Our grateful thanks to George Murray of Liverpool Civil Law and Laura Walsh at Satchell Moran for a copy of this judgment.

Jillians v Red Kite Community Housing. County Court at Oxford. 24 September 2024 (unreported – the Judgment is here)

This is a Circuit Judge (HHJ Melissa Clarke) judgment on, amongst other things, what amounts to unfitness for human habitation under sections 9A and 10 Landlord & Tenant Act 1985, and when the Court can make such a finding. As far as I know, it is the first judgment where this specific issue was argued, certainly at Circuit Judge level. I gather that permission to appeal was sought by Red Kite at the hearing, and refused, so there is the possibility of an appeal to the High Court.

Ms Jillians is Red KIte’s assured tenant, of a three bed 1970s semi-detached house, from May 2013. AT the start of the tenancy, she had 8 children living with her (this will become relevant). By 2018, there were seven children living with her, as Red Kite were informed, and by 2021, when her letter of claim was sent, six children.

Ms Jillians claimed for breach of section 9A and section 11. The following defects were identified in her expert report (Red Kite having not agreed an SJE and instructed their own surveyor about a year later, after some works).

i) First bedroom (large, front, upper level)— Mould growth (section 9A only)

ii) Third bedroom (smaller, front, upper level)— Mould growth (section 9A only)

iii) Bathroom—

a) Mould growth (section 9A only)

b) Faulty electric shower (section 9A/ section 11) (not pleaded)

iv) Kitchen—

a) Water damage and damp to ceiling (section 9A/section 11)

b) Water damage and damp to kitchen units (section 9A) 

c) Faulty electric socket (section 9A/ section 11) 

 v) Exterior—

a) Defective rear door (section 9A/11) 

b) Leaning and damaged fencing (section 9A only) 

Red Kite defended and counter claimed.

The defence put Ms Jillians to proof that there were actionable defects and that Red Kite had been put on notice of them. It was denied that the property was unfit for human habitation, and further relied on the defence of Ms Jillians’ alleged failure to occupy the property ‘in a tenant-like manner’, in failing to permit Red Kite or its contractors access to the property and failing to control condensation in the property (in part by overcrowding).

The counterclaim was for some £3,241 in allegedly unpaid recharges for works arising from tenant damage.

We can deal with the counterclaim quite briefly. In cross-examination, Red Kites’ director of property admitted that Red Kite had not followed its own policy on recharges, that no invoices had been sent to Ms J prior to issue of the counterclaim, that Ms J had not been told that works would be recharged and only one ‘recharge incident’ was raised, a week after the claim had been issued – again without any prior notification that a recharge may be sought, or request for payment upfront. None of the work in the repair history was flagged as rechargeable to Ms J. The Court held:

given Mr Haines’ admissions, Red Kite cannot satisfy me that any of those sums are properly rechargeable to Ms Jillians. Although Mr Haines did not go so far as admitting that the Counterclaim was brought to put pressure on Ms Jillians to drop her Claim in disrepair, his admissions that it was brought:

i) despite breaches of the Recharge Policy “because there is a court case”;

ii) prematurely before Red Kite had inspected the Property and so before it was in a position to issue any invoice to Ms Jillians under the Recharge Policy; and

iii) only because Ms Jillians had issued the Claim;

come perilously close to an admission that the Counterclaim was brought cynically and specifically to put pressure on Ms Jillians to drop her Claim, and not because Red Kite considered such sums were properly claimable. I dismiss the Counterclaim in its entirety.

On the claim:

i) Notice – Ms J’s evidence was that she reported issues by telephone, and that Red Kite’s repairs line said that calls would be recorded. Red Kite, however, had not disclosed any complaints line records, only repair logs and works orders. (This despite it being apparent from the witness statement and cross examination of Mr Haines, the director of property, that his statement contained information which he “identified it as coming from an IT system he had interrogated but from which he not exhibited printouts to his witness statement and which were not in the bundle”.)

Taking all of the evidence into account, I accept Ms Jillians’ evidence that she has repeatedly and often notified the issue of damp and mould in the property (including the first and third bedroom, kitchen and bathroom) in the years before the letter of claim and at least since 2018; that she has notified Red Kite of issues with leaks in the bathroom, in the kitchen and through the kitchen ceiling causing damage to the kitchen units to Red Kite repeatedly and often in the years before the issue of the letter of claim and at least since 2018; that she has done so either by telephone or to employees and agents who have attended at the Property.

