[2025] EWHC 2477 (Ch)

It is clear from the evidence given to us by the witnesses (starting with Serena Jones of the First Claimant), and the documents to which we were referred in the course of evidence and argument, that the landlords’ mistake in thinking that they only had to make the ECR available, rather than understanding that their obligation was actually to give it to the contract-holders, was made in good faith. Although the final version of the legislation provided that

“The landlord must ensure that the contract-holder is (…) given - (a) a copy of the most recent electrical condition report…”

(Regulation 6(3) of the Fitness Regulations), the original consultation draft version of the Fitness Regulations provided that the obligation was to

“make available to the contract-holder… a copy of the report held by the landlord”,

which did not necessarily mean physically giving it to the contract-holder in the absence of a request (Regulation 4(1) of the draft Fitness Regulations issued by the Welsh Government on 11 October 2017).

As late as 14 September 2022, the First Claimant (then known as Coastal Housing Group) shared an update from a forum known as Community Housing Cymru through which much of the consultation with the Welsh Government was conducted, which recorded the Welsh Government as saying:

“FFHH [i.e. fitness for human habitation] only requires you to have an EICR [i.e. an ECR], as soon as this is done, you comply with FFHH…”

This appears to us not to have been correct, in view of the modified wording in the Fitness Regulations published in January 2022 (which came into force in December 2022). It was suggested to us that it could be correct if the wider context of the passage in which it appears is taken into account, but that nuance was not obvious. We accept the honesty of the answer given by Serena Jones (the First Claimant’s Executive Director of Operations) in cross examination on this point: “It is clear the response was not correct, and that was one element that reinforced a misunderstanding that we had.”

The correct position, that the ECR must be provided to the contract-holder, was included in the Fitness Regulations themselves and in some of the accompanying information campaign. This included Welsh Government guidance published in March 2022 entitled “Renting homes: frequently asked questions (landlords)”, which said:

“Regulation 6 requires the landlord to ensure there is a valid electrical condition report (a copy of which must be provided to the contract-holder) in respect of the dwelling during each period of occupation.”

However, the key point for present purposes is confined to the brackets, and what is in retrospect unfortunate is that there was no flagging up of the change in wording from the consultation Regulations of 2017 upon which much time and attention had previously been focussed by landlords like the claimants. The claimants did not blame the Welsh Government. They acknowledged, in their evidence, that they made a mistake because of a misunderstanding for which they took the whole responsibility. But it was in our judgment an understandable mistake. It was picked up very swiftly and, once picked up, corrected immediately and without any prompting from any defendant.