Arthur Phillips & Anor v Tess Garraway [2026] EWCA Civ 55

[2026] EWCA Civ 55Case No CA-2025-000149
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HASTINGS COUNTY COURT
Her Honour Judge Venn
K00HS990
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/02/2026
Before
LORD JUSTICE MOYLANLORD JUSTICE MALESLADY JUSTICE FALK
Between
ARTHUR PHILLIPSRespondents/ClaimantsJANET PHILLIPSRespondentTESS GARRAWAYAppellant/
Iain Colville (instructed by Holden & Co LLP) for AppellantBen Doyle (instructed by William Sturges LLP) for RespondentsHearing Hearing date: 27 January 2026
Approved JudgmentThis judgment was handed down remotely at 10.30am on Monday 9 February 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The issue on this appeal is whether a tenancy which requires the tenant to provide services to which no monetary value is expressly attributed is a tenancy under which no rent is payable within the meaning of the Housing Act 1988. District Judge Chambers, sitting in the Hastings County Court, held that it was. On appeal, Her Honour Judge Venn agreed. This meant that the tenancy was not an assured tenancy for the purposes of the 1988 Act, with the consequence that, on serving a notice to quit, the landlord was entitled to an order for possession.[2]On this second appeal, the tenant contends that her services do qualify as rent within the meaning of the 1988 Act because it would be possible for the court to determine their value. If that is correct, the tenancy will be an assured tenancy and, in order to obtain possession, the landlord must rely on one of the grounds contained in Schedule 2 to the 1988 Act or must comply with the requirements of (the soon to be abolished) section 21.[3]I have concluded that the decisions of the judges in the courts below were correct and that this appeal must be dismissed.

The facts

[4]The landlords are Mr Arthur and Mrs Janet Phillips and the tenant is Ms Tess Garraway.[5]The tenancy agreement, dated 23rd January 2023, is for The Lodge, Southwood, Scabharbour Road in Hildenborough, near Tonbridge in Kent. It is a somewhat rudimentary document, providing for a six months’ rolling tenancy starting on the date of the agreement and providing for one month’s notice of termination for both parties. Under the heading ‘Rent’, the agreement provides for:
‘Minimum of 2 days work on the estate with hours from 9:00 to 17:00. Breaks to be agreed.’
[6]Although the agreement does not say so, it appears to be common ground that this refers to two days’ work per week. No provision is made for holidays, unless these come within the term ‘Breaks’. At one time the local council appears to have been concerned that this agreement might represent a form of modern slavery, but no such concern was raised in the courts below or before us and I need say nothing further about it. Mr and Mrs Phillips say that the tenancy was only ever intended to be short-term, as they were planning to carry out significant repairs and modernisation in order to bring the property up to a marketable standard.[7]The agreement goes on to provide for various services, such as council tax, electricity, heating oil and water, to be paid to the landlord each month based on invoices from the service provider (or in the case of heating oil, based on agreed tank measurements).[8]Ms Garraway moved into the property on 23rd January 2023 and thereafter worked on the estate by pruning and weeding land which had previously been neglected. She found that working for a whole day was too much for her, so it was agreed that instead of working for two full days she would work for four half days each week.[9]On 26th May 2023 Mr and Mrs Phillips gave notice that the tenancy would terminate on 22nd July (i.e after six months). A further notice to the same effect was given on 20th June 2023, followed by a reminder on 27th June 2023 that vacant possession would be required on 22nd July. On 22nd July 2023 Mr and Mrs Phillips required Ms Garraway to vacate the property and said that she should stop paying rent by working on the estate with immediate effect.[10]Ms Garraway did not vacate the property. Her position is that she has no money and nowhere to go.[11]On 27th September 2023, without prejudice to their position that the tenancy had already terminated, Mr and Mrs Phillips’ solicitors served a notice to quit requiring possession to be given on 31st October. Once again, Ms Garraway did not vacate the property, taking the view that the notice was invalid.[12]As a result proceedings for possession were commenced on 14th December 2023 on the basis that the tenancy was a common law tenancy and that Ms Garraway had failed to vacate the premises following service of the notice to quit. Mr and Mrs Phillips have not at any stage relied on any of the grounds for possession contained in Schedule 2 to the Housing Act 1988 or suggested that they would be entitled to possession under section 21.[13]The District Judge’s order granting possession to Mr and Mrs Phillips was dated 12th January 2024 and her appeal was dismissed by Judge Venn on 8th January 2025. She has remained in the property pending this appeal.

