 October 2008

The local authority calculated the hazard of excess cold based on “average”, yet the property had roof insulation, double glazing and central heating. As the tribunal points out, the averages contained in the guidance are based on 65+ years where there is no heating etc.

The boiler was very old and noisy so the local authority required a new one.

… the Respondent, advised that in her judgment the property was worse than average, although she had scored it as average. She based her judgment  on the fact that the property is a Schindler construction which is known to be defective with poor thermal insulation of the structure. Mrs Fraser acknowledged in response to questions from the panel, that the property is located in an estate of similarly constructed houses, where most would not have functioning central heating with individual controls on the radiators and an additional gas fire in the living room, partial double glazing, roof space insulation of some 250 mm in depth including the roof hatch, nor cavity wall insulation, but maintained her view that the fact of the Schindler construction was sufficient to treat the property as average.

The Tribunal rejected that opinion. The Tribunal started from the position that an average house, constructed between 1946 and 1979, did not have the benefit of 250mm roof space insulation, cavity wall insulation, part double glazing and full central heating with an additional radiant gas fire. The tribunal decided that these additional features meant that this particular house was better than average. [paras 29.1.2 & 29.1.3]

Fogden v Bath & North East Somerset Council CHI/00HA/HIN/2008/0007 9 October 2008

The local authority required by the improvement notice “Install electric night storage heaters with off peak electricity in each bedsit and in the common areas. In addition, provide modern panel type heaters with timers and thermostatic controls to each bedsit.”

It is unclear if the term “in addition” was a mistake but the tribunal varied the notice to be an alternative rather than both required.

The Tribunal has underlined the words “In addition” and wonders whether this is rather excessive as a mandatory requirement of work. It quite accepts the proviso at the end of the Schedule under the section “Important Notes and Permissions” where it says “Alternative works may be acceptable through consultation with the case officer.” Much will depend on how easy it will be to achieve the heating temperature standard required. However the Tribunal takes the view that as a statutory requirement, the provision of both electric night storage heaters and panel type heaters in the bedsits is excessive and considers that they should be alternatives, rather than additional. [para 18]

[Authors note: This adds further clarity that the provision of panel heaters will normally be sufficient as long as 21 degrees is achieved inside when the temperature is 5 degrees outside (although many authorities quote -1 degrees outside as being the requirement).]

Electrical Hazards

Mr M Hanley (Appellant) vs High Peak Borough Council (Respondent) BIR/17UH/HIN/2009/0007 26 August 2009

The tribunal noted during inspection that the electrics although maybe old, seemed to be in reasonable repair, however, professional reports had indicated an earthing problem. It was clear that the electrics did not meet current regulations (because the consumer unit was wired fuses). The local authority had categorised the hazard as category 1 (the worst type).

The Tribunal particularly noted that they were not provided with any information from the council relating to the hazard score of the electrical installation which led them to determine a category 1 hazard existed. In undertaking its own calculation the tribunal determined a band E risk score which equates to a category 2 hazard. An improvement notice relating to a category 2 hazard must be served under section 12 of the Act.

The Tribunal quashed the Improvement Notice and having regard to the facts made no order for costs.

Falling on Stairs

Application by Milton Gordon Wright against a Prohibition Order served by Cannock Chase District Council 1 December 2008

The conversion had made the original staircase – which previously led into the rest of the house – an exit leading directly to the external half glass door and steps.  The Prohibition Order required remedial action including a staircase with reduced pitch and works complying with building regulations as well as proper loft insulation and heating in all rooms.

There was agreement between the appellant and respondent on the remedial action needed, but disagreement on the amount of work needed to remedy the steep staircase.  The appellant argued that other properties in the terrace had similar staircases and should therefore also be subject to a Prohibition Order.  In reaching its decision, the Tribunal considered the enforcement guidance and operating guidance for Housing Act 2004 and took account of the situation at the time of the hearing as well as before (as this was a rehearing).  They believed the scoring and the hazards had been correctly identified by the council, but thought the making of a Prohibition Order was disproportionate to the risk presented by the hazards.  They therefore ordered that the Prohibition Notice be revoked and replaced with an Improvement Notice effective 21 days after the date of the decision.

