Royal Borough of Kingston-Upon-Thames v Moss [2019] EWHC 3261 (Ch)

High Court, 29 November 2019

The High Court has held that a local authority is was liable for overcharging tenants for water bills.

The local authority (Royal Borough of Kingston-Upon-Thames) owned a number of council houses and flats. Under the Water Industry Act 1991, Thames Water was entitled to charge the council tenants for the supply of water and sewerage services. Royal Borough of Kingston-Upon-Thames and Thames Water signed a formal agreement enabling Royal Borough of Kingston-Upon-Thames to receive a commission for providing these services. Under the agreement, the council tenants would not have to pay more for their water and sewerage than they would have had to pay if they had been paying Thames Water directly. The agreement meant that the tenants only had to pay one organisation for both their rent and their water/sewerage charges.

Following the decision in Jones v London Borough of Southwark (2016) EWHC 457, whereby it had been held that Southwark Council had been “reselling” water to tenants without passing on the savings it had made through a similar agreement with Thames Water, one of the tenants (Mr Moss) asked Royal Borough of Kingston-Upon-Thames for a refund of any excess water and sewerage charges he had paid since the commencement of his tenancy. He argued that the commission received by Royal Borough of Kingston-Upon-Thames was not reflected in his water bill.

The High Court, ruling in favour of Mr Moss, held that Mr Moss was entitled to be reimbursed for the overpayments he had made to Royal Borough of Kingston-Upon-Thames since the commencement of the agreement.

An application for permission to appeal the ruling is expected. If the decision is not overturned, it could potentially lead to other local authorities and housing associations having to reimburse tenants for overpayments.

A copy of the judgment is here.

Mayor and Commonalty and Citizens of the City of London v Various Leaseholders of Great Arthur House [2019] UKUT 341 (LC)

Upper Tribunal (Lands), 20 November 2019

The Upper Tribunal has held that repairs to a building could not be included in the service charge if their effect was to make good a structural defect.

A local authority landlord (City of London) and the tenants were in dispute over who was liable for the costs for carrying out substantial repair work to the structure and exterior of the tenants' building. Under the leases, the City of London had a statutorily implied obligation to maintain the structure and exterior of the building. The terms of the leases stated that the tenants would pay City of London a “reasonable part of the costs of carrying out specified repairs and of insuring against risks involving specified repairs”. The lease defined “specified repairs” as “repairs carried out in order (i) to keep in repair the structure and exterior of the premises ... not amounting to the making good of structural defects; (ii) to make good any structural defect of whose existence the Corporation [i.e. City of London] had notified the tenant in the notice ...”

The City of London and the tenants disputed the effect of the “not amounting to the making good of structural defects” part of the definition. The tenants argued that “works of repair” (as specified in the leases) were not “specified repairs” if their effect was to make good a structural defect. The City of London argued that “works of repair” that made good structural defects were “specified repairs” if the works were intended to remedy disrepair. The tribunal ruled in favour of the tenants, so City of London appealed.

The Upper Tribunal, in partially allowing the appeal, held that “works of repair” of the structure and exterior of the building only fall within paragraph (i) of the definition of “specified repairs” if they do not have the effect of making good a structural defect. The cost of works that do have the effect of making good a structural defect of the building are only chargeable as service charge if they fall within paragraph (ii) of the definition.

A copy of the judgment is here.

London Borough of Waltham Forest v Saleh [2019] EWCA Civ 1944

Court of Appeal, 19 November 2019

The Court of Appeal has held that when reviewing a homelessness decision under the Housing Act 1996, the review officer must reconsider the decision in light of all relevant circumstances at the date of the review, rather than only the facts at the time of the original decision.

A local housing authority (London Borough of Waltham Forest) had provided temporary accommodation to Mr Saleh and his family after accepting a full housing duty under the Housing Act 1996. The accommodation was situated just outside London Borough of Waltham Forest’s district. Mr Saleh’s daughter suffered from type 1 diabetes and he consequently asked to be re-housed within London Borough of Waltham Forest’s district so that his family could be as close as possible to the daughter’s school, family, and hospital. London Borough of Waltham Forest suggested that the current accommodation was suitable, but subsequently conducted a review of its position. The review officer upheld the original decision – but had not considered whether other suitable accommodation existed closer to, or within, the district. Mr Saleh appealed and the County Court held that the review officer should have considered the availability of other accommodation. London Borough of Waltham Forest appealed.

The Court of Appeal, in dismissing the appeal, held that the review officer should have reconsidered the decision “in the light of all material circumstances at the date of review including the availability of suitable accommodation either within or closer to its district and the school which his daughter attends.”

A copy of the judgment is here.

In Adriatic Land 1 (GR3) Ltd v Miller [2019] UKUT 344 (LC)

Upper Tribunal (Lands Chamber), 8 November 2019

The Upper Tribunal has held that a freeholder of a block of flats was able to recover service charges, as they were reasonable and payable.

