We now have the Coroner’s Findings and Conclusion for the inquest into the death of Awaab Ishak, and also the Regulation 28 Report for the purpose of preventing future deaths. (My previous post on the death of Awaab Ishak is here. It was written quickly and angrily, and while I wholly stand by the content, the writing makes me wince.)
The findings and conclusion and Reg 28 Report can be downloaded from these links.
The Reg 28 report is made by the Coroner to Michael Gove as Secretary of State to raise matters that emerged during the inquest and which may prevent future deaths. A response is required within 56 days. The matters are:
1. The 2006 document, “A Decent Home: Definition and Guidance for Implementation” does not give any consideration to the issue of damp and mould. Nor does it provide any guidance as to the need for a property to be adequately ventilated.
2 The HHSRS data sheet relating to damp and mould, is used to calculate risks of the incident and the spread of harm is not reflective of the current known risks of damp and mould and harm to health.
3. There was no evidence that up to date relevant health information pertaining to the risks of damp and mould was easily accessible to the housing sector.
4. The evidence highlighted a “policy” amongst the housing associations, in cases where a disrepair claim has been brought of waiting for agreement from the claimant (or their legal representative) before rectifying any recognised disrepair.
5. The private landlord sector does not have access to the Housing Ombudsman for their complaints to be investigated independently.
I considered matter 4 – the ‘policy’ – in detail in my previous post. It has no basis in law or in the Housing Conditions Pre-Action Protocol. I’m not convinced that is a matter for Gove, or indeed for any legislative response. It just needs landlords (and some claimant solicitors) to acknowledge the stupidity of this, stop messing about, act according to the law and follow the pre-action protocol.
If they don’t, then, adopting a Gove tactic, I would be prepared to name and shame on this site, landlords and claimant firms alike. Both are letting down the tenants.
1 to 3 are good points indeed.
On 1. though, Decent Homes was never meant to be a complete property standard (and there is no more Decent Homes scheme funding). It now appears that DLUHC is contemplating Decent Homes as an enforceable standard for the private sector in the forthcoming Renters Reform Bill. If so, then Decent Homes needs to be a complete standard, certainly including ventilation, condensation and mould. And of course it should also apply to the social housing sector. I’m not sure that the Coroner quite grasped the status of A Decent Home. (Everyone needs a housing lawyer with them at all times.)
5 is likely to be answered by pointing to the Renters Reform white paper and allegedly forthcoming Bill.
Meanwhile the CEO of Rochdale Boroughwide Housing is refusing to resign and not answering any questions. The problems are certainly more widespread and deep rooted than just at RBH, and go further than the CEO’s leadership, such that a sacrificial scalp might be satisfying but hardly an answer. However, Mr Swarbrick will surely have to realise – as news of yet more mould ridden RBH flats and ignored complaints emerges – that clinging on is not going to work. But the moment for a dignified resignation has long passed, that ship has sailed over the horizon. He will end up going, without any last shred of dignity left.
[Update Saturday 19 Nov – the Board that backed him on Thursday has now sacked him on Saturday. Prophecy fulfilled.]
Also meanwhile RBH are reportedly to start works on other flats
RBH said it was spending over £1.2m installing positive input ventilation units in each flat “to improve air quality, circulation and to reduce the possibility of condensation and mould” and new extractor fans in kitchens and bathrooms.
That work is due to begin in December.
So, it has taken them whole two years and undergoing the inquest to decide to do this, and they haven’t even started.
Interesting what the coroner said about HHSRS – important point is that regardless of stats the starting point is the deficiency & damp & mould is both a deficiency & hazard.The likelihood of an occurrence here should have been 1 in 1 – that alone makes it a Cat 1 hazard. The OG does not & should not dictate the surveyor’s judgement of risks to health, the data only provides background.
The Decent Home Standard requires the dwelling to be free of all Cat 1 hazards so even if dampness not mentioned specifically – the damp & mould here made the home non- decent.
The current Operating Guidance refers to keeping up to date with research. The Government were advised back in 2004 to put such a system in place but failed to do so.
