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Housing Enforcement Responses to the Covid-19 Outbreak

5th May 2020 RIAMS

Last week I was fortunate enough to represent RHE Global in a live webinar facilitated by the CIEH, discussing Covid-19 and its impact on housing-based services during the pandemic. A wide range of topics was discussed, including the potential for illegal evictions, maintaining housing standards during lockdown and the responsibilities of landlords to maintain decent, safe and warm homes during the current outbreak. With me on the panel was Paul Oatt, Chartered EHP and Public Protection Programme Manager at London Borough of Havering and Adrian Chowns, Property Licensing Manager at Coventry City Council and the chair of the Private Housing Officers Group. The chair of the webinar was Gary McFarlane, CIEH Director Northern Ireland.

It was clear that Covid-19 is already having a severe impact on the private rented sector. Local housing authorities (LHAs) in particular are presented with numerous challenges in meeting their statutory obligations to address poor housing conditions and enforcing against illegal practices by landlords. For private renters and their families, the current lockdown has the potential consequence of exacerbating the effects of defects in their homes and associated poor housing conditions. This is likely to impact on their health and well-being, with a substantial increase in the duration occupiers are required to spend at home. Common hazardous conditions include effects of exposure to damp and mould, excess cold or heat, poor ventilation, the effects of indoor air pollution, falls and crowding (including lack of amenity spaces and challenges presented by home schooling in poor housing conditions).

Links to the HHSRS prescribed hazards are obvious. It is also apparent that individuals susceptible to the effects of Covid-19 and ‘stay at home’ policies, ‘self-isolation’ and ‘shielding’ are also the most vulnerable to exposure to hazards in the home. In terms of well-being, the most recent ONS data (accessed 28 April 2020) highlights how over half of adults (50.2%) in Great Britain believe that homeschooling is negatively affecting the well-being of their children. Around half of adults (49.9%) said the coronavirus was negatively affecting their well-being, with the most common issue being the worry about the future. Mental health should not be overlooked, and 46.4% of respondents reported high anxiety scores: this increased to 49.8% for those aged 70 and over and to 56.6% for those with a specific health condition.

Cases of noise nuisance are also on rise. RHE Global has been providing Defra and Welsh Government with national and regional data collected by The Noise App, highlighting the impact of noise nuisance during the lockdown. The data shows noise cases have surged by 48%. Compared to this time last year, housing associations have experienced as much as a 450% rise in noise cases. Some urban areas have experienced up to a 100% rise in cases, this is even as high as up to 200% in some London boroughs. Reasons for the noise complaints include anti-social behaviour, loud talking, music and barking dogs. The Noise App covers approximately 25% of the UK population, giving a valid representative sample of noise cases.  Information about The Noise App and how to manage noise nuisance cases is available here.

It is also clear that as renters experience greater financial hardship due to the virus, the risk of harassment, illegal and retaliatory evictions will also increase. The government’s enactment of the Coronavirus Act 2020 introduced changes to possession proceedings against tenants. The changes are detailed further in the government’s webpages and associated Covid-19 renting guidance for landlords, tenants and local authorities. The act requires that up to the 30 September 2020, landlords will not be able to start possession proceedings unless they have given their tenants three months’ notice. An announcement made by the Master of the Rolls with the Lord Chancellor in March 2020 also confirmed the suspension of housing possession cases in the courts for a 90-day period from 27 March.

The government has published specific guidance for landlords and tenants in both the private and social rented sector, detailing information around possession proceedings, property access during the outbreak and landlord and tenant responsibilities. Landlords and letting agents remain under duty to maintain their properties in conditions that are fit for human habitation, free from disrepair and to ensure that services such as gas and electrical installations are safe. The most sensible approach to this, as highlighted by government guidance, is to undertake inspections and maintenance visits only for urgent repairs. Examples of such urgent works might include repairs to heating and hot water installations, repairs to leaking roofs or plumbing works to sanitary or other amenities.

Generally, the government is advising that routine visits, property viewing and non-urgent repair works are suspended until further notice. Landlords will face challenges where occupiers are in self-isolation due to Covid-19 symptoms, shielding or other reasons of self-isolation. They will need to show they have made every effort to abide by existing gas and electrical safety regulations, including the Electrical Regulations which will come into force on 1 July. Both gas and electrical safety regulations recognise situations in which a landlord cannot comply, including potentially due to Covid-19 restrictions, but they must demonstrate they have taken all reasonable steps to comply. Tenants also have a responsibility to ensure they act in an appropriate tenant-like manner, and it is advised that they inform the landlord of any repairs required or any health-related or financial hardship caused by the Covid-19 outbreak at the earliest opportunity. This is to enable early interventions by landlords and agents, either to arrange essential property inspections and maintenance or repair visits, or to initiate support mechanisms for tenants in financial hardship due to the Covid-19 outbreak.

Some of the most challenging accommodation in which to maintain safe social distancing and practice self-isolation are multi-occupied buildings and houses in multiple occupation. Paul Oatt explained the approach at London Borough of Havering to support tenants and landlords in maintaining safe social distancing and self-isolation requirements aimed at preventing the spread of Covid-19. The information provides detailed advice for landlords and tenants on what they should do if they or other occupiers have possible coronavirus (Covid-19) infection. The guidance includes advice on the use of common and shared amenity areas such as kitchens and bathrooms, advice on self-isolation when occupiers and households are showing Covid-19 symptoms, and how to manage everyday activities such as cleaning, cooking and shopping in a multi-occupied environment.

