Capsticks' team of housing specialists is delighted to provide you with our monthly housing case law update which includes recent cases from courts in England and Wales that are relevant to the housing sector. We trust that you will find this update useful.  Please remember our specialist resource page for the housing sector is available here for regular updates and answers to your questions on issues arising out of COVID-19.

London Borough of Lambeth v Gniewosz [2020] UKUT 274 (LC)

14 September 2020, Upper Tribunal (Lands Chamber)

The Upper Tribunal has held that the First-tier Tribunal had not given sufficient reasons for its conclusions in a service charge dispute involving repair or renewal.

A tenant (Ms Gniewosz) held a long lease of a flat owned by the London Borough of Lambeth. Ms Gniewosz had applied to the First-tier Tribunal (Property Chamber) to challenge the reasonableness of service charges demanded by London Borough of Lambeth for a six-year period, including (1) the proposed expenditure on the roof, (2) that the replacement of the roof in glass-reinforced plastic rather than zinc would be a breach of the landlord's covenant in the lease, (3) the need to aggregate the work with the replacement of other roofs on the estate, (4) the insufficiency of warranties and guarantees in the proposed contract, and (5) potential breaches of building regulations and planning policies.

The First-tier Tribunal (Property Chamber) found in Ms Gniewosz’s favour in regard to the breach of covenant, but did not deal with the other issues. The London Borough of Lambeth appealed, arguing that the replacement of the roof was a repair and that the Tribunal had not explained whether it had thought that the proposed work was a repair or a renewal. It argued that the Tribunal had not said what had been the legal test it had employed in order to decide whether the proposed replacement roof would be a breach of covenant.

The Upper Tribunal, in allowing the appeal, remitted the matter to the First-tier Tribunal for a rehearing.

A copy of the judgment is here

Araho v Southwark London Borough Council [2020] EWHC 2633 (QB)

High Court, 29 September 2020

The High Court has held that the administrative failings of a court had contributed to a judge's decision to strike out an appeal against a possession order. Consequently, permission to appeal was granted.

Mr Araho was a secure tenant at a property owned by Southwark London Borough Council. He brought a claim for disrepair, but Southwark London Borough Council asserted that he no longer occupied the property. Southwark London Borough Council later successfully obtained an order for possession against Mr Araho. In response, Mr Araho submitted a notice of appeal against the possession order, which included a fee remission application. It was subsequently discovered that the notice had been stamped with two different dates. The later date had been due to the court determining that Mr Araho was not entitled to fee remission and returning the notice of appeal. When Mr Araho paid the necessary fee, the appeal deadline had expired. At the case management hearing, Mr Araho applied for an extension of time, but this was refused and the appeal was struck out. He applied for permission to appeal against the ruling.

The High Court, in allowing the application in part, held that the administrative shortcomings of the court surrounding the date mix-up had contributed to the judge's adverse assessment of Mr Araho’s credibility and the striking out of the appeal for being out of time. It allowed for fresh evidence demonstrating that the appeal had been brought in time to be submitted. On that basis, the Court also granted permission to appeal.

The transcript is not yet publicly available.

Eshraghi & Ors v 7/9 Avenue Road (London House) Ltd v Ltd [2020] UKUT 208 (LC)

Upper Tribunal (Lands Chamber), 2 July 2020

The Upper Tribunal has held that the majority of the legal costs incurred by the a Landlord of a block of flats in three sets of legal proceedings were recoverable from the leaseholders through service charges.

Three leaseholders in a block of flats applied to the First-tier Tribunal (Property Chamber) for a determination that, among other things, legal costs incurred by their Landlord company through litigation were not recoverable by way of service charges. The Landlord had incurred these costs after taking legal action to (1) determine who were its directors, (2) counter a disrepair claim brought by another leaseholder over a faulty balustrade, and (3) recover unpaid service charges from another leaseholder. The First-tier Tribunal ruled that it did not have the jurisdiction to determine the leaseholders application and that the legal costs incurred in the other disputes fell within the scope of the lease and were therefore recoverable. The leaseholders appealed to the Upper Tribunal (Lands Chamber).

