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Monday 18 March 2024

Awaab's Law - What when and how?

There has been a huge amount of media attention about Awaab’s Law following the tragic death of the two year old in Rochdale.

But what is this law all about? What will mean in practice? And will it meet expectations?

Awaab Ishak died on 21st December 2020, just days after his second birthday. His family were tenants of Rochdale Borough Housing. The home suffered from numerous defects, particularly damp and mould. An inquest into his death took place in November 2022. The Senior Coroner for North Manchester found that Awaab died as a result of ‘a severe respiratory condition caused due to prolonged exposure to mould in his home environment.’

This sparked a frenzy of calls for change, from the media and politicians. One heartbreaking image went viral -

In the wake of this, on 9th February 2023, Michael Gove, Secretary of State for Levelling Up, Housing and Communities announced Awaab’s Law. This would require social landlords to investigate and fix damp and mould within strict time limits. It would be achieved by amending the Social Housing Regulation Bill that was going through Parliament. The Social Housing Regulation Act 2023 came into force on 20th July 2023. Before we get too excited, this does not mean that we now have Awaab’s Law!

What the Act does is add a new s10A to the Landlord and Tenant Act 1985. It creates an implied covenant that relevant landlords will ‘comply with all prescribed requirements that are applicable to the lease’. This covenant will apply to social housing tenancies in England to which s9A Landlord and Tenant Act 1985 applies. It has nothing to do with the private rented sector. So, it is a contractual matter, in line with other housing conditions obligations. The covenant will be enforced through ‘actions for breach of covenant’.

The important bit of course concerns the actual time scales! These will be set out in regulations made by the Secretary of State.

A consultation was published on 9th January 2024 and has just ended. We do not yet have the regulations but the consultation gives us a pretty good idea of what to expect.

The relevant defects will be the 29 prescribed hazards contained in the Housing Health and Safety Rating System (HHSRS). This is wider than the ‘damp and mould’ that we expected. This is positive news and will include things; like security, water supply and heating etc. The consultation also has a subjective element which is welcome. The requirement will have to take into account ‘the actual resident’. So a resident who suffered from asthma will be at greater risk.

This is all good news for tenants… sort of.

The duties will be triggered by a significant risk. It will be for landlords to decide what is and isn’t significant. This is a worry. Won’t it lead to landlords deciding that in most cases there is no ‘significant risk’? The consultation mentions matters to be taken into account, such as -

HHSRS Guidance

The Government publication - Understanding and addressing the health risks of damp and mould in the home - GOV.UK (www.gov.uk)

Evidence from third parties such as doctors, social workers, schools…

I would expect many of the more aggressive landlords to deny everything. This is likely to end up in litigation. This will in turn mean a majority of cases being brought under a CFA with the risks that go with developing new areas of law, and which has led to, so few cases brought under s9A.

But leaving that rant side for a moment, what will the new ‘strict time limits involve’? As we know the present position is that a landlord is liable for disrepair once they know of the defect and fail to carry out remedial work within a reasonable time. How will this sit with new, enforceable fixed time scales? Is it the end of O’Brien v Robinson that was decided when I was doing my A Levels?!

This is how it will work –

1.     Landlords will be required to investigate a hazard with 14 days, which begins to run from the time they are aware of a potential hazard. This will probably mirror the current position in notice and will not be limited to actual complaints. Reports of hazards must be recorded. Interestingly, there will be no requirement for a physical inspection, unless requested by the tenant. Medical evidence will not be required.

A welcome note – ‘72. When investigating reports of damp and mould, it is crucial that the issue is not simply dismissed as a resident’s fault’. Will this finally see the end of that myth?

2.     Following the investigation a written report must be sent to the tenant with 48 hours

3.     If the investigation indicates that a reported hazard poses a significant risk to the health or safety of the resident, the registered provider must begin repair works within 7 calendar days of the written summary being issued. This has to be real work! ‘We consider that ‘beginning’ repair works would entail a worker being on site physically starting to repair and rectify a hazard. It will be irrelevant whether works are carried out by in-house workers, external contractors, or a combination.’ So it involves a worker turning up with tools!

