The Legal Position

We finally have a High Court authority concerning s.9A LTA 1985 (fitness for human habitation). For nearly two years, parties have relied on Jillians v Red Kite Community Housing (HHJ Clarke, 24^th September 2024, Oxford County Court) as the primary authority that explains the various components of s.9A LTA 1985. However, moving forward, parties are likely to rely on Harvey & Anor v Heaver & Anor  [2026] EWHC 1671 (KB).

Harvey is an excellent High Court authority. The counsel and solicitors involved were clearly legally adept and highly capable. The Judge, Paul Bowen KC, has provided one of the best analyses of the law that I have ever seen. Whilst I am providing a deep-dive analysis in this blogpost, nothing beats reading the authority in full, and I cannot do justice to the exquisite level of detail within this post.

The authority can be found here: https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/1671

Before engaging in a deep-dive analysis of the authority, it is useful to set out the bottom line up front. The authority confirms, inter alia, that:

• Premises may be not be fit if, first, the living conditions present a risk to the health or safety of the occupiers; and, second, the living conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety.

• The focus is on ‘any risk of harm’ to the occupiers.

• A finding does not depend on whether there is a ‘category 1’ or ‘category 2’ hazard. However, a category 1 or category 2 hazard would be strong evidence of unfitness.

• The expert does not need to opine that a decant from the Property is required for a finding under s.9A LTA 1985 to be made.

• The ‘tenant conduct’ defence very much focusses on the attribution of responsibility and a tenant default that is a real but secondary cause of ‘unfitness’ does not meet it.

With that, let’s look at the authority in detail.

Background

Several causes of action were live, including a claim for personal injury and alleged breaches of the Equality Act 2010. The High Court decided that it did not have jurisdiction over the Equality Act 2010 claim and decided to hear the housing conditions claim only. Within the housing conditions claim, as usual, both s.11 and s.9A LTA 1985 were pleaded as causes of action. The High Court focussed on the s.9A LTA 1985 claim only (fitness for human habitation). The remaining causes of action were to be transferred to the County Court. The Claimants sought specific performance for completion of the works, a decant from the Property, and damages. The Claimants were ultimately successful in their claim and notably received £130,000 in costs on account. The High Court did not, however, award a decant from the Property. 

The Claimants were husband and wife and parents of four children aged 16, 12, 11 and 7. The Property was a four-bedroom dwelling.

Evidentially, Paul Bowen KC relied solely on the single joint expert report of Mr Paul Badham, a chartered building surveyor.

Preliminary issue – deficient pleadings

The Defendant raised the point that it ought to be open to them to argue that the failure to permit access to the Property to allow the Defendants to effect repairs had been ‘wholly or mainly’ responsible for the current state of the Property so that, if the Court did find it to be unfit, the Defendant would have a defence under s 9A(3) of the LTA 1985.

There is nothing unusual about this. In fact, an alleged lack of access appears in pretty much every housing disrepair defence I have ever seen. Often it is pleaded with the necessary precision and specificity for the Claimant to be able to reply, for example ‘the Claimant did not allow access on X date’. Other times, it is pleaded in vague terms for example ‘the Claimant has failed to allow access.’ The latter example is risky for Defendants as they leave themselves open to the criticism that their pleaded case is too vague for the Claimant to reply to and it ought to be struck out. Whether it is struck out or not depends on how technically minded the judge is.

My point is: an allegation of a lack of access is almost always pleaded in some capacity. I find it extraordinary that the Defendants failed to plead an alleged lack of access in this case. It appears that they did not even plead it vaguely, as the authority makes clear:

[4] When I pointed out that the First Defendant had not pleaded that ground of defence Mr. Brady made an application to amend the Defence. I refused that application, for reasons I give at the end of this judgment.

If there is any takeaway from this preliminary issue it is this: you must plead your case fully and properly.

