The case of Rendlesham Estates Plc v Barr Ltd [2014] EWHC 3968 (TCC) is a bit off the housing law beaten track and as a result I have only recently got round to reading it properly. It concerned s.1, Defective Premises Act 1974, which is the statutory provision that enables any person with an interest in a dwelling to sue the person responsible for building the dwelling, or carrying out any work in connection with the dwelling, where the dwelling is not fit for human habitation when the work is completed.

The main issue in Rendlesham was whether the common parts of an apartment block could be construed as part of a person’s dwelling. In answer to that question it was held that a dwelling for the purposes of s.1, in this particular case, were the individual apartments together, possibly, with their balcony. However, the work done to the structural and common parts was work done in connection with the provision of each of the apartments and so was caught by s.1. As a result, some of the apartment owners were able to sue the developers for damages for distress and inconvenience arising from damp and mould growth caused by the defects to the structure where it was found that the apartments were unfit for human habitation.

It is, however, interesting for another reason. When considering the level of damages to award the apartment owners for the damp and the mould Edwards-Stuart J said this:

“[304]… In the recent decision of the Court of Appeal in West v Ian Finlay & Associates [2014] BLR 324 , the court said that awards of this type should be modest and subject to a maximum of about £3,000 per annum (at current prices). That case involved the failure of damp proofing work and whilst the remedial work was carried out the claimants lived in a nearby rented house. The court considered that £2,000 per annum would have been an appropriate rate for Mrs. West and £1,500 per annum an appropriate rate for Mr. West. The stress and anxiety suffered by Mrs. West was described by the court as “undoubtedly significant”, but not at the top of the scale.”

It was at this point – 304 paragraphs into the judgment -that my interest was piqued. What did the court mean by “awards of this type”? Was this cap just to apply to s.1, DPA74 cases or more widely? In particular I was thinking about its application to disrepair claims under s.11, Landlord and Tenant Act 1985. Was there an important Court of Appeal authority that us housing lawyers had missed?

As a result I had a look at the West case. That was another case where the issue was defective workmanship in a dwelling that had resulted in a damp problem. The cause of action was contractual, however, rather than under s.1, DPA 1974. In West, the Court of Appeal relied on an earlier decision of the TCC (AXA Insurance UK Plc v Cunningham Lindsay UK [2007] EWHC 3023 (TCC)) as authority for the proposition that the maximum award of general damages for distress and inconvenience arising under a contract was £3,000. No other authority was cited.

I was also not familiar with AXA Insurance either so I read that as well. That case concerned a claim for damages arising from subsidence in a residential property. In assessing the level of damages for distress and inconvenience Aikenhead J was referred to three cases: Watts v Morrow [1991] 1 WLR 1421 (which was a disrepair claim), Ezekiel v McDade [1994] 43 Con LR 45  and Hoadley v Edwards [2001] PNLR 4 (which were both professional negligence claims against surveyors). The proposition that as a general rule only £3,000 per annum could be recovered was distilled from the awards made in those three cases rather than from a particular point of principle. Nor does it appear that Aikenhead J was referred to either Wallace v Manchester CC (1998) 30 HLR 1111, English Churches Housing Group v Shine [2004] HLR 42 or Earle v Charalambous [2007] HLR 8. In all of those three cases  the Court of Appeal had no difficulty with a tenant being awarded general damages that exceeded £3,000 per annum.

Accordingly, while West is a decision of the Court of Appeal and purports to apply to the award of general damages in any contractual claim, I don’t think lawyers acting for tenants in disrepair claims need to be overly worried. It is very hard to reconcile with the three Court of Appeal disrepair cases and shouldn’t be difficult to distinguish in the event it is a case that landlords seek to rely on. It is a case, however, to be aware of in the event that it starts cropping up in settlement negotiations.

With grateful thanks to Jan Luba QC and HHJ Madge’s housing update in the December 2014/January 2015 Legal Action, here are a few recent County Court cases on unlawful eviction and harassment.

Alabbas v Uppelle. Leicester County Court, 8 October 2014
Mr Alabbas was Ms Uppelle’s assured shorthold tenant from April 2008. In April 2009, Mr A complained to Ms U that water was leaking through to the kitchen from the bathroom. The ceiling partially collapsed as a result. Ms U did nothing.

Mr A complained to the local council’s environmental health department. When the EHO contacted Ms U about the issue, Ms U served a purported notice on Mr A. He had this checked and found it was not valid notice. Ms U than rang Mr A several times telling him to leave, including two calls in which she swore at him and made threats down the phone that his legs would be broken if he did not go. Mr A stayed put.

In September 2009, Mr A was thrown out of the property by four men, found to be acting at the instigation of Ms U. They let themselves in using a key. One man had a knife. They shouted racist abuse, punched and beat Mr Alabbas and threatened to kill him. They told Mr A that the reason he was being evicted was that he owed rent.

Mr A went to hospital, where he then stayed overnight. He sustained soft tissue injuries to his nose with a lasting small scar. He was treated for PTSD over the next two months.

He spent the next 16 days street homeless, sleeping in the doorway of a local mosque, before then moving into unsuitable hostel accommodation (his own room but shared facilities with at least 10 others) for a further 160 days.

At trial, Miss Recorder McNeil QC awarded damages in the total sum of £34,209, made up of:
£1,000 for the pre-eviction harassment;
£4,950 for the first 16 days post-eviction, during which time he was street homeless, calculated at £330 per night (being at the top end of the usual scale and with the addition of a further ten per cent – Simmons v Castle;
£17,600 for the 160 days during which he was in a hostel, calculated on the basis of £110 per night for the whole of that period (for the whole period as Mr A had attempted to mitigate his losses by searching for alternative accommodation).
The Recorder was also satisfied that it would have taken Ms U a significant period of time to evict Mr A lawfully given that no valid s.21 notice had been served as at the date of the unlawful eviction;
£300 for the disrepair;
£3,000 for the personal injuries;
£3,000 aggravated damages;
£2,500 exemplary damages [The basis for this presumably being the cost of a lawful eviction – NL];
£230 special damages; and
£1,629 interest.

Bitan v Holme, Stockport County Court, 14 April 2014
Ms Holme was Mr Bitan’s assured shorthold tenant. In about 2012, Ms H complained of disrepair. There was water leaking from the bathroom into the property’s dining room, and draughts through a hole in an exterior wall and a defective window. The ceiling in the dining room began to perish, and Ms H became anxious about her family’s safety. A later surveyor’s report identified many other items of minor disrepair.

Mr B did nothing and Ms H threatened to withhold rent. Mr B then became difficult and abusive, regularly telephoning and knocking on the door of the property. On several occasions, two large men attended the property and told Ms H she would be evicted and made homeless with her children.

Mr B claimed possession against Ms Holme. Ms H counterclaimed for breach of covenant for quiet enjoyment, harassment, housing disrepair and breach of statutory tenancy deposit provisions. The possession claim was struck out [Possibly because of the failure to serve the deposit prescribed information – NL] and the counterclaim proceeded to trial.

Deputy District Judge Buckley awarded damages of:

£2,592.94 for a course of conduct of harassment in breach of Protection from Harassment Act 1997 s1. (Updating the figure recorded in Fakhari v Newman June 2010 Legal Action 35 and a ten per cent uplift (Simmons v Castle));
£1,525.38 exemplary damages, including interest [It is not at all clear on what basis exemplary damages were awarded. See below – NL];
£5,783.22 were awarded for the disrepair, based on a diminution of the monthly rent of £550 by 40 per cent over a period of 23.5 months, plus an uplift of ten per cent (Simmons v Castle), and an award of interest. An order for specific performance was also made.
£1,000 for breach of HA 2004 s213(6) (failure to provide information about the tenancy deposit).

Comment

It is good to see the Simmons v Castle uplift being applied to unlawful eviction and harassment damages, as well as disrepair. Also good to see the top end daily rate of £300 (plus 10%) being applied for unlawful eviction.

The basis for exemplary damages in Bitan v Holme is not clear. If it is on the harassment claim, it is hard to see how this could be considered ‘profit-seeking’ conduct, unless there was unlawful eviction or threatened unlawful eviction included. Given the absence of aggravated damages, maybe this is another case of confusion between aggravated and exemplary damages? If anyone involved can shed some light, I’d be grateful.

With very grateful thanks to Beatrice Prevatt’s annual disrepair update in the December 2014/January 2015 Legal Action, here is a bumper pack of County Court cases and settled cases on damages for disrepair.

Armes v Wheel Property Co Ltd, Clerkenwell and Shoreditch County Court, 17 May 2013
Claimant had been the protected tenant of a two bed flat in a Victorian terrace conversion for 30 years. Current rent was £191 per week.

There was dampness to walls and floors in the living room, kitchen, bathroom and one of the bedrooms for many years. This had caused some plaster to ‘blow’. The housing file recorded a number of leaks into the property from various sources and the tenant asserted that she had notified her landlord about these.

Following the tenant starting a claim, dehumidifiers were installed at the property in August 2012 to confirm that the damp found in April 2012 was not caused by a flood, which took place in August 2011. The parties’ experts subsequently agreed that the property suffered from disrepair caused by penetrating/ rising dampness and agreed a schedule of remedial works.
The matter went to trial where the landlord disputed notice, but lost on that point.
The judge awarded £18,161 and ordered specific performance of the schedule of works.
Damages were:
General damages of £15,701 (6 years x 30 per cent rental liability reduction).
Special damages of £2,460.

Nzau v Gani, Croydon County Court, 21 November 2013
Private tenancy commencing in late 2006. The Claimant tenant was evicted in August 2012. Monthly rent of £1,150.

The Claimant alleged damp and water penetration from the start of the tenancy to the kitchen and bathroom (partly situated under a balcony). There were also historic issues with a defective boiler, and other more minor issues. In February 2011 the Council had served an abatement notice (s.80 EPA 1990) requiring the water penetration to be addressed.

At trial of the claim, Deputy District Judge McCloskey found the landlord liable for the water penetration into the kitchen and bathroom as well as the heating defects, from January 2007 [allowing a reasonable period to remedy, presumably. Though if the defects preceded the tenancy, this is surely questionable. – NL].

Damages for the water penetration were discounted by 50 per cent because there was no conclusive evidence from either side about whether the damp at the property was a mixture of condensation damp and penetration damp.

Damages: Water penetration: Over the 24-month period from January 2007 to December 2008, general damages were assessed at ten per cent of rent (following the 50 per cent discount), making an award of £975. For the period from January 2009 to March 2012, when there was more disrepair at the property, damages were assessed at 50 per cent, which was reduced to 25 per cent to account for condensation, giving damages of £7,717.
For the period from April 2012 to August 2012, damages were assessed at five per cent, which was discounted to 2.5 per cent, giving a figure of £101.
Total award of £8,793 for water penetration.
Defective boiler awarded damages of £10 per week from November 2006 to October 2009.
(Averaged over the year). Total: £1,560.
Special damages claim, (reduced by a third) in the light of the condensation: £550.
Overall total £10,903.

Clark v Affinity Sutton Homes Ltd, Barnet County Court, 28 March 20146
Claimant was the tenant of a one-bedroom flat from 29 November 2004 until 10 February 2014 when he was decanted. The tenant brought a claim alleging damp penetration from January 2007. The Defendant had carried out remedial works in 2008 and again in January 2013, but without resolving the issue.

The expert evidence found water penetration to the bathroom with condensation dampness and mould growth to the living room, bedroom and kitchen. However, following the claimant’s decant (and shortly before trial) it was found that the damp problems had been caused by a defective damp proof course.

