Fitness for Human Habitation: Everything You Need To Know

Introduced as part of long-awaited reforms to tenancy and property laws the Homes (Fitness for Human Habitation) Act 2018, is having a significant effect on both landlords and tenants in rental properties across England.

The law has been designed to ensure that all rented properties are brought up to a standard which the government deems fit for human habitation. It has done this by strengthening tenants’ ability to seek redress against dangerous or unfit housing conditions.

The Act, which came into force on 20 March 2019 has seen a significant rise in concern from landlords over the standards of their properties both in the social and private sector.

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What has the Act actually changed?

To understand the consequences of the new law it is important for landlords to know what aspects of the 1985 Act have been amended.

The Homes act has made a significant change to the existing 1985 Landlord and Tenant Act in order to introduce a more modern health and safety based approach to defining whether a property is habitable.

Government guidance for the new Act state “there is an implied agreement between the tenant and landlord at the beginning of the tenancy that the property will be fit for human habitation”.

Another core part of what the Act has changed is the ability for tenants to bring cases against landlords more easily if a property is deemed in a state of disrepair.

Previously, the two routes available to tenants when complaining about poor housing conditions relied upon them to either contact their local authority to help enforce property standards or for them to bring a private prosecution in a magistrates’ court under section 82 of the Environmental Health Act 1990.

However, these routes have long been deemed as inadequate in resolving issues regarding poorly maintained properties either due to a lack of resources by Local Authorities to enforce checks on landlords and thus take action or because litigation via the magistrates’ courts was extremely costly and often needed a criminal, thus higher, burden of proof against a landlord to prove a case.

In a briefing paper on the Act, the Chartered Institute for Housing (CIH) noted that local authorities also couldn’t in many cases act as independent arbitrators for cases taken up by their own tenants. The CIH noted that “many local authorities are also social landlords and cannot take legal action against themselves.”

Their relationships with other housing providers can also disincentivise action – as they are unlikely to want to jeopardise an otherwise very valuable relationship. As a result, the Homes Act can be viewed as a means for social tenants living in unfit properties to challenge their landlord without risking a conflict of interest. As the CIH also notes “This has taken on greater significance following the Grenfell Tower fire, where residents had previously unsuccessfully attempted to raise concerns about the safety of their building.”

Does the new Act change what tenants can claim for?

In essence, the new act has introduced a risk-based approach to assess whether a tenant is deemed to be living in an unsuitable property.  At the same time the scope of what can be considered unsuitable, i.e. in cases of disrepair, has been widened.

Previous guidelines were listed under Section 8 of the 1985 Act and included issues such as the state of repair and freedom from damp. The Fitness for Human Habitation Act has inserted a number of new hazards, which were defined in Section 2(1) of the Housing Act 2004, into the original 1985 law.

These new stipulations are listed under the Housing Health and Safety Rating System (HHSRS), which lists 29 hazards, ranging from noise, radiation and explosions to overcrowding, fire and damp and mould which may affect the health and safety of occupants.

If a hazard is a serious and immediate risk to a person’s health and safety, this is known as a Category 1 hazard. If a hazard is less serious or less urgent, this is known as a Category 2 hazard.

List of Hazards:

1) Damp and mould growth
2) Excess cold
3) Excess heat
4) Asbestos and MMF
5) Biocides
6) Carbon Monoxide and fuel combustion products
7) Lead
8) Radiation
9) Uncombusted fuel gas
10) Volatile organic compounds
11) Crowding and space
12) Entry by intruders
13) Lighting
14) Noise
15) Domestic hygiene, pests and refuse
16) Food safety
17) Personal hygiene, sanitation and drainage
18) Water supply
19) Falls associated with baths
20) Falls on the level surfaces
21) Falls associated with stairs and steps
22) Falls between levels
23) Electrical hazards
24) Fire
25) Flames, hot surfaces and materials
26) Collision and entrapment
27) Explosions
28) Ergonomics
29) Structural collapse and falling elements

According to a parliamentary briefing conducted by charity Shelter which was used as evidence for the Fitness for Human Habitation Bill, over 1 million private and social tenancies are estimated to have Category 1 hazards, which affect up to 3 million people.

