COVID-19 and housing disrepair claims in the UK

As this is a fast moving topic, please note that this article is current as at 11/05/20. For further information, please contact Mandy Williams.

As the current pandemic continues to evolve it gives rise to a risk of an increase in claims for breach of landlord’s repairing obligations. At this time, the government has advised that both landlords and tenants should take a pragmatic, common-sense approach to resolving issues. We anticipate this will also be the courts approach, as landlords struggle to carry out repairs due to the current circumstances but that this will be balanced with the health and safety of tenants, housing officers and tradespersons.

Background

Landlords have a duty to keep in repair the structure and exterior of premises, which includes the supply of water, gas, electricity and sanitation. Tenants should report repairs as early as possible to enable landlords to take the appropriate action, however, the duty arises where the landlord knew or ought to have known about the defect, and a landlords repairing obligations have not changed during lockdown.

During lockdown, many local authorities are prioritising emergency repairs, which are those which may be prejudicial to health and/or present an immediate risk. As such, routine repairs inside properties are being cancelled, but external repairs or those in communal areas are still taking place where it is safe to do so, and tenants should, in most circumstances, be allowing access to the property for urgent inspections or repairs.

The government’s guidance has advised urgent repairs are those which will affect a tenant’s ability to live safely and maintain their mental and physical health in the home. This includes repairs such as:

• Leaking roofs
• Lack of heating or hot water
• Lack of a working toilet or washing facilities
• Security issues, such as a broken window or external door
• Equipment a disabled person relies on that requires installation.

Practical considerations

During the lockdown and based on governmental guidance, we recommend that you:

• Risk assess: Each reported repair should be risk assessed to consider if it is an urgent repair or one that could be postponed. Many tenants may be vulnerable and in self-isolation or shielding and may refuse or be reluctant to grant access. Each property should be considered separately in terms of the tenant’s circumstances and the repair ordered.
• Document and explain changes in policy: Any interim repair policy should be documented to demonstrate that reasoning has been given to the change in policy alongside the Government’s guidance at that time, and you should be able to demonstrate that consideration has been given to each repair reported.
• Consider the necessity of routine inspections: Planned routine inspections will be difficult and if a property does not need to be inspected then it is preferable to not do so. This will reduce any risk of infection to both the tenant and the housing officer. The Government guidance suggests alternative or digital methods of inspection could take place. This could work in practice for routine repairs, but then they could be delayed if they are not deemed urgent.

Communication and cooperation between landlords and their tenants will be important at this time to safeguard tenants. This should be documented to demonstrate reasons for any delays in an inspection or repair at this time.

Future claims

We anticipate that during this time there will be a decline in the level of claims. Nevertheless, claims will continue and as always responding swiftly to claims is critical, however the lockdown will present challenges to this.

The majority of disrepair claims involve some claim for dampness in the property which is alleged to have caused distress, inconvenience and embarrassment to the tenant. As tenants will have remained at home for longer periods during this period, a consideration for courts will be whether the dampness was an urgent repair and has affected a tenants mental health, so should have been rectified.

As you may know, any claims received need to be responded to within 20 working days and the response needs to include copies of all relevant records, for example, tenancy agreement, repair history and house file, together with a response in relation to an instruction of a surveyor. A failure to respond or to enclose such documents could lead to litigation. Fortunately disclosure of documents can be dealt with electronically, however there will be a difficulty in undertaking inspections in properties.  

Comments

Documenting on the house file why a reported repair could not be carried out at this time will assist in defending future claims. And should a tenant litigate unnecessarily early, they may be criticised and penalised on costs by the courts during this time of unprecedented difficulties for landlords in complying with repairing obligations.

We anticipate that once restrictions are lifted there will be a backlog of routine repairs which may lead to an increase in potential claims, as landlords struggle with keeping up with the volume of routine repairs that may develop into urgent repairs, and so it is important to continue to monitor this development.

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