The judgments in the courts below

[14]District Judge Chambers held that this was a tenancy under which no rent was payable within the meaning of the 1988 Act. Although the provision of services could amount to rent at common law, for the purpose of the 1988 Act payment of rent was limited to the payment of money or, if it took the form of the provision of services, the parties had to agree the monetary value of those services. Judge Venn took the same view, citing cases under the Rent Acts. Those cases decided that if the rent was not payable in money but in kind, as in goods or services, the parties had to agree a monetary value for those goods or services, and the same approach should be applied to the Housing Act 1988. In the present case there had been no such agreement and no agreed mechanism for quantifying the monetary value of Ms Garraway’s services. Accordingly the tenancy fell outside the scope of the 1988 Act and Mr and Mrs Phillips were entitled to an order for possession.

The Rent Acts

[15]The starting point is that at common law rent need not consist of the payment of money and, where it takes the form of payment in kind, no monetary value need be attributed to the goods or services provided. As picturesquely explained in Woodfall, Landlord and Tenant, para 7.004:
‘Rent in kind or in services At common law rent must always be a profit. Although a rent is usually money there is no need for it to be. Rent may be in delivery of hens, capons, roses, spurs, bows, shafts, horses, hawks, pepper, cumin, wheat or other profit, or in attendance. Rent may also take the form of services. Thus the rent may consist of cleaning a church or a synagogue; performing team work with horse and cart; shearing sheep; carrying coals, or taking corn to be ground in the landlord’s mill.’
[16]The position is the same for some statutory purposes. Thus section 205(1)(xxiii) of the Law of Property Act 1925 defines ‘rent’ for the purposes of that Act as including ‘a rent service or a rentcharge, or other rent, toll, duty, royalty, or annual or periodical payment in money or money’s worth, reserved or issuing out of or charged upon land’. A payment may be in money’s worth, and therefore within this definition of rent, even if the parties have not expressly attributed a value to the goods or services in question.[17]However, the position under the Rent Acts was different. These comprised a series of statutes which, in the case of tenancies within their scope, provided protection to tenants by restricting the rent which landlords were able to charge and giving tenants security of tenure. The first such Act to which we were taken was the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 and the latest was the Rent Act 1977. A tenancy within the scope of the Acts was referred to as a ‘protected tenancy’, but a tenancy under which no rent was payable or where the rent payable was below a specified level was expressly excluded from qualifying as a protected tenancy (e.g. Rent Act 1968, section 2(1); Rent Act 1977, section 5(1)).[18]So far as these statutes are concerned, it is clearly established by a series of cases that rent is limited to the payment of money or the provision of goods or services to which the parties have attributed a value.[19]Hornsby v Maynard [1925] 1 KB 514 was a decision of the Divisional Court. The tenancy agreement provided for the tenant to pay rent of £36 a year and also to give the landlady the use of a drawing room and bedroom for her own occupation rent free. The issue was whether the value of the use of these rooms (which the County Court judge had assessed as being worth £10 and 16 shillings a year) counted as part of the rent. If it did, the total rent exceeded the standard rent permitted to be charged under the 1920 Act. The court held that the right to use the two rooms was not rent within the meaning of the Act because rent under the Act referred only to an amount payable in money.

Mr Justice Shearman said:

‘The remaining point taken on behalf of the defendant is that the value of the right given by the defendant to the plaintiff to use the two rooms is “rent” within the meaning of the Act of 1920, and that under s.1 of that Act the rent of the house has thereby been unduly increased above the standard rent. It is said that there may be rent or an increase of rent in things other than money which are capable of being assessed in money. On the true construction of the provisions of the Act it seems to me that the term “rent” in s.1 and the other sections in which it occurs means rent payable in money and in money alone. It is urged that, if this be so, the Act has left it open to the parties to an agreement of tenancy successfully to evade its provisions by arranging that the landlord shall have some privilege, the value of which, added to the pecuniary rent, will increase the total actual rent beyond the statutory limit. It is not for me to criticise the policy of the Act and I do not presume to do so. I take the Act as I find it. So taking it I think it is restricted to pecuniary rent. …’

Mr Justice Salter agreed, adding that:

