Nelson Developments Ltd v Taboada

Landlord and tenant — Rent Act 1977 — Whether tenancy excluded from Act by reason of rent which includes payments for attendance On September 8 1986 the defendant was granted a parol tenancy of a single bed-sitting-room, one of 23 bed-sitting-rooms, at 36 Beaufort Gardens, London SW3 — Under the terms of the tenancy agreement, the landlords agreed to provide services in the form of daily room cleaning, full weekly laundry, refuse removal, domestic hot water, window cleaning, lighting and heating of common parts, a non-resident housekeeper and a coin box telephone extension — The agreed weekly rent was £55 but, following an application to the rent officer, and an appeal to the rent assessment committee, a rent of £38 was registered with effect from December 1989, of which £15.51 was recorded as being attributable to services — On July 5 1990 the plaintiffs gave notice to quit — On appeal against the order for possession, the defendant contended that the judge was wrong in finding that the provision of communal bed linen and towels amounted in law to attendance and that the value of the services was not a substantial part of the whole rent Held: The appeal was dismissed — It was agreed that the time when the issues in contention had to be resolved was the time when the tenancy was first granted — The taking away of dirty linen and the supply of clean linen was attendance — The washing operation, though carried out by a separate laundry, was an essential part of that service — Although the approach of the judge was flawed where he considered the value of services identified by the rent officer and not all the services were properly attendance, the Court of Appeal was entitled to make up its own mind on the evidence as found — Having regard to the practice of the county courts of taking 10% as the lower end of the bracket and 20% as the upper end, on the figures it could not be said that the value of the attendance would produce a figure substantially below 10% of the rent — On broader grounds the judge’s conclusion was warranted on the evidence before him The following cases are referred to in this report. Engvall v Ideal Flats Ltd [1945] KB 205; [1945] 1 All ER 230 Marchant v Charters [1977] 1 WLR 1181; [1977] 3 All ER 918; (1976) 34 P&CR 291; [1977] EGD 125; 241 EG 23, [1977] 1 EGLR 44, CA Palser v Grinling [1948] AC 291; (1948) 64 TLR 2; [1948] 1 All ER 1, HL Stagg v Brickett [1951] 1 KB 648; [1951] 1 All ER 152; [1951] 1 TLR 82, CA Woodward v Docherty [1974] 1 WLR 966; [1974] 2 All ER 844, CA This was an appeal by the defendant tenant, Mr J Taboada, against the decision of Judge Medawar QC (sitting in Wood Green County Court), who had granted the plaintiff landlords, Nelson Developments Ltd, an order of possession of room 4 at 36 Beaufort Gardens, London SW3. Ian Bridge (instructed by Freeboroughs) appeared for the appellant tenant; and Jonathan Ferris (instructed by Williams Daniels, of Woodbridge, Suffolk) represented the respondent landlords. Giving the first judgment at the invitation of Dillon LJ, NOLAN LJ said: On September 8 1986 Mr Taboada, the appellant, entered into a tenancy agreement with Nelson Developments Ltd, the respondent landlords. The agreement was oral. The tenancy comprised a single bed-sitting-room known as room 4, 36 Beaufort Gardens, London SW3, of which the respondents are the leasehold owners. The house contained a total of 23 bed-sitting-rooms, 15 single and 8 double. On July 5 1990 the landlords gave the appellant notice to quit, the notice expiring on August 6 1990. They claimed that they became entitled to possession of room 4 on that day. The appellant maintains that the landlords have no right to possession because he says his tenancy was a protected tenancy to which the Rent Act 1977 applied. It is common ground that his tenancy would indeed be protected by the Act unless it falls within the terms of section 7. That section reads as follows: (1)  A tenancy is not a protected tenancy if under the tenancy the dwelling-house is bona fide let at a rent which includes payments in respect of board or attendance. (2)  For the purposes of subsection (1) above, a dwelling-house shall not be taken to be bona fide let at a rent which includes payments in respect of attendance unless the amount of rent which is fairly attributable to attendance, having regard to the value of the attendance to the tenant, forms a substantial part of the whole rent. It has never been in dispute that under the oral tenancy agreement the landlords covenanted to provide services in the form of daily room cleaning, full weekly laundry, refuse removal, domestic hot water, window cleaning, lighting and heating of common parts, a non-resident housekeeper and a coin box telephone extension. But when the landlords brought proceedings in the court below claiming possession pursuant to the notice to quit, the appellant stated in para 3 of his defence: It is denied that the provision of hot water, a telephone or cleaning and lighting and heating of common parts amount to attendance by the plaintiffs. Further it is averred that the services which the plaintiffs covenanted to provide have not been provided adequately or at all. Accordingly, he resisted the claim for possession on the grounds that there had been no attendance of a sufficient value to bring section 7 into play and he counterclaimed for the breaches of covenant which he alleged against the landlords. Judge Medawar QC decided in favour of the landlords on both issues. The appellant now appeals against