Normal service, hopefully, will be resumed before very long.

NL

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This was a count court hearing, before DJ Le Bas, in which the issue of injunctions to permit the landlord to force access to the tenant’s property was again addressed. It follows on from the judgment of DJ Cridge in Southern Housing v James Emmanuel (2025) EWCC 58 (our note here) that held the Court had no jurisdiction to make such an order.  In this case DJ Le Bas held that there was jurisdiction and made such an order. (As usual, it appears that the tenants was not represented and did not appear.)

The landlord argued as follows:

i) The tenant’s obligation under the tenancy agreement was contractually binding consent to the landlord having access in certain circumstances. If the landlord enters in those circumstances, the landlord is not a trespasser. An injunction for forced access, or amend under CPR70.2A to include it, was just giving effect to that binding consent.

ii) A court’s order that the tenant permit access is not an order for the tenant to give permission, but an order for the tenant  to facilitate access (by opening the door).

iii) Where the court has made an order that the tenant facilitate access and they do not, they are a disobedient party within the meaning of CPR 70.2A(1) . The discretion under CPR 70.2A(2) to direct that “the act required to be done may, so far as practicable, be done by another person” is therefore available.

iv) The act here is to facilitate access – by opening or unlocking the door. ‘So far as practicable’ extended to permission antoehr person to open the door, by forcing the lack.

This does not amount to asking the Court to use the CPR to overturn existing law.

The court agreed with this and made the order.

Comment

First thing – obviously this issue needs to go to a higher court. Practically, this would probably have to mean a landlord appealing a refusal, and someone applying to intervene (given the unlikelihood of the tenant being represented).  We have widely differing views in the County Court on what is, by any measure, a serious issue. This needs to be dealt with.

Secondly, I have doubts about the reasoning in this case. I am not convinced that (pace Southern v Emmanuel) the act required by the original injunction – to let the landlord in – is the same act as forced entry without permission. Forced entry includes damage to the property which is of course not part of a tenant’s access obligations.

One act is the tenant’s contractual obligation, the other act, forced entry, it seems clear to me, isn’t. If it is not, then CPR 70.2A(2) is not available. (Can anyone come up with other breach of contract situations that would allow force in seeking compliance, because I’m struggling.)

There also appears to be no engagement with the common law position in this argument, or judgment. If CPR 70.2A(2) is not available, the whole thing falls apart.

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Housing Solicitor and Team Manager (Legal Aid)

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N’Guessan & Anor v Bewry (2026) EWCC 9. I’m not entirely clear why this was given to Bailli, though I suspect there may be an element of a long suffering District Judge going ‘please don’t do this again’.

Ms Bewry was the assured shorthold tenant of the N’Guessans since about 2008. The possession claim, on grounds 8, 10 and 11, turned on whether a section 13 notice increasing the rent from £950 pm to £1200 pm was valid. Ms B had not challenged the notice in court, or the increase in the Tribunal, but had continued to pay £950. By the time of the hearing, arrears were some £9,250.

Ms B had raised some disrepair in 2019 and there was an LA EHO enforcement notice that same year. From emails later in 2019, it appeared that all of these had been addressed save some broken window handles.

There was an inspection by a single joint expert in 2024, which turned out to be quite important on notice, where not otherwise evident.

The Court starts off with issues with evidence and pleadings.

Ms B, through counsel, attempted to advance a case that that the deposit had not been protected, and the How to Rent Guide had not been provided. This got short shrift – the deposit claim, while potentially germane, had simply not been pleaded or referred to in written evidence, and could not fairly be entertained at trial. The How to Rent Guide was irrelevant to a section 8 claim, and anyway the tenancy had begun before 2015.

The claimant had to admit that the ground 8 claim must fail as the arrears at time of service of the notice seeking possession were £1,750, so below the statutory threshold.

The claimant’s evidence was not in itself very convincing.

