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Tales from the County Courts – housing conditions quantum, proof of notice of defects, and section 21 and gas safety certificates again


Three county court cases – all first instance judgments and non-binding, but each of interest, including the first two fitness for human habitation decisions that have come our way and a complicating decision on gas safety certificates and section 21 notices.

Dezitter v Hammersmith and Fulham Homes (Central London County Court, 7 November 2023)

Thanks to Cara Hall at Doughty Street Chambers for their write up of this case. A claim by Ms Dezitter against her landlord, Hammersmith and Fulham Homes (aka LB Hammersmith and Fulham) for disrepair and, for the period after 20 March 2020, for breach of section 9A Landlord and Tenant Act 1985 (Fitness for human habitation). Ms D asserted she had been complaining of disrepair since moving in to the property in 2010. (Remarkably, Hammersmith did not raise a limitation defence, so the whole period since 2010 was at issue, as had been pleaded by Ms D). There were three broad periods:

  1. 14 June 2010 to 24 December 2013 when the condition of the property further deteriorated as a result of a leak to the roof.
  2. 24 December 2013 when the roof leaked to 20 March 2020 when the fitness for human habitation covenant was implied into the tenancy.
  3. From 20 March 2020 – 7 November: this is the date from which the Homes (Fitness for Human Habitation) Act 2018 applied to all tenancies in existence. There was a report prepared by a single joint expert which had found the property unfit for human habitation since that time.

In the run up to trial, Hammersmith had not filed any witness evidence. Moreover, Hammersmith did not attend trial, with no explanation. As a result, the defence was struck out at trial and judgment given for Ms D. The question then was the amount of quantum.

For period 1, damages based on a proportion of rent were assessed at some 35% of the rent – rounded to £8000.

For period 2, damages of 40% of rent were awarded – amounting to £16,200.

For period 3, where the property had been found to be unfit for human habitation, damages of 100% of rent were awarded. The DDJ considered that this was in effect a binary decision, either the property was fit for human habitation or it wasn’t. If it wasn’t, then it could not be said that the tenant had derived any value from the tenancy during this period. The award was £24,786.82.

The total of £48,786.32 was subject to the Simmons v Castle 10% uplift, giving an award of £53,664.95.

There was a further £1000 in special damages awarded.

Works were ordered to be done within 70 days, as per the single joint experts report.

Costs to Ms D.


Hammersmith appear to have completely dropped the ball on this one, from the defence onwards. But nevertheless, the possibility of unfitness attracting 100% rent awards is something we’ve previously raised, and is, as per the DDJ’s finding, logical. If a property is not fit for habitation, one does not enjoy it, one endures it. But this is a difficult area, with no real precedents, and quantum case law from section 1 Defective Premises Act claims operating on a different tradition of approaches to quantum. It will be very interesting to see what happens if a similar case reaches the higher courts. (I suspect an appeal of this decision would be… difficult.)


Dalton v Forhousing Ltd (Manchester County Court, 19 June 2023 – copy of the judgment here ).

Ms Dalton was the assured tenant of Forhousing, with a tenancy beginning in 2013. She brought a claim in disrepair and unfitness for human habitation. According to the judgment, the pleaded case (and defence on facts) were as follows:

The claimant, in her pleaded case, contends that on 2 January 2020, she reported a leak to the roof above her daughter’s bedroom. That, in the defence, is admitted but it is contended by the defendant that the repair was undertaken on 3 January 2020. Secondly, on 21 May 2020, the claimant says that she reported a further leak. That is denied. The report, says the defendant, was that of the claimant’s neighbour in the flat below because the claimant’s kitchen sink was leaking and the claimant failed to report this.

