With thanks to one of our members for providing an interesting Residential Property Tribunal case in relation to an improvement notice served by a local authority and in particular what constitutes “good notice” for the purpose of arranging an inspection.

Metlane Ltd v Amber Valley District Council BIR/17UB/HIN/2012/0007

Introduction

Section 239(2) Housing Act 2004 provides that an officer of the local authority must give 24 hours notice before entering to carry out an inspection in relation to serving an improvement notice (subject to certain exceptions not relevant for the moment).

Before entering any premises in exercise of the power conferred by subsection (3), the authorised person or proper officer must have given at least 24 hours’ notice of his intention to do so—

(a) to the owner of the premises (if known), and

(b) to the occupier (if any).”

An article detailing a number of cases on inspection in relation to the Housing Health and Rating System is here

Background to case

After the tenant had contacted Amber Valley District Council about some repairs, a visit was made by a housing officer on 10 July 2012 who formed the view that a formal inspection was necessary. This was arranged for 10.30am on 13 July. According to the statement of the housing officer, she “telephoned Metlane Ltd to advise them that I would be carrying out an assessment of the property under the Housing Act 2004. There was no answer so I left a message on the company answer phone advising that I would be visiting the property to carry out a full inspection at 10.30am on 13 July 2012. I left my name and contact telephone number on the answer phone message.”

Metlane Ltd responded by stating “we cannot find any record of a message in our book we keep”.

The improvement notice

The inspection was carried out (unknown to the applicant Metlane Ltd) on 13 July 2012 and a number of repairs were found including a category 1 hazard of excess cold, due to no heating system and drafty windows and doors. In addition, category 2 hazards were found ranging from the requirement to provide running hot water to the property, cold water to the hand basin in the bathroom, provide additional electrical sockets and replace damaged work surfaces to the kitchen.

The decision

The local authority received a minor telling off for not engaging with the applicant in an informal manner before the service of a formal improvement notice although it was pointed out that the local authority had not broken any law in simply going straight to formal action.

Although a few of the items had been rectified by the time the tribunal visited the property, in essence the tribunal agreed with the basic contents of the improvement notice save for minor views on the remedial action required. The important part for the purpose of this article is what constitutes notice for the inspection.

Answerphone message as notice

On the question of whether an answer phone message is suitable notice for the purposes of section 239(2) Housing Act 2004, it was said (highlights added by author):

The Tribunal is concerned by the issue of giving notice under section 239(5) of the Act. At least 24 hours notice of the inspection leading to the issue of the Improvement Notice should have been given. The Act does not require that the notice be in writing; just that it be given. To give a notice, in legal terms, requires that it be brought clearly to the recipient’s attention. in the view of the Tribunal, to leave a message on an answer phone is inadequate to comply with this test. On the facts, it is disputed by the Applicant that the notice was received. Where there is a conflict of factual evidence, the Tribunal looks for a clear basis to believe one side rather than the other. The statement of Shiona White fails to confirm the number dialled or the time of the message, or to state what a caller heard when dialling the number. It gives hardly any detail of the content of the message itself so that the Tribunal might be in real doubt that sufficient information was provided about the precise purpose of the inspection. The Tribunal also has no information that would allow us to reach the conclusion that the message would have been listened to at a point that was at least 24 hours before 10.30am on 13 July 2012. There is no follow-up written confirmation of the message, or letter or fax to the Applicant. No contemporaneous note of the phone call has been provided.

But even if better evidence of the answer phone message had been available, the Tribunal considers that the information required under section 239(5) must be conveyed to a real person for it properly to be said that actual oral notice had been given.

The Tribunal was of the opinion that the failure to give proper notice invalidated the Improvement Notice itself, and the only course of action available was therefore to quash the Improvement Notice.

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