Homes and (dis)contents: getting full value out of the Homes (Fitness for Human Habitation) Act
Simon Mullings argues that changes to legal aid are needed to get the most out of hard-won legislation.
There was a frisson of tension at the Housing Law Practitioners Association conference in December 2018. The Homes (Fitness for Human Habitation) Bill, steered with extraordinary perseverance through parliament by Karen Buck MP, was close to becoming law but the government at the time was somewhat less than stable. This important bill was at risk if the government fell.
Happily, the bill received royal assent and the Homes (Fitness for Human Habitation) Act 2018 (H(FHH)A) came into force on 20 March 2019. Since that date, its provisions have applied in England (Wales will have its own provisions in due course) to new, replacement and statutory periodic tenancies and leases of less than seven years. Of more significance is that by inserting a new s9B(4) into the Landlord and Tenant Act 1985, virtually all remaining such tenancies and leases will be caught from 20 March 2020, when the vast majority of tenants in England will have litigable rights in respect of conditions in their homes. A new Pre-Action Protocol for Housing Disrepair Cases (England)
has applied since 13 January 2020.
I will not presume to explain in detail the workings of the H(FHH)A, given: (i) LAG’s Housing Conditions: tenants’ rights
does just that; (ii) the Act’s authors, Justin Bates and Giles Peaker, have written about it in this magazine (see March 2019 Legal Action
10); and (iii) the Nearly Legal blog
will provide expert commentary on litigation that ensues. However, I do want to add my voice to those emphasising the importance of this Act, and to make some remarks about how its full potential impact on the rented accommodation sector might, and should, be secured.
Put at its simplest, the H(FHH)A implies into the majority of residential tenancy agreements a covenant that the premises shall be fit for human habitation at the outset of the agreement and throughout the letting. Readers who are not housing lawyers may be surprised that this was a necessary innovation in the 21st century, to which the answer is that it is not, but is instead a revival and updating of provisions that have been on the statute book for decades but have been permitted to fall out of relevance.
Housing Act 1988 s21, via the satirically named Deregulation Act 2015, has been made to do heavy lifting on housing conditions by way of sanctions preventing easy routes for recalcitrant landlords to gain possession. It may thereby be understood that, on the one hand, the issue of housing conditions is of great concern, but on the other, successive governments have failed to get to grips with it in any straightforward and meaningful way.
While the H(FHH)A would not have made any direct difference to the circumstances of the Grenfell disaster, many consider that the bill that was ‘talked out’ in parliament in 2015, was called again in 2017, five weeks after the fire, precisely because, in the wake of the tragedy, the government recognised the need to be seen to be doing something about housing conditions.
The ideal outcome of this important legislation would be that simply by being enacted it will provide such a powerful supervisory effect that landlords in all sectors will promptly, and of their own volition, bring all accommodation to proper fitness standards. That seems unlikely.
As the pre-action protocol states, social housing tenants can seek redress through the Housing Ombudsman Scheme
(HOS). HOS statistics show that repairs is the largest subject category of complaint. It is surprising then that at the time of writing, the HOS website provides information only on the legal position prior to the H(FHH)A. That means of redress does not look promising, and is in any event not available to private renters.
The full value of the Act will only be realised if litigation under the H(FHH)A is available to enforce fitness standards and damages against landlords who fail to meet those standards. Litigation is a major part of the supervisory effect of any law mediating the relationship between contracting parties and between individuals and relevant authorities. Litigation is also essential in clarifying the practical effects of legislation through the process of bringing statute into contact with real-life experience.
Any inhibition on the ability of people of modest or low means to enforce their rights will dilute the utility of the H(FHH)A. Furthermore, given the statistics on the conditions of rented accommodation, a significant cohort of housing lawyers throughout the country will be required to help tenants ensure the Act achieves its purpose.
LASPO – special damage done to damages claims
There are no changes to the rules regarding legal aid for housing conditions claims arising out of the H(FHH)A. It follows that claims brought pursuant to the H(FHH)A will be in scope of legal aid to the same extent as disrepair claims, as set out in Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) Sch 1 Part 1 para 35.