‘The question is whether or not “rent” in s.1 and the other sections of the Act refers only to money. At common law the term “rent” was not restricted to pecuniary rent. Tenancies under which the rent was payable by way of services were formerly very common, and such tenancies are still to be met with. In this Act, however, having regard to its own provisions and to the authorities decided upon it to which our attention has been called, I think that the term “rent” applies only to pecuniary rent. I regret to have to come to this conclusion, because it follows that the Act can be in some respects evaded.’
[22]Four points are worth noting. First, it was expressly recognised that the meaning ascribed to ‘rent’ under the 1920 Act differed from its meaning at common law. Second, it was acknowledged that some tenancies were still to be found where the rent was payable by way of services and that such tenancies would be outside the scope of the protection of the Act. Third, this was so despite the fact that there might be no difficulty in assessing the value of such services, as indeed the County Court judge had been able to do. Fourth, both judges recognised that their conclusion might enable landlords to evade the Act, thereby depriving tenants of the protection which it afforded.[23]Some doubt was cast on Hornsby v Maynard by the decision of the Court of Appeal in Montagu v Browning [1954] 1 WLR 1039. In 1941 the trustees of a synagogue employed the first defendant as caretaker and at the same time let a house to him and his wife, the second defendant. From 1941 to 1946 the first defendant paid as rent a weekly sum of 10 shillings, which was the difference between the estimated value of the services as caretaker and the estimated rental value of the house. In 1946 the trustees increased the wages by 10 shillings a week and thereafter no rent was paid in money form. In 1953 the trustees sought possession of the house, contending that there was a new agreement concluded in 1946 and relying on Hornsby v Maynard for the proposition that, because thereafter the rent was payable entirely in services, the protected tenancy had come to an end and the new agreement was outside the scope of the Rent Acts.[24]Lord Justice Singleton and Lord Justice Morris decided the case on the straightforward basis that there was no new agreement concluded in 1946. Rather, the original agreement made in 1941, which required payment of rent in money and was undoubtedly a protected tenancy within the Rent Acts, had continued throughout. They both suggested that it might be necessary in the future to reconsider what had been said in Hornsby v Maynard.[25]Lord Justice Denning decided the case on a different basis, while also expressing a similar reservation. He said that:
‘Rent is usually quantified in money and paid in money, but it is not necessary in law that it always should be so. The position at common law is stated in the latest edition of Woodfall at p.330 (25th ed, 1954): “… there is no occasion for it to be, as it usually is, a sum of money: for spurs, capons, horses, corn, and other matters, may be, and occasionally are, rendered by way of rent: it may also consist in services and manual operations; as to plough so many acres of ground, and the like; …” In Rent Act cases, according to an observation of Shearman J in Hornsby v Maynard, the position is different. He said that the term “rent” in section 1 and the other sections in which it occurs is rent payable in money and money alone. I cannot agree with that restricted meaning of the word “rent”. It seems to me that even under the Rent Acts, in cases when rent is not payable in money but in kind, as in goods or services, then, so long as the parties have by agreement quantified the value in terms of money, the sum so quantified is the rent of the house within the meaning of the Rent Restriction Acts; and, if it exceeds two-thirds of the rateable value, the house is within the Acts. If the tenancy is determined and the landlord has no further use for the services the landlord can recover the standard rent in lieu of the services. I say nothing about the position where the services are not quantified in money, which was the case in Hornsby v Maynard, except to say that even on that point some of the observations in that case may need reconsideration. Suffice it to say in the present case that, except in the findings of fact of the county court judge, nevertheless the tenant was protected because there was the quantified sum which the services were worth, £66 a year.’