4.     So doing the maths; 14 days plus 2 days plus 7 days = 23 days. So far so good! But what about finishing what we started?

B  Then we start to go downhill. 

Proposal 4: ‘The registered provider must satisfactorily complete repair works within a reasonable time period. The resident should be informed of this time period and their needs should be considered’

 


 Hang on! So have we huffed and puffed and ended up back where we started? The spin has been that landlords will have to ‘fix damp and mould within strict time limits’. It has to start within the 23 days but after, that the position is no different from now. Is it all that it has been cracked up to be? In one sense this was inevitable. How can you have a strict time-table for fixing a window catch as compared to a new roof?

There is a real danger that we will all settle down to things belong as they always were.

There are positives. The rules will mean that things will move quickly in the early stages. Reporting hazards will be nothing to do with any complaints procedures -  ‘63. The point at which the registered provider becomes aware of a potential hazard is the point at which legal obligations under Awaab’s Law will begin. It will not be necessary for residents to take a complaint through a landlord’s formal complaints procedure in order to trigger the timescales’.

The initial steps must be taken. They are not part of a new protocol. Failure to meet the deadlines will go to the heart of liability.

We expect the regulations to land soon. My biggest hope is that firms will be encouraged litigate condensation/mould cases and other s9A cases. That particular momentum cannot now stop…

Watch this rather big space!

 

 

 

 

 

 

 

 

 

Wednesday 17 January 2024

Personal Inury and Housing Conditions

Thursday 25th January 2024 at 12.00 – 13.30


 


Housing conditions cases can often include a claim for Personal Injuries whether arising out of an accident or, more often, health related issues. So if someone falls down the stairs and breaks their neck because of a defective staircase they could well have a strong case! Equally if a tenant lives in a home affected by dampness and mould they can develop respiratory conditions such as aggravation. This can be a significant issue. The 16th edition of the Judicial College Guidelines for General Damages in Personal Injury Cases suggests damages up to £5150 for ‘Mild Asthma, bronchitis, colds and chest problems (usually resulting from unfit housing or similar exposure).’

These are likely to increase as more cases are brought in relation to condensation and mould under s9A Landlord and Tenant Act. Recent press coverage of cases involving injury and death caused by mould has brought such issues to the fore.

This webinar will look at how we most effectively manage these cases and will include.

·      A brief introduction to liability for Personal Injuries in Housing Cases inc. s4 Defective Premises Act 1972
·      Paragraph 3.5 Housing Conditions Protocol and the Personal Injury Protocol
·      How do we assess whether –
(a)   A GP letter is likely to be enough
(b)   The GP letter can be relied on
(c)    Causation
·      The Personal Injury Protocol
·      Limitation
·      Costs and allocation – what about QOCS?
·      Quantum


The webinar is £90 per firm with no limit on numbers


The event is free to non-profit agencies and any form holding an annual ticket.
Email me to book a slot at stevecornforthconsultancy@gmail.com

The event is free to non-profit agencies and any firm holding an annual ticket.
Email me to book a slot.

Monday 19 June 2023

50 Years of fighting for Justice - Vauxhall Law Centre

 


It was a privilege, earlier this month, to speak at the opening event of the 50th anniversary celebrations for the Vauxhall Law Centre in Liverpool. I was Solicitor at the Law Centre from 1980 – 1983. It is a scary thought that I left almost 40 of those 50 years ago! The centre opened in 1973 and was in effect a joint venture between Liverpool Law Society and Liverpool City Council. 

Access to Justice was always the primary aim. But 50 years ago the problem of such access was a bit different from today. This is an extract from the initial Constitution –


The unmet need was all about the absence of local solicitors. This was a time when Legal Aid funding was widely available, especially via the famous Green Form Scheme under which legal advice on virtually any legal topic could be provided free of charge, or a modest contribution. I regularly used the scheme to assist with Welfare Benefits Advice, Debt and of course Housing Conditions. But there were no local lawyers...

