By Paul Oatt BSc (Hons) MSc CEnvH MCIEH
How do you check that a rented property is safe, without actually inspecting it? This is the dilemma that Local Authorities now find themselves in during the Coronavirus lockdown. The Government have made it clear that despite the challenges presented by COVID-19 Local Authorities still have a duty to enforce safety standards and Landlords still have a duty to ensure the safety of tenants. 1 There is a recognition that it will be difficult for Landlords to comply whilst occupiers are self-isolating and quite tellingly the new guidance is non-statutory advice to Local Authorities on how to administer their statutory duties, even going so far as to suggest they take a ‘pragmatic approach.’ 1
Anyone involved in making local authority housing enforcement decisions using the prescribed risk-based assessment methodology of the Health and Housing Safety rating System (HHSRS) 2 will tell you that it for all its faults, 3 pragmatism has always been at the heart of arriving at an appropriate enforcement decision. Irrespective of the UK Lockdown imposed on the 23rd March this year, 4 Local Authorities must clearly continue to take appropriate action when they find the most serious ‘category 1’ hazards (5., p.5.) They may take action for category 2 hazards (5., p.6,) but these are likely to be ‘deprioritised’ if lower risk 1 and delayed until restrictions are eased.
Ordinarily the first response would be to arrange to carry out an inspection, (5., p.188.) But under the current conditions Local Authorities will have to decide case by case if the situation presents a serious hazard and an imminent risk to tenant’s health. They will have to look at any relevant previous complaints or enforcement history to see if the hazard had previously been identified. This desktop survey will have to be balanced with what is known about the occupiers, such as any previously recorded vulnerabilities, and whether or not the occupiers would be sufficiently aware of the extent of the hazard presented by disrepair or poor conditions.
To aid in these decisions the new Government guidance suggests seeking provision of photographs, video or live streaming from the occupier, 1 when responding to new cases. For existing cases, any requirement to carry out works in relation to ongoing enforcement will have to be suspended and in cases of emergency remedial action the Local Authority may have to consider serving a Prohibition Order (5., p.14) to prevent access to parts of the property whilst the restrictions are in place,1 until such time as they can be remedied.
In working to ensure hazards are addressed the Government urge Local Authorities to work closely with Landlords and tenants.1 But usually if there is a close working relationship then it is not necessary for a Local Authority to commence enforcement action through the service of a notice or an order. But when enforcement action is taken evidence has to be gathered along the way to the criminal standard of proof in anticipation of the possibility that the notice or order will be breached or not complied with, necessitating a prosecution. When prosecuting the council must be certain beyond a reasonable doubt6 that an offence has been committed and present this in evidence. A Landlord has available to them a defence of reasonable excuse for allowing or permitting the premises to be used in contravention of either a notice or an order, (5., p.20-21) evidence gathered must successfully demonstrate that the offence was committed without a reasonable excuse for which the burden of proof (7., p.61) rests with the defendant to provide.
So, the Governments expectation is that Local Authorities and Landlords alike still observe their respective duties whilst Coronavirus restrictions apply. The Government have stated that essential repairs and maintenance can still be carried out in rented properties during this time and have issued guidance for tradespeople working in people’s homes,8 including handwashing and social distancing measures. According to the Gas Safety Register, the current Health and Safety guidance for Landlords regarding gas safety,9 also emphasises that there is still a need to comply during this time but if circumstances are such that compliance is not possible a Landlord must be able to show that they took all reasonable steps to comply with the law and be able to evidence communication with tenants and engineer’s to arrange access. The Health and Safety Executive (HSE) announced that annual gas safety checks can now be carried out 2 months prior to the due date, and retain the existing expiry date.10 Given the additional flexibility in the law it would be hard for a Landlord seeking to mount a reasonable excuse defence to explain why there had not been sufficient time for a safety check or a repair to be carried out.
But it remains to be seen if courts will be equally flexible towards Local Authorities by accepting submission of photographic or video evidence provided by an occupier as satisfactory evidence, in lieu of an inspector collecting it first-hand during this lockdown.
Ordinarily when assessing the vulnerability of an occupier, we look at the social determinants of health,11 beginning with the relationship between maternal health and well-being and that of the child, the environment children grow up in and opportunities for early cognitive development and educational attainment, patterns of work or unemployment and adverse work conditions, all of which relate to income and health, the ability to work, to earn and to afford, and this dictates what kind of accommodation a person can afford to live in. Poor housing conditions lead to poor health and often house the most vulnerable.
But under the Coronavirus lockdown vulnerability takes on a new dimension, the increased risk of severe illness and poor outcomes from exposure to COVID-19.12 Persons with chronic neurological diseases or long-term chronic conditions that are pulmonary bronchial, kidney, liver or cardio-vascular related. Persons with diabetes, weakened immunity through disease or aggressive treatments, being overweight with body mass index over 40, or being pregnant are all factors to consider when assessing vulnerability, and not all of them are solely applicable to the elderly vulnerable age group.
The stay at home guidance from Public Health England 13 (PHE) is clear that persons living alone can self-isolate with COVID-19 symptoms for 7 days and for those who live with others it is 14 days. If there are vulnerable household members the site advises that arrangements be made to move them out to stay with family or friends and if this is not possible to ‘stay away from them as much as possible.’13 Anyone reading that can see that this is easier said than done, for a family in that situation the necessary cooperation and coordination required to maintain social distancing measures is relatively feasible. But what happens in a House in Multiple Occupation (HMO)?
