More notes on cases and matters from before, during and after my holiday, in a frantic attempt to get up to date. More to come…

The draft Awaab’s Law regulations – The Hazards in Social Housing (Prescribed Requirements) (England) Regulations 2025 – have been published, but don’t appear to have confirmed yet (at least that I can find). One point of interest is that while a landlord has 10 working days to carry out an ‘investigation’ once they become aware of an issue of concern, it appears that this need not include an actual inspection. If the tenant asks for a physical inspection, there is a further 10 working days to carry out the physical inspection. So, depending on the timing of the tenant’s request, there may be a period of up to 20 working days for investigation and inspection. I think a post on what are likely to be the stress points (or points of significant contention) will follow in a while.

AA, R (On the Application Of) v London Borough of Waltham Forest (2025) EWHC 1625 (Admin)

A judicial review of a housing needs assessment and personal housing plan, produced by Waltham Forest supposedly in compliance with section 189A Housing Act 1996.

Notable for Waltham Forest’s attempt to argue that judicial review as not the appropriate route as there was a suitable alternative remedy in the review and appeal process under HA 1996 – ie, s.202 and s.204.

Mr Hutchings, for the Defendant, argues that, if and when a private rented sector accommodation offer (PRSO) is made, the local authority will have to make a fresh decision satisfying itself that the particular accommodation offered is suitable pursuant to s.193(7F) (“suitability decision”). This will create a right to request a review of the PRSO pursuant to s.202(1)(b) and (g). If that review is unsuccessful, there is the right to appeal the review decision to the County Court on a point of law pursuant to s.204(1). This, he says, provides the claimant with a suitable alternative remedy, albeit one that is not immediately available to her.

Mr Hutchings says that Parliament did not intend to introduce an unrestricted right to challenge assessments under s.189A HA1996 in the High Court. In essence, he says that the proper approach is to wait for a reviewable PRSO in all but urgent cases. This, he says, provides a suitable alternative remedy that reflects the will of Parliament and follows the principles set out in Glencore by ensuring that judicial review is the ‘remedy of last resort’ in cases under the Housing Act.

AA simply pointed out that this would mean no immediate remedy for an unlawful HNA/PHP and that judicial review was a necessary remedy with no alternative.

The Court agreed, giving rise to this glorious observation

The suggestion that judicial review challenges to the HNA and/or PHP under s.189A are not appropriate because there is a suitable alternative remedy under sections 202 and 204 of the HA 1996 is novel and speculative. Mr Hutchings accepted at the hearing that the argument has not been made before, though he did not accept my suggestion that this might be because it is essentially unarguable.

Section 189A was simply not included in what could be reviewed under s.202 and there was not other statutory provision for challenge.

Taking away the potential for challenge by judicial review in such cases would leave people like the claimant with no effective remedy unless and until the local authority makes a reviewable offer. That is not a legally sustainable proposition.

On the actual challenge, the HNA/PHP was found unlawful because it failed to include support for the claimant to make an application for housing under Part 6 Housing Act 1996 – a social tenancy – instead only addressing PRS accommodation.

While I accept that social housing allocation falls under Part 6 as Mr Hutchings has argued, the duty to secure suitable accommodation, of whatever kind, arises out of s.193(2) under Part 7. It is not logical to exclude the kinds of support that could be provided to secure allocation under Part 6 from the steps included in the PHP. This is because allocation of suitable accommodation under Part 6 is one of the routes to bringing the housing duty under Part 7 to an end. Therefore, steps to support the Claimant to secure allocation under Part 6 are, in effect, steps taken to discharge the duty under Part 7.

In cases such as the claimant’s where a person requires support from the Local Authority to apply for accommodation under Part 6, it would, therefore be unreasonable to exclude such support from the steps set out in the PHP under Part 7. In the circumstances I find that it was unreasonable for the defendant to exclude such support from the PHP alongside the steps related to private sector rental accommodation.

