[2025] EWHC 2477 (Ch)

Mrs Mitchell in her witness statement (upon which, as we have said, she was not cross-examined) goes into detail of the health and financial issues which her family were facing when they first entered into their assured tenancy with Beacon Cymru some 13 years ago and how grateful she is to her landlord for giving them the opportunity to rebuild their lives. She says that her landlord recognises the value of community schemes such as a community garden and a multi-cultural social community space in which she has become involved and which led to her becoming a board member of Beacon Cymru. She says she owes her landlord a lot.

At first blush it may be thought that if someone were told they were not required to pay rent, the first thing they would do would be to stop paying. Mrs Mitchell, in a commendably candid passage of her witness statement, explains why in her case that would not have been her first reaction, and it is worth citing it at length (she refers to Beacon Cymru as the First Claimant):

“27.

Withholding rent would harm my relationship with the First Claimant and that is not something I am easily willing to do. It wouldn’t be right; I am not able to set aside the feelings of loyalty and gratitude I have towards the First Claimant.

28.

If someone had told me that I didn’t need to pay my rent, the first thing I would have done would be to contact the First Claimant and ask for my ECR. Withholding my rent would not be the first thing I would consider. Even if I knew I was legally entitled to withhold my rent, this would not be my preferred course of action.

29.

When you live in someone else’s property, you have limited options, and are very fortunate to have a roof over your head. I am not a combative person and withholding rent to me feels quite combative. I try and resolve matters in the first instance by finding solutions. Withholding rent does not feel like a solution to me.

30.

Withholding rent is a big step, I would find it hard to justify it purely because my landlord failed to give me my certificate. Even though I had not received the certificate I trusted the First Claimant would have carried out the relevant electrical tests because they have a duty to and they are a reputable landlord.

31.

If people knew that they didn’t have to pay their rent I fear that many others would have chosen to do the same thing. This would have been very stressful for the First Claimant and I understand the consequences this would have.

32.

I would need to have been informed in writing by the First Claimant to consider withholding my rent. My occupation contract does not contain the relevant provisions that tells me I can withhold my rent. This is contained within the legislation and as a lay person I would not have understood this.

33.

If the First Claimant wrote to me and told me that I didn’t have to pay rent because they were in breach of the Renting Homes Regulations, I would have felt differently and I would have withheld my rent because of their failings.”

We find that, if Mrs Mitchell had known on 15 December 2023 that (1) her landlord was required to provide her with her ECR by that date and (2) she was not required to pay rent until it was provided, she would (in her own words) have tried to resolve matters in the first instance by finding solutions, rather than immediately withholding rent. She would have raised it with her landlord, with a view to getting hold of the ECR to which she was entitled. She would not have withheld rent except as a means of exerting pressure to get the ECR and probably not even then. She would not even have considered withholding rent unless her landlord failed to respond within a reasonable time to her request for an ECR.

Ms Green (Beacon Cymru’s Chief Executive) was asked in cross-examination what Beacon Cymru would have done had they been contacted by a contract-holder who had not been given an ECR on 15 December 2023. She replied that they would check their records and if those showed that an ECR had been given they would have said so. If it had not been given then one would have been given “straight away.” We accept that evidence. It is in line with what actually happened. It was, in fact, Beacon Cymru (before its change of name) which realised that an obligation to give Mrs Mitchell an ECR had not been met, and they realised this before she did. As soon as they did realise it, they immediately provided it. If Mrs Mitchell had raised this with them at any time, including as early as 15 December 2023, or even before, they would immediately have given her the ECR. It existed. They had it. There was no difficulty in providing it to her straight away. They would have done that.

We have also considered what Mrs Mitchell says in paras 32 and 33 of her witness statement (quoted above). Ms Green gave evidence about this too. She was asked what Beacon Cymru would have done if it had been asked whether Mrs Mitchell was required to pay rent when she was entitled to be given, but had not been given, her ECR. Ms Green said “We would say it was subject to the courts”. She went on to say “We would have to take legal advice”; and “It is not clear what we would say – we would want to be sure we were giving them the right information”.

Until the First Judgment (which was handed down on 8 November 2024), it would have been correct to say that “it was subject to the courts” because the position of Beacon Cymru (which we rejected in the First Judgment), was that the defendants were required to pay their rent in the circumstances of this case, given that the ECR existed and was satisfactory and in the correct form, although it had not physically been given to the defendants (who had not asked for it), and given that the properties were all in fact fit for human habitation. Therefore, to the point made in para 33 of Mrs Mitchell’s witness statement, we are confident in finding that, during the relevant period (15 December 2023 to 14 March 2024), there was no possibility of Beacon Cymru writing to Mrs Mitchell and telling her she did not have to pay rent because they were in breach of their obligation to give her the ECR. They did not believe that to be the case at that time. When, in due course, they became alive to the point, their legal advice was followed by this action, in which they are Claimants, and in which they have maintained that she did have to pay rent, notwithstanding the failure to provide the ECR when it was due.

This fortifies us in our finding of fact that Mrs Mitchell would have paid her rent even if she had known of her mistake at the time. Had she known the true position, she would not have withheld rent. She would have made enquiries of her landlord and her landlord would have responded immediately and satisfactorily, by promising her and then providing her with the ECR. Upon receipt of the ECR, she would have been happy that it was all in order, and she would never have approached the point of considering the withholding of rent.

Our finding is made even more confidently because Mrs Mitchell had paid rent in advance on 1 December 2023, covering the whole of the month to 31 December 2023. When she made that payment, she was under no mistake, because her right to be given the ECR did not arise until 15 December. Therefore, there was more than enough time for her to receive her ECR between her raising with Beacon Cymru its failure to give it to her on 15 December, and the next payment of rent, which was not paid until 2 January 2024.