[26]Thus Lord Justice Denning was prepared to say that goods or services could count as rent for the purpose of the Rent Acts provided that the parties had by agreement quantified their value in terms of money. I respectfully agree. However, it is not suggested in the present case that the parties had agreed any monetary value to be put on the gardening services provided by Ms Garraway. There is no support in Lord Justice Denning’s judgment for saying that goods or services could qualify as rent merely because their value could be quantified, as distinct from that it had been so quantified.[27]Despite the reservations concerning Hornsby v Maynard expressed in Montagu v Browning, the decision was affirmed by this court in Barnes v Barratt [1970] 2 QB 657. The parties’ agreement provided for the tenants (as they were described) to have exclusive possession of part of the house, with the bathroom being shared, to provide services, such as cleaning, shopping and cooking, and to pay electricity, gas and fuel bills for the whole house. No monetary rent was payable and no value was ascribed to the services to be provided. One issue was whether the agreement was a tenancy at all. Another was whether, if it was a tenancy, it was within the scope of the Rent Acts.[28]Giving the leading judgment, Lord Justice Sachs dealt first with the latter issue. After referring to Hornsby v Maynard, he said that:
‘In the decades which immediately followed this clear decision, and indeed in the decades which subsequently transpired, there were passed a whole series of statutes which adopted the Act of 1920 as the principal Act and brought into operation extensive amending provisions, using, in every case, the same phraseology so far as was relevant to the meaning of the word “rent”. In none of these Acts was that word given a fresh definition, nor has it been given any fresh definition in the Act of 1968. In such circumstances it is axiomatic that the legislature must normally be taken to have been aware of the courts’ well established view of the meaning of a specific word and to have embodied that meaning in the succeeding statutes. That, in itself, would be a good ground for holding that the Hornsby v Maynard [1925] 1 KB 514 interpretation of the word “rent” continues in force in essence. However, if one turns to look at the structure of the Rent Acts as a whole, it is equally clear that their provisions with regard to rent restriction can only, in practice, be operated if that interpretation is correct. The effective basis of the restrictions turns on there being quantified sums to which the provisions of the Act can apply. …’
[29]After examining some of the provisions of the Acts, including those concerned with the sole permissible method of increasing rents and the recovery by the tenant of any sum paid on account of rent which exceeded the permitted rent, Lord Justice Sachs said that the ‘good sense’ of the decision in Hornsby v Maynard was ‘patent’ and that the case was correctly decided. He referred to what had been said about the case in Montagu v Browning, but pointed out that it had not been overruled. He concluded:
‘Accordingly, in the present case, even if there was a tenancy, the Rent Acts could not apply to it. At no time was there any agreed monetary quantification of the rent, nor was there any agreed method of quantification, nor was there any statute which provided a substitute for an agreed method of quantification.’
[30]Lord Justice Sachs turned next to the question whether the agreement was a tenancy or a licence and held that it was a licence. Lord Justice Cross and Lord Justice Russell agreed on both points. Lord Justice Russell added that:
‘Hornsby v Maynard quite correctly decided, as a matter of law, that, where, as here, you have a case in which there has been no attempt to assess or evaluate either the services to be rendered or the rental worth of the premises, the case is established under the relevant section of the relevant statute that no rent is payable.’
[31]There was some debate before us whether this court’s approval of Hornsby v Maynard was ratio or obiter. In my judgment it was ratio. However, the point is put beyond doubt by the decision of this court in Bostock v Bryant (1990) 22 HLR 449, where Barnes v Barratt was followed and applied.[32]It is therefore clear, and established by a series of decisions binding on this court, that for the purposes of the Rent Acts the provision of goods or services does not qualify as ‘rent’ unless the parties have attributed a monetary value to those goods or services. It is not enough that the court would be able, if necessary, to determine such a value for itself. Accordingly a tenancy such as that in the present case, where the only rent consisted of the provision of services to which no monetary value was attributed, could not have been a protected tenancy for the purpose of the Rent Acts.

