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!