the order for possession. He does not appeal against the dismissal of his counterclaim. The issues raised by the appeal are, first, which of the services provided, or covenanted to be provided, by the landlords, amounted to attendance as a matter of law and, second, whether, as a matter of fact, the value of the attendance to be provided was such that a substantial part of the whole rent was fairly attributable to it. The case below was conducted on the agreed basis, which has been followed in this court, that the time at which these issues have to be resolved is the time when the tenancy was created. For that agreed basis the decision of this court in Stagg v Brickett [1951] 1 KB 648 is cited by the learned judge as the authority. It is, in a sense, an artificial approach. It is not one which has been argued at any length before us and it would not be right to say more about it at this stage than that it forms a convenient basis for determining the character of the tenancy and one which would prevent it from slipping in and out of the protection of the Rent Act because of changes in conditions and costs. Stagg v Brickett, like the other authorities to which I shall refer, was decided by reference to provisions in earlier legislation which are broadly comparable to those of the Rent Act 1977, save that until 1974 protection under the Act was excluded not only by the provision of sufficient board or attendance but also by the provision of sufficient furniture. The agreed weekly rent when the tenancy commenced was £55. On June 8 1987 the appellant applied for the registration of a fair rent under the Act. With effect from August 20 1987 the rent was registered at £35 per week, of which £12.97 was said to be attributable to services pursuant to section 71 of the Act. The landlords appealed and the rent assessment committee increased the registered rent to £38 per week with effect from November 17 1987. The proportion attributable to services remained at £12.97. A subsequent application by the landlords resulted in the rent being registered at £38 per week with effect from December 15 1989, of which £15.51 was recorded as being attributable to services. I note in passing that the procedure for the registration of a fair rent was available only on the assumption that the tenancy was protected, but Mr Bridge, for the appellant, rightly accepts that this fact does not estop the landlords from disputing that assumption, as they now have. The general rule for determining what constitutes attendance was laid down by the House of Lords in Palser v Grinling [1948] AC 291. In that case Viscount Simon, with whose speech the other members of108 their lordships’ house concurred, spoke at p 310 of the report about the phrase ‘bona fide let at a rent which includes payments in respect of board, attendance or use of furniture’. He said: In my opinion ‘bona fide’ in this phrase governs the whole of the words which follow. The words amount to a stipulation that the rent to be paid genuinely includes payments in respect of board, attendance or use of furniture: the Act is not to be evaded (as Shearman J pointed out in Nye v Davis [1922] 2 KB 56, 59) by a merely colourable use of words which do not correspond with what is really provided. Of course, so far as regards attendance or use of furniture, the further test contained in s 10, sub-s 1 of the Act of 1923 is also imposed. He then went on to consider the meaning of ‘attendance’. He said: What is attendance?  It means service personal to the tenant performed by an attendant provided by the landlord in accordance with his covenant for the benefit or convenience of the individual tenant in his use or enjoyment of the demised premises. ‘Service’ is a wider word than attendance. Attendance, being personal in its nature, may be dispensed with by an individual tenant at his pleasure, though it is not on that account excluded from what the tenant pays for when the landlord has covenanted to supply it. But services common to others (eg the heating of a communal water supply, or the cleaning of passages, halls, etc, outside the demised premises) will not constitute attendance. It follows from the above that a landlord’s covenant to supply someone to carry up coals to a flat or to carry down refuse from the flat is a covenant to provide attendance. Similarly, the provision of a house-maid or valet to discharge duties in connection with the flat would be the provision of attendance, but a covenant by the landlord to provide a resident porter or housekeeper for a block of flats would not. At p 314 of the report, his lordship said under the heading (4): Now comes the question of how to arrive at ‘the amount of rent which is fairly attributable to attendance or the use of furniture, regard being had to the value of the same to the tenant.’  It is convenient first to observe that the ‘amount of rent’ is equivalent to ‘the portion of the whole rent’. ‘Of the same’ refers to the attendance or the use of furniture or to both together when both are provided. A question of some difficulty arises as to the meaning of the ‘tenant’ — does the expression refer to the particular individual whose lease is in question, or does it refer to the average or normal tenant of that class of property?  