Lee v Leeds City Council (Ratcliffe v Sandwell Metropolitan Borough Council)

A landlord’s covenant to keep a dwelling’s structure and exterior in repair requires existing disrepair. It does not require correction of an inherent design defect merely because condensation, damp or mould makes the dwelling unfit for occupation. Where structural damage requires repair, proper performance may include eliminating its underlying design cause.

A local authority’s duties under section 6 of the Human Rights Act 1998 and article 8 are fact-sensitive. They do not impose a general, unqualified duty to keep all social housing habitable. Section 3 does not authorise reinterpretation of compatible legislation merely to confer wider rights.

A design defect unrelated to maintenance or repair is not a relevant defect under section 4 of the Defective Premises Act 1972.

These conjoined appeals concerned local authority houses affected by condensation, damp and mould attributable to inadequate heating, ventilation or insulation rather than deterioration of the structure or exterior.

In Lee, Leeds County Court declared that the council had no liability under the tenancy, section 11 of the Landlord and Tenant Act 1985, article 8 or section 4 of the Defective Premises Act 1972. In Ratcliffe, Birmingham County Court dismissed personal injury claims brought by three children whose asthma had been aggravated by mould. The Ratcliffe appeal came directly to the Court of Appeal under section 57(1)(a) of the Access to Justice Act 1999.

The central issues were whether human-rights law imposed an independent duty or enlarged the repairing covenant, whether additional contractual terms should be implied, and whether a right of entry created a deemed obligation under section 4(4) of the 1972 Act.

1. The appeals were dismissed unanimously. Lord Justice Chadwick delivered the judgment, with which Lord Justice Tuckey and Sir Murray Stuart-Smith agreed.

2. Section 6 of the Human Rights Act 1998, read with article 8, may impose a positive obligation on a local authority landlord to take steps concerning housing conditions. The existence and extent of that obligation depend on the facts and on a fair balance between the individual’s interests, community needs and public resources. There is no general and unqualified obligation to keep all local authority housing in a habitable condition. Neither appeal established an article 8 breach.

3. Quick v Taff Ely Borough Council [1986] QB 809 was not decided per incuriam. A repairing covenant operates where the relevant structure or exterior has suffered damage or deterioration. It does not require improvement of an inherently defective building merely because the defect causes condensation, mould or loss of amenity. Where damage does require repair, reasonable performance may include removing an inherent design defect that caused it, provided the work does not involve substantial rebuilding.

4. Section 3 of the 1998 Act did not permit the court to enlarge section 11(1)(a) of the Landlord and Tenant Act 1985. The established meaning of the repairing covenant was compatible with Convention rights. The court could not reinterpret compatible legislation merely because another interpretation would give tenants greater rights, particularly where section 8 expressly defined the limited circumstances in which habitability obligations applied.

5. No term requiring the landlord to keep the premises in good condition or fit for habitation could be implied at common law. Such a term would add a substantive obligation which the parties had not undertaken and which Parliament had imposed only in defined circumstances. Nor was that term a necessary correlative of obligations to occupy, decorate or keep the interior clean.

6. Under section 4(4) of the Defective Premises Act 1972, a deemed obligation is commensurate with the landlord’s right of entry. A local authority landlord had an implied right to enter to perform works needed to abate a health-threatening statutory nuisance. Nevertheless, works correcting a design defect which had caused no disrepair were neither maintenance nor repair. The defect was therefore not a relevant defect under sections 4(1) and 4(3), and no statutory duty arose.

1. Court of Appeal: Both appeals dismissed unanimously; the county court orders were left undisturbed. Permission to appeal to the House of Lords was refused.
2. Leeds County Court: His Honour Judge Milford QC declared that Leeds City Council had no liability for condensation, mildew or mould growth. Permission was initially confined to the human-rights issue.
3. Birmingham County Court: His Honour Judge Geddes answered the preliminary issue against the Ratcliffe claimants and dismissed their claims. The appeal reached the Court of Appeal following a direction under section 57(1)(a) of the Access to Justice Act 1999.