“Every death was avoidable” said Richard Millett KC at the closing submission to the Grenfell Inquiry. Now we know from the inquest verdict into the death of two year old Awaab Ishak’s that this death was also thoroughly avoidable,and we know the catalogue of failures that caused the tragedy.
Awaab Ishak (photo from the family)Awaab died from a respiratory condition caused by exposure to mould in his home, the Coroner found. The landlord, Rochdale Boroughwide Housing, had been getting complaints of mould in the flat from the family since 2017, but no action had been taken, even after a pre-action letter, nor after reports from a health visitor and early years worker of the conditions in the flat and the risk to Awaab’s health.
The Coroner was clear, and we should be too, that the landlord’s failure to meet its obligations under section 9A Landlord and Tenant Act 1985 (as amended by Homes (Fitness for Human Habitation) Act 2018) led to the death of this child.
The Coroner was also clear that the property had inadequate or non functioning ventilation, such that normal use produced significant condensation and mould growth. (We’ll come back to tenant use below).
I am not going to set out the full litany of failings. The Manchester Evening News has done an excellent job of reporting those here. But there are some things I want to pick out in particular, as being common failings across the social housing (and indeed private) sector. There are also some issues about some tenant claimant solicitors’ practices that need to be raised, because they also played a secondary part.
The following might get intemperate at times. If it does, I apologise, but I am very, very angry.
Landlord’s first reaction to a report of mould. A housing officer
told Mr Abdullah he ‘would have to paint over it’ – but he never said to use specialist anti-mould paint, or gave any other advice.
A standard response at a time when the landlord had no legal liability for condensation related mould. Naturally, the mould returned a year later in 2018, but further complaints produced no action. I am only surprised that the family were not told to ‘open a window and keep the heating on’.
The there was RBH approach to reports and complaints. There were several different computer systems, and the one CRM system that everybody was supposed to be using wasn’t being used by everybody. The health visitor’s letter wasn’t on that system and other officers were unaware that Awaab even lived at the flat, including Mark Wrigley, the disrepair manager. This will be familiar to all those acting for tenants. The systems and training of the landlord’s staff are simply inadequate. There is no proper system for response, monitoring and checking.
In 2020, the family contacted a claims farmer through a Facebook ad. They were passed to Anthony Hodari Solicitors, who sent a pre action protocol letter in June 2020. When RBH’s officer, Mark Wrigley, inspected in July 2020. (This was after Fitness for Human Habitation came into force for this tenancy in March 2020, and RBH had had 15 months notice that this would be the case). He concluded the problem was ‘lifestyle issues’. Wait for it…
Cooking and bathing were believed to be adding to moisture in the property by RBH – including claims that ‘ritual bathing’ involving a ‘bucket’ was taking place, although the court heard workers never asked the family about this directly, while Mr Abdullah insisted it did not take place.
Oh, for heaven’s sake, that tired racist allegation. It gets trotted out with pretty much every complaint of damp, or raised as an accusation where there is a leak into the flat below, where the tenant is African. Here, apparently, concluded as being a cause without even asking the tenant. Housing officers have to stop with the racist assumptions, they really, really do.
(Again, remember that things like cooking and washing are the kind of things that people reasonably expect to be able to do in their homes without being accused of being at fault. And the property was belatedly found to have inadequate ventilation, such that normal use would produce the condensation and mould).
So, the housing conditions pre-action protocol is apparently underway. What does RBH do about remedying the defects?
Nothing.
In 2020, RBH had a policy not to carry out remedial works on properties which were subject to legal claims, until they had secured agreement to the works from the tenant’s solicitor. It meant that Mr Wrigley visited Awaab’s home on July 14, 2020, to draw up a list of repairs that needed carrying out, but the work could not take place until the green light had been given by Anthony Hodari.
*Deep breath*. Who came up with this ‘policy’? It is a nonsense, and harmful for both the tenant and the landlord. There is no, zero, nada requirement in the pre-action protocol for the landlord to hold off on works until they are agreed. From the landlord’s position, it actually makes sense to do the bloody works as quickly as possible, both to minimise the damages period, and to reduce the chances of the claim actually being issued, because it would quite possibly be a damages only small claim, so saving both ongoing damages and legal costs. It also makes sense for a landlord that actually, hypothetically, putatively cares about its tenants’ living conditions to sort things out as quickly as possible.
