The Grenfell Action Group and residents raised repeated concerns about the apparent neglect of health and safety legislation. Whilst there are several potential causes of action, the reality for tenants is that they would have struggled to bring a claim for a number of reasons.
It has also been widely reported that the tenants tried to obtain legal advice but were unable to do so because of the legal aid cuts.
Whilst the LASPO Act 2012 did curtail the availability of legal aid in housing disrepair cases to only those cases where there is a serious risk of harm to the health or safety of the individual or a member of their family, it is not clear that this in itself was the main factor in preventing the tenants from bringing a claim. The biggest problem seems to be that the currently available legal remedies arise only once the accident or injury or other loss has already taken place or have historically never been within scope for legal aid.
Yet with the Government telling us today that around 600 towers use the same cladding as Grenfell, thousands of tenants will be worried and need to know their rights.
S11 of the Landlord and Tenant Act 1985 (LTA) imposes a statutory duty on landlords to keep in repair the structure and exterior of the dwelling-house, to keep in repair and proper working order the installations in the property for the supply of water, gas, electricity and sanitation and to keep in repair and proper working order the installations for heating and water.
If a landlord is in breach of s11 of the LTA then the tenant’s cause of action would be to bring a claim for housing disrepair in the county court. This would enable them to obtain an order requiring their landlord to carry out works and to claim damages for the inconvenience and distress of having to endure the disrepair.
Whilst individual tenants at Grenfell Tower may have had potential disrepair claims for issues within their homes, it is unlikely that their concerns about fire safety and about the cladding used would constitute disrepair as they do not fall within the limited scope of s11.
Where a tenant is injured or suffers loss by an act of negligence on the part of their landlord they have a potential claim for damages. This type of claim is largely covered by the Defective Premises Act 1972 (DPA), which imposes a statutory duty on landlords as opposed to just the common law duty of care.
It imposes a duty on all those who undertake work for or in connection with the provision of a dwelling to work in a professional manner, use proper materials and ensure that the dwelling is fit for human habitation when completed.
The problem with a claim under negligence/DPA is that it would only arise ‘after the event’ and so does not help tenants trying to take pre-emptive action against their landlords where the injury or loss has yet to occur.
Statutory Nuisance under the Environmental Protection Act 1990
Under the EPA any premises in such a state as to be prejudicial to health or a nuisance would constitute a statutory nuisance. Every local authority is required to investigate any complaints of statutory nuisance. If satisfied that there is such a nuisance the local authority must serve an abatement notice on the landlord setting out a time limit within which certain steps must be taken to abate the nuisance. If the notice is not complied with the local authority can prosecute the offender.
Where the local authority is the landlord, they cannot take enforcement action against themselves and it falls to the tenant to try and take action themselves by bringing a private prosecution under s82 of the EPA.
Legal aid is not available for the private prosecution of criminal cases however, initial investigatory work could be carried out under Legal Help. To bring the claim, a tenant would have to pay privately or find a solicitor that would work under a CFA.
Housing Health and Safety Rating System 2004 (HHSRS)
The HHSRS similarly imposes on local authorities the duty to investigate complaints and identify potential hazards within a property. They have to assess the likelihood of the hazard or accident occurring and what the outcome of this would be and then categorise it as either a category 1 hazard or a category 2 hazard.
If it is a category 1 hazard, the local authority is under a duty to take action, as with EPA claims. In an emergency, where there is imminent risk of serious harm, the local authority can take urgent action to deal with the hazard themselves by either carrying out urgent works or by closing down all or part of the building.
This sounds like an ideal remedy except for that it does not apply against local authority landlords and secondly, many local authorities are not vigilant in taking action. It does not allow tenants to take action themselves apart from perhaps trying to judicially review their local authority for failing to act.
Where do we go from here?
It is clear that there are some serious gaps in the protection that is offered to tenants and particularly in the lack of an effective method of enforcement of the law.
There needs to be a dramatic change in these areas of housing law so that tenants are empowered with the right to bring claims against their landlord, whether local authority or other, and these types of claims, in particular the private prosecutions, need to be brought within scope for legal aid.
It is not enough to try and pick up the pieces after a tragedy has happened. Tenants must have the right to live in a home that is safe and secure and to be armed with the ability to take action where their landlord fails to provide this.
HJA has set up a free legal advice helpline for residents concerned about their housing on 0808 274 9308.
This article first appeared in The Justice Gap, June 2017.