Fertre v Vale of White Horse District Council [2024] EWHC 1754 (KB)

High Court, 8 July 2024

The High Court has held that a housing applicant with pre-settled status was not entitled to an allocation of housing under the Housing Act 1996.

The appellant (Ms Fertre) had moved from France to Britain before the end of the Brexit transition period and had been granted pre-settled status. She applied to the Vale of White Horse District Council (The Council) to be placed on its housing register for allocation of housing under the Housing Act 1996. However, the Council said that she was ineligible because she only held pre-settled status and was an economically inactive person.

Ms Fertre made a further application, this time on the basis of homelessness, but this was also refused due to ineligibility. She subsequently sought a review under section 202 of the Housing Act 1996.

The Council upheld its initial ineligibility decision, on the basis that Ms Fertre had not been economically active in the UK and the right to equal treatment under Article 23 of the UK-EU Withdrawal Agreement (WA), as a result of her pre-settled status, did not require her to be treated as eligible. Ms Fertre appealed, but this was withdrawn when she was subsequently granted an assured shorthold tenancy.

Although Ms Fertre’s eligibility for housing had been resolved, it was held that the issue was of general public importance and should still be determined.

Ms Fertre argued that the refusal of her housing application was contrary to the equal treatment protections for EU citizens in the WA, and that the UK’s grant of pre-settled status was a “new residence status” created by the WA. Therefore, preventing her from receiving housing assistance under UK legislation was discriminatory and incompatible with the terms of the WA.

The High Court, in dismissing the appeal, held that UK law had not been altered by the WA. The new "new residence status" ( i.e. pre-settled status) under the WA was not a blanket conferment of residence rights. Its equal treatment provisions offered protection to those “residing on the basis” of the WA. This did not extend to those only residing on the basis of the “new residence status” issued under the WA. The WA did not specify a mechanism to confer residence status – it was a “one-off” passageway granting an individual with five years' leave to remain without conditions.

The judge, in highlighting a flaw in the appeal, stated that, in his opinion, “the key point is that not all UK nationals qualify for housing assistance (because not all are habitually resident) and not all those with PSS (assuming I am wrong on the main issue) do not.” Therefore, not all British nationals would be entitled to support under the Housing Act 1996. 

This decision will be of use to local housing authorities, as it clarifies the rights of those with pre-settled status to assistance under the housing regime. It highlights that pre-settled status is, according to the judge, “no more than the gateway or passport to the potential acquisition of a particular right at the relevant time” and does not provide those with such a status a right to residence.

A copy of the judgment is here.

Triplark Ltd v Whale and others [2024] EWHC 1440 (Ch)

High Court, 12 June 2024

The High Court has held that the proposed renewal of a communal heating and hot water system did not fall within a landlord's repairing covenant, as the changes would increase the maintenance (and costs) burden on the tenants.

The Landlord (Triplark Ltd) owned a purpose-built block of 194 flats which had been constructed in 1935 and held by long leaseholders with varying unexpired terms. Triplark Ltd wanted to renew the communal heating and hot water system.

The new system relied on the installation of additional apparatus, principally heat exchanger units, to deliver the hot water to the flats. The existing system had had no need for such equipment. Some of the long leaseholders (the defendants) did not want any changes to be made to the system because it would alter the terms of their leases and would substantially increase their repairing obligations which had not been contemplated when the leases had been granted.

Triplark Ltd argued that the repairing covenant in the leases made it clear that it extended to new and different apparatus for the delivery of heating and hot water. The replacement apparatus may not be identical to what had been there since 1935, but they performed the same service.

The High Court, in finding for the defendants, held that the repairing covenant should be interpreted in line with what had been contemplated by the defendants when they entered into the leases. The installation of heat exchanger units to the system changed the way that the lease operated. The new system entailed two heating devices whereas there had previously only been one and the defendants would have to repair that heat exchanger units.

This ruling highlights the importance for landlords to consider possible future changes to heating systems in the context of longer leaseholds, and whether any proposed works to their buildings could be subject to a challenge by the tenants on the grounds raised by this case.

A copy of the judgment is here.

Ambercrown Ltd v Perrett [2024] UKUT 158 (LC)

Upper Tribunal (Lands Chamber), 5 June 2024

The Upper Tribunal (Lands Chamber) has set aside the First-tier Tribunal’s finding that a section 20 consultation regarding improvement works had not been carried out.

A landlord (Ambercrown Ltd) had demanded service charges from the leaseholders of some flats that it owned for works carried out on the roof of the property in 2022.

The First-tier Tribunal (FTT) had held that Ambercrown Ltd had not carried out a consultation on the works, as required by section 20 of the Landlord and Tenant Act 1985, and that, consequently, it could recover only £250 in respect of those works from each leaseholder. Ambercrown Ltd appealed, arguing that it did consult the leaseholders in 2019 and 2020, and that the FTT had not fully explained why its consultation had not been adequate.

The Upper Tribunal (Lands Chamber) (UT), in allowing the appeal, held that the FTT had not explained why the consultation had not been a sufficient consultation in respect of the roof works. As a consequence, the FTT’s decision had to be set aside.

During the course of the leaseholders’ submissions during the hearing, the leaseholders had agreed that they had a responsibility to keep the property maintained; they accepted that they had paid the charges and did not seek to argue that the roof works should not have been done. Specifically, they confirmed that they did not want to be reimbursed for what they had paid for the roof works. Instead, what they were concerned about was the provision of information about the works. As the leaseholders had agreed to or admitted the charges, the UT said that it had no jurisdiction to decide whether those charges would be payable. This meant that the payments already made by the leaseholders would not have to be reimbursed.

A copy of the judgment is here.