Having now inspected more private rented properties than I could ever possibly count, and met and interviewed numerous tenants either renting properties as a family or in HMO’s, 14 to get a sense of the level of occupancy and whether or not the amenities are suitable for the number of occupiers, you have to ask an occupier how many people live in the property? In single family dwellings the answer comes almost immediately, it’s their family the answer comes without hesitation. But ask a person living in an HMO and it is not so straightforward, often there is a pause while they count and they don’t always know everybody’s name. You may interview a number of different people from the same property and get a different answer from each one to the question of how many people are living in the house. Many occupiers find it uncomfortable to live in HMO environments that feel crammed with occupiers from all walks of life, and problems often stem from too many people living in one house. 15
The state of the kitchens and bathrooms in HMO’s tell you how socially cohesive the occupiers are. Generally, in my experience those properties with the worse bathrooms and kitchens are the ones where the occupiers barely know each other, keep to themselves 16 and have no overall responsibility for cleaning and maintaining the common parts they all share, and hardly any of them can correctly tell you the exact number of persons they live with let alone identify them all by name. This is not a criticism, there is a large churn of occupiers in HMO’s especially in London, 17 new occupiers get their room and keys and keep to themselves because that is what everyone else in the house is doing.
But now we are all in a situation where we have to manage and coordinate our movements in a way that we have never had to consider before. In line with the Government guidance,1 HMO Landlords have a duty of care towards their tenants and are best placed to give the occupiers advice on what to do if an occupier has Coronavirus symptoms. The Local Authority should support Landlords in helping them to manage this.
If a person has symptoms and they live with other people, regardless of family or HMO set up, all household members must stay at home and not leave the house for 14 days starting from the day when the first person in the house became ill, 13 to isolate and control the disease and prevent or reduce the risk of spreading it amongst the community, occupiers who are still unaffected after 14 days can end isolation as this is believed to be the incubation period and after this period persons are unlikely to be infectious. But managing this in an environment where up until now everyone has just done their own thing is going to need occupiers to step up and they will need support from their Landlord and from the Local Authority.
In the best managed HMO’s often you see that the occupiers have organised a kitchen and bathroom cleaning rota, there are signs reminding persons to wash up and tidy up after themselves. In an HMO where occupiers are self-isolating the use of the kitchen will have to be managed on a rota basis to ensure that everyone can observe social distancing. Living room recreation areas will have to be avoided altogether, and absolutely everyone is going to have to thoroughly clean bathrooms and toilets after use on top of regular hand washing or use of hand gels and be aware of what to do in an emergency if an occupier’s health deteriorates. 13
What if there is a vulnerable person living in an HMO susceptible to severe illness and likely poor outcomes arising from Coronavirus infection? What if they have no other family here in the UK? Most outbound flights have now been grounded, 18 with nowhere to go that means a vulnerable person is faced with self-isolating in a room in a shared house, providing of course they are not sharing that room with another occupier.
The vulnerable person will need their own room to self-isolate in and options such as moving a roommate out to share with someone else or for them stay with family or friends if possible, or even by turning a living room into a temporary bedroom may need to be considered. In London where rental space is at a premium the living room is probably already let as a bedroom; both of these options may be non-starters if the property is occupied to the maximum. But this has to be managed appropriately and for the right reasons. Before the lockdown, it was reported that a well-known agency was allegedly telling self-isolating occupiers to get out of the house while they showed some prospective buyers around. 19
If the Landlord is unable to arrange alternative accommodation, or the occupier is unable to temporarily move to a hotel, given that many of them are already closing and displacing temporarily housed homeless, 20 it may fall to the Local Authority to arrange. Any accommodation that a Local Authority might be able to provide on a temporary basis for a vulnerable person to self-isolate, is likely to be very scarce and this will have to be carefully managed through a screening process to ensure that the person fits the definition as set out by PHE, 12 because any place wrongly allocated will be at the opportunity cost of allocating it to someone in genuine need.
There are no easy answers here, the Local Authority enforcement powers 5 and HMO licensing conditions, 5are in place to prevent poor management and overcrowding leading to unsafe conditions, but under lockdown conditions where everyone is encouraged to restrict movement, our ordinary procedures for intervention to prevent spread of disease in relation to overcrowding 21 is either unworkable if there is nowhere to decant to, or will be suspended until Coronavirus restrictions are lifted.
At the time of writing this, Chancellor Rishi Sunak has announced a further £14bn in public services funding to tackle Coronavirus £1.6bn of which will go to Local Authorities. 22 We may well need it as we reorganise the regulation of the Private Rented Sector, mastering the art of investigation without inspection.
Paul Oatt is the Author of Selective Licensing: The Basis for a Collaborative Approach to Addressing Health Inequalities, available now from Routledge, Taylor & Francis.
1) MHCLG. (2020) COVID-19 (Coronavirus) and the enforcement of standards in rented
properties. Ministry of Housing, Communities and Local Government. March 2020. [online.]. Available from: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/876501/Local _authority_rented_property_COVID_enforcement_guidance_v2.2.pdf [Accessed 12 April 2020.]
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