Fitness for Human Habitation and works during Covid-19 David Renton, Garden Court Chambers Catherine O’Donnell, Garden Court Chambers 21 May 2020 @gardencourtlaw
HOMES (FITNESS FOR HUMAN HABITATION) ACT 2018 David Renton, Garden Court Chambers 21 May 2020 @gardencourtlaw
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)) @gardencourtlaw
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). @gardencourtlaw
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” @gardencourtlaw
Standard of unfitness • Summers v Salford Corp [1943] AC 283: Lord Romer: “e ither 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 only 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] @gardencourtlaw
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) @gardencourtlaw
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 obtain it, and • where the unfitness is wholly or mainly attributable to the tenant’s own breach of covenant @gardencourtlaw
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 of 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 ”). @gardencourtlaw
Housing conditions: Works during Covid-19 Catherine O’Donnell, Garden Court Chambers 21 May 2020 @gardencourtlaw
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 .” @gardencourtlaw
Advice to tenants • 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 @gardencourtlaw
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” • @gardencourtlaw
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. @gardencourtlaw
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 famil y 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. @gardencourtlaw
• 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 @gardencourtlaw
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