I have spent much of my time this year, training solicitors and experts about Tenants’ Rights in relation to Housing Conditions. This has been driven, in part by the recent ‘reforms’ of road traffic claims that will see a huge reduction in the number of such cases. Many firms are looking to diversify. Another factor has been the arrival of the Homes (Fitness for Human Habitation) Act 2018. This Act, and the new covenants that it brings, does have the potential to change everything. The purpose of this article is to highlight the extent to which such change will be limited by the restricted availability of legal aid.

In all of my training sessions, I refer to the well-known House of Lords case of Liverpool City Council v Irwin [1977] AC 239 which was a ground-breaking case about landlords’ responsibilities in relation to common parts such as stairways, lifts etc. As an incorrigible name dropper, I will always mention that the Vauxhall Law Centre acted for the tenants of what were known locally as ‘The Piggeries’. I was the solicitor at the Law Centre in the early 1980s, so it was a bit before my time! My involvement was limited to tying up some loose ends in relation to the legal aid bill! I mention this case here because it was cutting-edge and made possible because legal aid funding was available. 

What has this got to do with the 2018 Act? 

Let’s think about properties affected by condensation. When the rights of tenants were limited to ‘repairs’ under s11 Landlord and Tenant Act 1985, many cases failed because there was moisture and dampness caused by condensation. It was often hard to identify a ‘repair’ that was needed. The 2018 Act could bring in dramatic changes to this. The Act amends the 1985 Act by introducing a new s9A which introduces implied covenants by the lessor that the dwelling – 

(a)is fit for human habitation at the time the lease is granted or otherwise created or, if later, at the beginning of the term of the lease, and

(b)will remain fit for human habitation during the term of the lease.

A new s10 looks at matters that should be considered. These includes – ‘freedom from damp’. The section also refers to ‘prescribed hazards’. These 29 hazards from the Housing Health and Safety Rating System (HHSRS) include damp and mould growth. Earlier cases on the meaning of ‘fitness’ include health and safety as a major factor. So, there is potential for tenants now to bring claims in relation to mould even where there is no actual disrepair. 

What is often argued by landlords’ experts is that condensation is caused by tenants’ lifestyle. So, they should open all their windows to maintain airflow. This is said to be part of their duty act in a ‘tenant-like’ manner. What about those who live on the 15th floor of a tower block in December? Would I open all my windows in that situation? What about fuel poverty? Is a tenant who cannot afford to the inevitable extra heating costs, acting unreasonably? 

We are not going to answer these questions here. What we need are cases to be litigated so that we can test the arguments and develop/clarify the law. This is what happened in Liverpool City Council v Irwin and many similar cases. 

The problem of course, is funding. The unfortunate residents of The Piggeries had legal aid. Legal Aid funding is now very limited in housing conditions cases. You might get help, in extreme cases, to force the landlord to do urgent work. But that is about it.  Almost all firms that I have spoken to over the last few years have to act on a CFA. After the Event Insurance is essential because there is no QOCS protection in most cases. 

This raises all sorts of problems – 

1. Do the prospects of success mean that the firm can take the risk?, 

2. Will there be sufficient funds to meet the cost of the irrecoverable ATE policy?,

3. What about rent arrears that can wipe out most if not all of any damages?

How many firms are going to be in a position to run the cutting-edge cases to the Court of Appeal on a CFA? How many ATE insurers will back them? Law Centre’s were often the pioneers in the past, but there is no way that they can be expected to carry the burden. How many tenants are able to fund cases?

All of which is very frustrating.

We have a new and exciting Act which could indeed change everything. But it will be meaningless if tenants are unable to bring cases. 

If we want the Fitness for Human Habitation provisions to bring about real change then tenants must have access to the means of enforcing them. There is little point in having radical new legal rights, if there is no access to the enforcement of these rights. 

This can only be achieved by way of a properly funded legal aid system.