The Upper Tribunal (Lands Chamber) dismissed Walsall Council's appeal against a First-tier Tribunal decision quashing a damp and mould improvement notice, finding the tribunal had looked at the position when the notice was served.
Key facts
- Who: Landlords, tenants and local housing authorities involved in appeals against improvement notices under Part 1 of the Housing Act 2004
- From: Judgment dated 25 June 2026
- Source: Walsall Metropolitan Borough Council v VR Investments Limited [2026] UKUT 237 (LC)
In Walsall Metropolitan Borough Council v VR Investments Limited [2026] UKUT 237 (LC), dated 25 June 2026, the Upper Tribunal (Lands Chamber) dismissed a council's appeal over an improvement notice served under Part 1 of the Housing Act 2004. Martin Rodger KC, Deputy Chamber President, gave the decision.
Background
VR Investments Ltd owns a block of six flats at 39 Lysways Street, Walsall, built in the 1960s or 1970s. Flat 5, on the top floor, has been let to the current tenant for many years. The roof fell into disrepair and in 2023 water got into the flat and damaged ceilings.
In November 2023 the Council served an improvement notice requiring the ceilings to be repaired and damp and mould to be remedied. The company did the ceiling work, but the Council was dissatisfied with its treatment of the damp and mould, which appeared to have spread.
On 6 June 2024 the Council withdrew that notice and served a second one. It required the company to remedy what the Council considered a category 1 hazard caused by damp and mould in the living room, bedroom, kitchen and bathroom. It also required the company to obtain a damp specialist's report and to carry out the work the specialist suggested.
The question
The company appealed to the First-tier Tribunal (Property Chamber). It said the flat was no longer affected by damp and that the mould was caused by the tenant's failure to heat or ventilate it adequately. The tribunal inspected the flat, found no current evidence of damp and quashed the notice. It held that the hazard scoring wrongly assumed the walls and ceilings were damp and was too high. It also held that at most the damp and mould present on 6 June 2024 gave rise to a category 2 hazard.
The Council appealed. Its first ground was that the tribunal wrongly focused on events after the notice was served. Its second relied on Hussain (Nasim) v Waltham Forest LBC [2023] EWCA Civ 733. In that case the Court of Appeal gave guidance on appeals against a local authority's licensing decision that a person was not fit and proper to hold a licence. The Council argued that the same approach, giving weight to the original decision, should apply to improvement notices and had not been followed.
The decision and reasoning
On the first ground, the Upper Tribunal referred to its own earlier view, repeated in Manaquel Co Ltd v London Borough of Lambeth [2025] UKUT 97 (LC). That view is that validity is assessed on the position when the decision was taken, not at the date of the appeal. Manaquel is currently the subject of an appeal to the Court of Appeal.
Some of the First-tier Tribunal's questions were phrased in the present tense, but they came from a list of issues in directions given by a different procedural judge. What mattered was the question the tribunal actually addressed and answered, and it had focused on the state of affairs on 6 June 2024.
The Upper Tribunal saw nothing wrong in the tribunal noting that the work required by the first notice had been completed. Nor was there anything wrong in it taking its own damp meter readings at its March 2025 inspection. An expert tribunal may make such measurements if they are shared with the parties and the parties have an opportunity to consider them, as happened here. The readings could not record the condition at the relevant time. But they showed that if the walls were damp in June 2024, they had ceased to be so by March 2025, with no additional work carried out since the notice.
The Upper Tribunal said that if the list of issues is a standard one, it should be revised in light of Hussain. It was satisfied that the first ground had not been made out and did not accept the Council's complaints on the second. The appeal was dismissed.
What this means for landlords and tenants
- In this case the Upper Tribunal upheld a First-tier Tribunal decision that examined the condition of the property on the date the notice was served, applying its own earlier view on the point. That view is the subject of a pending Court of Appeal appeal in another case.
- The notice was quashed for two reasons. The hazard scoring had wrongly assumed the walls and ceilings were damp and was too high. And at most a category 2 hazard existed when the notice was served.
- A tribunal's own inspection and measurements can be used where they are shared with the parties and the parties have an opportunity to consider them.
Sources
- Walsall Metropolitan Borough Council v VR Investments Limited [2026] UKUT 237 (LC), Upper Tribunal (Lands Chamber), 25 June 2026: https://caselaw.nationalarchives.gov.uk/ukut/lc/2026/237