Homes (Fitness for Human Habitation) Bill
Debate between Catherine West and Karen Buck
Ms Buck
I am very aware of what my hon. Friend describes. Technology is bringing to the attention of representatives conditions of which many of us were previously unaware.
The extraordinary thing about the Landlord and Tenant Act is that it is based on rent limits that were last updated in 1957. The provisions were of course originally intended to give redress in regard to accommodation rented by the working class, hence the limits. The law as it stands applies only when the annual rent is less than £80 in London and £52 elsewhere in the country. If any hon. Members can find a property where the annual rent is less than £80, I am sure that millions of people across the country would be delighted to know where it is.
At the moment, the weekly average rent in London is £362, which gives an indication of just how far out of line the rent limits are. Many of Britain’s near 9 million renters are well served by their landlords, but for the significant minority who are not there is a long overdue need to strengthen the law, to give improved redress to tenants living in very poor conditions and to correct this bizarre legal anomaly.
The Bill lifts the rent cap above which tenants do not enjoy the legal right to live in a home fit for human habitation. It will enable tenants to bring civil proceedings in the county court when the property is in such a poor condition that it contains a housing health and safety rating system category 1 hazard under the Housing Act 2004 or is otherwise unfit for habitation. The tenant could enforce improvements to the property to make it fit for habitation and seek compensation for the period for which the property was unfit. That brings the law on conditions in substandard properties into line with that on disrepair and complements the duties that lie with increasingly hard-pressed local authority environmental health departments. In so doing, it enacts the recommendations of a Law Commission report that itself dates back nearly 20 years that was subsequently reinforced by decisions by the Court of Appeal.
I am extremely grateful for the support I have had in drawing up the Bill, particularly from the Housing Law Practitioners Association, specifically Giles Peaker and Justin Bates. I am also appreciative of the support of Generation Rent, Shelter, Stephen Battersby, the former president of the Chartered Institute of Environmental Health, and the Communication Workers Union, as well as Adam Johnstone in my office. There have been many constructive comments and much support, including very constructive comments and help from the Residential Landlords Association and the National Landlords Association.
Why is a change in the law necessary after all this time? Quite simply, renting is on the rise, dramatically so, especially in the private rented sector. As I have said, many landlords maintain their properties well and fulfil their obligations, yet the fact remains that standards in the private rented sector are poorer than those in owner-occupation.
Catherine West (Hornsey and Wood Green) (Lab)
I congratulate my hon. Friend on securing the debate, which is of such importance to so many in London and the south-east in particular. Is she aware that in Finsbury Park, which was quite affordable once upon a time, one now needs an average income of £70,000 per household to rent a three-bed home? What does she think of that?
Ms Buck
My hon. Friend brings to the attention of the House the extraordinary situation with rents, particularly, although not exclusively, in London. There was a report in today’s papers about the scale of rent rises in the private rented sector affecting the whole country. Given the extraordinary rents that many private tenants are paying it is even more the case that the conditions to which they are entitled should be of a decent standard. Unfortunately, a significant minority of renters are not well served.
The Chartered Institute of Housing’s 2014 housing review calculated that 33% of all private rented housing in England—one third—would fail the Government’s decent homes standard for social housing compared with 15% of the social rented sector. According to the Government’s English housing survey, just under three quarters of a million homes, or 16.5% of private rented sector homes, failed to meet the minimum standard of the housing safety rating system. A quarter of a million properties in the private rented sector are estimated to have a category 1 hazard and, according to a major report by Shelter backed up by a YouGov survey, 61% of tenants were found to have experienced mould, damp, leaking roofs or windows, electrical hazards, animal infestations or a gas leak in the past 12 months.
Only this morning in City A.M. Hannah Williams wrote:
“As someone who runs a website that enables tenants to review properties they’ve rented, I see reports every single day of mould, damp and infestations that sound so Dickensian I can hardly believe they come out of 21st Century Britain.”
Some 10% of tenants report that their health has been affected adversely in the past year because their landlord has not dealt with repairs and poor conditions in their property, and 9% of private renting parents said that their children’s health had been affected.
The key issue addressed by the Bill is that, because of the rent limits, tenants are currently denied the same redress in respect of substandard conditions as they enjoy in respect of disrepair. The most obvious example relates to condensation and consequential mould. There is no obligation on the landlord as this issue is not one of repair. Causes can be lack of ventilation or extractor fans, inadequate though not necessarily defective windows, and so on. The structure in some cases may be sound, but design defects mean that the property is not fit for habitation. Suppose a property was built with no damp proof course and now suffers with damp. The existing disrepair laws do not help in such a case. Disrepair requires a change of state, but in this example there is no change. The Bill fixes that problem by shifting the focus on to the condition of the property, not simply the causes.
