Fitness for Human Habitation Act - without Legal Aid what is the point?

 

 I have spent much of my time this year, training solicitors and experts about Tenants’ Rights in relation to Housing Conditions. This has been driven, in part by the recent ‘reforms’ of road traffic claims that will see a huge reduction in the number of such cases. Many firms are looking to diversify. Another factor has been the arrival of the Homes (Fitness for Human Habitation) Act 2018. This Act, and the new covenants that it brings, does have the potential to change everything. The purpose of this article is to highlight the extent to which such change will be limited by the restricted availability of legal aid.

In all of my training sessions, I refer to the well-known House of Lords case of Liverpool City Council v Irwin [1977] AC 239 which was a ground-breaking case about landlords’ responsibilities in relation to common parts such as stairways, lifts etc. As an incorrigible name dropper, I will always mention that the Vauxhall Law Centre acted for the tenants of what were known locally as ‘The Piggeries’. I was the solicitor at the Law Centre in the early 1980s, so it was a bit before my time! My involvement was limited to tying up some loose ends in relation to the legal aid bill! I mention this case here because it was cutting-edge and made possible because legal aid funding was available. 

What has this got to do with the 2018 Act? 

Let’s think about properties affected by condensation. When the rights of tenants were limited to ‘repairs’ under s11 Landlord and Tenant Act 1985, many cases failed because there was moisture and dampness caused by condensation. It was often hard to identify a ‘repair’ that was needed. The 2018 Act could bring in dramatic changes to this. The Act amends the 1985 Act by introducing a new s9A which introduces implied covenants by the lessor that the dwelling – 

(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 looks at matters that should be considered. These includes – ‘freedom from damp’. The section also refers to ‘prescribed hazards’. These 29 hazards from the Housing Health and Safety Rating System (HHSRS) include damp and mould growth. Earlier cases on the meaning of ‘fitness’ include health and safety as a major factor. So, there is potential for tenants now to bring claims in relation to mould even where there is no actual disrepair. 

What is often argued by landlords’ experts is that condensation is caused by tenants’ lifestyle. So, they should open all their windows to maintain airflow. This is said to be part of their duty act in a ‘tenant-like’ manner. What about those who live on the 15th floor of a tower block in December? Would I open all my windows in that situation? What about fuel poverty? Is a tenant who cannot afford to the inevitable extra heating costs, acting unreasonably? 

We are not going to answer these questions here. What we need are cases to be litigated so that we can test the arguments and develop/clarify the law. This is what happened in Liverpool City Council v Irwin and many similar cases. 

The problem of course, is funding. The unfortunate residents of The Piggeries had legal aid. Legal Aid funding is now very limited in housing conditions cases. You might get help, in extreme cases, to force the landlord to do urgent work. But that is about it.  Almost all firms that I have spoken to over the last few years have to act on a CFA. After the Event Insurance is essential because there is no QOCS protection in most cases. 

This raises all sorts of problems – 

1. Do the prospects of success mean that the firm can take the risk?, 

2. Will there be sufficient funds to meet the cost of the irrecoverable ATE policy?,

3. What about rent arrears that can wipe out most if not all of any damages?

How many firms are going to be in a position to run the cutting-edge cases to the Court of Appeal on a CFA? How many ATE insurers will back them? Law Centre’s were often the pioneers in the past, but there is no way that they can be expected to carry the burden. How many tenants are able to fund cases?

All of which is very frustrating.

We have a new and exciting Act which could indeed change everything. But it will be meaningless if tenants are unable to bring cases. 

If we want the Fitness for Human Habitation provisions to bring about real change then tenants must have access to the means of enforcing them. There is little point in having radical new legal rights, if there is no access to the enforcement of these rights. 

This can only be achieved by way of a properly funded legal aid system. 

Re-thinking Clinical Negligence again - Part 2 NHS or Private Care? (and a short history lesson)

 

This is the second blog post in relation to the recent report by the commons committee – the Safety of Maternity Services in England –

https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1902.htm

My previous post looked at the problem of separating Clinical Negligence from other types of negligence claim, and the so called ‘blame culture’.

