‘Choose Life’ – Choose the Environmental Protection Act

27 July 2018

My name is George McLoughlin and I am a specialist housing lawyer. I am passionate and committed about trying to help my clients.

I want to begin by sharing with you my affection for the film ‘Trainspotting’. This was directed by Danny Boyle back in 1996 and which is based on the book by Irvine Welsh. The story is set in an economically deprived area of Edinburgh and is unashamedly dark in nature. It could so easily have been set in Liverpool or indeed any other UK city.

I believe that it was the film soundtrack that I enjoyed the most rather than the bleak subject matter. If you have seen the film you will undoubtedly recall the film’s opening scene in which Ewan McGregor’s character, Renton, is being chased for shoplifting, with a security card in hot pursuit, to this amazing wall of noise, with spoken, scathing lyrics, which urged us all to ‘Choose Life’.

Lots of the issues that this film raised in 1996, still resonate with us today.

The sequel film ‘T2’ came out last year – and, of course, as much as I was looking forward to being reacquainted will all the characters, I managed to miss it at the cinema; and, although, I have it safely recorded, it still remains unwatched.

I was aware that the ‘Choose Life’ lyrics in the new film had been updated to be more relevant.

So I thought I would take this opportunity to compare the two sets of lyrics: something which I found to be somewhat amusing.

Gone are the references to:

‘..Compact disc players,

Electrical tin openers

Fixed interest mortgage repayments..’

Which are replaced with references to:

’.. Facebook,



Reality TV

Revenge Porn..’

You will be glad to know that I do not intend to delve too deeply into either lyrics or launch into some sociological debate as to what the lyrics may have meant back then, or what perhaps they reveal about how we have evolved over the past 21 years.

My impression though, for what it is worth, is that, on balance, the 2017 lyrics seem to be slightly more optimistic than those penned 2 decades earlier.

I welcome that optimism because that is how I foresee the future for my ability to be able to help my housing disrepair clients with their problems.

One of my favourite reasons for optimism, if you read last month’s article, has been the proposed change in the law to ensure that future properties will have to be let ‘fit for human habitation’.

This proposed piece of legislation passed the latest stage in its passage to law on the 20th June when it went through unscathed [with only some very slight ‘technical’ amendments]. The next stage is the Report stage and then it’s off to the Lords.

When this change in the law comes into force in early 2019, it will only apply in the first instance to ‘new’ tenancies. However, disappointingly, I will have to wait an additional 12 months, so not until 2020, before I will be able to rely upon this provision on behalf of my clients with existing tenancies.

I suppose this will give both Social and Private landlords an extended period of grace to begin a programme of improvements before either deadline is reached; but, we will just have to wait and see what happens.

Those responsible landlords I am sure will respond accordingly; however, unfortunately, it is not those landlords that I am worried about.

It is those ‘rogue’ landlords, invariably, in the private sector, which cause me the greatest of concerns.

In my view, one obvious solution to tackle, these ‘rogue’ landlords may be a greater use of the provisions of the Environmental Protection Act 1990 (‘EPA’) through the local magistrate’s courts.

This remains available if the defects or disrepair to the property amount to a ‘statutory nuisance’ that is prejudicial to health.

From the client’s perspective I can see a number of advantages and very few disadvantages.

The most obvious advantage is one of speed. Landlords, particularly Social Landlords tend to respond with an almost ‘Dresden’ type approach to a letter sent under the EPA, by committing a ‘team’ of workers and resources to ensuring that the alleged statutory nuisance is abated within the strict 21 day deadline.

The reason for this reaction is that they do not want – for obvious reasons – a criminal conviction and the associated reputational damage.

But how will those ‘rogue’ private landlords react? Obviously, the very worst type of landlords will react in the very worst of ways – by threats and intimidation, and retaliatory eviction.

From a practical point of view all that you can do is to ensure a written complaint is sent to the landlord and provide the client with lots of reassurance that you are going to be there to support them.

However, even then, this advice to the client has inevitably to be qualified by telling them that ultimately the private landlord may still legitimately be able to ask them to leave, some 6 months after the repairs are completed, by way of a valid section 21 notice.