I have one of the largest private rented sectors anywhere in the country and I rely heavily on my local environmental health department to provide assistance in seeking redress for tenants who live in substandard accommodation. I shall return to the role of environmental health officers. Despite having a good and responsive environmental health department, I shall give some examples from my own caseload of the kind of conditions that I hope the Bill will redress.
A mother writes to me:
“For years my daughter has had damp in her home to the point where the walls were black. Many times surveyors come out but the situation is not resolved. This year workmen were sent out to deal with the damp and thought the problem was solved, but two months ago another surveyor had to come out to look at the property, inspected it and found that there was damp again.
My daughter has to live with the damp, ruining her health, numerous times reporting it and nothing done because she’s vulnerable, and although I as a mother try and look after her affairs I cannot be with her 24/7 as I work. My daughter suffers with poor health. She suffers from depression, self-harm, high blood pressure and alcohol problems. She has counselling and suffered from abuse. I know that is part of her problem. I know that if my daughter was to get out of the flat it would help her situation immensely, but her landlord is not doing what they should be doing, and that is addressing the situation with the damp.”
Another parent writes:
“My main concern is with the damp, mould and condensation as my son keeps on getting ill every 1 or 2 weeks. He has chronic asthma. I’ve had to throw away furniture that was only a year old as mould was growing on the back of it. Mould has grown in the microwave, the cooker, affecting my plates and cups, and under the sink where I have to store my pots and pans. Mould has grown on my shoes in the cupboard and on my son’s clothes and my clothes. It grew on his buggy seat and I cannot remove it.”
A third constituent writes:
“I have tried everything I can to stop and prevent the mould and damp from returning to my property, from covering the walls, constantly airing the property by opening the windows and doors in all weather, having the heating on and off at different times as advised, to constantly moving the furniture around so all the walls get enough air. Whatever I am asked to do I have done. The walls have had several treatments and redecorating simply covers over the problem. It’s not fair that I’ve had to live like this for so long. It’s 15 months I have lived in these awful conditions.”
There are many other cases, and that is in only one local authority.
Last year, the Building Research Establishment, working with the Chartered Institute of Environmental Health, published two important pieces of work looking at the costs to health of substandard housing. In respect of health, it found that remedial action to tackle category 1 hazards would save the NHS £1.4 billion. In addition to the consequences for physical and mental health that so many of my constituents and renters across the country report, problems relating to damp and condensation cause financial distress to tenants, who often have to spend excessive amounts of their income on trying to heat their homes when damp and condensation make it difficult for them to do so and plague their property with excess cold.
The Bill would effectively enable tenants to enforce the kind of improvements that previously only local authorities could take steps to deal with via the Housing Act 2004 and the housing health and safety rating system. It would ensure that they have potential redress in respect of substandard conditions, as currently exist in respect of repairs. It would allow a tenant to secure an injunction to ensure that remedial works are carried out. The Law Commission’s 1996 report, which I referred to earlier, supported that change in principle, backed by the Court of Appeal, which remarked on the case of Issa v. Hackney London Borough Council in 1997 that the unsatisfactory state of the law currently means that tenants are
“wholly without remedy in the civil courts against their landlords, however grievously their health may have suffered because they are living in damp, unfit conditions.”
Why can environmental health officers not deal with these problems? In my view, environmental health officers are the unsung heroes of the modern welfare state. I draw very heavily upon Westminster’s environmental health officers, and I am proud to say that they do an excellent job—I spend a lot of time fighting Westminster City Council on almost every front, and quite rightly so, but when its officers do a good job I am delighted to say so—but across the country performance is highly variable.
The housing health and safety rating system, which was introduced by the 2004 Act and has been in force since 2006, allows local authorities’ environmental health departments to inspect and identify hazards. Where they identify a category 1 hazard—the most serious type— they are required to take action, but they can also choose to take action with regard to less serious hazards, and there is a risk assessment approach to property standards. However, the remedy available depends entirely on the choice that local authorities make on their enforcement strategy and, of course, the resources available to them. Overall, local authorities have not used their powers as often, or met their duties as well, as they might, too often acting only after receiving complaints from tenants, rather than proactively.