Likewise, LHAs are still under duty to arrange for an inspection of a residential premises if it is considered appropriate to determine whether any Category 1 or 2 hazards exist at the premises. LHAs are continuing to react to urgent cases of poor housing conditions but generally only where the potential hazards present an imminent risk of harm to the health and safety of the occupiers or others. This is consistent with the government guidance: COVID-19 (Coronavirus) and the enforcement of standards in rented properties (non-statutory), but this may result in a stockpile of housing cases requiring follow-up action as ‘stay at home’ and ‘self-isolation’ policies are relaxed. The HHSRS enforcement guidance does highlight the benefit of prioritising complaints for the worst housing conditions and those based on, for example, information received from social services departments, hospitals and GPs. This may help with prioritisation of complaints during and after the current Covid-19 outbreak. As explained by Adrian Chowns, Coventry City Council Housing Enforcement and Property Licensing Teams are an example of an LHA undertaking essential visits only during the current lockdown. They require complainants to complete a Covid-19 pre-inspection screening questionnaire. This is to help prevent the spread of the virus and reduce the risk of exposure to their workforce and customers. To assist with the priotiision of complaints and ensure only essential visits are undertaken, Coventry CC also requires complainants to provide photographic or video evidence of the defects or issues being complained about. This is so the council can remotely assess risk of harm to health or safety of the individuals. Where an inspection is unavoidable then social distancing in line with appropriate Public Health England and NHS guidance is strictly maintained. Further guidance for households possibly infected with Covid-19 is also available here.

The Reportable App, available from RHE, has the unique facility for tenants to self-report poor housing conditions and for officers to manage cases remotely. Reportable helps to reduce the number of inspections officers have to undertake. The app has a specific ‘Repairs and Maintenance’ category where defects in properties can be identified and supported with photo or video.

The enforcement guidance issued by the government makes it clear that a pragmatic approach to enforcement should be adopted during the Covid-19 outbreak. In so doing, the LHA’s own enforcement policies should be updated to reflect this. An LHA’s enforcement policy will set out the approach authorities will take to action the provisions of the Housing Act 2004. In light of the government guidance relating to rented properties and the current Covid-19 outbreak, LHAs should consider how to:

  • Ensure tenants are kept safe and landlords are supported
  • Ensure all work is carried out in line with the the local authority’s own health and safety policies and procedures
  • Base all decisions on an assessment of risk.

A recent Upper Tribunal case confirmed that the courts and tribunals should have regard to the authority’s ‘lawful policy’ and pay proper attention to the local authority’s decisions made and the reasoning behind them. In a climate where local authorities are seeking ‘pragmatic’ ways of enforcement delivery, all the indications are that it is the LHA’s enforcement policy which should underpin the response to the outbreak, continuing to protect tenants against poor housing conditions whilst maintaining statutory duties.

There will no doubt be difficult decisions ahead: prioritising complaints; balancing the need to address poor housing conditions; and protecting the health and safety of an LHA’s workforce and their customers whilst controlling and preventing the spread of Covid-19. Where an imminent risk is identified to a residential occupier and the LA is aware that a tenant is vulnerable, it might not be possible to inspect a property. In these circumstances, the government’s Covid-19 enforcement guidance suggests assessments could be made through photographs, video or live broadcasting by the tenant.

Options for addressing hazardous conditions might include the provision of alternative accommodation, suspending action or notices which are non-urgent (due to difficulties in completing the works) or taking other forms of enforcement action, such as a prohibition orders covering only part of a property. Where alternative accommodation or the suspension of works is not a viable option, addressing imminent risk scenarios through the use of emergency remedial action might provide a suitable solution. Works might include making an electrical installation safe, ensuring heating or hot water is provided or making sure a fire alarm system is operational, which will allow for the imminent risk element to be addressed. Wider concerns around the condition of such services and associated hazards may be addressed through suspended action at a later date when Covid-19 restrictions are relaxed, for instance. Such essential works may, for example, only require access to the common parts; during which time, maintaining social distancing, use of PPE and appropriate ‘cleaning down’ guidance must be strictly adhered to.

The use of such emergency measures may also have the added benefit of providing additional protections against retaliatory evictions. Existing protections against retaliatory eviction under the Deregulation Act 2015 are available to tenants if LHAs have taken certain actions under the Housing Act 2004. Section 33(1) of the 2015 Act provides that where a ‘relevant notice’ is served in relation to a dwelling house, a section 21 notice may not be given in relation to an AST within six months from when the notice is served. A ‘relevant notice’ is, for these purposes, an improvement or emergency remedial action notice served under Part 1 of the Housing Act 2004 by the relevant LHA. The 2015 Act is triggered where the tenant notified the landlord (or person acting on their behalf) regarding the condition of the dwelling house and the landlord failed to provide an adequate response. A subsequent complaint to the LHA resulting in service of a ‘relevant notice’ would invalidate any future service of a section 21 notice within six months from date of service from the LHA.

The challenges faced by LHAs and their partners during the Covid-19 outbreak and its impact on the enforcement of standards in rented properties are wide ranging. I invite EHPs, housing and public health professionals to share and exchange information about how you are responding to the outbreak through RIAMS Communities. It will help us develop consistent approaches to the challenges Covid-19 has placed before us.

Alan Davies BSc(Hons), LLM, MCIEH, CEnvH
RHE - Head of Consulting