The First Claimant began by explaining that he was struggling to pay his mortgage. As he gave me his evidence he struck me as a rather vague and approximate landlord, who was sometimes content to ask a contractor to visit to address a problem without taking the trouble to check whether the contractor had actually done so effectively. He appeared unaware of the duty of a landlord to protect a tenancy deposit. In my view, a landlord who rents out residential property is entering into a business transaction: they have gone into business as a landlord. Doing so is a serious business, with serious obligations. A failure to ensure that a rented home is safe can have fatal consequences. The Government has passed a raft of measures which impose obligations on landlords. There are high quality landlords’ associations which can and do provide excellent advice to their members. Being a landlord can generate income in the form of profit – the pursuit of which is normally the reason people become landlords – but can also involve losses when expenses have to be paid, and for which a landlord must make provision. I was not wholly convinced that the First Claimant had fully grasped the breadth of obligations upon him.
(…)
His view is that he always responded to any repairs that he was told about, though he accepted that some contractors had let him down. His general view about this troubled me, because it is inconsistent with the findings of the EHO. I found it hard, in the light of the correspondence and EHO to accept the First Claimant’s generalised assurances that he had always attended to repairs that had been brought to his attention.

But there were other problems with the defendant’s written evidence

Due to some kind of computer glitch, the Defendant’s witness statement contains numerous boxes where the underlying character(s) are obscured. Mr Henry was unable to help with what they might say and when giving her evidence in chief the Defendant did not attempt to fill in the gaps, even though I had identified the issue before evidence began. Sometimes the missing character can be deduced with a high degree of confidence, so that, for example, the first sentence of the third paragraph can be deduced to being “Before I moved into 15 Erica Gardens I was living with….” But nearly all numbers are obscured and in many cases the missing character(s) cannot be readily deduced. I cannot properly guess what the evidence might say, unless it is obvious. This matters, when for example she says “I only had () plug sockets” or “I believe that the longest we went with no heating or hot water was () months”. She adopted the statement as true without correcting the very many omissions, and I cannot properly make a finding of fact that goes beyond the words as they appear on the page of the documents placed before me.

The Court adds, pointedly

If the Defendant considers that she has failed to establish any part of her case by reason of inadequate pleadings or problems with the evidence before me, she may need to take that up with her solicitors.

On the whole, the defendant’s oral evidence was accepted, but where she could not be specific about notice the Court fell back on documentary evidence.

On the section 13 notice, the defendant argued estoppel by convention, on the basis that the defendant had told the claimant she could not afford the increase and the claimant had accepted this. Unfortunately, the only evidence for this was a single WhatsApp message of a thumbs up emoji from the claimant to the defendant in response to one of her messages saying that she could not afford the increase. The Court was firm that this could not be sufficient to establish an estoppel,

I am not persuaded that a thumbs up emoji, on the facts of this case, can be taken as meaning that the Defendant did not have to pay the increased rent. It could simply mean that he noted her view, or that he understood it. It may be that he agreed that she could not afford to pay the new rent – but that is very different to making the next step to agreeing that the rent would not, therefore, be increased. In my judgment, as a matter of contractual construction the thumbs up emoji did not amount to an agreement to waive the rent increase. Nor, in my judgment, on the facts before me, was there an estoppel. The evidence falls far short of demonstrating that there was a common assumption at all, far less that it was ever expressly shared between them. Nor was there an expression by the First Claimant that he could be said to have assumed some responsibility for any shared understanding. I am not persuaded that the Defendant did more than just rely on her own independent view of the matter. I see no subsequent mutual dealing between the parties showing such reliance.

So, the increase was not waived and the £9,250 arrears stood.

On the disrepair counterclaim, limitation applied from 9 January 2018.

(As a subnote, though not relevant to what follows, the tenancy agreement made repairing glass in windows the tenant’s obligations. I don’t think that can stand in view of section 11.)

