Muna Adam reports on a disrepair claim that ran simultaneously with an ombudsman investigation, leading to a successful settlement for the tenant.
A regular topic in discussion at the recent annual conference of the
Housing Law Practitioners Association was the sense that it is becoming increasingly difficult to resolve disrepair matters
and get repairs carried out. It feels that landlords are increasingly not complying with the pre-action protocol. It feels that giving notice of and actually issuing disrepair claims is no longer leading to a flurry of action by landlords to carry out repairs and settle the claim. It feels that even when an order is made or a settlement is reached, legal aid lawyers are increasingly having to take enforcement action.
In the meantime, tenants and their families are stuck in housing conditions that put their health and safety at risk of serious harm. They understandably think that when lawyers get involved, their landlord will start doing what they are supposed to do. It is of little comfort to these tenants that there may be a remedy for the ongoing disrepair in damages at some point when they are living every day breathing in mould spores or with a leaking ceiling. They talk to their lawyers about their fear that their child will have the same tragic and unjust fate of Awaab Ishaak.
On 9 January 2024, the government launched a consultation looking at proposals for the implementation of Awaab’s Law, which intends to introduce specified timeframes to investigate
and fix reported health hazards (
Awaab’s Law: consultation on timescales for repairs in the social rented sector, Department for Levelling Up, Housing and Communities). The consultation closes on 5 March 2023. It is a welcome development and legal aid lawyers will be watching closely.
Osbornes Law has recently settled a complex disrepair claim in which the early complaint by the tenant to the Housing Ombudsman was helpful in achieving a successful outcome.
Damp and mould, twice over
The client was originally a secure tenant of a London local authority (Southwark LBC) in a two-bedroom flat, which he shared with his wife and two young children. In early 2021, they were moved to a second property as a permanent decant following reports of damp and mould at the previous property. Before the client moved, he was given a viewing of the property, where he noticed that one of the walls appeared damp. When he brought this up, he was told it was just wet paint and, concerningly, was asked to sign what appeared to be a disclaimer about the wet wall. Unsurprisingly, almost immediately upon moving in, the client realised that the property was suffering (again) from damp and mould, and this was reported to the local authority directly. Agents of the local authority came to the property a couple of times, but effective repairs were not carried out. The client eventually followed the formal complaint process, starting with the local authority and ending with the ombudsman.
Osbornes Law was instructed in around spring 2022. A letter before claim was sent. An expert inspected the property and found that it suffered from severe damp and mould throughout the whole flat, that the repair works were disruptive enough to require temporary decant, and that the flat was not fit for habitation. The local authority initially agreed to arrange a decant but delayed doing so and then warned that it would only be able to decant the family outside London.
Local authority ‘repairs’
Osbornes Law began preparing to issue the claim, along with an application for an injunction for works. Then, the local authority suddenly arranged a single hotel room (in borough) but gave the family less than three hours to move. It threatened the client that if he did not hand over his keys in three hours, it would pursue an injunction against him. No assistance was offered with packing, moving or storage, and no meaningful thought was given to the additional food, laundry and transport costs that would be occasioned by the move. The family were also asked to sign a disclaimer that they would not hold the local authority responsible for any damage to their belongings after they had handed over the keys (they did not, of course, sign this under advice). Osbornes Law managed to help make the moving arrangements more sensible, but it was an incredibly stressful time for the family. They were not happy to be in a hotel but were at least glad that the children had stopped coughing, pretty much overnight.
The family were in the hotel accommodation for around eight weeks. When they returned to the property, they found their belongings, including fragile items like their TV, thrown haphazardly in a big pile in one room. The children began coughing almost immediately, and the damp and mould quickly returned. The expert carried out a post-works inspection promptly and found that only cosmetic repairs had been carried out; the underlying causes of the damp and mould had not been investigated or attended to. The family had been uprooted to a single hotel room for eight weeks for a paint-and-plaster job.
The ombudsman reports
Osbornes Law prepared again to issue the claim but at this point, towards the end of 2022, the ombudsman report came in (
Complaint against Southwark LBC Housing Ombudsman Complaint No 202113463, 28 November 2022), and it was damning, with a finding of severe maladministration in respect of the local authority’s response to the client’s concerns about leaks, damp and mould. Despite the investigation only covering an earlier period, it recommended that over £7,500 compensation be paid to the client. This represented 75 per cent of the rent back for the period under investigation, another amount for the distress and inconvenience caused by the failures and delays in the local authority’s response to the disrepair reports, and a nominal amount for the distress and inconvenience of the maladministration of the original complaint.
Almost directly after that, the local authority’s entire approach changed. The client was offered a permanent decant. He and his family moved in early 2023 and were happy with their new home, the first home they had lived in for many years that did not suffer from damp and mould.
Osbornes Law opened a conditional fee agreement to pursue damages for the client, unsure of how to deal with the ombudsman award, there being no real clear precedent for the same. The local authority’s initial compensation offer was phrased to be offset completely against the ombudsman award, essentially leaving the client with no additional compensation.
In its negotiations, Osbornes Law set out several points:
•the ombudsman award did not cover the full period of disrepair, ending before the temporary decant to the hotel;
•the distress and inconvenience of the temporary decant arrangements, and the pressure and stress the family were put under to move with three hours’ notice;
•the distress and inconvenience of being decanted to unsuitable hotel accommodation for so long;
•the distress and inconvenience of having to move twice due to the failed repairs;
•special damages;
•the fact that part of the ombudsman award was for separate issues dealing with the handling of the complaint, which fell outside the disrepair claim; and
•its view that the court would take a dim view of all the above and would likely order a higher amount of compensation.
Osbornes Law eventually settled the claim for £6,500 on top of the ombudsman award (as well as reasonable costs).
A lesson for future cases?
On 17 October 2023, the Housing Ombudsman Service published its
Annual complaints review 2022–23. It noted a large increase in severe maladministration findings over the previous year, with the number rising from 31 to 131 (323 per cent). The main complaint type was property condition, which accounted for 37 per cent of all the findings the ombudsman made that year. The maladministration rate in property condition rose from 39 per cent to 54 per cent.
Although it cannot be known for certain that the Housing Ombudsman’s involvement was the decisive factor in the resolution of this case, it was significant. The period between the client’s initial formal complaint to the council and the ombudsman’s final report was a little over 18 months. This is shorter than the time it now usually takes to get a case from initial instructions to final hearing. If an ombudsman report can have the effect of incentivising local authorities to resolve disrepair issues faster, then this is something for legal aid lawyers to think about at the start of disrepair cases.