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Ionisation Alarms where should they be used?
Ionisation type sensors are particularly sensitive to the almost invisible smoke produced by fast flaming fires.This makes them more liable to false alarm due to cooking fumes if sited in a hallway close to a kitchen. Ionisation alarms are less vulnerable to false alarms caused by dense tobacco smoke,excessive dust and insect ingress. The BS 5839: Pt.6: 2004 Standard recommends that ionisation alarms should not be used in hallways and landings,where there is a risk of false alarms caused by cooking fumes.

1. Inside the sensor chamber is a minute (safe) radioactive element that ionises the air within.This causes a small current to flow in the chamber and this will remain constant for the life of the alarm unless smoke particles enter.
2. When smoke enters the sensor chamber,the balance of the current is disturbed.
3. This is detected by the electronics in the alarm circuitry and a signal is sent to the Integrated Circuit (IC).
4. This causes the alarm sounder to operate.

Optical Alarms where should they be used?
Optical sensors are more responsive to [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']smouldering fires producing large particle smoke typical of fires involving furniture and bedding. They are more immune to invisible smoke produced by ‘burning the toast’ and similar cooking fumes.This makes them ideal for siting in hallways close to kitchens where false alarms from ionisation alarms may be a particular problem.The BS 5839: Pt.6: 2004 Standard recommends the use of optical alarms in circulation spaces of a dwelling,such as hallways and landings.Optical alarms are prone to false alarm if exposed to steam and should not be located too close to poorly ventilated bathrooms or shower rooms.

1. A light beam is pulsed in the sensor chamber every 10 seconds to ‘look’ for smoke.Any smoke present has to be visible to the naked eye so that the receptor can ‘see’it.If no smoke is detected,the alarm will remain in a standby state.
2. When large particle smoke is detected,the light beam will be scattered onto the light receptor.
3. This will then send an electrical signal to the IC (Integrated Circuit).
4. If two consecutive signals are received by the IC, the alarm will sound.

Note: Either type of sensor is generally suitable.The choice of sensor type should,if possible,take into account the type of fire that might be expected and the need to avoid false alarms.

Heat Alarms where should they be used?
Heat alarms are less likely to cause false alarm problems as they are not responsive to any type of smoke or fumes,only heat. Because of the potential for a slower response than smoke alarms, they should only be used in a fire alarm system that also includes smoke alarms,and all of the alarms must be interconnected.The BS 5839: Pt.6: 2004 recommends that heat alarms should be used in kitchens.It goes on to suggest that they may also have a role to play in the main living room but they should not be installed in circulation spaces or areas where fast response to fire is required.

1. A thermistor (a heat sensitive resistor) is sited in the sensor chamber of the alarm.
2. When the temperature rises the resistance of the thermistor reduces.
3. The IC continuously monitors the resistance of the thermistor.When this indicates the temperature is over 54 oC the IC sends a signal to the sounder circuit.
4. The alarm sounder then operates.

Selection,Positioning,Wiring smoke & Heat Alarms

Siting of Manual Call Points

Call points may be connected to the detector circuit within the zone that serves the adjacent accommodation (see clause 13.2.1 of BS 5839). The delay between operation of a call point and the giving of the general alarm should not exceed three seconds.

Manual call points should be located on escape routes and in particular at all storey exits and all exits to the open air. The travel distance to a call point should not exceed 45m, however when specifying the travel distance between call points consideration should be given to the type of occupancy, and the fire risk attached to each zone.

Call points should be sited against a contrasting background at a height of 1.4m above floor level. The call point should be well illuminated, free from obstruction and should be surface mounted or only semi-recessed with the front face proud of the mounting surface by no less than 15mm.

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In this particular case, which has been pointed out by a new member in Wales, is that the local authority are making it a requirement of the licence that a fire door be provided on the kitchen. The landlords complaint is not necessarily about the fire door, it is basically the fact that less than five years ago extensive fire prevention works were carried out to the local authority standard and it would have been far easier to carry out these works back then rather than have to do these few additional items now.

However, as the member points out, the local authority are quoting the requirement of a fire door as being from the LACORS guidance. Yet, in fact, this guidance specifically states a fire door is NOT required in his case.

I thought therefore a quick summary was worthwhile.

There are two types of properties defined in the LACORS guidance for fire safety which it is acknowledged in the guidance are not legal terms but are useful terms to explain different scenarios.