On the pleaded disrepair, for the periods that the Court was able to accept that notice was given, the following awards were made:

a. Tap £509.60 (constant flow of water when off, dripped from handle when in use. 376 days when the rent was £31.23 per day, and a further 92 days when the rent was £39.45 per day, award of 390 x £1 = £390 plus 92 x £1.30 = £119.60 making a total of £509.60.) (NL – just about 3% of rent)

b. Leak in kitchen ceiling £572.00 (143 days, rent £31.23 per day. Award of £4 per day – about 13% of rent)

c. Doors and windows £2428.70 (Defective window handles, and broken glass).

1357 days when the rent was £31.23 per day and 534 days until 18.7.2024, after which there would have been an overlap in the loss of amenity arising from the broken glass, followed by a further 395 days. For those latter two periods the rent was £39.45 per day.

It seems to me that £1.00 per day would be fair for the defective window handles until the rent increased, from which it should be £1.30 per day. From 18.7.24 the loss of amenity is for the same period and overlaps considerably with it. It also seems to me that for that period, from 18.7.24 – 16.8.25, the broken handles should be treated as an exacerbation of the more significant problems arising from broken glass and leaking windows, worth an additional £0.50 per day

I therefore award 1537 x £1 = £1537, plus 534 x £1.30 = £694.20, plus 395 x £0.50 = £197.50, making a total of £2428.70.

(NL – about 3% of rent, rising to 4.5% rent)

d. Leaking windows £1975.00 (Same duration as broken glass – 395 days, at £4 per day. About 10% of rent)

e. Pendant Lamp fixture broken £289.00 (578 days from 18.7.24 to trial, at £0.50 per day, about 1% of rent.)

f. Boiler £803.86 (Failure for 78 days over winter – allowing 7 days for repairs. 33% of rent)

g. Damp and Mould £1082.00 (to bathroom and two bedroom ceilings. 541 days to trial. £2 per day, being about 5% of rent)

h. Plug socket £286.00 (Two defective sockets in kitchen, 143 days at £2 per day, being about 6.4% of rent)

i. Cooker £214.50 (New hob defectively installed with knobs that did not fit and overheated. 143 days (after 7 days for repair) at £1.50 per day, some 5% of rent)

j. Fan £nil (Faulty extractor fan, no evidence that this persisted after 9 January 2018.)

There was no award for special damages, because no schedule of loss in that regard had been pleaded.

There was no claim for specific performance.

Total damages on the counter claim were therefore £8,160.66

This was outweighed by the arrears of £9,250. Assuming that D could pay the arrears left and the rent ongoing, an outright possession order did not appear justified. (The parties later agreed an SPO with repayment of the arrears).

Both parties had put in further written submissions after the close of trial, these had been ignored.

No order as to costs, apart from detailed assessment of legal aid costs, and claimant to pay the SJE’s fee.

Comment

First off, pleadings, people, pleadings! A case must be pleaded,. It is no good trying to raise it at trial (or indeed after the conclusion of trial). This includes special damages claims.

Second – witness evidence. It is generally best that it is actually legible – particularly for key dates, where a lot turns on notice and limitation. Any problems with a witness statement should be addressed as a preliminary to oral evidence, if not corrected before.

It is noticeable that section 9A/10 unfitness for human habitation was not pleaded, although it would have applied from 20 March 2020 and would seem relevant to at least some of these defects.

The Court’s approach to general damages – a specific award for specific issues for a particular period of time – is a change from the more broad brush assessments often seen (insofar as such cases are often seen), but a perfectly valid one. It can indeed result in higher overall awards than a ‘broad brush’ approach across multiple defects.

However, I am wondering whether such an approach could work with a s.9A/10 claim, where the approach to general damages has to be more holistic to the overall unfitness of the dwelling, rather than a specific loss of amenity per defect. (See discussion here.)

Lastly, a reasonable time to fix a broken boiler, as the sole source of heating and hot water, for social landlords is highly arguably already subject to Awaab’s Law.  During winter months, and considering any particular vulnerabilities of the occupiers, this could (and I have successfully argued does) amount to an emergency hazard, with a 24 hours response time.