The Housing Health and Safety Rating System (HHSRS) is the Statutory method for assessing housing conditions for the purposes of Part 1 of the Housing Act 2004. This Act places a duty on local authorities to take action requiring a totally unacceptable threat to health (termed a Category 1 Hazard) to be remedied or the occupation prohibited. From the pictures in the press, the damp and mould were a totally unacceptable threat to health, and it seems the local authority were made aware of these conditions. The duty on the local authority applies to all housing irrespective of ownership, with the single exception of dwellings owned by the enforcing authority. This raises the question – Was the local authority in breach of its Statutory Duty?
Points 2 and 3 raised by the Coroner are right, and the HHSRS Guidance is in need of updating, but, nonetheless it supports the view that there was a Category 1 Hazards at the dwelling.
There is no need for new laws, the law exists, but was not enforced. Yes, the housing association was responsible for the condition; but the local authority was (and is) responsible for making sure that the associations housing was safe and healthy. It failed.
That is certainly true, and indeed was the Coroner’s verdict. My comments on that are here. https://nearlylegal.co.uk/2022/11/an-avoidable-death/
See the piece in the Guardian posted Saturday evening –
https://www.theguardian.com/society/2022/nov/19/uk-tenants-face-blame-for-causing-toxic-mould-and-deadly-hazards-under-new-rules
I may have missed the detail in the report, but was the complaint ever brought to the attention of the LA EHO or did the HA manage to retain it internally.
My experience of HA maintenance teams is that they use surveyors, usually RICS, and as such are very knowledgeable about structural matters but lack knowledge of the implementation of HHSRS, or fall into the trap of
Black Mould = Condensation = Lifestyle Issue
FULLSTOP.
I don’t believe it went to LA EHO. But getting them to investigate HA properties is an up hill battle. Had to resort to judicial review pre action protocol letters at times.
Re 4 – “It has no basis in law or in the Housing Conditions Pre-Action Protocol. I’m not convinced that is a matter for Gove, or indeed for any legislative response. It just needs landlords (and some claimant solicitors) to acknowledge the stupidity of this, stop messing about, act according to the law and follow the pre-action protocol.”
I agree, but it is important to consider the pre-action protocol letters sent to providers by the claimants’ solicitors. Some do it properly, but I see many letters where the solicitors tell the landlords NOT to carry out ANY repairs, save with reference to them and save with their agreement. Some go so far as to tell the landlord that they will apply for an injunction if the landlord starts such work without their consent; in my experience, as many do this as actually send an appropriately-worded letter. And the letters threatening dire consequences to the landlord will look convincing and authoritative.
Yes, this is utterly wrong-headed both in law and under the PAP – and any landlord that has access to decent legal advice will know this. But not all of them do.
There are also instances of those sort of solicitors telling tenants not to let the landlord in for any reason – whether to carry out an inspection or to do any repairs. Landlords suddenly find themselves confronted by missed appointments, or appointments being “re-arranged”. Yes, the landlord MIGHT be in a position where they have to seek an injunction against their own tenant to be able to access the property, but we all know that this takes time and money – time and money that would be better spent on the repairs.
Those claimants’ solicitors that have a “policy” of telling the landlord that all communication MUST be via the solicitor, and who then discontinue their involvement without informing the landlord of this, only makes matters worse.
“Everyone needs a housing lawyer with them at all times.” This is of course excellent advice. Many landlords (and plenty of tenants) have no idea just how good a piece of advice it is.
Indeed. I went into some detail on this issue in my first post on the Awaab Ishak inquest here – https://nearlylegal.co.uk/2022/11/an-avoidable-death/
I described claimant solicitors insisting on no works until agreed, and advising tenants to refuse access in the meantime, in the following terms:
“I would go so far as to say such advice and approach could be conduct bordering on negligence.”
FWLIW, I have seen a message from a repairs team that says “tenant has also advised me that we can’t do any more work before we have spoken with her solicitor”.
Without commenting on whether or not it is negligent (what else would incitement to breach a contract be, though?), I can say with some degree of confidence that some of these solicitors appear to have their own financial interests placed well above any duty to their client.
I do not see why it is unreasonable for landlords to communicate with the tenant’s solicitors when the solicitors have been instructed to represent their client.
The problem is multiple (these comments are all on the basis that the tenant has a viable claim) :
1. As businesses paying salaries, solicitors need and want to get paid for work undertaken. Social housing tenants typically do not have the money to pay for legal action and since there is basically no legal aid, nearly all cases are funded under a CFA where the solicitors only get paid where the tenant wins.
