Summary
Keith Jones, Disease and Local Government Partner is joined by Principal Associates Rachael Fawcett and Matthew Lake to discuss implications for landlords in the rented housing sector following the findings of the recent inquest in relation to Awaab Ishak and subsequent media interest.
Transcript
Keith Jones: Hello, and welcome to the latest law behind the headlines podcast. My name is Keith Jones and I'm a Partner in the Weightmans' national disease team. And today I'm joined by Matthew lake, Principal Associate in our property litigation team, and Rachel Fawcett a Principal Associate from our casualty team. Welcome both.
Rachel Fawcett: Thanks, Keith.
Matthew Lake: Thanks, Keith.
Keith: So today's topic relates to the recent media stories and coverage of the events in relation to damp and mould in the housing sector. It's obviously very much in the public eye following the tragic death of Awaab Ishak, a two-year-old boy who died as a result of A severe respiratory condition due to prolonged exposure to mould in his rented home.
Keith: The problems and effects of damp mould is something that all social housing landlords need to be alive to. Is that right, Matthew?
Matthew: That's right, Keith. Damp and mould are nothing new insofar as housing conditions claims are concerned. There are a number of reasons why damp or mould forms at a property. Some of them fall within a landlord's repairing obligations. Others don't.
Matthew: Historically, one major point of contention in housing conditions claims was mould and damp, which was a result of an inherent defect with the property. So in other words, the property was constructed defectively at the outset, meaning that damp and mould was more likely to form. In that context, provided the landlord treated the symptoms promptly before the structure was damaged by the damp mould, the tenant had no right of redress at law, and it was very unlikely that the tenant could compel the landlord to remedy the root cause of the problem. So as such, the damp and mould was more likely to return. And so the cycle continued.
Matthew: However, the landscape changed significantly following the introduction of the Homes (Fitness for Human Habitation) Act 2018 and that amended the landlord and Tenant Act 1985. So since 20 March 2019, in respect of new qualifying tenancies and since 20 March 2020, in respect of all existing qualifying tenancies, it's been implied into those tenancies that the property being let by the landlord will be fit for human habitation and that it will remain fit for human habitation for the duration of that tenancy. By qualifying tenancy, I mean a tenancy with a term of seven years or less.
Keith: Thanks, Matthew. So OK. What does that mean for landlords now then?
Matthew: So in very general terms. And whilst there are some technical legal exceptions, unless the damp and mould is the result of the tenant not using the property in a tenant-like manner or because of damage caused to the property by the tenant, there will be an obligation on the landlord to take such steps as necessary to repair the property to ensure it's fit for human habitation.
Matthew: And that may now include a requirement to undertake improvements to remedy the root cause of the problem rather than just treating the symptoms.
Keith: So that's quite a significant change. So what do landlords need to consider?
Matthew: Well, firstly, they need to give careful consideration to the cause of the damp and mould to ascertain if it falls within their repairing obligations. Whether it does or not, they need to consider what steps they propose to take to address the issues.
Matthew: If the problem is the result of the tenant's behaviour, landlords should still give careful consideration to how they can assist the tenant in better understanding that problem. And what they can do to assist them in addressing it so that the problem doesn't reoccur.
Matthew: If the damp and mould is a result of a matter that does fall within the repairing obligations of the landlord, then they should consider, first and foremost, what they plan to do to treat the symptoms and prevent that problem from reoccurring.
Matthew: Secondly, from the perspective of the claim itself, they should consider whether or not the conditions noted actually make the property unfit as a matter of law.
Keith: Right so, I mean, how do they go about doing that?
Matthew: Well, the property will only be unfit if it's so seriously defective as a result of the damp and mould that it's not reasonably suitable for occupation in that condition. So, putting that in context, if a property is suffering the effects of damp and mould in one bedroom of a three bed property, but the rest of the property is in good condition, arguably won't be unfit for human habitation.