Today I am looking at proposals to change the basis on which compensation is calculated. The report rightly notes that financial compensation is not always the only or primary reason for pursuing litigation. From the many cases that I handled in practice, it was clear that many victims and families are looking for explanations, answers to questions and an apology. One common outcome which many were seeking is unachievable in a negligence claim - the knowledge that ‘this person’ will never practice medicine again'. But while all this is true, it is also misleading, to think of damages as no more than a ‘payout’ – a word commonly used in the tabloid press. Seriously injured people need care, often for life. A suitable award of compensation is essential to meet these needs. This is a topic that I have touched on before –

 https://thestevecornforthblog.blogspot.com/2019/06/medical-negligence-lets-talk-about.html

“None of these victims have won anything. They and their families are left with a lifetime of struggle through no fault of their own. If they can establish that the injuries were caused by the negligence of medical practitioners, then they are entitled to damages. A small proportion is for the injury itself. The vast majority is to cover their needs for life.”

Which brings me to a familiar proposal in this report –

“100. At present compensation is calculated on the cost of providing private healthcare even when care is provided by the NHS. This is based on legislation that predates the NHS.”

To avoid confusion, if a victim actually does receive treatment on the NHS, they cannot then claim a sum of money based on a fiction that they received private treatment. I think the report is actually referring to treatment being available on the NHS. The proposal is that there should no longer be a right to claim the cost of private medical care; that victims should be required to use the NHS.

A person’s entitlement to claim the cost of private medical care and treatment is not limited to clinical negligence cases. This right is as old as the NHS itself – it does not predate it as the report suggests. It is worth briefly revisiting the history of the legislation.  Interestingly, the Beveridge Report itself looked at this issue. A possible requirement for an injured person to rely on the NHS was rejected by the Monkton Committee for two reasons –

1.       It would lead to courts having to make a choice between the relative merits of the state and other services,

2.       It would be inconsistent with the liberty of the individual if a person was barred from choosing the type of care they received.

This led to s 2 (4) of the Law Reform (Personal Injuries) Act 1948 –

In an action for damages for personal injuries (including any such action arising out of a contract), there shall be disregarded, in determining the reasonableness of any expenses, the possibility of avoiding those expenses or part of them by taking advantage of facilities available under the National Health Service Act 2006 or the National Health Service (Wales) Act 2006 ] or the National Health Service (Scotland) Act 1978], or of any corresponding facilities in Northern Ireland.

For further reading on this, there is an excellent law commission report from 2015 here - 

http://www.lawcom.gov.uk/app/uploads/2015/03/cp144_Damages_Personal_Injury_Medical_Nursing_Consultation.pdf

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.

It is also false economics. The treatment is still being provided. It is not going way. It just becomes a hidden cost as services are diverted.

This again demonstrates the risk in isolating one particular area of negligence for special treatment in order to save costs.

Finally, and a brief aside, it is worth noting that the number and the cost of clinical negligence claims being resolved without litigation has reached a record high –

https://www.legalfutures.co.uk/latest-news/more-nhs-claims-settling-without-proceedings-as-costs-payouts-fall

In my next post we will look at the basis for calculating loss of earnings.

Re-thinking Clinical Negligence - again Part 1

If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture.

This is the first of a few posts on the recent Commons Committee report – The Safety of Maternity Services in England –

https://publications.parliament.uk/pa/cm5802/cmselect/cmhealth/19/1902.htm

The report includes a section headed – Rethinking the current approach to clinical negligence.

I have to confess to feeling an instinctive sense of unease when politicians talk about ‘rethinking’ or ‘reform’. It rarely ends well.

The report starts out by referring to cost – “Staggeringly, the £1bn paid out in maternity compensation in 2018/19 was nearly twice the wage bill for all of England’s obstetricians and gynaecologists combined”. This is indeed an alarming figure. But we cannot lose sight of the incidents which are leading to these payments. They will not go away just because the system is changed. The report subtly shifts responsibility to claimant lawyers and to victims themselves – “Even more concerning is how much of this rising bill goes on lawyers’ fees” In fairness the report acknowledges the need to learn from mistakes, but the body of the report is not encouraging. In particular we meet a familiar villain – ‘blame culture’.