Since 2013, legal aid has only been available to remove or reduce a serious risk of harm to the client or a member of their family by forcing repairs to be done – not to claim damages. This unnecessary complication in the rules has seriously depressed the extent of legally aided litigation in disrepair claims. Legal aid statistics show the extent:2Legal aid statistics England and Wales detailed civil data April to June 2019, 26 September 2019. I am indebted to the excellent Ministry of Justice legal aid statistics department for helping me extract the disrepair information.
Disrepair civil representation applications
While the Legal Aid Agency (LAA) will not fund work to claim damages for breach of repairing obligations and fitness standards, the costs incurred by solicitors in pursuing the order for works of repair that are not paid by the opponent are subject to the statutory charge, and so will be deducted from the damages that the LAA played no part in securing. I will be frank: it is mean-minded, tortuously artificial provisions such as this that have made LASPO universally despised among legal aid lawyers.
It also means that some landlords are not always sufficiently disincentivised from failing to abide by fitness standards. They may sit on their hands and only carry out works when litigation forces them to. If works are done before proceedings are issued, or even after issue but before a hearing, the LAA is unlikely to fund further legal work to try to obtain a costs order against the landlord, who has lost nothing by waiting to see if their tenant will litigate or not. The supervisory effect of the H(FHH)A is diminished at the same time as tenants are denied the right to representation to fight for compensation. And, of course, costs not recovered from the landlord are met from the public fund. There is no value for money in the legal aid rules on disrepair.
Conditional fees for housing conditions
It is right to say that conditional fee agreements (CFAs) may be and are used to fill the gaps left by legal aid. They are not, however, a direct substitute. First, CFAs do not offer costs protection against an adverse costs order. After-the-event insurance can be prohibitively expensive and difficult for clients to understand. Second, CFAs themselves can be difficult for clients to get to grips with and meritorious claims may be abandoned if clients lack confidence in understanding the CFA terms. Third, not all organisations, such as (but not limited to) not-for-profits, are able to manage the risk profile of CFAs, including funding disbursements for experts if the client can’t afford to.
At this point, it would be helpful to know whether or not there has been a correlative depression in disrepair claims since LASPO. Unfortunately, that information is not available from government statistics. It clearly should be, as it would be helpful to monitor use of the H(FHH)A in the courts and to gauge to what extent CFAs have been any adequate replacement for legal aid since LASPO.
Legal aid – general damage
My argument is that legal aid is critical and the H(FHH)A will not be as effective in its aims as it might be unless the LAA reverts to funding damages claims for disrepair and housing conditions claims.
There are also more general issues that, if not addressed, will inhibit the H(FHH)A. The Law Society has produced startling graphics of housing legal aid deserts
. Government policies have created vast areas where there is no local specialist solicitor to bring a claim under legal aid. The availability of enforceable fitness standards should not be a matter of geographical good fortune. If the LAA is to be considered an effective organisation to administer legal aid, it must show that it can eradicate advice deserts so that tenants can get advice and representation wherever they live.
In addition, legal aid means assessments and the financial contribution regime wrongly inhibit eligible tenants with urgent cases from pursuing those claims through the threat of legal aid being revoked. The LAA must move to a permissive culture of decision-making about means, and if contributions are not to be entirely abolished, there should be a moratorium for the first three months of an urgent case.
Making law work
While the focus of this article is the H(FHH)A, it can easily stand as a sister piece to an article I wrote in 2018 with Daniel Clarke and Derek McConnell, on legal aid policy and the effect on mortgage possession law (see June 2018 Legal Action
16). Any law is only as effective as the ability to use it. The H(FHH)A in particular was hard fought through parliament by a determined backbench MP and against the odds. That the bill succeeded tells us something about how important it is that its aims are achieved.
I contend that legal aid to use this law must be as liberally available as reasonably possible in order to allow these provisions to achieve their admirable aspirations.