Awaab's Law - consultation now out
Suzanne Gregson sets out the key considerations for registered providers arising out of the Government’s consultation on implementing Awaab’s Law.
The Department for Levelling Up, Housing and Communities released its long-awaited consultation on Awaab’s Law on 9 January, 2024.
Awaab’s Law which was introduced in the Social Housing (Regulation) Act 2023, followed the death of a two-year-old boy Awaab Ishak in December 2020 as a direct result of a severe respiratory condition due to prolonged exposure to mould within his home.
It is proposed that Awaab’s Law will consider the 29 health and safety hazards set out by the Housing Health and Safety Rating System. The consultation proposes that Awaab’s Law will define hazards as those that pose a significant risk to the health or safety of the actual resident of the dwelling. This means that a hazard does not have to be at category 1 level in order to fall within the scope of Awaab’s Law.
Landlords are therefore encouraged to consider the specific circumstances relating to each household when receiving a complaint of disrepair. Social landlords will no doubt want to respond to the consultation which contains seven proposals:
1. Initial investigations of potential hazards
The proposal is that within a maximum period of 14 calendar days of being notified of a hazard, the registered provider (RP) should investigate the potential hazard. Notification can be made by email, telephone, letter, any internal means to raise concerns (e.g. website) or from the RP’s own scheduled surveys.
The person carrying out the investigation must have the right skill set to be able to make a determination.
Physical investigations of the property are not essential, and remote investigations via photographs and/or videos are permitted. Should the resident require a physical investigation, however, it must be provided.
If a hazard is ‘affecting or likely to negatively affect a resident’s health and safety’ it will fall within the scope of Awaab’s Law.
2. Written summaries
A written summary by the RP officer who inspected of their findings must be provided to the resident within 48 hours of the investigation. That summary should include details of who carried out the investigation, any follow-up investigations needed, whether a hazard was found, whether the hazard will pose a significant risk to the resident’s health and safety, next steps, an anticipated timeline for repair and a schedule of works.
Where the hazard does pose a risk, the summary must also state what temporary repairs are needed to make the property safe until it can be permanently rectified, and also what works are needed to permanently rectify the hazard, together with a timescale for completing the works.
Temporary repairs can be completed, or the tenant decanted, in advance of the report.
If for any reason the RP cannot comply with the 48-hour deadline, they must inform the resident when they can expect a full schedule of works.
Where specialist input is needed, the written summary is still required, and an estimate for the time to complete works must be given, taking into account external contractor availability.
3. Beginning repair works
RPs must begin work within seven days of the written summary being provided if a hazard which poses a ‘significant risk to the health and safety of the resident’ is identified. This is a subjective term and should be assessed on a case-by-case basis.
Where the RP is unable to determine if it poses a ‘significant risk of harm’ the RP should take a cautious approach. ‘Beginning works’, it is suggested, means having a worker on site physically repairing or rectifying a hazard.
4. Completing repair works
It is proposed that works should be completed within a “reasonable period”. Timescales should reflect the nature of the issues. This is in line with existing section 11 Landlord and Tenant Act 1985 principles.
5. Timescales for emergency repairs
There is a proposal that the timescale for emergency repairs should be set out in Legislation. This would include things such as
- gas leaks,
- broken boilers,
- loss of water supply,
- exposed electrical wiring,
- significant leaks,
- broken external doors/windows that present a risk to security,
- prevalent damp and mould that is impacting on resident’s ability to breathe.
6. Decanting if the property cannot be made safe immediately
Where an RP cannot make a property safe with repair works or temporary measures, the resident must be offered a temporary decant at the RP’s expense. This could be in the form of vacant social housing stock or hotels.
Where a tenant refuses to leave, RP’s must provide residents with clear information about how to keep themselves safe. If it is the RP’s opinion that they cannot keep themselves safe, they must state that. Copies of correspondence offering alternative accommodation must be kept.
Clearly issues around access and the challenge of obtaining access injunctions for the purpose of decanting a tenant will become even greater. There are no additional proposals made for powers to assist landlords with decanting when the tenant refuses to move. This may be an issue to refer to in responses.
7. Record keeping
There is a defence for RP’s if they have taken all reasonable steps to comply, but compliance has not been possible for reasons beyond their control.
Where access is an issue three attempts should be made to contact the resident. Times for the investigation appointment should factor in residents’ needs e.g. work shifts. If an appointment does not proceed due to no access, a calling card must be left. Contact should then be made with the resident to secure an alternative slot. The consultation says records must be kept with all correspondence with resident.
Where the issue is sourcing skilled labour, the resident must be kept updated and records must be kept by RP of their attempts to source workers. There are then further questions to address the cost to the sector of implementation.
Our observations
It is interesting that the proposal states that all 29 HHSRS hazards would be relevant to Awaab’s Law. Damp and mould growth was of course expected, but it will now also include less obvious issues such as lead, crowding and space, noise, collision and entrapment, position and operability of amenities. It will then be for the RP to assess whether it is a ‘significant risk’.
For some RP clients having a person who can attend to inspect within 14 days, and has the right skill set to be able to make a determination, is likely to be a challenge. For larger RP’s, the challenge will be hitting the deadlines with the likely volume of requests. There may then need to be a potential bank of administrators assisting with compiling the reports. For smaller RP’s recruitment for this specific role may be necessary.
RPs must then do works in a ‘reasonable period’ of time. Arguments about what amounts to reasonable are likely to continue until we have some early case law to clarify.
As we have been advising for some time, residents should be asked whether there is any particular resident in the property who is at a greater risk from hazardous conditions, for example, a resident with asthma may be at greater risk from a home affected by damp and mould. Wider factors such as vulnerabilities and age should also be considered together with evidence from third parties such as healthcare providers, schools, or social workers.
The consultation proposes that the requirement of medical evidence is neither proportionate nor necessary. These enquiries should be made at every touch point with the residents, whether when a complaint of disrepair is made, or in interactions with the residents concerning rent, ASB etc. Systems should then be updated to record this, and every internal team needs to be able to access such records. Make each interaction count.
Where access is a problem, decent evidence of non-access must be recorded, and injunctions should be sought promptly through the County Court to protect the RP’s position.
Social landlords need to make plans to put this process in place now. The cost predictions for implementing this are high, and RP’s will need to factor this into next year’s budgets.
There is no clear indication of how Awaab’s Law will interact with current legislation concerning disrepair and fitness for human habitation. Will residents be entitled to additional damages for the new ‘Awaab’s Law breach of contract claim’ or will this be set off against any damages sought for the disrepair? There is also no clear indication of which courts any enforcement will be in – Magistrates or County Court. There is an assumption it will be the county court on the basis it suggests it will be a ‘breach of contract’ claim, but clarification would assist.
Note: the consultation will last for 8 weeks from 9 January 2024.
We would encourage all social landlords to respond to the consultation to ensure the sector’s voice is heard as ‘Awaab’s Law’ is finalised. It will certainly have a significant impact on the sector not only in changes to process but also in time, resources and finances.
The consultation can be found here.
Suzanne Gregson is a Partner at Anthony Collins.