The centre was also partly funded by the City Council who covered running costs and provided the initial accommodation in Sylvester Street. It is fair to say that this was always a running issue for the centre. As early as 1976 there were proposals to end this relationship. This led to an intervention from Sir Christopher Hewitson, then President of Liverpool Law Society and later national President. This made the local press –


 This battle continued for many years including once during my time in 1982 when Liverpool Law Society again came to the rescue.

I mention this now to demonstrate what a remarkable achievement it has been for the centre to get to a half century in the face of these trials! The challenge of providing access to justice has changed dramatically, particularly since 2013 and the huge reduction in legal aid availability.  At a time when more and more people are desperate for legal help there have never been a greater need.

The Law Centre is now a Charitable Trust which has benefited from funding from the Liverpool Legal Walk – watch this space! – the John Moore’s Foundation and individual support such as from Ian Byrne MP, West Derby, who donated his payments received as a City Councillor after election to Parliament. A strong team of solicitors, case workers and volunteers provide heroic work to those in need. I particularly want to mention David Taylor who joined in 1989 and is still going strong to this day... 

In my speech I briefly mentioned the history and importance of a community working together for justice. I also mentioned the powerful partnership of the Law Centre and the Liverpool legal profession. I have seen from my involvement in the Liverpool Law Society’s Access to Justice Committee and the Legal Walks that the city has led the way for many years. Long may this continue…



 


Thursday 24 November 2022

Condensation and Mould - it is time to litigate!

 


There has been a lot said about condensation and mould following the tragic case of Awaab Ishak. I am not intending to comment on that particular case here, apart from this - how this can have happened in the UK, in 2020? In fact, as we will see, this is not a recent problem.

Let’s go back to 1986 and the case of Quick v Taff Ely Borough Council [1986] Q.B. 809. The court of Appeal decided, reluctantly, that work needed to remedy condensation was not a ‘repair’ for the purposes of the landlords’ duties under s11 Landlord and Tenant Act 1985. Dillon LJ explained the problem –

‘There has for years been very severe condensation in the house, which has rendered the living conditions of the Plaintiff and his family appalling...the condensation came about from the warm air of the environment in the rooms reaching the cold surfaces of the building…I would conclude that, by modern standards the house was in winter – when of course the condensation was at its worst – virtually unfit for human habitation’

The appeal judges found that, in the absence of identifiable disrepair, the case could not succeed. This was a big blow to those of us of a certain age (!) who were running disrepair cases back then. But the Court made some observations that are often overlooked and very relevant today.

Dillon LJ continued -

‘When I read the papers, I was surprised to see that the plaintiff had not based his claim on an allegation that at all material times the house let to him by the defendant council had not been fit for human habitation…I was even more surprised to be told by counsel…’

 

What counsel told him was that was in fact, no enforceable cause of action for tenants in relation to fitness. There was a useless duty in relation to properties let at a low rent but nothing else. So, 36 years ago the Court of Appeal acknowledged that condensation and mould were capable of rendering a home unfit for human habitation. But as a matter of law, there was nothing a tenant could do, by way of a civil claim.


Fast forward to March 2020 – yes 34 years later.  This was when, after tireless work from housing lawyers and politicians*, the Homes (Fitness for Habitation) Act 2018 was rolled out. This created a new duty, by way of a new s9A Landlord and Tenant Act 1985, on landlords to ensure that a home -

 (a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b) will remain fit for human habitation during the term of the lease.



A new s10 sets out defects that can make a home unfit. One such defect is a ‘prescribed hazard’ in England (see below for Wales**). These 29 hazards were created by the Housing Health and Safety Rating System (HHSRS) via the Housing Act 2004. They were standards to be used by local housing authorities in relation to action that they should take but were not directly enforceable by tenants. Until now.

