Condensation and Mould - it is time to litigate!

 

There has been a lot said about condensation and mould following the tragic case of Awaab Ishak. I am not intending to comment on that particular case here, apart from this - how this can have happened in the UK, in 2020? In fact, as we will see, this is not a recent problem.

Let’s go back to 1986 and the case of Quick v Taff Ely Borough Council [1986] Q.B. 809. The court of Appeal decided, reluctantly, that work needed to remedy condensation was not a ‘repair’ for the purposes of the landlords’ duties under s11 Landlord and Tenant Act 1985. Dillon LJ explained the problem –

‘There has for years been very severe condensation in the house, which has rendered the living conditions of the Plaintiff and his family appalling...the condensation came about from the warm air of the environment in the rooms reaching the cold surfaces of the building…I would conclude that, by modern standards the house was in winter – when of course the condensation was at its worst – virtually unfit for human habitation’

The appeal judges found that, in the absence of identifiable disrepair, the case could not succeed. This was a big blow to those of us of a certain age (!) who were running disrepair cases back then. But the Court made some observations that are often overlooked and very relevant today.

Dillon LJ continued -

‘When I read the papers, I was surprised to see that the plaintiff had not based his claim on an allegation that at all material times the house let to him by the defendant council had not been fit for human habitation…I was even more surprised to be told by counsel…’

 

What counsel told him was that was in fact, no enforceable cause of action for tenants in relation to fitness. There was a useless duty in relation to properties let at a low rent but nothing else. So, 36 years ago the Court of Appeal acknowledged that condensation and mould were capable of rendering a home unfit for human habitation. But as a matter of law, there was nothing a tenant could do, by way of a civil claim.

Fast forward to March 2020 – yes 34 years later.  This was when, after tireless work from housing lawyers and politicians*, the Homes (Fitness for Habitation) Act 2018 was rolled out. This created a new duty, by way of a new s9A Landlord and Tenant Act 1985, on landlords to ensure that a home -

 (a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b) will remain fit for human habitation during the term of the lease.

A new s10 sets out defects that can make a home unfit. One such defect is a ‘prescribed hazard’ in England (see below for Wales**). These 29 hazards were created by the Housing Health and Safety Rating System (HHSRS) via the Housing Act 2004. They were standards to be used by local housing authorities in relation to action that they should take but were not directly enforceable by tenants. Until now.

 

Hazard number 1 is Damp and Mould. Alongside the HHSRS was an Operating Guidance which leaves us in no doubt about the dangers of mould -

 

“Many moulds and fungi (including timber attacking fungi) can be allergenic. The spores can also be carcinogenic, toxic and cause infections; the potential health effect varying with species. Some fungi, particularly when in very high concentrations, can also colonise the airways of susceptible individuals, particularly asthmatics. Toxins from some moulds (mycotoxins) can cause nausea and diarrhoea, can suppress the immune system, and have been implicated in cancers. Although uncommon, these are serious if they occur” 

The guidance goes on to refer to the risks to mental health.

Mould is nasty. It is a danger to health. Knowledge of the danger is nothing new. What is new, is that there is now a legal remedy. Failure to take action to resolve mould, whether caused by condensation or other defect, can be a breach of the landlords’ duties under s9A.

It is frustrating therefore that there have been so few cases. None have reached the higher courts to my knowledge. This was partly due to the pandemic.  The 2018 Act came into effect just as we were going into the first lockdown. But I also think that there has been a reluctance to pursue litigation in relation to these ‘new duties’. This article is an unashamed call for this to change. The rights are new but as we have seen the problem is far from new. Knowledge of the dangers of mould is not new. The duties are clearly set out s9A and s10. This is an urgent matter. All of the building blocks are in place. I think the time has come for fitness for human habitation to be a primary driver in housing conditions cases.

www.stevecornforth.com 

*Notably, Giles Peaker (aka Housing law reports and analysis - Nearly Legal: Housing Law News and Comment) and Karen Buck MP

**Wales has her own housing standards, and the Renting Homes (Wales) Act 2016 is due to come into force in December 2022.

 ps I am presenting a webinar on 16th December 2022 developing these thoughts further. Contact me on stevecornforthconsutancy@gmail.com for details

www.stevecornforth.com

 

Quick v Taff-Ely Borough Council | [1985] 3 WLR 981

A Tale of Two Cities - Walking for Justice

 

On Tuesday 27^th September 2022, a record 285 lawyers took part in the Liverpool Legal Walk around the Liverpool City Centre and waterfront. They gathered at the QEII Law Courts and made their way around the city, along the Royal Albert Dock and then enjoyed a well-deserved drink at the Lady of Mann in Dale Street. The event has raised £7471 to date from sponsorship plus an extra £190 from raffle ticket sales. The latter was certainly boosted by my new favourite toy – a card reader!!

