Opinion: dealing with the thorny issue of damp and mould

Damp and mould has always been a very difficult issue to deal with for landlords, but the recent case of Awaab Ishak and the rapid and direct involvement of Government has really brought matters to a head.

The death of a Rochdale social housing tenant’s son, Awaab Ishak, has led to a public outcry about black mould in housing, both socially rented and privately rented, and it’s prompted Michael Gove’s Department for Levelling Up, Housing and Communities to instigate a review of damp and mould guidance to landlords in the wake of this tragedy.

The outcome of the review, Michael Gove has said, will be added to the Social Housing Regulation Bill by way of an amendment, to be included as ‘Awaab’s Law’, a fundamental legal change being called for by campaigners to offer tenants more protection than they currently enjoy.

We will have to await the outcome of the review to find out what measures will be proposed and it will be interesting to see what solutions, if any, the review can come up with.

It will be little comfort to the parents of Awaab, whose death, it was found by an inquest, was a result of prolonged exposure to toxic mould growth in a Rochdale social housing flat being managed by Boroughwide Housing (RBH).

Housing charities such as Shelter fully expect that the review and Awaab’s Law will give more rights in law to tenants living in mould ridden homes, more rights and protections afforded tenants in a high profile Shelter campaign, This was conducted through the Manchester Evening News, in Shelter’s words, “make sure no other child, or anyone else, dies due to mould in their home”.

Damp and mould prevalent in rentals

The issue of mould in rental housing, and mould does seem a problem prevalent in rentals, it’s a thorny issue one for everyone involved, whether that be Government, the legal profession, property managers, landlords or tenants.

That’s because, when all is said and done, it boils down to who is responsible and who gets the blame? It’s very easy for Michael Gove to go round saying that we should not automatically point the finger at tenants over this, while implying that property owners / managers can suddenly do something to solve the problem overnight, implying that they are wholly responsible.

It seems to me that landlords will always point the finger at tenants when black mould appears, whereas tenants will blame the owner, or should I say the owner’s property. Clearly, legally the issue is such a grey area that blame can be apportioned either way, or somewhere in between the two, both parties may be partially to blame, therefore how do you determine that?

Traditionally lawyers have dealt with the matter in a fairly black and white fashion: if there’s a problem with the building’s structure, leaking walls, roof, rising damp or leaking pipes then clearly it’s the landlord’s problem.

On the other hand if none of these problems exist then legally it all boils down to the tenant, either because the property is not being adequately heated during cold weather or steam generated through cooking, washing or drying clothes, is not being properly vented to the outside, but rather allowed to condense on cold surfaces. Or just as likely, a combination of the two.

Unfit housing

But, there’s a half way house, excuse the pun, when a property, although free from the above defects, may be inadequate in other ways: insufficiently insulated or with a heating system that is ineffective or exorbitantly costly to run, or with insufficient means of adequately ventilating kitchens and bathrooms when this is required.

What a recent House of Commons Library paper titled Helping tenants with damp and mouldy housing (England), calls unfit housing would fit the description. Landlords have a statutory duty to provide their tenants with properties that are are “fit for human habitation” at the commencement and maintained throughout a tenancy.

One of the main categories of hazard in the Housing Health and Safety Rating System (HHSRS) used by local authority environmental housing inspectors (EHOs) is that the house is free from damp or fungal growth, both caused by dampness and/or high humidity and excess cold might amount to a category 1 hazard.

Inspections

Private and housing association tenants can contact their council and request an inspection by an EHO. Where an EHO identifies category 1 hazards under the HHSRS the council must then take action to ensure that the hazard is removed. This usually involves the landlord receiving an improvement notice and the council has further enforcement powers where landlords don’t comply.

In the case of social housing and with council tenants a house falling into this category creates something of an anomaly has the council in effect will be acting against itself.

Who decides?

The difficulty with damp and mould comes back to this thorny issue of establishing a cause and who is responsible. HHSRS may well be an objective process, a risk assessment system designed to standardise results, but then human nature intervenes.

A truly experienced EHO, private surveyor or damp specialist could be expected to pinpoint a cause and a remedy. But not all inspectors and surveyors are truly experienced in damp and mould in practice. What’s more, damp specialists often have a vested interest in finding work.

If it comes to a dispute, and thereby we get into a lot of expense, expert witnesses are needed to advise the legal representatives and judges of the facts, and of course then we get into an adversarial system.

Decent homes

The next stage in the government’s legislative programme on housing scheduled for this year is the introduction for the first time in the Private Rented Sector (PRS) is the Decent Homes Standard (DHS).

Introduced by the Labour Government in 1997, DHS was a standard designed for registered providers of social housing to meet. When recently under review it was concluded that the standard “remained broadly suitable and effective” but said an update would be beneficial.

Although full of good intentions on the part of the Government, the introduction of this additional layer of standards, at the end of the day, requires skill in correctly determining cause and effect and sensible solutions which are clear to all involved, if time consuming and expensive disputes are to be avoided.

Gove’s directive

The Secretary of State at the Department for Levelling Up, Housing and Communities, Michael Gove, wrote to all council leaders and social housing providers last November setting out his expectations relating to damp and mould.

He issued a direction under section 3(3) of the Housing Act 2004 which said all homes must meet the DHS and that those failing the test should have “rapid remedial works” carried out. In particular he highlighted the “thorny” issue of damp and mould.

Legal duty

There are now proposals to place a legal duty on private landlords to ensure properties meet the DHS. Local authorities would be tasked to investigate complaints. A breach will be a criminal offence which could incur a civil penalty or resulting in prosecution in the Magistrate’s Court.

The PRS housing stock consists of an overwhelming majority of older properties, properties that are less well equipped with good insulation, up-to-date heating systems and good means of ventilation. If these properties are to meet the proposed energy performance rating of EPC “C” by 2025 for new tenancies (2028 for existing tenancies) then a considerable amount of money will have to be spend on many of them (capped at £10,000) for these up-grades to be effective.

However, a housing stock brought up to full decent homes standard, and meeting EPC “C”, would solve a lot of the thorny issues surrounding damp and mould.

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