Three months ago we wrote about a research project and report on housing and health and safety law being carried out for Shelter by legal academics from the Universities of Kent and Bristol. Now the report has been completed.
The report is here and summary here. It is a fine piece of work, highlighting with clarity the out of dateness, failings and baroque complexity of the current law. As the summary puts it
The law relating to health and safety in people’s homes is piecemeal, out-dated, complex, dependent upon tenure, and patchily enforced. It makes obscure distinctions, which have little relationship with everyday experiences of poor conditions. Tenants wanting to remedy defects face numerous and often insurmountable barriers to justice. The law needs to evolve; no longer should occupiers be treated as posing health and safety risks, instead they should be treated as consumers of housing with enforceable rights to ensure minimum standards are adhered to. The state needs to accept its role as the primary enforcer of those standards.
Not only does the law require reform, there also needs to be a cultural change, so that those responsible for the health and safety of occupiers become pro-active in fulfilling those responsibilities.
We recommend a new Housing (Health and Safety in the Home) Act which is tenure neutral, modern and relevant to contemporary health and safety issues, and which encourages and provides resources for pro-activity by statutory authorities.
This should be a must read for everyone in the housing sector. And, at a time when issues of health and safety of homes and tenant involvement are more pressing than ever, the report should inform future debate and reform.
Congratulations to the authors.
- David Cowan (Bristol)
- Helen Carr (Kent)
- Edward Kirton-Darling (Kent)
- Edward Burtonshaw-Gunn (Bristol)
And of course, grateful thanks for the report’s strong endorsement of Karen Buck MP’s private members bill, the ‘Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill’. Second reading 19 January 2018 – tell your MP why they should be there to ensure the Bill is not talked out. As the report puts it:
We support the provisions of the Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill, which is due a Second Reading in January 2018. This would make it a requirement of all tenancy agreements that a home is fit for human habitation – judged against modern standards – while used as a home and create liability on a landlord for failing to do so. This Bill addresses and provides redress for the gaps which currently exist in the private law of landlord and tenant regarding the state and condition of the property; the restrictions on a landlord’s repairing obligations; and updating the criteria for determining fitness.
This is a Private Members’ Bill. It has been drafted in conjunction with senior members of the legal profession with intimate knowledge and appreciation of the current deficit in the law. It has been introduced previously and been “talked out” as a result of concerns about the over-regulation of private landlords. The data we have presented in chapters 2 and 3 of this report make the case for its adoption unassailable. In short, the regulation of the relationship between landlord and tenant as regards the state and condition of the property is woefully lacking.
Food law makes it an offence to have a dirty kitchen, health and safety at work law makes it an offence to use an unsafe system of work, both laws make it an offence not to make the improvements in a set timescale as set by the relevant enforcement authority. The consequence is, something bad happens and there is no improvement so two prosecutions, one for not fixing it, one for not keeping it right in the first place.
Housing law, the only offence is not fixing it when the enforcing authority tells you to, and even then the recipient of the enforcement has 28 days to prevaricate, the enforcement authority has to give at least 3 days from notification of the problem by the tenant to visiting (24 hours notice of inspection and 2 days for the post) and maybe more problematic of all, no overarching government agency (Food Standards Agency, Health and Safety Commission) that can threaten the enforcement authority if the enforcement authority isn’t resourcing the task properly
And of course, there is no enforcing authority for council housing (and in practice, social housing).
The Housing Act 2004 is tenure blind so can deal with social housing, BUT, the enforcement guidelines suggest that enforcing authorities give them an easy ride, allowing repairs to continue if they will eventually get fixed during a planned maintenance project (which of course may be a few years down the line.
And can’t be enforced against council at all.