Upper Tribunal hands down ruling on assured tenants, lift repairs and service charges

The First-Tier Tribunal (Property Chamber) was wrong to conclude that a lift repair could not form part of the service charge to assured tenants of housing association Anchor Hanover Group, the Upper Tribunal (Lands Chamber) has concluded.

Martin Rodger KC, Deputy Chamber President, said in Anchor Hanover Group v Cox (LANDLORD AND TENANT - SERVICE CHARGES - assured tenancy) [2023] UKUT 14 (LC) that he had to decide if section 11 of the Landlord and Tenant Act 1985 prevented a landlord from recovering service charge contributions towards the cost of repairing the lift from assured tenants in a block of flats.

The case was brought by tenant Kenneth Cox, who lives in Tony Law House, a four storey, purpose-built independent living retirement development of 51 flats.

Mr Rodger said the FTT determined costs incurred by Anchor Hanover in repairing and maintaining the lift could not be included in the service charge, but it granted permission to appeal its decision.

Anchor Hanover describes the building as a sheltered housing scheme, and Mr Cox said many tenants were elderly or infirm and a properly functioning lift was essential.

In June 2021 Mr Cox applied to the FTT under section 27A, Landlord and Tenant Act 1985, for a determination of his liability to pay service charges for the years from 2010 to 2022. 

The charge for 2021-22 included £2,860 towards the cost of a new lift installed in 2018, together with the cost of a lift servicing contract (£758), lift inspection (£224) and lift repairs (£446).

Mr Cox argued that as an assured tenant he should not be required to contribute towards the cost of repairs to the structure of the building, which included the lift.

He based this on section 11 of the Landlord and Tenant Act 1985 and the FTT agreed that the lift is one of the installations covered and so Anchor Hanover was required to keep it in proper working order but the terms of the tenancy agreement which required Mr Cox to contribute towards this were of no effect.

Mr Rodger said: “It is clear to me that the FTT went astray in its analysis of section 11. 

"Nobody would quarrel with its finding that a lift is a common facility, or that it is essential to the residents of this building, but the leap from identifying something as a common facility and concluding that it is therefore an installation to which section 11(1)(b) applies is insupportable.”

He said the FTT had treated section 11(1B) as introducing an additional covenant, which obliged Anchor to repair common parts of the building including the lift. 

“The fault in this chain of reasoning is that it treats section 11(1B) as an additional free-standing obligation, whereas its true purpose is to narrow rather than to widen the scope of section 11(1A),” Mr Rodger said.

It was clear the lift was neither part of the structure or exterior of Mr Cox’s flat nor an installation for the supply of water, gas, electricity or sanitation, or for space heating or heating water, “and so does not fall within subsection (1)(b) or (c), it is neither in the flat, nor the sort of installation which is covered by the obligation”, he said.

Mr Rodger said the FTT treated subsection (1A)(b) and (1B) as applying subsection (1)(b) to any installation which was a common facility but ”that interpretation is not justified”. 

He noted Mr Cox referred to a meeting between representatives of Anchor Hanover and about 30 tenants in June 2017 the minutes of which stated that both Anchor’s asset surveyor and its customer relations manager had said the cost of replacing the lift was not a service charge item and Anchor Hanover would pay.  

“Without something more, a voluntary concession at a meeting will not have changed Anchor’s legal rights, especially if what was said by managers was withdrawn in clear terms before the work commenced”, he said.

“Mr Cox complained to the FTT about mixed messaging from Anchor and that statements made at meetings were later contradicted, but he seems not to have made any particular point in his evidence that he or other tenants had been relying on a promise that they would not have to pay for the lift.”

Mr Rodger said: “There is a considerable benefit in achieving certainty as early as possible in this case, and I heard nothing which suggests remitting the case to the FTT for further investigation by it would have any prospect of changing the outcome in Mr Cox’s favour.”

He set aside the FTT’s  decision, and substituted a determination that Mr Cox was liable to contribute his share of the costs of the lift.

Mark Smulian