Imminent Risk, Emergency Remedial Action and Excess Cold

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

This appeal to the Upper Tribunal (Lands Chamber) was about interpreting “imminent risk" under the Housing Health and Safety Rating System (HHSRS), which triggers 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 per cent possibility of death or other serious harm “imminently” even though 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 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]