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Affordability a Tricky Issue in Excess Cold Hazards

May 13, 2013

Liverpool City Council have agreed not to proceed in a long running case concerning a Prohibition Notice served in September 2010 to address an excess cold hazard. Having originally used an Improvement Notice this was revoked and replaced by a Prohibition Notice when the flat concerned became vacant then subsequently occupied by the owner. An original appeal to a Residential Property Tribunal (RPT) was made on the basis that if the flat without a heating system was suitable for occupation by the owner it would be suitable for tenants. In the meantime the owner installed double glazing and panel heaters in the belief this would remove the Category 1 hazard.

The appeal hearing took place in March 2011 with Liverpool providing a full case history, HHSRS assessment, Sutherland tables and Operating Guidance. The RPT view having been provided with figures from the landlord suggesting electricity was 100% efficient at converting energy to heat was that only “efficiency” and not “affordability” could be taken into account in judging whether a Category 1 hazard still existed. A subsequent appeal to the Upper Tribunal (Lands Chamber) included additional evidence from Liverpool with references to Operating Guidance where energy efficiency and running costs were detailed. The President of the UT(LC) found that the RPT was in error in not considering the comparative running costs in deciding the most appropriate action. The case was referred back to the RPT for further consideration with particular emphasis on:

1. Whether people over 65 were likely to use the panel system less than a storage system in cold weather.
2. Whether there was still a Category 1 Hazard for Excess Cold.
3. If there was still a Category 1 hazard what action should be taken?

A new HHSRS assessment was made in September 2012 but in February 2013 Liverpool were informed no new evidence could be submitted to the RPT as its purpose was to answer the three questions posed above. The hearing quashed the Prohibition Order due to the length of time since the order was originally served and the change in circumstances of the occupation of the property. As there was no finding of fact both parties agreed to the action and made no application for costs and fees.

The decision highlights the importance of demographic, public health, and energy efficiency data in making decisions regarding Excess Cold. Llinos Griffiths the EHP at Liverpool City Council who took the case summed up proceedings, “From the local authority’s perspective a lot had changed since the property was first inspected and the order was made, both in terms of improvements (double glazing and panel heaters whereas before there was no heating at all and single glazed windows), occupation; plus the evidence is now much more robust and actually aimed at “affordability”.  The CIEH had also provided new guidance on Excess Cold since the process started.”

To view the RPT digest for this case visit our UK Housing Professionals Forum.

To view the CIEH guidance for Excess Cold visit the Housing Module on RIAMS – https://signin.riams.org/modules/documents/281

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