The claimant suffered from poor health. He had had chronic obstructive pulmonary disease since 2006, rheumatoid arthritis since 2007 and also had bladder cancer.

A default judgment was obtained against the defendant on 14 October 2013. Remedial works were carried out in 2008 and again in January 2013. The expert evidence records water penetration to the bathroom with condensation dampness and mould growth to the living room, bedroom and kitchen. However, following the claimant’s decant it was found that the damp problems had been caused by a defective damp proof course.

Deputy District Judge Gillman awarded damages for the period 1 April 2007 to 31 August 2008 at 30 per cent of the rent and for the period from 1 January 2012 to 10 February 2014 at 45 per cent of rent. No award for the period from September 2008 to January 2012, as the Court found that on the balance of probabilities it was unlikely that there were any significant problems in this period. There were no complaints logged during this period and not a single e-mail, although there had been extensive e-mail correspondence in 2007 and again in 2012/13.

General damages were £6,779.88, which was uplifted by ten per cent (Simmons v Castle) to give a total general damages award of £7,457.86.
Special damages £2,667.60 (discounted the figures claimed by 25 per cent for depreciation, save in respect of the carpet, which was allowed in full as it would be difficult, if not impossible, to purchase second-hand carpets).
Plus £20 per week for the use of a dehumidifier 24 hours a day for eight weeks (having received details of average running costs).
Plus £5 per week for additional heating costs for 183 weeks in the six years claimed.
Total special damages £3,742.60.
Total award: £11,200.46.

Wade v Dormeuil, West London County Court, 8 August 20148
Private tenant of a two-bedroom flat, from 19 October 2010 until 12 October 2013. Rent £18,000 pa (£1500 per month). Landlord brought possession proceedings and tenant counterclaimed in respect of disrepair.

The tenant sought damages for a defective roof/gutters causing water penetration to the rear bedroom and hallway, with some intermittent penetration to the main bedroom and some current dampness to the living room, a defective flush to the toilet, two gas leaks resulting in the lack of hot water for five days, a slow water flow into the water tank, defective and cracked plaster, defective windows to the living room, a defective radiator and some external defects, namely, defective gutters, cracks to the render and rot to the joinery.

The defence to the counterclaim was struck out and the case proceeded solely on the basis of the tenant’s evidence.

District Judge Rowlands found all the claims made out and identified the three main claims as follows:
The damp and cold to the living room, which meant the tenant had to buy additional covers to sit underneath.
The problem with the toilet, which did not flush to the extent that the tenant had to use plastic gloves to clear the toilet for approximately two years.
The damp to the second bedroom, which could not be used for any purpose.

He took account of the fact that the tenant had moved in with her autistic son, who was then aged four, to give him more space, and had been distressed at not being able to give him the experience she wanted. He questioned why the tenant had not given up the tenancy [this is surely nonsense, no requirement to give up tenancy as mitigation] but accepted that she was unable to raise a deposit, would have had difficulty finding other accommodation, and was realistic in her hope that taking proceedings would have caused the disrepair to be rectified.

Damages:
General damages: 40 per cent of the rent for the first two years when all the problems existed, and 25 per cent of the rent for the third year when the toilet had been fixed. This amounted to a total award of £18,900, plus an additional ten per cent (Simmons v Castle), making a total of £20,790.
This was substantially in excess of a Part 36 offer that had been made, meaning an additional ten per cent in damages, plus 5.5 per cent interest, making a total award
of £24,203.35.
Costs up to the expiry of the Part 36 offer on a standard basis and from the expiry of the Part 36 offer onwards on an indemnity basis, and interest on those costs at 5.5 per cent.

Whittingdon v Uddin, Clerkenwell and Shoreditch County Court, 14 August 2014
Private tenant. Claim for three years of disrepair, breach of quiet enjoyment and harassment. For a period of three years the premises suffered from defective windows throughout, water penetration in the bedroom, some internal leaks in the kitchen and WC, and some external disrepair. The landlord failed to carry out any repairs despite repeated complaints.

At trial, District Judge Sterlini awarded:
General damages of £1,800, being a 100 per cent reduction in the rent for a six-week period in November and December 2013 when the claimant had to move out because the premises were uninhabitable and a global award of £7,500 to reflect the other items of disrepair over a period of three years (including a 17 per cent reduction in rent during this period);
£1,000 for defective chattels that were provided under the terms of the tenancy agreement and that were broken but not repaired/replaced
£350 for the cost of plumbing repairs paid for by the tenant.
£16,000 was awarded in respect of the harassment claim.

Holmes v Lambeth LBC, Lambeth County Court
Leaseholder of a two-bedroom maisonette complained of disrepair from 2008. There had been a number of external defects including an excessive gap between the brickwork and window frame to one of the bathroom windows and fungal decay to two other windows. There was also spalled brickwork over the main structure at the front of the premises, missing and defective pointing to the right of the chimney stack, cracking to the chimney stack itself, missing slates to the roof covering at the rear and cracked areas of concrete to the rear concrete staircase. For a period of three years there was water penetration through the roof causing cosmetic damage to the plaster in the eaves storage area and relatively minor staining to the plaster and decorations on the stairs.

The defects mainly affected the exterior of the premises and therefore the inconvenience caused to the leaseholder was minimal. The cost of repairs was estimated to be £9,000.

The claim settled in October 2014 at the point after which listing questionnaires were filed. Special damages were claimed in the region of £1,400. The second-hand value of the special damages was worth in the region of £500. Settlement negotiations were entered into on the basis of Earle v Charalambous [2006] EWCA Civ 1090, 28 July 2006, by using the starting point for calculating damages for leasehold premises as a percentage of the market rental value. The average market rental value for a comparable property in the area was in the region of £19,500 per annum (£1625 per month).

The local authority made a global offer in the sum of £15,000 and also agreed not to seek to recover the leaseholder’s share of service charges in respect of the works (these would have been approximately 50% of the £9000). Taking special damages at full value, this amounts to some 12% of rent for the full period of claim).

As part of the settlement Lambeth also agreed to pay for an inspection by the single joint expert and carry out any works found to be incomplete.

Comment
Always worth remembering that leaseholder claims can go back 12 years, not 6. And the measure of quantum is the notional open market rent, which can be substantial. However, the leaseholder may well be liable for a proportion of the cost of works through the service charge, and, as in this claim, that should be dealt with.

Coleman v Peabody Trust, Lambeth County Court
A tenant’s two-bedroom flat had cracked and defective windows throughout the premises (five in total), which were draughty, from end of 2009 to August 2014. The claim settled in August 2014 for £7,500. The rent was £124.17 per week (£6,456.84 per annum) so this settlement equates to approximately 23 per cent of the rent.

Lawrence v Lambeth LBC, Lambeth County Court
Secure tenant of four bedroom flat brought a disrepair claim, limitation took effect from May 2007.

Disrepair alleged was that the windows at the premises were in poor condition with four of the windows rotting away, letting in water and with mould growth around them. Patch repairs to the windows were carried out in June 2012. The central heating was defective for several years. The claimant could only use the heating and hot water together and was unable to use the services independently of each other. It also took quite a while for the water to heat up and none of the radiators heated up properly. Some of the radiators did not heat up at all and some of them only heated at the bottom. The heating was remedied by the Defendant in December 2011. There was an intermittent leak under the sink and from behind the toilet. The premises were infested with mice for around four years, possibly coming from underneath the floorboards.

The tenant suffered from constitutional asthma and recurrent bronchitis, which had been exacerbated by the cold and damp conditions at the premises, and was admitted to hospital with shortness of breath on two occasions and thereafter experienced symptoms of central chest pain, poor respiratory function and nocturnal coughing.

Post issue, the landlord agreed that some of the internal works could not be done with the tenant in occupation. The tenant was prioritised for a permanent transfer but no suitable properties became available and so the landlord started works in or around late August 2013 with the tenant still in occupation.

Lambeth defended on the basis that the standard of repair was commensurate with the property’s age, condition and status as public sector housing and that works were carried out as required when notified to the landlord. It was also alleged that the tenant neglected the garden to the extent that overgrown ivy had caused damage to the windows.

The claim settled within a few weeks of the trial date, in June 2014, for a global figure of £12,500.
Components of damages:
£1,500 for exacerbation of asthma due to the damp conditions;
£9,500 general damages, amounting to £1,583 per annum for six years, where the rent was
£144 per week. This equates to approximately 20 per cent of the rent for the full period of the claim;
£1,500 special damages, most of which was a contribution towards the tenant’s care costs.

A substantial discount was agreed in respect of the special damages as the tenant had smoked for most of her adult life. The defendant also agreed to carry out additional works, above the repairing obligations, as part of the settlement including decorating throughout, dry lining of walls, repair to the boundary fences and insulation of the loft.

Thomas v AJ Bradburn (acting as receiver for Adelphi Properties Ltd), Manchester County Court, 17 October 20134
Private shorthold tenant of a two-bedroom mid-terrace house from 5 November 2007. His rent was £85 per week until April 2009, when it went up to £95 per week.

There were problems with the hot water system and the storage heaters from the start of the tenancy. Central heating was installed in March 2008 but that did not work properly and the landlord failed to repair it satisfactorily until May 2011.

From late 2008 the roof had a hole in it, which allowed water to leak through on to the ceilings upstairs. Damp patches developed and water leaked into the bathroom. Patch repairs by the landlord were inadequate. The roof problems had worsened by late 2009 such that water leaked in through the ceilings and the claimant’s bedroom ceiling collapsed. The claimant had to sleep downstairs for a period of a year because of the leaks and dampness and state of his bedroom ceiling. The claimant had a pre-existing diagnosis of asthma, which he complained had been aggravated by the condition of the property.

At trial, District Judge Moss found the landlord liable.

Damages found:
£750 for the defective storage heaters and faulty hot water system for the period November 2007 to the end of March 2008 (equating to around 40 per cent of the rent for that period).
£3,750 for the intermittently functioning heating and hot water system from November 2008 to May 2011 (equating to approximately 30 per cent of the rent for that two-and-a-half year period);
£1,500 for the disrepair to the roof and the associated state of the ceilings upstairs and of the damp from late 2008 to late 2009 (equating to approximately 30 per cent of the rent for that year).
£2,500 for the leaks and dampness between the end of 2009 until the end of 2010 when the position worsened significantly and the claimant had to sleep downstairs and was unable to use the upstairs of the property (equating to approximately 50 per cent of the rent for that year).
(In total, between the end of 2008 and the end of 2009 general damages of approximately 60 per cent of rent. For the period from the end of 2009 to the end of 2010 general damages of approximately 80 per cent of rent).
£850 for the aggravation of asthma by the conditions of the property, the aggravation being to the extent of 20 per cent.
£1,250 in special damages.

Comment
it is good to see a greater adoption of the English Churches v Shine approach of a notional reduction of rent. For social tenants, whose rents have risen considerably, this makes more sense than the old Wallace tariff, as well as making sense in law.

There also seems to be a greater consistency of awards than in previous years, though as Wade v Dormeuil shows, there are District Judges willing to entertain nonsense arguments – not giving up a tenancy cannot be a failure to mitigate loss.

Leasehold disrepair will be a growing trend, certainly I have quite a few case, but there are uniqoe issues. While the damages will be higher, based on notional open market rental value (Earle v Charalambous) and potentially for a 12 year period, there will be the potential for a proportion of the costs of work to be recharged to the leaseholder. This needs to be dealt with, and I suspect many practitioners won’t know how.

