‘Weapon of Choice..’
14 September 2018
I got an unexpected shiny new magazine sent to me through the post on Saturday morning. All very exciting. It was my very first copy of ‘EHN – Environmental Health News. The front page was a full English breakfast (bacon, sausage, beans, fried egg and tomato) depicted on a plate in the shape of the British Isles and headed ‘Mapping out Food’.
The reason that this magazine had come to me was that I have just been accepted to be a Member of the Chartered Institute of Environmental Health which means, amongst other things, that if I so choose I can now also include the initials ‘ MCIEH’ after my name. I even have a certificate which confirms this.
My mum at least seemed impressed when I told her. My children considerably less so.
To become a member I had to demonstrate that I had over 10 years ‘relevant’ experience in any area of Environmental health. Obviously as a Solicitor I was not an obvious candidate; but fortunately I was able to demonstrate this through a combination of my obvious commitment and housing law credentials.
I am really excited about this development because I believe the law is favourably evolving for the benefit of tenants living in poor conditions. This shift is in the direction of the realm of Environmental Health.
It is moving away from looking at the standard of housing from the perspective of ‘fixing something broken’ in the property (‘disrepair’) and towards assessments of how to alleviate or mitigate potential health and safety risks that tenants find themselves subject to.
Many tenants make complaint of chronic physical and mental health problems which they believe are caused by the damp and mould conditions in their homes.
I am optimistic that landlords in the future will not be able to get away with doing nothing or doing very little to tackle the problems caused by mould and damp regardless of whether they are caused by condensation.
I firmly believe landlords will be required to improve inadequate heating, provide effective ventilation, and have regard to sufficient insulation.
The change in the law on the horizon early next year will require landlords to ensure that properties are (and remain) ‘fit for human habitation’. (’FFHH’)
I have said it many times but I am confident this is going to be a real ‘game changer’ for Claimant housing lawyers. They will be able to assist many clients that at present they have been unable to help.
It is for this reason that I have got really interested in trying to look at housing from a ‘health and safety’ perspective.
The current criteria to assess ‘FFHH’ has 9 factors that can be taken into account; and these can be found in section 10 of the Landlord & Tenant Act 1985.
These include, inter alia, ‘Repair…Freedom from damp.. Ventilation..’ which are all laudable.
Regrettably the 1985 Act provision could only apply when the yearly rent was so small that it was practically useless.
The proposed criteria for assessing what may define a property as being ‘FFHH’ adopts that of the ‘Housing Health and Safety Rating System’ (‘HHSRS’) which was established for local authorities to use in the Housing Act 2004.
The 2004 act gave Local Authorities new duties and powers to deal with poor housing conditions. The idea behind the Act was to give priority to dealing with ‘dwellings’ assessed to be of the greatest risks to health and safety.
There has been some criticism of adopting this system as it is itself 11 years old and there have been calls for it to be reviewed with a view to it being improved.
An obvious issue is that due to decreased budgets Local Authorities have had to reduce the number of housing officers who are able to actively police the private housing sector as envisaged. In reality it would seem that they now only have the time to respond to the most urgent of complaints.
However it’s certain that no changes are on the horizon any time soon.
I apologise to anyone who actually knows something about this system but here is my (very) basic overview of the ‘HHSRS’.
I warn you it’s less than straightforward.
It identifies 29 separate categories of ‘hazard’ or ‘threat’. These include
1. Damp and Mould Growth - with nearly 2 pages of (helpful in my view) ‘guidance’
2. Excess Cold – with 1 pages ½ of (again helpful) ‘guidance’
3. Excess Heat
6. Carbon Monoxide
11. Crowding and Space
15. Domestic Hygiene, Pests and Refuse
Moreover, there are 9 lettered hazard bands
A (hazards scores 5,000 or more) = most dangerous and life threatening
B – C (hazards with scores of 4,999 - 1,000)
These are described as Category 1 hazards and the Local Authority is obliged to proceed to some sort of enforcement (seek an Emergency Order, make a Prohibition Notice, or serve an Improvement notice) D – J (hazards with scores 999 or less) These are described as Category 2 hazards and judged to be as not as serious and although the Local Authority are not obliged to act – and often try to work with the landlord to reach some consensus to resolve an issue, should still be able to take some action if they think it necessary.
I appreciate that I need to find out as much as possible about this system as I can.
I recall that nearly a year ago coincidentally I went on a course run by the Chartered Institute of Environmental Health called: ‘HHSRS Damp & Mould and Excess Cold’.
This was a couple of months after the Grenfell fire disaster and certainly before Karen Buck was able to use that tragedy as a catalyst to galvanise support for her private member’s bill to amend the criteria for ‘FFHH’.
I was the only Solicitor in a room full of Local Authority Environmental Health officers. I was there to try to gather intelligence in regard to the ‘legal’ test for ‘Inadequate heating’ with a view to try to compel landlords to replace poor heating systems that tenants can’t afford to use.
I did not take too much notice [or readily understand what was going on if the truth’s known] when it came to the percentage ratings or scoring that was attributable in certain ‘test’ cases.
If I was on that same course today I am certain that I would get a lot more out of it. That said I think I would have to concede that perhaps I would still need a more suitable lower level entry course, something akin to ‘HHSRS – The Basics: Everything you wanted to know but were Afraid to Ask’. By the way, apparently the definition of ‘Inadequate heating’ if it helps anyone is:
‘Provision of an economic whole dwelling heating system capable of maintaining a temperature of 19 C when the external temperature is – 1 C’
The good news is at that very course I also met up with a like-minded Surveyor whom I have kept in touch with. Apparently he has been busy designing a ‘HHSRS’ course. (as well as completing 3 degrees) I have recently spoken with him and I hope to be in the front row of his first talk.
From what I can gather the scoring or assessment is entirely subjective to what any particular Environmental Health Officer reasonably believes and can justify.
In the future I may not be instructing a Chartered Surveyor as my expert of choice. I believe it will be someone who has experience of the ‘HHSRS as my ‘weapon of choice’.
George McLoughlin is a specialist Housing Disrepair Solicitor at Curtis Law. He is member of the Liverpool Law Society Civil Litigation Committee; and a member of The Chartered Institute of Environmental Health.