I think the phrase refers to the actual tenant whose lease is under examination. It is the analysis of the particular transaction to which he is a party that is the subject matter of the inquiry. It is the value to him (and included in that value is the fact that he may assign or sub-let) which must be taken into account. But in taking this view, it is of the utmost importance to observe that the section directs that ‘regard shall be had’ to the value to the tenant, and not that the value to such tenant is to govern the calculation absolutely. In the recent case of Newport Borough Council v Monmouthshire County Council ([1947] AC 520, 534) where this same phrase, ‘regard shall be had to,’ fell to be interpreted, I pointed out that such a direction called for the exercise of a broad judgment, and that any arithmetical conclusion was qualified by what is deemed to be fair and reasonable. In the present case the direction that regard is to be had to the value to the tenant, ie, that such value must not be overlooked but must be suitably allowed for, is made clear by the main direction that the amount of rent is to be such as ‘is fairly attributable to’ the item in question. Other factors have to be duly weighed and allowed for. In some cases the parties to the lease may themselves have placed a value upon various elements which enter into the total rent. Even so, the statement of these respective values in the lease is not a conclusive distribution, though it may be strong evidence of what the proper distribution would be. Nevertheless, the amount to be arrived at is the amount which is ‘fairly attributable’ to the item, not the amount which is actually attributed to it in the lease. The phrase ‘having regard to’ etc, appears to be introduced in order to exclude or discount articles included in the let which are left on the premises by the landlord either for his own convenience (for example, as a convenient way of storing them without paying a storage charge) or in quantities which, having regard to the size of the flat and the tenant’s need for furniture, are greater than the tenant wants. If a landlord insists on letting a three-roomed flat with the use of a number of chairs and tables in excess of what the tenant of such a flat can reasonably need, then the phrase under discussion will limit the rent for the use of such articles to this need. In the same way, the judge of fact may have to consider what is the value to the tenant of pictures which the landlord insists on leaving on the walls of the dwelling-house, and what is the amount of rent which is fairly attributable to the tenant’s use and enjoyment of them. A number of factors may be relevant in arriving at the proper figure. The governing consideration is the word ‘fairly.’  The questions involved are to be answered by common-sense considerations rather than by any formula which can be laid down by this House. Finally, at p 316 of the report, I would quote this passage: (5.)  What does ‘substantial portion’ mean?  It is plain that the phrase requires a comparison with the whole rent, and the whole rent means the entire contractual rent payable by the tenant in return for the occupation of the premises together with all the other covenants of the landlord. ‘Substantial’ in this connection is not the same as ‘not unsubstantial,’ ie, just enough to avoid the ‘de minimis’ principle. One of the primary meanings of the word is equivalent to considerable, solid, or big. It is in this sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, the onus being on the landlord. If the judgment of the Court of Appeal in Palser’s case were to be understood as fixing percentages as a legal measure, that would be going beyond the powers of the judiciary. To say that everything over 20 per cent of the whole rent should be regarded as a substantial portion of that rent would be to play the part of a legislator: if Parliament thinks fit to amend the statute by fixing percentages, Parliament will do so. Aristotle long ago pointed out that the degree of precision that is attainable depends on the subject matter. I turn now to the judgment of the learned judge at the point where, having disposed of the counterclaim and having referred to the principles established in the Palser case, which I have recited, he says: I must decide whether the portion of the whole rent fairly and that is the key word, fairly, attributable to the attendance forms a substantial part of the whole rent at the inception of the letting. Substantial is to be taken as meaning considerable or big, again see Palser v Grinling, cited above, no fixed limits are laid down. In the present case it is common ground between the parties, that the cleaning of the defendant’s room, the removal of refuse and window cleaning are capable of constituting attendance, although it is submitted on behalf of the defendant that such things equally benefited the plaintiffs. I have to consider the value or benefit to the tenant. As to the provision of laundry, that is to say a towel and bed linen, which the defendant chose not to use, whether or not a tenant takes advantage of the service provided, is irrelevant. Now for the defence relying on Judge McNair’s judgment in Ramakrishnan v Hilton decided at Bloomsbury and Marylebone County Court on February 24 1975, in which the learned judge found that the provision of laundered sheets was not an attendance because the sheets were communal sheets belonging to the landlady, it [was] submitted that the provision of laundry in the present case is to [be] ignored, as an attendance, I disagree. Judge McNair does not appear to have been referred to Palser v Grinling cited above, in any event the Court of Appeal in Marchant v Charters [1977] 1 WLR 1181 took a different view as regards the provision of laundry for tenants in bed-sitting-rooms. The then Master