 

Hazard number 1 is Damp and Mould. Alongside the HHSRS was an Operating Guidance which leaves us in no doubt about the dangers of mould -

 

“Many moulds and fungi (including timber attacking fungi) can be allergenic. The spores can also be carcinogenic, toxic and cause infections; the potential health effect varying with species. Some fungi, particularly when in very high concentrations, can also colonise the airways of susceptible individuals, particularly asthmatics. Toxins from some moulds (mycotoxins) can cause nausea and diarrhoea, can suppress the immune system, and have been implicated in cancers. Although uncommon, these are serious if they occur” 


The guidance goes on to refer to the risks to mental health.

Mould is nasty. It is a danger to health. Knowledge of the danger is nothing new. What is new, is that there is now a legal remedy. Failure to take action to resolve mould, whether caused by condensation or other defect, can be a breach of the landlords’ duties under s9A.

It is frustrating therefore that there have been so few cases. None have reached the higher courts to my knowledge. This was partly due to the pandemic.  The 2018 Act came into effect just as we were going into the first lockdown. But I also think that there has been a reluctance to pursue litigation in relation to these ‘new duties’. This article is an unashamed call for this to change. The rights are new but as we have seen the problem is far from new. Knowledge of the dangers of mould is not new. The duties are clearly set out s9A and s10. This is an urgent matter. All of the building blocks are in place. I think the time has come for fitness for human habitation to be a primary driver in housing conditions cases.

www.stevecornforth.com 

*Notably, Giles Peaker (aka Housing law reports and analysis - Nearly Legal: Housing Law News and Comment) and Karen Buck MP

**Wales has her own housing standards, and the Renting Homes (Wales) Act 2016 is due to come into force in December 2022.

 ps I am presenting a webinar on 16th December 2022 developing these thoughts further. Contact me on stevecornforthconsutancy@gmail.com for details


www.stevecornforth.com

 

Quick v Taff-Ely Borough Council | [1985] 3 WLR 981

Tuesday 4 October 2022

A Tale of Two Cities - Walking for Justice

 




On Tuesday 27th September 2022, a record 285 lawyers took part in the Liverpool Legal Walk around the Liverpool City Centre and waterfront. They gathered at the QEII Law Courts and made their way around the city, along the Royal Albert Dock and then enjoyed a well-deserved drink at the Lady of Mann in Dale Street. The event has raised £7471 to date from sponsorship plus an extra £190 from raffle ticket sales. The latter was certainly boosted by my new favourite toy – a card reader!!

The pot was also helped by my friend Caroline who offered to chip in a three-figure sum if I wore a Crystal Palace FC shirt. I have done far worse than this for the cause and was happy to oblige!


The following day I braved the M62 motorway for the Manchester legal walk. I was there as chair of the North West Legal Support Trust, to meet and greet the happy walkers and ‘say a few words’ which is an interesting concept for lawyers! Over 300 walkers took part and this event has raised about £5k to date with more to come!


We would hope that the two walks will raise a total of about £20k.

Why do we do it?

Firstly, it is no great sacrifice to spend a pleasant autumn evening walking around two of the country’s leading cities!

Secondly, and more seriously, there has never been a greater need. As the cost-of-living crisis deepens, ordinary people are facing desperate problems relating to housing, debt, benefits, employment… Law Centres and similar agencies are right on the front line providing direct support to those in need. For example, the Vauxhall Law Centre in Liverpool has this week, provided a drop-in advice clinic for those concerned about energy bills.

 

These services are provided free of charge, across the country.

Centres like this provide a critically important service. They are almost entirely supported by donations. As demand grows, so does the need for strong support. This need has become far greater since the availability of legal aid was severely restricted in 2013.

One real encouragement from both these walks was seeing the strong representation across the profession. The Liverpool Walk was led, for the second year, by HHJ David Hodge KC. Both walks saw members of some of the country’s biggest commercial law firms alongside small firms, volunteers, law students and the bar. Trekking around city centres to support justice gives a whole new meaning to Activist Lawyers.

