Circuit judge orders fresh hearing in housing conditions case after allowing appeal by tenants over expert evidence

HHJ Beard allowed an appeal by the tenants against Pembrokeshire County Council, and said the case must be heard again by a different judge.

The tenants’ original claim concerned the condition of their home, of which Pembrokeshire is the landlord.

They alleged Pembrokeshire failed to comply with its obligations to keep in repair and proper working order the structure, installations and exterior, and other matters arising under the Renting Homes (Wales) Act 2016.

Their claim principally concerned damp, condensation and mould affecting parts of the property.

The tenants sought an order requiring Pembrokeshire to undertake relevant works identified by an expert surveyor, plus damages.

DDJ Williams heard the case in January 2026, dismissed it and ordered the tenants to pay Pembrokeshire costs of £8,000.

Permission was granted to the tenants to appeal as it appeared arguable that the rejection of expert evidence concerning the cause of the mould infestation was without foundation.

HHJ Beard said: “I was concerned about the relationship between the expert evidence given and how the judge considered it was countermanded by the lay factual evidence given that there was a clear finding that the home was unfit for human habitation.”

The tenants appealed on four grounds. These were that DDJ Williams erred by rejecting the conclusions of the only expert witness on causation without a sufficient evidential or analytical basis.

Secondly, it was argued that DDJ Williams approached the claim through the framework of conventional disrepair and the distinction between repairs and improvements, rather than through the statutory concept of fitness for human habitation and the condition of the dwelling required by the Renting Homes (Wales) Act 2016.

The third ground was that the judge misapplied section 96 of the 2016 Act by failing properly to analyse whether the alleged acts or omissions of Pembrokeshire were the whole or main cause of the unfitness of the dwelling.

Fourthly, that insufficient regard was paid to the Fitness for Human Habitation Regulations and the associated Welsh Government guidance concerning the assessment of damp and mould hazards and landlord responsibility for addressing them.

HHJ Beard said the surveyor was instructed to address technical matters beyond ordinary lay knowledge and Pembrokeshire did not call any expert witness to provide competing evidence.

If the court rejected the surveyor’s evidence on matters within his expertise, “particular care was required to explain why”.

The judge said: “The difficulty arises at the next stage of the reasoning. The judgment identifies the findings but it does not explain why those findings required rejection of the expert analysis.

“There is no discussion of the extent to which [the surveyor] had already considered issues of ventilation and occupation. There is no analysis explaining why indoor clothes drying displaced his conclusions concerning thermal bridging.

“There is no reasoning identifying why the findings concerning clutter undermined his opinion regarding insulation deficiencies. Nor is there any explanation of why those matters should be regarded as overriding rather than merely contributing causes.

“The issue is not that the deputy district judge disagreed with [the surveyor]. The issue is that the judgment does not explain why.”

HHJ Beard said anyone reading DDJ Williams’ judgment could identify the factual findings and expert conclusions, but “what cannot be identified is the analytical route by which the former displaced the latter.”

He went on identify four errors and said DDJ Williams “failed properly to evaluate the factual findings relied upon before treating them as a basis for rejecting the expert evidence”.

HHJ beard also found the statutory fitness claim was approached through a framework influenced by concepts of disrepair and improvement rather than by the statutory inquiry into condition required by section 91 of the Renting Homes (Wales) Act 2016.

He said there was also a failure to perform the Section 96 exercise under the 2016 Act, which provides a defence where a dwelling is unfit because of an act or omission of the contract-holder.

DDJ Williams identified matters she considered relevant to causation, namely indoor clothes drying, limitations in ventilation and restrictions upon airflow within the study room.

“However, the statutory exercise required by section 96 involved more than the identification of such matters,” HHJ Beard said.

“First, it required consideration of whether those activities represented ordinary domestic occupation of the dwelling or conduct materially beyond that which would ordinarily be expected within a residential property.

“Secondly, it required consideration of the extent to which those matters contributed to the mould problem. Thirdly, and most importantly, it required an evaluation of whether those matters constituted the whole or main cause of the unfitness found to exist. That evaluative process is not apparent from the judgment.”

He said the reasoning moved directly from findings concerning occupation to the conclusion that section 96 is engaged.

Mark Smulian