Introduction

The Housing Ombudsman has recently published a report entitled “Learning from: Severe Maladministration – Taking the key lessons from our severe maladministration decisions.” It is sobering and informative.

The relevant context is the forthcoming piece of legislation known as “Awaab’s Law”, after Awaab Ishak who died aged two after developing a respiratory condition caused by exposure to mould in his home in Rochdale. The Coroner produced a “Regulation 28” report to prevent future deaths, leading to a consultation by the previous Government, and now forthcoming legislation from the current Government due to come in to force in October 2025. There is to be a phased introduction of measures:

1. From October 2025, social landlords will have to address damp and mould hazards that present a significant risk of harm to the tenant within fixed timescales
2. Also from October 2025, social landlords will have to address all emergency repairs including for damp and mould or other hazards as soon as possible and within no longer than 24 hours
3. In 2026, requirements will expand to apply to a wider range of hazards. These are expected to include excess cold and heat; falls; structural collapse; fire, electrical and explosions; and hygiene hazards.
4. In 2027, the intention is to expand the requirements to cover the remaining hazards listed in Schedule 1 to the Housing Health and Safety Rating System (England) Regulations 2005. (“HHSRS”)

The Ombudsman’s Report – key points

Inspections

The Report highlights the following four common failings across landlord inspections:

1. 1. Failing to do an inspection, or the inspection being limited or incomplete.
   2. Multiple or conflicting inspections, without the outcomes being reconciled.
   3. Disconnects between the inspector’s recommendations and the landlord’s proposed works.
   4. Poorly communicated inspection results, where residents often chase for any information, even if it is vague

The Report provides examples, some of which include remarkable periods of delay: a failure to inspect for a period of a year, resulting in works not starting for 2 years, despite parts of the home being uninhabitable and a baby having been prescribed an inhaler as a result of mould exposure; and a failure to conduct a survey for 3.5 years, despite the resident telling the landlord that his daughter had to increase treatment for asthma as a result.

Examples of multiple or conflicting inspections are also given. Although there may be cases where a second opinion is appropriate, any second opinion should be arranged promptly and with a sound basis.

Equally concerning are the examples of landlords failing to act on the inspection reports, including one in which the landlord failed to act on survey reports for a period of over a decade.

Under the heading “poorly communicated inspection results”, the Ombudsman lists numerous cases including one in which the landlord failed to disclose inspection notes to residents when requested, and where the delays in the case led to children sleeping on the floor for 2 and a half years, in a home with “widespread black mould on the walls, skirting, and furniture, including the bedframe and mattress which the asthmatic resident was sleeping in.”

Knowledge and information management – the core issue?

The Report observes that damp and mould are potential “Category 1” hazards within the HSRSS; outlines key learning points; and concludes with a helpful section on knowledge and information management.

The Ombudsman opines that a successful response to Awaab’s Law relies – or will rely -on effective knowledge and information management. I anticipate that this is correct: many of the failings in the reported cases can plausibly be attributed to a disconnect between different parts of the landlord’s organisation.

For example, if the team responsible for raising repair requests is not aligned with the team responsible for requesting and recording inspections, there is a risk that the necessary works will not be requested. If the relevant information relating to a property (including the particular needs of the residents) is not reliably recorded, and retained, on a central (and accessible) system, then the urgency of carrying out remedial works to a property containing vulnerable children may be lost.

The Regulator’s Report

The Regulator of Social Housing has previously produced a report (28 June 2023) entitled “Damp and mould in social housing – Learning the lesson”. That report emphasises, in particular:

1. 1. The need for strong board and councillor oversight of stock condition, including damp and mould
   2. The need for adoption and implementation of a damp and mould policy, with stated timescales for response
   3. The importance of good data – both data recording, and data management. High-performing landlords not carried out and recorded comprehensive stock condition surveys, but also used other data sources to feed into the overall picture on stock condition, including responsive repairs requests and complaints; and held accurate and up-to-date information on their tenants, including potential vulnerabilities.
   4. The benefit of a strong focus on understanding the current condition of tenants’ homes, coupled with a clear process for reporting damp and mould, with an appropriate escalation process, and an emphasis on tenant’s needs – and in particular any potential vulnerabilities.

Some prior case law

Housing law, of course, changes with unnerving frequency. Nonetheless, previously-decided cases are still informative.