The giving page remains open unto the end of the year. Every £1 counts!!

https://atjf.enthuse.com/pf/steve-cornforth-aadcc

www.stevecornforth.com

 


Thursday 23 June 2022

Let's all go down the Strand - London Legal Walk 2022

 On Tuesday next week – 28th June – I will be getting the train (I hope!) to London to do my second London Legal Walk. Last year I did it as part of my trio of legal walks in Liverpool, Carlisle and London. This year it is just London and then of course Liverpool in September.

The London walk is a unique experience. In 2021 there were 8500 walkers across 650 teams. Walkers include the Lord Chief Justice, members of the Supreme Court, Members of Parliament and celebrities including the legend that is Judge Rinder.

Why do we do it?

The 2022 walks come at a time when the need for free legal help has never been greater. As we head deeper into the cost of living crisis, people need help with advice on debt, housing, welfare benefits, employment and of course immigration. Law Centres and similar agencies perform a heroic service for the country in meeting that need. They are able to keep their doors open because of the support that they get from the legal profession and from charitable trusts.

My first job as a real lawyer (!) was at the Vauxhall Law Centre in Liverpool. We thought we had it tough. But with local authority funding and legal aid, we didn’t know we were born! Vauxhall is still providing fantastic support for people in inner city Liverpool –



Or how about this from the other side of the country in Suffolk –



This is the sort of work that is done across the country. Much of it gets little publicity. Where would we be without it!

The legal walks are part of the heartbeat of centres like this.

This is why we do it!

This year I am walking with a team from the Society of Labour Lawyers. You can support the cause by visiting this link –

https://londonlegalsupporttrust.enthuse.com/pf/society-of-labour-lawyers

Every penny, or fiver, or more counts!

If you are doing the walk I will be at the Knights Templar Pub from about 3.30pm. Come and say hello and share a selfie!!








Tuesday 19 April 2022

Good news for Claire - let's hope that this changes everything

 

It was just over two years ago that I wrote about the disturbing case of Claire Matthews who found herself struck off after leaving a briefcase on train. Her desperate attempts to try and retrieve the situation ended badly –

https://thestevecornforthblog.blogspot.com/2020/04/in-which-losing-briefcase-turns-out-far.html

The disciplinary tribunal referred to the damage to the reputation of the profession –

“The damage to the reputation of the profession by the Respondent’s misconduct was significant as the public would trust a solicitor not to conceal the loss of data by telling untruths to their colleagues and their employer. The Respondent’s conduct was a significant departure from the complete integrity, probity and trustworthiness expected of a solicitor.”

I commented at the time that her treatment was a stark contract to that of a senior member of the bar who was suspended after headbutting a junior, female colleague.

There was an understandable outcry about the way Claire had been treated. It was particularly disturbing that there had been little consideration of her mental health.

Leigh Day and three leading barristers agreed to act for her pro bono. In March 2021 the Law Society Gazette reported that following submission of medical evidence, her case was to be referred back to the SDT –

https://www.lawgazette.co.uk/news/struck-off-junior-solicitor-claire-matthews-to-have-case-re-heard-by-sdt/5107883.article

We have now had the news that the entire case against her has been dropped. She can restart her career. This is clearly good news for her. It is a credit to her that she has continued the fight. It is also a credit to the profession that the almost unanimous cry that this was wrong has been heard. But it is a shame that it came to this. We have to ask what has damaged the reputation of the profession; a simple mistake in extremely difficult circumstances or the pursuit of a young lawyer who presents no risk whatsoever? I think that some damage has been done. Most non lawyers who were aware of the story, shook their heads in disbelief.

If anything, positive comes from this it must be that there is a seismic shift in the way the legal profession treats threats similar cases. It is easy to criticise the SRA, SDT, employers etc. But to some degree don’t we all need to accept some responsibility.

There is now a refreshing move towards openness about mental health issues. I remember the time when it was a sign of weakness to admit to problems that can affect us all at some time. We must never again punish lawyers who are then become afraif to admit mistakes. All firms and chambers should actively promote a culture of openness and support.