In Disrepair

David Renton

In May 2020, one of my clients asked the local authority – her landlord – when essential maintenance work would start at her home. Damp and mould had made her daughter’s bedroom uninhabitable. ‘It seems to us that you have not given a moment’s attention to present realities,’ the landlord responded. ‘Staff are low in numbers across many of the council’s departments due to personnel self-isolating.’ I told her not to be disheartened, everything was slower in the lockdown. The works would be delayed but they would happen.

I was less sanguine when I saw the same excuse being given in letters written in August and September, when even bowling alleys and casinos were open. One of my clients suffers from arthritis, eating disorders and chronic pain syndrome caused by damage to his shoulder cuff. Leaking pipes above his flat had caused his ceiling to collapse, not for the first time. The housing association’s lawyers insisted that delays to repairs were caused by Covid-19 and not their fault: ‘The defendant has followed government advice and guidance as regards the coronavirus pandemic to safeguard the health and well-being of its employees, contractors and residents.’ The government has indeed published guidance; it does not say that for the duration of the pandemic all works are off.

Few disrepair cases ever make it to a final hearing. It makes more commercial sense for landlords to settle early than to fight the case to trial (where a tenant with a surveyor’s report is more than likely to win). In most disrepair hearings I’m up against a private landlord, who either hasn’t asked a solicitor for advice, or isn’t happy with what their solicitor told them.

Last October I was in the Clerkenwell and Shoreditch county court for a disrepair trial. The court was empty. The judges were behind locked doors, streaming the hearings on computers. The metal chairs in the corridors had been covered with black and yellow tape.

My client has epilepsy and a history of anxiety and PTSD. The timber of her kitchen floor had been taken up and for six months she’d had to live with a hole in the middle of her house, water lapping at the bottom of it. ‘I’ve got nothing left,’ she told me. ‘The house is ruined.’

Weeks before the hearing, solicitors acting for her private landlord wrote that he would not ‘be making an award of damages to your client, this is a minor disrepair claim and works were completed within a reasonable time.’

The judge disagreed. He said he felt ‘disgust’ at the way my client had to live: ‘I don’t believe that the landlord has ever properly applied its mind to her needs or her vulnerability.’

At the start of February, I was asked to represent Bassem, a refugee from Syria. He had seen his hometown burned and members of his family killed. When he came to the UK he was housed in a scheme for asylum seekers. But that accommodation would no longer be available once he was granted refugee status, and he would have to find a council willing to house him.

He approached the London borough where he lived last August, while he was waiting for his asylum claim to be accepted. They told him to wait until his landlord (the Home Office) served him with a notice to quit. He was granted leave to remain in December. On 12 January, the landlord served the notice, giving him a month to find somewhere else to live.

A charity that was helping Bassem wrote to the local authority five times asking them to house him. They didn’t reply in writing, possibly because they were worried that any refusal on the local authority’s part, with any sort of reason, would give rise to immediate proceedings. All that Bassem got was a phone call telling him there was no housing available and he should stay with a friend. ‘What friend?’ he asked.

His solicitor told me he had slept rough before, in the summer. We spoke in the second week of February. There was snow on the ground and night-time temperatures were below freezing.

The day before Bassem was due to be evicted, his solicitor sent a final warning to the local authority: either they housed Bassem or we would issue judicial review proceedings. The email was copied to the local authority’s housing department and their solicitor’s office. The housing department replied: ‘The homelessness department has had sufficient time to respond and, in any event, I cannot make them do anything.’ I left work that evening expecting a fight in court the next day.

But the next morning Bassem’s solicitor had an email from the council promising to house him. The council solicitor had advised her client sensibly; but it should not have needed the threat of judicial review. Since April 2018, when the Homelessness Reduction Act 2017 came into force, councils have been under a duty to assist everyone threatened with homelessness, even before they actually lose their homes.

Central government has duties too. Its primary obligation is to make the rules under which possession and homelessness cases are heard, so that judges can act fairly in circumstances of obvious need. Most recent housing discussion has concerned what should happen to tenants who go into rent arrears as a result of Covid.

That many people are in difficulty is not in doubt. In January this year, according to Shelter, as many as 440,000 private renting adults in England had fallen behind on their rent or were served with an eviction notice that month. In February, the Resolution Foundation published research showing that more than 750,000 families were in arrears with their housing payments.

Between March and September 2020, possession hearings were stayed: even if a landlord applied to the court, the case could not be heard. Early in the pandemic, the housing minister, Robert Jenrick, acknowledged that this wasn’t a long-term solution. He was said to be working with the lord chief justice to ensure that a ‘pre-action protocol for the private rented sector’ would be in place when the stay on possession hearings was lifted.

Since the start of the second lockdown in November, we have had not a stay on possession hearings but only a ban on evictions. An increasing number of possession claims are being issued, and indeed heard, and the courts have started to make possession orders. For the time being, a landlord cannot implement the final step – an eviction date – apart from in a few exceptional cases, for example if a tenant is six months behind with the rent.

The eviction ban is working, in the sense that very few families are being removed from their homes. But it is failing in a more fundamental way: over eight thousand new possession claims were issued between October and December last year, and several thousand other claims, issued before the pandemic, have been reactivated. Increasing numbers of people, in other words, are being sent before a judge, and brought closer to losing their homes, even if the eviction date has been delayed. Suffering has been deferred, but its fundamental causes have been ignored, and thousands of people have been lined up for unnecessary eviction. The government apparently has no plans yet for what should happen when the ban on evictions is lifted at the end of May (extended from the end of March).

Last spring, the mayor of London predicted a ‘tsunami’ of evictions once the stay on possession hearings ended. That has not happened. The eviction ban has been a factor. It seems as if landlords have wrongly assumed that the ban goes further than it does, and have been discouraged from taking even the first step of seeking possession. It also helped that the government, last summer, extended the amount of notice landlords have to give from two to six months. The crisis is not yet visible but the pressure is growing.

The Commons Housing, Communities and Local Government Select Committee drafted a bill last year that would convert certain mandatory grounds of possession to discretionary ones. The government responded by saying it ‘remains committed to tenancy reform and we want to take forward these proposals in a considered manner at the appropriate time’. Which appears to mean that nothing can be done until the pandemic has ended and the courts are full again.

Over the past year ministers have made regulations late, usually on the afternoon of the last working day before the previous set of protections lapses. Action has been taken to abate immediate crises, but not the underlying problems. Every sign suggests that the government intends to continue its inertia and to hold back from legislating until tens of thousands of people have actually lost their homes.