Improvement Notices and Cladding in the UK: What You Need to Know
The Situation: To discharge their statutory responsibilities, and as a result of increasing pressure from central government, local authorities ("LAs") are turning to section 11 and 12 of the Housing Act 2004 ("HA 2004") as a means of enforcing against private-sector owners of properties with potential fire safety defects or combustible cladding. Improvement notices in particular can be a highly effective and expeditious means of ensuring compliance from the point of view of the LA and can require very prompt action from building owners.
The Solution: A recipient of an HA 2004 notice has a right to appeal to the First-tier Tribunal (Property Chamber). Doing so requires prompt action; the deadlines by which to file the application are incredibly tight, with only 21 days available to the applicant in which to prepare the grounds of appeal and serve it on the Tribunal.
Looking Ahead: Preparation is key. Those with a freehold or leasehold interest in properties vulnerable to such enforcement action should take care to engage experts at the earliest opportunity to inspect the property, to take steps to ensure compliance with Building Regulations and remedy any existing defects. Current lead time for testing by fire experts in the United Kingdom is measured in months. Early engagement by the property owner is therefore useful and in any event will likely be looked upon favourably by the Tribunal and LAs alike.
Enforcement Under the Housing Act 2004
If the local housing authority considers there to be a "Category 1" hazard at a property, they are under a duty to take "appropriate enforcement action" (s.5 HA 2004). A Category 1 hazard exists where there is a serious and immediate risk to a person's health and safety. The enforcement action may take, among others, the following forms:
- Serving an improvement notice under section 11 ("Improvement Notice");
- Making a prohibition order under section 20;
- Serving a hazard awareness notice under section 28; and
- Taking emergency remedial action under section 40.
Where there are two or more courses of action available to the LA, they must choose the option they consider to be most appropriate.
What Is an Improvement Notice?
Under sections 11 and 12 of the Housing Act, an Improvement Notice requires the recipient to carry out remedial action within a certain time where category 1 or 2 risks exist at the property. The notice may not require remedial works to start any earlier than the 28th day after the date of service. Currently LAs are under intense scrutiny by the public, the media and local government to ensure that fire-safety risks are mitigated and that private-sector property owners comply with the relevant Building Regulations. As a result, we have seen cases of LAs relying on Improvement Notices under section 11 as means of pressing property owners to undertake expensive and intrusive works, even where it is not accepted by the property owner that a category 1 hazard exists.
If an appeal is made against an Improvement Notice which is not suspended, the notice does not become operative until a decision is given on the appeal which confirms the notice (paragraph 19 of Schedule 1, HA 2004). This gives the recipient more time to engage experts and assess any alleged defects fully.
What Is the Process to Appeal an Improvement Notice?
Schedule 1 of the HA 2004 deals with the service of Improvement Notices (Part 1 and 2) and related appeals (Part 3).
An appeal can be made by "[t]he person on whom an improvement notice is served […] to the appropriate tribunal". The appropriate Tribunal is likely to be the local First Tier Tribunal (Property Chamber) and will be specified in the Improvement Notice.
There are two specific statutory grounds on which an appeal may be made under the HA 2004, but a recipient of an Improvement Notice is not precluded from making a general appeal to the Tribunal. Under the first specific ground, an appeal may be made where the applicant believes another person ought to take the action required by the Improvement Notice, the freeholder for example, or that another person should pay some, or all, of the costs of the works. The second specific ground of appeal is that there was another, more appropriate, course of action available to the LA in relation the alleged hazard, such as the service of a hazard awareness notice or a prohibition order.
There is limited guidance available to recipients of Improvement Notices as to the practicalities of the appeal process, and the HA 2004 does not fully describe the application process. The housing health and safety rating system form to appeal may be downloaded online and must be completed with care. If the applicant fails to serve the application in the correct number of copies, or fails to specify the grounds of appeal and the reasons for such grounds, the application may be rejected by the Tribunal. With only 21 days in which to appeal, this could have grave and expensive consequences for any recipient of a notice.
What Happens Once the Application Is Served?
Upon serving an application to appeal an Improvement Notice, the Tribunal is likely to offer the parties the opportunity to mediate. Where both parties request mediation, the applicant may well wish to use that as an opportunity to convince the LA that appropriate works are or will be undertaken, and the relevant notice can be suspended.
Where one of the parties does not wish to mediate or where a mediation fails, directions passed down by the Tribunal will then be triggered. Short time frames can apply—parties may be given only 28 days in which to prepare the statement of case, expert witnesses and document bundles, which highlights the need for advance preparation by property owners. Whether at a mediation or proceeding to a full hearing, expert evidence will be crucial in supporting any application.
In light of the pressure LAs and private-sector property owners are under, fire safety experts in the United Kingdom are in extremely high demand. Where a property is susceptible to enforcement action under the HA 2004, it would be prudent for property owners to:
- Engage in pre-emptive discussions with LAs and show a willingness to investigate possible defects and undertake to conduct works where required, thus limiting the need for the LA to resort to draconian Improvement Notices in the first place. Needless to say, fire safety is important and should be treated as such by property owners;
- Make contact with contractors to begin works to remediate minor defects, showing a commitment to mitigating fire safety risks at the property; and
- Arrange for inspections by fire safety and cladding experts at the earliest possible opportunity in order to be in the best position to appeal an Improvement Notice if served precipitously by the LA.
If an Improvement Notice is served, recipients should consult with their legal representatives as a matter of urgency. A recipient may still have an opportunity to appeal and/or agree a more suitable and cost-effective means of reducing risks identified.
Three Key Takeaways
- Local authorities are under increasing political pressure to ensure the safety of housing, and they are turning to the enforcement provisions of the Housing Act 2004 as a means of expediting compliance amongst building owners.
- Recipients of Improvement Notices have a right to appeal to the local Property Tribunal under certain circumstances, but with only 21 days in which to do so, prompt action is essential. In these circumstances, advance preparation is crucial.
- Building owners would be wise to engage in pre-emptive and collaborative discussions with local authorities and to take a proactive approach to investigating potential defects and minimising risk.
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