The Upper Tribunal (Lands Chamber), in allowing the appeal in part, held that the First-tier Tribunal did have jurisdiction to consider whether the Landlord’s litigation costs in the Board dispute could be recovered as service charge, even though they were paid out of a service charge reserve fund held on trust. The legal costs incurred by the Landlord in the disrepair and unpaid service charges cases were costs associated with the proper management of the building and were therefore recoverable.

A copy of the judgment is here.

Investigation into a complaint against London Borough of Enfield (reference number: 19 006 598)

Local Government and Social Care Ombudsman, 17 August 2020

The Local Government and Social Care Ombudsman has found that a local council was at fault for failing to provide a disabled man and his family with suitable accommodation.

The family became homeless in June 2017 and the London Borough of Enfield accepted that it owed them a housing duty under the Housing Act 1996. The family was placed in temporary accommodation, but the property suffered from severe mould and mice infestations and was also deemed to be unsuitable for the disabled father, who used a wheelchair. The family subsequently asked for a review. The review, which was not completed until February 2018, found that the accommodation was unsuitable. An investigation by the Local Government and Social Care Ombudsman (LG&SCO) found that the London Borough of Enfield was at fault for the delay in carrying out the review, which took eight months to complete (instead of eight weeks).

The family was considered for alternative properties in 2018 and 2019, but none were suitable for wheelchair use, or were affordable. In 2019, the family made a further complaint to the LG&SCO, as the disabled father was having to sleep on the ground floor on an airbed and was unable to use the toilet. The LG&SCO upheld the complaint, finding that the London Borough of Enfield had failed in its housing duty. The family was eventually provided with a new home by a local housing association in August 2020.

The LG&SCO told the London Borough of Enfield to write a procurement policy for securing accessible properties (it had not had a procurement policy since February 2018), and to pay the family £250 for every month that they were in unsuitable accommodation.

The LG&SCO's decision provides a reminder to local councils that they cannot allow families to live in unsuitable accommodation simply because they cannot find a suitable property. Councils must ensure that they have sufficient housing.

A copy of the decision is here.

Enfield London Borough Council v Persons Unknown

High Court, 2 October 2020

The High Court has refused an application to give a local authority retrospective permission to serve a claim form on which it had relied to obtain a three-year injunction to prevent persons unknown from setting up encampments or fly-tipping on public open spaces in its borough.

A local authority (Enfield London Borough Council) applied for an injunction against persons unknown in order to stop them from setting up encampments or fly-tipping on various public open spaces in the borough. An interim injunction was granted and notice of the injunction was attached to posts at each of the sites, but not copies of the claim form. The notice stated that the claim form was available on Enfield London Borough Council’s website and in libraries. When the injunction was due to expire, Enfield London Borough Council initially applied to vary the injunction by extending it, but then applied for retrospective permission to serve the claim form by an alternative method and issued a Part 8 claim for a new injunction to restrain fly-tipping on 96 of the sites. Enfield London Borough Council provided evidence that the claim form had been viewed 2068 times on its website, and that there was no record of anyone asking to view the copies held at libraries. However, an organisation called London Gypsies and Travellers provided evidence that the Gypsy and Traveller community tended to have less access to the internet than the general public.

The High Court, in dismissing the application, held that there was a duty on parties to refer an injunction to the court for reconsideration where parties were aware of a material change in circumstances and there was a real prospect of the court amending or discharging it. Enfield London Borough Council had not shown that the claim form had been brought to the notice of any person unknown. If it had sought an order for alternative service, the Court would have required service by posting the claim form at each site. The Court declined to make an interim injunction and adjourned the Part 8 claim.

This is an extempore (oral) decision, so no transcript is currently available.