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Unprecedented sector changes for housing standards

To Let sign on terrace houses Print publication

21/05/2018

The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill (the Bill) passed its Second Reading at the beginning of 2018. The Bill has support from both landlord and tenant-focused organisations, who are eager for it to pass into law.  Housing Management and Litigation expert Karl Anders examines the basis of this legislative proposal and the implications for landlords.

The Bill in brief

In summary, the Bill seeks to modernise housing fitness requirements and extend them to cover most tenancies (private, housing association and local authority). It would do this by amending Section 8 of the Landlord and Tenant Act 1985 (the Act) to imply a term that a property is fit for human habitation at the outset of a tenancy (of a term less than 7 years) and also that it will remain so for the entirety of the tenancy.

Section 10 of the Act would also be amended to insert additional criteria to assess fitness for human habitation by reference to ”prescribed hazards”. It is envisaged that these hazards would be the same as those set out in Section 2 of the Housing Act 2004, which details hazards in accordance with the Housing Health and Safety Rating System (HHSRS).  It is the presence of these “hazards” which will determine whether a property is unfit for habitation.

Use of HHSRS hazards

The HHSRS is the predominant standard currently used by Local Authority Environmental Health Officers to determine minimum acceptable standards in a dwelling. Failure to attain the required standard may lead to local authority enforcement.

HHSRS is a complex assessment system which replaced the old pass or fail fitness standard in place from the mid-19th century, which was considered too rigid and unable to adapt to modern living environments.

HHSRS is a risk-based alternative assessment of housing conditions centred on scientific data governing 29 hazards, which have to be considered in relation to each dwelling. The system identifies hazards and then calculates the risk of harm associated with them.

The HHSRS system is by no means straightforward or effective and it has its critics. Concerns have been raised in relation to lack of consistency in the application of what is a subjective visual assessment of conditions with reference to scientific and statistical data which, it has been suggested, has not been updated (1). In addition, Local Authorities are increasingly lacking resources to enforce.

More claims

The intention of the Bill is to ensure that properties are let in a condition which is safe and without risk to health. It would enable tenants to take civil action against a landlord in the county courts to make landlords put right any problems or hazards that make the property unfit and also to obtain compensation when this is not done. The Bill could therefore open the doors to adviser organisations exploiting tenants in order to bring claims on their behalf, where the prime motivation is to generate financial gain for the adviser.

Local Authority Landlords

Local Authority landlords are potentially even more vulnerable if the Bill is implemented in its current form. Their stock has not previously been scrutinised by reference to the HHSRS. In the case of R v Cardiff CC ex p Cross [1], the Court of Appeal determined that a Local Authority cannot serve notice on itself. This has put council tenants at a disadvantage when compared to other social and private sector tenants, as Local Authority landlords have evaded direct assessment under HHSRS. This exemption would be removed under the draft Bill, although the proposal is for a 12 month grace period before the new legislation becomes enforceable against Local Authorities.

WM Comment

As things stand, there is a definite risk of an influx of claims being made, particularly against social landlords, who will no doubt be perceived as soft targets by tenant advisers chasing costs wins.

It is also worth noting that concerns as to the use of HHSRS have been highlighted in both a report produced by the University of Bristol and Kent commissioned by Shelter [2] and also in a more recent report of the Housing, Communities and Local Government Committee [3] which concluded, amongst other things, that HHSRS should be replaced with a more straightforward set of quality standards.

No one would argue that rented homes should be safe and without risk to health. However, any new legislation should be in a form which does not result in costly litigation surrounding the interpretation and implication of the legislative standards. In addition, a damaging side effect would be landlord’s limited funding resources being once again taken up with costly claims and litigation driven by firms whose motivation may not be focussed on the welfare and safety of their tenant clients.

Walker Morris has a dedicated Housing Management and Litigation Department, which includes a dual qualified Housing Solicitor/Environmental Health Officer who is authorised in HHSRS assessments. Please contact us should you require any further advice on housing standards or should you wish to sign up to our housing updates.

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[1] (1983) 6 HLR1, 11
[2] The report of University of Bristol and Kent entitled Closing the Gaps: Health and Safety at Home, commissioned by Shelter. Dated 14 Nov 2017.
[3] Report on the private rented sector, the Housing, Communities and Local Government Committee. Dated 19 April 2018.

 

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