Examining landlord’s repairing obligations

Ombudsman updates

The Housing Ombudsman has published three reports in the last 12 months on Landlord’s obligations to repair and maintain their properties. The first, “Cold comfort: spotlight on complaints about heating, hot water and energy in social housing” (Feb 2021) recommended landlords react promptly to reports and complaints, particularly where an issue is having or may have a significant impact on those living in the property. Whilst repair works are being completed, it recommended offering practical help to tenants (e.g. provision of electric heaters or bottled water) to reduce the impact on the tenant and other residents. The Ombudsman recommended landlords be proactive. One notable example, was its recommendation to explain to the tenant how to use the heating system efficiently to avoid future condensation build-up.

The theme of proactivity was carried on by the Housing Ombudsman in its second report “Spotlight on: damp and mould – it’s not lifestyle” (Oct 2021). Its recommendations included landlords reviewing existing strategies and considering whether a specific policy to address damp and mould is needed. The report stated that tenants should not be solely responsible for addressing damp and mould and landlords should move away from “inferring blame”. It stated that landlords should “take responsibility” and adopt a “zero-tolerance” approach to damp and mould. It recommended identifying where a surveyor is needed early and where works are required.

The Housing Ombudsman also published “Guidance on Pre-Action Protocol for Housing Conditions Claims and service complaints” (Oct 2021) which provides practical guidance on managing legal claims and managing the substantive issue. The general recommendations from the Guidance – which are also found in the above reports – include:

• 1. Responding promptly to reports/complaints of damp, mould or disrepair
• 2. Offering practical support to tenants
• 3. Taking complaints seriously – move away from “blaming” the tenant
• 4. Considering the tenant’s circumstances and vulnerabilities – and responding appropriately
• 5. Communicating with the tenant regularly and clearly
• 6. Learning from mistakes to improve future performance
• 7. Reviewing – and following – internal policies relating to complaints and repairs
• 8. Robust internal record keeping of complaints, responses and repair works

We are likely to see the Ombudsman’s recommendations used in legal cases brought on behalf of tenants seeking compensation for breach of their landlord’s repair obligations. With the emphasis on landlord’s statutory duty to ensure that their properties are fit for human habitation, failing to meet the Ombudsman’s recommendations could be costly for landlords.

Recent cases highlight the potential litigation risks of not following the above guidance:

• AA v Mittal and Mittal (2020) – involved penetrating damp, mould, defective extractor fan, faulty lighting, and a complaint of a rat infestation. There was no significant works taken by the landlord. The Court awarded general damages of approx. £29,500, special damages or approx. £5,500 plus interest, and £7,000 plus interest for nuisance. The landlord was also ordered to pay £35,000 of the tenant’s costs.

• Hackney LBC v Leal (2021) – the landlord sought possession of the Property and the tenant counterclaimed for disrepair. The tenant complained of long-standing leaks, associated damage and an infestation of mice. The tenant was awarded over £12,000 compensation and the tenant’s rent was capped while he was decanted for works to be completed. The landlord’s possession claim failed.

• Archer v Southwark Council (2021) – the Council was due to complete works by October 2021 pursuant to a Tomlin order. When the works were not completed, the tenant applied to enforce the order. The Court ordered the Council to complete the works within a further period and awarded the tenant damages equal to 50% of rent. When the works were still not completed within the ordered time, the Court ordered further damages to the tenant and ordered a penal notice which, had the order not been complied with in the specific time would have let to contempt proceedings being brought against Council officials..

A crumb of hope for landlords:

• In Jalili v Bury Council (2021) the Court held that the Council did not have to value the cost of repair works on the open market as it had its own in-house team. As the in-house team could carry out the repairs for less than £1,000 the Council was ordered to pay the tenant Small Claims Track costs (i.e. restricted costs) following settlement rather than the full amount claimed by the solicitors. This is a non-binding case, but where landlords can complete repairs in- house this could lead to a significant saving in liability for the tenant’s legal fees, especially where those costs are valued at less than £1000.

If you are a landlord and need legal advice on your repairing obligations, contact one of our expert solicitors.