The recent criticism of the Residential Property Tribunal (RPT) Service during parliamentary questions (EHN, 3 June, page 6) followed a worrying series of Tribunal decisions that had threatened to curb EHPs activities in tackling the hazard of excess cold and reducing fuel poverty in privately rented homes. By Carole Brown & Torben Wood.
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In those cases (notably in Liverpool and Bristol), landlords and their representatives had successfully argued that electric heating fulfilled the requirements of the housing health and safety rating system (HHSRS) operating guidance on excess cold, because it is 100% efficient in converting input power to output heat. It appears to have escaped the Tribunals’ attention that peak rate electric convector heaters are not designed for effective space heating and have very high running costs if used in this way, reportedly because they could find no specific reference to the affordability of heating in the operating guidance.
Against this backdrop we have more good news arising from a very positive RPT decision on excess cold following an appeal against an improvement notice served by Chelmsford Borough Council (view the decision here). Critically, the RPT has stated in its decision:
“The Tribunal is satisfied that under the HHSRS scheme it is appropriate to have regard to considerations of fuel economy. Accordingly, the fitting of cavity wall insulation was a reasonable requirement to include in the Notice even if the heating system is capable of achieving the requisite temperatures without such insulation. For the avoidance of doubt, the Tribunal is not, in any event, satisfied that a good heating system would suffice unless coupled with cavity wall insulation or the equivalent”.
We would encourage EH colleagues to take heart from this decision and continue to strive for heating and insulation improvements that tackle excess cold and reduce fuel poverty. We have learned a great deal from this case, and another one where we expect to have a notice quashed for failure to satisfy the notice of entry requirements under section 239 Housing Act 2004. The following are, in effect, notes to self:
- Seek to involve the landlord from an early stage – can a business case be made for investment in energy efficiency and/or heating improvements? Are there other incentives available locally to strengthen your case for investment? Don’t rely on channelling correspondence through a letting agent. The law requires that you provide both the owner and the occupier with at least 24 hours advance notice of an inspection which leads to enforcement action under part 1, Housing Act 2004. Seek the cooperation of the letting agent on this point or, failing that, use other sources of information such as the tenant, Council Tax, Housing Benefit or HM Land Registry.
- Collect all available evidence – if possible, obtain a copy of the energy performance certificate (EPC) from the tenant or landlord (if the tenancy was granted after 1 October 2008). Otherwise look to obtain an energy efficiency (SAP) rating of your own where other evidence already points to a significant excess cold hazard.
- Where enforcement action is required, use an accompanying schedule of works to describe the outcome required rather than being too prescriptive regarding the way in which that can be achieved. One option is to specify a target SAP rating, based on the works recommended in the EPC.
- Learn from the experience of others and take advice – After suffering a setback with their own case, Liverpool City Council were very helpful, particularly in highlighting a useful paragraph which makes reference to the need for the dwelling to be capable of being heated economically, which is buried deep in the HHSRS operating guidance (Box 9, page 27).
- Should you face an appeal, continue to engage with the appellant if there are opportunities to do so. We were provided with some proposals for heating improvements and we took the opportunity to contact the manufacturer and compare its guidance on installation and performance with the landlord’s proposals. This put us in a strong position to negotiate on the level of improvements needed, rather than having to accept weak compromises.
- Prepare thoroughly for the tribunal hearing by looking at the strengths and weaknesses of your case – if you were the appellant, how would you seek to undermine the case? Take advice from legal colleagues but bear in mind that appeals focus on the specialist technical and legal knowledge that relate more to your role. Your ability to communicate this knowledge clearly and concisely to the three Tribunal members will have a major bearing on the outcome so be prepared to take responsibility for this rather than relying on a legal representative.
- Refer Tribunal members to relevant parts of the guidance and take time to explain your interpretation, linking it to the research that underpins the HHSRS and the relevant policy contexts such as fuel poverty and carbon reduction, all of which are now neatly summarised by the Marmot Review Team’s report, The health impacts of cold homes and fuel poverty.
- Make use of local data – on this occasion we were able to compare the SAP rating of the property in question (21) against the average for the private rented sector in Chelmsford (56). This type of market comparison helps Tribunals to gauge how energy inefficient a property is when compared with other properties in the area, and to form expectations of what is reasonable.
Chelmsford’s representatives in this case were Carole Brown MCIEH, who was involved in an RPT hearing for the first time, and Torben Wood MCIEH who has experienced three RPT hearings, representing two different Local Authorities. A link to the decision is provided below.
RPT Decision: Improvement Notice Appeal (CAM/22UF/HIN/2011/0006)
