The tragic death of two-year-old Awaab Ishak in December 2020, caused by prolonged exposure to mould in his family’s social housing property, has had a profound impact on the legal and regulatory landscape surrounding housing disrepair. The case was a watershed moment, exposing systemic failures in the enforcement of housing standards and prompting legislative change through the Social Housing (Regulation) Act 2023. For solicitors acting for tenants, landlords, or social housing providers, understanding the implications of this evolving legal framework is critical.
The legal backdrop: pre-existing obligations
Housing disrepair claims are traditionally governed by a patchwork of statutory and common law obligations. In England, the Landlord and Tenant Act 1985 imposes a duty on landlords to keep properties in repair, while the Homes (Fitness for Human Habitation) Act 2018 strengthened tenants’ rights by allowing claims based on property conditions impacting health and safety which render a property unfit for human habitation in breach of a landlord duty imposed by section 9A of the Landlord and Tenant Act 1985. Equivalent duties are imposed on Welsh landlords by virtue of sections 91 and 92 of the Renting Homes (Wales) Act 2016 following its coming into force on 1 December 2022, and the Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022.
In addition, local authorities have enforcement powers under the Housing Act 2004 to address hazards, including damp and mould, via Improvement Notices and Emergency Remedial Action. However, the Awaab Ishak case exposed the limitations of enforcement mechanisms when systemic failures persist.
The Social Housing (Regulation) Act 2023: Strengthening the regime
The government’s response to the case has been significant. The Social Housing (Regulation) Act 2023 introduces tougher measures to hold social landlords accountable for poor housing conditions. Key changes include:
- Stronger regulatory oversight: The Housing Ombudsman and the Regulator of Social Housing now have enhanced powers to impose financial penalties and require swift remediation of substandard conditions.
- Awaab’s Law: Social landlords will be required to address hazardous conditions within specific timeframes. The precise deadlines for action will be set by secondary legislation, but failure to comply could result in severe penalties.
On 6 February 2025, Angela Rayner announced the phased implementation of Awwab’s Law, meaning social landlords will be forced to investigate and fix dangerous damp and mould hazards that present a significant risk of harm to tenants in set time periods, as well as repair all emergency hazards within a 24-hour period. In 2026, the requirements are likely to extend to hazards including excess cold and excess heat; falls; structural collapse; fire, electrical and explosions; and hygiene hazards.
Finally, in 2027, the requirements will extend to the remaining hazards as defined by the Housing Health and Safety Rating System (“HHSRS”), excluding overcrowding.
- Proactive Inspection Regime: A shift away from reactive complaint-based enforcement to proactive inspections, aimed at identifying systemic disrepair before it leads to legal claims.
For solicitors acting for tenants, this legislation provides further grounds to press for early remediation and claim damages where necessary. Equally, those advising landlords and social housing providers must ensure robust compliance strategies are in place to mitigate enforcement risks.
Litigation trends and challenges
The legal landscape post-Awaab Ishak has seen an uptick in housing disrepair litigation, particularly in claims concerning mould and damp. Several challenges arise:
- Evidential Hurdles: Tenants pursuing claims must establish that damp and mould are attributable to the landlord’s failure to act, rather than lifestyle factors such as inadequate ventilation. Expert reports are often essential.
- Causation and Quantum: While the link between poor housing conditions and health issues is well established, quantifying damages remains contentious. Recent cases suggest courts are increasingly willing to award substantial sums where disrepair has rendered a property unfit for habitation and/or caused significant health detriment, especially where exposure to disrepair has caused recognised personal injury and/or psychiatric injury.
- Defences for Landlords: Social and private landlords may seek to defend claims on the basis that issues were remedied promptly upon notification, or that tenants failed to report problems in a timely manner. The success of such defences is often predicated on meticulous record keeping. However, the introduction of Awaab’s Law, will reduce the viability of such defences where landlords are slow to act.
Key takeaways for practitioners
For solicitors representing tenants, the expanded legal framework strengthens their clients’ ability to seek redress. Early involvement of expert evidence and effective engagement with regulatory bodies can be crucial in securing swift outcomes.
For those advising landlords and housing providers, the focus should be on risk mitigation. Ensuring compliance with statutory obligations, maintaining clear records of remedial action, and engaging proactively with tenants can help prevent costly litigation and regulatory penalties.
Why Instruct Us?
8PP has extensive experience in housing disrepair claims, representing both claimants and defendants in complex disputes. We offer clear, commercially astute guidance on legal merits, statement of case preparation, and court representation.
If you require specialist counsel on a housing disrepair matter, contact us today to discuss how we can assist you.