Landlords typically accuse solicitors of trying to run up legal costs, but the issue remains that if the landlord comes in and fixes the issue (especially if there is no inspection report), and then ignores the legal action, the only option for the solicitors is to run a small claims case, in which legal costs are pretty much unrecoverable. Regardless of anyone’s view of the disrepair legal sector, if solicitors are not paid for their work, it will not be financially viable for them to run cases and tenants will have no legal representation. Until this issue is resolved, there will be
this constant contradiction.
The current disrepair legal sector is a response to financial and legal realities; reform has currently focused on lowering legal costs paid by landlords, which without significant alternative legislation will just lead to tenants with no recourse.
2. If the issue has been ongoing for a long time, it will typically be rare that landlords have done nothing. Often they will done insufficient or incorrect works and landlords insisting on going in to do works which may not rectify the issue can lead to the disrepair recurring, but with the legal case collapsing.
3. The protocol is a complete mess, contradictory and does not account for financial realities.
It says that tenants must provide access for works, without any reference to an inspection of the property, which is in contradiction to the goal of the protocol to avoid litigation. Furthermore, it proposes either a single joint or a joint inspection, with no provision giving for when a landlord wishes to use their in-house surveyors, yet a clause that both sides should keep costs down which inherently promotes in-house surveyors. This allows for adept landlords to work to wreck legal claims with the full support of the protocol.
There either needs to be an alternative independent recourse system set up (not the landlord’s internal complaints procedure), which seems unlikely given the significant government investment this would require, or a legal protocol designed to account for the current funding situation.
Regardless of the above, in the vast majority of cases, works are not being completed due to the landlords failure to act; this includes settled cases where many landlords are making no effort to stick to the terms of the agreement and have to be sued multiple times, each involving substantial legal costs.
With all due respect, and I say this as a claimant solicitor, this is largely to ignore the law.
The landlord has a right of access to carry out repairs with 24 hours written notice. It has always been this way. The difficulties of CFA claims for claimant solicitors make no difference to that whatsoever.
I suggested here – https://nearlylegal.co.uk/2022/11/an-avoidable-death/ – that any claimant solicitor advising their tenant client to refuse access was borderline negligent. I’d stand by that. 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. It is also putting the solicitor’s interests above those of the client.
I don’t follow your complaints about the protocol at all. The protocol can’t override the law on access. It doesn’t suggest using in-house surveyors. If the landlord insists on their own in-house surveyor, rather than an independent SJE, then the claimant is wholly entitled to instruct an independent expert on a sole basis. If works are imminent, then the expert can be sent in immediately, rather than awaiting the landlord’s response, in order to preserve evidence – this is expressly provided for.
Of course, the odds on the landlord actually completing repairs before issue and allocation to track are very low indeed in my experience…
And, your first comment last, this is not about landlords communicating with the tenant’s solicitors. Of course they should. But pretending that there is a right to have works agreed or vetoed is a different matter entirely.
HHSRS has totally failed both landlords and tenants. Too few surveyors, lawyers, landlords and tenants understand and can apply it to individual properties. It is an example of academics and professionals producing a system which is not just of no practical use but is actually producing negative results as individuals. Organisations and individual owners hid behind this complex and impenetrable system. The originators should be ashamed of themselves but instead promote its continued use. Of course, they live in good quality owner occupied homes so don’t feel the impact of their handy work
HHSRS is primarily for use by Environmental Health Officers.
and that is a problem as the HHSRS has migrated into the fitness definition and so anyone dealing with fitness should know about HHSRS.
HHSRS is a weird system, but that is what the government introduced and that is what we have to work with.
Its effectiveness very much depends on the person and how pedantic they want to be, which often comes down to how much work they have to do.
The process is bureaucratic, has inherent delays built in and this just multiplies when the Notice is not complied with as it puts more financial pressure on the Council that will have to fund the work and then go through a debt recovery process.
But then, no law is perfect.
Alan – HHSRS assessment has not migrated into Fitness (though obviously a finding of a cat 1 or possibly cat 2 hazard would be good evidence). The HHSRS hazard *categories* are part of s.10 L&TA 1985 under Fitness, but not the assessment.
If there is an enforcement notice and it isn’t complied with, surely that is a civil penalty straight off? That should aid the financial pressure.
