High Court: housing association could not recover communal electricity through tenants’ “Electricity Charge”

In Foster v Wargrave on Thames Housing Association Ltd, the High Court allowed two tenants' appeal, holding that the "Electricity Charge" in their tenancy agreement covered only electricity supplied to their flat, not communal areas.

Background

In Linda Foster & Anor v Wargrave on Thames Housing Association Ltd [2026] EWHC 1910 (KB), Sweeting J in the King's Bench Division of the High Court heard the appeal on 22 July 2026 and gave judgment on 24 July 2026.

Ms Foster and Mr Hitchens were joint tenants of a one-bedroom flat in a development for older residents. Their assured shorthold periodic tenancy began on 1 April 2023 and was on the housing association's standard terms. The agreement itemised four monthly payments: basic rent, service charge, electricity charge and water charge. The electricity charge was initially £129 a month.

From September 2023 the tenants withheld the electricity charge, and the association brought possession proceedings. At trial, HHJ Davies held that the charge was payable and that non-payment was a breach of the tenancy. He made a suspended possession order.

Ritchie J refused permission to appeal on the papers. Kimblin J then granted permission on one ground only: whether the sums claimed as "Electricity Charge" fell wholly within the contractual provisions governing that charge.

The question

The issue was one of contract interpretation. Could the association recover the cost of electricity for communal lighting, the residents' lounge, CCTV and similar facilities under the heading "Electricity Charge", as well as electricity supplied to the flat?

The decision

Sweeting J allowed the appeal. He held that the Electricity Charge was confined to electricity the association supplied to the flat, meaning the supply for the underfloor heating described in clause B3. It did not extend to the cost of electricity used to run communal facilities and common areas.

The reasoning

The agreement defines the "Premises" as the tenants' flat, together with rights to use communal areas. Clause A3 says separate charges will be made for electricity and water supplied "to the Premises". Clause B3 provides for timed, off-peak underfloor or radiator background heating "to the Premises".

Sweeting J found the association's reading difficult to reconcile with the language and structure of the agreement. The services listed in clause A3 include the residents' lounge, external camera security, emergency systems and cleaning of common areas. He said the more obvious construction was that those services include the power needed to operate them. The electricity was an integral part of the service, not a separate service supplied to the tenants.

He said that if communal electricity had been meant to be recovered through a separate Electricity Charge, one would have expected the agreement to say so in clear terms. He also found the association's reading in tension with clause C4. It also sat uneasily with the accepted fact that the tenants were separately responsible for ordinary electricity used in their own flat.

Limits of the ruling

Sweeting J said it did not follow that the tenants had been charged twice for the same expenditure. Nor did he decide whether the association could have recovered the communal costs through the service charge, which the agreement allows to be varied. The question was whether the agreement entitled the association to recover them through the Electricity Charge, and he concluded that it did not.

Sources

• Linda Foster & Anor v Wargrave on Thames Housing Association Ltd [2026] EWHC 1910 (KB), High Court (King's Bench Division), 24 July 2026: https://caselaw.nationalarchives.gov.uk/ewhc/kb/2026/1910