Disrepair Update

26 Feb 2024


By Catherine Rowlands

ADR and complaints

Can the Court impose a stay on litigation for ADR or to enable – maybe compel – the Claimant to avail themselves of the local authority’s complaints process? That was the question put to the Court of Appeal in Churchill -v- Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416.

And the answer is – as so often when you ask a lawyer – it depends.

Churchill concerned litigation relating to Japanese knotweed. Merthyr Tydfil own land which is infested with the damaging plant. Adjoining landowners complain that it has done damage to their land. Although the case relates to nuisance, the principles are generally applicable – including to judicial review, I would suggest, but especially to disrepair litigation. Like disrepair claims, the solicitors acting for the MTCBC Claimants appear to have rushed to issue, refusing even the offer of works – in Churchill’s case, the offer of work to eradicate the knotweed.

MTCBC have a “Corporate Complaints Procedure”. Whilst the judgment of the Court of Appeal gives little detail about it, it’s available on their website and was updated in 2021.  It has an unremarkable two stage procedure, and aims to resolve complaints in 20 working days. It is the kind of procedure that any local authority could have.

Mr Churchill sent a letter before action on 29 October 2020; the Council responded in January 2021 and asked why he had not used the complaints procedure. He threatened proceedings; the Council responded that they would seek a stay if he did. He issued; they sought a stay.

The application for a stay came before a Deputy District Judge who was taken to the judgment of the Court of Appeal in Halsey v. Milton Keynes General NHS Trust [2004] EWCA Civ 576, and the comment

“to oblige truly unwilling parties to refer their disputes to mediation would  be to impose an unacceptable obstruction on their right of access to the court”.

On this basis, the Judge considered that he had no option but to refuse the application for a stay, although he made it clear that he thought that Mr Churchill was acting unreasonably in failing to use the complaints procedure.

The Court of Appeal found that the comment in Halsey was obiter, as the decision was about the costs consequences of refusing to enter into ADR. They were therefore free to make their own decision about the power to order a stay. Having considered various case law about the right of access to the courts, ranging from article 6 of the European Convention on Human Rights to the CJEU and purely domestic cases – particularly the Supreme Court in UNISON and access to the Employment Tribunal – they concluded, quite simply, that a court does have the power to order a stay, for negotiation, mediation, early neutral evaluation and any other kind of dispute resolution.

That left the more nuanced question of the circumstances that should be taken into consideration when considering whether to order a stay.

Things have moved on since Halsey, and ADR is much more a feature of the landscape.

“Experience has shown that it is extremely beneficial for the parties to disputes to be able to settle their differences cheaply and quickly. Even with initially unwilling parties, mediation can often be successful. Mediation, early neutral evaluation and other means of non-court-based dispute resolution are, in general terms, cheaper and quicker than court-based solutions. Whether the court should order or facilitate any particular method of non-court-based dispute resolution in a particular case is a matter of the court’s discretion, to which many factors will be relevant.”

The factors that the Court should consider include: – well, the Court declined to say that there were any definite factors. But such matters as what kind of ADR, the stage which had been reached, the costs in proportion to the value of the claim, and the relative bargaining power of the parties might all be relevant.

This leaves local authorities who wish to seek a stay for the Claimant to use their complaints procedure in something of an uncertain position. Although it can definitely be an option, there can be no certainty that an application for a stay would succeed. However, the offer of mediation or other ADR – including access to a complaints procedure – will always be relevant as to costs. Landlords should continue to make the offer.

Awaab’s Law

Meanwhile the Government continues to consult on the implementation of laws to combat mould and damp in rented accommodation, in both the private rented and social housing sectors, in response to the sad case of Awaab Ishak in Rochdale.

Having already given new guidance on addressing damp and mould, which makes it clear that landlords must not blame tenants for causing dampness, the Government is now consulting on the timeframes to be inserted into the Social Housing Regulation Act 2023, which is already in force, and requires landlords to investigate and fix reported health hazards within as yet unspecified timeframes.

The consultation opened on 9 January 2024 and is due to last for 8 weeks.