Notice on the electric socket was not established before Ms J’s expert’s report in November 2021, likewise the rear door. The garden fence was in the letter of claim in August 2021, but no evidence of prior notice before that.

Of course, section 9A unfitness was only actionable from 20 March 2020 onwards.

ii) Expert evidence.

Ms J’s expert had identified the above issues, and defects that might give rise to mould (inadequate insulation to areas of the loft, missing cavity wall insulation in parts, open gaps to the roof void, no functioning bathroom extractor fan, and leaks from bathroom to kitchen). The report did not specifically say in relation to the defects (individually or overall) that the property was not fit for human habitation (this is relevant to Red Kite’s defence, see below, but also the expert was not instructed to give an opinion on this).

Red Kite’s expert, who had inspected in 2023, saw the same issues with mould growth, and noted poor loft insulation and gaps to the edge of the roof void, the bathroom extractor fan and ‘minor leaks’, but his conclusion was that the mould problems were due to high humidity “generated by the tenant’s own lifestyle use at the property”. The recomendations were (and this will not come as a surprise) that Ms J should

Keep windows open and doors closed during peak cooking, bathing and laundry;

Avoid drying clothes inside the flat and certainly not over radiators

Keep front and rear windows open regularly (at least daily approx. 5 minutes in the winter) to allow cross-ventilation and fresh air across the entire house

Keep window trickle vents open permanently

Wipe down any signs of mould with light detergent mould spray

Ms J’s evidence was that she did keep windows open every day (including at night). The windows were indeed open on both expert’s inspections. She did dry laundry at the property, and not on radiators, though she had for a time used a condenser dryer, until told not to by Red Kite, and she wiped down condensation and mould daily. None of this was sufficient to prevent the mould. (Which from the experts’ reports had become significantly worse between November 2021 and March 2023.

It was also of note that Red Kites own post issue investigations in 2022 had found that the windows were out of repair and needed replacing or overhauling, including seals and trickle vents.

Overall, the Court preferred the evidence of Ms J’s expert as to the issues, dismissing Red Kite’s attacks on his experience and expertise (made without putting them to the expert), while noting that on the factual findings, rather than view on causation, the experts did not significantly disagree.

iii) ‘Tenant-like conduct’ defence.

Red Kite had entered the tenancy agreement fully aware of the size of Ms J’s household, as marked on the agreement, and had signed off subsequent variations in the household. Overcrowding could not be raised as breach of tenancy or untenant-like conduct.

Even if the allegations of intermittent refusals to allow access were accepted, Red Kite had failed to do works within a reasonable time, as the works could have been done before Ms J asked for access to be arranged through her solicitor. There was no evidence that that process had caused delay sufficient to increase the problems. Accusations of refusals to provide access on one or two occasions where the occupants had covid were ill-founded as this was eminently reasonable.

Heating and ventilation were used appropriately, and cleaning was done.

In addition, I have found that Ms Jillians used the heating appropriately. I have found that there are ample reasons for the high humidity found in the house arising from the various leaks over time from the bathroom radiator and bath pipes, in the kitchen, from the WC, from the previously incorrectly installed extractor fan; from the sodden bathroom floor which I have found to relate to leaks and not to the occupants’ use of the bathroom; from the damp kitchen ceiling; and from the cold spots arising from the issues with loft insulation.

iv) The test for ‘unfitness’.

The Court accepted that Bole v Huntsbuild Ltd (2009) EWCA Civ 1146 and Rendlesham Estates v Barr (2014) EWHC 3968 (TCC), both section 1 Defective Premises Act 1972 cases, were of assistance in assessing fitness for human habitation under section 9A (see our note on this point here).

I accept Mr Murray’s submission that the Defective Premises Act authorities are of relevance to claims made pursuant to section 9A LTA. The requirements under section 1 Defective Premises Act (“fit for habitation”) and section 9A LTA (“fit for human habitation”) are not identical but given the Court of Appeal’s definition set out above, which is tied to the health, safety, inconvenience or discomfort to the occupants, it appears to be a distinction without a material difference. Similarly, the guidance of the Court of Appeal in Rendlesham relating to section 1 Defective Premises Act, that dwellings which are not fit for habitation are those ‘capable of occupation without risk to the health and safety of, and without undue inconvenience or discomfort to the occupants’ (I paraphrase) seems also to fall within the test in section 10 LTA as neither case could it be said that such dwellings are “reasonably suitable for occupation in that condition”, and section 10 LTA includes within it long-established concept of “hazards” under the Housing Act 2004, being any “risk of harm to the health or safety of an actual… occupier of a dwelling”, and ‘prescribed hazards’ under section 2 of that Act.

v) Expert evidence and unfitness

Red Kite argued that a finding of unfitness could not be made in the absence of expert on that point.