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About the role:

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Reporting to the Head of Legal, you will provide advice on a broad range of matters including possession proceedings based on disrepair claims, rent arrears, breach of tenancy, anti-social behaviour, unauthorised occupiers, injunction proceedings and claims against leaseholders including forfeiture and estate management related issues.

This role is based 3 days in our Northampton office and 2 days from home.

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• Manage a diverse, fast‑paced caseload, including handling and defending disrepair claims.
• Provide clear lease‑based advice and meet performance targets set by the Litigation Solicitor or Head of Legal.

About you

• Qualified in Law (LLB or conversion route) with relevant housing/property litigation experience, ideally within social housing.
• Strong problem‑solving skills, with essential expertise in housing disrepair.
• Solid knowledge of Housing Law, court processes and Civil Procedure Rules.
• Experience managing housing cases, including ASB, injunctions, possession and general landlord/tenant litigation.
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This was a final decision in a rent repayment order application brought by (some of) the tenants of 122 Widdenham Road against the landlord, Mr Semelo-Shaw, for a failure to licence an HMO that required a licence. In an earlier decision, the Tribunal had held that the offence of failure to licence was amde out, and that if an RRO was to be made, it would be a 40% of rent paid by the applicant tenants.

However, a final decision was postponed for the applicants to make submissions in writing on what the Tribunal described as “the joint tenancy point”. The Tribunal had noted that the claims were for the payments of rent actually made by each of the various applicants, not a claim for all of the rent paid, by all of the joint tenants (and there had been varying joint tenants over the relevant period). The question apparently raised by the Tribunal and posed to the applicants, represented by Justice for Tenants, was whether an application in relation to a joint tenancy had to include all the joint tenants as parties in order to be a valid application. This mattered here because the 12 month limitation period meant that new applicants could not be added by amendment.

This was the Tribunal’s decision after receiving submissions.

There had been Upper Tribunal decisions dealing with applications for RROs by some or one of a group of joint tenants. HOwever, none of them had specifically addressed this point.

Marcus v Kwok (2024) UKUT 219 (LC) was an appeal by the landlord of the amount of an RRO made for one of two joint tenants. The issue was whether the tenant respondent had themselves paid all the rent claimed. The UT found the tenant had paid the rent claimed. The issue of whether the one tenant could claim by themselves was not raised.

(NL note – there is also Moreira & Ors v Morrison & Anor (2023) UKUT 233 (LC), which concerned whether three applicants (of five joint tenants) could claim for the whole of the joint rent, on the basis that each tenant was jointly and severally liable for the whole rent. The FTT and UT held it was only the rent paid by the applicant tenants that could be claimed, via s.44(2) Housing and Planning Act 2016. Again, the issue of whether an application required all joint tenants to participate was not raised. We’ll come back to this in the comment below.)

Opara v Olasemo (2020) UKUT 96 (LC) did not concern a joint tenant, but rather other tenants as witnesses.

The issue was, then, whether a rent repayment order application was a ‘joint claim’.

Re Maud (No 2) [2018] EWHC 1414 (Ch), (2019) Ch 15 – a bankruptcy case founded on a money judgment obtained by two creditors, in which a single sum had been ordered to be paid to both. The High Court found

I think that it is therefore clear that Edgeworth and Aabar were joint owners of the debt owed by Mr Maud under the judgment and order, and neither was entitled to demand separate payment of any part of the debt for their own benefit.

This, the Tribunal held, represented the substantive law:

If there are joint creditors, all the joint creditors must be party to the claim against the obligor. Once any relevant limitation period has expired, it is no longer possible to cure the fatal defect in a claim by adding a missing joint creditor either as a claimant/applicant or as a defendant/respondent.

Further, there was CPR 19.3, which states

(1) All persons jointly entitled to the remedy claimed by a claim must be parties unless the court orders otherwise.”

(2) If any such person does not agree to be a claimant, he must be made a defendant, unless the court orders otherwise.”