Thirdly, on 24 August 2020, she reported damp in the bathroom, bedroom and kitchen. That is denied by the defendant. They say a report of damp was raised by the claimant on 30 July 2020 and the defendant arranged for a damp inspection to take place on 24 August. The claimant failed to provide access on that date in 2020. A card was left and the claimant failed to rearrange the appointment until 29 October 2020. Following that, the defendant inspected on 3 November to inspect the roof space and noted no leaks but that additional insulation would be fitted which was fitted on 2 December 2020. Fourthly, on 3 November 2020, the claimant reported a further leak to her daughter’s bedroom. That is denied and it is contended that it is a misunderstanding of the defendant’s records.

There were separate party expert reports, and a joint expert schedule.

The principle issues in the property from the expert reports were mould to the kitchen and bedroom, with allegations of historic and ongoing damp penetration.

The claim went to trial, including live evidence from the experts, from a legal officer for Forhousing and from Ms D.

After trial, the DJ dismissed the claim.

First, the evidence on notice and lack of response was severely lacking. The pleaded case did misinterpret some of the landlord’s records as to dates and relevant defects. The claimant’s evidence in person was non-specific and different to her pleaded case. Her evidence was not reliable. In addition, there was evidence she had refused access, including to the experts.

Second, on hearing the expert evidence, there was no ongoing water penetration. A temporary repair to the roof edge was crude but effective. It was not accepted that lack of insulation to a sloping roof was the cause of the mould growth given accepted evidence that the claimant had sealed a vent, there was clutter blocking airflow, and the tenant dried towels on radiators. The tenant’s expert had accepted she was not managing humidity as she should do.


On evidence of notice and defects, this is a clear example of having to plead your case properly and with as much support as possible. A disrepair/conditions claim should never reach trial unless one or both of the parties have got things badly wrong. Here, it appears to be the claimant that did so.

However, in assessing the claimant’s expert’s reliability, the District Judge said this:

I found Mr O’Neil’s comments, under cross-examination, on the sections 9A and 10 issues to be illuminating and significant in my assessment of him as an expert witness. Section 9A, of course, contains an implied covenant on the part of the landlord to keep the property in a condition that is fit for human habitation, and section 10 identifies the factors to which regard must be had in determining whether a house is, indeed, fit for human habitation. That includes freedom from damp. Section eight of the inspection report refers to the works which need to be carried out, and he says:
“I consider that the extent of the works required at your property means that the property will remain habitable. As a result, alternative accommodation will not be required”. That is at page 87 of the bundle. He goes on, “It is my opinion that the tenant will not require decanting”.

He seemed to accept, on cross-examination, that it remained habitable but not in relation to sections 9A and 10; that the tenant simply did not need to decant. He then said it was habitable but it was a question of whether it was suitable for occupation. He seemed to say that under the Act, it was a question of whether it was ‘reasonably suitable for occupation’ and he did not consider it was suitable for occupation. However, then he went on to say that it could be ‘unsuitable for occupation’ but that did not render it uninhabitable. His confusion was worrying. His apparent justification that the tenant simply did not need to decant while the works were being undertaken was wholly unconvincing. I found his evidence on this point betrayed a lack of understanding of the Act and fatally undermined his credibility. It also fatally undermined any claim under section 9A or section 10, on the balance of probabilities, that the property had been rendered unfit or uninhabitable with regard to the mould.

While this is effectively obiter, given the judgment on notice and facts, and with all due respect to the District Judge, ‘unsuitable’ for habitation is not a synonym for ‘uninhabitable’. It certainly can be, but as per Rendlesham Estates v Barr on unfitness for occupation under section 1 Defective Premises Act 1972, it can also mean the property is not “capable of occupation without undue inconvenience or discomfort to the occupants.”

And, as per section 10 Landlord and Tenant Act 1985, the question of whether a property is unfit for human habitation is a question for the court, not the expert. The expert’s opinion is on the condition of the property and remedial works required, not on the law. (This is a particular bugbear of mine…)


Blagg v Gharbi & Gharbi (Manchester County Court. 11 May 2023. Judgment can be downloaded here.)

A section 21 possession claim where the main issue was provision of gas safety certificates.