of the Rolls Lord Denning, in upholding the trial judge’s conclusions as regards attendance said that in applying the test in Palser v Grinling it was quite plain that attendance in that case included these services, and I quote: Each day the room was cleaned, each day the rubbish was removed and each week dirty linen was removed and clean linen was supplied, in its place. The fact that the tenant may have refused it, did not affect the matter. Now I am satisfied that the provision of laundry is an attendance on the facts of the present case. Looking at the matter as I do in a common-sense way, having decided what kind of attendance was provided at the beginning of the tenancy, for the defendant tenant, I am driven to conclude that the value of the attendance formed a substantial part of the whole rent. In percentage terms at the inception it was at least 20% and looked at in that way is a substantial proportion of the whole rent, this being based on a rent then of £55 and a notional value of attendance at not less than the £11 calculated by reference to the rent officer’s 1987 figure of £12.97 and reduced therefrom to allow for matters that should not have been included, it may well be that the actual cost of attendance provided then exceeded the percentage of the whole rent. Accordingly, the learned judge found that the tenancy of the appellant was not protected and that the landlords were entitled to possession. The first ground of appeal argued before us by Mr Bridge, representing the appellant, is that the learned judge was wrong in law in ruling that the provision of communal bed linen and of towels amounted to attendance. As to this, Mr Bridge stressed the personal quality which attendance must bear. He submitted that this quality was no doubt possessed by the service of the lady who collected the dirty sheets and other linen from the rooms and who returned them when clean to those rooms, but that there was no personal quality in the intermediate washing of the laundry, especially since that took place outside the house and was performed by a separate laundry. For my part, I cannot accept that submission. It seems to me that the personal service, the personal attendance covenanted and performed by the landlords, was the taking away of dirty linen and the supply of clean linen. The washing operation in between was an essential part of that service. It was quite plainly attendance, as it seems to me, within the meaning of the Act. Mr Bridge attempted to distinguish the remarks of Lord Denning in Marchant v Charters* on this point by reference to the fact that Lord Denning did not refer to the laundering of the linen. But, in my judgment, it is too clearly included109 to require separate mention and the position is covered by Lord Denning’s remarks, with which I respectfully agree. *Editor’s note: Reported at (1976) 241 EG 23, [1977] 1 EGLR 44. Turning, then, to the second ground of the appeal, I read it together with the third, fourth and fifth grounds. All of these grounds go to the second issue raised in the appeal, that is to say to the value of the services regarded as a proportion of the rent payable by the appellant. Dealing first with the cost to the landlords of providing the services, Mr Bridge put before us a number of calculations which he said, I think fairly, were of a generous order in relation to the landlords. He took for the lady who carried out the cleaning services an amount from her weekly wages, which might be said to represent the cost of cleaning one room, be it single or double, and that he calculated at £4.89. He took for the window cleaning, an item which appeared to have cost the landlord no more than £75 in total for a full year, a proportion calculated like that of the cleaning lady’s salary, by reference to the 23 rooms in the house and the 52 weeks in the year, and that came to no more than six pence per week per room. He applied to the cost of the laundry as calculated by the landlord a similar proportion and that produced a figure of £1.10 per room per week. This amounted in total therefore to £6.05 per week so far as the appellant was concerned, and that is no more than 11% of the £55 weekly rent at which the tenancy began. A less favourable calculation which Mr Bridge advanced as an alternative was applied to the same figures. The difference was that, instead of working on the basis of there being, as there are, 23 rooms and therefore on that basis 23 units of measurement, Mr Bridge took the individual numbers of tenants who would or could occupy those rooms, and that gave a factor of 31 to apply. This reduced the percentage of the weekly rent of £55 to £8.16. Thus, he said, the arithmetical approach, albeit applied only as a general test of the value of the attendance in relation to the rent, gave an extremely low figure and one which could not support the learned judge’s conclusion. Second, submitted Mr Bridge, even those figures left out the element of benefit to the landlords in some or all of the services provided. The learned judge, he complained, had not put a figure on the benefit to the landlords of those services. Mr Bridge submitted that a house such as this, in multiple occupation, could quickly deteriorate unless services of the kind comprised in the attendance items were performed and therefore it must be in the landlords’ interest to have them carried out and that this fact should be borne in mind in assessing the value of the attendance. He referred in particular to the window-cleaning element. This had been the subject of some discussion