Despite the duty set out in section 3 of the 2004 Act, the removal of the Department for Communities and Local Government’s capital for private sector renewal and lack of funds for gathering the necessary information mean that few local authorities have a coherent strategy for the private rented sector and can take proactive action. Indeed, the most common way of dealing with hazards that are found when environmental health officers go into a property is informally. It is not clear what that is, but it is extremely hard to monitor and get a national picture for how effective it is. In the case of category 1 hazards, that would also be a breach of their statutory duty.
A piece of research I carried out with Stephen Battersby, from the Chartered Institute of Environmental Health, found enormous variations in practice and a high reliance on informal action. In 2010, just 3,744 improvement notices were issued, or an average of just 18 in each local authority, and that was up by just two per authority since 2007.
Catherine West
Is my hon. Friend aware that there are now nearly 4 million people living in the private rented sector? This is no longer just a small proportion of our country’s population, which makes tackling the issue so much more important.
Ms Buck
Indeed, I am. Of course, it is in the context of the rapid growth of the private rented sector, where the worst conditions are undoubtedly to be found, that the lack of progress in taking action against landlords who have substandard properties is so alarming. That is why I am drawing attention to how modest the increase has been in the number of enforcement notices since 2007, at a time when so many more people have entered the private rented sector. For the 86,227 referrals to local authorities in 2007, there were just 3,744 notices. Prohibition orders were even rarer, with an average of just 2.7 per authority, or 531 from all the authorities that responded to my survey. The survey found that fewer than one in 10 dwellings with category 1 hazards are dealt with in any year.
That effectively means that we can no longer rely on the source of support and redress that we relied upon for so many years. The rent limits have effectively meant that the Landlord and Tenant Act protection has fallen out of use. We are therefore unable to rely on the work being done by environmental health officers. In the financial context in which we are now operating, with the cuts that we have seen in local authorities, I cannot see any likelihood of an improvement in the situation in the foreseeable future. Therefore, we cannot rely entirely on environmental health departments—we have to draw on a new power that individual tenants can take to enforce for themselves action against landlords where the conditions of the property are unfit for human habitation.
The National Landlords Association and the Residential Landlords Association, quite rightly, wanted me to reassure them that steps would be taken to protect landlords against unreasonable action by tenants. Of course, there are cases where tenants can act in an unreasonable manner, and the Bill protects the position of landlords in two ways. In new section 8(4) of clause 1, we prevent liability arising where the unfitness is caused by the tenant’s behaviour or as a result of natural disaster, and make it clear that the landlord is not obliged to maintain property that belongs to the tenant. In new subsection (4)(d), we provide that a landlord cannot be required to carry out works that would put him or her in breach of any other legal obligation such as works contrary to building regulations. A landlord cannot be liable under this provision where the works would necessitate consent being obtained from a superior landlord or where that superior landlord has refused to give such consent. I am confident that within the terms of the Bill we are able to protect landlords against any unreasonable action.
Where councils are unable or unwilling to enforce existing provisions against bad or rogue landlords, the Bill enables tenants to take up the opportunity of enforcement. It strengthens existing provisions for enforcement. It does not introduce any new standards or new obligations on landlords. The requirement for properties to be free of category 1 hazards is already in the Housing Act 2004. There is no liability on the landlord for issues that are due to the tenant’s conduct or breach of tenancy agreement. The Bill would work in a very similar way to section 11 of the Landlord and Tenant Act in terms of procedure, evidence and so forth. This is a familiar and well-established process.
As the Law Commission report said way back in 1996, predicting what the objections to the Bill might be, first, the proposals, if implemented, would be prospective and not retrospective, and the implied obligation of fitness would apply only to tenancies granted after the coming into force of the Act; and secondly, following on from this, the basic requirement that rented residential property should be fit for human habitation is not an unreasonable one to impose on private sector landlords in the unregulated financial environment that has applied to lettings made by them since the Housing Act 1988. That reinforces what my hon. Friend the Member for Hornsey and Wood Green (Catherine West) said about the upward trend of private rents in recent years.
Given that the Law Commission and Court of Appeal have implored Parliament to remedy this problem, and that Wales seems about to do so in the Renting Homes (Wales) Bill, I very much hope that this Bill can make progress. In the light of the rapid growth of the rented sector and the appalling conditions in which hundreds of thousands of tenants are forced to live, damaging their health and their income, and with no satisfactory redress under the present system, it is time for the law to come into the 21st century. I commend the Bill to the House.