The Homes (Fitness for Human Habitation) Act 2018 came into effect in March 2019 and from March 2020 will apply to all periodic tenancies. While the act doesn’t impose any new obligations on landlords, it does strengthen tenants’ means of redress. What does the act mean for social housing providers and what actions should be taken?
What does the act mean?
The act widens the types of tenancies under which tenants can seek action or compensation through the courts for issues with their properties which make them unfit for human habitation. The act applies to the following tenancies:
- Tenancies shorter than seven years that are granted on or after 20 March 2019 (tenancies longer than seven years that can be terminated by the landlord before the expiry of seven years shall be treated as if the tenancy was for less than seven years).
- New secure, assured and introductory tenancies (on or after 20 March 2019).
- Tenancies renewed for a fixed term (on or after 20 March 2019).
- From 20 March 2020, the act applies to all periodic tenancies. This is all tenancies that started before 20 March 2019; in this instance landlords will have 12 months from the commencement date of the act before the requirement comes into force.
If a tenant reports an issue to their landlord and it is one which falls under the act then the landlord has a reasonable time to put the issue right before the tenant can take legal action. However, any hazard located in common parts of a block of flats or a house in multiple occupation (HMO) would make the landlord immediately liable.
If a tenant takes action, the court can require the landlord to undertake remedial work and also to pay compensation to the tenant. The compensation amount is at the discretion of the judge, with no limit.
What’s changing for housing providers?
The new act increases pressure on landlords to monitor and demonstrate the fitness of their properties, as the potential consequences of not addressing fitness issues promptly are now more severe.
Social housing providers already have robust practices for monitoring their stock condition and ensuring that repairs and preventative maintenance are carried out on any failing properties. However now the stakes are higher so it’s worthwhile reviewing your existing processes and seeing where these might be strengthened.
How is fitness for habitation measured?
There are two main measurement standards applicable to the new act. The first applicable standard relates to Section 10 of the Landlord and Tenant Act 1985, specifying nine fitness standards which indicate that a property is not fit for human habitation:
- The building has been neglected and is in a bad condition;
- The building is unstable;
- There’s a serious problem with damp;
- It has an unsafe layout;
- There’s not enough natural light;
- There’s not enough ventilation;
- There is a problem with the supply of hot and cold water;
- There are problems with the drainage or the lavatories;
- It’s difficult to prepare and cook food or wash up.
Each of these items is measured as a pass/fail, and any failure renders a property unfit, and if not addressed could potentially allow the tenant to take action under the act.
The second set of applicable standards are the Housing Health and Safety (England) Regulations 2005 which specify 29 hazards, assessed on the basis of a risk assessment which results in a points score and places each risk into a hazard band from A to J. Bands A to C are ‘category one’ scores (1,000+ points) and represent a serious and immediate risk to a person’s health and safety. Although there is no published guidance or case law on this yet, it is reasonable to think that category one scores are the ones which might trigger action under the 2018 act.
For landlords, the two standards above should already be very familiar.
The fitness standards previously formed part of Decent Homes, and these questions typically formed part of the stock condition survey template at that time. However, they were generally removed when HHSRS took their place in the Decent Homes calculation. Landlords should consider reintroducing these to ensure there’s a clear pass/fail measurement during a stock condition survey.
The Housing Health & Safety Rating System (HHSRS ) should already be in use by landlords in England and Wales as a component of Decent Homes/WHQS. Many landlords undertake a simple indicative assessment as part of their stock condition survey programme, rating each hazard into categories (such as none, typical, slight, moderate or severe) and treating the severe ones as category one failures. Our Orchard Asset system provides, as alternatives, both the full risk calculation and indicative assessment methodologies.
Frequency of stock condition monitoring
While housing providers already have established methods of identifying failing properties, they may need to consider the frequency with which assessments are carried out. Surveys and assessments are generally not more frequent than every five years, and issues can arise in the intervening years. The increased scope for tenants to take action means that it’s important for landlords to review their procedures to ensure that:
- Staff visiting properties for any reason have an awareness of the requirements and can easily instigate repair action if necessary.
- Responsive repairs are prioritised so that timely action is taken if a repair relates to fitness or HHSRS.
- Voids processes should include fitness/HHSRS checks to ensure no failures remain.
- Record-keeping is complete with a full history of assessments and repair actions for each property in case this is required for evidence in court.
- Regular fitness/HHSRS assessments are undertaken (this would usually be included in a stock condition survey programme).
Orchard’s Housing and Asset modules can, of course, help landlords to effectively monitor their stock condition and keep on top of the requirements.
The implications for social housing
Rather than requiring a significant change in the methods housing providers use to report on their stock condition, the new act makes it more important than ever that these standards are rigorously monitored and that repairs relating to fitness/HHSRS standards are prioritised.
Good data is at the heart of maintaining compliance with fitness standards. Ensuring that team members are all fully briefed on the potential implications of repairs which relate to fitness/HHSRS is vital, as is ensuring that all staff visiting properties have a simple method of reporting issues and instigating repair actions.
The issue isn’t that most social housing organisations need to do anything differently, but that the potential consequences of failures in their existing processes are much higher than they were before. With increased power for tenants to take action, it’s never been more important for landlords to be able to identify potential fitness issues in their properties quickly and respond to them in a timely manner.
John Buckland is the general manager of asset at Orchard.