Legal aid is all but unavailable, except for counterclaims to rent arrears possession claims. Legal Aid will only cover an order for works for urgent, health threatening, defects, not a damages claim. The flip side of this, for defendants, is that they should be aware that a claim funded by a CFA means that the Claimant’s solicitors are pretty confident about their case.

Another Court of Appeal disrepair judgment! I can barely contain myself. And on a fairly important issue too. So..

Edwards v Kumarasamy [2015] EWCA Civ 20

Mr Edwards rented a second floor flat from Mr Kumarasamy. Mr K was the leaseholder of that flat, but did not own any other part of the property. Mr K’s lease granted him “the right to use on foot the entrance hall, lift and staircases giving access to the flat; the right to use an access road and parking space and the right to use the Bin Store (which is part of the Communal Areas as defined) and other facilities provided by the landlord. Regulations forming part of the lease in fact require all domestic rubbish to be placed in the Bin Store.”

While the freeholders of the block covenanted under Mr K’s lease to “keep the Communal Areas in good and substantial repair, and to keep passageways and footpaths forming part of the building in good order and condition”, but the lease also contained a clause limiting the freeholder’s liability for any defect unless the tenant (Mr K) had given notice of it and freeholder had had a reasonable time to carry out repairs.

Mr E was taking rubbish out to the Bin Store when he tripped over an uneven paving stone in the pathway between the front door of the block and the communal bins in the car park and injured his knee. It is worth noting that this paved path was the principal means of access to the whole block of flats. It was common ground that Mr E had not given previous notice of the uneven slab to Mr K, nor had Mr K to the freeholder.

Mr E brought a claim under s.11 Landlord and Tenant Act 1985 against Mr K.

At first instance, the DDJ found that the path was part of the structure and exterior of the flat, so fell under Section 11(1). Damages of £3750 were awarded. This was overturned on appeal to a Circuit Judge, who found it was not part of the structure and exterior. However, a new argument was raised by Mr E before the CJ, that Mr K’s liability for the path fell under s.11(1A). The CJ found that this liability was not engaged because there had been no notice of the defect.

Hence to the Court of Appeal.

S.11 Landlord and Tenant Act 1985 (as amended) provides – as far as relevant:

(1) In a lease to which this section applies …there is implied a covenant by the lessor—
(a) to keep in repair the structure and exterior of the dwelling-house (including drains, gutters and external pipes)…
(1A) If a lease to which this section applies is a lease of a dwelling-house which forms part only of a building, then, subject to subsection (1B), the covenant implied by subsection (1) shall have effect as if—
(a) the reference in paragraph (a) of that subsection to the dwelling-house included a reference to any part of the building in which the lessor has an estate or interest…
…
(1B) Nothing in subsection (1A) shall be construed as requiring the lessor to carry out any works or repairs unless the disrepair (or failure to maintain in working order) is such as to affect the lessee’s enjoyment of the dwelling-house or of any common parts, as defined in section 60(1) of the Landlord and Tenant Act 1987, which the lessee, as such, is entitled to use.
(3A) In any case where—
(a) the lessor’s repairing covenant has effect as mentioned in subsection (1A), and
(b) in order to comply with the covenant the lessor needs to carry out works or repairs otherwise than in, or to an installation in, the dwelling-house, and
(c) the lessor does not have a sufficient right in the part of the building or the installation concerned to enable him to carry out the required works or repairs,
then, in any proceedings relating to a failure to comply with the lessor’s repairing covenant, so far as it requires the lessor to carry out the works or repairs in question, it shall be a defence for the lessor to prove that he used all reasonable endeavours to obtain, but was unable to obtain, such rights as would be adequate to enable him to carry out the works or repairs

There were two key issues before the Court of Appeal.

i) Were the paving stones part of the ‘building’ for the purposes of s.11(1A)?
ii) Did liability under s.11(1A) arise only on notice of the defect?

Firstly – and very interestingly – the Court of Appeal found that Mr K’s “right to use the front hall, the car parking space and Bin Store and other facilities provided by the landlord take effect as legal easements. He therefore has an estate or interest in the paved area where Mr Edwards sustained his accident”. This will be of wider effect, as any leaseholder landlord in a block will usually have similar rights to common parts, access ways etc.. So s.11(1A) will apply in respect of those areas, given that a right to use them is to be taken to be equivalent to ‘an interest’ in those parts.

The answer to i) was fairly brief. The ‘building’ in s.11(1A) must be understood as ‘structure and exterior of the building’ (Niazi Services Ltd v van der Loo [2004] EWCA Civ 53). The paved path, as the entrance way to the building, should be considered as part of the exterior (Brown v Liverpool Corporation (1983) 13 HLR 1). It was the ‘exterior of the front hall’.

On ii) the Court of Appeal (rightly) observed that the common law position was that liability for lack of repair commenced as soon as the defect arose. “The general rule is that a covenant to keep premises in repair obliges the covenantor to keep them in repair at all times, so that there is a breach of the obligation immediately a defect occurs”. The exception to this rule is where the defect arises in the demised premises themselves, in which case liability arises only when the landlord “has information about the existence of the defect such as would put a reasonable landlord on inquiry as to whether works of repair are needed and he has failed to carry out the necessary works with reasonable expedition thereafter” (British Telecommunications plc v Sun Life Assurance Society plc [1996] Ch 69).

In terms of this case, there is also a common law principle on easements, where “there has been an express grant of an easement the grant will carry with it an ancillary right on the part of the dominant owner to carry out repairs on the servient owner’s land in order to make the easement effective. Thus in the case of the grant of a right of way the dominant owner is entitled to repair the way.” On this principle, Mr K did have the right to repair the path, something that the Judge below had considered that he did not.

The interrelation of common law and s.11(1A) had been dealt with by the Court of Appeal in Passley v Wandsworth LBC (1998) 30 HLR 165, where pipes on the roof of a block had fractured in a cold snap, flooding Mr P’s flat. Wandsworth were found to be liable under the covenant irrespective of notice.

The landlord’s covenant to repair under the statutory covenant depended on the facts, whether the defect was part of ‘the structure or exterior’. This was regardless of the extent of the demise (Campden Hill Towers Ltd v Gardner [1977] QB 823). [Though this was a pre 1985 Act case, and how does it sit with Lucie Marie-Antoinette Campbell v Daejan Properties Ltd [2012] EWCA Civ 1503 – though that lease did distinguish between ‘house'(building) and ‘premises'(demise) – NL]

Campden Hill was decided after O’Brien v Robinson [1973] AC 912, which concerned the predecessor to s.11 had had found that the repairing obligation only arose on notice (but was a case concerned with the interior of the demise). The lack of any reference in Campden Hill to O’Brien should be taken to mean that the principle that notice requirements only applied to the demised premises, not the broader ‘structure and exterior’ was approved, at least tacitly.

Lastly, there was no provision for notice in, or attached to s.11(1A) in statute, despite the pre-existing common law position.

S.11(1A) did not only apply to defects that in the structure and exterior of the building that affected the demise:

Although this might be a pragmatic way of limiting the landlord’s liability I cannot find it in the words of the statute. An argument of this nature would have been equally applicable to the landlord’s covenant considered in Sun Life, and indeed a similar argument was advanced on the landlord’s behalf. But in Sun Life, as we have seen, the critical division was between what was demised and what was not. Moreover, as I have said we are in the territory of implied terms, and necessity rather than mere reasonableness is the touchstone.

S.11(3A) was not rendered useless by immediate liability, contra Mr K’s argument. While the landlord might not have have the chance to use ‘reasonable endeavours’ to get the superior landlord to carry out works without notice, it would still operate to limit liability over an extended period:

I acknowledge that a conclusion that liability arises without notice does mean that section 11 (3A) has a lesser effect than it might otherwise have had. But it is by no means useless. It is a commonplace that a liability to repair is frequently a continuing liability and many tenants make claims for loss and discomfort sustained over lengthy periods. In the Niazi case, for instance the complaint lasted for the best part of three years. In such a case section 11 (3A) would enable the landlord to stop liability from continuing to accrue.

With a brief, polite disagreement with Dowding & Reynolds (5th ed para 20-37) on notice being required for the extended covenant, the Court of Appeal concludes. A last ditch argument by Mr K that the paving stones were uneven, not in disrepair had not been raised below and could not be considered now.

Appeal allowed.

Comment

In some part, this is simply a confirmation of Passley v Wandsworth principles on immediate liability on the defect arising, without notice. But there are some very interesting additions.

The disrepair to ‘structure and exterior’ under the extended S.11(1A) covenant does not have to directly affect the tenant’s demised property.

The landlord’s ‘interest’ in the part of the ‘building’ – construed as ‘structure and exterior’ – can be a right of use or passage granted under the lease, in effect an easement.

The common law right of the dominant owner of an easement to carry out repairs to the subservient owner’s property – in situations where the claimant’s landlord is a leaseholder, this could well be of significance.

There is a lot worth thinking about here in respect of disrepair claims, both under section 11, and, in respect of the easement right to repair point, perhaps some disrepair claims by leaseholders too, where there is an intermediate head leaseholder (as s.11 doesn’t apply).

After the Teather ‘revenge eviction’ member’s bill was talked out by a couple of Tory MPs, (Chope and Davis), the question was would the proposals survive in another form before the election.

Well today, the DCLG announced the Government’s proposed amendments to the Deregulation Bill – just headed to the Lords before Third reading in the Commons. We assume that Chope and Davis won’t pull silly games with Govt amendments…

The proposals aren’t wholly the same as the Teather version. There are some distinct problems, both practically and legally, but also some additional amendments around s.21 that are of interest.

The substance of the retaliatory eviction amendments are:

Preventing Retaliatory eviction

(1) Where a relevant notice is served in relation to a dwelling-house in
England, a section 21 notice may not be given in relation to an assured shorthold tenancy of the dwelling-house-
(a) within six months beginning with the day of service of the relevant notice, or (b) where the operation of the relevant notice has been suspended, within six months beginning with the day on which the suspension ends.

(2) A section 21 notice given in relation to an assured shorthold tenancy of a dwelling-house in England is invalid where-
(a) before the section 21 notice was given, the tenant made a complaint in writing to the landlord regarding the condition of the dwelling-house at the time of the complaint,
(b) the landlord-
(i) did not provide a response to the complaint within 14 days beginning with the day on which the complaint was given,
(ii) provided a response to the complaint that was not an adequate response, or
(iii) gave a section 21 notice in relation to the dwelling-house following the complaint,
(c) the tenant then made a complaint to the relevant local housing authority about the same, or substantially the same, subject matter as the complaint to the landlord, (d) the relevant local housing authority served a relevant notice in relation to the dwelling-house in response to the complaint, and
(e) if the section 21 notice was not given before the tenant’s complaint to the local housing authority, it was given before the service of the relevant notice.

(3) The reference in subsection (2) to an adequate response by the landlord is to a response in writing which-

(a) provides a description of the action that the landlord proposes to take to address the complaint, and
(b) sets out a reasonable timescale within which that action will be taken.

(4) Subsection (2) applies despite the requirement in paragraph (a) for a complaint to be in writing not having been met where the tenant does not know the landlord’s postal or e-mail address.

(5) Subsection (2) applies despite the requirements in paragraphs (a) and (b) not having been met where the tenant made reasonable efforts to contact the landlord to complain about the condition of the dwelling-house but was unable to do so.

(6) The court must strike out proceedings for an order for possession under section 21 of the Housing Act 1988 in relation to a dwelling-house in England if, before the order is made, the section 21 notice that would otherwise require the court to make an order for possession in relation to the dwelling-house has become invalid under subsection (2).

