As you will doubtless recall, the Social Housing (Regulation) Act 2023 introduced a new section 10A Landlord and Tenant Act 1985, implying a term into all social tenancies that the landlord will comply with all ‘prescribed requirements’  on responding to relevant defects to be specified in regulations – the framework for ‘Awaab’s Law’. A breach of section 10A would be actionable by the tenant in the County Court – quite possibly together with section 9A/10 and section 11.

Now DLUHC have published a consultation on the contents of the proposed regulations, and they make very interesting reading in terms of the proposals to be consultation upon.

The headlines are:

Relevant defects – now it was obvious, given the context, that damp and mould would be in there, but DLUHC have taken a broader and – it has to be said – more coherent approach. The proposal is that all 29 (current) HHSRS hazards would be relevant.

We propose defining hazards in scope of Awaab’s Law as those that pose a significant risk to the health or safety of the actual resident of the dwelling. This means that a hazard does not have to be at category 1 level in order to be in scope of Awaab’s Law. This is because there may be instances where a particular resident is at a greater risk from hazardous conditions, for example a resident with asthma may be at greater risk from a home affected by damp and mould. An HHSRS assessment does not take the actual resident into account when establishing if a hazard is at category 1 level. Instead, it assesses whether the risk arising from the hazard is greater for a particular age group than any other age group in the population.

To determine whether a hazard poses a significant risk and is therefore in scope of Awaab’s Law, our recommendation is that landlords use their judgement and the existing processes they have in place for triaging repairs. Landlords should also utilise a range of available information to determine whether there is a risk to residents, including HHSRS guidance, information about residents’ vulnerability or age, and other available guidance including the consolidated guidance from DHSC and DLUHC on health risks in housing (Understanding and addressing the health risks of damp and mould in the home). If a landlord receives evidence from third parties – for example from registered healthcare providers, social workers, or schools – they should also factor this into their assessment.

Now, I can imagine a couple of issues with this – for example on overcrowding as a hazard – which we’ll come back to below. But the principle is sound. If there is a hazard that presents a significant (not necessarily serious/category 1)  risk to occupants, then it should qualify. Leaving it to landlords to assess what is a significant risk will likely lead to disputed claims, but hopefully settle down after the first tranche of cases.

Then to timescales – and this is the important part, given that any such defects would currently be actionable under s.9A/10 but after ‘a reasonable time’ for works to have been done.

Landlords would have 14 days (calendar, not working) to investigate from being on notice of the defect.

The Awaab’s Law campaign recommended that social landlords be required to investigate the causes of damp and mould within 14 calendar days of a complaint being made. We have tested this with stakeholders (including residents and social landlords) and consider the 14-day time scale appropriate. As noted above, we propose extending the scope of Awaab’s Law to include all hazards as defined by the HHSRS).

As the consultation correctly points out, being on notice is not simply dependent on a complaint by the tenant.

Social landlords must be aware of the hazard in order for these timescales to apply. We propose that the registered provider can be made aware of a hazard by any traditional means (for example by email, phone call, letters or other means that landlords offer for residents to raise service requests), as well as becoming aware of the hazard through their own scheduled surveys or investigations.

This is indeed the current legal position, and I would add that where the defect is to common parts or parts retained by the landlord (eg the roof of a block of flats), the position in law is that they are on notice immediately that the defect arises, regardless of any tenant complaints – a point I shall make to DLUHC. The consultation also adds, for clarity, “It will not be necessary for residents to take a complaint through a landlord’s formal complaints procedure in order to trigger the timescales.” Quite right…

After the inspection (in that 14 day window), the lanlord will have two days to do a report and provide it to the tenant.

The written summary must specify, at minimum:

• How and when the investigation was conducted, and the job title of the individual who conducted the investigation.
• Any following investigations that are required, and if so when they will take place
• If a hazard was found and if so what
• Whether the hazard is likely to pose a significant risk to residents’ health or safety
• If it does pose a risk:
  • [If applicable] what temporary repairs are needed to make the property safe until the problem can be permanently rectified
  • what the registered provider will do to permanently rectify the problem and the likely timescales for this
• How to contact the registered provider with any queries

If a “significant and imminent risk of harm to the health or safety of an individual” is identified, an emergency timescale will apply – see below. Expect argument over whether a significant and imminent risk of harm is present (as this is to be identified initially by the landlord). There is no need to wait for a written summary to be done before taking action in ’emergency’ cases.

If the emergency timetable is not engaged, works should begin within 7 days.

We propose that if the investigation (as set out in proposals 1 and 2) finds a hazard that poses significant risk to the health or safety of the resident, the registered providers must begin work to repair the hazard within 7 days of the written summary being issued.

Beginning works would mean:

We consider that ‘beginning’ repair works would entail a worker being on site physically starting to repair and rectify a hazard. It will be irrelevant whether works are carried out by in-house workers, external contractors, or a combination.

So, the timescale for beginning works to remedy a hazard (temporarily or permanently) is – at most 23 days from being on notice.

But on a timescale for completing works, things get a little more messy.

We propose that registered providers should be required to complete repairs within a reasonable period – meaning repairs should not be unreasonably delayed and evidence should be provided where delays to repairs are necessary. Planned programmes of works in the future cannot substitute work needed to address hazards in social homes, which must be prioritised.

Timescales for the completion of works should reflect the nature of the problem, for example repairing space and water heating systems must be treated more urgently during colder weather and can be challenged by the tenant.

Timescales for completing repairs should be proportionate to the scale of the repair and consider the needs of occupants. For example, tighter timescales may be required for elderly or vulnerable individuals.