Some of the wording of the consultation document gives pointers as to the government’s likely approach. It is not a general “right to repair” but applies to issues which amount to a hazard to health. The consultation concentrates heavily on damp and mould, and some of the proposals may be less appropriate to other hazards.

The “executive summary” to the consultation says that the Act is about

how landlords should work with residents to help them understand what they can do to reduce damp and mould.

This perhaps clarifies that, even if a tenant cannot be blamed for the dampness, they can be part of the solution to the problems. They can work with the landlord by ventilating, heating and cleaning the property. The consultation document goes on to point out that engaging in the pre-action protocol is not litigation and there is nothing to stop landlords from doing repairs during that stage.

using the pre-action protocol does not prevent the social landlord from responding through their own complaints procedure…legal proceedings should not get in the way of landlords taking action on repairs. Residents and landlords can, and should, continue to engage on repair works even if legal proceedings are underway, or a complaint is with the Housing Ombudsman.

The consultation states that the Government proposes to implement timescales in relation to the 29 hazards identified by the current HHSRS – probably to be amalgamated down to 21 following an earlier consultation.  The Government proposes that landlords should use their own judgement to decide whether a defect amounts to a hazard which is within the scope of the Act.

There is no proposed change to the current law, in that it will only be once a landlord is on notice of a defect that time starts running. Once on notice, the proposed timescale is that a landlord must investigate within 14 days, but this does not necessarily mean a physical inspection. The landlord can look at photos or videos provided by the tenant, for example.  If the hazard is a risk to health – which, to meet the HHSRS criteria, it probably is – the landlord must, it is proposed, start work within 7 days.  What is meant by “start” means having someone physically on site doing works. What if a part needs to be ordered but won’t come for 3 weeks? The proposal is that the tenant should be offered decant accommodation for the period until works can be done – which may be onerous for both landlord and tenant.

The consultation, concentrating on damp and mould rather than other repairs, suggests that mould and spores should be removed within that 7 day period, even if further works are needed.

The proposal then is that once put on notice of a potential hazard in a property, the landlord has to provide a very onerous amount of paperwork. Within 14 days, the landlord will be required to provide a written summary of findings to the resident that includes details of any hazard identified and (if applicable) next steps, including an anticipated timeline for repair and a schedule of works.

I find this rather unrealistic, given the way repairs reports normally work. If the tenant phones the repairs line and asks for a faulty light switch not be repaired (this potentially falling within HHSRS due to the risk of falls in unlighted areas) this will need to generate an investigation then a report with a timeline – rather than an appointment for someone to come round and fix it.

On the other hand, if there is condensation dampness which is a constant part of life, and which requires the tenant to play a part in remedying it, how can a timescale be realistically provided? Can this response properly include steps the tenant should take to work with the landlord to remedy dampness?

These are matters which landlords may like to make representations on in response to the consultation.

Works, as now, will need to be completed within a “reasonable period of time”.

There is a proposed set of “emergency” repairs which should be remedied within 24 hours. The consultation suggests that these include

  • gas leaks
  • broken boilers
  • lack of water supply
  • electrical hazards such as exposed wiring
  • significant leaks
  • broken external doors or windows that present a risk to home security
  • prevalent damp and mould that is impacting a resident’s ability to breathe

I am not sure that this last one can really come within that category. Such a level of mould does not arise overnight, and if the tenant has not reported it before, expecting a landlord to remedy it within 24 hours is unrealistic.  Broken boilers cannot always be fixed in 24 hours, either.

However the proposal is that if the property cannot be fixed within the timescale set out , the tenant will be entitled to decant accommodation, if they want it.

The final proposal is that landlords be required to keep records of all repairs and associated correspondence. Anyone who has been to one of my lectures will not be surprised to hear I have no issue with that. Records are key. Keep good records.

The more responses the government gets, the better, so this is the chance to make points about the impact of the proposals – an impact costed at some £155 million pounds across the sector. It’s worth taking time to respond.

Catherine Rowlands
February 2024