Property disrepair claims – An awakening

March 7, 2023

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The UK media have extensively reported on the issue of mould caused by property disrepair following the death of Awaab Ishak. The Coroner issued a Regulation 28: report to prevent further deaths to The Department for Levelling Up, Housing and Communities who have published their response.

Rising awareness

The Housing Ombudsman sent an open letter to social landlords in November 2022 about complaints relating to damp and mould. The letter requested that they adopt a proactive zero-tolerance approach as recommended in the Spotlight Report from October 2021. Landlords were asked to assess themselves against 26 recommendations, engage with residents during the process and publish the results. The letter also warned against the use of inappropriate language, such as blaming the resident’s lifestyle.

In July 2020, the Draft Building Safety Bill was presented to Parliament. The bill included provision for the removal of the ‘democratic filter’ before they could access redress via the Housing Ombudsman. During 2019-20 only 6.9% of cases entering the Ombudsman’s formal remit had been referred by a designated person. On 1 October 2022, changes to The Housing Ombudsman Scheme took effect and the ‘democratic filter’ was removed. This ensured that social housing residents had unrestricted access to an Ombudsman.

Following the change, the Housing Ombudsmen using their powers under Section 49 are investigating to establish if there’s evidence of systemic failings. The Housing Ombudsman Special Report on Birmingham City Council published in January 2023 found a maladministration rate of 96%. Further investigations with other social landlords are ongoing with others expected.

With the focus of claimant solicitors now turning to other revenue streams following the 2021 whiplash reforms and COVID-19 business interruption claims, housing disrepair claims are now in the crosshairs of many of these firms as an alternative.

My colleague, Richard Lumby, technical and audit manager commented on this matter, explaining that “The appetite of any claimant law firm to enter the market or remain there will largely be driven by the desire to maximise costs. With the proposed shift to fixed recoverable costs in the next two years, one must assume this will dampen interest amongst proposed entrants and lead to a more streamlined approach amongst existing firms as we saw when the principle was applied to personal injury claims back in 2013.”

Another colleague, Victoria Full, technical and audit manager shared that “Up until these changes are implemented, we expect that track allocation and costs will remain a contentious issue as highlighted by the issues in the County Court decision in Jalili v Bury Council (17 June 2021). Jalili-v-Bury-Council-Manchester-CC-Judgment-20210617-V-Final.pdf (civillitigationbrief.com)

According to The English Housing Survey (2021 to 2022) published, 19% are within the private sector with a further 17% in the social rented sector. The Headline Report noted various interesting points including that in the private sector 23% of homes were deemed “non-decent” compared with 10% in the social sector and problems with damp were most prevalent in the private rented sector with 11% of dwellings having reported a problem in 2021. It’s considered that the private rented sector will be the main source for these types of claims.

The housing quality and condition report provides a range of useful data, including the types of property where disrepair is more likely to be a problem and also provides a breakdown by region.

Dan Peck, Sedgwick’s regional director for complex liability commented: “It’s not just damp and mould that can cause an issue. Floors, stairways and banisters that are poorly maintained can cause falls which could lead to far more than a housing repair claim as significant injury could occur. With the ongoing cost of living crisis, landlords could be left with a double-edged sword. There will be less money to fund the cost of the necessary repairs to keep the property fit for habitation and the tenants unable to fund the costs of the required rental increase to meet the costs of repair.”

In an effort to improve the UK’s housing stock, the Government passed The Homes (Fitness for Human Habitation) Act 2018 that came into force on the 20th of March 2019. The act amends the Landlord and Tenant Act 1985 sections 8 to 10 and inserts a new s.9A, s.9B and s.9C.

The act applies to all new tenancies of a term less than seven years (including new periodic tenancies) granted on or after the commencement date as well as to all tenancies that began as a fixed term before the commencement date but become a periodic tenancy after the commencement date.

The Forum of Insurance Lawyers’ disease sector focus team says that liability claims for injury generally involve sums of less than £5,000, although there are occasionally larger amounts. What often happens is that a claim is made for financial recompense off the back of housing disrepair claims, then if the surveyor appointed finds mould, it could also give rise to financial compensation for associated respiratory injury also.

We’ve already seen a handful of cases and it’s considered that this may become a prevalent issue for liability insurers, particularly because of social conditions. However, the low compensation levels involved make the cases less attractive to claimant firms.

Regulatory framework

Prior to the 2018 Act landlords were required to keep properties “in repair”, as opposed to being “fit for habitation”. If a property has a defect that isn’t classed as ‘disrepair’ because the property has never been in a better condition (such as inadequate ventilation that leads to excessive condensation), the landlord was not obliged to improve its condition. The 2018 Act sought to close this loophole.

As set out in s9A(4), this can’t be avoided or contracted out of by the landlord, nor can any contractual penalty be levied on the tenant for relying on the covenant.

The act supplements s.11 LTA 1985 and requires that the property let remains fit for human habitation. The amended s.10 provides a definition of fitness of ‘for human habitation.’

We anticipate that this will — in the event of a claim — take some interpretation on the facts of the case but will be compared to the current list of 29 HHSRS hazards. Regard will need to be given as to whether a property is unfit, and also whether there’s a risk of harm to the health or safety of the occupiers.

We are reasonably confident that the doctrine relating to liability for unfitness as set out in O’Brien v Robinson [1973] will still apply; being as there are no express provisions in the Act on notice to the landlord, which is the case in S11 of the Landlord and Tenant Act.

In saying the above, for any unfitness arising from the landlord’s retained parts (common parts or exterior of a building of which the dwelling is part), the landlord will be deemed to be on notice as soon as the unfitness arises, and liable after a reasonable time to remedy the defects – Edwards v Kumarasamy [2016] refers.

Additionally, there are exceptions to the landlord’s duties under the act, including:

  • The landlord is not responsible for unfitness caused by the tenant’s failure to behave in a tenant-like manner, or that results from the tenant’s breach of covenant
  • The landlord isn’t obligated to rebuild or reinstate the dwelling in the case of destruction or damage by fire, storm, flood or other inevitable accident
  • The landlord isn’t obligated to maintain or repair anything the tenant is entitled to remove from the dwelling
  • The landlord is not obligated to carry out works or repairs which, if carried out, would put the landlord in breach of any obligation imposed by any enactment (whenever passed or made) – this would include things like breaching planning permission, or listed building consent, or conservation area requirements
  •  Where the needed works require the consent of a third party (e.g., a superior landlord or freeholder, a neighbouring leaseholder or owner, or a council) and the landlord has made reasonable endeavours to get that consent, but it has not been given

The Pre-Action Protocol for Housing Disrepair Cases will apply for cases of disrepair including personal injury to the occupants.

Conclusions

It’s considered the spotlight on these cases due to the recent media interest will have a far-reaching impact on the conditions of housing stocks especially in light of the recent open letters to all social housing landlords and can only be good for a tenant in dealing with bad landlords. Time will tell as to how this impacts claims for injury caused by disrepair, in particular with the removal of the reliance that the property was in poor condition at the start of the tenancy. It’s reassuring that the notice doctrine remains and that other defences are still available.

The main reason for optimism for liability insurers is the realisation that if such appalling cases such as Awaab Ishak’s start happening more often, then the subject will quickly rise to the top of the social agenda and landlords will receive much greater scrutiny.

Special thanks to Victoria Full, technical and audit manager; Dan Peck, regional director for complex liability; and Richard Lumby, technical and audit manager for their valuable contributions to this blog.