Awaab’s Law: Consultation

The tragic death of Awaab Ishak shocked the nation. The death of a child is always heart-breaking – the more so when it is entirely preventable. Awaab was aged just two when he died in December 2020, as a direct result of exposure to mould in the social home his family rented from Rochdale Boroughwide Housing. His parents raised concerns about their living conditions time and again. The landlord not only repeatedly failed to act, but shamefully blamed the family for causing the hazardous mould.

As the Coroner’s ruling into Awaab’s death makes plain, landlord’s must take residents’ concerns about health and safety seriously. The government’s new guidance on the health risks of damp and mould for landlords states that residents should not be blamed for its presence in their homes, and mould in homes must not be pinned on ‘lifestyle choices’ – cooking a meal, having a hot shower and putting clothes out to dry are not discretionary activities but part and parcel of living in your home. It is therefore rightly the responsibility of landlords to identify and address underlying causes, such as structural issues or inadequate ventilation.

Everyone deserves to live in a home that is decent, safe and secure. Awaab’s Law, which was introduced in the landmark Social Housing Regulation Act 2023, requires landlords to investigate and fix reported health hazards within specified timeframes. The primary purpose of this consultation is to set those timeframes, and I hope to hear views from across the sector. The new rules will form part of a tenancy agreement, so that tenants can hold landlords to account by law if they fail to provide a decent home.

Awaab’s parents have sought justice for their son – and all residents of social housing – with dignity and courage. The petition for Awaab’s Law was launched by his parents with Manchester Evening News and Shelter, and their campaign means that tenants will now have the law on their side when landlords fail them and see their living standards improve.

Awaab’s Law is part of the biggest government reforms affecting social housing in a decade. Since 2010, there has been a steady improvement in the quality of social housing with a reduction in the proportion of non-decent social rented homes from 20% in 2010 to 10% in 2021.^{[footnote 1]} The latest English Housing Survey data, published in July 2023, found that damp and mould affect 177,000 social homes – but residents face other severe problems.^{[footnote 2]} BRE, the built environment research body, estimates that around 217,000 social rented homes are blighted by a range of dangerous health and safety hazards.^{[footnote 3]} The people who live in them, and suffer the consequences, require treatment by the NHS that costs around £65 million a year.

Our Levelling Up White Paper pledged to reduce non-decency in rented homes by 50% by 2030. Awaab’s Law will contribute to this mission by making sure that social housing landlords are taking swift action on the assessment and remedy of the most serious hazards.

Together, these reforms give residents in social housing properties a stronger and louder voice. Everyone deserves to live in good quality homes and to have routes to redress if or when things go wrong.

The Rt Hon Michael Gove MP
Secretary of State for Levelling Up, Housing and Communities

Damp and mould

Awaab Ishak died from a respiratory condition due to prolonged exposure to mould in his home. Sadly, living with dampness and black mould is not unusual for many social renters. According to the English Housing Survey, around 935,000 homes (4%) in England had damp problems in 2021, an increase of just over 3% from 2019. Of these homes, around 4% were in the social rented sector with 11% in the private rented sector and 2% classed as owner-occupied.^{[footnote 11]}

Damp and mould growth is one of the most prevalent and costly hazards in terms of repair costs and costs to the NHS.^{[footnote 12]}

Living with damp and mould can have serious health implications for residents, including respiratory infections, asthma development or exacerbation and cardiovascular effects, with an increased risk of heart disease and cardiac events. These can pose an even greater danger to vulnerable individuals, such as children, older people and people with weaker immune systems. Damp and mould can also have a negative impact on mental health, particularly where residents experience stressors associated with being unable to afford solutions to adverse living conditions. These stressors include low income, fear of debt, damage to possessions from damp and mould, stigma, and social isolation.^{[footnote 13]}