While the CPR did not apply to the Tribunal, and there was nothing equivalent in the Tribunal procedure rules:

Both this Tribunal and the Upper Tribunal do often apply the CPR by analogy in appropriate cases: see most recently Nelson v Southern Electric Power Distribution (2025) UKUT 300 (LC)

There was then the issue of whether a Rent Repayment order was a civil claim such that the rule might apply by analogy

Mr Cairns  (for the applicants) then submits that “RROs are a civil penalty arising from criminal wrongdoing, not a civil head of claim. Therefore, they should not be treated as such.” We do not accept that there is some third category of “civil penalty” which is neither civil nor criminal. In our judgment, any claim is either a civil claim or a criminal penalty. There is no third category. An application to the Tribunal for an RRO is in our judgment an ordinary civil claim.

The Tribunal goes on to note that the position on a joint claim would be a protection for the landlord, because

a landlord may not know what rent an individual tenant has paid into the communal fund. The current case is such an example. The tenants each paid different monthly sums towards the total rent. The landlord is not necessarily a party to that agreement between tenants and may know nothing of it. If individual claims were permissible, one tenant could bring proceedings shortly after the end of the tenancy and obtain an RRO for what he or she says they paid (say a half). Another tenant could claim an RRO just before the expiry of the limitation period for what this tenant says he or she paid (say two-thirds). If the tenants exaggerated their rent payments, the landlord might be liable for more than the total rent received by him.

As the application was not by all joint tenants, the FTT did not have jurisdiction to make an RRO, additional applicants could not now be added due to limitation, and the application was dismissed.

Comment

Well now.

This has been floating around in discussions for a while, but has not really been taken as a point. If it is right, it presents significant problems for RRO applications by joint tenants (and that would be all joint tenants over the relevant period). And also a lot of complications – eg, some joint tenants receive HB/UC for their full rent and others don’t – only the non HB/UC tenants would actually have a valid application. It could be said that the others would not be entitled to the remedy, so didn’t need to be parties, but this might have to be shown.

And then of course, the sheer practicality of getting all joint tenants (who may have left some time before) included as parties (presumably as respondents if they didn’t want to be applicants, by analogy with CPR 19.3) would make RROs against the dodgiest landlords, by the most vulnerable tenants, almost impossible to bring.

I’ve been thinking about this a bit – not definitively by any means – and I think there are some problems with this decision.

It has been argued to me that an RRO application is not a claim to a remedy to which the tenant is ‘entitled’ (as per CPR 19.3), because the Housing and Planning Act 2016 provides that the FTT may make an RRO if the grounds are made out, not that it must. There is no entitlement to an RRO as a remedy, it is wholly at the FTT’s discretion (unlike say a s.214 Housing Act 2007 deposit breach claim). I am not hugely convinced by this line. An RRO application is still seeking a remedy. It might be a statutory penalty sought, but so is a s.214 deposit claim.

But, there is an overlooked point in the UT’s discussions of s.44(2) Housing and Planning Act 2016 in Marcus and in Moreira. The applicant tenant can only apply for the rent actually paid by them. The individual joint tenant does not have a basis to apply for the whole of the (joint) rent, and even if all joint tenants are applicants, they are applying in respect of the rent that they individually paid, not a for a joint sum that they can later divide up between them.

That, I think, is the settled meaning of s.44(2). On that basis, it is not a joint ‘entitlement’ of all the joint tenants, it is individual applicants’ claim in respect of the rent that they actually paid (which also deals with the issue of arrears arising from specific individual’s non-payment, albeit that all are jointly and severally liable for arrears in any claim by the landlord).

I’m not saying that this is a complete or indeed satisfactory answer, far from it. But there is a very clear tension between the Upper Tribunal case law on the meaning of s.44(2) and the logic of this decision.

(On the landlord not knowing who paid what, the UT and FTT have hitherto been pretty clear this needs to be evidenced by the applicant. I don’t see this as an issue.)

I gather an appeal is likely. Clearing things up is certainly necessary.

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