The disrepair in the Property

As above, a single joint expert was used. There were other reports but the Judge focussed solely on the single joint expert. The expert was not required for cross-examination and his evidence was unchallenged. Importantly, the Judge quite properly recorded that whilst the professional conclusions and photographs were the evidence in the case, the Judge remained the ultimate judge of the questions of fitness for human habitation and relief. I see this mistake time and time again: parties treating the expert reports as if their opinion is determinative. Ultimately, the Judge is the final decision maker, and expert evidence is but one strand of evidence that is considered.

The relevant disrepair in the Property was as follows:

• Damp and mould in every room. Importantly, causation was attributed to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof. It was described as being of ‘a light extent’.

The Judge relied on Chapter 11 of the Housing Act 2004 (‘the HA 2004’): the ‘Housing Health and Safety Rating System (HHSRS): Operating Guidance, Part 2: A technical guide for assessors’ (June 2026) (‘the HHSRS Operating Guidance’). This is statutory guidance issued by the Secretary of State under s 9 of the

HA 2004 to which local authorities must have regard in the exercise of their statutory functions (section 9(2)). Chapter 11 treats penetrating and rising damp, water ingress through defective rainwater goods, and dampness tracking through solid walls that lack an effective damp-proof course as core to the damp and mould hazard, and as matters of the condition of the structure.

Notably, the expert noted that the trickle vents were closed. You can probably see where this is going. The Defendant alleged that the damp was ‘squarely within the tenant’s control’ despite the expert finding that the closed vents were ‘not.. a primary or significant cause.’ The Court found the Defendant’s position to be at odds with the expert evidence, with the HHSRS Operating Guidance, and with the Government’s health guidance, ‘Understanding and addressing the health risks of damp and mould in the home’ (MHCLG, DHSC and UKHSA, updated 1 April 2026) (‘the Damp and Mould Guidance’) which provides 

that it is unreasonable to attribute damp and mould to tenants’ ‘lifestyle choices’, that the fundamental cause will be building deficiencies, inadequate ventilation, inadequate heating or poor energy efficiency rather than tenants’ normal domestic activities, and that tenants cannot be expected to reduce moisture levels if the home does not enable them to do so.

Importantly, the Judge goes on to find two important points:

1. That the damp and mould is wholly or mainly attributable to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof due to defects or disrepair.

That the damp and mould is so widespread as to present a risk to the health, including the mental health, of any occupant of the Property regardless of any particular vulnerability. The Judge did not need to make any findings as to the particular impact of damp and mould on the Claimants by reason of the health conditions from which they may suffer.

Excess cold. The expert found ‘reduced thermal performance’ as a result of uninsulated walls and poor roof insulation. The Property had an EPC rating of E (the lowest permissible rating).

• Asbestos. The textured coating to the cracked and deflected ceiling to bedroom one contained asbestos. The Court relied on an asbestos survey which scored the coating as a 4 out of 12, with a damage factor of 2 (medium damage). The Court referred to the HHSRS Operating Guidance:  Asbestos is present in many homes and presents little if any risk if the fibres are not exposed. Asbestos in good condition that is left undisturbed may be left in place. The risk arises where asbestos is friable, in poor condition, or where it is, or is likely to be, disturbed. There is no safe level of exposure. Given the ceiling was cracked and deflected, the Court found it liable to be further disturbed.

• Rodent infestation with no control measures in place.

• Septic tank – the vent pipe was damaged, and the jointing/seal was inadequate. This falls under the ‘drainage and sanitary conveniences’ hazard.

• Defective heating system – there were defects in respect of the oil-fired central heating that serves the radiators.

• Risk of entry by intruders – the garden fencing had numerous gaps and missing sections.

The Court found that, individually and collectively, most of the above issues rendered the Property unfit for human habitation.

Analysis of s.9A LTA 1985

The Judge notes: ‘Counsel were unable to point me to any authoritative interpretation of sections 9A and 10 and the revised test of unfitness, although it has been in force for more than seven years’ before going on to provide a high-level, detailed, and extremely helpful analysis of the concept of fitness for human habitation. This element of the authority is beyond the scope of this blogpost, but I encourage everyone to read it because it is a masterclass in legal research.