Between November 2022 and June 2023, the Regulator of Social Housing (‘The Regulator’) received 12 self-referrals from social landlords for potential breaches of the Decent Homes Standard due to damp and mould, and 38 referrals from other sources. In the 386 responses they received to the survey they conducted after the Coroner’s Report, 11 landlords reported over 50 category 1 HHSRS damp and mould hazards in homes they manage, and 53 landlords reported over 100 category 2 damp and mould hazards. Whilst acknowledging the incomplete picture, The Regulator’s survey estimated that fewer than 0.2% of social homes have the most serious damp and mould problems, 1-2% have serious damp and mould problems, and 3-4% have notable damp and mould problems.^{[footnote 14]}

Based on Housing Ombudsman data, the number of social residents complaining of damp, mould and leaks increased by 77% between 2020-21 (1,993) and 2021-22 (3,530).^{[footnote 15]} The same report conveyed an increase of 134% in the number of determinations on mould and leak cases over the same time period, of which the number of outcomes upheld rose from 37% in 2020-21 to 45% in 2021-22.^{[footnote 16]} As of 16 October 2023, the Housing Ombudsman had received 5,460 complaints about damp, mould and leaks in 2022-23.

Damp and mould must not be dismissed as a ‘lifestyle issue’. While condensation can of course be created by necessary and normal daily activities, such as bathing, cooking and drying clothes, residents should be able to complete these activities without being blamed for pervasive damp and mould.^{[footnote 17]}

One of the concerns raised in the Coroner’s report was that there was no evidence that up to date relevant health information pertaining to the risks of damp and mould was easily accessible to the housing sector.^{[footnote 18]} New guidance has been developed by the Office for Health Improvement and Disparities (OHID), the UK Health Security Agency (UKHSA), and the Department for Levelling Up, Housing and Communities (DLUHC) with an advisory group of experts. The guidance (Damp and mould: understanding and addressing the health risks for rented housing providers) sets out what landlords, housing professionals and residents should do to deal with mould, with an emphasis on landlord responsibilities in addressing the underlying causes of damp and mould. The government’s 2020 social housing white paper announced that we would review the Decent Homes Standard, which has set the minimum standard of physical decency for social rented sector homes since 2001.[footnote 19]

Damp and mould are not the only hazardous conditions that can have detrimental impacts on residents’ health and safety in social housing. The most common hazards according to the BRE are unsafe stairs, falls, overcrowding, excess cold, and damp and mould growth.^{[footnote 20]} BRE estimate that around 217,000 social rented homes have the most serious HHSRS hazards, costing the NHS approximately £65 million per year.

The mould in Awaab Ishak’s family home was first reported to the social landlord in 2017, and in the 3 year period between the landlord being notified and Awaab’s death, no action had been taken by the landlord to treat the mould.^{[footnote 21]} This case demonstrates that social residents are often having to wait long periods of time for health and safety issues in their home to be addressed, which can leave residents feeling helpless and in the worst cases can put them at risk. The Housing Ombudsman received 5,398 complaints about damp, mould and leaks in 2022. This year alone (2023), the Housing Ombudsman has reported 19 severe maladministration cases involving residents having to wait unacceptably lengthy periods for repairs.^{[footnote 22]}

Landlords of social housing are responsible for most repairs in their residents’ homes. The Landlord and Tenant Act 1985 requires landlords to make repairs to electrical wiring, gas pipes and boilers, heating and hot water, sinks, baths, toilets, pipes and drains, and the structure and exterior of the property, including walls, stairs and bannisters, the roof, chimneys, external doors and windows. Section 9A of that Act (inserted by the Fitness for Human Habitation Act 2018) requires landlords to make sure that homes are fit for human habitation. In determining whether a property is ‘fit’, regard is given to its condition in respect of specified matters which include any hazards under the HHSRS. To be fit for human habitation a home must be safe, healthy and free from things that could cause residents serious harm.

Registered providers of social housing must also ensure their homes meet the Decent Homes Standard, meaning the property must be free from dangerous (category 1) hazards, be in a reasonable state of repair, have reasonably modern facilities and services and provide a reasonable degree of thermal comfort. Social landlords will also usually have their own repair policies and tenancy agreements which often set out any extra responsibilities that they have. We are currently reviewing the Decent Homes Standard to ensure that it is up to date and reflects modern expectations of a decent home.

