On 19th September 2017 Secretary of State for the Department of Communities and Local Government, The Rt Hon Sajid Javid MP, made the following announcement
Over the past few weeks the Housing Minister, Alok Sharma, has been meeting with social housing tenants right across the country. And from those conversations it’s already clear that they want us to look again at the quality and safety of what’s on offer. To look again at the way tenants are listened to and their concerns acted on. To look again at the number of homes being built, at community cohesion and more besides. And that’s exactly what this government is going to do.
Today I can announce that we will be bringing forward a green paper on social housing in England… Of course, in the wake of Grenfell, the green paper will look at safety issues.
It is hoped there will be substantive changes to the law relating to landlord and tenant in the coming months and years after Grenfell. Whilst it is undoubtedly unfortunate that it should take such a tragic event to provide the impetus for reform, the reforms themselves should nevertheless be welcomed. A Private Members Bill which has gone largely unnoticed will proceed to its Second reading on 19th January 2018.
The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill, sponsored by Ms Karen Buck MP is a curious proposal of modest reforms to existing legislation relating to building standards. The Bill was successful at First reading on 19th July 2017, and is believed to have cross-party support as well as endorsement from The Opposition and the members of the Shadow Cabinet.
The Bill aims to redress deficiencies in existing legislation where a property is deficient, but which may not give rise to an action under disrepair.
- It identified that a claim under section 11 of the Landlord and Tenant Act 1985 is ineffective unless the property is ‘out of repair’ this means that a number of safety issues are out-of-scope of section 11.
- Similar issues were identified with section 4 of the Defective Premises Act 1972, which requires the property to have an actionable ‘defect’.
- Sections 79 and 80 of the Environmental Protection Act 1990 were identified as problematic because a safety risk would not necessarily result in the property being ‘prejudicial to health’, section 79(1) only applies to the effects of the issues and may not impose liability for, or a duty to, rectify the causes of the nuisance.
- Part 1 of the Housing Act 2004, and the Housing Health and Safety rating System (HHSRS) can encompass a broad umbrella of defects, including health and safety standards including risks to health, nuisances, fitness for habitation and other safety standards including fire safety. The salient issue with Part 1 and the HHSRS is that it is only enforceable by the local authority rendering it useless for council tenantsIt also means that the only method of enforcement is through the existing apparatus available to local authorities for instant abatement and improvement notices.
The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill seeks to address these issues in order to provide directly enforceable housing rights in relation to safety standards. The principal amendment is to section 8 of the Landlord and Tenant Act 1985. The amended section 8 imposes a covenant that the property is fit for human habitation on the lessor and that the lessor will keep it fit for human habitation thereafter. The other changes to section 8 are minor however worth noting is that the proposed section 10(b) would be amended to cover all category 1 hazards under the HHSRS. This means that the phrase “facilities for preparation and cooking of food and for the disposal of waste water” would be replaced by “any other matter or matters that may amount to a Category 1 hazard under section 2 of the Housing Act 2004”. In effect this would broaden the scope of the Landlord and Tenant Act 1984 to allow lessees to bring a claim for a breach of covenant where the lessor has allowed the property to contain hazards, be that excess cold, damp and mould, falls on the level or any other Category 1 Hazard as defined by the HHSRS.
The proposed bill would also amend section 38 of the Building Act 1984 to make the section effective. The amendment would require the Secretary of State to make regulations under subsection (1). Section 38, imposes civil liability for a breach of the standards contained within the Act in accordance with ‘the regulations’, these regulations were never made however so the section has no effect.
These amendments were considered within the Grenfell context, in particular the Bill aims to increase the liability of a lessor for issues which are not strictly ‘disrepair’ especially fire safety and other issues which may arise out of a defective property.
It is by no means a foregone conclusion that the Bill will succeed at Second reading without being talked down or talked out. It is thought that the Bill attracts cross-party support, but the issue is that there is no knowing how far or to what extent this support can be found in the Commons. It is thought the Bill will succeed in the Lords, if it gets that far, having attracted widespread support from the Liberal Democrat and Cross-Bench Peers. As with all Private Members’ Bills assessing the level of support is an inexact science at best, and the Bill may never find its way into the Statute Book.
The Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill is a step in the right direction; and with Sajid Javid declaring that the Government intends to pass legislation there is hope that reform may be just around the proverbial corner, provided that this government is still in existence long enough to enact any Bill it drafts after the proposed consultation.
For now, it may be sufficient to say ‘watch this space’.
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