(7) An order for possession of a dwelling-house in England made under section 21 of the Housing Act 1988 must not be set aside on the ground that a relevant notice was served in relation to the dwelling-house after the order for possession was made.

A ‘Relevant Notice’ is

(a) a notice served under section 11 of the Housing Act 2004 (improvement notices relating to category 1 hazards),
(b) a notice served under section 12 of that Act (improvement notices relating to category 2 hazards), or

(c) a notice served under section 40(7) of that Act (emergency remedial action);

“section 21 notice” means a notice given under section 21(1)(b) or (4)(a) of the Housing Act 1988 (recovery of possession on termination of shorthold tenancy).

Note, not a hazard warning, or an EPA s.80 notice. Nor an early notification letter from a legal representative, or service of an expert’s report under the pre-action protocol, or anything else one might reasonably regard as a trigger event for the landlord having failed to carry out repairs.

So, the process is: tenant writes to landlord or agent (assuming either can be found) giving notice of problem. landlord has reasonable time to sort. If not, tenant complains to Council. EHO inspects. Improvement/remedial action notice issued. At that point, any s.21 issued after the tenant’s written notice becomes invalid, including in ongoing possession proceedings (see (6)).

What this means is not only that an Improvement/Remedial notice is the only way to trigger the ‘invalid s.21′, but that there is a definite timescale – if a possession order has already been made, a subsequent notice by the Council is of no effect in overturning the possession order.

There is an exception for the defect/issue being caused by untenant-like behaviour (which will be fun with mould issues), or where the property is up for sale (with restrictions).

The whole shebang is utterly reliant on Council EHOs reacting and serving notice within the ‘section 21 notice period and possession proceedings before possession order’ timescale. Say 3 months – but could be less, depending on ‘reasonable period from tenant’s notice and date of service of s.21. This action by the council is crucial.

And of course, tenants will have to know to go to the Council EHOs (and persevere in doing so).

Also, Housing Associations are excepted (why?) and this will, for the first three years, only apply to new ASTs after the Act to be is in force. This latter puzzles me, as service of a s.21 after the commencement date would not be retrospective legislation. Does the DCLG want to give landlord a chance to retaliatorily evict their existing tenants?

The other interesting bits are a ban on service of a s.21 with the first 4 months of an AST and a provision that:

21A Compliance with prescribed legal requirements

(1) A notice under subsection (1) or (4) of section 21 may not be given in relation to an assured shorthold tenancy of a dwelling-house in England at a time when the landlord is in breach of a prescribed requirement.

(2) The requirements that may be prescribed are requirements imposed on landlords by any enactment and which relate to-
(a) the condition of dwelling-houses or their common parts,
(b) the health and safety of occupiers of dwelling-houses, or
(c) the energy performance of dwelling-houses.

(3) In subsection (2) “enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978.

(4) For the purposes of subsection (2)(a) “.common parts” has the same meaning as in Ground 13 in Part 2 of Schedule 2.

(5) A statutory instrument containing regulations made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

So, we shall see what, if anything, turn out to be prescribed requirements.

There is a further provision for a requirement for provision of information to the tenant by the landlord, such as may be prescribed by regulation. Again, we shall see.

And I can’t resist – given that the RLA maintain their ridiculous claim about already existing defences to a s.21 possession claim, despite it being dismantled – pointing that the RLA put out a press release claiming that the Govt amends meant that a s.21 notice was invalid if served after a tenant had made a repair complaint. The RLA really do have an interesting approach to legal analysis.

I recently found myself reading and writing about the Court of Appeal judgement in Edwards v Kurasamy (our report here). Doing so made me think about the recent spate of judgements given by Lewison LJ that have touched on the private rental sector. I am thinking here of Spencer v Taylor (which we analysed here), Charalambous v Ng, and now Edwards v Kumarasamy. (our report). All of these are cases that touch primarily on the Private Rented Sector and all of them feature leading judgements by Lewison LJ. These are not of course the only big PRS cases to come from the CoA recently so I am not suggesting that Lewison LJ is the only CoA judge dealing with the PRS (see McDonald v McDonald for example) but he does seem to be getting a healthy majority right now.

There are notable parallels in these judgements:

• They were fairly controversial
• They all involved a return to the statute and a tight reading of it
• They upset received wisdom about what the provision meant.

To throw in my own piece of controversy I also think every one of these decisions was absolutely correct. Not correct in a moral sense or even correct on the sense that this is what was intended all along but undoubtedly correct in that they give a precise reading of the statue and must therefore be seen as an accurate reflection of the will of Parliament. The fact that they caused surprise and upset is perhaps more a reflection of the manner in which housing lawyers (and I include myself in this critique) have become complacent in their reading of the law.

Consider the evidence more carefully.
In Spencer Lewison engaged in a close reading of s21(1) and 21(2), Housing Act 1988. He concluded that s21(2) used the word “may” and therefore must on a plain English reading be seen as permitting the service of a notice under s21(1)(b) rather than directing it. He then looked at s21(1)(b) and again reading it plainly concluded that it in no way prevented the service of a notice provided that there had previously been a fixed term tenancy of some sort. Notably this was not how the case had been argued before him and differed somewhat from previous readings but he drew support from this material and used it to bolster the essential close reading of the Act. This decision has been criticised but notably primarily on the basis of policy and on what Parliament is assumed to have intended more than on the actual wording of the Act.
In Charalambous we had a close reading of s213 and particularly s215, Housing Act 2004. Here a diasctintion was drawn between the financial penalties fund under s213 and the s21 penalties under s215. Lewison LJ made clear that the penalties under s215 bite on this case because they plainly state that they required the registration of a deposit before service of a notice under s21. Again the intention of Parliament was raised but dismissed as a point in the face of the cold wording of the Act. It is worth noting paragraph 17 of this decision in which Lewison LJ begins:

Let me begin by looking at what section 215 (1) actually says.

No clearer statement of his approach to these cases could be made by me.
In Edwards Lewison’s attention was turned to s11, Landlord & Tenant Act 1985. By this stage we should have been expecting it. But actually Lewison LJ tells us again how he is reading these statutes. In dismissing an argument put to him he states that he “cannot find it in the words of the statute”. Again, no clearer statement of his approach is required. And so we find that a landlord’s repairing obligations extend beyond that which he has demised to the tenant and into any part in which he has a property right and further that outside the ambit of the demised property a tenant is not obliged to give notice to the landlord of a want of repair.

Lewison LJ appears not to be the only judge doing this. Consider Superstrike v Rodrigues (our report here) in which Lloyd LJ gave the leading decision (although Lewison LJ was on that panel too and may well have had an influence). There the word “received” in s213(1) of the Housing Act 2004 was given a very plain reading. Lloyd LJ concluded that this meant any receipt of money in respect of security whether as a direct payment or by way of transfer from one contract to another. Not as clear an example as those given above and without the very direct flags given by Lewison LJ but still with a similarity of approach.

So what does this mean for housing law?
It is a concern that these cases have come up recently. It leads me to the conclusion that I have been lazy! Essentially residential landlord and tenant lawyers have stopped looking closely at the legislation and simply become parrots of received wisdom. In the terms of an Americanism that I heard recently we have been “drinking the Kool Aid”. If there are three or four areas in which we are wrong as to what the law says then there are likely to be more. The second point is that the CoA here appears to be looking at the legislation without considering the policy issues and largely avoiding the Hansard as an aid to interpretation unless the wording of the Act is very unclear. Is this the start of a new trend in the CoA? If so then lawyers approaching them had best make sure they know what the relevant Act really says rather than what they think or want it to say.

I expect there will be more surprises to come in 2015. I know I will be looking at the core legislation that I previously thought I knew to make sure I am right!

There is reason for Rigsby to look worried in Uddin & Anor v LB Islington (2015) CA Civ Div 10/03/2015 [Lawtel note only so far.]

This was Islington’s appeal of a first instance decision awarding the tenants damages for breach of repairing obligations.

The property was a maisonette on the basement and ground floors of a converted Victorian house. Soon after the start of the tenancy, the tenants complained of rising damp, which went unremedied for, it appears, many years. Works in 2009 had not prevented the problem.  At first instance trial, the Judge held for the tenants, finding a defective damp proof course caused the rising damp and that there was a breach of s.11 repairing obligations.

Islington appealed, arguing variously:

(1) the judge had been wrong to rely on two 2004 surveyors’ reports included in the trial bundle;
(2) there was not sufficient evidence to support the judge’s finding that there had been a defective damp-proof course;
(3) the claim had been insufficiently pleaded;
(4) the judge had wrongly changed the date in his draft judgment from which damages were to run.

On the various procedural points:

The surveyors’ reports had been included in the trial bundle without dissent, so the reports were admissible under CPR PD 32 para 27 to prove the truth of their contents. Islington’s argument that the judge admitted the reports not as evidence of the truth of their contents but only as showing that the property had been inspected and reports had been made was dismissed.

On the Particulars, pleadings were not an end in themselves and it had been plain to Islington what the case was it had to meet. Any doubt could have been addressed by Part 18 request.

On the change of date for the start of damages in the draft judgment, the Judge had received further submissions on that date in response to the draft, and could vary the judgment before it was handed down. Circumstances for this to happen did not have to be exceptional.

So, to the main issue.

It appears that Islington argued that the Judge at first instance was wrong to find that there was a defective damp proof course, as there was no damp proof course. From there, the argument appears to have been that this was an inherent defect.

The Lawtel note gives no detail of Islington’s argument, but my guess would be reliance on a line of cases such as Pembery v Lamdin [1940] 2 All ER 434, Post Office v Aquarius Properties Ltd [1987] 1 All ER 1055, and Janet Reger International v Tiree [2006] EWHC 1743 (Ch), where an absence of deterioration (where there were absent or even defectively installed DPCs) meant a lack of liability for works to rectify damp penetration. As per Pembery, works would involve giving the tenant a different thing from that which was demised. It would be an improvement.

The Court of Appeal disagreed. If there was no DPC, resulting in rising damp, the first question was whether it had resulted in disrepair. The mere existence of damp was not disrepair. If there was damage or deterioration, such as defective plaster, the repairing obligation would be engaged and might extend to installing a DPC to prevent further damage (as per Elmcroft Developments Ltd v Tankersley-Sawyer (1984) 15 HLR 63). While Elmcroft concerned an ineffective DPC, the same principle applied where there was no DPC.

Thus an inherent defect could give rise to liability for breach of repairing obligation if it gave rise to damage, and may require remedying of the inherent defect as a part of the repairing obligation.

In the present case, there was some evidence of a post-Victorian DPC, which was clearly ineffective or had become so, but in any event, the Judge’s decision was that, whether or not there was a DPC, there was a duty to repair and the existence of the rising damp and the damage it had caused indicated a failure to repair by Islington.

Comment

If anyone has a copy of the actual Court of Appeal Judgment, I would be very keen to see it.

It is perhaps worth pointing out that in Janet Reger International, there was substantial damage caused by the water penetration, but only to parts covered by the tenant’s repairing obligation, not the landlord’s. There was no deterioration to the structure, or to the ineffective DPC. So, the damp caused by an absent DPC must cause damage which would itself fall under the landlord’s repairing obligation in order to give rise to liability for the inherent defect. This may be less straightforward to establish in leasehold cases than in tenant cases.

Nonetheless, this is welcome clarity from the Court of Appeal on the issue of absent DPCs. Certainly the inherent defect/improvement line has been argued by plenty of landlords to deny liability. It is now much more clearly a question of fact and degree as to whether installing a DPC is a reasonable or necessary step to remedy the disrepair. In principle, there certainly can be liability.