Despite a garbled and unsigned tenancy agreement, it was common ground that the AST had begun in December 2016 and had become a statutory periodic tenancy subsequently.

The Gharbis variously argued

i) they had not been provided with the then valid GSC at the start of the tenancy.

ii) They were not given copies of all the subsequent GSCs.

iii) The most recent GSC given had technical defects making it invalid.

Having heard evidence and argument from counsel for both parties, the District Judge found:

i) On the witness evidence given, it was found as a fact that the tenants had not been provided with the then valid GSC at the start of the tenancy or subsequently.

ii) On the evidence, it was found that the GSCs between 2016 and 2020 had not been provided to the tenants. And, as a matter of law:

In my judgment it is necessary for a landlord to provide the tenant with copies of each of the successive GSRs (again assuming a tenancy whose term exceeds two years) before being able validly to serve a sect 21 notice and thus make use of the accelerated possession procedure. Support for that conclusion comes from the following:

The fact that, as set out above, the prescribed Form N5B includes an entirely separate question concerning the provision of GSRs stemming from ‘all further gas safety inspections’ and I repeat the points made at paragraph 27 above.

As Mr O’Ryan submits – and I entirely accept – CPR 55.13(1)(b)(ii) requires that the claim form by the documents it requires.

In Trecarrell House there is more than one reference to the provision of GSRs in respect of every safety check carried out – see Patten LJ at [36] and King LJ at [42]. Whilst doubtless obiter because of the context (namely, the brevity of the term of the AST in that case), nevertheless the combined view of his Lordship and her Ladyship carry considerable weight.

(The point on the N5B is that at 17B it asks

• The question relates to GSRs arising from ‘… all further gas safety inspections carried out during the period of the tenancy’;
• The table has space for at least three entries; and
• The requirement to attach copies clearly envisages the possibility of several GSRs having been compiled over the period of the AST.)

And finally on iii), the 2021 GSC omitted the landlord’s name and address and so did not comply with Reg 36(3)(c)(iii) of the 1998 Gas Safety Regulations, and so was not a GSC for the purposes of reg 36(6). In considering the Court of Appeal judgment in Trecarrell House v Rouncefield (our note):

My reading of those passages is that Patten LJ concluded that whilst it is correct to say that reg 36(3) is not itself a prescribed requirement, nevertheless for reg 36(6)(a) to carry meaningful effect the relevant GSR must necessarily comply with the provisions of 36(3). It is patently obvious that a landlord cannot provide a GSR at all unless a safety inspection has already been carried out; and the regulation makes specific provision for the content of such GSR.

It seems to me that the significance of the latter point is underscored by the following extract from [36], dealing with the date of one of the GSRs under consideration:

‘The obligation imposed on the landlord by paragraph (6)(a) is to give the existing tenants a copy of a GSR which contains all the information specified in paragraph (3)(c). The April 2018 GSR was not such a document because it did not give the correct date of the safety check. It cannot therefore be relied upon by the claimant as evidence of compliance with paragraph (6)(a) as a prescribed requirement’.

Claim dismissed with costs against Mr Blagg.


While the decision on i) is factual and cannot be argued with, and the decision on iii) seems to me to be right, I am not sure about the decision on ii) – the intervening GSCs. Not on the factual finding that they were not provided, but on the issue of law as to whether that was necessary in itself for service of a s.21. In particular, the reliance on the requirements of form N5B trouble me – this is a court form, it is not the law. In any legal analysis, what N5B requires is neither here nor there as against an analysis of the assured shorthold prescribed requirements regulations themselves.

But this is the significant element of this decision, that all GSCs over a course of a tenancy/tenancies must have been provided. The other two (of three) reasons for dismissing the possession claim seem to me to be uncontroversially correct. So it seems that an appeal in this case may be unlikely.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.


  1. Mandy Thomson

    Very useful report – thank you.