Matthew: But if you put that to the other end of the scale, if the whole property is affected by severe damp and mould, clearly, then that's very likely to be unfit.
Matthew: Independent expert evidence is crucial, and that should be obtained as quickly as possible to assist the parties in understanding the position and identifying a solution.
Keith: Right so, I mean, in light of these significant changes, do you think there's going to be a likely increase in claims for this type of thing?
Matthew: There's already been a significant increase in the number of housing conditions claims that have been brought over the last 5 to 10 years. And that's partly due to changes in the cost rules in traditional EL and PL claims. Claimant firms are now searching for another source of work, which isn't currently subject to such stringent cost regimes.
Matthew: However, I do think that it will focus claimant firms' minds more on the attention to detail in fitness claims, specifically where perhaps before it might be something that they would be included in a letter of claim as a matter of course, but wasn't perhaps pursued actively with any real vigor.
Keith: Thanks, Matthew. Rachael, from a personal injury perspective, is this something that you think you'll see in relation to housing condition claims? Do you think there will be much of an increase in personal injury claims?
Rachael: Well housing condition claims, which also include a personal injury claim, are not unusual. They're not generally seen in high numbers, but they do exist. Causation in those claims can often be quite tricky to establish which make which may be a reason why we don't see a huge number of them.
Rachael: During the investigation inquest into Awaab Ishak's death, the coroner actually considered that there was a risk that future deaths would occur unless action was taken. And she reported those concerns to Michael Gove, Secretary of State for Levelling Up Housing and Communities, and Steve Barclay, Secretary of State for Health.
Rachael: And all of those issues have naturally attracted a huge amount of widespread media attention. The housing sector at the moment is very much in the spotlight. I've personally seen a number of news stories since November 2022 referring to injuries and health conditions, said to be arising from housing conditions, notably respiratory-type illnesses, said to be linked to damp and mould.
Rachael: The inquest is also being referenced in new claims being received by housing providers and landlords and their insurers. So in short, yes, I think it's likely to be a growth area for claims in this arena.
Keith: Thanks, Rachel. And I think there has been, obviously, as you've referred, widespread media attention in relation to these housing conditions. Do you think there are any other sort of issues or implications that may impact on the growth of claims in this area?
Rachael: As I said, the housing sector is very much in the spotlight at the moment. And it's got to be noted that we're also in a cost of living crisis and energy bills are soaring. And with those energy bills increasing, it's natural that people are making decisions in regards to the way in which they heat their homes or even, in fact, whether they do heat their homes. And we know that inadequate heating and ventilation are known contributing factors to damp and mould.
Rachael: So there's naturally going to be some concerns as to whether there could be an increase in claims relating from those sort of issues in terms of people turning the heating off. And that could lead to an increase in claims both from just housing conditions and those that perhaps may well have a personal injury element attached to them as well.
Keith: Thanks, Rachel. Matthew, do you think there will be any sort of other impact on landlords moving forward?
Matthew: In short, Yes. Just a few days ago, Michael Gove gave a speech in Manchester stating that Awaab Ishak's death reinforced the need for action and improvement in the quality of homes. He's promised £30 million to improve social housing and that's to be split between Greater Manchester and the West Midlands. That's a positive development for social housing providers in those areas.
Matthew: In response to the coroner's Regulation 28 report, again Michael Gove sets out plans to review and update policies and guidance relating to the housing sector. He's indicated an intention to introduce policy specifying time limits which landlords must meet in respect of investigating hazards and acting when there are health concerns.
Keith: Well, thanks, but that was extremely insightful. It's obviously a lot to consider. And as with many other leading and emerging trends and risks, this will be one to watch. And it's perhaps in more of an advanced stage than some of the risks that have come on the horizon recently.
Keith: I'm grateful to both of you for contributing today and obviously for all of you listening to this latest edition of law behind the headlines. Please subscribe to our channel so you can become alerted to the next podcast in the series. Please get in touch if you've got any queries or wish to discuss any of the issues that we've discussed today. Thank you very much.