The report talks of ending this culture. It discusses the problems of ‘compensation based on finding fault.’ This is based on the false assumption that damages claims that arise from negligence in a clinical setting are somehow different  from those arising in other contexts. The law of Tort in this country has developed over many years. The law of Negligence has developed within this. As long ago as the 1930s there was a classic legal case, familiar to all first year law students involving a snail in a bottle of ginger beer. Lord Atkin gave us a quote that has underpinned negligence claims –

‘The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my neighbour ?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour’*

In other words, if you owe me a duty to take care, if you fail in that duty and I am injured as a result, you (or your insurer) must pay me compensation. This has become such an accepted part of our world that we rarely think about it.  If your accountant is negligent and you lose money you expect to be compensated. If your lawyer is negligent and you lose money you expect to be compensated. If your taxi driver is negligent and you are injured, you expect to be compensated. If a surgeon is negligent and your child is damaged for life, you are part of a blame culture. This is the danger of focussing on one are of life and treating it differently from others, for political reasons.

The report mentions a ‘new’ approach based on what is avoidable and refers to the experience in Sweden.

This risks setting aside decades of jurisprudence for the sake of political acceptability. The current system of clinical negligence, developed by judges over many decades has given us a strong foundation that has been capable of adapting to change. Two examples come to mind –

            1. Informed consent. A medical practitioner can only interfere with my body if I consent. In order to give that consent, I must be properly informed. I must know the risks and benefits. For many years, the medical profession decided what information I should be given. In a case called Siddaway v Board of Governors of Bethlem Hospital **, Lord Diplock said – “To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way.” By 2015 society had changed. In Montgomery v Lanarkshire Health Board*** the Supreme Court confirmed this in a strongly worded judgment. This was a case about risks and benefits of caesarean section delivery in the case of a mum with diabetes who had a large baby. There was a risk of shoulder dystocia which can be catastrophic. The treating doctor explained why she had not discussed the matter - “since I felt the risk of her baby having a significant enough shoulder dystocia to cause even a nerve palsy or severe hypoxic damage to the baby was low I didn’t raise it with her, and had I raised it with her then yes, she would have no doubt requested a caesarean section, as would any diabetic today.” The lower courts were bound to follow the Siddaway principle. The Supreme Court took the opportunity to bring the law into the 21^st Century – “A patient is entitled to take into account her own values, her own assessment of the comparative merits of giving birth in the “natural” and traditional way and of giving birth by caesarean section, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby. Gone are the days when it was thought that, on becoming pregnant, a woman lost, not only her capacity, but also her right to act as a genuinely autonomous human being” – Lady Hale. This is an example of how our common law has been able to adapt in order to reflect modern thinking.

            2. Damages. In 2002 Patricia Briody brought an action against St Helens and Knowsley Health Authority**** having lost her fertility due to their negligence. She wanted to recover the cost of a commercial surrogacy arrangement in the USA and to use donor eggs. That part of her claim failed. A commercial surrogacy arrangement was illegal in this country. In 2021 the Supreme Court allowed similar arrangements. Society had moved on. The arrangement was perfectly legal in California. Lady Hale observed that the persuasiveness of Briody had been mitigated by - ‘subsequent developments in the law and social attitudes relating to surrogacy’*****

             

These are examples of the way in which our law of negligence has grown and developed in a way that properly compensates victims and has reflected changes in and value of society. It is a backwards step, to take clinical negligence away from that whole body of law and introduce a entirely new concept of avoidability. That would also leave us in the strange situation where some jurisprudence applicable to clinical cases could apply if you were suing your financial adviser but not if you were suing your doctor.

 

It is healthy to learn from the experience of other countries. But they have their own history from which their approach has developed.  There is room for improvement. But we have a long and detailed history that cannot be cast aside just by calling it a blame culture.