There is currently no specific legislation that sets out how long a registered provider has in order to make repairs once they know about a hazard. Under the Homes (Fitness for Human Habitation) Act 2018, if a landlord is made aware of a hazard that makes a home not fit to live in, they have a duty to rectify any problems within a reasonable amount of time. If a case reaches court, the judge will determine what a reasonable timeframe for rectifying the issue would be based on the facts of the individual case, including factors such as the extent of the disrepair, the availability of replacement parts and at what point the landlord became aware of the need for the repair. It does not necessarily need to be the tenant who makes the landlord aware – it can simply be the landlord’s own knowledge. For example, the registered provider would have knowledge if they noticed disrepair during a routine visit even if the tenant did not inform them. A landlord becomes liable if they then fail to carry out the repair within a reasonable timeframe.

Through Awaab’s Law, we want to make it clear to social landlords and residents the timeframes within which investigations and repairs must be actioned to protect residents from health or safety risks in their homes.

Social Housing (Regulation) Act 2023

The Social Housing (Regulation) Act 2023 marks the biggest change to social housing regulation in a decade. It will reform the regulatory regime to facilitate significant change in social landlords’ behaviour, making sure that they focus on the needs of their residents, and are held to account for their performance.^{[footnote 23]} The Act underpins a new, proactive approach to regulating social housing landlords on issues such as decency, safety, transparency, conduct of staff and resident engagement, with new enforcement powers to tackle failing landlords.

The Housing Ombudsman Service has also been strengthened through the Act, with powers to order a registered provider to review their policy or practice on matters that may give rise to further complaints, and to issue a complaint handling code and good practice guidance. More information on the Housing Ombudsman can be found under the enforcement section of this consultation.

HHSRS review and updated guidance

Over the last two years, a sounding board of experts and stakeholders from across the sector have been contributing to a review of the Housing Health and Safety Rating System. The review aimed to streamline the process that local councils take in inspecting properties to assess hazards and make it easier for landlords and residents to understand the standards required. Therefore, reviewing and updating the HHSRS is integral to the government’s commitment to ensuring that all residents have a safe and decent standard of housing, free from dangerously hazardous conditions. The government has now concluded and published the HHSRS review and will agree next steps in due course.^{[footnote 24]}

Damp and mould guidance

As previously mentioned, the government has published guidance (Damp and mould: understanding and addressing the health risks for rented housing providers) on the health risks of damp and mould in the home for housing providers in the social and private rented sectors.

The guidance is designed to consolidate existing information and does not represent a change in the regulatory landscape governing damp and mould in the home. The guidance focuses on the health impacts of damp and mould and the vulnerabilities of different groups. It sets out what landlords (both private and social), housing professionals and residents should do to deal with mould, with an emphasis on landlord responsibilities such as responding promptly and sensitively, and understanding and addressing the underlying causes of damp and mould. It covers issues related to condensation, such as poor ventilation, low indoor temperature, and poor energy efficiency, and how landlords should work with residents to help them understand what they can do to reduce damp and mould.

Landlords should take this guidance into account to inform their investigations regarding damp and mould in their properties.

The intent of Awaab’s Law is to prevent another tragedy such as that of the death of two-year-old Awaab Ishak, and for social landlords to understand exactly what they need to do, and by when, if one of their residents reports a hazard in their property.

Implied terms and routes to redress

Awaab’s Law effectively inserts (or in legal terms ‘implies’) into social housing tenancy agreements a term that requires landlords to comply with new requirements, which are to be set out in regulations. This means all registered providers will have to meet these requirements, and if they do not, residents will be able to hold their landlords to account by taking legal action through the courts for a breach of contract. If a case does reach the court, and the registered provider is found to be in breach, the court can order the landlord to do the repairs, pay compensation to the resident or pay some or all of the resident’s legal costs. Alternatively, residents may wish to complain to their landlord, which could then be escalated to the Housing Ombudsman. Similar to the legal route, the Housing Ombudsman has the power to order landlords to undertake repairs and pay compensation to the resident. More information on the Housing Ombudsman Service can be found below.

