Many questions have been asked about whether industry and landlords are prepared for ‘Awab’s Law’, which places a new legal duty to ensure social homes are maintained, with tenants’ rights strengthened. However, too few are asking whether the Government is prepared for the potential for unintended consequences.
Awab’s Law, in a nutshell
When a hazard or deficiency has been raised, social landlords must inspect a property within ten days (significant hazard), or 24 hours (emergency hazard), depending on the severity of the hazard.
Emergency hazards are defined as ‘risk of harm to the occupier’s health or safety that a reasonable lessor with the relevant knowledge would take steps to make safe within 24 hours’. Works should begin within the 24 hour period and landlords have five days to complete them and ensure the emergency incident does not reoccur.
If this is not possible, the work must be physically started within 12 weeks.
A significant hazard is defined as posing a significant risk of harm to the health or safety of an occupier of the social home. The definition of harm does not need to be established by a medical professional and includes mental health.
After the inspection has concluded, a written summary of the investigation’s findings should be provided to the tenant within 3 working days and relevant safety work undertaken within 5 working days.
Supplementary preventative works should be satisfactorily completed within a reasonable time-period and alternative accommodation must be provided if relevant safety work cannot be completed within specified timeframes.
Inspections can be carried out by competent professionals have the skills, qualifications (where applicable) and experience necessary to determine significant or emergency hazards.
Deficiencies
Deficiency is a wide term covering:
- Defects, such as a lack of thermal insulation in the structure of the home that leads to excessive mould growth
- Disrepair, such as a broken window or door that could lead to excess cold
- Lack of maintenance, such as a deteriorating damp proof course
Emergency hazards cover but are not limited to:
- Gas or carbon monoxide leaks
- Broken boilers
- Total loss of water supply
- Electrical hazards such as exposed wiring
- Significant leaks
- Broken external doors or windows that present a risk to home security
- Prevalent damp and/or mould that is having a material impact on a tenant’s health
- Significant structural defects or disrepair
These deficiencies also cover a property’s garden, neighbouring social housing rented from the landlord, and common areas.
Damp and mould are considered a hazard if it is found to result from the absence of ventilation or poor insulation. To fix it, the landlord must take appropriate remedial action, such as installing mechanical ventilation or effective insulation.
Unintended consequences
Setting out the above is important because the Government will need to understand the capacity challenges of delivering within timeframes, how industry (construction and landlords) may respond and what that means for the broader construction challenge.
Workforce capacity and impact
The first clear concern will be a stretched workforce, where the sudden need for competent inspectors will take experienced, semi and skilled construction workers off new development projects and into the social housing sector. Some large Registered Providers (RPs) are already training hundreds of inspectors – with 4.5 million homes in the social housing sector -the challenge will be considerable.
This will likely expose landlords to the competitive nature of construction industry, as workers move around to secure better pay. Companies will be set up to deliver inspections for landlords which may create liability conflictions and quality compromises, particularly during winter periods where incident reporting always rises.
Smaller RPs will be disproportionately impacted, as the larger ones tend to be set up for regular inspections, either within existing teams or through experienced repair and maintenance contracts. The greatest challenge for the Government will be when all private landlords are required to inspect properties, particularly if they seek the contract the businesses currently serving social landlords.
There have also been some suggestions that building control officers may ‘jump ship’ to form the experienced arm of the inspector regime, particularly as building control do not offer advice to applicants, which means their expertise is highly sought after. Should this be the case, not only will this impact local building control services, but the Building Safety Regulator will see even greater staffing challenges.
Affordable housing
What has not been discussed is the impact on affordable housing provided by market builders. As social landlords spend money on inspections and works there will be less money available or allocated for the purchase of new affordable homes.
RPs already began slowing their take-up of affordable homes after ringfencing billions of pounds to ensure their homes were EPC C by 2030. The weak economy and high interest rates have exacerbated this with thousands of affordable homes having no provider to take them on.
And if affordable homes have no RP the developer is left with a choice: build and hope an RP can be found – so projects are not left with vacant homes paying council tax – or abandon projects because the risks are too great.
Even if this risk is swallowed, many market homes cannot be occupied until an RP is found. This means the potential of every home being vacant and council tax liability resting with the house builder.
HBA members have taken both routes and as is typically the case, those who decided to build homes and take the risk that an RP can be found are being impacted the most as councils appear to have little sympathy for their decision and appear quite comfortable in charging council tax on vacant affordable homes.
The Government is looking at how the cascading mechanism, which offers a legal solution to there being no RP, can be reformed, but it will not be a silver bullet.
Legal implications
At some point, there will be organised and vexatious claims that social landlords are not meeting their duties, particularly as tenants do not need to provide medical evidence for the impacts faced by hazards. This will likely require a re-examination of Awaab’s Law, which will take time and face considerable pressures.
The Government has anticipated the potential for ‘no win no fee’ claims and the guidance documents cover these ‘Conditional Fee Arrangements’. However, there is a strong possibility that bad actors will seek to exploit tenants with and without an intent to proceed to court and the impact on RP’s may be considerable, particularly if they are not experienced in legal challenges.
Going forward, works completed on a building may be the greatest challenge because some, such as remediating damp and mould, will be done incorrectly as the temptation to ‘fix’ an issue at a considerable cost will be more attractive than investigating, testing, investigating further and repairing at astronomical costs. The legal ramifications from these works may be eye wateringly expensive but may not surface for years.
What is the right repair?
It is likely that the Government will find itself reliving the Cavity Wall Insulation (CWI), spray foam insulation and External Wall Insulation (EWI) scandals. While social landlords are typically experienced in dealing with the obvious issues such as boiler repairs and electrical safety, the focus on cold, dampness, mould and air quality will create a requirement to invest heavily in solutions.
But what is the correct solution? And has it been done well?
This is a prominent issue with insulation works, particularly walls, because the temptation to fill a cavity, or stick on EWI will be great, particularly at scale. Yet many buildings will not suit those works, locking in damp and creating an unseen health problem. The planning process may make also lock in failure, for example, if highway facing walls are not permitted to have EWI.
Making a building energy efficient but not installing ventilation will be another challenge and although many RP’s are now getting to grips with that, those solutions may not be appropriate, affordable or even possible. Those ancillary works can be very intrusive. So much that tenants may press for alternative accommodation.
It is very possible that in a decade, RPs will face legal challenges from persons with serious health conditions because of solutions initially delivered to rectify health related hazards. This will cause those works to be rectified once more, at a much higher cost, or in the most extreme cases buildings demolished.
Awaab’s Law was always going to serve as a challenge and it paves the pay for monumental changes in the rental sector, with future regulations on EPCs and Decent Homes Standards sure to follow. This will certainly create new unintended consequences, such as higher rents and the potential rise of large landlord monopolies. But, in the here and now, the Government is presiding over the potential that a well-meaning policy reduces the broader construction workforce, poses a greater challenge to the delivery of 1.5 million homes, introduces new legal challenges and complexities, negatively impacts the number of affordable homes coming forward and creates more businesses barriers for the housebuilding industry.
The UK needed Awaab’s Law, but it will also need a government which understands that the job of implementing Awaab’s Law successfully has only just begun.
Written by Rico Wojtulewicz, Head of Policy and Market Insight at the National Federation of Builders
