The Social Housing (Regulation) Act 2023 (“the Act”) received Royal Assent on 20 July 2023.
Amongst other matters, the Act introduced a new implied covenant, (known as “Awaab’s Law”) requiring social landlords to investigate, and remedy, hazards in their properties within strict time limits. The Government’s consultation on Awaab’s Law closed in early March 2024 and secondary legislation is awaited to bring Awaab’s Law into force.
This secondary legislation will introduce regulations requiring social landlords to “take action, in relation to prescribed hazards which affect or may affect the leased dwelling, within the period or periods specified in the regulations”. In circumstances where a social landlord is not able to make any affected property safe for on-going occupation, they could be required to secure alternative accommodation for the occupants.
In addition to damp and mould, the Government proposes to extend the scope of Awaab’s Law to include all 29 hazards in the Housing Health and Safety Rating System (“HHSRS”). Under the Decent Homes Standard, a dwelling should be free from hazards which a HHSRS assessment has identified as being at the dangerous “category 1” level. The Government goes one step further and proposes defining hazards which are in the 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 would require social landlords to assess the severity of hazards on a case-by-case basis; what might be considered a "significant risk" to one resident might not be identified as such for another. This subjective approach means that a hazard which is assessed as posing a significant risk might not amount to a category 1 hazard in a HHSRS assessment.
The Government’s proposals for compliance include requiring all social landlords to carry out physical investigations of their properties within 14 calendar days of any potential hazards being reported to them and to provide the affected residents with a written summary of their findings, next steps and any anticipated timeline for repair within 48 hours of the inspection. Medical evidence should not be required from residents to prove a hazard poses a risk to their health or safety.
If an investigation concludes that the reported hazard poses a significant risk to the health or safety of any resident, the Government’s proposal is that the registered provider must commence repair works within 7 calendar days of the written summary being issued.
If an investigation identifies damp and mould, the proposed approach is for a registered provider to take action to remove the mould spores as soon as possible. In all cases, any repair works must be completed within a “reasonable time period” What is deemed “reasonable” is not yet known but the tenant needs to be informed of the time period and their specific needs considered.
As would be expected, it is also proposed that social landlords must action emergency repairs as soon as practicable and, in any event, within 24 hours.
Once it has analysed and published a response to the consultation feedback, the Government intends to introduce secondary legislation bringing Awaab’s Law into force as soon as practicable. The implied covenant to remedy “hazards” which is at the heart of Awaab’s Law, could have a wider reach than the statutory repairing obligations set out in section 11 of the Landlord and Tenant Act 1985 (“section 11”) and capture issues arising from poor design and inherent defects. Section 11 implies a covenant in tenancy agreements that landlords must keep in repair the structure and exterior of dwelling houses as well as installations for the supply of essential services. This means that issues, such as mould, caused by poor design e.g. bad ventilation rather than disrepair, are not necessarily actionable under section 11.
Awaab’s law may also enable more legal claims to be brought against social landlords for hazardous living conditions that are not caused by disrepair, although the course of action is likely to be a claim for a breach of covenant as opposed to a claim of statutory nuisance under the Environmental Protection Act 1990.
We do not yet know when the Government intends to introduce the secondary legislation which will bring Awaab’s Law into force but they have confirmed that this will be done “as soon as practically possible”. We anticipate that the Government will publish their analysis of the public’s feedback to the consultation before any legislation is introduced.
The Act also includes measures for improving the regulatory regime for social housing which came into force on 1 April 2024. Of particular significance to disrepair claims, are the additional regulatory and enforcement powers granted to the Regulator of Social Housing (“RSH”) which include:
All registered social housing providers are subject to the new regulatory scheme with failing registered providers facing unlimited fines if they fail to meet expected standards.
The Act is aimed at improving living standards for tenants, and enhancing the powers of the Housing Ombudsman and the RSH. However, it will also increase the pressure on social landlords, many of whom are already constrained by resources and the availability of contractors to carry out repairs.
The Ashfords’ Contentious Housing Team has seen a sharp rise in the number of disrepair claims and the number of claims is likely to increase further in light of the changes highlighted above.
Social landlords should therefore ensure that their policies and procedures are updated to take account of these changes to the regulatory regime, and ensure that all notices of defects or disrepair are actioned in accordance with the regulatory requirements and the statutory timeframes of Awaab’s Law when enacted. Watch this space for a sequel to this article which will examine the detail of these regulations as and when they are published.
If you have any queries about the Act, housing disrepair or the regulatory changes please contact either Amelia Pine or Zoe McGovern in our property disputes team.
