Tribunal Decision Clarifies Heating Requirements in Rental Properties

According to Liverpool City Council, they have won a "landmark tribunal ruling" which establishes the type of heating that a landlord must install if the landlord is served with a notice or order under the Housing Health and Safety Rating System (HHSRS) under Part 1 Housing Act 2004 by a local authority. 

The statutory operating guidance accompanying HHSRS states in para 1.06 that (highlights added):

The HHSRS concentrates on threats to health and safety. It is generally not concerned with matters of quality, comfort and convenience.

And continues

However, in some cases, such matters could also have an impact on a person’s physical or mental health or safety and so can be considered

Under the category "excess cold", preventative measures and the ideal, para 2.05 provides:

A healthy indoor temperature is around 21°C, although cold is not generally perceived until the temperature drops below 18°C ...

And paragraph 2.20 provides (highlights added):

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.

The guidance is, therefore, a little unclear. On the one hand, HHSRS is not generally concerned with quality, comfort and convenience. Still, on the other, when it comes to heating, the dwelling must be adequately and efficiently heated. 

The landlord Anwar Hadi Kassim had installed electric panel heaters contrary to the advice given by Liverpool City Council, and the local authority presumably served an improvement notice seeking to have the heating replaced with something less expensive to run for the tenant. 

The landlord appealed to the Residential Property Tribunal (RPT), which found in the landlord's favour that the heating system provided was satisfactory even though it was expensive for the tenant to run compared to other heating systems. 

The RPT concluded that the running cost of the heating system was not a matter that the council's environmental health officers should consider when requesting heating systems to be installed in privately rented properties. 

The local authority appealed to the Upper Tribunal (Lands Chamber) ('UTLC'). The local authority showed that for a two-bedroom house, the heating and hot water via electric panel heaters like those installed by the landlord on a standard tariff would cost, on average, £1826 per year. With modern fan-assisted storage radiators on Economy 7 tariff, the cost would be £896 per year, and with a current gas central heating system, the cost would be £623. 

It seems paragraph 1.06 of the statutory guidance (shown above), where the tenant's convenience is not generally considered, was not argued at either tribunal. Still, it would seem from the transcript it would have made little difference. I suspect The UTLC concluded that the RPT were in error in their determination that the running costs of a heating system are an irrelevant factor in assessing "excess cold" under the Housing Act 2004. 

The UTLC  ordered the case back to the RPT for them to reconsider. Councillor Ann O'Byrne, the cabinet member for housing and community safety, said:

“This is fantastic news.  It is wrong for private landlords to get away with installing heating systems that are cheap for them but are exorbitant for their tenants to use and stay warm.  Fuel poverty is a major issue here in Liverpool as well as nationally and this decision will benefit every private tenant.”

This is an interesting case and offers helpful clarification to a question we often see. It was commented that if the rent included utility bills, this would have to be considered when deciding what action would be necessary.

A PDF version of the decision Liverpool City Council v Kassim [2011] UKUT 169 (LC) is available here