The Court of Appeal have recently considered the issue of whether or not a missing bannister could amount to disrepair pursuant to section 4 of the Defective Premises Act 1972.
Sternbaum v Dhesi  EWCA Civ 155 involved business premises let by D to a company in which S had an interest. The building was Victorian with a steep staircase enclosed by walls on both sides and without a bannister. The remains of posts at the top and bottom of the stairs suggested that at one time a bannister had been fitted. S fell down the stairs sustaining injury.
S’s case was that without the bannister the stairs were dangerous and if one had been present the accident would not have happened. Further, as a part of the structure, D was obliged to keep the structure in repair and by failing to replace the bannister was in breach of section 4 of the Defective Premises Act and the repairing obligation under the tenancy. S relied on Hannon v Hillingdon Homes  EWHC 1437 QB. D admitted that the staircase was dangerous but denied that the missing handrail amounted to ‘disrepair’ because there had not been a handrail present at the start of the tenancy. The duty to repair did not amount to a duty to make safe. The Recorder at first instance agreed with D and dismissed the claim.
Lady Justice Hallett gave the leading judgment in the Court of Appeal (Lord Justice Briggs and Mr. Justice Moylan agreeing). In dismissing the appeal she held that:
- The only question to be answered was whether or not the property was in disrepair.
- Reference to a ‘defect’ in the Recorder’s judgment was that the staircase was unsafe but not that it amounted to disrepair under section 4.
- The absence of the bannister did not amount to disrepair. The walls and stairs were in good order. Alker v Collingwood Housing Association  1 WLR 2230 applied.
- To place an obligation on D to fit a bannister where there had never been one was to oblige him to improve and make safe. This is beyond the covenant to repair.
- The Recorder had reached the right result.
The Court of Appeal has confirmed that landlords are only obliged to repair that which was there in the first place. A prospective tenant is entitled to let a property with dangerous features but there is no obligation on the landlord to improve that property by the installation of additional safety features.