London Trocadero (2015) LLP v Picturehouse Cinemas Ltd (2025) EWHC 1247 (Ch)

This was a commercial lease case, but may be worth thinking about more broadly. It was a broad claim for rent arrears, including insurance rent, which was the issue in this judgment. Under the lease, the tenant was required to pay insurance rent in respect of the landlord’s premium for insuring the whole building, and was to be calculated with reference to the “premium payable by (the Landlord) for keeping the Centre insured”.

The tenant’s objection was that the premium for a number of years had actually included a significant payment of commission to the landlord, at times of 50% of the premium. This was distinct from the standard broker’s commission for placing the insurance, which was more typically about 5%.

The court held that it was not in the contemplation of the parties at the time that the lease was entered that a ‘landlord’s commission’ would be included as part of the premium.

a typical landlord and a typical tenant would expect the term “premium” to include parts of that premium that were used to fund commissions paid to brokers. They would not expect that meaning to change simply because a broker chose to share its commission with another. However, notwithstanding the understanding of insurance industry insiders that I have described in paragraph 53 above, there was no general understanding shared between larger commercial landlords and their tenants in 1994 that landlords would be able to receive and retain Landlord’s Commission or that the premium paid to brokers would include an amount of Landlord’s Commission. The common understanding of a typical landlord and tenant as to the meaning of “premium” was a general one that did not deal with the specifics of Landlord’s Commission. Accordingly, it did not amount to an understanding that it was in order for a landlord to benefit from Landlord’s Commission at a tenant’s expense.

The commission increased the premium pound for pound – it was simply passed on. The amounts were not an appropriate recovery for any work done on insurance..

The landlord’s commission was not a sum required for ‘keeping the centre insured’. The insurers had simply added the commission to the sum charged for the insurance in the overall premium.

The amount of ‘premium’ referable to the landlord’s commission was not payable under the lease.

RZH & Anor, R. (on the application of) v London Borough of Sutton (2025) EWHC 713 (Admin)

This was a ‘dual listed’ section 204 appeal and judicial review for disability discrimination, concerning Sutton’s decision that it was reasonable for Ms RZH to remain in her current accommodation. There may be a detailed post on the decision itself (which the claimant/appellant lost on the facts) to follow, but the point of broader application is the guidance on ‘dual listing’.

Where a s.202 review decision may give rise to both a) a.s204 appeal of its lawfulness, and b) an Equality Act 2010 claim for unlawfulness for discrimination:

i) The Equality Act claim cannot be part of the s.204 appeal – Adesotu v Lewisham London Borough Council (2019) EWCA Civ 1405 (our note).

ii) The County Court had jurisdiction for a discrimination claim by reason of s.114 Equality Act 2010, so judicial review was not the appropriate venue.

iii) A s.204 appeal and a Part 8 claim should both be issued in the County Court, case managed together and dual listed.

Lowe v Governors of Sutton’s Hospital in Charterhouse (2025) EWCA Civ 857

We saw this tenancy deposit matter at first instance and on first appeal. Now the Court of Appeal has, a bit tetchily, dismissed a second appeal.

It was sufficient that the prescribed information made reference to a clause in the tenancy agreement for circumstances in which a deduction from the deposit could be made. It was not fatal that the prescribed information made reference to the wrong clause number, where the tenant had the tenancy agreement with a clause headed ‘Deposit’ as a reasonable person would have understood what was being referred to.

There was no question that the landlord had provided the confirmation that it considered the information in the prescribed information to be correct where the (unsigned) prescribed information had been sent to the tenant for his signature, but enclosed under the cover of a signed letter asking for the tenant to sign and return the information form.

In any event, in my judgment, if the provision is construed purposively in the light of the statutory purpose and context, I consider that it is not necessary for a landlord, in effect, to send out draft information, request the tenant’s approval and then send out certified confirmation in order to satisfy (bb). It is sufficient, as in this case, that the tenant has been given the opportunity to check the details. It is not necessary that that precedes the landlord’s confirmation. Such an interpretation is consistent with the statutory purpose of the requirements. They are intended to safeguard deposits and facilitate the resolution of disputes arising in connection with such deposits.

Given the history of this case, I rather wonder if the Supreme Court will be asked for permission to appeal…