[2025] UKUT 371 (LC)

The second issue is simpler than the first.

As the FTT noted, paragraph 1(ii) of the Ninth Schedule to the lease requires the Council to keep in good and substantial repair and condition service installations “installed in the Block or serving the Block for the purpose of supplying water gas electricity heat (where applicable) and other usual services […] save only such […] as are solely installed or solely used for the purpose of any particular flat and for which the owner thereof is responsible under any provisions in his lease corresponding to paragraph 5 of the said Seventh Schedule”.

I will take the year to 31 March 2021 as an example of the disputed heating costs. The schedule of charges for heating and hot water maintenance disclosed by the Council for that year includes 18 entries referring to work in individual flats (a typical entry being “remedy no heating and hot water” at a particular address in The Points. All but one of these entries has a flat rate charge of £100.10 (the final entry is £200.20, which may suggest two call outs were necessary).

Mr Williams objects to paying for the maintenance of heating installations in flats which belong to the Council. His understanding of the arrangement, which he attributes to advice received from the Council, is that under the terms of the lease he is responsible for the installations in his own flat and he considers that the Council should have the same responsibility in relation to flats which are not leased but which are subject to short term tenancies.

Paragraph 5 of the Seventh Schedule obliges the Lessee to keep “the demised premises and all fixtures and fitting therein” in repair, including pipes wires ducts or other things “solely installed or used only for the purposes of the demised premises (excluding installations for the supply of heat and hot water other than independent systems solely serving the demised premises)”. It is therefore the responsibility of the Lessee to repair service installations which are “solely installed or used only for the purposes of the demised premises”. But this obligation does not apply to installations for the supply of heat and hot water unless they are “independent systems solely serving the demised premises”.

Mr and Mrs Williams make use of the communal heating system which serves all four of The Points blocks. The heating installations in their flat are not independent systems solely serving their flat and they are not obliged to carry out repairs or replacements to any part of those installations, including radiators and thermostats.

The Council’s repairing obligation in paragraph 1(ii) of the Ninth Schedule dovetails with the Lessee’s obligation in paragraph 5 of the Seventh Schedule. The Lessor is required to keep in good repair any services installed in the Block or serving the Block for the purpose of supplying heat and other usual services (which would include hot water) except things solely installed or solely used for the purpose of a particular flat “and for which the owner thereof is responsible under any provisions in his lease corresponding to paragraph 5 of the said Seventh Schedule”. Service installations which the individual Lessee is not responsible for under paragraph 5 of the Seventh Schedule, including heating installations which are not independent systems solely serving their flat, are therefore the responsibility of the Council.

Mr Williams is therefore mistaken both in thinking that he is required to repair the heating system in his own flat (assuming it is part of the communal system) and in believing that he is exempt from contributing to the cost of repairs to heating installations in other flats occupied by the Council’s tenants. But there is an important qualification to his liability in relation to the Council’s own flats. The only installations covered by paragraph 1(ii) of the Ninth Schedule are those “installed in the Block and serving the Block”. Flats in other blocks are not covered by the Council’s repair obligation in paragraph 1(ii). Nor are they covered by the obligation in paragraph 1(iv) which extends to all parts of the Reserved Property not previously mentioned in paragraphs 1(i), (ii) or (iii), because the Reserved Property excludes all of the blocks on the Estate. Mr Williams payment obligation is therefore limited to paying for repairs to heating installations which are part of the communal system and which serve flats in his own Block, Hensley Point. It is irrelevant whether the flat is let on a long lease or subject to a short term Council tenancy. What matters is whether it is in the same Block and whether it makes use of the communal heating system. If both of those conditions are satisfied in relation to any flat, the Council is required by paragraph 1(ii) of the Ninth Schedule to repair its installations for the supply of heating and hot water, and Mr Williams is required to make a contribution to the cost of the Council complying with that obligation.

It was suggested by Mr Paget, on behalf of the Council, that it was entitled to include the cost of work to other blocks on the Estate, including work to the hearing and hot water installations, provided it apportioned the cost of those works to every property on the Estate. He relied on the Council’s discretion, when notifying the Lessee of the amount of the Management Charges in clause 3(A) of the lease, to specify “the due and proper proportion of the reasonably estimated amount required to cover the costs and expenses incurred or to be incurred” by it in carrying out its obligations in clauses 3, 6 and 8. But that discretion does not enable the Council to expand the scope of the obligations in clauses 3, 6 and 8. It may be administratively convenient for the Council to spread the costs of servicing any part of the communal system, including the radiators and other apparatus in its tenanted flats in each of the four Points blocks, but that is not the approach provided for by the lease.

The FTT did not say specifically that Mr Williams was liable to contribute to the cost of repairing heating and hot water installations in flats in other blocks. But it found that all of the charges claimed by the Council for each year were payable, and those included the cost of many items of repair to installations in other blocks. The FTT did not ask itself the right question and came to the wrong conclusion. It framed the issue as whether Mr Williams should have to pay for hot water and heating costs relating to other flats and decided that he did, but it made no distinction between the blocks. Had it looked more closely at the schedule of disputed charges prepared by Mr Williams it would have seen that he did not object to charges in respect of flats in Hensley Point and had only challenged those for flats in other blocks. His challenge should have been upheld.