The leases at the block of flats were all tripartite – they were made between the landlord (the freeholder), the residents association for the property (the company) and the relevant lessee. The company covenanted with the freeholder and each lessee to provide services. The lease stated that (1) if any money was paid out by the freeholder, the lessee would repay the freeholder, (2) the freeholder could enter the property and “give notice to the company of any defects or any need for repair, and for the company to make good within three months”, and (3), as a proviso, if the company failed to “perform its covenants”, or “ceased to exist”, the freeholder could enter the property, perform the covenants, and either charge the company or recover the costs.

In June 2016, the company went into liquidation. In June 2017, Adriatic Land 1 (GR3) Ltd purchased the freehold of the property and told the lessees that it was taking over the management of the property. In February 2018, it sent a service charge demand to the lessees. However, the lessees made no payments and instead launched legal proceedings to determine the “reasonableness” and “payability” of the service charge, arguing that the charge had greatly increased. The First-Tier Tribunal, siding with the lessees, held that the service charge was unreasonable. Adriatic Land 1 (GR3) Ltd appealed.

The Upper Tribunal, in allowing the appeal, held that the service charge had been reasonable and payable. The company had failed to perform its covenants, so Adriatic Land 1 (GR3) Ltd had entered the property and performed them. It held that a company in liquidation had effectively “ceased to exist” and therefore, under the proviso in the lease, the freeholder had been entitled to carry out the work.

A copy of the judgment is here.

JD and another v United Kingdom, Application Nos. 32949/17 and 34614/17

The European Court of Human Rights, 24 October 2019

The European Court of Human Rights has held that the “bedroom tax” amendment to the Housing Benefit Regulations 2006 discriminated against a woman who had suffered domestic violence.

The Government’s amendments to the Housing Benefit Regulations 2006 had resulted in reductions to the amount of housing benefit granted to individuals who were perceived to be under-occupying social housing. Two individuals (“JD” and “A”) occupied social housing that had been specially adapted to their needs – JD had a severely disabled adult daughter, and A was a victim of domestic violence who was still under threat from her aggressor and had had a “panic room” installed. However, in both cases, only two people occupied each property and there were three bedrooms in each, meaning that the properties were deemed to be under-occupied. The reduction in housing benefit meant that both women could not afford their rent. The two women launched discrimination claims.

The European Court of Human Rights held that the reduction in housing benefit had violated A's rights: the impact of treating A in the same way as other housing benefit recipients was disproportionate, and it also conflicted with the Government's sanctuary schemes for individuals at risk of domestic abuse. However, it also concluded that the reduction had not violated JD's rights on the ground of disability, partly due to the safeguards of discretionary housing payments, the requirements of the Human Rights Act 1998, and the public sector equality duty under the Equality Act 2010.

A copy of the judgment is here.

RR v Secretary of State for Work and Pensions [2019] UKSC 52

Supreme Court, 13 November 2019

The Supreme Court has held that a local authority, court or tribunal can disregard government regulations if they are incompatible with human rights law.

Background

In R. (on the application of Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58, the Supreme Court had held that parts of the “bedroom tax” were unlawful – i.e. that regulations B13(5) and (6) of the Housing Benefit Regulations 2006 led to unjustified discrimination on the ground of disability, as they did not cater for a “a transparent medical need for an additional bedroom”. Consequently, the law was changed and the Housing Benefit and Universal Credit (Size Criteria) (Miscellaneous Amendments) Regulations 2017 came into force in April 2017 to reflect the Carmichael ruling, but they were not retrospective.

The RR v Secretary of State for Work and Pensions [2019] UKSC 52 case considered the effect of the decision in R (Carmichael) v Secretary of State for Work and Pensions [2016] UKSC 58

The case

A tenant (RR) lived with his disabled partner in a two-bedroomed council house. He received housing benefit, but the local authority reduced the amount payable as he was deemed by the Council to be ‘under-occupying’ the property. In August 2014, RR appealed to the First-tier Tribunal, which found that his partner's disabilities meant that the couple needed two bedrooms because of her disabilities and to accommodate her medical equipment and supplies. It also found that he had been discriminated against. In August 2018, after awaiting the Carmichael decision, the Upper Tribunal allowed the Secretary of State's appeal but granted RR a ‘leapfrog certificate’, permitting him to appeal to the Supreme Court.

The Supreme Court, in allowing the appeal, held that there was nothing unconstitutional about a public authority, court or tribunal disapplying a provision of subordinate legislation (e.g. a statutory instrument) which would otherwise result in their acting incompatibly with a right under the European Convention on Human Rights and the Human Rights Act 1988. It ordered that RR’s housing benefit should be recalculated without making the under-occupancy deduction, as the decision had breached his rights under the European Convention on Human Rights.

The ruling will have huge significance to the 130 “lookalike” cases that have been stayed, awaiting the outcome of this appeal.

A copy of the judgment is here.