The Housing Act 1988

[33]The question in this appeal is whether the same approach to the meaning of rent should be applied to the Housing Act 1988. As explained in McDonald v McDonald [2016] UKSC 28, [2017] AC 273, the purpose of this Act was to increase the supply and quality of housing in the private rented sector by making it a more economic proposition for private landlords:
‘11. In the late 1970s, residential tenants in England and Wales had two forms of protection, which applied even if their tenancies had contractually expired, namely (i) protection from summary eviction and (ii) security of tenure. The first, which applied to all residential tenants and most licensees, was under the Protection from Eviction Act 1977, which, among other things, precluded their eviction other than through court proceedings. That statute remains in force, and, although it has been amended from time to time (sometimes for the purpose of strengthening or extending), its original provisions remain substantially in place. There were also statutory provisions governing the amount of time which a court could allow an occupier before an order for possession took effect and could be executed. 12. Security of tenure, which only applied to tenants with private sector landlords, was accorded by the Rent Act 1977, whose provisions extended to most but not all such tenancies. In very summary terms, that Act (i) precluded a court making an order for possession against most such tenants unless one or more of a number of specified grounds could be established, (ii) permitted family members to succeed on the death of the tenant in some circumstances, and (iii) limited the level of rent which a landlord could recover from the tenant, often to a rate considerably below the market level. Under Chapter II of Part I of the Housing Act 1980, later replaced by Part IV of the Housing Act 1985, residential public sector tenants were for the first time given a substantially similar degree of security of tenure. 13. In 1987, the Conservative government published a White Paper, Housing: The Government's Proposals (Cm 214, 1987). One of its principal aims was to “reverse the decline of rented housing and to improve its quality” - para 1.1. An important part of its thesis was that the protection afforded to tenants by the Rent Act 1977 and similar predecessor legislation, not least because of the security of tenure thereby afforded to tenants, had greatly reduced both the supply and the quality of housing in the private rented sector, which was to the disadvantage of residential tenants as a group - paras 1.8 and 3.1. 14. The 1987 White Paper therefore made proposals which were intended according to para 1.15 to ensure that “the letting of private property will again become an economic proposition”. The White Paper therefore proposed two new types of tenancy, namely (i) an assured tenancy, which would be at a freely negotiated rent, but with the tenant having security of tenure (albeit somewhat more attenuated than under the Rent Act 1977), and (ii) an AST [assured shorthold tenancy], under which the tenant would have very limited security of tenure, and either party could have an appropriate rent determined (which would be substantially less restricted than the rent fixed under the Rent Act 1977) - para 3.11. 15. The Bill which became the 1988 Act was introduced to give effect to these proposals (as well as giving effect to other proposals). As originally enacted, the 1988 Act defined an AST as being a fixed term tenancy for at least six months, which could not be determined earlier by the landlord, and in respect of which the tenant had been given a notice in a prescribed form before the tenancy was granted. The 1988 Act set out a number of grounds upon which a landlord could seek possession against a tenant under a shorthold tenancy (including an AST); it also contained provision for the landlord to serve a notice seeking possession at any time after the contractual term of an AST had expired, and then provided that the court should grant possession. (Housing Associations which had previously been treated as public sector landlords were brought into the ambit of the 1988 Act by section 140(2) and Schedule 18).’
[34]The long title of the 1988 Act explained that its purposes included making ‘further provision with regard to dwelling-houses let on tenancies or occupied under licences’ and amending the Rent Act 1977.[35]Section 1 of the Act created the concept of an ‘assured tenancy’ (the words ‘in England’ being added by later amendment):
‘Assured tenancies (1) A tenancy under which a dwelling-house in England is let as a separate dwelling is for the purposes of this Act an assured tenancy if and so long as— (a) the tenant or, as the case may be, each of the joint tenants is an individual; and (b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and (c) the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.’ (a) the tenant or, as the case may be, each of the joint tenants is an individual; and (b) the tenant or, as the case may be, at least one of the joint tenants occupies the dwelling-house as his only or principal home; and (c) the tenancy is not one which, by virtue of subsection (2) or subsection (6) below, cannot be an assured tenancy.’
[36]Tenancies which cannot be an assured tenancy are specified in Part I of Schedule 1 to the Act. Tenancies which cannot be an assured tenancy include a tenancy entered into on or after 1st April 1990 at a rent exceeding £100,000 a year (para 2), a tenancy ‘under which for the time being no rent is payable’ (para 3), and a tenancy entered into on or after 1st April 1990 at a rent of less than £250 a year (or £1,000 in Greater London) (para 3A).[37]Accordingly the question for determination is whether the tenancy agreement in the present case was one under which no rent was payable within the meaning of paragraph 3 of Schedule 1 of the Act.[38]Other provisions of the Act are relevant in considering this question. Among other things, the Act contains provisions for security of tenure (albeit rather less security than in the Rent Acts) (section 5); for increases of rent in some cases by the service of a notice (section 13); for determination by a tribunal of the increased rent at which a dwelling-house might reasonably be expected to be let in the open market (section 14); for repayment of rent where a tenancy is brought to an end before the end of a period for which rent has been paid in advance (section 21C); and for determination by a tribunal whether a rent is significantly higher than the rent which the landlord might reasonably be expected to obtain, having regard to other similar dwelling-houses in the locality let on assured tenancies (section 22).

