Assured tenancy – Determination of rent – Former long residential tenancy coming to end – Appellant becoming assured tenant by virtue of Schedule 10 to Local Government and Housing Act 1989 – Rent determined disregarding tenant’s improvements – Improvement taken into account on subsequent reference under Housing Act 1988 – Whether statutory provisions to be construed so as to permit disregard of improvements – Appeal dismissed
The appellant was the tenant of a flat that she had originally held from the respondent landlord on a long underlease at a rent of £195 pa. In 2003, the long residential tenancy came to an end and the appellant remained in possession under an assured periodic tenancy pursuant to section 186 of, and Schedule 10 to, the Local Government and Housing Act 1989. Schedule 10 replaced Part I of the Landlord and Tenant Act 1954, which had previously protected tenants such as the appellant until it was repealed by the 1989 Act.
A rent assessment committee determined the appellant’s rent at £1,668 per month, disregarding improvements that she had carried out during the long tenancy, as required by para 11 of Schedule 10. On a subsequent reference, however, a rent of £2,340 per month was determined on the basis that improvements carried out by the appellant should not be disregarded by reason of section 14(3)(b) of the Housing Act 1988; this provided that improvements not carried out during the appellant’s current tenancy could be disregarded only if “at all times during the period beginning when the improvement was carried out and ending on the date of service of the notice, the dwelling house has been let under an assured tenancy”. The committee considered that, since assured tenancies had not existed prior to their creation by the 1988 Act, that requirement could not be met. Accordingly, not only would the rent payable increase but the appellant would be deprived of her security of tenure because the new rent would exceed the £25,000 pa threshold above which the tenancy would cease to be an assured tenancy on an application of para 1 of Schedule 2 to the 1988 Act and Schedule 10 to the 1989 Act.
The appellant appealed, contending that the relevant statutory provisions should be interpreted so as to disregard her improvements. Dismissing the appeal, the judge held that where statutory provisions were unambiguous, the court could not, save in exceptional circumstances, write words into a statute to achieve a supposed purpose; here, it was not possible to be satisfied that the removal of the protection of former tenants under long residential tenancies was inadvertent since Schedule 10 showed that some consideration had been given to the protection for such tenants: [2009] EWHC 565 (Admin); [2009] 2 EGLR 47; [2009] 26 EG 114. The appellant appealed.
Held: The appeal was dismissed.
The essential question was one of interpretation in accordance with well-established principle. The court could not adopt the appellant’s interpretation on the basis that it was a permissible interpretation that should be preferred because it met the objections to the omission of the protection of the disregard once the landlord was able to operate sections 13 and 14 of the 1988 Act.
Paragraphs 9 and 11 of Schedule 10 to the 1989 Act, in their form and context, clearly provided a means of fixing the initial rent; their function was limited to enabling the rent to be fixed at the outset. Once the initial terms, including rent, had been fixed, those paragraphs were spent, and the landlord could serve a notice and start the procedure for fixing a new rent, when it was entitled so to do, by virtue of section 13 of the 1988 Act.
It was impossible to read sections 13 and 14 of the 1988 Act as providing for the assessment of rent on the principles laid down by para 9(2)(e) of Schedule 10 to the 1989 Act. Had that been parliament’s intention, there would have been some indication in sections 13 and 14 at the time of the 1989 Act. Sections 13 and 14 provided a code for the notices to which they applied and a further principle could not be deduced from Schedule 10.
Moreover, one would expect it to be made clear if a particular provision laid down a principle and not an operative provision, and how that principle was to relate to other operative provisions. If para 9(2)(e) laid down an overriding principle, that would contradict the express provisions of section 14(3) of the 1988 Act. It applied only to improvements that the tenant had carried out under the new assured tenancy or some previous assured tenancy. It also applied only to improvements carried out in the previous 21 years, whereas a long residential tenancy might have been for a longer term and improvements might have been made at any time during that tenancy. The absence of guidance on such points in the 1988 and 1989 Acts was a strong indication that the appellant’s interpretation was not correct.
Martin Rodger QC and Dr Victoria Williams (instructed by David Tagg & Co) appeared for the appellant; Philip Rainey QC and Christopher Heather (instructed by Forsters LLP) appeared for the respondent.
Eileen O’Grady, barrister