If a legal route is chosen, it may be possible to resolve issues before they reach the court. The Pre-Action Protocol for Housing Conditions Claims can be used for cases where, despite the landlord’s knowledge of the poor conditions, matters remain unresolved. The pre-action protocol aims to avoid unnecessary litigation, promote the speedy completion of any remedial works and ensure that tenants receive any compensation to which they are entitled.^{[footnote 25]} The protocol encourages tenants and landlords to consider alternative dispute resolution instead of going to court, which should be a last resort.

Use of the pre-action protocol does not constitute legal proceedings. Therefore, using the pre-action protocol does not prevent the social landlord from responding through their own complaints procedure, nor does it prevent the Housing Ombudsman from formally investigating.

We have been clear that legal proceedings should not get in the way of landlords taking action on repairs. Residents and landlords can, and should, continue to engage on repair works even if legal proceedings are underway, or a complaint is with the Housing Ombudsman.

The Housing Ombudsman Service provides an independent and impartial service to investigate complaints against registered providers of social housing in England and other member landlords.

The Ombudsman will determine whether a member landlord has been responsible for maladministration while carrying out its functions. Maladministration can include where a landlord:

• failed to comply with any relevant legal obligations
• failed to comply with any relevant codes of practice
• failed to apply its own policies and/or procedures
• delayed unreasonably in dealing with the matter
• behaved unfairly, unreasonably or incompetently; or
• treated the complainant personally in a heavy-handed, unsympathetic or inappropriate manner

Where the Ombudsman determines there has been maladministration, it can order the housing provider to take steps to put things right or to compensate the complainant, including undertaking repairs or inspecting the property to identify and resolve hazards. These orders have to be complied with by landlords under the Housing Act 1996 and the Ombudsman monitors compliance with them before a case is closed.

The Housing Ombudsman is a free service for residents and seeks to promote dispute resolution between registered providers and residents.

The Housing Ombudsman sets a code of practice for landlord complaint handling, called the Complaint Handling Code, which its members are required to follow under the Social Housing (Regulation) Act 2023. If a complaint is unresolved following the landlord’s final response, the complaint can be escalated to the Ombudsman for investigation.

The Housing Ombudsman can also refer cases to the Regulator if there is evidence of a potential systemic issue.

The Regulator of Social Housing is an executive non-departmental public body sponsored by DLUHC. The Regulator undertakes consumer and economic regulation of social housing providers. From 1 April 2024, its consumer regulation role will change and will allow the Regulator to conduct periodic inspections of registered providers.

Unlike the Housing Ombudsman, the Regulator does not have a role in regulating individual issues. Instead, the Regulator’s role involves setting standards that registered providers must meet and holding them to account for meeting their standards. The Regulator looks at an organisational level, seeking assurance that the registered provider has the right systems and processes to enable it to meet the outcomes required by the standards. The Regulator has a range of tools available, including a suite of enforcement powers, which they can use where a provider is unable or unwilling to meet its standards.

The Regulator has recently consulted on a revised suite of standards. These include expectations on health and safety and repairs as well as providing homes that are decent, safe and well-maintained. The draft standards require registered providers to inform the Regulator of any material actual or potential non-compliance with the consumer standards. This would include any breaches of Awaab’s Law that registered providers consider to be a material failure to deliver the outcomes required by the regulator’s standards. Following the introduction of the Tenant Satisfaction Measures standard in April 2023, registered providers are also required to report on a suite of measures that includes measures relating to repairs and the safety and quality of homes.

If social landlords consider themselves to be in breach of the requirements under Awaab’s Law, they should consider whether the breach constitutes a material failure to deliver the outcomes required by the Regulator’s standards and self-refer to the Regulator if so. Where the Regulator considers a provider has significantly failed to deliver the outcomes required by its standards it will take action.