The pot was also helped by my friend Caroline who offered to chip in a three-figure sum if I wore a Crystal Palace FC shirt. I have done far worse than this for the cause and was happy to oblige!

The following day I braved the M62 motorway for the Manchester legal walk. I was there as chair of the North West Legal Support Trust, to meet and greet the happy walkers and ‘say a few words’ which is an interesting concept for lawyers! Over 300 walkers took part and this event has raised about £5k to date with more to come!

We would hope that the two walks will raise a total of about £20k.

Why do we do it?

Firstly, it is no great sacrifice to spend a pleasant autumn evening walking around two of the country’s leading cities!

Secondly, and more seriously, there has never been a greater need. As the cost-of-living crisis deepens, ordinary people are facing desperate problems relating to housing, debt, benefits, employment… Law Centres and similar agencies are right on the front line providing direct support to those in need. For example, the Vauxhall Law Centre in Liverpool has this week, provided a drop-in advice clinic for those concerned about energy bills.

 

These services are provided free of charge, across the country.

Centres like this provide a critically important service. They are almost entirely supported by donations. As demand grows, so does the need for strong support. This need has become far greater since the availability of legal aid was severely restricted in 2013.

One real encouragement from both these walks was seeing the strong representation across the profession. The Liverpool Walk was led, for the second year, by HHJ David Hodge KC. Both walks saw members of some of the country’s biggest commercial law firms alongside small firms, volunteers, law students and the bar. Trekking around city centres to support justice gives a whole new meaning to Activist Lawyers.

The giving page remains open unto the end of the year. Every £1 counts!!

https://atjf.enthuse.com/pf/steve-cornforth-aadcc

www.stevecornforth.com

 

Let's all go down the Strand - London Legal Walk 2022

 On Tuesday next week – 28^th June – I will be getting the train (I hope!) to London to do my second London Legal Walk. Last year I did it as part of my trio of legal walks in Liverpool, Carlisle and London. This year it is just London and then of course Liverpool in September.

The London walk is a unique experience. In 2021 there were 8500 walkers across 650 teams. Walkers include the Lord Chief Justice, members of the Supreme Court, Members of Parliament and celebrities including the legend that is Judge Rinder.

Why do we do it?

The 2022 walks come at a time when the need for free legal help has never been greater. As we head deeper into the cost of living crisis, people need help with advice on debt, housing, welfare benefits, employment and of course immigration. Law Centres and similar agencies perform a heroic service for the country in meeting that need. They are able to keep their doors open because of the support that they get from the legal profession and from charitable trusts.

My first job as a real lawyer (!) was at the Vauxhall Law Centre in Liverpool. We thought we had it tough. But with local authority funding and legal aid, we didn’t know we were born! Vauxhall is still providing fantastic support for people in inner city Liverpool –

Or how about this from the other side of the country in Suffolk –

This is the sort of work that is done across the country. Much of it gets little publicity. Where would we be without it!

The legal walks are part of the heartbeat of centres like this.

This is why we do it!

This year I am walking with a team from the Society of Labour Lawyers. You can support the cause by visiting this link –

https://londonlegalsupporttrust.enthuse.com/pf/society-of-labour-lawyers

Every penny, or fiver, or more counts!

If you are doing the walk I will be at the Knights Templar Pub from about 3.30pm. Come and say hello and share a selfie!!

Good news for Claire - let's hope that this changes everything

 

It was just over two years ago that I wrote about the disturbing case of Claire Matthews who found herself struck off after leaving a briefcase on train. Her desperate attempts to try and retrieve the situation ended badly –

https://thestevecornforthblog.blogspot.com/2020/04/in-which-losing-briefcase-turns-out-far.html

The disciplinary tribunal referred to the damage to the reputation of the profession –

“The damage to the reputation of the profession by the Respondent’s misconduct was significant as the public would trust a solicitor not to conceal the loss of data by telling untruths to their colleagues and their employer. The Respondent’s conduct was a significant departure from the complete integrity, probity and trustworthiness expected of a solicitor.”

I commented at the time that her treatment was a stark contract to that of a senior member of the bar who was suspended after headbutting a junior, female colleague.

There was an understandable outcry about the way Claire had been treated. It was particularly disturbing that there had been little consideration of her mental health.

