during Covid-19 David Renton, Garden Court Chambers Catherine - - PowerPoint PPT Presentation

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Fitness for Human Habitation and works during Covid-19

David Renton, Garden Court Chambers Catherine O’Donnell, Garden Court Chambers 21 May 2020

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HOMES (FITNESS FOR HUMAN HABITATION) ACT 2018

David Renton, Garden Court Chambers 21 May 2020

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Scope and effect

• Applies to leases, i.e. all fixed term tenancies for a term of less than 7 years (Landlord and

Tenant Act 1985 s9B(1)), and all periodic tenancies

• Does not apply to licenses or long leases
• Applies to all new tenancies from 20 March 2019 (LTA 1985 s9B(5))
• Applies to any replacement or renewal tenancies, as they are renewed, from 20 March 202o

(LTA 1985 s9B(6))

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Nature of protection

The Act sets out various possible sources of unfitness:

• repair,
• stability,
• freedom from damp,
• internal arrangement,
• natural lighting,
• ventilation,
• water supply,
• drainage and sanitary conveniences,
• facilities for preparation and cooking of food and for the disposal of waste water;
• in relation to a dwelling in England, any prescribed hazard.
• A home is “unfit for human habitation if, and only if, it is so far defective in one or more of

those matters that it is not reasonably suitable for occupation in that condition” (s10(1) LTA 1985).

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Standard of unfitness

• For prescribed hazards, see “Housing Health and Safety Rating System Guidance for

Landlords and Property Related Professionals” : https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_ data/file/9425/150940.pdf

• Morgan v Liverpool Corporation [1927] KB 131:

“if the state of repair of a house is such that by ordinary use damage may naturally be caused to the occupier, either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation”

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Standard of unfitness

• Summers v Salford Corp [1943] AC 283:

Lord Romer: “either the top window in the front bedroom would have to remain permanently closed and remain permanently and increasingly darkened with dirt, or, if an attempt were made to open it for the purpose of ventilation or to clean it, the attempt could

• nly be made at the risk of serious bodily injury to the person making it” [298]

Lord Atkins: "... if the state of repair of a house is such that by ordinary user damage may naturally be caused to the occupier either in respect of personal injury to life or limb or injury to health, then the house is not in all respects reasonably fit for human habitation" [289]

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Standard of unfitness

Bedrooms infested with bugs (Smith v Marrable [1843] 152 ER 693), Defective drains (Wilson v Finch Hatton (1877) 2 Ex D 336), Plaster falling from the ceiling (Walker v Hobbs (1889) 23 QBD 458), Condensation dampness (Johnson v Sheffield (1994) LAG 16), A falling garden wall, which damaged a heating pipe in the house (Baillie v Savage [2018] EWHC 3035)

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Defences

Notice

• Morgan v Liverpool Corporation [1927] 2 KB 131
• Edwards v Kumarasamy [2016] UKSC 40
• O’Brien v Robinson [1973] AC 912 at 930
• Griffin v Fillet [1926] 1 KB 17, 21

Statutory defences (s9(2)(a) LTA 1985): claims may not be brought for:

• hazards arising by virtue of the tenant’s failure to use the premises in a tenant-like manner (cf

Warren v Keen [1953] EWCA Civ 1)

• rebuilding in the case of destruction or damage by fire, storm, flood
• works or repairs which require the consent of a superior landlord or other third party in

circumstances where consent has not been obtained following reasonable endeavours to

• btain it, and
• where the unfitness is wholly or mainly attributable to the tenant’s own breach of covenant

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Strategic considerations

• Is there scope to increase the amount of damages compared to disrepair cases?
• Need to liaise with Environmental health officers with expert knowledge of the Housing

Health and Safety Rating System

• Litigation where disrepair will not assist (design defects, health and safety flaws, certain kinds
• f pest infestation, whole building claims, foul smells)
• Overlap with disrepair / Equality Act
• Impact on homelessness law? (cf Section 210 Housing Act 1996 “In determining for the

purposes of this Part whether accommodation is suitable for a person, the local housing authority shall have regard to … Parts 1 to 4 of the Housing Act 2004”).

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Housing conditions: Works during Covid-19

Catherine O’Donnell, Garden Court Chambers 21 May 2020

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Guidance for landlords and tenants

Coronavirus (COVID-19) Guidance for Landlords and Tenants “The purpose of this advisory guidance is to support and encourage landlords and tenants in adopting a pragmatic, common-sense approach to issues that may arise in the current circumstances. Tenants have a right to a decent, warm and safe place to live - it is in the best interests of both tenants and landlords to ensure that properties are kept in good repair and free from hazards.”

