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Rare housing appeal could set a precedent for disrepair claims (22 March 2022)

Date: 22/03/2022
Duncan Lewis, Main Solicitors, Rare housing appeal could set a precedent for disrepair claims

A housing disrepair case which could have a major impact on damages claims in future disputes between landlords and tenants will be heard by the Court of Appeal this week.

If the appeal is allowed, it would mean tenants living in dilapidated rental homes ‘suffer a loss of amenity,’ and would not be entitled to claim the 10% damages uplift established in Simmons v Castle.

Judges are due to hear the case of Khan v Mehmood, an appeal which arises out of a housing disrepair counterclaim brought against a landlord, Mrs Khan, who sought possession of the property from her tenant, Mr Mehmood, back in 2013.

Duncan Lewis Solicitors is representing the respondent tenant, Mr Mehmood, and the hearing will be live streamed on the Court of Appeal’s YouTube Channel 23 March 2022.

The possession claim was dismissed at first instance. Deputy District Judge Middleton-Roy also awarded Mehmood £45,458.49 for his disrepair counterclaim. It was upheld in an appeal to HHJ Saunders at County Court level. The Court of Appeal is considering one ground with two subsections, both of which are concerned with the calculation of this damages award.


Calculating housing disrepair damages

Damages for a housing disrepair claim are calculated in accordance with the rent due. For example, in this case, the judge found that the disrepair was such that damages should be calculated as 50% of the total rent due from the start of the tenancy.

However, this award is then subject to certain changes in accordance with case law. In this particular case, the relevant case law that was applied to the calculation comes from Simmons v Castle, in which the Court of Appeal established an uplift of 10% for all general damages awarded in tort cases, those where a claimant suffers loss or harm.


Ground of Appeal

The first subsection of the appellant’s ground of appeal relates to the length of time that Mr Mehmood has been in occupation of the property.

The second subsection, which is of greater general public importance, is the application of the Simmons v Castle 10% uplift. It has never actually been established in the higher courts whether this uplift should apply to a housing disrepair claim. However, the uplift has been held to apply, amongst other categories, to damages awarded for ‘pain, suffering and loss of amenity’, also known as PSLA. It is our client’s position that this uplift should apply, as in our view a damages award for housing disrepair falls under ‘loss of amenity’ – damages are literally being awarded because a tenant lacks the amenities that his/her home should include in exchange for the payment of rent.


Final thoughts before the appeal hearing

Appeals on housing disrepair claims are very rarely granted, which makes this is a particularly exciting case for housing practitioners. There would be unintended consequences for tenants and their legal advisers if the 10% uplift did not apply to housing disrepair claims, which makes this an important case; if our client is successful, there will be no doubt that Simmons v Castle should apply to all damages awards for housing disrepair.


Our City of London housing team director Manjinder Kaur Atwal, solicitor Daljit Singh Shina and caseworker Annabelle Steele is representing the respondent, instructing counsel Toby Vanhegan, of 4-5 Gray’s Inn Square, and Matthew Lee, of Lamb Building. The Housing Law Practitioners’ Association (HLPA) has been granted permission to intervene.

Our expert housing team has wide-ranging experience in tackling all manner of issues and cases. If you are affected by any of the issues raised in this article and would like any advice or information contact Manjinder via email on manjindera@duncanlewis.com or telephone 020 3119 0269.


The hearing is on 23rd March 2022 and will be live-streamed on the Court of Appeal’s YouTube channel.






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