Leigh Day and three leading barristers agreed to act for her pro bono. In March 2021 the Law Society Gazette reported that following submission of medical evidence, her case was to be referred back to the SDT –

https://www.lawgazette.co.uk/news/struck-off-junior-solicitor-claire-matthews-to-have-case-re-heard-by-sdt/5107883.article

We have now had the news that the entire case against her has been dropped. She can restart her career. This is clearly good news for her. It is a credit to her that she has continued the fight. It is also a credit to the profession that the almost unanimous cry that this was wrong has been heard. But it is a shame that it came to this. We have to ask what has damaged the reputation of the profession; a simple mistake in extremely difficult circumstances or the pursuit of a young lawyer who presents no risk whatsoever? I think that some damage has been done. Most non lawyers who were aware of the story, shook their heads in disbelief.

If anything, positive comes from this it must be that there is a seismic shift in the way the legal profession treats threats similar cases. It is easy to criticise the SRA, SDT, employers etc. But to some degree don’t we all need to accept some responsibility.

There is now a refreshing move towards openness about mental health issues. I remember the time when it was a sign of weakness to admit to problems that can affect us all at some time. We must never again punish lawyers who are then become afraif to admit mistakes. All firms and chambers should actively promote a culture of openness and support.

Legal Aid and Inquests - again!

 I have rarely been at an Inquest that was not adversarial.

In all of my years of practice, a constant theme has been the injustice faced by family members at Coroners’ Inquests. I have attended many such inquests, normally in the context of Clinical Negligence cases. The health professionals would always be represented by experienced lawyers. Those of us who represented families would normally do so on a pro bono basis. They can be complex, technically difficult and come at a difficult time.

I have rarely been at an Inquest that was not adversarial. This is entirely understandable. Those representing professional people owe a duty to them to ensure that no stone is left unturned when their reputation or even career might be at stake.  It is inevitable that such hearings will be adversarial. But there is an inevitable imbalance. The NHS has considerable resources to fund legal representation. The families have little or none.  

Which brings us to the current debate about extending the scope of legal aid to cover a right of representation for families, particularly in cases involving the state. On 24^th February 2022 the Judicial Review and Courts Bill Committee in the House of Lords discussed this very topic. They were considering an amendment to the Bill that would make legal aid available in these cases.

Speaking for the Government was Lord Wolfson of Tredegar.  His Lordship acknowledged that the families should be at the heart of an inquest. He then went on to argue that it would be counter productive to allow legal aid for families –

“There is a risk that having additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a significantly more complex defensive case, which could, in the majority of cases, prolong the distress of a bereaved family”

The sad fact is that most inquests are defensive. 

The sad fact is that most inquests are defensive. They do not become less adversarial just because one party is represented, and the other is not. It certainly narrows the opportunity for scrutiny of evidence, but that rather defeats the point of what is meant to be an inquisitorial process.

So the plan is to have fewer lawyers lined up against the unrepresented families. 

Lord Wolfson’s suggestions for addressing any imbalance are discouraging. He referred to a protocol that – “ensures that where the state is represented, it will consider the number of lawyers instructed so as to support an inquisitorial approach” So the plan is to have fewer lawyers lined up against the unrepresented families. He then referred to Exceptional Case Public Funding which is far from straightforward!

https://www.theyworkforyou.com/lords/?id=2022-02-24b.430.1

In fact, it looks like the government is doing all it can to ensure powerful representation for … the government, whilst presenting every argument available to ensure that families do not have the same. If the process is not adversarial or defensive why is public money spent on lawyers for one and not the other. We don’t call them ‘parties’ but we all know that this is what they are.

 

 

 

Concerning the English Language, Boris Johnson and dripping clocks

As you know, I normally rant on here about matters that concern the law and legal practice. But this post is all about my worries concerning the English Language. Firstly, I need to declare an interest. I am a grammar pedant. A misplaced apostrophe can keep me awake at night. In a sense this is very relevant to lawyers. Understanding language can be critical.

But there is a real problem with the use of my first language in political discussions.

Most of the time, a simple sentence is easily understood by all. If I say –

‘I am going to the Co-Op to buy some coffee’,

there is no need for further elaboration. We know who I am talking about…’I’, we know what I am doing ‘going to the Co-Op’ and we know the purpose of the action ‘to buy some coffee’.

Now a person who speaks a different language will need a translation. So I might follow up the statement to a French person with – ‘Je vais au Co-Op pour acheter du café’. The original words require further comment to help the listener understand.

Which brings me to the current debate about the Prime Ministers obviously incorrect statement about Keir Starmer and his time as DPP. During last week’s PMQs he said these words –

"this leader of the opposition, a former Director of Prosecutions. He spent most of his time prosecuting journalists and failing to prosecute Jimmy Saville"

That is fairly clear. He was talking about Sir Keir, the person who is indeed leader of the opposition and former Director of Prosecutions’. To clear up any possible confusion he went on to say – “He spent most of his time…” (My emphasis). Most English language users can understand this statement. It does not require further ‘clarification'.

