Disrepair but no disrepair claim? Tenants’ Rights under the Environmental Protection Act
Posted on 14th December 2017
Sadly, many tenants find themselves living in unsatisfactory living conditions which are having or could have an impact on the health and safety of their families. However, not all are in a position to bring a claim for disrepair. This is because where the issue relates to an inherent defect in the property rather than the structure or an installation being “in disrepair”, no such claim will exist.
However, tenants may well have a remedy under Environmental Protection Act 1990 (EPA) which deals with cases where there is a “statutory nuisance” which is “prejudicial to health”. Relevant examples of a statutory nuisance would be infestations, condensation damp and mould growth or the ingress of fumes into the property. Whether the nuisance is prejudicial to health would depend on whether it is causing injury or exacerbating health issues. The definition will only be met where it is likely that the nuisance will cause injury and this would be judged on an objective basis. Therefore it is the effect of the relevant defect rather than the mere existence of this that would give rise to a statutory nuisance claim.
The EPA enables local authorities to takes steps to force landlords to take steps to abate nuisances and to take enforcement action if this is not complied with. This recourse would not be available where the landlord is the local authority itself but the EPA also enables individuals to bring private prosecutions against their landlords for allowing a statutory nuisance. If found guilty a landlord will be convicted of a criminal offence and fined and can also be ordered to pay compensation to the tenant and to take steps to abate the nuisance.
It is important to note that the whether a property is to be defined as prejudicial to health will require expert evidence from surveyors and/or medical professionals.
Where a tenant believes they may have a case under the EPA and their landlord is a private individual or housing association it is advisable to approach the local authority to ask them to take urgent action. However at the same time a tenant would be well advised to seek legal assistance with regard to bringing a prosecution, which would be the only option where the landlord is the local authority. In cases of statutory nuisance which is prejudicial to health it is important to act quickly both to safeguard any health concerns but also to force the landlord to act without delay. Where a statutory nuisance can be established according to the above definition a notice can be served on the landlord giving them 21 days to abate the nuisance. If they fail to act within that time, papers can be submitted to the Magistrates’ Court to begin a prosecution.
Therefore even if a tenant has been told that the landlord is not under an obligation to repair an issue as it is due to an inherent defect in the property, they should not be deterred from seeking advice. In many cases it may be that there is in fact an issue of disrepair but even if not, there may well be a relevant statutory nuisance. Hodge Jones and Allen are able to advise on both disrepair and EPA claims and to obtain the necessary expert evidence and can often do so under a no win no fee agreement.