Excess Cold Kills But....
Do you have an unheated toilet in one of your houses? Beware as in some Licensing inspections, PCC are asking landlords to add some form of heating because of the 'excess cold hazard' in the smallest room. (This in a 2-storey, 5-bed HMOs that have the benefit of mains gas central heating, double glazing, and other energy efficiency attributes providing an above average EPC score)
Background
HHSRS identifies hazards based on several factors and the likelihood of an accident or issue occurring in a property. Class I are 'extreme' risk to life and score 10,000 or more - they assume a high likelihood of serious harms in the next 12 months if left unaddressed. Class 2 are between 1,000 and 10,000 and pose a 'severe' risk to life whereas those risks categorised as between 300 and 1,000 are 'serious' and below 300 'moderate'.
It is normal practice (and a statutory duty) to take enforcement action to rectify any issues found where they fall into Class I or II which makes sense, and to send 'advisory' requests to rectify any lesser issues.
We have seen one case where a 'lack of heating in a toilet' was identified as an 'excess cold hazard' and scored as 1023 (severe risk to life). Well, I think everyone at some time or other has experienced the shock of a cold loo seat but how many of us would categorise that as a 'severe risk to life'?
The Chartered Institute of Environmental Health has produced a guidance document for practitioners to help them assess cold hazards and recommend solutions. We have obtained a copy and can share it with members who are interested in their analysis and recommendations – see it here.
The key focus of this guidance is to get a property's EPC rating to E or better, to ensure that there is adequate insulation, double glazing, etc. Heating is mentioned but generally on a whole house basis and in our view, it takes a stretch of the imagination to take guidance designed to protect a poor old lady in a badly insulated house who sits in front of a single bar electric fire on freezing winter nights who is at risk of freezing to death and to apply this logic to a toilet in a well-insulated, double glazed and centrally heated house.
What HHSRS Operating Guidance says about "Excess Cold" Hazard
HHSRS Operating Guidance was published in 2006 based on statistical data from the mid 1990s. In this document, "Excess Cold" is, of all 29 hazards, the one with the highest score for the "norm". The overall "norm" for all ages and types of dwellings is defined as a 926(D), so only just outside of Category 1. The "norm" for a pre-1920 HMO, according to these dated HHSRS tables, is a score of 1035(C) implying a Category 1 hazard. This, of course, assumes energy efficiency of the building as would have been common in the mid 1990s, not one of current energy efficiency norms.
- It is this peculiarity, arising from the out-of-date HHSRS standard dataset, that is driving the determination of Category 1 issues where the assessor is not very knowledgeable or well trained. The assessor failing to give appropriate weight to those factors which reflect the fact that a house now with central heating and double glazing is far closer to the "ideal" than was the case in the 1990s, not least for updated pre-1920s HMOs.
- Whilst out-of-date HHSRS baseline statistics exacerbate quality issues in PCC's HHSRS assessments across a number of hazards, it is with "Excess Cold" that these qualitative issues will most likely spill over into Category 1.
On "Causes", HHSRS Operating Guidance notes the correlation between deaths in winter and the buildings having low energy efficiency. It also notes absence of central heating, under-occupancy, and a number of the same factors that are also reviewed in an EPC assessment, that is, thermal insulation of the structure, fuel type, size and design of the heating and ventilation systems, etc.
On "Hazard Assessment", it says dwellings characteristics, energy efficiency, and effectiveness of the heating system are to be considered (and occupation by the vulnerable age group is to be assumed). It says it may involve assessing the dwelling energy rating using SAP (which is the methodology used by EPC assessors), and other factors such as dampness or disrepair to the building structure or heating system.
Paragraph 2.20 of Annex D says: 'heating should be controllable by the occupiers and safely and properly installed and maintained. It should be appropriate to the design and layout and construction, such that the whole of the dwelling can be adequately and efficiently heated.' (an interpretation of this paragraph is given in Excess Cold Enforcement Guidance, see below).
Thus this original HHSRS Operating Guidance seems to hint that so long as there is no dampness or disrepair, the details found in an EPC report (not the overall rating on its own) will be useful to informing the assessment of "Excess Cold".
- Later guidance highlights some of the shortcomings of the SAP methodology that HHSRS assessors need to be aware of, but still it should be obvious that data included in the detail section of an EPC report can save the HHSRS assessor a lot of time and effort noting key energy performance attributes of the building structure and heating system features and how that combines to an overall effect of whether a comfortable temperature can be maintained in winter cost-effectively for the occupant(s).
HHSRS Enforcement Guidance
Chartered Institute of Environmental Health(CIEH) publish specific enforcement guidance for the "Excess Cold" hazard. The latest version is found here:cieh-excess-cold-enforcement-guidance.pdf
In the "Introduction", this acknowledges that a lot has changed since the HHSRS baseline statistical data was gathered, and average energy efficiency is much improved.