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• Landlords’ repairing obligations continue
• Properties must be safe to live in
• Take a pragmatic and common sense approach to non-urgent issues which are affected by COVID-19

related restrictions

• Where reasonable, safe for [the tenant] and in line with other Government guidance, we recommend that

[the tenant] allow local authorities, landlords or contractors access to [their] property in order to inspect or remedy urgent health and safety issues

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Urgent health and safety issues

“Urgent health and safety issues are those which will affect your ability to live safely and maintain your mental and physical health in your home. This could include (but is not limited to):

• If there is a problem with the fabric of your building, for example the roof is leaking
• If your boiler is broken, leaving you without heating or hot water
• If there is a plumbing issue, meaning you don’t have washing or toilet facilities
• If your white goods such as fridge or washing machine have broken, meaning you are unable to wash clothes or store food

safely

• If there is a security-critical problem, such as a broken window or external door
• If equipment a disabled person relies on requires installation or repair”

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Consider LASPO “serious risk of harm”

LASPO 2012 Sch 1 para 35 allows the use of legal aid to bring a claim designed to remove or reduce a serious risk of harm to a tenant or a “relevant member” of the tenant’s family. The Lord Chancellor’s Guidance para 12.9 indicates that what constitutes a serious risk is context specific:

“In some cases, for example, those involving a deficiency such as a leaky gas boiler or dangerous electrical wiring the seriousness of the risk to the health of the client may appear a relatively clear-cut issue. In other cases, the seriousness of the risk of harm that the deficiency poses to health or safety will vary depending on the individual circumstances of the case. For example, the risk of harm to the health of a tenant who has a respiratory illness from damp may be greater than the risk to a tenant who does not.”

Para 12.10 provides a non-exhaustive list of factors which may be taken in to account when determining whether the serious risk test is met.

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Can non-urgent work be done?

Working safely during Coronavirus (COVID-19) (11 May 2020) Guidance for people working in, visiting or delivering to other people's homes.

• Nothing in law or guidance rules out the undertaking of works in people’s home which are not urgent, unless tenant or a family member are

self-isolating or shielding, even then works to remedy a direct risk to the safety of the household can be undertaken.

• Extra precautions should be taken where a tenant or household member is vulnerable (aged 70+ and those with some underlying health

conditions).

• Employers and self-employed must carry out a Covid-19 risk assessment in relation to the workplace and take preventative measures.
• Detailed advice on safety measures to be taken when working in people’s homes, including where more than one person is needed to

perform the work

• The working environment and practices should be discussed with householders in advance to confirm how the work will be carried out, if a

physical visit is needed.

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• Government advice to landlords also suggests non-urgent work can be done

“Where reasonable and safe for you, and in line with other Government guidance, you should make every effort to review and address issues brought to your attention by your tenants, and keep records of your efforts.” Coronavirus (COVID-19) Guidance for Landlords and Tenants

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Landlord’s policies

Residential Landlord’s Association (20 May 2020) “Everything needs to be done to keep contact between people to an absolute minimum. That is why we believe that there should be a temporary suspension of all but essential repairs and maintenance on rental properties.” London and Quadrant To help tackle the spread of the coronavirus and keep you safe, we’re taking emergency repairs requests only at present. … We are keeping under review what repairs we can carry out in line with the government’s longer-term lockdown exit strategy and advice from Public Health

• England. Although the government has lifted some restrictions, social distancing is still in place – and this is very hard to achieve when we come into your home.

… Here’s what we mean by emergency repairs in your home: where there is no heating in your home where your home has no hot water or no water at all where there is no electricity to your home or kitchen where harm to you or damage to your home is likely, such as an uncontainable water leak, serious damage to a roof or a WC that is leaking or can’t be flushed with a bucket or bowl where there is a security risk to your home and no other way in or out where a lift in your home isn’t working

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“To protect both our residents and our staff, we are not currently undertaking routine repairs inside residents’

• homes. We will continue to undertake emergency repairs where there is a risk to the resident or a possibility of

serious damage to your property.” “Emergency repairs include things such as:

• unsafe power sockets or electrical fittings
• loss of water, power hot water, or heating
• blocked drainage, sinks and baths
• toilet not flushing, where there is only one toilet
• leaks from a roof, pipes or cistern, where this cannot be contained
• insecure external doors, windows or locks
• detached bannisters or handrails”

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Minister of State for Housing, Letter to all residents of social housing, 18 May 2020 “Many landlords have had to prioritise the repairs they provide. As we start to ease lockdown measures, landlords should be able to carry out routine as well as essential repairs for most households. There will be a backlog of repairs that they will need to address, so it may take longer than normal to carry out more non-essential work. However, please still contact your landlord if you think they need to carry out a repair.”

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Housing Ombudsman

Guidance on best practice for landlords during Covid-19 (8 April 2020)

Dealing with repairs “The majority of landlords have moved to emergency repairs only. This has involved placing current and ongoing non-emergency repair requests on hold. The Ombudsman would expect landlords to continue to show regard for the most vulnerable residents when assessing which new repair request should be carried out.

• For landlords operating an emergency repairs only service or those that continue to operate a more extensive service, the normal service

standards should continue to be adhered to where possible with timeframes being met and updates and explanations being provided to residents where there have been or are likely to be any delays.

• In instances where repairs cannot be undertaken or completed due to current circumstances, this should be clearly explained to the

resident….”