Landlord and Tenant Act 1985, Section 10 – ‘in relation to a dwelling in England, any prescribed hazard’; and then ‘In subsection (1) “prescribed hazard” means any matter or circumstance amounting to a hazard for the time being prescribed in regulations made by the Secretary of State under section 2 of the Housing Act 2004.’ so what I was meaning was that how can a person assess fitness if they don’t know how to assess a property using the HHSRS process.
With regard to Financial Penalties, I don’t think they have worked quite the way the Govt intended. I have just been informed that the Tribunal is to throw out an appeal against an Improvement Notice 3 years after the Notice was served and the recipient applied to the Tribunal for a re-hearing of my serving of the Notice, it took a couple of years before the Tribunal issued their directions and another year before they realised the Applicant had not done their bit.
I am also finding that most Financial Penalties are appealed because our landlords reckon the amount the tribunal reduces the fine by, is greater than their costs in bringing their appeal and so they see it as a profit.
In effect the landlord makes the application on the grounds that the financial penalty is too high with no argument as to why, and the FTT then has a full court hearing, full prosecution case files from the respondent etc and they then make their decision. So we might as well have had a trial in the first place.
As I said – it is the hazard categories that are imported. Not the mode of assessment. Unfitness is not reliant on a category 1 or 2 hazard being assessed.
Simple examples – there is significant mould growth due to lack of ventilation. Unfit. Doesn’t need an assessment. No heating – unfit. Doesn’t need an assessment.
My point on enforcement is that there are a range of options, not just the council doing the works and seeking to recover costs. And other ways to encourage landlords to comply. Breach of an improvement notice is an RRO offence, for example. And a banning order offence if you go the prosecution route.
Can anyone help me to understand this, please, because, the more I read, the more confused I become? RBH wrote to Mr Abdullah’s solicitors, Anthony Hodari, on 29 July 2022 setting out a schedule of works and, in effect, requesting permission to enter the property to carry it out. This permission was not given. Does anyone know why it was not given?
I cannot reconcile this with the media reports that Mr Abdullah was begging for the work to be done. It appeared RBH wanted to do the work but Mr Abdullah and/ or his solicitors did not allow it. This seems counter intuitive to an extreme degree. Mr Abdullah was suing RBH because the failure to treat the mould was potentially damaging to the health of the inhabitants but on the other hand was refusing to allow them to treat it. Surely, that cannot be the case?
Numerous press reports state that Mr Abdullah had consistently complained regarding the mould over the years but the Coroner’s report states, in Para 15 that “There is no evidence that between the advice being given to Mr Abdullah in 2017 and June 2020 that there was any indication given to RBH of the recurring mould.”
In September 2020 Anthony Hodari “dropped the case” but deliberately did not inform RBH. Why would they decide to drop a case which they appeared certain to win?
Am I missing something here because it all seems very odd. The Coroner appears to have left a lot of loose ends dangling which, for such a tragic case is baffling.
See my previous post. https://nearlylegal.co.uk/2022/11/an-avoidable-death/ which deals with all of the above.
Note it was RBH’s own policy not to do works during pre-action protocol stages of a claim without agreement by the tenant’s solicitors. This was a damn stupid policy with no legal basis. That is set out in the Verdict.
It is not at all clear whether this was also requested by the tenant’s solicitors. But if it was, that also has no legal basis.
Hodari’s policy on not informing the other side when they were no longer acting was just silly.
There are lots of potential reasons why claims don’t proceed, and we don’t know why in this instance. But it would have been a low damages claim and there may well have been a risk, so it might be that if works were likely to be under £1000, that it would have been a small claim and so wouldn’t be pursuable under a conditional fee agreement. Another reason to bring back full legal aid for such cases. Personally, I think the works would have been over £1000 – but these were very early days people applying Fitness for Human Habitation, which had only applied in this case from March 2020. Before that, RBH were not legally liable to the tenant for condensation mould.
There are questions about what further advice was given by the tenant’s solicitors by way of referral, or considering an EPA prosecution, or pointing to other agencies, or a potential homelessness application.
The legal process, especially since covid, is incredibly slow and epa/criminal cases are very difficult to win with compensation being unlikely. It’s hardly surprising that there is not a line of legal professionals waiting to argue over the definition of what is statutory to health against an EHO paid to deny everything.