The Upper Tribunal (Lands Chamber) gives guidance as to the conduct of assessments under the HHSRS regime
Local housing authorities are empowered to serve prohibition orders, prohibiting the use of residential premises as a dwelling. In order to do so they must be satisfied that a hazard exists. One such hazard is that there is “A lack of adequate space for living and sleeping.” In determining whether such hazard exists a numerical score is reached by measuring the level of harm that might be caused against the likelihood of that harm occurring, using the Housing Health and Safety Rating System (“HHSRS”).
Local planning authorities are empowered to determine applications for prior approval for the change of use from office to residential. Until 6 April 2021 the size of accommodation that would thereby be approved was not a material consideration. With effect from 6 April 2021 the content of the Nationally Described Space Standard (“NDSS”) was imported into the relevant regime, so that a single-storey one-bedroom dwelling with a shower room was required to have a gross internal area of 39sqm.
The appellant in this case sought prior approval for the change of use of the property from office to residential prior to inclusion of the NDSS into the planning regime. The authority did not respond in time, so that planning permission was deemed. The property was converted into 15 self-contained flats with an area of 16sqm to 22.5sqm. The authority concluded that a category 2 crowding and space hazard existed in each flat, and served prohibition orders in respect of each of them, requiring that the area of each flat be increased to 26.5sqm. The First-tier Tribunal (Property Chamber) concluded that it should apply the NDSS by analogy, and that it should wholly ignore the facts that (i) sleeping accommodation is criminally overcrowded only if it is smaller than 6.51sqm, (ii) the statutory minimum size for sleeping accommodation in a house in multiple occupation (“HMO”) is 6.51sqm, (iii) the Essex Standards for HMOs (which can include self-contained units) propose a minimum size of 11sqm, and (iv) the authority’s own standards for HMOs propose 14sqm.
The Upper Tribunal (Lands Chamber) held that in determining whether an overcrowding and space hazard existed in self-contained accommodation the FTT had been wrong to disregard entirely the standards applying to HMOs, which were relevant by analogy. As to the detail of concluding that there was a hazard at all, the Upper Tribunal emphasised that when assessing the likelihood of harm occurring it was not enough for environmental health officers to pray in aid their “professional judgment”; it was necessary that they justify it.
Of particular interest to those who carry out, or are faced with, assessments under the HHSRS regime, the Upper Tribunal was highly critical of the approach taken in the present case: not only was it unacceptable to set a “likelihood” of harm occurring at 1/180 in respect of each flat without any attempt to explain or justify such a number (“professional judgment”, as above, not being sufficient), the assessor had taken the spread of harm direct from the Operating Guidance without further thought or interrogation, despite acknowledging that the most serious class of harm (Class I) was highly unlikely to arise in these cases. Her assessment included the “national average” 14% “spread” of Class I harm arising here, which could not be sustained (and which, given the heavy weighting for such harm in the scoring system, was critical to the ultimate score).
The lesson is that when carrying out such assessments, assessors must engage with the process stage-by-stage, rather than reducing it to a spreadsheet-led calculation. Professional judgments made in the course of such assessments should be articulated and explained.
The Upper Tribunal remitted the appeal against the 15 prohibition orders to the FTT for reconsideration. Read the judgment here.
Josef Cannon KC and Riccardo Calzavara appeared for the appellant.
