“Fit for human habitation”?
In this article, junior tenants Bradley John-Davis and William Lacey consider recent changes to the law on personal injury arising from allegedly defective housing, particularly as it relates to social housing.
The law on personal injury claims in a defective housing context has been on the move since the 1950s. Parliament’s latest legislative intervention has the potential to make a significant impact on the outcome of such claims if they occur in a social housing context, and to reverse the burden of proof on certain key factual issues.
A social housing provider defending a personal injury claim brought against it will often have the legal status of, simply, “landlord”. If the claim arises from an accident which took place in a communal area, the provider might be an “occupier” within the meaning of the Occupiers’ Liability Act 1957. A social housing provider can also be considered as a “state entity” if an element of the claim engages the Human Rights Act 1998: see, for example, Lee v Leeds CC; Ratcliffe v Sandwell MBC [2002] EWCA Civ 6, [2002] 1 W.L.R. 1488.
The common law has traditionally taken a landlord-friendly stance in respect of liability for personal injury arising out of defective housing. In the leading case at common law, a landlord who knew of a dangerous defect, and let the premises without any warning, effectively enjoyed immunity:
“A landlord who lets a house in a dangerous state is not liable to the tenant’s customers or guests for accidents happening during the term: for, fraud apart, there is no law against letting a tumble-down house; and the tenant’s remedy is upon his contract, if any.”
Cavalier v Pope [1906] 2 AC 428 (HL), per Lord MacNaghten at 430
Perhaps surprisingly, Cavalier v Pope remains good law, and many attempts to distinguish or evade it have failed. The law reports of the 1930s and 1940s contain several examples of its harsh operation. A striking example is Bottomley v Bannister [1932] 1 KB 458 (CA), in which a homeowner and his wife had both died from carbon monoxide poisoning. The Court of Appeal held that vendors are not liable to purchasers, nor landlords liable to tenants, for dangerous defects in a house; and this remained the case even if the defects were caused by the vendor or landlord’s own negligent work.
During the great expansion of social protection in the post-WWII era, the Government enacted a series of housing statutes which sought to guarantee better protection for tenants. Section 6 of the Housing Act 1957 provided that in an agreement to let a house at or below a specified low rent, there was an implied covenant that the landlord would keep the demise fit for human habitation. Section 32(1) of the Housing Act 1961 introduced an additional implied covenant that landlords would keep the structure and exterior of the demise in repair.
On 1 January 1974, the Defective Premises Act 1972 came into force. Section 4 drew extensively on the earlier section 4 of the Occupiers’ Liability Act 1957, and broadened the duty owed by landlords in respect of personal injury owing to defective premises:
- A landlord with maintenance or repair obligations owes all persons who might reasonably be expected to be affected by defects a duty to take such care as is reasonable in all the circumstances to see that they are reasonably safe from personal injury (section 4(1)).
- The duty is owed when a landlord knew or ought to have known about a relevant defect (section 4(2)).
- “Relevant defect” is defined as a defect in the state of the premises which arises from or continues because of an act and/or omission of the landlord which constitutes or would constitute a failure to discharge repair obligations (section 4(3)).
- If the landlord may expressly or impliedly enter the premises to carry out a particular type of maintenance/repair, he is treated for the purposes of subsections 1 to 3 as if he were under an obligation to carry out that type of maintenance (section 4(4)).
- Obligations imposed or rights given by statute are considered imposed or given by the tenancy (s4(5)).
Effectively, the Act provided that if the landlord was allowed to enter the premises and fix a defect, then the landlord was obliged to do so (as long as he or she knew, or ought to have known, about the defect). This offered tenants a far greater level of protection than had previously been seen under the Housing Acts.
But subsequent caselaw shows that, from a claimant perspective, protection under the Defective Premises Act 1972 remained limited in cases where the claimant could prove no defect or lack of maintenance. In Alker v Collingwood Housing Association [2007] EWCA Civ 343, [2007] 1 W.L.R. 2230, for example, an objectively unsafe glass pane broke, injuring the claimant. The Court of Appeal held that a landlord was not under a duty to make the premises reasonably safe, because there was no want of maintenance or repair. And in Dodd v Raebarn Estates Ltd [2017] EWCA Civ 439, [2017] P.I.Q.R. P19, a widow, as executrix of her deceased husband’s estate, brought an unsuccessful claim under section 4(3) of the Defective Premises Act 1972 when her husband was killed falling down a steep staircase with no handrail. It was held that the freeholder of the building was not liable, as there was no “relevant defect”. Even if part of a building functioned inadequately, it did not necessarily follow that it was in disrepair.
