New Housing Disrepair Protocol

Recent years have witnessed a substantial growth in the number of disrepair claims brought by tenants against their social landlords, together with the numbers of claims management companies and lawyers bringing them, often on a no-win, no-fee basis.

In the vast majority of disrepair claims, tenants and their representatives use the Pre-Action Protocol for Housing Disrepair Cases  (the Protocol) to bring their claim, either before issuing proceedings or to try to settle it without recourse to proceedings.

In our experience of handling these claims for social landlords, the Protocol is often referred to by both parties and their advisers in correspondence between them and often becomes a tactical tool in itself.

Social landlords who face disrepair claims now need to be aware of two new developments which could converge to have a significant impact on how these claims are dealt with in the future.

Firstly, on 7 January 2020 the Civil Procedure Rule (CPR) Committee published a revised version of the Protocol. Key points to note are:

1. The Protocol has been re-named as the Pre-Action Protocol for Housing Condition Cases ( England);
2. It comes into force on 13 January 2020;
3. It has been updated to include some changes introduced by the Homes ( Fitness for Human Habitation) Act 2018 (the Act) and ensure that the Protocol reflects this new piece of legislation;
4. For example, instead of referring to “housing disrepair claim” the new Protocol refers to “housing conditions claim”.

The CPR Committee is also going to carry out a further review of the Protocol and will report back later this year.

Secondly, this is a reminder of the changes introduced by the Act and in particular the fact that from 20 March 2020, it will apply to all periodic tenancies in existence before 20 March 2019. Key points to note are:

1. This will apply to all private and social tenancies in existence as at 19 March 2019;
2. Save for a few tenancies that are on a fixed term basis.

It will therefore imply into any tenancy agreement a covenant by the landlord that the property:

1. Is fit for human habitation at the time the lease or tenancy is granted;
2. Will remain fit for human habitation during the term of the lease or the tenancy.

The key question for social landlords is what impact will this legislation have on them, both in terms of how they manage their properties and how they manage their disrepair claims?

Until it is introduced and starts being tested in the Courts, the honest answer is that we don’t know for sure.

What we do know however is that:

1. Tenants will be able to bring claims on a wider basis than they can do now;
2. This could therefore include claims arising from the condition of the property even when they are not caused by disrepair; and
3. This could also include fire safety risks and any defect which presents a risk to health and safety.

So it is not unreasonable to assume that over time more and varied claims will be brought and that issues such as fire safety could become much more prominent.

This does not mean that social landlords should be ready to settle any claim, but rather that they should continue to separate good claims from bad at the same time as actively managing and investing in their properties.