WHQS (and my manifesto)

Many of you will have seen the tragic news about Giles Peaker.  I blogged first on Giles’ Nearly Legal site and irregularly, and we had a rather lovely community of contributors who are now a little dispersed.  Every now and again, I would seek his advice on an issue or ask for his assistance for some people.  He was, after all, the guru of housing law to whom we all looked – there is a lovely bio piece from Inside Housing in 2014 which demonstrates how he was viewed even then.  He would unfailingly and kindly reply to my emails putting me in the right direction.  He was an absolute legend and the news has caused considerable upset in my communities.

One of the things about which Giles was passionate was about fitness standards, and his campaign to change the law (along with Justin Bates) in England was successful through working closely with the indefatigable Karen Buck, who introduced their Bill.  We already had a contractual approach to fitness standards in Wales in Renting Homes.  Subsequently, in England, they have had Awaab’s law as a response to issues around damp and mould – I have blogged here about this law and whether it should be transposed to Wales (it’s fair to say that I was unsure about that).  The approach in Wales has been to amend the Welsh Housing Quality Standard in relation to nearly all of the Housing Health and Safety Rating System hazards as from the 1st April.  The WHQS hasn’t really featured on this blog – I’m not entirely sure why not, as it is such an important piece of soft, or regulatory, law.  It prescribes standards for elements of social housing, which (where applicable) must be: in a good state of repair; safe and secure; affordable to heat and has minimal environmental impact;  have an up-to-date kitchen and utility area; up-to-date bathroom; comfortable and promotes wellbeing; a suitable garden; and an attractive outside space.   All the evidence suggests that the Standard has been successful in raising the quality of social housing in Wales since its introduction in 2002.  Regulatory law is often better at this kind of role than hard law, as it can be more reflexive and responsive.  Following consultation, Jayne Bryant announced that the update would “set out clear timescales for investigating and remedying hazards, including those relating to damp and mould”.  And:

“Landlords should demonstrate a proactive, person-centred approach: identifying risks before they escalate, engaging with tenants to understand their needs, and prioritising well-being. Improvements in how damp and mould issues are managed are a key expectation, and robust processes are vital to deliver safe, healthy homes for all.”

It’s difficult to disagree with that, but it does suggest that the claims about the WHQS success might be overblown.  Although there has been an increase in reports of damp and mould, there is also a concern about under-reporting by occupiers.  The Local Government and Housing Committee’s evidence on Hazardous Disrepair in Social Housing from tenants’ groups suggested that this might be out of embarrassment, that tenants might be blamed for causing damp and mould (the old “your habits cause condensation” rationale – on which Giles had strong views), or repercussions when tenants have rent arrears.  We are told – and it is accepted – that social landlords have got better at responding to complaints, but, the Committee (at [30]) said, “it is concerning that some cases that could be addressed at an early stage are not resolved effectively, leading to an escalation of more complex cases”.  Gwennan Hardy has provided an excellent summary of the background to the rules and whether they will help tackle hazards.

The new rule is as follows:

“All Housing Health and Safety Rating System (“HHSRS”) Hazards (except overcrowding), which present a potential significant risk to the tenant or occupier and where the hazard results from building component defects or disrepair within the landlord’s control, must be investigated and remedied within the timescales set out in the rule.”

The timescales are

A hazard which may present a significant risk with an assessed likelihood of imminent harm to the tenant/occupier must be investigated within 24 hours and remedied within a further 24 hours. Any work to make safe should be carried out as soon as possible in any event.

A hazard which may present a significant risk with no assessed likelihood of imminent harm will be investigated within 10 working days and remedied within a further 5 working day period.

On occasion and on the assumption of best endeavours, it will not be possible to remedy a hazard within the timescales above. In this case, a written summary plan must be provided to the tenant (hard copy or electronic) within 5 working days. The content of the summary plan is set out in the published statutory guidance.

The guidance is that a significant risk is “one that poses a significant risk of harm to the health or safety of a tenant/occupant, specifically, a significant risk of harm is defined as a risk of harm to the occupier’s health or safety that a competent member of the landlord’s workforce with the relevant knowledge would take steps to make safe as a matter of urgency”.  Importantly, in assessing that risk, landlords must take into account the occupier’s vulnerability.

The Local Government and Housing Committee expressed some anxiety about the lack of guidance on assessing risk and interpreting the definitions ([56]) and the CIEH’s evidence was that assessors may not have knowledge/training about the HHSRS (I’ve got to agree with that – it is pretty complex assessment).  It should be remembered that (a) local authorities have no formal statutory role in HHSRS assessment/enforcement in relation to their own housing, and, (b) have historically not taken such a role in relation to RSL housing.  So, this is an extension of the rules, but also the expert assessors may not be available/willing to participate.  I have written previously about the state of the HHSRS operating guidance and enforcement in Wales, and repeat those comments here – if you are working on dated guidance,  what does this say about your commitment to housing hazards?  And, the experts are right on your doorstep, having just led on the Westminster documents.  In the absence of expertise and proper guidance, the attempt at getting consistency of self-reporting is frankly unlikely (and, how we might assess whether there is consistency is also an interesting question).  The exclusion of overcrowding (due to an acknowledged need to develop larger new social housing) is also perplexing in the context of WG values around equality and anti-racism as this issue disproportionately affects black and minority ethnic households.  I’m not sure that these rules do anything about under-reporting.  So, I am afraid that the more self-congratulatory comments I have read need to be tempered.  But, as I have written before, I am neutral on whether Wales should have a contractually enforceable Awaab’s law – if it does, it could do better than Westminster.

Anyway, for what it’s worth, I wanted to draw together some of the themes which have been developed in this blog as my manifesto for the next Cabinet Secretary for Housing and Local Government.  Everybody else has one, so why can’t I …  Taking my cue from the manifestos reviewed, as research-free wish list zones, here is my list in no particular order:

• Introduce civil penalties for breach of regulations and housing law more generally against all landlords (social and private)
• Introduce the WHQS into the PRS
• Regulate rents in the PRS
• Get rid of the six month notice possession ground (I’ve come round to this view) in the PRS
• Provide a proper basis for the enforcement of housing rights – ie funding for advice and housing litigation; make the PSOW give proper financial recompense for maladministration; educate landlords and tenants about their rights and obligations
• Update the HHSRS Guidance and make it apply to social housing
• Decouple the administration of homelessness law from local authorities
• Develop the right size of social housing in the right places
• Scrap the use of temporary accommodation for homeless households (or, at the very least, cap rents)
• Scrap help to buy (why did we keep it?)
• Understand housing problems holistically as the basis for all interventions in housing policy – they aren’t just housing problems, but systemic issues which affect the most important thing in our lives, ie where and how we live (I’ve been really affected by this book).

I’ve got one rather strange ask as well, which is a bit of a filler to the fifth bullet point about enforcement.  It’s not a manifesto commitment, as such, but an incitement:

• We should be nice to each other, and we should recognise each other’s limits; but let’s not be too nice.  Let’s challenge each other more.  Let’s take points and have the courage to do so, even if it puts noses out of joint.

Finally, my policy rule would be “Don’t make worthless promises which are incapable of fulfilment”.

I hope Giles would like my list.  RIP, you legend, and L’Chaim to you all.