Sure, there might be arguments over elements of works later on, but that is a much smaller problem.
So, legally and objectively, this is a damn stupid policy, and one that would have the potential (as terribly played out here) to cause harm. Any other landlord having a similar policy should reconsider it immediately (and get proper legal advice).
Now, I am well aware that some tenant claimant acting firms routinely try to insist to landlords that no repairs should be carried out without their agreement, and some firms even advise tenant clients to refuse access to the landlord at least until there has been an expert inspection. (NB for clarity, I have no idea if the firm involved in this case, Anthony Hodari Solicitors, do or did this, so this is not a specific accusation.)
Any firm that does this is engaging in poor practice. There is, again, no legal basis for this. Moreover, it creates a significant risk of reducing claimable damages for the tenant client, as i) the landlord can raise refused/delayed access, and ii) delaying works casts a negative light on how serious the impact of the defects is on the tenant if they are prepared to delay.
In view of this, I would go so far as to say such advice and approach could be conduct bordering on negligence.
If there is a risk of works being done before an inspection, then the time to instruct an expert can be curtailed under the protocol in order to preserve evidence, after all.
Then, if the firm has such a practice of delaying access and insisting works must be agreed, it cannot be a general one. It ought to be quite rapidly apparent in a situation like this one that an interim injunction should be considered, at least to remove the immediate risk. Here, there was the health visitor’s letter/report to that effect.
But turning back to this case, it then turns out that Anthony Hodari Solicitors dropped the case in September 2020. We don’t know why, so I won’t speculate. It looks like a clear cut fitness for human habitation claim, albeit with at that time very limited damages (from March 2020 only), but there can be many reasons why a claim doesn’t proceed. However, Hodari didn’t tell RBH that they weren’t acting any more at the time. RBH apparently continued on the basis of their (wholly misguided) policy that they wouldn’t do any works until agreed with the claimant’s solicitor, without knowing that the solicitors weren’t acting.
This was apparently a policy of Hodari not to say when they stopped acting.
Stephen Lund, director at Anthony Hodari, told the inquest the firm had in fact dropped the case in September 2020, weeks before Awaab died. Mr Lund explained the firm has its own policy not to inform housing associations when cases are dropped to avoid prejudicing other legal action involving the tenant.
This completely mystifies me. Simply informing the landlord that you are no longer instructed can’t prejudice other legal action. It also leaves a continuing obligation on the (ex)claimant solicitor to pass on communication from the landlord to the former client, which is a waste of everyone’s time. I hope that policy is changed, because in this case, it appears to have a factor in further delay (albeit primarily due to the landlord’s misguided policy).
There were partial works in November 2020, but by December 2020, Awaab was dead. More ventilation works have since been carried out.
Postscript
As Karen Buck MP put it on twitter this evening
When @justinbates28 @nearlylegal and I got the Homes (Fitness for Human Habitation) Act through in 2018 we knew we needed more: investment in social housing, enforcement capacity, legal help and an end to victim blaming. But how-how!- could anyone ignore conditions like these?
It is a cause for rage and despair that even after Fitness for Human Habitation came into force for existing tenancies on 20 March 2020 (and after landlords, including social landlords, having had effectively two years warning about what it meant), a social landlord failed to respond to complaints of dire conditions, blamed the tenant (with racist stereotyping thrown in) and then adopted a catastrophically stupid approach to legal cases – which it had to admit had no legal basis in the inquest – while leaving the tenant and family in conditions even the landlord’s own surveyor came to categorise as unfit for habitation.
Perhaps the tenant should have turned the heating on and opened a window.
That the landlord was so organisationally incompetent that some key officers weren’t aware of there being a family in the property, despite it being known to the landlord, or unaware of the health concerns about the child being raised with the landlord by health workers, is sadly not a surprise in the slightest.
The same mess lies behind every social landlord refrain of ‘this was a regrettable one off incident that slipped through our system. We are learning lessons.’ (Predictably RBH are ‘learning hard lessons’. There is no evidence of any of the ‘lesson learners’ yet passing post lesson exams.)
But I am so tired of the excuses and the ‘we are so sorry we fell below our usual high standards on this occasion’ nonsense. There are hundreds of thousands of rented homes in England with severe condensation damp and mould problems. Double that with other damp issues. Landlords, the time has come to finally stop being crap at this, You are, awfully and tragically, killing people.