Submissions

[39]On behalf of Ms Garraway, Mr Iain Colville submitted that ‘rent’ for the purposes of the Housing Act 1988 should be interpreted in accordance with the common law and the definition in the Law of Property Act 1925 as referring to payment in money and money’s worth. He submitted that this was the natural meaning of the word and, in the absence of any contrary definition in the Act, should be adopted. Payment by money’s worth should count as rent if the value is capable of being established by a court and not only when it has been expressly agreed in monetary terms in the tenancy agreement. Otherwise vulnerable tenants would be at risk of exploitation by unscrupulous landlords. The fact that the protection afforded to tenants under the 1988 Act is more limited than under the Rent Acts makes it all the more important to ensure that the 1988 Act cannot be evaded.

Discussion

[40]It is necessary to ascertain the meaning of the statutory words, in this case the meaning of the word ‘rent’ in particular, in the light of the context and purpose of the statute viewed as a whole and in its historical context (R (Quintavalle) v Secretary of State for Health [2003] UKHL 13, [2003] 2 AC 687, para 8; R (O) v Secretary of State for the Home Department [2022] UKSC 3, [2023] AC 255, paras 29-31). Of particular relevance is what is sometimes known as the Barras principle (Barras v Aberdeen Steam Trawling and Fishing Co Ltd [1933] AC 402, 411), summarised in Bennion, Bailey & Norbury on Statutory Interpretation (8th ed) in the following terms:
‘24.6 Judicial interpretation of earlier legislation (‘Barras principle’) (1) Where an Act uses a word or phrase that has been the subject of previous judicial interpretation in the same or a similar context it may be possible to infer that the legislature intended the word or phrase to bear the same meaning as it had in that context. This is sometimes known as the Barras principle. (2) This is at most a presumption the strength of which will vary according to the context: there is no rigid rule that words must be given the same meaning that they have been given in an earlier Act. The question in the end is always whether the legislature intended the term to be given the meaning it has been given previously.’ (1) Where an Act uses a word or phrase that has been the subject of previous judicial interpretation in the same or a similar context it may be possible to infer that the legislature intended the word or phrase to bear the same meaning as it had in that context. This is sometimes known as the Barras principle. (2) This is at most a presumption the strength of which will vary according to the context: there is no rigid rule that words must be given the same meaning that they have been given in an earlier Act. The question in the end is always whether the legislature intended the term to be given the meaning it has been given previously.’
[41]In my judgment it is clear that Parliament intended the word ‘rent’ in the Housing Act 1988 to be given the same meaning as it had been given by judicial decision for the purpose of the Rent Acts.[42]First, one of the express purposes of the 1988 Act was to amend the Rent Act 1977. (Indeed, I note that the Encyclopaedia of Housing Law and Practice (October 2025), para 1-2358.2, correctly describes Part I of the 1988 Act as being ‘in substance, if not in name, a new Rent Act, containing assured tenancies in place of protected tenancies …’). Although the 1988 Act represented a major reform of housing law, it contained no definition of ‘rent’ and no indication that any different meaning was intended from the meaning which had been given to that word by the series of cases described above. If Parliament had intended some alternative definition, it is to be expected that it would have said so.[43]Second, the relevant provision, paragraph 3 of Schedule 1 to the 1988 Act, excludes from the concept of an assured tenancy ‘A tenancy under which for the time being no rent is payable’. This is the same language as was used in section 5 of the Rent Act 1977 to exclude a tenancy under which no rent was payable from the concept of a protected tenancy under the Rent Acts. Similarly, the same language was used to exclude tenancies where the rent was either above or below a specified monetary level. It is inconceivable that Parliament intended a significant change in the meaning to be attributed to these terms.[44]Third, the courts’ rationale for holding that ‘rent’ in the Rent Acts referred to a payment of money (or goods or services for which the parties had agreed a value in money terms) was that provisions of the Rent Acts would otherwise be unworkable, as explained by Lord Justice Sachs in Barnes v Barratt, who referred specifically to the provisions for increasing the rent and recovery by the tenant of overpaid rent. That rationale applies equally to the provisions of the 1988 Act to which I have referred. These include provisions which are equivalent, albeit not identical, to the provisions to which Lord Justice Sachs referred.[45]For example, and without seeking to be exhaustive, it would make no sense for a tribunal to attempt to determine the rent at which a dwelling-house might reasonably be expected to be let in the open market otherwise than in money terms, or to consider whether a rent denominated in the provision of services was significantly higher than the rent payable for other similar dwelling-houses in the locality. Similarly, a claim for repayment of services rendered in advance where a tenancy is brought to an end before the end of the relevant period would make no sense either. More generally, numerous provisions of the 1988 Act refer to rent being ‘paid’ or ‘payable’, or to ‘the amount of the rent’, while the provisions which limit the scope of the Act to tenancies where the rent is between £250 and £100,000 strongly suggest that rent must be quantified in monetary terms.