As new judgements begin to pile up throughout the social housing sector, the cost of dealing with disrepair cases is beginning to show. With cases costing up to £30,000, housing providers across the sector need to start getting a comprehensive plan in place to avoid the legal difficulties the Act presents. This is especially important given how easily courts can be persuaded to rule in the favor of the resident.

Famously, in the case of Summers v Salford Corp the House of Lords ruled that a broken sash cord in one bedroom was identified as a defect under section 10 of the 1985 Act, and thereby rendered the whole house unfit for human habitation.

In the more recent case of Bole & Anor v Huntsbuild Ltd, the judgement noted that “I have no doubt that the presence of mould and damp in living rooms or bedrooms, if persistent and more than minor, renders an apartment unfit for habitation.” due to defects to the roof, lack of insulation and absence of a vapour check layer.

There is a real legal danger to housing providers when it comes to dealing with these issues – and with the prevalence of mould in British housing, it is only a matter of time before the monetary cost of these lawsuits begins to directly affect a providers social mission.

What does the law mean for Social Housing Providers?

The new Act was designed to be phased in firstly to cover fixed-term tenancies starting from the 20th of March 2019 and then to cover all rented properties from the 20th of March 2020. Kane Kirkbride housing lawyer and partner at solicitors TLT, however, believes that long-term the new Act could bring about lasting change in how Housing Associations manage their homes.

He said: “Over time it could come to radically change how the sector deals with defects that pose a risk to the health and safety of a tenant.”

According to the 2017 National Audit Office review of housing in England found the number of non-decent homes in England declined by 1.1 million between 2001 and 2013. The report states that, between 2006 and 2014, the proportion of non-decent homes fell from over a third to a fifth. It also noted that in 2014, the private rented sector had the highest proportion of non-decent homes (29%), while the social rented sector had the lowest (14%).

However, despite the improving trend lines, a large number of social homes remain at a non-decent standard. Housing experts believe the law has seen a significant rise in cases brought against both social and private landlords. According to James Tickell, partner at consultancy Campbell Tickell, the biggest change from the law has been an uptick in legal firms seeking out tenants to bring claims against landlords.

He says: “The issue is that you would expect to see arise most [due to the new Act] is the increase in legal action against landlords and housing associations.

“Councils have had rights to investigate landlords already, this is nothing new, but then again the fact that this is better known by tenants alone could see more claims.

“The big thing is the legal implications, with the ambulance chasing legal firms who could pick up on this, that could cause a lot of problems for housing associations due to costs of settling alone.”

The Legal Action Group (LAG) notes that the Act should allow tenants access to legal aid to aid them with claims.

For social landlords, all the risks listed by the HHSRS are a cause for concern, however, some such as excess heat, excess cold, and damp and mould are expected in many cases to be linked to the standard of the properties under their care.

The new bill’s focus on unsafe temperatures and mould will be a cause for alarm for the majority of UK social housing providers. Many British properties have a problem with condensation, damp and mould. With the increased scope of this legislation – housing associations are now facing a problem of huge proportions. Most will need to face this head-on and the most likely place to start is investing heavily in compliance technology and repairs or face even greater legal budgets.

When it comes to damp and mould in particular a landlord may need to evidence the problem is due to deliberate action by the tenant – such as not heating their home – rather than a defect in the home to prove a case.  However, as LAG explains, a tenant may be able to prove a case using fairly straightforward evidence. The concern is that in many cases, straight forward photographs and a report from their doctor will be enough. Especially if the resident is experiencing respiratory problems.

Many Housing Associations have been using this as an opportunity to start looking to upgrade their stock but for providers which have inherited unfit or poorly maintained stock due to past mergers, they may not be fully aware of how many or which homes are of a not-decent standard.

In this respect, one-off inspections are not enough to help any HA understand any real long-term issues with their properties.