in the decision of this court in a case called Engvall v Ideal Flats Ltd [1945] 1 All ER 230. In that case the covenants by the landlord included one by which he was to clean at reasonable intervals the exterior of the windows of the house and of the flat occupied by the particular tenant. Lord Greene MR referred to that question at p 233H in these terms: The only question remaining is whether or not the judge applied proper principles in dealing with the value to the tenant to be attached to . . . two items, Nos 4 and 19. I interpose that no 19 referred to the services of a caretaker. The judgment continues: He held that, having regard to the value of those items to the tenant, the amount of rent (to quote the section) ‘which is fairly attributable to them’ did not form a substantial part of the whole rent. The question whether or not the amount referable to items of attendance forms a substantial portion of the whole rent is eminently a question of fact and degree to be decided without appeal by the county court judge. The only way in which his decision could be attacked would be by saying that he had fallen into some error of law in applying his mind to the question. I cannot find that the judge in this case fell into any errors of law. Certain points were taken. For instance, the judge, in estimating the value to the tenant of cleaning the exterior of the windows of the house and the flat, limited himself — and I do not think this was complained of — to the value to the tenant of the cleaning of the windows of the flat. Counsel for the respondent pointed out that it might very well be said that that was not ‘attendance’ within the meaning of the section, having regard to the fact that it was the exterior of the windows to which the undertaking related. It is not necessary to decide that point. The point of criticism which is directed against the judge’s finding is that, in arriving at it, he took into account the circumstance that the landlord himself was benefited by having the outside windows of his building kept clean. It was said that was contrary to the direction in the section that regard is to be had to the value of the attendance to the tenant. In my opinion, there is nothing in that point, because the first thing which has to be found, in applying the section, is that the rent includes payment in respect of attendance. It is those payments which have to be considered. When you find an undertaking to do something which is clearly in itself for the benefit of the landlord, the court, in deciding whether in the rent there is to be found an element of payment in respect of the doing of that thing, is perfectly entitled, as it seems to me, to say that the only element of payment which one is to have regard to here is payment for what the tenant, and the tenant alone, gets and pays for. What the tenant has paid for is that element in the advantage of the attendance which goes beyond the landlord’s own advantage. I cannot agree that the judge misdirected himself in any way, therefore, in taking into account the element of benefit to the landlord. In that case, as will be seen, the court left open the question whether the cleaning of the exterior of the windows was capable of amounting to attendance. In the present case it is apparent from the evidence that the window cleaner had to enter the room of the appellant, from which it must, I think, be inferred that he was to clean the inside as well as the outside of the windows and on that basis Mr Bridge does not, as I understand him, contend that the element of window cleaning should be excluded from attendance. The real question here is whether the learned judge was correct in dealing with the matter, as he did, by referring to the submission for the appellant that the attendance benefited the plaintiffs and simply saying: ‘I have to consider the value or benefit to the tenant’. I do not think it can be said that the learned judge was wrong in this respect. He had the point put before him. He clearly had it in mind that if there was a benefit to the landlords then that was something which had to be taken into account and he, the judge, had to consider and consider only the value or benefit to the tenant. He may well have felt that, in the circumstances and on the limited evidence before him as to the cost of items of expenditure which had been incurred by the landlords some years previously, there was no quantifiable amount that could be attributed to any benefit to the landlords either from the window cleaning or from any of the other attendance items. The more substantial criticism, as it seems to me, of the learned judge is that centred on his reference to the figure of £12.97, which had been calculated by the rent officer in 1987 as representing that part of the rent which was attributable to services. The point, we are told by counsel, was not one which had been relied upon by either side, nor was it discussed with them by the learned judge before he gave his judgment. It is, indeed, a little difficult to follow exactly what the judge had in mind. He says: In percentage terms at the inception it [that is the value of the attendance] was at least 20% and looked at in that way is a substantial proportion of the whole rent, this being based on a rent then of £55.00 and a notional value of attendance at not less than the £11.00 calculated by reference to the rent officer’s 1987 figure of £12.97 and reduced therefrom to allow for matters that should not have been included . . . When one looks at the form completed by the rent