Bravo
Couldnt agree more . I’ve been inspecting and enforcing on private sector homes for years occasionally venturing into the squalid Social housing stock when permitted by the council. The system is somewhat let down by HHSRS as the hazard is underscored oweing to a low statistical reporting of it. Effectively asthma attacks are rarely reported as being linked to mould spores. Only when kids die is it noted. It’s also more common (mould) since energy became more expensive and buildings sealed up with chimneys blocked and windows renewed for DG. Doctors need to visit kids at home for asthma complaints. Social landlords and PS landlords need to stop dismissing mould complaints with turn heating up and open windows. EHOs and surveyors need better training at diagnosis. Social landlords have only ever taken notice when legal notices are served as they have to report on them . So councils/ LHAs get out there and inspect your stock. It’s a legal requirement as you know. Social landlords improve your systems. It’s another failure of deregulation. Housing ombudsman have been toothless when I’ve reported (ASRA) previously in 2017. We need people up in court on corporate manslaughter charges.
Giles, I lived in a property for 2 years with a constant struggle to get mould dealt with, this caused me a profound effect on my lungs which was permanent, my sats were reduced permanently to 94 and when I got Covid (alpha) of course I got it very badly and had to be ventilated for months.
In the first instance the Council would not take a report and told me to contact my private Landlord. The LL ignored my complaint but issued me with an eviction notice, luckily not a Section 21 notice but it showed intent. I think that is a flaw in the System/Law that tells Tenants to inform their Landlord first when a Section 21 notice revenge eviction requires the issue to have been reported to the Council first. There ought to be a website like there is for pot holes where one can make a report, upload photos, even if the Council does not do anything, it will be on record. Although the revenge eviction is a farce and only a 6 month delay, I would like to see this extended to 3 years along with a ban on increasing the rent for the same period, if they are found to have committed a revenge eviction.
I contacted the Council again but they told me they had cut backs and they did not have anyone qualified who could inspect it, the best they could do was to send me a “blame the victim” leaflet which suggested it was all my fault for cooking, drying clothes and Ironing. I always opened the windows if I was drying clothes and to be honest I only did about 1 or 2 washes a month. There were ventilation bricks and a bar in the window which was permanently open. I also used the pathetic extractor fans in the kitchen and bathroom, the latter was wired in. The property was as warm as toast, in fact there was a fault with the Economy7 and the storage heaters were getting power 24/7.
I read about how in the USA a building can be condemned if mould gets into the core of a building, The Homes (Fitness for Human Habitation) Act 2018 did not exist at the time, so I paid a surveyor to see if they could write some sort of report to help me to get the Landlord or the Council to take action.
The surveyor took opened up the fans which both had what looked like an alien blob from another planet, the ventilation ducts also were full of the mould, but it was not the only cause. He traced it to a faulty damp proof course of the blocks of flats (which were 1980’s 3 and 4 floor). Finally I had something concrete that I could use, or so I thought. I sent the report to the Council and to the Landlord, I decided at this point to withhold 50% of the rent until the matter was fixed. The Landlords response was to issue a 3 day eviction notice, based on an void term in the Tenant Agreement. The CAB told me he must give a proper notice period, I advised the Landlord and they issued me with a 30 day letter of eviction, the CAB advised I wait until the 30 days was up and tell them the 30 day notice was not valid or the proper form Section 21 form. Despite their letter the Landlord turned up after 3 days and tried to forcefully evict me, they used their keys but luckily the doors had internal bolts. They were banging on the door and windows for over an hour until a neighbour intervened.
It was at this point that I came across your blog Superstrike had not happened and there were all manner of case law decisions because the Landlord had not issued the PI or given me any information about the deposit protection. Anyway there followed a 16 month battle for eviction, during which time 4 defective Section 21 notices were served, in the final one the DDJ did not award the minimum 1x deposit protection sanctions and so I appealed. It ended up costing the LL £6k for the legal fees before appeal and £8k after, plus 2x deposit sanctions per tenancy. I had brought my rent up to date before the 1st Section 21 as I was advised it could make me look bad. During all this time the Council did nothing, never even came to inspect the mould and the Landlord sold the property within a a week of me leaving rather than fix it.