On the issue of whether damp in itself is disrepair, it is worth recalling this County Court case on saturated plaster as disrepair, which I understand was appealed and the appeal judgment due shortly.

There are new pre-action protocols in force from today, 6 April 2015, including the following:

• The Pre-Action Protocol for Judicial Review
• The Pre-Action Protocol for Housing Disrepair Cases
• The Pre-Action Protocol for Possession Claims by Social Landlords
• The Pre-Action Protocol for Possession Claims Based on Mortgage or Home Purchase Plan Arrears in Respect of Residential Property

The only problem is that they haven’t been made available. The Justice.gov.uk protocols page was last updated on 21 October 2014.

So, while hoping that they magically appear first thing on the morning of 7 April 2015, we are currently required to rely on and comply with completely mysterious pre-action protocols.

Davis Solicitors LLP v Raja & Anor [2015] EWHC 519 (QB)

A cautionary tale on how, when things go badly wrong, it is, by and large, better not to take active steps to make them worse.

Davis Solicitors LLP (a sole practitioner practice run by Nancy Ballard, who appeared for the claimant) had acted for the Defendants, Raja and Riaz, in a disrepair claim relating a boiler in the property in which they were tenants.

It appears that the claim was not particularly well dealt with, because when Davis made a claim for fees of £2,970 plus interest and costs, the Defendants counterclaimed for damages for consequential losses incurred as a result of the alleged breach of duty and negligence of the Claimant. And won, at a one and a half day trial. They were awarded £6590 plus costs and interest, with the total judgment sum against the Claimant being £21,613.08 to be paid by 28 February 2014. The Deputy District Judge’s judgment found

“It is difficult to conceive of a worse case in relation to poor service and a breach of the implied term in relation to reasonable skill and care.

The work undertaken by this Claimant has been shoddy, has failed to consider or make an assessment of the case as it developed, has failed to advise or have regard to the fact that the Defendants were not indigenous to England and their knowledge of the law and customs was challenging to them. Above all the Claimant has been negligent. I am satisfied to the requisite standard of proof.”

The Claimant, via Ms Ballard, filed a notice of appeal, seeking permission to appeal. On 11 February 2014 HHJ Wulwik at Central London County Court granted a stay of execution and ordered the Claimant to file a transcript of the hearing before the DDJ. Then on 3 March 2014 HHJ Wulwik ordered the Claimant to file a skeleton argument and appeal bundle by 17 March, with a unless order striking out the appeal and discharging the stay of execution in default.

On 31 March 2014, following a letter form the Defendants, and noting that a skeleton argument had been filed on 17 March, but no appeal bundle in accordance with CPR PD 52B.6, HHJ Wulwik struck out the application and discharged the stay. The Claimant wrote complaining that “This is extremely unfair and concerning when the appeal bundle was filed with the Court on the 31st December 2013. The bundle consisted of the full papers in the Trial bundles.”

The Court’s response was that a) there was no trace of a bundle filed on 31 December 2013 [To be fair, it has to be said that this will not necessarily surprise many users of CCLC at that time.], b) Filing the original trial bundle would anyway not have complied with the requirements of CPR Practice Direction 52B.6 at 6.4. The Claimant must make such application as it saw fit.

Davis applied for relief from sanctions. This was dismissed by HHJ Mitchell on 1 August 2014 on the basis that 1) no appeal bundle had been served on the Defendants, 2) no CPR PD 52 compliant bundle had been filed with the Court and in fact still hadn’t been.

this is not a trivial breach. It could have been remedied by filing an appellant bundle, with the application for relief from sanctions and I would almost certainly have granted relief. But the case has just wandered on without that having been done and I am being faced with having to rummage through the papers to try and make sense of what is being said.

HHJ Mitchell also observed that the merits of the appeal did not seem at all strong.

Davis then filed a notice of appeal to the Court of Appeal. On oral permission hearing, Davis’ grounds were:

i) the breach was not significant;

ii) but for the Defendants’ solicitor sending a letter dating 19 March 2014 to Judge Wulwik contending that the Claimant had not complied with his order, the judge would not have struck out the Claimant’s appeal. The Defendants’ action in this regard was “opportunistic” (per judgment in Denton at para 40);

iii) the judge erred in considering the merits of the appeal.

It would be fair to say this did not go well. At all or in any respect.

On the insignificance of the breach, the Court of Appeal is forthright on the requirements for an appeal bundle:

Paragraph 6.3 of PD 52B requires an appeal bundle, paginated and indexed, to be filed as soon as practicable, but in any event within 35 days of the filing of the Appellant’s Notice, which in this case was by 4 February 2014. Paragraph 6.4 identifies the documents that must be included in the appeal bundle and the documents that should also be considered for inclusion. Not only did the Claimant fail to comply with the Practice Direction, but Ms Ballard ignored the ‘unless’ order of Judge Wulwik of 3 March 2014 relating to the lodging of an appeal bundle. She made no application to set aside the ‘unless’ order. It was only after the order of 31 March 2014 striking out the appeal that she wrote to the court. In fact, as Mr Dean, for the Defendants, observes it was not strictly necessary for the judge to make the order of 31 March 2014 as the Claimant’s failure to lodge an appeal bundle by 4pm on 17 March 2014 would have resulted in the appeal being struck out without further order, pursuant to the terms of the order of 3 March 2014.

Ms Ballard’s explanation for not having even filed the appeal bundle before the hearing of the application for relief from sanctions also went down badly:

she states that the reason she made no attempt to correct the breach or even to serve an appeal bundle before the hearing before Judge Mitchell was because she did not think that filing an appeal bundle would assist. She thought, she says, that what was important was to make an application for relief from sanctions as promptly as possible. She stated that she thought it was only necessary to have an appeal bundle once permission has been granted. She did not appear to appreciate the need for applications for permission to appeal to be presented in accordance with the rules so as to ensure the effective management of the appeal process at the permission stage.

And apparently, Davis had still not actually filed a compliant appeal bundle.

Ms Ballard made the point before Judge Mitchell, in her grounds of appeal (para 9) and in her written submissions to this court (para 2), that the Claimant was not in breach of PD 52B 6.5. This is correct, however it illustrates her failure to appreciate the importance of complying with PD 52B 6.3 and 6.4. Even now Ms Ballard has produced an incomplete and not properly paginated “Appeal Bundle”. I can well understand the difficulties that Judge Wulwik and Judge Mitchell must have encountered when dealing with this case in the absence of any appeal bundle.

The breach was serious and significant. Ms Ballard’s attempt to explain continuing non-compliance “indicate a continuing lack of understanding of the importance of the rules.”

The idea that the Defendants had pounced opportunistically was dismissed, as the order of 3 March 2014 had resulted in an automatic strike out when the Claimant failed to comply. In any event, the order of 31 March 2014 didn’t rely on the Defendant’s letter.

And having considered the grounds of appeal, HHJ Mitchell was “plainly entitled to form the view that the merits of the appeal “do not seem to be very strong”

Appeal dismissed.

Comment
So what lessons to draw from this?

1. Don’t mess up a disrepair claim so badly you end up owing your clients £20K in a judgment debt.

2. If you have ignored 1. then make sure you have filed a CPR PD 52B 6 compliant appeal bundle within 35 days of the notice of appeal (or got extensions from the court if needed).

3. If you have ignored 2. don’t ignore any unless orders and file the compliant bundle in time. Really.

4. If you have overlooked 3. and are applying for relief from sanctions, file the compliant appeal bundle. No, really, really this time.

5. If 4. escaped you and you are seeking permission to appeal from the Court of Appeal, make sure the appeal bundle for the Court of Appeal is CPR PD 52B 6 compliant. Given that this is the issue in your appeal.

6. Oh, and have grounds of appeal at stages 2, 4 and 5 that actually have some perceivable merit and address the relevant bits of the judgment against you.

*the old joke of a local being asked for directions to X by a tourist and getting the reply ‘Well I wouldn’t start from here’.

Williamson v Khan. Birmingham County Court. Claim No: 3YS66585 (12 March 2015).

Disrepair claims against private landlords are often interesting. Not least because said landlords have a tendency to take ridiculous positions and stick with them to trial, even when represented. This case is a glorious example of that. (A full copy of the judgment can be downloaded here, if interested.)

Ms Williamson had been the assured shorthold tenant of Mr Adalat Khan since October 2002. She was evicted in April 2013 after Mr Adalat Khan brought a possession claim for rent arrears – of which more later on, including the money judgment for £1,237.75 involved.

Ms W subsequently brought a claim for disrepair (damages only, due to the eviction. It is worth noting that legal aid funding was granted pre LASPO. it would no longer be possible to get legal aid funding for such a case).

The property was a one bedroom flat on the ground floor of a detached house converted into 5 flats. The claimant’s case was that there had been disrepair throughout the tenancy:
i) No hot water between February 2004 – October 2007 and January 2011 – April 2013
ii) Inadequate and defective heating throughout the tenancy
iii) Rising and penetrating damp
iv) leaks from kitchen waste pipe, bathroom basin and defective rainwater goods
v) infestations of rats due to defects in the structure
vi) Perished and defective plasterwork
vii) Holes in floorboards
viii) External brickwork, rendering and boundary wall in disrepair
ix) External paving damaged
x) Drainage problems resulting in offensive odours in the property.

This was largely supported by an expert report from 8 March 2013 and photographs taken by Ms W’s solicitor at the time.

Much of the case rested on the Claimant’s evidence. This can be tricky (I am still smarting from a recent trial, even though successful in the end), and here the Defendant’s approach was to attack the Claimant in every way possible.

Ms W was open that she suffered from poor mental health, with bi-polar disorder, depression, agoraphobia, extreme anxiety and insomnia. She had had a heroin addiction and remained on a prescribed substitute.

The Defendant’s case was basically that there was no disrepair, or if there was he wasn’t told about it, except on two occasions when works were done in a couple of days. The boundary wall and paving weren’t covered by section 11 Landlord and Tenant Act 1985. Any other defects had been caused by the Claimant – she had failed to pay gas and electric bills because of her drug habit, and this caused condensation. He further alleged that the Claimant hadn’t contacted him because other tenants had complained about her behaviour and her visitors, who had also caused damage to the property.

The Defendant also counterclaimed for rent arrears of £4293.52 and bailiff’s fees of £210, over and above the arrears in the previous money judgment.

The trouble for the Defendant was that he could not substantiate any of this (apart from the other troubles, which we’ll come on to).

The Defendant alleged that the original rent was £89.50 pw (not £89 as asserted by the Claimant) and that on 1 October 2008, the rent rose to £110 pw, which the Claimant denied. But the Defendant could produce absolutely no paperwork about this at all, apart from a retrospective rent schedule. An HB award of full rent of £89 pw was the only real record. As the court found

“Even after extensive cross examination of the point it was clear that not only did the Defendant have no idea what sums he alleged were outstanding but neither did both counsel or the Court. Despite repeated efforts to understand the Defendant’s case on the point I was, even by the end of the case, still unclear as to how he alleged he had calculated the alleged arrears. Indeed, by the end of the case both the Defendant and his own counsel accepted that they did not understand how the Defendant’s counterclaim had been calculated”. In fact, the Defendant admitted he couldn’t even be certain how the sum of arrears in the judgment debt had been calculated.”

It should not be a surprise after that that the counterclaim failed entirely. But the problems did not end there for Mr Khan. The assessment of the reliability of witness evidence was clearly going to be key to the case. This was not least because while the Claimant had permission to rely on her expert evidence, the Defendant had done nothing in that regard until applying shortly before trial to rely on an expert report obtained a whole year before. That application had been refused.