 

I will discuss this in later posts. The report also includes worrying comments on how damages for care and for loss of earnings are calculated. Watch this space.

 

*Donohue v Stevenson [1932] AC 562

** Siddaway v Board of Governors of Bethlem Hospital [1985] AC 871

*** Montgomery v Lanarkshire Health Board [2015] UKSC 11

**** Briody v St Helens and Knowsley Health Authority [2001] EWCA Civ 1010

**** XX v Whittington [2020 UKSC 14

 

Whiplash - Concerning Doris and a nasty motor accident - what a difference a week makes!

Sunday 30^th May 2021

Bill and Doris are driving their Ford Fiesta along the Formby By-Pass on their way to Lady Rose nursery. This is part of their Sunday, after church, routine. They will potter around the gardens and then head to the café for a slice of lemon cake and a free coffee using their loyalty points. This is their regular treat, and  a far cry from the years that Doris worked as a midwife. They arrive at the Hightown junction and stop at the lights waiting to turn into the car park.

Behind them is Eric in his new BMW. He is a bit worse for wear after heavy Saturday night. He hears the familiar ping from his new phone and has a quick look to see that it is a text from Sharon. He has a quick and discreet read, and smiles. He slows down a bit so he can send a quick reply. But, in the words of John Lennon – he didn’t notice that the lights had changed. He is suddenly aware of the stationary Fiesta. He brakes quickly, but not quickly enough. No free coffee for Bill and Doris today.

Doris is wearing a seat belt. She is thrown forwards and then backwards by the impact. Just like a whiplash. She immediately feels dizzy and is sick at the side of the car. Over the next few days, her neck and shoulders become painful. She assumes it will go away in time. Weeks later she is still in pain. It affects her every day. She loses sleep. She cannot get comfortable. She talks to Molly at the Ladies’ Fellowship, whose son is a lawyer. She calls Tom who advises her that she can claim compensation. He can help her with the case. She is worried about the cost, but he tells her she won’t have to pay if she gets nothing and if she wins will pay him, no more than 25% of anything she gets,

It is 8 months before she is fully recovered. In fact she still has the odd twinge but doesn't want to cause a fuss. Tom secures a payment of £3250.00 which Bill and Doris use to buy that new shed they have been saving for.

Sunday 6^th June 2021

Now imagine the same scene a week later. Everything is identical. Bill and Doris, Eric, BMW, text message, John Lennon, painful injury. But everything else is quite different. Tom tells her that she will get just £840.00 for her pain and suffering. He won’t be able to help her because this is now a ‘small claim’. She cannot recover legal fees. She can do it herself using a new-fangled portal and refers her to a 64 page guide. She discusses it with Bill and they quickly decide…’Let’s not bother.’

What a difference a week makes. This is where thousands of genuine victims find themselves. Damages for whiplash injuries have been reduced to derisory levels for any accident after 31st May 2021. To add insult to injury, so to speak, a claim worth less than £5000 is a ‘small claim’ and there is no right to recover legal costs. The Ministry of Justice say that victims can access a portal. One which many lawyers have struggled to get their heads around. Most will not bother.

The excuse for all of this is that it is needed to combat fraud. This is a myth. I have written in the past about the tiny levels of dishonest claims -  

https://thestevecornforthblog.blogspot.com/2021/02/whiplash-reforms-who-benefits-answers.html

So Doris and the remaining 90% + genuine victims are punished as part of a so called war on the small number of fraudsters. Doris is a retired midwife who was out minding her own business, when the next months of her life are blighted by the carelessness of a young driver. She is compensated if she is injured on one day, she gets nothing if it happens a week later. And it is something to do with fraud. In what parallel universe do the words Doris and fraud appear in the same sentence? This is  nothing to do with batting anything, apart from the rights of genuine road users. 100% of genuinely injured road users have seen their rights taken away.

Who benefits? Insurers of course! They are already benefitting from record low claim numbers following lockdown when nobody was driving.

Victims cannot expect much support from the media who have been cheering from the side-lines.