Understandably lots of clients when you have this discussion with them, are hesitant about risking the roof over their head and that of their family – even if the same roof is literally allowing rainwater to leak upon their heads.

It was with some excitement therefore that I read the Government’s July White Paper called ‘Overcoming the Barriers to Longer Tenancies in the Private Rented Sector’.

Although there is a lot more to the White Paper, the press headlines concentrated on a proposed minimum term of 3 years for private tenants.

In his foreword to the consultation, the Housing Minister, James Brokenshire MP notes:

‘The majority of tenants are on short term contracts-unsure if they can afford the next rent rise, or whether they might be asked to leave if they make a complaint.’

It gets my support. Not surprisingly those groups representing landlords have greeted this with less enthusiasm. The Guardian headline reported that ‘Landlords react with fury..’.

But, as always things move very slowly, and the deadline for responses is set for the 26th August.

Moreover, Solicitors seem reluctant to utilise the EPA simply because if the landlord does manage to fix the problems, and indeed abate the nuisance within the strict 21 day time limit – they run the risk of not getting paid.

I have just sent a letter of claim to a major City Council. The rented property in question was subject to a fire caused by an electrical fault. Although not a bad fire (thankfully) in the sense of the damage to the structure of the house, or to my client’s belongings; nevertheless, the entire property was saturated with dark plumes of smoke and residual soot.

The Landlord Authority came in about a week after the fire to ostensibly ‘clean’ the property. It is an understatement to state that they did not do a very good job. The effort expended appeared proportionate to that of my teenage daughter being asked to ‘tidy’ her room i.e. negligible.

I visited the house, this week, some 3 months later and witnessed first-hand the residual soot on every floor ceiling and wall. The Landlord Authority to their credit had managed to plaster the lounge; they had condemned the cooker which had been removed from the kitchen – but unfortunately – have not sought to replace it – at least, not yet.

The other significant problem was the residual ‘burnt’ smell. The day of my visit, even though the weather had been sunny for a number of days, which provided an opportunity for the widows to be open over a prolonged period, the ‘burnt’ smell was still pervasive.

It seems obvious to say- and, I made the very point to the Landlord Authority, in my letter, that until they properly remove the soot, the residual smell will prevail.

To compound matters, my client suffers with a number of chronic medical conditions, amongst them anxiety and rhinitis – so you could imagine the impact upon her as being acute.

Notwithstanding regular and vocal complaints, which even included her local MP, the Landlord Authority so far remains adamant that there risible attempts to date are all that they are prepared or required to do.

It was abundantly clear to me form the onset that this case could never be a ‘disrepair’ claim under the provisions of the Landlord & Tenant Act 1985 because there was no obvious disrepair. The ceiling and wall plasterwork had not been impacted.

Let’s see what happens when they receive my letter claiming that the residual soot and related smell constitute a ‘statutory nuisance’ that is prejudicing the health of my client.

My client’s expectations are understandably low because of her own dealings that the Landlord Authority. My view is that, unless the Landlord Authority either completely ignore or misinterpret my letter, then I expect them to send in a ‘team’ of professional cleaners to sanitise the property – which should have been their response some 3 months ago.

I will know the answer in the next 21 days. Watch this space.

I would welcome anybody’s own experiences (hopefully triumphs) of using this procedure. What are the potential ‘pitfalls’ to look out for and avoid?

I concede that my opening reference to ‘Trainspotting’ was extremely tenuous; and really only carried a veneer of substance to justify what I thought was quite a memorable title to this article.

So if only for the sake of consistency and which has entirely nothing to do with the law, I believe, I might be justified in ending with the words of the older and, perhaps wiser Renton in ‘T2’:

‘Choose the one you love Choose your future. Choose Life’

I suppose I’d better go and make the time to watch the film! Again watch this space.

George McLoughlin is Head of Housing Disrepair at Curtis Law Solicitors LLP and a member of Liverpool Law Society Civil Litigation Committee.

He can be contacted on George.mcloughlin@curtislaw.co.uk

The above views represent my own and do not necessarily represent the views of Curtis Law Solicitors LLP or Liverpool Law Society