Mr Khan’s credibility went out of the window when it became clear that he was lying about the number of properties he owned, which was between 71-81, not the 25 he stated in evidence. He also lied about leaving the Midland Landlord Accreditation Scheme, when he had actually been expelled. He then went on to say he ‘couldn’t recall’ being prosecuted in relation to any of his properties, but had to accept that he had been, twice, for failure to provide fire safety precautions and for failing to conduct gas safety checks.

Mr Khan asserted that his lack of documentary evidence about, well, everything, was because he had lost his files, and the lack of any receipts from workmen was because he didn’t bother to set them against tax. The court did not believe this.

Mr Khan made a last minute – on the first day of trial – application to amend to plead limitation. This despite having had representation, and the claim being some 17 months old. This application was refused, the Defendant ‘having failed to discharge the heavy onus upon him to justify the lateness of the application to amend’.

The Court accepted the Claimant’s evidence in whole, apparently particularly impressed by her returning from a lunch adjournment to voluntarily correct what she had said immediately before the break. She was ‘persuasive, plausible and truthful’.

On the other hand

“As to the Defendant’s evidence, I found him to be a thoroughly unimpressive witness. he was evasive in his answers. he often pretended not to understand even the most basic questions and was extremely reluctant to make any concession on any point. Even when confronted with incontrovertible evidence such as the extent of his property portfolio, his convictions, the notice by the Health and Safety Executive in respect of his failings as a landlord and his expulsion from the Midland Landlord Accreditation Scheme he would repeatedly claim he did not know or had forgotten and only agreed after intensive and thorough cross examination. Obtaining a straight and honest answer by the Defendant was, sadly, as difficult as pulling teeth”“His evidence was unconvincing, implausible and untruthful. I have no hesitation in reaching the view that the Defendant not only gave a false account of events but did so quite deliberately with the clear intention of deceiving the Court.”

“Further, it is clear he sought to challenge the truthful account of the Claimant, who remains by any account vulnerable, by a vicious and sustained attack on her character”.

So, the Claimant’s claim upheld in full, including the outside wall and paving – under section 11(1A) L&TA 1985.

On damages, a diminution of rent approach was used, as per Shine v English Churches, for a period of 10.5 years. The award was 80% of rent.

Total damages, £39,093.60, plus the 10% Simmons v Castle uplift, giving a total of £43,002.96.

Costs to the Claimant at the standard rate.

1957 was an important year. Russell Endean became the first man to be out “handled the ball” in a Test Cricket match. Anthony Eden resigned and Harold Macmillan became PM. The Cat in the Hat was first published. And it was the last time that anyone updated the rent levels in the statutory covenants relating to fitness for human habitation.

Which brings me to s.8, Landlord and Tenant Act 1985. Section 8 is, I suspect, a provision that most of you skip over on your way to s.11, 1985 Act. But it deserves your attention. From the Housing of the Working Classes Act 1885 onwards, there had been an implied covenant that rented property would be “fit for human habitation”. The covenant was, in practice, limited to “working class” properties, usually by way of a rental limit.

The most recent form of that covenant is in s.8. Under that provision, there is an implied covenant that a property will be fit for human habitation when let and that the landlord will ensure it remains so during the tenancy. It only applies, however, to leases of less than three years where the rent is less then £80 p.a. (London; £52.p.a elsewhere). For leases granted before 1957, the rent limits are even lower.

Remarkably, these rent limits were not increased after 1957 and the effect of inflation since then has been to deprive this provision of any meaning. This sad state of affairs has been remarked upon by the Law Commission in 1996, which produced a draft Bill to modernise repairing covenants in residential leases. That report recommended removing the rent caps in s.8.

As we know, Parliament did nothing. The Court of Appeal has been very critical of this inaction. In Issa v Hackney London Borough Council (1997) 29 H.L.R. 640, the court noted that the failure to update s.8 left tenants

 …wholly without remedy in the civil courts against their landlords, however grievously their health may have suffered because they are living in damp, unfit conditions…

Likewise, in Habinteg Housing Association v James (1994) 27 HLR 299:

We are told that the Law Commission has been considering such a problem. It is to be hoped that they will recommend a solution. What is more, it is hoped that if they do, Parliament will carry it out. Judges and lawyers are sometimes reproached when the law does not produce the right result. There are occasions when the reproach should be directed elsewhere.

By the standards of the Court of Appeal, that’s pretty stern stuff.

Which brings us to Karen Buck MP and the Homes (Fitness for Human Habitation) Bill which she has introduced via the Private Members Bill system.* Her Bill repeals the current s.8, LTA 1985 and replaces it with a slightly modified version of the clause drafted by the Law Commission in 1996. In general terms, all leases of less than 7 years would be subject to a covenant that they must be fit for human habitation when let and that the landlord must keep them in such a condition for the duration of the tenancy. The obligation could be enforced by a tenant bringing a damages claim/injunction claim as with the current s.11.

Mindful of the need to strike a fair balance, the Bill protects landlords against unmeritorious claims by exempting damage caused by the tenant himself or by natural disaster and makes clear that it does not apply to property owned by the tenant (e.g. it won’t require a landlord to replace a freezer which belongs to the tenant).

It also updates s.10, 1985 Act by providing that the presence of a Category 1 Hazard (HA 2004) is also to be treated as a factor for assessing fitness for these purposes.

There is more about the Bill on the Red Brick blog (here), including explaining why the present law (s.11, LTA 1985, HA 2004, EPA 1990) doesn’t really protect tenants as well as a modernised s.8 would do.

The second reading of the Bill will be in October. Given that the Law Commission and Court of Appeal have implored Parliament to remedy this problem, and that Wales seems about to do so in the Renting Homes (Wales) Bill, it is to be hoped that it makes progress.

• J and NL had a hand in drafting the Bill. S and Chief helped catch our errors.

HA, R (On the Application Of) v London Borough of Ealing [2015] EWHC 2375 (Admin)

This is, I think, a very significant case for all Councils who have or are considering setting residence requirements in their allocation policies.

Like quite a few councils, certainly in London, LB Ealing changed its allocation policies for Part VI accommodation after the introduction of the Localism Act 2012 and, specifically, it introduced a ‘residence requirement’ – specifically, Ealing’s policy said that “Households that have not been resident in the Borough for the last 5 years” were not eligible for entry onto the housing register. They did not qualify for the housing list at all. There were some small exceptions to this, which we will come to later.

Ms HA “is a mother of 5 children aged 17, 15, 10, 9 and 6 years respectively at the date of the decision. They are victims of domestic violence. Together with the children, she left the London Borough of Hounslow to escape further domestic violence in February 2014.” Ealing had accepted the full homeless duty under Part VII in June 2014, but so far had not found suitable temporary or permanent accommodation. Ms HA applied to join the housing register for Part VI accommodation in December 2014. Within 4 days she received a ‘pro forma’ rejection, which read:

“Following changes to the Allocation Scheme, you do not appear to be currently eligible to join the Housing Register at this time. The changes include:
…
Households will not be able to register for housing in future unless they are able to demonstrate that they have been resident in the borough for five years.
…
Your online application has been removed.”

Ms HA brought a claim for judicial review. The grounds were:
A. The policy is contrary to the statutory scheme provided for by Part VI of the Housing Act 1996 (as amended) by establishing an absolute exclusion from the housing register for those who do not meet the residency requirement (Ground 1).
B. The residency requirement in the policy unlawfully discriminates against women who are victims of domestic violence (Grounds 4 and 5).
C. The policy and the decision in the Claimant’s case were taken in breach of the Defendant’s obligations under section 11 of the Children Act 2004 (Ground 7).
D. The Defendant failed to apply or consider applying the exceptionality provision in the policy in taking the decision in the Claimant’s case, thereby fettering its discretion (Grounds 2 and 3).

The main relevant provision of the Localism Act is section 166A

Section166A
“Allocation in accordance with allocation scheme
(1) Every local housing authority in England must have a scheme (their “allocation scheme”) for determining priorities, and as to the procedure to be followed, in allocating housing accommodation.
For this purpose “procedure” includes all aspects of the allocation process, including the persons or descriptions of persons by whom decisions are taken.
…
(3) As regards priorities, the scheme shall, subject to subsection
(4), be framed so as to secure that reasonable preference is given to—
(a) people who are homeless (within the meaning of Part 7);
(b) people who are owed a duty by any local housing authority under section 190(2), 193(2) or 195(2) (or under section 65(2) or 68(2) of the Housing Act 1985) or who are occupying accommodation secured by any such authority under section 192(3);
(c) people occupying insanitary or overcrowded housing or otherwise living in unsatisfactory housing conditions;
(d) people who need to move on medical or welfare grounds (including any grounds relating to a disability); and
(e) people who need to move to a particular locality in the district of the authority, where failure to meet that need would cause hardship (to themselves or to others).
(4) …
(5) The scheme may contain provision for determining priorities in allocating housing accommodation to people within subsection (3); and the factors which the scheme may allow to be taken into account include—
(a) the financial resources available to a person to meet his housing costs;
(b) any behaviour of a person (or of a member of his household) which affects his suitability to be a tenant;
(c) any local connection (within the meaning of section 199) which exists between a person and the authority’s district.
(6) Subject to subsection (3), the scheme may contain provision about the allocation of particular housing accommodation— (a) to a person who makes a specific application for that accommodation; (b) to persons of a particular description (whether or not they are within subsection (3)).
(7) The Secretary of State may by regulations— (a) specify further descriptions of people to whom preference is to be given as mentioned in subsection (3), or (b) amend or repeal any part of subsection (3).
(8) The Secretary of State may by regulations specify factors which a local housing authority in England must not take into account in allocating housing accommodation.
(9) …
(10) As regards the procedure to be followed, the scheme must be framed in accordance with such principles as the Secretary of State may prescribe by regulations.
(11) Subject to the above provisions, and to any regulations made under them, the authority may decide on what principles the scheme is to be framed.
(12) A local housing authority in England must, in preparing or modifying their allocation scheme, have regard to— (a) their current homelessness strategy under section 1 of the Homelessness Act 2002, (b) their current tenancy strategy under section 150 of the Localism Act 2011, and (c) in the case of an authority that is a London borough council, the London housing strategy.
(13) …
(14) A local housing authority in England shall not allocate housing accommodation except in accordance with their allocation scheme.”

S.169 provides that LAs should have regard to guidance by the Secretary of State. S.160Z sets out various classes of people who are not qualifying people for allocation (immigration status etc) and then at s.160Z(7)

(7) Subject to subsections (2) and (4) and any regulations under subsection (8), a local housing authority may decide what classes of persons are, or are not, qualifying persons.

The 2012 Guidance stated

3.20 In framing their qualification criteria, authorities will need to have regard to their duties under the equalities legislation, as well as the requirement in s.166A(3) to give overall priority for an allocation to people in the reasonable preference categories.

3.21Housing authorities should avoid setting criteria which disqualify groups of people……..

3.22 When deciding what classes of people do not qualify for an allocation, authorities should consider the implications of excluding all members of such groups. For instance, when framing residency criteria, authorities may wish to consider the position of people who are moving into the district to take up work or to escape violence, or homeless applicants or children in care who are placed out of borough.

The December 2013 Guidance stated

12. The Government is of the view that, in deciding who qualifies or does not qualify for social housing, local authorities should ensure that they prioritise applicants who can demonstrate a close association with their local area. Social housing is a scarce resource, and the Government believes that it is appropriate, proportionate and in the public interest to restrict access in this way, to ensure that, as far as possible, sufficient affordable housing is available for those amongst the local population who are on low incomes or otherwise disadvantaged and who would find it particularly difficult to find a home on the open market.