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Complaints about repairs … “If the complaint is about a landlord’s application of the revised approach, ie its failure to identify a repair as being ‘urgent’ or the timeframe in which a repair has been competed, landlords should consider the complaint carefully. Landlords are still providing a service and must consider the reasonableness of a service that has been delivered under the revised approach. The Ombudsman would expect remedies to continue to be applied appropriately to situations where any delays are due to the actions or omissions of a landlord. The Ombudsman would not consider it necessary, or a reasonable expectation

• n a landlord, to offer compensation for any delays in service that are solely due to the Covid-19 restrictions over which

a landlord has no control.”

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Regulator of social housing

“Across the sector, the shared priority is to maintain tenant safety, including addressing emergency repairs and compliance with health and safety requirements. The impact of the outbreak, and the measures to contain it, may mean that there will be some incidence of statutory non-compliance and repairs backlogs. I want to assure you that we will take a proportionate regulatory approach and will take full account of the current context. …Where providers believe tenant safety is threatened or viability is under strain, they should contact us immediately, and specifically we will expect providers to notify us when:

• either as a result of access issues, or a shortage of staff, you are unable to deliver a minimum service to your tenants.

For example, if you are unable to complete emergency repairs or statutory health and safety requirements, and a material backlog of outstanding repairs and safety checks are building up;” Regulator of Social Housing, Letter to private and local authority registered providers, 26 March 2020

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Government guidance: Gas and electrical safety

“Landlords should make every effort to abide by existing gas safety regulations and electrical safety regulations which come into force on 1 July*. There are provisions in both regulations to account for situations in which a landlord cannot do this … and they must demonstrate they have taken all reasonable steps to comply with the law.” Coronavirus (COVID-19) Guidance for Landlords and Tenants

• Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020. In fact they come into force on 1 June

2020 but requirements have to be met in relation to new tenancies granted by private landlords (as defined in s122(6) Housing and Planning Act 2016) from 1 July 2020, and in relation to existing tenancies from 1 April 2021

• See also Gas Safe Register website - Coronavirus (Covid-19) Advice and Guidance (13 May 2020)

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Getting works done

• Getting evidence of defects – surveyor necessary/available?
• Client willing to have necessary works done? Client’s level of risk carefully considered?
• Refer to government guidance in pre-action protocol letter
• Emphasise urgent/emergency work
• Consider impact of defect(s) on client and their household. Look at the overall impact of disparate defects
• Consider age and any disability of client and household
• Social landlord duty to comply with PSED
• Reasonable adjustment to policies where tenant has a disability
• Practical issues
• Availability of tradespeople. Usual contractors of social landlords – staff illness, self-isolation etc. Other providers?
• Can safety requirements for workers and household be met? Risk assessment following the guidance
• Think creatively - Video inspections. Interim solutions

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Injunctions

• Consult civil court listing priorities, Priority 1 work that must be done currently includes injunctions (emphasis on

those with a real time element) and “enforcement work” (w/c 18 May 2020) .

• Judge will look at all applications to decide whether they will be listed.
• Enforcement of existing order - Non-urgent works where date in order has been missed, applications to enforce (or

add a penal notice) less likely to succeed at the moment if landlord can point to substantial Covid-19 related issues. Costs consequences. Be pragmatic in agreeing extensions of time. CPR 81.5.

• Interim injunction for urgent works (including within possession proceedings PD51Z para 3):
• Real risk to health and safety
• Attempts to resolve. What landlord has said (need to keep careful records of suggestions and agreements)
• Works still possible within Covid-19 restrictions and government guidance

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Resources

Coronavirus (COVID-19) https://www.gov.uk/coronavirus Coronavirus (COVID-19) Guidance for Landlords and Tenants https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876500/Consolidated _Landlord_and_Tenant_Guidance_COVID_and_the_PRS_v4.2.pdf Working safely during Coronavirus (COVID-19) Guidance for people working in, visiting or delivering to other people's homes. https://www.gov.uk/guidance/working-safely-during-coronavirus-covid-19/homes Staying alert and safe (social distancing) https://www.gov.uk/government/publications/staying-alert-and-safe-social-distancing

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Guidance on shielding and protecting people who are clinically extremely vulnerable from COVID-19 https://www.gov.uk/government/publications/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from- covid-19/guidance-on-shielding-and-protecting-extremely-vulnerable-persons-from-covid-19 Gas safety: Covid-19 advice and guidance https://www.gassaferegister.co.uk/help-and-advice/covid-19-advice-and-guidance/ https://www.gassaferegister.co.uk/help-and-advice/covid-19-advice-and-guidance/landlords/ Guidance on best practice for landlords during Covid-19 https://www.housing-ombudsman.org.uk/wp-content/uploads/2020/04/Covid-19-Guidance-for-Landlords.pdf Regulator of Social Housing, Letter to private and local authority registered providers, 26 March 2020 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876127/RSH_letter_t

• _all_PRPs_and_LARPs_Flexing_of_regulatory_approach_26_March_2020.pdf

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Minister of State for Housing, Letter to all residents of social housing, 18 May 2020 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/885686/Covid19_Lett er_to_social_housing_residents.pdf COVID-19 (Coronavirus) and the enforcement of standards in rented properties (March 2020)https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876501/Local_ authority_rented_property_COVID_enforcement_guidance_v2.2.pdf

Thank you

020 7993 7600 info@gclaw.co.uk @gardencourtlaw