Almost three years on from the tragic death of two-year-old Awaab Ishak in Rochdale, and ten months after coroner Joanne Kearsley’s Prevention of future deaths report, the Department of Levelling up, Housing and Communities (DLUHC) has published guidance on understanding and addressing the health risks of damp and mould in the home.
The guidance has been developed in consultation with various industry experts. Housing minister Rachel Maclean refers to the guidance as an ‘unambiguous package’ and sets clear expectations for landlords. This is essential reading for all landlords; a copy of the guidance can be found here.
What is the guidance?
Whilst much of the guidance will repeat what the vast majority of landlords now know about the very serious impact damp and mould can have on those living in affected households, particularly those in vulnerable groups, the guidance also makes abundantly clear that the responsibility for addressing the issue of damp and mould rests with the landlord. The guidance provides examples of best practice that the regulator for social housing and the housing ombudsman will undoubtedly expect landlords to adopt.
The guidance requires landlords to have a clear process for tenants to report damp and mould and take the concern of damp and mould raised by the tenant (or another professional) seriously and must assess ‘the issue with urgency’ to identify its severity, and further to tackle the underlying causes promptly. When there are concerns raised regarding the tenant’s health, there is a greater emphasis on the landlord to respond urgently. Health concerns extend beyond the physical impact damp and mould may have to also include the possible effect on a person’s mental health. The guidance encourages any tenant (and surely by extension any other occupier of the property) to consult a healthcare professional but also makes it clear that a landlord does not need to wait for medical evidence to act promptly.
Landlords are also encouraged to inform tenants what will happen as a result of a report, including when they can expect to be contacted, and details of how to complain if something goes wrong. Additionally, and in what some may consider unusual wording considering the content and context of the report, the guidance states that tenants should also be informed that a home visit may be required. Considering the intention of the guidance is to educate landlords on how to identify and address damp and mould, and references ‘observable damp’, it would seem inevitable that a home visit will be required.
Other requirements include a policy on how data is collected, stored and shared both internally and externally, establishing timescales for assessing damp, and ensuring a system is in place to ensure a review of the effectiveness of any remedial work carried out. There is also a requirement for all housing professionals – particularly those in tenant-facing roles and external contractors – to understand damp and mould issues and have an awareness of any relevant policies and procedures that underpin the message that ‘every contact counts’. There is also a suggestion that landlords managing a large number of at-risk homes may wish to consider employing a dedicated damp and mould officer.
Turning to the requirements on landlords to address damp and mould, the guidance refers to several improvements that landlords may wish to consider including improving ventilation, energy efficiency and inadequate heating, as well as the need to seek professional assistance if required to address underlying causes. Whilst avoiding any blame towards the tenant, landlords are also encouraged to ‘build a holistic understanding’ to consider other factors such as fuel poverty which may be a contributory factor to occurrences of damp and mould. Interestingly the guidance also states that landlords should be providing clear written instructions on how to use the heating systems, and should also consider any communication barriers which may affect a tenant’s understanding of this such as English not being a first language, or a disability.
What is the impact?
Contrary to the comments of Rachel Maclean, much of the guidance is ambiguous around the specific impact on landlords. There is a clear emphasis on the need for urgent action, yet the guidance does not extend so far as to define what an urgent response would be. It would seem what is urgent in this guidance will be similar to the requirement of a landlord to undertake works within a reasonable period of time to complete works in housing conditions claims.
The ministerial forward to the guidance states that ‘Awaab’s Law’ will be brought into force as soon as parliamentary time allows. Could the guidance for landlords to act with urgency be gearing the industry up for Awaab’s Law and extend the guidance to act urgently to a time-specific legal requirement? In an interview with Inside Housing, housing minister Rachel Maclean confirms it is the intention of the Government to ‘give social landlords strict time limits to make repairs’. This could be akin to the 21-day period provided to landlords to act under section 82 of the Environmental Protection Act 1990 which anecdotally already puts landlords under a great deal of pressure to act in time. Whilst there has been a small increase in the number of EPA claims in the past 12 months, they remain in the firm minority with most tenants pursuing statutory and contractual claims under ss9A – 11 of the Landlord and Tenant Act 1985, which does not have a specified time requirement for landlords to act. Should this position change, and EPA claims or what will be Awaab’s Law change this; there could be a seismic change to the legal landscape and how landlords react to housing conditions claims.
A further consideration for the landlord will be that it is likely that the requirement to act urgently will continue even on occasions where the tenant ceases to cooperate. Landlords should utilise all options available to them, including injunctive proceedings to ensure they do not fall foul of not only their express and implied repairing obligations but also the guidance.
As a result of the latest publication, landlords should also review their policies to ensure they are consistent with the guidance and training for all housing professionals, from housing officers to CEOs. Landlords may also wish to review budgets to ensure the requirements of the guidance can be delivered as it will certainly be costly for any landlord who chooses not to follow the guidance with the keen eyes of the Government, regulator and press all focused on the sector. Whilst the guidance places a greater burden on landlords, the health and well-being of tenants should always be a priority, and ensuring that a repeat of the tragic circumstances surrounding the death of Awaab Ishak should never be repeated.
For more information
If you would like more information on how the new guidance may affect you, please contact Bethan Jones.