Mr Strelitz submits that it is not open to me to make a finding on unfitness for human habitation as I have no expert evidence on the point. He accepts that I have photographs showing the quantity of mould and where it is, but submits that I lack expert opinion on whether that level of mould in that position is hazardous to health in the quantity it is present and who needs to carry out HHSRS calculations to establish whether it is a Category 1 or Category 2 Hazard.

The Court did not accept this. A hazard as defined in section 2 Housing Act 2004 is about the risk of harm to health and safety, not measured or measurable harms.

On the evidence of discomfort and inconvenience and on the condition of the property as a whole,

I am satisfied that the Property was not reasonably suitable for occupation from early 2018 to February 2024 without risk to the health and safety of the occupants and without both undue inconvenience and discomfort to the occupants such that it was not fit for human habitation during this period. Notwithstanding this finding, it is common ground that this would not constitute a breach of covenant until 20 March 2020, which is the date on which section 9A LTA began to apply to this tenancy (without retrospective effect).

All of the defects listed above amounted to a section 11 and/or a section 9A breach. (save for the shower, which was not pleaded and was repaired fairly quickly after the expert report). The rear garden fence was Red Kite’s responsibility, despite the Director Of Property’s attempt to argue that it fell under the tenant’s responsibility to maintain the garden under the tenancy agreement.

There had been works between 2022 and February 2024.  Some were of poor quality and had had to be repeated, and there remained outstanding defects (mould behind kitchen cabinets, works to the kitchen ceiling and to the rear door), but these were not such as to make the property unfit for human habitation from February 2024.

But an order for specific performance for the outstanding defects would be made.

Quantum was reserved for further submissions (but the claim form had limited value to £5,000, and no application to amend the claim form had been made). We gather that damages of £5,000 plus interest were subsequently awarded.

Comment

This is a detailed and well considered judgment.

We’ll pass over some of Red Kite’s approach to defending the claim (and counterclaiming) which seem a bit ill judged (no disclosure of complaints records, the ‘recharge’ counterclaim only raised after the claim was issued, the attack on the claimant’s expert without either it being raised in Part 35 questions or being put in cross examination, for example).

But there are two key points to note here, I think. Yes this is a county court judgment, so not binding or precedent, but it is of persuasive value, and HHJ Clarke is a very experienced and respected CJ.

So…

i) that ‘fitness for human habitation’ can be considered with assistance from the section 1 Defective Premises Act 1972 cases on ‘fitness for habitation’, in particular Boles and Rendlesham. I think this is right, though this should not be a surprise as I’ve argued for this both here and in Housing Conditions: Tenants’ Rights.

ii) That an expert’s finding as to the hazard to health is not required for the Court to make a finding on unfitness.

Now, (subject to any appeal, of course), I think this has to be right, from the a number of reasons.

Firstly, section 10 LTA 1985 says:

(1) In determining for the purposes of this Act whether a house or dwelling is unfit for human habitation, regard shall be had to its condition in respect of the following matters— (…)

That determination is clearly a matter for the Court to make.

While a Court may be assisted by an expert’s opinion, the

expert must not usurp the functions of the judge as ultimate decision-maker on matters that are central to the outcome of the case. Thus, as a general rule, the judge has the task of assessing the evidence of an expert for its adequacy and persuasiveness;

(TUI UK Ltd v Griffiths (2023) UKSC 48 )

To say that a Court cannot make a finding of unfitness without expert evidence to that effect is to mistake the role of the expert, and of the court.

It would also mean in practice that a tenant could not successfully bring a section 9A claim without representation or expert evidence, despite having copious evidence of, say, the property being completely mould ridden, or without sufficient heating. While I would not advise proceeding without representation or expert evidence, it has to be a nonsense to say that this could not be done.

And lastly, the Court in this case was, I think, right to find that it is the risk of harm, not the quantified actuality of harm, that is at issue in unfitness. It is worth noting in this regard that the High Court in Rendlesham had no difficulty in finding that mould gave rise to unfitness for habitation without any expert evidence as to the hazard to health.

And some – many – hazards are simply and obviously a risk to health and well being – or give rise to undue inconvenience or discomfort.

This all said, an appeal, if given permission, would be fascinating.