Walsall Metropolitan Borough Council v VR Investments: Upper Tribunal dismisses improvement notice appeal

The Upper Tribunal (Lands Chamber) has dismissed an appeal by Walsall Metropolitan Borough Council against a First-tier Tribunal decision to quash an improvement notice served on a Walsall landlord over alleged damp and mould, in a judgement handed down on 25 June 2026 ([2026] UKUT 237 (LC)).

The case centred on Flat 5, 39 Lysways Street, a top-floor flat owned by VR Investments Limited. Following roof disrepair and water ingress in 2023, the Council served a first improvement notice requiring ceiling repairs and damp remediation. After the respondent completed the ceiling works but not, in the Council's view, the damp treatment, a second improvement notice was served on 6 June 2024, asserting a category 1 hazard under the Housing Health and Safety Rating System (HHSRS) and requiring the respondent to commission a damp survey and carry out any recommended remedial works.

VR Investments appealed, arguing the mould had resulted from the tenant's inadequate heating and ventilation rather than from structural damp. After inspecting the flat and recording dry moisture meter readings throughout, the FTT accepted that position. It found the Council's HHSRS score of 1,630 had been calculated on a false assumption that the walls remained wet; a revised likelihood figure would have produced a score below 1,000, constituting at most a category 2 hazard. As the notice had been served under section 11 of the Housing Act 2004, which applies only to category 1 hazards, it was quashed.

The Council appealed on three grounds. On the first, it argued the FTT had wrongly focused on events after the notice was served rather than assessing whether serving it had been justified at the time. Deputy Chamber President Martin Rodger KC rejected that criticism. Reading the decision as a whole, the FTT had correctly directed itself to conditions as at 6 June 2024, not at the date of its March 2025 inspection. The use of present-tense framing questions was traced to a standard procedural directions template; Rodger KC noted that such templates should be revised in the light of the Court of Appeal's guidance in Hussain (Nasim) v Waltham Forest LBC [2023] EWCA Civ 733.

On the second ground, the Council argued the FTT had failed to accord proper deference to its hazard assessment and had placed undue weight on an unsigned, undated contractor's letter. Rodger KC held that whether the walls had been damp was a question of primary fact rather than a matter of discretion or judgment, and the Hussain deference principle applies to the latter, not the former. The FTT had been entitled to prefer the contractor's evidence, supported by moisture meter photographs, over the inference-based account of the Council's Housing Standards Officer, who had taken no measurements and conceded she could not confirm the surfaces had been damp at the time the notice was served.

The third ground, that the FTT should have varied rather than quashed the notice, was equally dismissed. Neither party had sought variation at the hearing and the FTT could not be faulted for declining to adopt a course that nobody had proposed.

Rodger KC added an observation with broader enforcement implications. The notice had neither identified the cause of the hazard nor specified the remedial works required, instead leaving those matters to a specialist instructed by the respondent. Citing Curd v Liverpool City Council [2024] UKUT 218 (LC), he cautioned that such an approach risks rendering further enforcement action impracticable without service of an entirely fresh notice.

The appeal was dismissed.

[2026] UKUT 237 (LC) | Upper Tribunal (Lands Chamber) | Deputy Chamber President Martin Rodger KC | Decided: 25 June 2026