BBC news on Monday 31^st May announced that the ‘reforms’ will mean a £35 drop in motor insurance premiums, boldly proclaiming – “The new rules will enable insurers to cut premiums for millions of drivers by about £35 a year, say ministers”. I don't know a single driver who really expects this to happen. 

Again we see the word ‘fraud’ just in case anyone is tempted to feel sympathy for Doris –

https://www.bbc.co.uk/news/business-57302790

Sky News went further with this headline –

Changes to Whiplash process will “put an end to greedy opportunism”.

So Doris is now a greedy opportunist.  

This is nothing to do with ‘process’. It is the wholesale wiping out of peoples’ rights. It is the first time that we have seen levels of damages fixed, not by the courts, but by government edict. The new figures have no scientific or judicial backing. They are randomly fixed to deter most claimants from taking any action.

A different kind of levelling up?

Reflecting on a year of Zoom - back to life, back to reality...

Training has been an important of my business since I left private legal practice in 2017. I have spent many a happy hour touring the country talking about Clinical Negligence, Housing Conditions and the practice of law! The arrival of lockdown in March 2020 was a worry. Where was nearly half of my business going to come from? It even crossed my mind that I might need to go back on the tools!

Before the end of May 2020, I had never presented a remote training event. I was unsure how this thing called Zoom that my techy son had mentioned, would do the job. What about power point? What about questions? What about eye contact?  I am one of those speakers who survives on those subtle smiles of approval and is always looking out for the raised eyebrow that says a tough question is coming!

I really began using Zoom and other platforms because it was only to stay in business during the lockdowns.

How quickly it caught on. In no time at all we were all in a daily routine focused on that magic green ‘screen share’ button. Phrases like ‘you’re on mute’ and ‘turn your video on’ have become part of daily language. Jackie Weaver became an overnight star…

Getting out of bed half an hour before the starting time, having a quick shower and putting on a clean shirt (forget the rest!) has been a surprising bonus. Remember those days of an early drive to Bradford or the red eye express to Euston. But it has been tiring in another way. I did a session last year where I did a full day course on Housing Conditions. All the 12 or so attendees were on where silent and had their cameras off. So, I spent the best part of 5 hours talking to my screen! You only realise how tiring that it when you do it.

What happens now as we head back home from this surreal land of Oz? On 25^th March I did my first live presentation for over a year. I was a bit nervous at first. Have we become a bit institutionalised? But it soon settled down. That feeling of talking to human beings, being interrupted, having a conversation was like a cold beer after a trek across the desert. ‘There’s no place like home’. 

In the last week, I have done a hat trick of events. Three days back-to-back – Oldham, Manchester and Liverpool City Centre. You only realise what you have missed when you find it again.

I did say during lockdown that I doubted if I would ever do a live course again. Now I am looking forward to the next. So, will the days of talking to little squares come to an end? Absolutely not. A course that I did for a firm in Brentford where staff were working at home could not have been done in any other way. Lots of business are likely to work in this way in the future. We are going to see the two-working side by side. A bit like home working. 

I will be doing real world courses where it is viable but me and Mr Zoom are likely to be friends for a long time to come.

Excessive force by police - you ain't seen nothing yet...

 

The world is still reeling from Saturday’s shocking images of women being held down by Metropolitan police officers as they attended a peaceful vigil in memory of Sarah Everard. There have been many calls for the resignation of the Chief Commissioner, Cressida Dick which misses a more significant and pressing issue.

These events provide a very disturbing backcloth to today’s debate in Parliament concerning the Police, Crime, Sentencing and Courts Bill 2021. This is a bill that threatens to massively restrict the right to lawful protest. It is one that has sneaked under the radar while we have been looking in other directions!

The Government’s own fact sheet make its intentions clear, they are to –

“Widen the range of conditions that the police can impose on static protests, to match existing police powers to impose conditions on marches”

This can include powers to impose start and end times. So, if a march or event goes over its allotted time, will police be able to repeat the scenes we saw on Saturday?

