Awaab's Law - What when and how?

There has been a huge amount of media attention about Awaab’s Law following the tragic death of the two year old in Rochdale.

But what is this law all about? What will mean in practice? And will it meet expectations?

Awaab Ishak died on 21^st December 2020, just days after his second birthday. His family were tenants of Rochdale Borough Housing. The home suffered from numerous defects, particularly damp and mould. An inquest into his death took place in November 2022. The Senior Coroner for North Manchester found that Awaab died as a result of ‘a severe respiratory condition caused due to prolonged exposure to mould in his home environment.’

This sparked a frenzy of calls for change, from the media and politicians. One heartbreaking image went viral -

In the wake of this, on 9^th February 2023, Michael Gove, Secretary of State for Levelling Up, Housing and Communities announced Awaab’s Law. This would require social landlords to investigate and fix damp and mould within strict time limits. It would be achieved by amending the Social Housing Regulation Bill that was going through Parliament. The Social Housing Regulation Act 2023 came into force on 20^th July 2023. Before we get too excited, this does not mean that we now have Awaab’s Law!

What the Act does is add a new s10A to the Landlord and Tenant Act 1985. It creates an implied covenant that relevant landlords will ‘comply with all prescribed requirements that are applicable to the lease’. This covenant will apply to social housing tenancies in England to which s9A Landlord and Tenant Act 1985 applies. It has nothing to do with the private rented sector. So, it is a contractual matter, in line with other housing conditions obligations. The covenant will be enforced through ‘actions for breach of covenant’.

The important bit of course concerns the actual time scales! These will be set out in regulations made by the Secretary of State.

A consultation was published on 9^th January 2024 and has just ended. We do not yet have the regulations but the consultation gives us a pretty good idea of what to expect.

The relevant defects will be the 29 prescribed hazards contained in the Housing Health and Safety Rating System (HHSRS). This is wider than the ‘damp and mould’ that we expected. This is positive news and will include things; like security, water supply and heating etc. The consultation also has a subjective element which is welcome. The requirement will have to take into account ‘the actual resident’. So a resident who suffered from asthma will be at greater risk.

This is all good news for tenants… sort of.

The duties will be triggered by a significant risk. It will be for landlords to decide what is and isn’t significant. This is a worry. Won’t it lead to landlords deciding that in most cases there is no ‘significant risk’? The consultation mentions matters to be taken into account, such as -

HHSRS Guidance

The Government publication - Understanding and addressing the health risks of damp and mould in the home - GOV.UK (www.gov.uk)

Evidence from third parties such as doctors, social workers, schools…

I would expect many of the more aggressive landlords to deny everything. This is likely to end up in litigation. This will in turn mean a majority of cases being brought under a CFA with the risks that go with developing new areas of law, and which has led to, so few cases brought under s9A.

But leaving that rant side for a moment, what will the new ‘strict time limits involve’? As we know the present position is that a landlord is liable for disrepair once they know of the defect and fail to carry out remedial work within a reasonable time. How will this sit with new, enforceable fixed time scales? Is it the end of O’Brien v Robinson that was decided when I was doing my A Levels?!

This is how it will work –

1.     Landlords will be required to investigate a hazard with 14 days, which begins to run from the time they are aware of a potential hazard. This will probably mirror the current position in notice and will not be limited to actual complaints. Reports of hazards must be recorded. Interestingly, there will be no requirement for a physical inspection, unless requested by the tenant. Medical evidence will not be required.

A welcome note – ‘72. When investigating reports of damp and mould, it is crucial that the issue is not simply dismissed as a resident’s fault’. Will this finally see the end of that myth?

2.     Following the investigation a written report must be sent to the tenant with 48 hours

3.     If the investigation indicates that a reported hazard poses a significant risk to the health or safety of the resident, the registered provider must begin repair works within 7 calendar days of the written summary being issued. This has to be real work! ‘We consider that ‘beginning’ repair works would entail a worker being on site physically starting to repair and rectify a hazard. It will be irrelevant whether works are carried out by in-house workers, external contractors, or a combination.’ So it involves a worker turning up with tools!

4.     So doing the maths; 14 days plus 2 days plus 7 days = 23 days. So far so good! But what about finishing what we started?

B  Then we start to go downhill. 

Proposal 4: ‘The registered provider must satisfactorily complete repair works within a reasonable time period. The resident should be informed of this time period and their needs should be considered’

 

 Hang on! So have we huffed and puffed and ended up back where we started? The spin has been that landlords will have to ‘fix damp and mould within strict time limits’. It has to start within the 23 days but after, that the position is no different from now. Is it all that it has been cracked up to be? In one sense this was inevitable. How can you have a strict time-table for fixing a window catch as compared to a new roof?

There is a real danger that we will all settle down to things belong as they always were.

There are positives. The rules will mean that things will move quickly in the early stages. Reporting hazards will be nothing to do with any complaints procedures -  ‘63. The point at which the registered provider becomes aware of a potential hazard is the point at which legal obligations under Awaab’s Law will begin. It will not be necessary for residents to take a complaint through a landlord’s formal complaints procedure in order to trigger the timescales’.

The initial steps must be taken. They are not part of a new protocol. Failure to meet the deadlines will go to the heart of liability.

We expect the regulations to land soon. My biggest hope is that firms will be encouraged litigate condensation/mould cases and other s9A cases. That particular momentum cannot now stop…

Watch this rather big space!