Well, well. You wait four years then three come along at once. Our thanks to Doughty Street Chambers for their note of a County Court judgment on damages for disrepair and unfitness for human habitation.
E v The London Borough of Lambeth (Wandsworth County Court, 17 April 2024) (anonymised at the request of the tenant – 08/05/2024)
E was Lambeth’s secure tenant since October 2018. Since the start of the tenancy there had been damp and mould due to defects to external brickwork and a failed damp proof course. In December 2022, a leak started at the property, causing the collapse of the living room ceiling a month later. A month after that, the electrics failed and the tenant was without electricity for 6 weeks. The issues continued, with ongoing problems with the electrics.
The tenant issued a claim for damages and works in February 2023. In March 2023, by consent order, Lambeth agreed to provide the tenant with decant accommodation from early April 2023, and to complete works by May 2023.
In a development that will surprise no-one currently acting against Lambeth, Lambeth failed to comply with the consent order. Proceedings were restored in August 2023.
Lambeth having failed to file a defence, the tenant obtained default judgment in December 2023. However, Lambeth were permitted to make oral submissions on quantum at the subsequent disposal hearing.
At the hearing the District Judge broke down the defects into two periods, before the December 2022 leak and after the leak.
Damages for disrepair for the period 2018 to December 2022 were awarded at 30% of rent – £8,383.79.
For the period from December 2022, the District Judge considered that from this point the property was undoubtedly unfit for human habitation.
The Judge was taken to the County Court judgments in Dezitter v Hammersmith & Fulham Homes (our note) and Mason v Olivera and Santana (our note), where 100% of rent was awarded, but decided that neither was binding (quite rightly) and that they just meant a court may award 100% of damages, not ‘must’. However, the judgments did suggest that a finding of unfitness for human habitation should mean damages of a considerable proportion of the rent. Damages of 90% of rent were awarded, amounting to £6,437.20.
Damages were curtailed for a period starting one month before a hearing on the decant proposal, apparently on the basis that the tenant had been unreasonable about a decant from that point (though not before).
General damages received the Simmons v Castle uplift, for a total of £16,303.09
Special damages of £17,687 were awarded in full.
Costs to the claimant.
The terms of an order for specific performance were reserved for a later hearing.
Comment
I feel the lack of available information here, because I’m not entirely sure what the make of this.
First question – if the extent of the disrepair (damp penetration & mould) between October 2018 and December 2022 was sufficient to get an award of 30% of rent, on what basis was fitness for human habitation not applied from 20 March 2020 on wards?
Second – related – question – what threshold for unfitness did the judge apply?
Third question – would the post December 2022 defects considered only as section 11 breaches have attracted an award of 90% of rent, or was there, in effect, a specific ‘unfitness’ uplift?
Or, of course, in a pressured county court list hearing, it may be that these issues weren’t argued or addressed – entirely understandably. And we continue to await Circuit Judge and Higher Court appeal decisions on all of this.
You’d think with so much notice and threats of fines the council would have just carried out the repair pronto. We in Ealing suffer similar disconnects.