The new law with give the Home Secretary wider powers to control protest. Factors that might be taken into account include noise! Who will decide what level of noise is acceptable? At what point will noise reach a level that officers can wade in as they did in Clapham?

https://www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-protest-powers-factsheet

The definition of ‘serious harm that might be caused by an event will be extended to include – ‘serious annoyance’. Annoyance to whom? Most protests are directed towards the government of the day. Presumably they will be ‘annoyed’ by some actions. In fact, the nature of protest is that someone will disagree and therefore be unhappy.  This could cover almost all events.

There will also be stricter rules concerning organisers’ knowledge of restrictions. The fact sheet says that organisers – “cover their ears” (presumably not because of the noise!). In other words  they claim to be unaware. The new rules will introduce a new concept of constructive knowledge i.e. that they should know.

This is a very disturbing interference with our right to free speech and to assembly.

We all have a rights under the European Convention on Human Rights including -

 Article 10 freedom of expression.

 Article 11 freedom of assembly and association.

These are not absolute rights. The gov't can limit those rights if it is in the public interest and proportionate. Whether these limits on our rights are in the public interest or proportionate is highly debatable and could lead to many more disturbing scenes.

We know already that the Home Secretary described the Black Lives Matters protests as dreadful –

https://www.theguardian.com/politics/2021/feb/12/priti-patel-hits-out-at-dreadful-black-lives-matters-protests

There now appears to be a backlash to prevent protest and to put wider powers in the hands of the Police. In the light of Saturday’s events is this the sort of society we want to be part of?

We all need to speak out about this. One thing we can all do is contact our MP and encourage them to vote against the bill at all stages. You can find your MP here –

https://www.theyworkforyou.com/

Thanks to Chris Topping at https://www.jacksonlees.co.uk/broudiejacksoncanter who has contributed to this post.

 

Rutnam rakes in bumper pay day from Priti Patel

My first guest blog post! Thoughts on the Philip Rutnam settlement from my friend and Employment Law Expert, Steve Pinder of  Stephen Pinder - Employment Law Matters 

Philip Rutnam resigned from his role as the senior civil servant in the Home Office raising allegations of bullying against his boss, Secretary of State Priti Patel. He alleged that there had been a vicious and orchestrated briefing campaign against him after trying to get Ms Patel to change her behaviour. There have been wider allegations raised against Ms Patel in relation to how other staff were treated, denied by her, and a report was published some weeks ago.

My interest has involved the specific circumstances involving Mr Rutnam and what happened after he resigned. It has been reported that he pursued an unfair dismissal claim against the Government, and this must have been a constructive dismissal case. The press reports this week referred to the case being settled for £340k and payment of costs. On both sides I expect that the costs are likely to be at least equivalent to the damages paid, meaning an outlay to the public purse of nearly £700k.

An unfair dismissal case only will lead to compensation of the lesser sum of a year of earnings or the statutory maximum, currently £88519, in addition to the equivalent of a statutory redundancy payment. How then might the award be £340k by agreement, with Mr Rutnam earning around £150k each year, no doubt plus pension. Further, the Employment Tribunal does not usually award costs, and my guess is that the deal reflects certain additional factors. On costs, I expect that the Home Office agreed such generous terms simply to kill the case and avoid a hearing in public which would have likely required Ms Patel and officials to give evidence on oath.

As regards the value of the case, again there may be a premium to reflect the value of closing out a deal. I also expect that this is not only an unfair dismissal case, despite the reports. In reporting allegations against Ms Patel during employment I expect that the claim raised allegations satisfying the requirements of a protected disclosure under the Employment Rights Act, namely the whistle blowing provisions. This can involve a claim pursued against an individual such as the Home Secretary and a claim for damages for injury to feelings. Compensation is uncapped, explaining the reference to £340k.

Whistle blowing is a useful addition to an unfair dismissal claim in the right circumstances and can enhance remedy in negotiations and at Tribunal. In this case the public have ended up paying a substantial sum to cover the actions of a senior Minister, and probably double with costs. It is fine denying allegations but it is easy to use someone else’s money to back out of defending your actions in a public forum.

Steve Pinder