The Challenges Fitness for Human Habitation Poses to Housing Providers

Adam Fudakowski, CEO, Switchee

Housing Associations will need to rethink how they approach repairs and maintenance to their housing stock if they are to successfully navigate any future litigation from tenants for disrepair. Housing Associations have been warned that they have to upgrade homes which could fall foul of the new Homes (Fitness for Human Habitation) Act.

The new law, which strengthens tenant’s rights to bring action against landlords for homes considered unfit for human habitation, currently only applies to new tenancies of less than seven years, however, the law will apply to all tenancies as of 20 March 2020. James Bates, housing lawyer and barrister for Landmark Chambers said he expected Housing Associations to fall foul of the new laws, mainly due to the sheer number of properties on their books which need to be updated.

Speaking on Inside Housing’s housing podcast Mr Bates warned: “Housing Associations are going to get sued. “The size of their stock means it is inevitable that some will not pass this test [of the new Act]. I don’t think how you can see it would be acceptable to let properties which are unfit for human habitation. This is not a new test, this is law from the 1800s which we’ve simply updated… The 2015/16 English Housing survey noted that 244,122 social homes and 794,600 private rented homes may fall under properties with a Category 1 hazard under the HHSRS defined as “serious and immediate risk to a person’s health and safety”.

Everyone should be geared up and ready to handle their tenancies that now fit under this banner.

The new law came into the spotlight last month after a documentary by Channel 4’s Dispatches showed tenants living in unfit conditions in many homes owned by social and private landlords. The revelations from the Dispatches programme showed that issues common to many Housing Associations, such as the prevalence of damp and mould, could see legal bills soaring as tenants claim their properties are unfit.

Condensation, damp and mould (CDM) has been identified as one of the most common problems tenants may claim against their landlord. Many housing associations are looking to address the problem including Peabody, which undertook a pilot project with Rickaby Thompson Associates to evaluate how to find long-term solutions to CDM problems at their properties at Thamesmead. Hundreds of homes in Thamesmead were included in the pilot CDM strategy. The subsequent report recommended that Peabody extends its risk assessments to identify homes at risk of CDM, carry out CDM and ventilation surveys, and deploy monitors such as the Switchee energy monitor as part of an intervention package for low-risk homes. The latter action was recommended to allow social landlords an in-depth review of data on property performance and inform any future estates strategy. If left unaddressed however issues covered in the new law such as CDM, or excess heat or cold, could have far-reaching consequences for housing providers. Following the Channel 4 programme Worcester-based Sanctuary, the Housing Association mentioned in the programme has referred itself to the regulator for social housing (RSH) following the claims.

This act will affect all housing providers, all over the country.

James Tickell, partner at consultancy Campbell Tickell said that, if deemed extensive enough, then the regulator for social housing may take an interest in fitness for human habitation cases, which could be reflected in an association’s governance measure. He said: “The regulator would not step in themselves with these cases but if an Association found they had enough of these problems come up, either with legal action or not, they may feel they need to self-refer… In that case yes it could have issues in terms of governance down the line. The problem with a lot of HA’s is that they are a mix of different stock, most of which are inherited from mergers.”

Although Housing associations have a year before claims under the new law can be applied to all existing tenancies some, such as Notting Hill Genesis (NHG), are preparing to both monitor their existing homes to pre-empt potential problems as well as enhance their stock. Thomas Kearney, head of assets, framework – repairs at NHG, said: “It is likely that the Act and its amendments will continue the upward surge we have seen in the number of disrepair claims and we are expecting to receive more claims.

“The new law isn’t really changing what residents could have said or complained to us about in the past, but it does in a number of cases provide a different route. Previously tenants could have used environmental health officers to raise issues through issuing improvement notices but now they can go through the disrepair route. We have however seen that Social media claims management companies are already targeting advertising to our customers and we anticipate this trend will increase over the coming months… Going through legal disrepair comes with it financial implications from other solicitors – you can receive and environmental health order and complete the work and there may be a small amount of compensation to the other party but the aim of the order is to improve the home. With disrepair you have solicitors who actively act on behalf of a client and pass on the cost of their services to you. This will significantly increase the costs we may face reducing what we can spend on investing in other homes.”


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