[2024] UKUT 415 (LC)

Flat 12, The Spinney is a one-bedroom, ground floor flat in a purpose built block of flats providing supported accommodation at 1 Neath Road in Eye in Cambridgeshire. It was let by the appellant, Longhurst Group, a registered provider of social housing, to Mrs Joan Gristwood on 22 September 2022. The only written evidence of the terms of the tenancy which I have seen are contained in a document which states that it is an assured tenancy agreement but in which neither the property let nor the name of the tenant are mentioned (although it has been signed by someone who I take to have been Mrs Gristwood).

The terms of the tenancy state that it is an assured tenancy running from week to week. It is therefore a periodic assured tenancy. In an unnumbered clause, beneath the heading “Review of Rents”, the terms say this:

“Review of Rents

During the first year after the grant of this Tenancy Longhurst Group may vary the rent once only by giving the tenant one calendar months’ notice in writing. The notice shall specify the rent proposed.

Thereafter Longhurst Group may vary the rent by giving the tenant not less than one calendar months’ notice in writing. The notice shall specify the rent proposed. The rent shall not be increased within 52 weeks of the previous increase.”

On 13 February 2024, Longhurst sent Mrs Gristwood a letter informing her that a new rent of £320.79 would become payable from 1 April. This sum included charges for electricity, heating, food and a service charge. The letter was accompanied by a formal notice providing the same information in the form prescribed for use as a landlords’ notice proposing a new rent under an assured periodic tenancy of premises situated in England to which section 13, 1988 Act applied. The notice was accompanied by the guidance notes intended to inform tenants whose tenancies are within the scope of section 13 what they must do to challenge the increase if they do not agree it.

Mrs Gristwood, acting with the assistance of her agent, Mr Davis, followed the advice given in the notice and applied to the FTT for it to determine a new rent under section 14, 1988 Act. The FTT gave directions which Longhurst complied with by providing photographs of the interior of the property. It did not challenge the FTT’s power to make a determination in relation to the proposed rent. In its decision of 17 May 2024, the FTT determined that the new rent for Flat 12 should be £307.66 a week. It subsequently reviewed that decision at the request of Longhurst and substituted a figure of £317.92 per week.

Flat 28, The Spinney is a flat in the same block which is let to Mr John Fovargue by Longhurst Group on a weekly assured periodic tenancy granted in April 2017. The terms of the tenancy are contained in a document in the same terms as the document provided to Mrs Gristwood. It contains substantially the same provision for the review of rents which differs from the later only by being numbered, as clause 6, and by referring to Longhurst by its former name, Axiom Housing Association Ltd.

On 13 February 2024 Mr Fovargue received a notification of annual rent review in the same terms and accompanied by the same prescribed information and guidance as had been served on Mrs Gristwood. He referred the notice to the FTT which gave the same directions and received the same response from Longhurst. By a second decision dated 17 May 2024 the FTT determined that the rent, including service charges, should be £307.66 a week. Longhurst then awoke from its slumber and sought permission to appeal.

The FTT granted permission to appeal its decisions relating to both flats on the single issue of whether section 13 applied to the tenancies; it refused permission to appeal on other grounds. In granting permission it was critical of Longhurst’s misrepresentation of the process by service of the prescribed notice of increase.

Both tenancies are periodic assured tenancies. Both include a contractual rent review clause (clause 6 in Mr Fovargue’s tenancy, unnumbered in Mrs Gristwood’s) which allows the landlord to increase the rent payable each week. That clause is of the sort described in clause 13(1)(b) and the effect of its inclusion is to oust the jurisdiction of the FTT to determine a new rent under section 14.

It follows that the FTT did not have jurisdiction to determine the rent for either Flat 12 or Flat 28 and Longhurst’s appeal must be allowed. The rent payable under both tenancies has been £320.79 a week since 1 April.