But, because they were said by a political leader who is in trouble, the English words suddenly require a translation. On Monday 7^th February Boris Johnson said that he was not intending to comment on the performance of Sir Keir himself but the overall failing of the CPS – even though he had used the words ‘He spent most of his time’. It is as if the words that we all heard and understood require translation into the language of convenience.

Supporters of Mr Johnson have gathered round to muddy the waters even further. On BBC Breakfast today, the Parliamentary Under Secretary for Tech and the Digital Economy, denied that the PM needed to apologise but conceded that ‘the comments were capable of being misconstrued’. Isn’t that the same as saying that my words about the Co-Op could be taken to mean a trip to Sainsburys to buy some milk?

Commentators don’t help. They say – ‘The PM has clarified what he meant’. But it was clear in the first place.

It really is confusing. We speak English. We hear words. We know exactly what they mean. But then we are told that in fact they meant something different. It is a bit like studying a Salvador Dali painting as a basis for understanding the construction of clocks.

If the PM genuinely didn’t mean what he said, he should just say sorry. In the meantime we have the grotesque chaos of a leader of the opposition being placed in personal danger by a gang of protesters who heard the clear words that were used and believed them..

Politician accuses lawyers of 'self-interest' - seriously?

I have never met a lawyer whose motivation came anywhere near self-interest.

It hasn’t taken long for the New Year to usher in the familiar attacks on lawyers from politicians. This is the recent assertion from former Health Secretary, Jeremy Hunt, that lawyers who represent victims of medical negligence are obstructing proposed reforms of the system. And that they are doing this out of ‘self-interest.’ I ran clinical negligence cases for 25 years. I have trained firms in the work and provided consultancy support for the last 5 years. I have lost count of the number of cases that I have managed, supervised of helped with. In all this time I have never met a lawyer whose motivation came anywhere near self-interest.

https://www.lawgazette.co.uk/news/self-interest-of-lawyers-is-blocking-clin-neg-reform-mps-hear/5111104.article

Not only do claimant lawyers want to achieve the best possible outcome for innocent victims, but they are also under a professional duty to do so. Mr. Hunt is referring to a possible no-fault scheme that was mooted in 2021. The proposals are set against the background of other proposed changes which would remove the right of victims to private medical care, a right enjoyed by all victims of injury caused by negligence. I discussed this last year and noted –

“In other words, why should an innocent victim of negligence have to rely on treatment from the state, particularly when the need for that treatment is caused by the state itself? That injustice becomes even greater in cases of clinical negligence. This would lead to the unacceptable situation where victims of NHS negligence would be in a worse position than any other injured person.”

https://thestevecornforthblog.blogspot.com/2021/07/re-thnking-clinical-negligence-again.html

There are genuine and fundamental flaws in the proposed ‘reforms’. When the basis of change is costs, you can be sure that the end result will be reduced levels of damages, which are already calculated by reference to a victims’ basic needs for care, often for life. APIL’s Guy Foster explains –

‘Either that is going to cause an astronomical cost that would not be sustainable for the system, or we would have to look at tariffs or tokenistic types of damages which would not be responsive to the needs of injured patients,’

One proposal mooted in the past has been to review the way in which loss of earnings are calculated, so a victim who may never work again receives compensation based on the national average earnings rather than their real earnings. This overlooks the real world in which a person’s mortgage and other living expenses are not based on any ‘national average’.

https://thestevecornforthblog.blogspot.com/2017/06/medical-negligence-striking-massive.html

Lawyers fees are earned

Mr. Hunt uses a familiar tactic of suggesting that much of the money spent by the NHS in clinical negligence cases goes to the lawyers. This overlooks the obvious point that the lawyers’ fees must be earned. They are only paid for the work they do. Securing adequate compensation for a person who suffers a catastrophic injury involves a huge amount of work and can take many years. A lawyer acting for a victim might ultimately receive a large payment from the NHS but it can sometimes take 5 years or more to be resolved, especially where cases are defended until late in the day. In the meantime, the lawyers have incurred the time and cost of running the case.

What sits behind the attacks?

But I think we need, as ever to look at what sits behind attacks on lawyers by politicians on lawyers. The main targets are the victims. They are the ones who need realistic as opposed to ‘tokensistic’ damages. They are the ones who will see levels of compensation reduced.  But it is those victims who will treated differently from those injured at work, in a serious motor accident or in a public place. And for no other reason than that their case is more costly to prove.

It is more palatable to blame those who fight for the victims.