Some years later I became homeless and disabled, the Council decided after 6 months they owed me a housing duty and after 16 months in a hostel I got a social housing flat. I was taken to see it and the housing officer asked me to wait at the door, they then came out and said the property has been left in a bad state they would clean it an rearrange the viewing. When I finally got in I was shocked to find that there appeared to me mould on every window, in the living room walls and the bathroom. I called the HA and they assured me that although it was black, they had treated it and it was dead. They advised me to paint over it and said I could use an anti mould paint around the window frames if I wanted, they also advised I keep the window ventilation bars open (which I always did). The HA had a scheme where they would pay for the paint and materials if I got the redecoration done. So I got my family to help and the decoration was done, we paid for the anti mould paint ourselves.
The reason I have mentioned all this is that the anti mould treatment did it’s job, I have never had mould ever since moving in and that is over 7 years now. That is all it took, the proper works being carried out. I know that water leaks are a big issue when it comes to mould, we had a toilet in our block that leaked causing a mould issue for the flat below it and we had three ground floor flats where the original builders failed to plumb the kitchens to the proper drainage and that caused a mould issue.
All of these were remedied promptly and the mould issue resolved which tells me that although one can say “Every death was avoidable” this is surely a wrongful death and there should be some sort of manslaughter charge with a serious 20+ year sentence for the negligence of the Landlords and Council. Awaab got a death sentence, his parents, siblings, and other family members got a life sentence, losing a child never leaves you but losing a child because of the negligence and total disdain of Councils in carrying out their legal duties probably means they will never heal emotionally.
I hope every reader will visit the Manchester Evening News page you quote above and follow their link to the Change Org petition then spread this to their social media accounts, it only has 25 supporters so far, let’s see if we can get it to 100,000 at least. Thank you for your efforts in bringing this matter to wider attention, if we do not have laws that make executives culpable then we need an amendments to the The Social Housing Regulation Bill that is currently going through parliament.
This death was avoidable, but it highlights that much of our housing is a threat to health. According to the English Housing Survey, in 2020 2% of the English housing stock suffered with damp and mould, and 9% had a totally unacceptable threat to health (a Category 1Hazard under the HHSRS). It is outrageous and shameful that 9% of the 24 million English households are at risk of serious threats to health. Deaths should not be unexpected and could be prevented.
More disturbing is that existing duties and powers, if applied and enforced, should/would have prevented this tragedy.
In 2006, the Housing Health & Safety Rating System (the Rating System) was introduced as the Statutory method for assessing housing conditions for the purposes of Part 1 of the Housing Act 2004. The Rating System gives 29 potential housing Hazards, including Damp and Mould Growth, and Excess Cold. Part 1 of the 2004 Act places a duty on local authorities to take enforcement action where a totally unacceptable (Category 1) Hazard is identified in a dwelling, and a power to take action where an unacceptable (Category 2) Hazard is found.
It is important to note that the duty and power to require remedial action apply to all dwellings whoever owns them with the single exception of dwellings owned by the enforcing authority.
Worryingly, in 2021, the DLUCH commissioned a revision and update of the HHSRS. The draft of the proposed new “revised” Guidance (which has not yet been published but was expected to be in place by the end of this year) ignores the principle underlying the Rating System, hasn’t really been updated, will cause confusion, and will result in legal conflicts.
Also, the proposed “revised” Guidance weakens the HHSRS, meaning unhealthy conditions can be, and probably would be, ignored. It does this by introducing two new the concepts – one of “tolerable”, presumably a Hazard it is judged the occupier could/should tolerate; and the other referring to occupier behaviour causing or exacerbating a Hazard, opening the door to the occupier being blamed.
If adopted, this “revised” Guidance would result in increased suffering for individuals, days off school and off work, and greater demands on the health and care sectors. It would also increase the likelihood of deaths, including deaths from exposure to damp and mould.
As already stated, it is time to remind all landlords of their responsibilities, and to remind all local authorities of their duties to ensure all our housing is safe and healthy.
Reminds me of my former Landlord whose tactic was to disconnect my accommodation from the central heating to “constructively evict” me.
The implied term of fitness for habitation came in on 20 March 2019 rather than March 2020 or have I misunderstood something in this post/about the facts such it only applied from March 2020 in relation to the tenancy type? Thanks
It applied to already existing tenancies (pre dating 20 March 2019) from 20 March 2020.