Homes (Fitness for Human Habitation) Act and Disrepair: An Update

The Homes (Fitness for Human Habitation) Act 2018, known as the Homes Act, came into force almost two years ago. It amended the Landlord and Tenant Act 1985 to require that residential rented accommodation is provided and maintained in a state of fitness for human habitation throughout the duration of the tenancy. The Homes Act has applied to all periodic tenancies since March 2020.

The Homes Act strengthens protection for tenants by giving them power to take legal action against landlords who do not maintain their properties to the required standard or who fail to carry out repairs in a timely way.

In order to be considered fit for habitation, a property must be/have:

• Structurally stable;
• Free from serious disrepair;
• Free from dampness prejudicial health;
• Adequate provision for lighting, heating, and ventilation;
• Adequate piped supply of wholesome water;
• Satisfactory facilities for the preparation and cooking of food;
• A suitably located w.c. for exclusive use of the occupants;
• A suitably located fixed bath or shower and wash hand basin with hot and cold water;
• An effective system for the drainage of foul, waste and surface water; and
• Free from Category 1 HHSRS hazards.

In addition to using the Homes Act to take action, tenants also maintain their rights provided by section 11 of the Landlord and Tenant Act 1985 to repairs to the structure and exterior of their property and various fittings. However, the circumstances in which tenants can now bring a claim have been broadened to include any defect within the property which creates a significant risk to their physical and mental health, safety and well-being.

As with disrepair, if a court decides that a landlord has not provided their tenant with a home that is fit for habitation or maintained to that standard, the landlord can be required to:

• Pay compensation to the tenant; and/or
• Do the necessary works to improve the property.

Landlords are considered responsible from when they are made aware of the hazard by a tenant, although any hazard located in common parts of a block of flats or a house in multiple occupation (HMO) would make them immediately liable. If damages were awarded, they would be payable from this date.

It is important to note that there is no requirement for a tenant to use their landlord’s preferred reporting route, for example by speaking to a customer service centre or reporting the repair through an online portal. In fact the Homes Act guidance that the government has published for tenants, states that they can send an email or text, provided they keep it as evidence. This could mean that any member of a landlord’s staff could receive a notification from a tenant, which would put them on notice of the required repair.

As with disrepair, the tenant can then commence proceedings if they consider that their landlord is not actively attempting to remedy the unfitness or hazard. It is then for the court to decide whether the conditions within the property are such that the property is not fit for habitation, and if so whether the landlord has dealt with the hazard within a reasonable time.

Many of you will be only too well aware of the tactics used by claims firms and solicitors that target your tenants and bring disrepair claims on their behalf. No Homes Act claims have yet reached the courts, but we are aware of pre-action claims which are referencing the Homes Act as well as section 11. However, it is likely that if a Court were to find a property is not fit for habitation, they would consider that the property should not have been occupied and therefore the damages that should be awarded to the tenant would be equivalent to the full rent for the period since you became aware of the issues and required works. The potential implications should a Homes Act claim be made are therefore significant.

Wider implications of not addressing repairs

It is worth bearing in mind that disrepair claims can be brought not only as stand-alone claims but also as part of a defence and counterclaim to possession action. As you may be aware, because of the Covid pandemic the ability to seek possession has been significantly diminished - limited to cases of serious anti-social behaviour, fraud and high levels of rent arrears.

The procedure before the Court has also changed, and before the Court will consider possession in these situations, there will be a review hearing. Prior to the review hearing all tenants against whom possession is pursued will be referred for free legal advice. One of the first two questions that are asked of tenants is 'are there any outstanding repairs or issues with your property that your landlord has not addressed?'.

This can lead, at best, to a delay in the proceedings, and at worst, if there are repairs that have not been undertaken within reasonable timeframes, to compensation being awarded and set off against any rent arrears that you may be claiming possession for. This could ultimately end your right to possession if the compensation exceeds the arrears claimed. Not only will you then have to pay the tenant’s costs, but also there will be all of the time, effort and resources, both financial and officer time, in bringing the possession action for it to fail.

What can you do?

You should ensure that robust systems and processes are in place to identify, record and swiftly rectify any damage/poor property conditions that you are responsible for as soon as possible. Questions you should ask yourself include:

• Does your repairs service have a good track record of getting repairs right first time, and delivering high levels of customer satisfaction?
• Do your repairs reporting and complaints routes recognise and log all enquiries from tenants, regardless of the way in which the tenant notifies your staff, and have them recorded and dealt with promptly?
• Do all your front line staff understand what potential HHSRS hazards may look like, or what obvious types of repairs or defects they should recognise and report so that they are resolved?
• Do you understand the main causes of claims from your tenants, and have you developed an action plan to address them?
• Are your front line staff sufficiently well trained and equipped to deal with reports of dampness or complex repairs?
• Do you have a robust end-to-end process in place for responding to claims which limits successful challenges?
• Are your staff trained to give evidence in court, or do you retain an expert witness to act on your behalf?

How can we help?

Pennington Choices provide a range of advice, training and support to assist your organisation in addressing the challenges of disrepair and Homes Act claims:

• HHSRS training – to ensure your staff understand how the rating system operates and the common issues to look for – we can deliver this to technical staff such as surveyors and maintenance staff, or to non-technical front line staff who regularly speak to tenants or visit them in their homes.
• Repairs audits – to identify any gaps or areas you can strengthen to ensure that your end-to-end service, from reporting and diagnosis to completion and post-inspection, is of a standard that will minimise the risk of claims.
• Legal training on dealing with claims – we work in partnership with a legally qualified trainer who will take you through how to deal with and manage claims for disrepair; this will include how to challenge them, as well as exploring areas of your day-to-day processes that can be adapted to help prevent claims in the future.
• Expert witness – we can act as your expert witness to help you successfully defend claims.