[46]Fourth, it is striking that at the same time as enacting the 1988 Act, Parliament inserted section 3A into the Protection from Eviction Act 1977. This Act protects tenants against eviction otherwise than by proceedings in court, but does not apply to a statutorily protected tenancy (which has its own regime) or an excluded tenancy. An excluded tenancy includes, by virtue of section 3A(7)(b), a tenancy which ‘is granted otherwise than for money or money’s worth’. Thus a tenancy which is granted in exchange for the provision of goods or services is not an excluded tenancy and is therefore subject to the protection of the 1977 Act. Parliament was, therefore, well aware of the possibility of extending statutory protection to a tenancy granted in exchange for money’s worth without any monetary value being attributed to the goods or services provided, but chose not to adopt the same definition when dealing with assured tenancies within the scope of the 1988 Act itself.[47]In my judgment this interpretation of the 1988 Act is clear and in this case the Barras principle has very considerable force. The fact that it might be possible for a court to attribute a value to the services provided by Ms Garraway (though this might depend on the nature of those services, about which the tenancy agreement is silent) is beside the point, just as it was beside the point in Hornsby v Maynard that the County Court judge had been able to assess the value of the landlady’s right to use some of the rooms in the house. So too is the fact that, presumably, Mr and Mrs Phillips attributed some monetary value to the services provided by Ms Garraway in their tax returns. If they did, that was merely their subjective view and not a value which had been agreed between the parties.[48]Nor does the risk of exploitation of vulnerable tenants make any difference, though in fairness I should add that the judges in the courts below made no finding of exploitation in the present case. To the extent that such a risk exists as a result of interpreting ‘rent’ to mean a payment in money or to which a monetary value has been attributed, it is a risk of which Parliament must be taken to have been aware as a result of what was said by both judges in Hornsby v Maynard. However, those observations did not deter Parliament from legislating in the way that it did in succeeding Rent Acts or from legislating in relevantly similar terms in the Housing Act 1988. If there were any reason to think that Parliament intended the 1988 Act to adopt a different approach from that of the Rent Acts, I would be sympathetic. But as I have explained, I can see no such reason.[49]It is unnecessary to deal at any length with two further arguments which were mentioned somewhat faintly by Mr Colville. The first is that the services which Ms Garraway agreed to provide must on any view have been worth more than £250 a year when the national minimum wage is taken into account, with the consequence that the tenancy was within the scope of the 1988 Act. I would agree that if the court’s task was to quantify the value of Ms Garraway’s services, working two days a week, that value would inevitably exceed £250 a year. But as I have sought to explain, that is not the court’s task. The provision of services is only capable of qualifying as rent for the purpose of the 1988 Act if the parties themselves have attributed a value to those services. Because they did not, this was a tenancy under which there was no rent payable and which was therefore excluded from the scope of the Act.[50]The second argument, which was not run below and which Ms Garraway would need permission to advance, is that the payments made for council tax, electricity, heating oil and water were monetary payments which should be regarded as rent for the purposes of the 1988 Act. Mr Colville relied in this regard on Sidney Trading Co Ltd v Finsbury Borough Council [1952] 1 All ER 460, a decision of the Divisional Court. The tenancy agreement in that case provided for rent of £5 and 4 shillings a year, and in addition for the tenant to pay to the landlord for transmission to the appropriate authorities all existing or future general and water rates. The issue was whether these further payments counted as part of the rent for the purpose of the Increase of Rent and Mortgage Interest (Restrictions) Act 1920. If they did, the rent would exceed the maximum permitted amount.[51]The Divisional Court held that the payments were part of the rent and therefore that the landlord had been rightly convicted for a breach of the Landlord and Tenant (Rent Control) Act 1949. Lord Goddard CJ held that ‘the test for deciding what is “rent” for the purpose of the Rent Restrictions Acts, is to ask: What is the total monetary payment to be made by the tenant to the landlord?’ He continued:
‘If a flat is let at a rent of, say, £100 a year inclusive of rates, that £100 is “rent” although some part of it represents what the landlord has to pay to the local authority for rates. So, here, in substance the monetary consideration which the tenant agreed to pay for this tenancy – leaving the premium out of the question – is the £5 4s, plus a certain sum for rates. It seems to me on the authority of the two cases which I have mentioned that it matters not whether the payment is for rates, for service, or for the use of furniture. If there is a sum of money which the tenant agrees to pay as a consideration for the tenancy, it is for this purpose the rent. Therefore, in my opinion, the landlords are receiving here a rent of more than two-thirds of the rateable value.’
[52]Nowadays, however, when considering whether a tenancy is one under which no rent is payable for the purpose of the 1988 Act, or whether the rent is at a level which falls within the scope of the Act, it is necessary to apply the provisions of Schedule 1, para 2(2) (and see also para 3C), which provides that ‘rent’:
‘does not include any sum payable by the tenant as is expressed (in whatever terms) to be payable in respect of rates, council tax, services, management, repairs, maintenance or insurance, unless it could not have been regarded by the parties to the tenancy as a sum so payable.’
[53]Because this argument was not advanced below, there is no finding whether the payments made by Ms Garraway ‘could not have been regarded by the parties’ as a sum payable in respect of council tax, etc. However, there is every reason to think that they would have been so regarded and accordingly that they should not be counted as rent for the purpose of the Act. I would therefore refuse permission for this point to be argued.