According to Thomas Kearney, Assistant Director of Asset at Housing Association Peabody, inspections and checks provide little overall insight a given property’s performance: “When you walk into that property you only get a snapshot [of a problem]. You don’t always know if a property has been under-heated or under-ventilated.”

Justin Bates, a barrister at Landmark Chambers, who also helped draft the new Act, believes the law will ultimately lead to Housing Providers taking a much more proactive approach to repairs.

“As to what it means for Housing Associations. The reality is that if they have a decent stock condition report they know what the weaknesses in their stock are, they know which ones are forever really cold and they know which ones forever very mouldy as a result.

What action can Housing Association’s take?

The unfortunate truth for most housing associations is they are likely already seeing an increase in disrepair claims. The widened scope of qualifying factors will mean we continue to see more claims coming from new and potentially unforeseen areas. Moreover, the framework has been established for increased punitive damages for problem properties in any given property portfolio.

Proactive claim advisors canvassing tenants are already encouraging an increased density of claims – and with tenants no longer needing to engage the Environmental Health Department there is the potential for development-wide claims of unfit properties.

The two main areas that housing associations should be focused on is their time to repair and their ability to monitor the ongoing condition of their property portfolio. Taking too long to repair a property now has significantly more severe consequences. In the next year or two, we are likely to see a few organisations that have extensive repairs backlogs start to bow under the weight of the litigation. Ensuring timely and accurate repairs is now a financial imperative and the organisations that are doing this well are set to reap the benefits.

On-going monitoring poses another significant issue for most housing associations. Ensuring shared spaces don’t develop cases of mould, ensuring wall insulation hasn’t failed and that you have supporting data to prove your works have been carried out successfully will be the challenge for most. Luckily – Switchee can help with that. With live data – housing providers across the country are being given the tools necessary to prevent issues before they arise, and they have the data to back it up.

When it comes to mould and damp, as well as assessing the energy performance of a home, landlords can begin to address the issue by actively monitoring their estate and capturing data that highlight poor performing properties.

Notting Hill Genesis, for example, worked with Switchee to install our smart thermostat in its properties to assess levels of moisture, heat loss, average temperature and time the home took to both warm and cool as part of their condensation damp and mould CDM strategy. The monitoring helped Notting Hill Genesis understand the link between heating, ventilation, insulation and the resident’s effect on these factors which determine how a home performs. The aim was to understand how NHG’s properties were performing and pre-empt poor performance.

Flagship Group has also taken a keen interest in the idea of remotely monitoring properties in order to conduct pre-emptive maintenance. They are installing Switchee’s smart thermostat in over 20,000 of their properties. Matt Brazier, Director of IT and Services said “The data that we get from Switchee has allowed us to rethink how we run our services in the future. We understand which properties need attention in real-time.”

The core objective of any housing provider should now be to understand their properties performance, rank their more and least effective properties and make proactive interventions to prevent disrepair before it becomes an issue. Effective management of the Fitness for Human Habitation act relies entirely on a housing provider’s ability to prevent court cases, not mitigating the effects of them.

Summary

The fitness for Homes (Fitness for Human Habitation) Act is ultimately a very positive piece of legislation. It ensures that residents facing poor quality of life due to housing failures, both in the private and social sectors, have an opportunity to right the wrong. 

Unfortunately, the social housing sector is so far bearing the brunt of the claims. Despite widespread action to improve the quality of social housing stock, there will always be failures in the chain and the people who look set to benefit the most from this act, especially in the social housing sector, are the solicitors filing the claims. 

With effective monitoring and maintenance, housing providers can at least be sure that they can face any claims of disrepair head-on as they will have the data to back up their claims. Addressing the most critical issues on a property-by-property basis is ultimately the only solution to the Homes Act. As only through measured and appropriate retrofit can housing providers hope to prevent widespread lawsuits for mould, poor air quality and a variety of other HHSRS criteria. 

Housing providers across the country need to look very seriously at their stock and address the most serious issues or face being sunk by increasingly large court costs.

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Fitness for Human Habitation Everything You Need To Know