13. Some housing authorities have decided to include a residency requirement as part of their qualification criteria, requiring the applicant (or member of the applicant’s household) to have lived within the authority’s district for a specified period of time in order to qualify for an allocation of social housing. The Secretary of State believes that including a residency requirement is appropriate and strongly encourages all housing authorities to adopt such an approach. The Secretary of State believes that a reasonable period of residency would be at least two years.”

Ealing’s Allocation Policy stated, as noted in the judgment:

f) Households that have not been resident in the Borough for the last 5 years.”

There follows an exception to disqualification on the grounds of a lack of a local connection in relation to categories of members and former members of the armed forces, their bereaved spouses and partners, in compliance with Regulations made by the Secretary of State pursuant to section 160ZA(8) of the Act. The policy then goes on:

“The Council retains the ability, in exceptional circumstances, to exercise it’s (sic) discretion when making decisions with regard to including persons on the Housing Register. Such persons will be referred to the Social Welfare Panel for agreement (e.g. where there is urgent housing need such as mental health issues, but has breached their tenancy agreement or is in the process of having legal action taken against them.)”

So, to the arguments.

On A, HA argued that

a residency requirement or local connection is permissible in determining who may be admitted to a housing list provided it doesn’t preclude people who fulfil the ‘reasonable preference’ list. HA as homeless fell under the ‘reasonable preference’ criteria at s.166A(3). Following R (Jakimaviciute) v Hammersmith and Fulham LBC [2014] EWCA Civ 1438 [our report] and Alemi, R (on the application of) v Westminster City Council [2015] EWHC 1765 (Admin) [our report], it was not permissible to set qualifying criteria that excluded those entitled to a reasonable preference (save that that applicant is disqualified on grounds such as anti social behaviour)

Ealing argued

that the purpose of the statutory amendments introduced by the Localism Act 2011 is to permit local housing authorities to have greater control of their housing allocation schemes in particular by permitting them to specify classes of persons who would not qualify for an allocation;

that statutory guidance which local housing authorities are obliged to take into account has consistently recognised that Residency Conditions are one form of control which may be introduced;

the authorities (R. (Jakimaviciute) v. Hammersmith and Fulham LBC (ante) and R. (Hillsden) v. Epping Forest District Council [2015] EWHC 98 (Admin) confirm that residence conditions are not unlawful per se and can be applied in cases involving reasonable preference; and that

the Claimant does not suggest that a Residence Condition per se (a) does not have an objective or reasonable justification in terms of the reasonable and proper policy aims which the Defendant is pursuing or (b) that there is no reasonable relationship between those two things.

Ealing further argued that “the process could not permit examination of individual circumstances in each application to see if an applicant fell within a reasonable preference category. It was also submitted that, in practical terms, given the demand for social housing, almost no London Borough could adopt residence criteria which make exceptions for those in reasonable preference categories, in particular, homelessness.”

This did not go well. For starters, the Court noted that “four London Boroughs, each with residence criteria, have adopted policies that do. Islington, Newham, Redbridge and Waltham Forest, have policies that provide a form of exception to residence criteria where the applicants are owed a homelessness duty under Part VII of the Housing Act that the Authority has accepted. […] it is evidence of the ability to frame a housing allocation policy in a way that includes a residence requirement yet ensures that the reasonable preference duty is complied with.”

And then on the general operation of Ealing’s policy:

22. The inability of the policy to identify those who meet the 166A(3) criteria but who do not fulfil the residency criteria highlights the consequences of the exceptionality provision. In this case, the Claimant’s application was, on the evidence, automatically rejected because she did not meet the residency criteria. No consideration was given to the 166A(3) criteria under the exceptionality provision, nor could it be under the Defendant’s policy. It is noteworthy that in R. (Jakimaviciute) v. Hammersmith and Fulham LBC and R. (Hillsden) v. Epping Forest District Council (ante) it was not argued that the exceptionality provision could save the authority’s policy. Moreover, paragraph 21 of the 2013 Statutory Guidance identifies in the section dealing with the need for the provision of exceptions from a residency requirement that “In addition, authorities retain a discretion to deal with individual cases where there are exceptional circumstances.” A distinction, therefore, is drawn between general exceptions for people in preference categories and individual applicants in exceptional circumstances.

23. Although a residency requirement is an entirely appropriate and encouraged provision in relation to admission onto a social housing list, it must not preclude the class of people who fulfil the ‘reasonable preference’ criteria. The Defendant’s policy does not provide for the giving of reasonable preference to prescribed categories of persons as required by section 166A(3) of the Act. In this respect the policy is unlawful.

That was the first count of unlawfulness.

On B(1). – Article 14 discrimination against women suffering domestic violence.

HA argued that the residency requirement amounted to indirect discrimination as victims of domestic violence are disproportionately likely to be women and would be less likely to establish residence criteria. Article 14 discrimination was in relation to article 8 rights.

Following R. (Winder and others) v. Sandwell Metropolitan Borough Council (Equality and Human Rights Commission intervening) [2014] EWHC 2617 (Admin) [our report] a residence requirement could amount to indirect discrimination. Art 8 was engaged, and thus potentially Art 14. So the question was whether Ealing could justify the policy.

Ealing argued that the policy was justified “as a whole on the grounds that it is to help those with local connection”, but this did not avail them much.

The Statutory Guidance (2012 paragraph 4.13 and 2013 paragraph 19) is actually supportive of victims of domestic violence. The residual discretion permitted by the policy does not save it if there is no justification for the difference. No assessment has been carried out of the anticipated beneficial effects of the policy on the one hand or the adverse effects on the other. In short, no rational justification has been advanced for treating women fleeing from domestic violence to the Defendant’s borough differently from other applicants for social housing.

Unlawfulness on this ground too.

On B(2) Unlawfulness under s.29 Equality Act

As found in B(1), there was unjustified indirect discrimination against women. As a freestanding ground, s.29 did not require any other rights to be engaged.

The policy was unlawful on this ground, as breach of s.29.

On C – breach of section 11 Children Act 2004

35. By section 11(2) of the Children Act 2004 the Defendant is under an obligation to make arrangement to ensure their functions (in this case as a local housing authority) are discharged having regard to the need to safeguard and promote the welfare of children. In Nzolameso v. Westminster City Council (Secretary of State for Communities and Local Government and another intervening) [2015] UKSC 22 at paragraph 23 reference is made in the Court’s Judgment to the absence of a definition within the section of “welfare” but that “the welfare of the child has long been given a broad meaning in family proceedings, encompassing physical, psychological. Social, educational and economic welfare.” Further it was said at paragraph 24 “It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case.”

36. The Defendant’s case is that there is no basis on which to presume that the interests of children were not taken into account as a primary consideration in the drawing of the relevant policies. However, there is nothing to show that the Defendant made arrangements to ensure that it discharged its functions having regard to the need to safeguard and promote the welfare of children either in terms of formulating the policy or, more particularly in applying it to the individual circumstances of the Claimant and her children in her case.

37. In this respect, I also find the policy to be unlawful.

Unlawful on the fourth ground.

And finally, on D. Failure to apply policy lawfully

Even if the policy in general was lawful, there was a failure to apply it in HA’s case.

The terms of the decision letter of 8 December 2014, taken together with the absence of any evidence on behalf of the Defendant to the contrary, lead to the inescapable conclusion that no consideration was given to the Claimant’s circumstances that she did not fulfil the residence criteria. There is no indication or evidence that consideration was given to whether her case was exceptional, the discretionary provision relied upon by the Defendant. Accordingly, by failing to consider the applicability of the exceptionality provision, there was a failure to apply its own policy and for this discrete reason, the decision was unlawful.

So, the specific decision was unlawful

Decision quashed and policy declared unlawful. Multiply so.

Comment

This is a significant judgment, following clearly on from the decisions in Jakimaviciute and Alemi. While it is possible for a council to set a residence criteria for qualification to the housing list (at least so far), it is not lawful for that policy to exclude anyone who has a reasonable preference under s.166A(3) without adequate reason.

A blanket residence test is highly unlikely to be unlawful. And a ‘exceptional circumstances’ discretion is also unlikely to be enough, not least if, like Ealing, absolutely no attempt to discern if circumstances might be exceptional was made at all. In fact, Ealing’s policy was found to make any consideration of the claimant’s potential exceptionality impossible.

Ealing’s attempt at a “poor councils, it is just impossible for us to fulfil our obligations” argument went as well as Westminster’s in Nzolameso. On the whole, it is not a good idea to ague that it is impossible in practice for a London Council to do X, when at least four London councils are doing just that.

So, I think the upshot is that Councils have to take ‘reasonable preference’ seriously again. No policy that has a blanket criteria that prevents those in a reason preference category from qualifying for the list will be likely to stand, or at least not without a personal reason (ASB, etc.).  An ‘exceptional circumstances’ discretion will not be enough, as explored in this judgment.

Any council that has a residence requirement for qualification for the list should be looking at this judgment very carefully indeed, or face judicial review on now established principles.

Two housing law job ads – the South London edition.

Lambeth Law Centre – Senior Solicitor ( full time)

Salary £38,307 to £40,807 depending on experience

Lambeth Law Centre Law Centre is seeking to appoint a Senior Solicitor to replace the current Senior Solicitor who is leaving the organisation after 7 years.

The Law Centre has 17 employees and provides substantive free legal advice and representation to individuals in the London Borough of Lambeth and neighboring boroughs. We hold Legal Aid Contracts in Housing, Immigration/Asylum, and Community Care Law and will shortly take up a Public Law Contract. The Law Centre also provides advice and representation in Debt, Welfare Benefits, and Employment.  We provide some outreach services and training to local advice and community groups. Apart from Legal Aid Agency funding we receive support from Lambeth Council, Capitalise and a number of charitable trusts. We hold the Lexcel Quality Mark.

The Senior Solicitor will provide overall direction to and supervision of the legal work of the Law Centre. They will provide line management to our Caseworkers directly and through a system of team leaders. They will take a leading role in developing the community work of the Law Centre.

They will also provide advice and casework in Housing and/or Community care, with the possibility of combining this work with one of the other areas of Law conducted by the Law Centre, and represent clients in courts and tribunals.

Lambeth Law Centre is an equal opportunities employer and welcomes applications from all sections of the community.

Closing date for completed applications: 

Close of business 7  September 2015

Please apply for full details and an application pack to:

The Office Manager 
Lambeth Law Centre
Unit 4 The Co op Centre 
11 Mowll Street 
London SW9 6BG

Tel: 020 7840 2008

Email:  admin@lambethlawcentre.org

Hansen Palomares

We have two job vacancies at present:

Para-legal
This is a full-time post for applicants with LPC/BVC qualification to start in September 2015.

Locum Solicitor
This is a full-time post on a temporary basis to cover one of our housing/community care solicitors who is currently on Maternity Leave until July 2016.

For details and application process for the above two posts please visit our website at http://www.hansenpalomares.co.uk/English/vacancies.php

Samawi v Haringey LBC, Claim no: A01EC488, 3 July 2015 Central London County Court

Thanks to an Arden Chambers eflash comes news of a County Court case with interesting potential repercussions, albeit probably some way down the line.

Mr Samawi was in many respects, a failed second successor. His father had been granted a secure tenancy by Haringey in the 1990s. On the father’s death, his mother succeeded to the tenancy. After the death of his mother, Mr Samawi faced possession proceedings by Haringey on the basis that he had no right to occupy the property.