officer, one sees that the figure of £12.97 for the amount attributable to services lies just below another figure, £5.31, representing the ‘Amount for fuel charges (excluding heating and lighting of common parts) not counting for rent allowance’. Mr Ferris very properly explained to us that that £5.31, which could not on any view form part of the cost of attendance to the appellant, was included in the £12.97. At once, therefore, that figure comes down to £7.66. The approach of the learned judge at this point is therefore flawed for that reason. It is in any event, as it seems to me, an approach which he should have avoided because the rent officer was carrying out a different exercise from that which was the task of the learned judge. The rent officer was looking at a registered rent of £35 per week and deciding in his own mind how much of that figure should be attributed to services. He was not contemplating, as the learned judge was bound to, the value of the attendance in relation to a rent of £55 per week. That aside, the discount or reduction which the learned judge was prepared to make from the £12.97, for matters which should not have been included, appears to have been wholly inadequate. I say this not only by reference to the figure of £5.31 per week but also by reference to the fact that the services generally, to which the rent officer was directing his mind, were the whole of the services which the landlords covenanted to provide and not just the four which, in my judgment and for the reasons which I have given, constitute attendance properly so-called. Mr Ferris urged us to look at the matter in this way: that the reference by the judge to the rent officer’s calculation was an alternative approach to the conclusion which he reached. His first approach, expressed in the words: ‘Looking at the matter as I do in a common-sense way, having decided what kind of attendance was provided at the beginning of the tenancy, for the defendant tenant, I am driven to conclude that the value of the attendance formed a110 substantial part of the whole rent,’ is self-standing and impeccable. The reference to the rent officer’s calculation may therefore be ignored in deciding whether the learned judge arrived at the correct conclusion. That is a possible explanation of the passage to which I have referred. I am bound to say that I would not, for my part, base our decision upon it. It simply cannot be told how far the learned judge ran the two things together in his mind. It is at least possible that, in formulating his earlier approach, he already had in mind, although he had not mentioned it in argument, the rent officer’s figure. In these circumstances it seems to me that the correct approach for us to adopt is not merely to treat this as a finding of fact by the learned judge, which can be upheld or rejected on its own terms, but as a case in which we must apply our minds to the factual situation disclosed by the evidence and say what we would decide by reference to the statutory test. In making this approach I would refer to two other cases decided in this court. The first is Woodward v Docherty [1974] 1 WLR 966. In that case Scarman LJ, at p 969, referred to the statutory test for calculating the value of the attendance required in terms similar to those which had been employed by Lord Simon in Palser v Grinling, to which Scarman LJ referred. He added this passage in his own words: How much of the rent is fairly attributable to the use of the furniture, having regard to the value of its use to the tenant?  What is fair, and what is the value of the use to the tenant, are questions to which arithmetic can give no conclusive answer. Finally, what is a substantial part of the whole rent?  Here, arithmetic can help a lot; but even so it is not capable of answering the question — what is ‘substantial’?  In applying the subsection, arithmetic is a handy tool, a useful check, but not, in my judgment, the determining factor. In Marchant v Charters [1977] 1 WLR 1181, to which I have already referred in passing, the particular services claimed as attendance services, with which the case was concerned, included, as one sees at p 1182 of the report: . . . not only payments for the use of furniture but also for services which were by no means minimal, namely, each day the room was cleaned, each day the rubbish was removed, and each week dirty linen was removed and clean linen supplied in its place . . . Services, it will be noted, are similar to those in the present case save that they do not include window cleaning. At p 1186 of the report Lord Denning concluded the judgment in these terms: But ‘the amount of rent . . . attributable’ to these services must form ‘a substantial part of the whole rent,’ having regard to their value to the tenant. This is a difficult point. But it must be remembered that in these days such attendance may cost quite a lot of money. The women who perform these domestic services command high wages. The judge found that in this case the rent attributable to it was ‘by no means minimal’. I think he must have intended to find that it did form ‘a substantial part of the whole rent’. On that account he held that it was not a protected tenancy and made an order for possession. It is a matter which depends very much on the facts: and I am not prepared to say that the judge was wrong. There was no reference, so far as one can see throughout that case, certainly not in the judgment, to any of the arithmetic involved. The approach taken by Lord Denning, with which the other members of the