In Staves v Staves v Leeds City Council (1991) 23 HLR 107, well before the “fitness for human habitation” provisions came into existence, the Court of Appeal considered the effect of s 11 Landlord and Tenant Act 1985 on damage to plasterwork which had become saturated as a result of damp, with black mould being present. The Respondent’s housing manager opined that the black mould, in particular, was attributable to condensation which was a particular problem in that type of house. The Council argued that the damp and fungus were due to condensation, and that the fact of damp and fungus did not imply disrepair. Lloyd LJ did not agree, saying:

The test in these cases is to be found in the judgment of Dillon L.J. in Quick v. Taff Ely Borough Council . Again I would only repeat one sentence at p. 818. “In my judgment, the key factor in the present case is that disrepair is related to the physical condition of whatever has to be repaired.”

Here, by January 1985, the physical condition of the plaster, due to saturation, was such that it required to be renewed. We need not inquire how much of the plaster was “damaged.” If the plaster required to be renewed as a result of saturation, that it seems to me that, as a matter of ordinary language, what was done was a repair.

As an example of a different line of attack, and translating for the benefit of an English audience: in Robb v Dundee City Council 2002 SC 301, [2002] Env LR 33, the claimant had argued that the premises suffered from condensation, dampness and mould, such that their state was prejudicial to the health of herself and her child; and that, in the alternative, it constituted a nuisance in that it interfered with the comfort of herself and her family.

The claimant sought (in English & Welsh terms) an injunction pursuant to s 82(2)(a) Environmental Protection Act 1990 requiring the local authority to abate the nuisance; she failed at first instance, having failed to establish a nuisance. Put in the language of the proceedings: the pursuer craved grant of an order requiring the defenders to abate the nuisance described in the writ; after proof, the sherriff found that the pursuer had failed to prove a statutory nuisance, and assoilzied the defenders from the crave of the writ.

The Inner House of the Court of Session refused the subsequent appeal, although the Court of Session did conclude that the state of the premises was such as to be prejudicial to health within the meaning of s 79(1)(a) of the 1990 Act; that the state of the flat constituted a nuisance within the meaning of s 79(1)(a) (there being no need to establish that the environment was likely to cause injury to health). The appeal foundered on the claimant’s failure to establish that the defendant was the person responsible in terms of s 82(4)(A) for the statutory nuisance which arose, as the defendant had provided sources of electrical power for heating throughout the subjects and had not done anything to the premises to reduce the effect of the heaters.

That last finding was an application of Dover DC v Farrar [1980] 6 WLUK 312, in which the Divisional Court had found a statutory nuisance without liability attaching to the landlord. In that case, tenants of flats fitted with electric heating suffered from condensation dampness. Had the heaters been used as the landlord intended, the condensation problem would not have arisen. The tenants did not understand that the electric heating was only for background heating; further, the electric system was too expensive to be used by the tenants. The Divisional Court found that the nuisance had arisen because of the act or default of the tenants, despite the fact that the electric system could not be used within the tenants’ means – and despite the fact that the tenants’ refusal to use the systems on account of expense was wholly understandable.

Historically, there has been a need for expert evidence. When it comes to the question whether mould and damp is likely to be “prejudicial to health”, a medical qualification is not necessary, but the witness does need some form of experience or expertise. An experienced chartered surveyor might be able to provide evidence on the relationship between damp and mould and injury to health, if he (or she) can demonstrate experience of that relationship in the course of their work: Southwark LBC v Simpson [1999] Env LR 553. The same principle will apply in terms of establishing a risk of significant harm.

Interestingly, in Welsh v Greenwich LBC [2001] L & TR 12 the Court of Appeal considered that the phrase “maintain in good condition” was wide enough to render the landlord liable for a failure to remedy inherent design faults – in that case, a lack of insulation – which had caused condensation resulting in damp and mould.

However, for some time now (following the introduction of the Homes (Fitness for Human Habitation) Act 2018) there has been no need for tenants to establish disrepair in order to complain effectively about damp and mould. The amended Landlord and Tenant Act 1985 now requires that homes be fit for human habitation, which will include being free from damp and mould that could cause significant harm. In that respect, Awaab’s Law in its earlier stages may not result in a substantial change in the legal landscape,[1] save for the introduction of specified timescales – but of course the ambit of potential claims will then start to widen.

Landlords will want to take careful preparatory steps so that they are ready for October 2025, and for the subsequent tightening of the regulatory framework; tenant lawyers will doubtless be monitoring these developments, and the author anticipates that RICS members may have substantial incoming work – both where instructed by parties to litigation, and in conducting surveys of stock condition.

[1] There are already, of course, enforcement mechanisms available to tenants which do not involve recourse to the Courts – indirectly, through their local authority; via the Regulator of Social Housing in the social rented sector; or through the Housing Ombudsman. This post is concerned with litigation specifically.