The main ground Mr Samawi’s defence focused on a distinction between s,88(1)(e) and s.88(2) Housing Act 1985.

By s.88(1)(e) a person who becomes a sole tenant because the tenancy vests in him/her on the death of the previous tenant – commonly a widow – is a successor. (Call this person the widow for this case)

But under s.88(2) a person who becomes a sole tenant because the tenancy is transferred to him or her in the context of relationship breakdown proceedings is not a successor. (Call this person the ex)

The widow and her potential successors are treated by the law less beneficially than the ex and her potential successors.

Mr Samawi’s defence was that this difference in treatment in s.88 had no rational basis or objective justification and was contrary to Art.14, given that his mother’s status as a widow was a status for the purposes or Art 14.

At first instance, a District Judge found the defence not seriously arguable, but on appeal, a Circuit Judge found that the defence was arguable and remitted the matter for trial.

I strongly suspect that whatever the final decision at trial, this one will be heading to appeal. It will be worth keeping an eye on, and maybe a stay application in similar cases.

MAYFLOWER SOLICITORS, BIRMINGHAM

HOUSING/ CIVIL SOLICITOR NEEDED

Send your covering letter and CV to enquiries@mayflowersolicitors.com

Mayflower Solicitors, based in Birmingham City Centre, is a growing niche commercial law firm. We aim to approach law with a refreshing perspective and understand the importance of building trust based working relationships with our clients to provide the highest possible standards of legal advice.
We are experiencing a demand in work that now requires an addition to our dedicated team of lawyers.
We are looking for a self-motivated Solicitor (0 – 5 years PQE) interested in taking on a lead role in the challenge of building a sustainable legal practice with us.

You should have a working knowledge and experience of Housing Law. Ideally, you should be able to demonstrate experience of general Civil Work, in particular, Litigation. There is the possibility for future progression in alternative practice areas, including Employment law and Commercial law.

You will be able to supervise and motivate a small team, whilst also managing a varied but stimulating caseload. You will also be equipped to undertake court advocacy. To be successful in this role, a flair for business development, marketing and a forward thinking approach to law will be crucial.

The successful candidate will be a leader with the necessary technical legal skills and experience to develop a self-standing practice within a collegiate environment, with support provided for success in the role.

If you are interested in finding out more about this opportunity, we would love to hear from you.
To apply, please forward your CV and a covering letter to enquiries@mayflowersolicitors.com, or write to us at 2 Gatsby Court, 170 Holliday Street, Birmingham, B1 1TJ.

Closing date: Wednesday 30 September 2015

An intriguing mortgage possession County Court case featuring a ‘bad bank’. While the case itself turns on a failure by the bank to obtain relief from sanctions, it features an interesting line of argument that may well be raised again.

NRAM plc v X [Name redacted by request]. Central London County Court. 10 July 2015

Mrs X was the widow of Mr X. Mr X had had an interest only mortgage on the family home with Northern Rock. That mortgage had ended up with NRAM plc, the ‘bad bank’ formed after Northern Rock was taken into public ownership. Following the death of Mr X, Mrs X as executor kept paying the mortgage. There was no issue that there was plenty of equity in the property. NRAM took the view that the full mortgage fell payable on Mr X’s death (which it did) and began possession proceedings, seeking to evict Mrs X and children. NRAM refused point blank to transfer the mortgage to Mrs X, despite the mortgage having been paid, on time and in full by Mrs X for some 6 years by the time of this hearing. NRAM said the mortgage was ‘unaffordable’, without more, and would not change position.

Mrs X defended, in part, on the basis that NRAM was a public body, and so Convention rights were engaged. After assorted procedural failings, delays and faffing about by NRAM, Mrs X obtained an order for specific disclosure of ‘the terms and conditions of the government bailout of Northern Rock’. At a subsequent hearing, there was extended discussion of what this might include, with NRAM referring to “hundreds of documents” and “commercially sensitive documents”.

In the event, all that NRAM disclosed in response to the order, without a disclosure statement, was a 2009 European Commission ‘State Aid implemented by the UK for Northern Rock C 14/08′, an ‘analysis’ of state intervention into Northern Rock with a copy of the Northern Rock plc Transfer Order 2009/3226, and some print outs from NRAM’s website on the ‘conditions imposed by the government’ on bailing out the bank – e.g. ‘no new business’.

The Court was not impressed and struck out NRAM’s claim. NRAM applied for relief from sanction, arguing that:

“The imprecise wording of the unless order, incorporating that used in the Defendants’ application, was the primary reason for the Claimant’s default.”

(The wording referred to ‘terms and conditions of the bailout’, NRAM argued that this didn’t mean ‘all documents relating to the present extent of government control over lending undertaken by NRAM’, but had to admit that the hearing had made clear that ‘the purpose of this disclosure was to determine its alleged status as a public authority’.)

In arguing Denton, NRAM also pointed to further disclosure it had made (after being struck out):

• • UKFI Investment Mandate – this sets out the scope of UKFI’s decision-making responsibilities with respect to loan arrangements and the extent to which that decision-making requires the prior approval of HM Treasury before being implemented;
• UKFI Shareholder Relationship Framework Document – this sets out UKFI’s objectives and its relationship to HM Treasury;
• Articles of association of NRAM plc – this includes information relevant to the Defence, such as the fact that the Claimant ‘must have regard to the objectives agreed from time to time with Her Majesty’s Treasury and UKFI including but not limited to those set out in the Relationship Framework Document between UKAR and UKFI’;
• UKAR and UKFI Relationship Framework Document – this sets out how the day-to-day relationship between UKAR and UKFI (acting on behalf of HM Treasury) works in practice;
• HMT and UKAR Accountability Framework Agreement – this contains information relevant to the Defence, such as the fact that ‘UKAR is now classified as a public sector body, in central government’ and that the CEO of UKAR ‘may be called to account for the performance of UKAR in Parliament’ and that ‘UKAR’s accounts are consolidated with HMT’s’; and
• UKAR Group Companies Schedule of Matters Reserved for Decision of the Board or a Duly Authorised Committee of the Board – this sets out which matters affecting NRAM require approval from UKFI.

But this did not avail it. The breach was found to be serious – trial delayed and defence interfered with – and without good reason (after all at the previous hearing on the extent of disclosure, the Judge had observed ‘the Court is unlikely to order disclosure of hundreds of documents. But there must be some documents in whatever format they might be, which go to the level of and ongoing control, which are relevant as to whether the Claimant is a public body’. Belated disclosure after being struck out didn’t help). In all the circumstances of the case (the third Denton test), NRAM’s failings were such that the efficient progress of the case had been prevented, and the Claimant had sought to rely on a misinterpretation of the wording of a court order.

Comment

While the actual strike out and refusal of relief from sanction are on a relatively familiar Denton basis, the issue of NRAM (and other UKAR ‘bad banks’) being a public body is in interesting and potentially significant line of argument. I suspect it will not be long before it appears again.

And also what the hell well NRAM thinking? In every aspect of this case…

[Apparently NRAM have now applied to set aside the disclosure orders. This may be by way of appeal.]

It started as such a simple idea, the tenancy deposit regulations. But bad drafting and some ‘interesting’ interpretations by the Courts put paid to that. We now have a confusing mess, for both landlords and tenants.

So, in a spirit of helpfulness (and to stop people asking me All The Time), here is the NL guide to where we are now (as of 24 August 2015) on deposits – what should have been done, what happens if it wasn’t done – depending on when it wasn’t done, and what can and can’t be done about it. Penalties, section 21 notices and all.

Deposit taken before April 2007 and tenancy became statutory periodic before April 2007

No penalty claim – deposit doesn’t have to be protected. But…

Charalambous v Ng – and s.31 Deregulation Act 2015 amending s.215 Housing Act 2004 – no Section 21 Notice can be served until the deposit is protected and Prescribed Information (PI) served, or deposit returned.

Deposit taken before April 2007 and tenancy became statutory periodic after 6 April 2007

A former Superstrike situation. Deregulation Act required deposit to be protected and PI served by 23 June 2015. If it was so protected, now treated as always protected.

If not protected and PI served by 23 June 2015, then no s.21 can be served until the deposit has been returned and there is a penalty claim by tenant.

For a tenancy which was renewed after 6 April 2007, even if the first tenancy began and the deposit was taken before April 2007, the deposit should have been protected and PI served at the renewal tenancy. Then it will be treated as being a deposit taken after 6 April 2007, as below (s.215B(3) Housing Act 2004 as inserted by Deregulation Act)

Deposit taken after 6 April 2007 and protected and PI served during ‘original’ tenancy (even if outside required period)

After Deregulation Act and new s.215B Housing Act 2004, this counts as service of PI on any subsequent tenancy of the same property if the deposit is protected in the same scheme.

But now it gets complicated. When was the deposit protected and PI served?

Between 6 April 2007 and 6 April 2012 – 14 day requirement for protection and service of PI.

But if deposit protected late but inside term of original tenancy, there is no effect on validity of a s.21 notice and no penalty claim (as Tiensia applies even on original breach, meaning late protection is good protection).

If deposit not protected and/or PI served within original tenancy term, a s.21 notice can’t be served until the deposit is returned (or PI served, if the deposit was protected but PI defective or not served). Penalty claim applies, so long as tenancy still exists, (Hashemi will apply.)

However – and this is my reading of s.215B(3), and is not certain – if the deposit was protected and PI served within 14 days of a renewal tenancy, that will count as an ‘original tenancy’ for any subsequent ones, so that the Deregulation Act ‘deemed compliance’ will mean no need to serve the PI again on subsequent tenancies. There would still be a claim on the first breach, so long as the tenancy exists (Hashemi will apply.)

If that is right, then it is also arguable that late protection and service of PI within the term of the ‘renewal tenancy’ will be deemed compliance for subsequent tenancies as an ‘original tenancy’.

After 6 April 2012 – 30 day requirement for protection and service of PI.

If deposit protected and PI served outside 30 days, no s.21 notice may be served during the initial tenancy unless deposit returned (or PI served, if that deposit was protected in time, but defective/no PI served in time). Penalty claim possible.

But if protected/served late but within original tenancy term, and the tenancy has subsequently been renewed or become a statutory periodic, a s.21 notice can be served. However, penalty claim on original default (only the original default).

If deposit not protected and/or PI served within original tenancy term, a s.21 notice can’t be served until the deposit is returned (or PI served, if the deposit was protected but PI defective or not served). Penalty claim applies on first and any subsequent breaches (on new tenancy/statutory periodic)

However – and this is my reading of s.215B(3) again – if the deposit was protected and PI served within 30 days of a renewal tenancy/statutory periodic, that will count as an ‘original tenancy’ for any subsequent ones, so that the Deregulation Act ‘deemed compliance’ will mean no need to serve the PI again on subsequent tenancies. There will still be a penalty claim for the first breach.

If that is right, then it is also arguable that late protection and service of PI within the term of the ‘renewal tenancy’ will be deemed compliance for subsequent tenancies as an ‘original tenancy’. Though in this case, there would be a deposit claim for each failure to protect in time.

If deposit protected and PI served within 30 days, no need to serve PI again on renewal tenancy/statutory periodic tenancy and no penalty claim. S.21 notice valid.

And, of course, for any post April 2007 deposit

If still not protected and/or no PI served at all, no s.21 notice and a penalty claim on each breach – for first tenancy and on any subsequent renewal/statutory periodic tenancy. Deposit must be returned (or PI served if deposit protected but PI defective/not served) to enable s.21 notice.

I trust that is all perfectly clear…