This article was previously published by Housing Executive.
Social housing providers will be aware of the tragic death of Awaab Ishak and the subsequent coroner's report into his death. All providers will have received letters from the Regulator and the Secretary of State for Housing, Mr Gove, sent as a direct result of that case.
Whilst not proposing to comment on the specifics of the case here, some of the mistakes made by Rochdale Borough Housing (RBH) particularly the (mis)understanding of the Pre-Action Protocol for Housing Conditions Claims (England) ("the Protocol") are being made by other social landlords and so has applicability to housing disrepair claims generally.
A lot has been said about the policy RBH had in place in relation to (not) carrying out remedial works subject to legal claims. In a nutshell, RBH believed that works could not be undertaken without the express agreement from the tenant's solicitor. There was, and is, no legal justification for such a policy.
Housing disrepair claims start with a "Letter of Claim", which should set out the tenant's allegations including details of the alleged defects plus when and how notice of these defects was given to the landlord. Typically, what is frequently received is a sparse and generic list of defects itemising every imaginable component of the building with little to no evidence of when notice was given.
It is also common practise for tenant lawyers to include a warning threatening injunction proceedings against the landlord should they dare to make attempts to repair their asset without prior approval from the lawyer.
Sadly, RBH assumed (and many social landlords receiving such adversarial and threatening letters do the same) that the pre-action protocol prohibits repairs from being completed, without approval of the tenant's lawyer, even if that means leaving the tenant in potentially unfit conditions.
The other element worth noting is that claimant law firms very often neglect to inform the landlord when a claim is dropped, for whatever reason that may be. It was even stated to be a 'policy' of the law firm acting for the family of Awaab Ishak not to do this.
These two components taken together means that very often Providers are told, on threat of injunction, not to contact their tenants direct, or make any attempt to carry out repairs, but then are not told when the solicitors drop the case so that normal service may be resumed.
As with any tragedy, it is important for lessons to be learned.
For landlords, the biggest lesson is that there is no justification for delaying works to remedy/remove a serious hazard in a property that could damage a tenant's health and safety. Should the tenants' lawyers complain that 'evidence must be preserved', the time to instruct an expert can be shortened under the protocol so this argument falls away.
Secondly, the social housing sector needs to make use of the remedies available to get access and works done. The sector is familiar with using injunctions to gain access for gas safety inspections, yet seems reluctant to use the same tools to gain access to effect repairs to a remove a hazard from within a property, treating a refusal of access as discharging their duties to provide safe and fit accommodation. It doesn't. The message from the Government and Regulator on this is clear: no excuse for failing to remedy a hazard will be accepted.
Landlords must act promptly if they become aware of a serious hazard in their properties. If necessary, utilising court proceedings to obtain an access injunction to effect repairs. The legal costs for taking such proceedings are recoverable after all and can be offset against any damages or cost that might be due to the tenant if the claim is valid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.