Trends in disrepair and complex housing claims

Following recent changes in the law and guidance, as well as recent media coverage of housing issues, there is a significant rise in housing disrepair claims. Mandy Williams and Nichola Johnston anticipate this trend will continue together with an increase in claims’ complexity.

Legislative and regulatory developments have resulted in an increase in claims, not just for traditional disrepair, but also in personal injury claims for respiratory and skin conditions. We anticipate the complexity of these claims will also increase, bringing in allegations under the HRA and Equality Act 2010.   

On average legal costs claimed are substantially higher than the value of damages awarded. Legal costs for disrepair claims do not currently fall under the fixed recoverable costs regime. However, this is expected to change.  

Where a poor grading has been received from the Social Housing Regulator, this is being highlighted by tenant solicitors. 

Landlords should inspect and decide if repairs are required and comply with the terms of the tenancy agreement. Good record keeping is key to any defence documenting all communication with tenants, particularly where there is a lack of access or refusal of repairs. Directing tenants to the internal complaints procedure could avoid a claim resulting in legal costs. 

Influences on claims 

The Homes (Fitness for Human Habitation) Act 2018 places a duty on landlords to ensure their property is fit for human habitation and free from hazards. Hazards are judged on the likelihood of death or serious injury.  

In 2021 the Housing Ombudsman published a report on damp and mould, placing the onus on landlords to take a proactive approach. The guidance was to refrain from blaming tenants for lifestyle choices that may cause or contribute to damp and mould.  

The Social Housing (Regulation) Act 2023 which received royal assent in July 2023, is also known as ‘Awaab’s Law’ followed the tragic death of Awaab Ishak in December 2020 due to prolonged exposure to mould in his home.  

This legislation creates timescales, (yet to be implemented) for landlords to eradicate mould and investigate, report and start repairs. Serious problems will need to be fixed within 24 hours. As such, landlords should take steps now to be ready. A defence of reasonable endeavours will be open to interpretation.  

Under the 2023 Act the Social Housing Regulator has to undertake regulation of providers of social housing including accountability and tenancy standards. Regulatory judgments and enforcement notices, along with gradings awarded under the regime, are published by the Regulator. 

Claims brought under the Human Rights Act 1998 and Equality Act 2010 

We anticipate that the number and complexity of claims brought under the HRA will increase. This is not least due to the tragic deaths of Awaab Ishak and Ella Adoo-Kissi Debrah. Ella was the first person to have air pollution listed on a death certificate. Her mother reached a settlement in respect of her civil claim against a number of government bodies in November this year.   

Authorities who place a tenant in a highly polluted area which gives rise to respiratory disease can expect to see claims brought under the HRA.  

All social housing providers when carrying out a public function are required to comply with the Human Rights Act (HRA) 1998.  

Of particular relevance are:  

• Article 3 which provides that no one shall be subjected to torture or to inhuman or degrading treatment.  
• Article 8 which includes the right to respect for a home and that there shall be no interference by a public body.  
• Article 6 the right to a fair determination of civil rights.  
• Article 14 the right to be protected from discrimination.  
• Article 2 the right to life.  

While the HRA does not provide a right to have a home of a certain quality or standard, the courts are recognising that where conditions are so bad, it will interfere with a tenant’s Convention Rights. 

Article 8 provides a right to enjoy one’s existing home peacefully. This means that public authorities should not prevent anyone from entering or living in their home without very good reason. This right could be infringed if a person is forced to leave their home due to poor conditions; if there are inappropriate access routes; where a person is placed among unsuitable neighbours (as in Pemberton v Southwark [2000]); or where they are subjected to noise, dust, mould or vibration by the authority. This may result in significant injury ranging from skin conditions, respiratory infection and mental illness. 

Properties that may not be defective for non-disabled tenants may be inadequate for those who have a disability. The Equality Act 2010 imposes a duty on landlords and commonhold associations to make reasonable adjustments on request from disabled tenants, to their private dwellings. Those who have a disability can also make requests regarding common parts, although there is currently no legal duty on their landlords to make reasonable adjustments to do so.

Mandy Williams and Nichola Johnston are Senior Associates at Kennedys.

This article was originally published on ALARM's website on 28 November. ALARM is a not-for-profit professional membership association supporting risk management and insurance practitioners with education, training, guidance, best practice, networking and industry recognition. For more information, visit alarmrisk.com and follow @ALARMrisk on LinkedIn