In the "Background" section, target temperatures are given:
When the external temperature is -1˚C an appropriate target standard should be:
• Reception rooms: 21˚C
• Kitchens large enough to also accommodate dining space: 21˚C
• Bedrooms: 18˚C
• Bathrooms: 22˚C
• Hallways: 19˚C
It is worth noting that this covers Kitchens only where this includes dining space, and there is no mention of WCs that would be separate from a bathroom, nor small laundry /utility areas.
"Heating" section refers back to HHSRS Operating Guidance Annex D, para 2.20 (quoted above), and gives an interpretation of that as: "The heating system should therefore provide direct heating to every room as a matter of principle, but it is possible that some small, often 'internal', rooms with low heat losses can stay at a reasonable temperature via indirect heating from other rooms.".
Annex E acknowledges the complexity of Excess Cold assessments, and offers BRE's Excess Cold Calculator (ECC)https://www.excesscold.comas being most helpful in both the investigation and in determining the effects of proposed remedies.
The ECC is a subscription tool specifically designed to assist Environmental Health Practitioners and Technical Officers in the assessment of excess cold hazards in UK dwellings. When provided with details about a house, flat or bedsit and its occupants the ECC provides an estimate of the likely gas and electricity costs and an assessment of the adequacy of the heating system. The tool can then be re-run with modifications to test the impact of possible improvement measures, such as packages of insulation and heating system improvements, to help consider suitable remedial action and assist in the calculation of the cost-effectiveness of such action. This provides valuable supporting evidence for Officers' decisions on the presence of excess cold hazards and in justifying any requirements for mitigation measures. Also included within the calculator is a room assessment tool to help determine the likely size of radiator needed in any one room in a dwelling.
Unfortunately, this tool is not available to landlords/agents, but only local authority subscribers.
PCC's Approach
PCC housing standards officers are finding a small WC (below 1% of the total floor area, and even smaller proportion of external wall area) within the main structure of a house that has no radiator or other direct heating, and so is heated only indirectly from the rest of the building. The lack of direct heating is identified in these small spaces as a "deficiency" which procedurally requires the assessor to score the "Excess Cold" hazard. But PCC firstly make their usual mistake of ignoring all of the factors that would moderate the score (eg information found in the EPC details showing it is closer to the "ideal" than dated HHSRS "norm"). Secondly, they undertake only the most cursory of assessments without reference to the Excess Cold Enforcement Guidance. That is, they simply read off scores from the dated HHSRS tables, which for a pre 1920 HMO will inaccurately classify it as having a Category 1 hazard.
The proposed remedial action is generally for the addition of a central heating radiator or if it is recognised that this is impractical or disproportionate then an electric heater (eg high-level wall mounted fan heater). PCC's HHSRS assessors also always omit to evaluate the effect of their proposal remedy –which in reality for this scenario (space heating added to a tiny WC) will not be at all likely to move the dial on the "Excess Cold" risk score if an assessment is done properly.
It is a very different approach to assessment in Portsmouth than the full complex investigation into Excess Cold that the CIEH's Enforcement Guidance stipulates as appropriate through the use of tools such as BRE's Excess Cold Calculator.
How To Respond...
Yes – if you are undertaking any upgrades and have the chance, put a radiator in every room, if you have a large kitchen which is a badly insulated lean-to extension at the back of the house and it has no radiators then you really need to plan upgrades but for those councillors and others we know of who have no radiators in their kitchen and for landlords who have an inside loo without it's own heating, do not accept any assertion that this situation forms a severe risk to life – it patently does not.
There are several ways a landlord faced with this situation might respond:
- The smoothest path may be simply to mollify PCC HMO Licencing and spend a few hundred pounds on having an electrician installing a pointless electric heater that will be never turned on and only collects dust to become a fire hazard instead.
- You can have an independent HHSRS assessment done and challenge it that way.
- You can reference the EPC and CIEH Excess Cold Enforcement Guidance, especially the part of latter that says: " it is possible that some small, often 'internal', rooms with low heat losses can stay at a reasonable temperature via indirect heating from other rooms".
- You might demand copies of the report from the BRE Excess Cold Calculator and HHSRS Detailed Report showing how the HHSRS changes with their proposed solution (they won't have produced).
- It is always sound practice to work on the basis that ultimately any matter involving PCC HMO Licencing can wind up at a Tribunal where it will be assessed on the documentary evidence. So, keep good records of all communications with PCC, keep your side of those communications professional, consistent and clear for a judge to read later. Use email to produce a written record of communications in preference to phone calls. Summarise key points of any verbal discussions in an email immediately afterwards so you have a dated record
At times it feels like PCC HMO Licencing are deliberately trying to drag the reputation of the HHSRS process down the toilet. Whatever you do, stay professional and don't get dragged down to PCC's level.
As with all HHSRS inspections – check everything – if it makes sense and you agree it is a sensible improvement then do it. If you are not sure, your 1st step should be to politely ask the officer for a justification of their scoring on that item.