Ah, ‘reasonable period’ my old friend. So you’ll not be leaving us after all.

There are some useful observations in this – eg that a ‘reasonable period’ does not mean putting everything off until the planned works programme next year or the year after – and that urgency also depends on the tenant’s needs, not a fixed timescale. It is also noted that while temporary repair or remediation may be needed in advance of full rectification (eg cleaning off mould immediately, then fuller works to address defects that give rise to the mould) the fuller works need to be planned and scheduled – a patch repair then walking away is not enough. It will be interesting to see whether and how these suggestions will be embodied in the regulations themselves.

But the arguments over what amounts to a reasonable period will continue.

On emergency works:

There will be circumstances where a resident reports a hazard in their home that warrants an emergency repair. Hazards that pose significant and imminent danger to residents will require faster action and should be treated as an emergency by the landlord. For example:

gas leaks
broken boilers
lack of water supply
electrical hazards such as exposed wiring
significant leaks
broken external doors or windows that present a risk to home security
prevalent damp and mould that is impacting a resident’s ability to breathe

The proposal is for action on emergency repairs within 24 hours – from inspection (which does not necessarily mean attendance at the property – photos from the tenant could be enough, for example).

If a property cannot be made safe within the required timeframe, then temporary accommodation or a decant should be offered.

As noted, we recognise that there may be limited circumstances where landlords are unable to begin or complete repair works within set timeframes. In such circumstances the registered provider is expected to address the hazard and make sure the property is safe for the resident to remain in, using temporary measures where necessary. For example, if a severe electrical hazard was found and a qualified electrician was not available until the next day resulting in electricity in the property being switched off, the landlord should offer for residents to stay in alternative accommodation for the night until the qualified electrician can attend. If a window is broken in colder months and a replacement window will not be available for several weeks, the landlord should install temporary insulation measures within 7 days, and if for any reason they are unable to, they should offer the residents to stay in alternative accommodation until the issue can be fixed.

We propose that if for any reason the registered provider is unable to make the property safe with repair works or temporary measures, they must offer for the resident to be temporarily decanted at the landlord’s expense before it can be addressed. Engagement with the sector has informed our understanding that this proposal is in line with existing repair and decant policies across providers. Suitable alternative accommodation could include vacant social housing stock or hotels.

Then record keeping (and prospective defences to a section 10A claim?)

Access – the landlord is to make at least three attempts to contact the tenant to arrange access at an agreed time. They are then to make three attempt to access at the agreed times.

• landlords must make at least 3 attempts to contact the resident (or appointed representative) and arrange a suitable time to access the property
• landlords must work with residents to arrange a suitable time to visit the property. Landlords should offer timeslots for residents to choose from and should take into consideration the residents’ needs (for example their working pattern) when offering timeslots to attend to the property
• if the registered provider is unable to access the property within the agreed timeslot, they should leave the resident a notice stating that an attempt was made and providing contact details. The registered provider should contact the resident and offer an alternative slot
• landlords will not be expected to make more than 3 attempts to access the property within agreed timeslots. They will be expected to keep evidence that they have made best efforts to work with the resident to identify a timeslot and the resident has either not responded or has refused access within that slot
• throughout this process, we will require landlords to keep a record of all correspondence made with residents, noting the date, time and actions attempted

Shortage of labour or materials causing timescale problems:

In these circumstances, landlords must keep residents updated on any delays and keep a record of that correspondence. Landlords should also keep a record of their attempts to source workers and/or materials in case they are challenged for failing to meet timescales.

In these circumstances, landlords must put in place measures to ensure that the property is safe, and if they are unable to do so within the Awaab’s Law timescales, their responsibilities under proposal 6 will apply. This means that if a landlord cannot begin repair works to a hazard that poses a significant risk to the health or safety of the resident within 7 days, and they are also unable to put in place temporary measures to make the property safe within 7 days, the landlord must offer to arrange for the resident(s) to stay in suitable alternative accommodation until it is safe to return.

These are the main proposals. On the whole, this sounds good. There will inevitably be some points of particular dispute (significant risk, reasonable time – of course – and whether works are sufficient to remedy in the short and longer term to remedy the defects.) But clear timescales for responding to notice of issues (where notice is required), and for at least beginning works are immensely helpful.

Having the relevant defects cover the whole HHSRS hazard list is logically a good idea. If the point is to address risks to the health and safety of occupiers, it makes no sense to separate out some risks for special attention. It is also an approach that tallies with the s.9A/10 fitness for human habitation obligation and strengthens it. That said, as mentioned above, one HHSRS hazard – space and crowding – is not really suitable for mandated works within 23 days. Works may well not be the answer. While a decant would remove the immediate hazard, it is not a long term solution. I do wonder whether this hazard needs to be considered separately. (This is also the reason why bringing a fitness for human habitation claim on overcrowding is a tricky proposition where claiming under an implied term of the tenancy agreement for that property.)

This is a consultation, of course, but the direction of travel for the potential regulations is clear.

As an afterthought, I would also suggest that s.10A plus regulations will blow the whole ‘oh you must go through the complaints process as a form of ADR and we will seek to stay any claim until you have done so’ line of argument from some social landlords and their layers out of the water. There’s the timescales. Have you complied? No? That’s a breach, and given the recognised need for urgency in the (prospective) legislation, no basis for further delay for a complaints process, then a complaint about the first complaint not being dealt with (and then a prospective meta-complaint to the Ombudsman about the landlord’s failure to respond adequately to your complaint about your complaint about the landlord not dealing with your original complaint properly.)