London Borough of Southwark still found to be imposing unlawful water service charges in possession proceedings

Thursday 20 April 2017

The defendant is the secure tenant of the claimant, the London Borough of Southwark, in London Borough of Southwark v SH, heard on 29 March 2017. Southwark brought possession proceedings under Ground 1 Housing Act 1985; ‘Rent lawfully due from the tenant has not been paid or an obligation of the tenancy has been broken or not performed’. Tim Baldwin of Garden Court Chambers was instructed to represent the defendant in the possession proceedings.

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The arrears amounted to £1,461.97 when proceedings were issued on 24 June 2016.

The claim was defended on the following basis:

(1) A refund for overpaid water rates was due following the High Court decision in Jones v London Borough of Southwark [2016] EWHC 457(Ch), however LB Southwark had still included the imminent refund in the arrears sought as part of the Claim and had therefore included rent not lawfully due;

(2) There had been no variation in the agreement between LB Southwark and Thames Water and so LB Southwark was continuing to charge the defendant more than was permitted under the Water Resale Order 2006;

(3) There were outstanding Housing Benefit issues in relation to the defendant’s entitlement to Housing Benefit between April and June 2016 and (4) it was not reasonable to make a possession order.

Hearings on 25 July 2016 and 7 December 2016 as part of the general possession list were adjourned. The claim was listed to be heard on 29 March 2017.

The water rates refund of £676.10 was made on 3 July 2016 and arrears of housing benefit amounting to £1,515.68 were paid on 31 July 2016. These brought the rent account into credit.

The judgment

On 29 March 2017 DDJ Rollason dismissed the claim and ordered the claimant to pay the defendant’s costs. The DDJ found that given judgment was given in Jones v Southwark in March 2016 and this claim was issued in June 2016, the figures in the Particulars of Claim were ‘wholly incorrect’ and the imminent water rates refund ‘should never have been included’ in the claim.

The DDJ further found in relation to the rent arrears caused by housing benefit arrears, proceedings should not have been commenced due to the outstanding issues. The DDJ referred to paragraph 2.6 of the pre action protocol. The DDJ did not go on to consider the point regarding whether the agreement between LB Southwark and Thames Water had been lawfully varied in 2013.

Tim Baldwin was instructed to represented the defendant, SH, in the possession proceedings. Tim is a member of the Housing Team at Garden Court Chambers. He was instructed by Serdar Celebi of Cambridge House Law Centre.

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