The Landlord and Tenant Act 1985 purported to introduce further protection for tenants. Section 8 implied into lettings contracts a condition that the house would be fit for human habitation at the commencement of the tenancy and remain so during the tenancy. However, this provision only ever applied to annual rents of less than £80 in London and less than £52 elsewhere, which, to borrow the words of LJ Brooke in Issa v Hackney LBC [1997] 1 W.L.R. 956, made section 8 a “complete dead letter” from the outset. Section 11 provided that landlords give an implied covenant to keep in repair and proper working order the structure and exterior of the dwelling house, and the installations for the supply of water, gas, electricity, sanitation, and heating.
The incomplete statutory protection for tenants was, arguably, especially noticeable in respect of harm to health arising from damp, mould and condensation. In a series of cases starting with Quick v Taff Ely Borough Council [1986] QB 809 (CA), claimants tried and failed to convince the Court of Appeal that Local Authority landlords should be held liable, pursuant to statutory implied covenants, for damp and condensation which was causing serious harm to the health of their tenants. An argument that Article 8 of the ECHR (respect for private and family life) was engaged in such situations likewise failed in Lee v Leeds City Council; Ratcliffe v Sandwell MBC.
Having observed this gap in the law, Parliament moved slowly to fill it. On 20 March 2019, the Homes (Fitness for Human Habitation) Act 2018 came into force, inserting a new section 9A into the Landlord and Tenant Act 1985. Section 9A states:
“(1) In a lease to which this section applies of a dwelling in England (see section 9B), there is implied a covenant by the lessor that the dwelling—
(a) is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and
(b) will remain fit for human habitation during the term of the lease.”
Section 9A effectively repeats the provisions of section 8 of the Act, with the important difference that it now applies to all relevant leases in England, and not only to leases which were low-rent in 1950s money, as had previously been the case.
The authors suggest that fitness for human habitation under section 9A will be assessed with reference to section 10 of the Landlord and Tenant Act 1985, which provides that regard shall be had to repair, stability, freedom from damp, internal arrangement, natural lighting, ventilation, water supply, drainage and sanitary conveniences, facilities for preparation and cooking of food and for the disposal of waste water, and (in England) “any prescribed hazard”;
“and the house or dwelling shall be regarded as unfit for human habitation if, and only if, it is so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition.”
These words appear to impose a relatively low standard on landlords. But the reference to “prescribed hazards” is probably intended considerably to broaden the scope of the statutory duty to cover all of the 29 “prescribed hazards” included in the Housing, Health and Safety Rating System. These range from the predictable (asbestos, excess cold and heat, carbon monoxide) through to the esoteric (radiation and ergonomics).
As of September this year, the law has further evolved in respect of the duty imposed on social housing operators, largely in response to the widely publicised case of Awaab Ishak.
Awaab lived in social housing provided to his family by Rochdale Boroughwide Housing. In December 2020, aged just two, he passed away as a result of a severe respiratory condition. A surveyor who visited the family’s flat the same month described it as “unfit for human habitation”. In 2022 a coroner ruled that Awaab’s death was caused by black mould exposure in his home, where a lack of ventilation had led to excess damp and condensation.
A government press release dated 9 February 2023 asserted: “Awaab’s Law will force social landlords to fix damp and mould within strict time limits, in new amendment to the Social Housing Regulation Bill”.
The Social Housing (Regulation) Act subsequently received royal assent on 20th July 2023. Section 42 of the Act inserted a new section 10A in the Landlord and Tenant Act 1985, which came into force on 20th September 2023:
“Section 10A: Remedying of hazards occurring in dwellings let on relevant social housing leases.
(1) Section 10A applies to relevant social housing leases to which section 9A applies.
(2) “There is implied in the lease a covenant by the lessor that the lessor will comply with all prescribed requirements that are applicable to that lease.”
(3) “The Secretary of State must make regulations which require the lessor under a lease to which the section applies 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.”
(4) Regulations under subsection (3) are enforceable against lessors only through actions for breach of the covenant that is implied by subsection (2).
(5) In any proceedings for a breach of the covenant that is implied by subsection (2), it is a defence for the lessor to prove that the lessor used all reasonable endeavours to avoid that breach.”
No regulations have yet been enacted under the 2023 Act, and a consultation is still underway. But the authors anticipate that the regulations are likely to impose significant new duties on social housing providers, including duties promptly to investigate reported problems with damp, mould and condensation; promptly to remedy any problems identified; and promptly to rehouse tenants, if it is unsafe for them to remain on the affected premises. In contrast to the position at common law, the burden will shift to the providers to prove that they have used all reasonable endeavours to ensure that leased premises are, and remain, fit for human habitation.