The main points to note for cases moving forward are:

[54] First, in assessing ‘fitness’ the same relevant matters (‘repair’, ‘stability’, ‘freedom from damp’ etc.) and test (‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’) continue to apply as before the amendments, so that a property that was ‘unfit’ before would also be ‘unfit’ after. The core test in section 10 is carried over unchanged, and the older authorities on its meaning remain a reliable guide. In particular, Summers and Rendlesham remain good authority that fitness has two distinct components: premises may be not be fit if, first, the living conditions present a risk to the health or safety of the occupiers; and, second, the living conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety. Nothing in the 2018 amendments displace that conclusion.

[56] … ‘Prescribed hazard’ is defined by reference to the list of 21 ‘matters and circumstances’ in the HHSRS Regulations (by virtue of section 10(2)) and the definition of ‘hazard’ is to be found in section 2(1) of the HA 2004 (section 10(3)). If any of those 21 ‘matters and circumstances’ exist and they present ‘any risk of harm’ within the meaning of the HA s 2(1) (above, paragraph 48), including temporary harm and harm to mental health, they are both a ‘hazard’ for the purposes of section 2(1) of the HA 2004 and a ‘prescribed hazard’ within the meaning of section 10(1) LTA 1985, as amended. Any such ‘prescribed hazard’ is relevant to the court’s assessment of whether the property is ‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’ and therefore unfit for human habitation under section 10(1).

[57] … the court’s power under section 10 does not depend upon a finding that there is a ‘category 1’ or ‘category 2’ hazard. Indeed, as Summers and Rendlesham make clear, a finding of unfitness can be made even if there is no risk of harm (i.e. a hazard), if by reason of one of the relevant matters (including ‘freedom from damp’) the dwelling is ‘not capable of occupation for a reasonable period … without undue inconvenience or discomfort’ to the occupants. That said, a local authority assessment of a category 1 or category 2 hazard would be strong evidence of unfitness.

Paragraphs [59-60] are also extremely important when it comes to the attribution of responsibility for the existence of any hazards.

[59] By s 9A(3) the covenant is also ‘not to be taken as imposing on the lessor any liability in respect of the dwelling being unfit for human habitation if the unfitness is wholly or mainly attributable to … the lessee’s own breach of covenant’.

[60] The s 9A(3) question concerns the attribution of responsibility for the premises being in an unfit state. Where the dwelling has become unfit for reasons ‘wholly or mainly’ attributable to a breach of the tenant’s own obligations – including any express duty and the implied duty to use the premises in a tenant-like manner – the landlord is not liable under the implied covenant. The threshold is a high one, however: tenant default that is a real but secondary cause of ‘unfitness’ does not meet it. So, for example, condensation mould wholly or mainly the result of the tenant’s own failure to ventilate or heat the dwelling will defeat the claim; but the same mould, if mainly attributable to a defect that is the landlord’s responsibility, such as inadequate insulation or the absence of effective ventilation, will not, even if the tenant’s use of the dwelling has played some part in it.

One final point, the expert opined that a decant from the Property is not required and indeed the Court did not award one. Yet, the Property was still found to be unfit for human habitation for a number of reasons. This lays to rest once and for all the argument that if the expert does not opine that a decant is required, the Property must be fit for human habitation.

Conclusion

It is about time that we got an authority on s.9A LTA 1985. Parties have been battling over the precise definitions and evidential requirements in these cases for years. Defendants will not be happy with the conclusions reached in this judgment, but clarity will help keep costs down for everyone.

Paragraph 57 of the Judgment puts Defendants in a very difficult position. The point regarding a decant also strips Defendants of one of their main arguments.

This authority, in combination with Awaab’s law, should force Defendants to treat hazards more seriously and expeditiously.