    Further to ii) – the intervening GSCs – it’s my understanding the landlord is only expected to keep GSCs for two years, under s.36(3)(c) of the Gas Safety Regs 1998. IYO does that mean that for s.21 purposes proof of service of the valid GSC at the start of the tenancy alone is sufficient where the GSC is older than two years (though I agree landlords should keep these as a matter of good practice)?

    • Giles Peaker

      The two year retention point was raised in that case – the Judge simply said landlords should keep them all.

  2. Rory O'Ryan

    Hi. Rory O’Ryan here, Counsel in the last case.

    I had argued:

    “4 The Claimant appears to argue in his skeleton argument that he is required only to have given the Defendants (i) a GSR covering the period before the Defendants entered into occupation of the property, and (ii) a GSR covering the period immediately prior to the service of the s.21 HA 1998, and asserts that this is the ratio of Trecarrell House Ltd v Rouncefield [2020] EWCA Civ 760.

    5 The Defendants aver that the prescribed requirements in Reg 36(6) and (7) of the 1998 Regulations are that all GSR’s, due to be performed annually, must be given to the tenant, albeit it that the Court of Appeal held in Trecarrell that such records could be served on a tenant late (so long as such service had occurred prior to service of the s.21 notice). The facts of Trecarrell were that only two GSR’s were due to have been provided to the tenant, due to the duration of her tenancy prior to service of the s.21 notice. Reg 36(6) of the 1998 Regulations refers to an obligation to give to the tenant a copy of the record made under Reg 36(3)(c). Reg 36(3)(c) sets out an obligation to provide such a record annually. The timing of the giving of such a record (so long, as above, this takes place before service of a s.21 notice) is not material; but this does not excuse the giving of a record in relation to each year that an inspection was to have taken place.

    6 The Defendants aver that there is nothing in Trecarrell which obviates the need for a record for each year to be given; the fact that the Court of Appeal discussed the giving of a second GSR is reflective only of the facts of the case, ie that only one additional GSR was due to have been given, after the initial GSR at the outset of the tenancy. As per the findings in Trecarrell, as summarised in the Housing Law Report:

    “For the purposes of s.21A, Housing Act 1988, a landlord may comply with reg.2(1)(b), Assured Shorthold Tenancy Notices and Prescribed Requirements Regulations 2015 (SI 2015/1646), so as to be able to serve a s.21 notice, by giving the tenant a copy of the certificate which was in force before the tenant moved into the property and copies of any subsequent certificates at any time before service of the notice.” (Emphasis added).

    7 The tenancy in the instant case commenced on 22 December 2016. Thus, the Defendants aver that GSR’s for 2016 (predating 22 December 2016), and each subsequent year were to have been given to the Defendants.”

    (And I had put “and copies of any subsequent certificates” in bold)

    And the Judge agreed. The Judge’s reasons included making a reference to what the form required – I agree that is not the determinative point. The construction of Regs 36(6) and (7) is the determinative point. I can’t see anything wrong with the argument advanced.


    Rory O’Ryan .

    • Giles Peaker

      Hi Rory – I was going by the judgment, which focussed on the N5B issue.

      I recognise the argument. Indeed I have made that argument. But I am in two minds about it. The AST prescribed requirements Regs simply require compliance (time limits aside) with Reg 36(6) or (7) – that is just provision of a GSC to the tenant (leaving start of tenancy aside). Reg 36(3)(c) is certainly engaged, because a GSC hasn’t been given unless it meets the requirements of (3)(c). But a GSC can be valid even if previous years’ checks were not done – there is nothing in 36(3)(a) that affects the validity of a GSC when one has been done. (And that obviously has to be the case.)

      So, while compliance with 36(6) certainly requires compliance with 36(3)(c), I find it a lot harder to see that compliance with 36(3)(a) is imported by 36(6). It is arguable that a landlord has complied with 36(6) by provision of a GSC at the start of the tenancy and also prior to service of a s.21 is enough to comply with 2(b) of the prescribed requirements Regs.


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