“Shared houses” are [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']where all tenants are on one tenancy agreement on a joint and several basis. In this case because they have exclusive possession of the whole house, the Regulatory Reform (Fire Safety) Order 2005 (which requires a risk assessment amongst other things) does not apply because there are no communal areas.

“Bedsit type HMO” is the same property but where the tenants are let rooms on individual tenancies. In this case, the Fire Safety Order does apply because there are communal areas.

The two types of tenancy have two types of requirements according to the guidance.

“Shared Houses” – LACORS Guidance

Where there is a two storey shared house scenario, there is no requirement for a full 30 minute protected route, and fire doors are not required. This is subject to sound construction and the doors being sound and well fitting.

An interlinked fire alarm is necessary which should extend to the lounge, kitchen and escape route.

Cellars should be 30 minute protected and be part of the interlinked alarm system.

There should be a fire blanket in the kitchen.

According to the guidance, there is no requirement for emergency lighting or fire safety signs

For full information (as this is just a summary) see page 41 of the guidance.

Bedsit type HMO – LACORS Guidance

There are additional requirements for this type of two storey scenario.

In this case, there is a requirement for fire doors and a full 30 minuted protected escape route. Fire safety signs and emergency lights are only required if the escape route is complex or lengthy.

An interlinked fire alarm will be required which extends into each bedsit in addition to communal areas, kitchens and lounges.

Cellars should be 30 minute protected and be part of the interlinked alarm system.

There should be a fire blanket in the kitchen

For full information, please see page 43 / 44 of the guidance.

Authors comments

These comments simply relate to the requirement of a fire door on a kitchen in a two storey HMO as that is what is being discussed in particular.

It seems strange that a “shared house” and a “bedsit type” should have different requirements in particular because in both cases, it could be exactly the same people living there. It is also unclear how the risk is different depending on how the property is let.

It seems the guidance is primarily concerned with the Regulatory (Fire Saftey) Order 2005, hence a shared house has lower requirements due to the fact that no risk assessment is required and a perceived lower risk.

However, in addition to this order, both a “shared house” and “bedsit type” HMO will fall under the Housing Health and Safety Rating System and The Management of Houses in Multiple Occupation (England) Regulations 2006 (and equivilent Welsh Regulations). Under these regulations, there is no distinction between the two types of HMO.

Housing Health and Safety Rating System

The statutory guidance for the HHSRS states:

The dwelling should be constructed of fire and smoke-permeable resistant materials. The design of the dwelling should incorporate fire stops to cavities including ventilation and heating systems. The design and construction should help contain and limit the spread of fire. Internal doors (including entrance doors to flats) should be made of appropriate materials and properly fitted, and, where appropriate fitted with self-closers. [para 24.23]

Management of HMO Regs

The Management of Houses in Multiple Occupation (England) Regulations 2006
requires:

The manager must take all such measures as are reasonably required to protect the occupiers of the HMO from injury, having regard to-

• the design of the HMO;
• the structural conditions in the HMO; and
• the number of occupiers in the HMO.

[r.4(4)]

Summary

When considering these other regulations, it is submitted that the requirement of a fire door could easily be arguable as being a requirement, even if it is not a requirement under the LACORS guidance or the Fire Safety Order.

I think therefore, although the argument is correct in this case that the local authority are requiring a fire door on the basis of LACORS guidance, when in fact, the guidance specifically states a fire door is not required, ultimately, in my opinion, whatever type of two storey house (shared or bedsit), if it’s an HMO, a fire door will always be required on the kitchen.

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Hi Adrian

Please could you advise what the current legislation is on providing fire safety equipment.

Going back a number of years ago we had a grant for thickening floorboards, fitting fire satety doors, fitting fire extinguishers and blankets and a fire alarm. We are now being told that having the fire extinguishers and blankets maintained once a year is no longer necessary – this is information from a letting agent that wants to take over looking after the properties.

Any advice would be most welcome.

Many thanks

Answer

[amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']Hello

Below is an extract from the latest LACORS guidance for landlords on fire safety and although not law, is very authoritative.

32.7 Fire blankets and extinguishers:

• where provided, these should be checked periodically to make sure they are in place and available for use. Extinguishers must be tested and maintained on an annual basis in accordance with BS 5306-3 and with the manufacturer’s instructions.

Many thanks

Adrian

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