Conclusion

[54]For the reasons explained above, which are in essence the same as those of the judges in the courts below, I would dismiss the appeal.

LADY JUSTICE FALK:

[55]I am grateful to Lord Justice Males for his clear analysis and agree that the appeal should be dismissed. In particular, I am persuaded that Parliament must be taken to have intended that ‘rent’ should be given the same meaning in the Housing Act 1988 as its established meaning under the Rent Acts, as confirmed by Barnes v Barratt.[56]It is telling, as Lord Justice Males points out, that the language of paragraph 3 of Schedule 1 to the 1988 Act (‘A tenancy under which for the time being no rent is payable’) is the same as that used in section 5 of the Rent Act 1977. Further, while the reference to a rent of £250 or less a year (£1000 in Greater London) in paragraph 3A of Schedule 1 to the 1988 Act was not included in the 1988 Act as first enacted, the language that it replaced in the original version of the 1988 Act, which referred to two-thirds of rateable value (and which remains in place for pre-1990 tenancies under paragraph 3B), did reflect the language of the Rent Act 1977.[57]I also agree that section 3A of the Protection from Eviction Act 1977 – a provision inserted into that Act by section 31 of the Housing Act 1988 – provides an important indicator of a deliberate legislative choice that ensured that tenancies granted in exchange for money’s worth could benefit from the protection from eviction conferred by the 1977 Act. If Parliament had intended to confer the greater protection conferred by the assured tenancy regime, despite the established case law under the Rent Acts, it could be expected to have made that clear.[58]I am somewhat less convinced that extending the concept of rent to include (unquantified) money’s worth would be unworkable. In principle, consideration in the form of goods or services is capable of valuation, even if there is some difficulty in doing so. I also do not consider it impossible to describe the provision of money’s worth as payment (or the equivalent) in an appropriate case, as indeed section 205(1)(xxiii) of the Law of Property Act 1925 recognises (see [16] above: ‘payment in money or money’s worth’). Other examples can no doubt be found in different areas: see for example the discussion in Tennant v Smith [1892] AC 150, and more generally the discussions of ‘payment’ in Stroud’s Judicial Dictionary, 11th ed. and Jowitt’s Dictionary of English Law, 6th ed. Further, the rent control aspects of the regime introduced by the 1988 Act are much more limited than those in the predecessor legislation, rendering the practical issues potentially less marked than they had previously been. However, these minor reservations are comfortably outweighed by the other points made by Lord Justice Males and to which I have alluded. LORD JUSTICE MOYLAN:[59]I agree that the appeal should be dismissed for the reasons given by Lord Justice Males.