court agreed, simply appears to have been concentrated on the word ‘substantial’ and the amount which in consequence must fairly be attributable to the attendance out of the rent. In that case Lord Denning, at the end of the day, concluded merely that he was not prepared to say that the judge was wrong. That is not a course which is open to us, in my judgment, for the reasons which we have given. But applying as best I can my understanding of the test laid down in the authorities to a case such as this, where there clearly are services available to the tenant of a kind which, to my mind, by any ordinary use of language merit the description ‘substantial’, I would say that the case for the landlords was made out. We are told that, despite the warning given by Lord Simon in Palser v Grinling against taking percentages as a guide, the practice of the county court very often is to take 10% as being the lower end of the bracket and 20% as the higher, so that, in other words, if the cost of the attendance taken as representing the value is below 10%, then the landlord is likely to fail; if it is over 20%, the landlord is very likely to succeed. Between those figures there may be room for difference of judgment, but in general 10%, as we understand it, seems to be the watershed. On the figures, unsatisfactory as they are, before us, it cannot be said that the arithmetical check would produce a figure substantially below 10%, but, even leaving that aside, on the broader grounds which I have mentioned it seems to me that here the learned judge’s conclusion was warranted by the evidence before him, although his formulation of it was open to criticism. I would therefore dismiss this appeal. STOCKER LJ agreed with the decision and reasons given by Nolan LJ and did not add anything. Also agreeing, DILLON LJ said: It is understandable that whether or not a tenancy is protected by the Rent Act 1977 should be ascertained as at the time when the tenancy was first granted. The parties can thus know from the outset whether the tenancy is or is not protected. In considering, therefore, whether the rent under the tenancy fairly attributable to attendance, having regard to the value of the attendance to the tenant, forms a substantial part of the whole rent, it is natural to look at what attendance the landlord at the outset agreed to provide. It is thus natural to compare the value of the attendance to the tenant at the outset with the whole rent at the same time, namely as at the outset of the tenancy. In the present case the initial rent was £55 per week inclusive of the services, which amount to attendance. But that was drastically reduced by the rent officer a year later to £35 a week. The corollary is not, in my view, that the assessment should therefore be made as at a later date, but that a purely arithmetical approach is not the reliable answer to the problem which the section poses, as was explained by Lord Simon in his speech in Palser v Grinling. It is essentially an artificial concept to proceed purely arithmetically by reference to the rent. Lord Simon stressed, at the foot of p 315: The questions involved are to be answered by common-sense considerations rather than by any formula which can be laid down by this House. And then again in considering ‘what does substantial portion mean’ he continued: It is plain that the phrase requires a comparison with the whole rent, and the whole rent means the entire contractual rent payable by the tenant in return for the occupation of the premises together with all the other covenants of the landlord. ‘Substantial’ in this connection is not the same as ‘not unsubstantial,’ ie, just enough to avoid the ‘de minimis’ principle. One of the primary meanings of the word is equivalent to considerable, solid, or big. It is in the sense that we speak of a substantial fortune, a substantial meal, a substantial man, a substantial argument or ground of defence. Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances in each case, the onus being on the landlord. If the judgment of the Court of Appeal in Palser’s case were to be understood as fixing percentages as a legal measure, that would be going beyond the powers of the judiciary. To say that everything over 20 per cent of the whole rent should be regarded as a substantial portion of that rent would be to play the part of a legislator: if Parliament thinks fit to amend the statute by fixing percentages, Parliament will do so. Adopting that broad approach, I would hold that the rent fairly attributable to the attendance provided in this case, the daily room cleaning five days a week, the removal of refuse, the provision of clean linen weekly and the window cleaning, paying due regard to the value of the attendance to the tenant, forms a substantial part of the whole rent. Despite, therefore, the difficulties raised by the way the learned judge has sought to explain his reasons for reaching his conclusion, I agree with my lords that the landlords have made out their case and I would dismiss this appeal. Appeal dismissed with costs; order below varied; possession to take effect six weeks from today, order for costs not to be enforced without leave of the court; legal aid taxation for appellant; application for costs against the Legal Aid Board adjourned to a date not earlier than 10 weeks from today; respondents’ solicitors to give immediate notice of the application to the Legal Aid Board and keep the Civil Appeals Office fully informed of progress; hearing of application to be before the registrar of the county court.