Thursday, November 17, 2022

"An Avoidable Death"


The death of  this tiny toddler is shocking but this account by housing lawyer, Giles Peaker, should make very uncomfortable reading for all housing staff and Councillors. 

"Every death was avoidable" said Richard Millett KC at the closing submission to the Grenfell Inquiry. Now we know from the inquest verdict into the death of two year old Awaab Ishak's that this death was also thoroughly avoidable,and we know the catalogue of failures that caused the tragedy.

Awaab died from a respiratory condition caused by exposure to mould in his home, the Coroner found. The landlord, Rochdale Boroughwide Housing, had been getting complaints of mould in the flat from the family since 2017, but no action had been taken, even after a pre-action letter, nor after reports from a health visitor and early years worker of the conditions in the flat and the risk to Awaab's health. 


The Coroner was clear, and we should be too, that the landlord's failure to meet its obligations under section 9A Landlord and Tenant Act 1985 (as amended by Homes (Fitness for Human Habitation) Act 2018) led to the death of this child.


The Coroner was also clear that the property had inadequate or non functioning ventilation, such that normal use produced significant condensation and mould growth. (We'll come back to tenant use below).


I am not going to set out the full litany of failings. The Manchester Evening News has done an excellent job of reporting those here. But there are some things I want to pick out in particular, as being common failings across the social housing (and indeed private) sector. There are also some issues about some tenant claimant solicitors' practices that need to be raised, because they also played a secondary part.


The following might get intemperate at times. If it does, I apologise, but I am very, very angry.


Landlord's first reaction to a report of mould. A housing officer


told Mr Abdullah he 'would have to paint over it' - but he never said to use specialist anti-mould paint, or gave any other advice.


A standard response at a time when the landlord had no legal liability for condensation related mould. Naturally, the mould returned a year later in 2018, but further complaints produced no action. I am only surprised that the family were not told to 'open a window and keep the heating on'.


The there was RBH approach to reports and complaints. There were several different computer systems, and the one CRM system that everybody was supposed to be using wasn't being used by everybody. The health visitor's letter wasn't on that system and other officers were unaware that Awaab even lived at the flat, including Mark Wrigley, the disrepair manager. This will be familiar to all those acting for tenants. The systems and training of the landlord's staff are simply inadequate. There is no proper system for response, monitoring and checking.


In 2020, the family contacted a claims farmer through a Facebook ad. They were passed to Anthony Hodari Solicitors, who sent a pre action protocol letter in June 2020. When RBH's officer, Mark Wrigley, inspected in July 2020. (This was after Fitness for Human Habitation came into force for this tenancy in March 2020, and RBH had had 15 months notice that this would be the case). He concluded the problem was 'lifestyle issues'. Wait for it...


Cooking and bathing were believed to be adding to moisture in the property by RBH - including claims that 'ritual bathing' involving a 'bucket' was taking place, although the court heard workers never asked the family about this directly, while Mr Abdullah insisted it did not take place.


Oh, for heaven's sake, that tired racist allegation. It gets trotted out with pretty much every complaint of damp, or raised as an accusation where there is a leak into the flat below, where the tenant is African. Here, apparently, concluded as being a cause without even asking the tenant. Housing officers have to stop with the racist assumptions, they really, really do.


(Again, remember that things like cooking and washing are the kind of things that people reasonably expect to be able to do in their homes without being accused of being at fault. And the property was belatedly found to have inadequate ventilation, such that normal use would produce the condensation and mould).


So, the housing conditions pre-action protocol is apparently underway. What does RBH do about remedying the defects?




In 2020, RBH had a policy not to carry out remedial works on properties which were subject to legal claims, until they had secured agreement to the works from the tenant's solicitor. It meant that Mr Wrigley visited Awaab's home on July 14, 2020, to draw up a list of repairs that needed carrying out, but the work could not take place until the green light had been given by Anthony Hodari.


*Deep breath*. Who came up with this 'policy'? It is a nonsense, and harmful for both the tenant and the landlord. There is no, zero, nada requirement in the pre-action protocol for the landlord to hold off on works until they are agreed. From the landlord's position, it actually makes sense to do the bloody works as quickly as possible, both to minimise the damages period, and to reduce the chances of the claim actually being issued, because it would quite possibly be a damages only small claim, so saving both ongoing damages and legal costs. It also makes sense for a landlord that actually, hypothetically, putatively cares about its tenants' living conditions to sort things out as quickly as possible.


Sure, there might be arguments over elements of works later on, but that is a much smaller problem.


So, legally and objectively, this is a damn stupid policy, and one that would have the potential (as terribly played out here) to cause harm. Any other landlord having a similar policy should reconsider it immediately (and get proper legal advice).


Now, I am well aware that some tenant claimant acting firms routinely try to insist to landlords that no repairs should be carried out without their agreement, and some firms even advise tenant clients to refuse access to the landlord at least until there has been an expert inspection. (NB for clarity, I have no idea if the firm involved in this case, Anthony Hodari Solicitors, do or did this, so this is not a specific accusation.)


Any firm that does this is engaging in poor practice. There is, again, no legal basis for this. Moreover, it creates a significant risk of reducing claimable damages for the tenant client, as i) the landlord can raise refused/delayed access, and ii) delaying works casts a negative light on how serious the impact of the defects is on the tenant if they are prepared to delay.


In view of this, I would go so far as to say such advice and approach could be conduct bordering on negligence.


If there is a risk of works being done before an inspection, then the time to instruct an expert can be curtailed under the protocol in order to preserve evidence, after all.


Then, if the firm has such a practice of delaying access and insisting works must be agreed, it cannot be a general one. It ought to be quite rapidly apparent in a situation like this one that an interim injunction should be considered, at least to remove the immediate risk. Here, there was the health visitor's letter/report to that effect.


But turning back to this case, it then turns out that Anthony Hodari Solicitors dropped the case in September 2020. We don't know why, so I won't speculate. It looks like a clear cut fitness for human habitation claim, albeit with at that time very limited damages (from March 2020 only), but there can be many reasons why a claim doesn't proceed. However, Hodari didn't tell RBH that they weren't acting any more at the time. RBH apparently continued on the basis of their (wholly misguided) policy that they wouldn't do any works until agreed with the claimant's solicitor, without knowing that the solicitors weren't acting.


This was apparently a policy of Hodari not to say when they stopped acting.


Stephen Lund, director at Anthony Hodari, told the inquest the firm had in fact dropped the case in September 2020, weeks before Awaab died. Mr Lund explained the firm has its own policy not to inform housing associations when cases are dropped to avoid prejudicing other legal action involving the tenant.


This completely mystifies me. Simply informing the landlord that you are no longer instructed can't prejudice other legal action. It also leaves a continuing obligation on the (ex)claimant solicitor to pass on communication from the landlord to the former client, which is a waste of everyone's time. I hope that policy is changed, because in this case, it appears to have a factor in further delay (albeit primarily due to the landlord's misguided policy).


There were partial works in November 2020, but by December 2020, Awaab was dead. More ventilation works have since been carried out.




As Karen Buck MP put it on twitter this evening


When @justinbates28 @nearlylegal and I got the Homes (Fitness for Human Habitation) Act through in 2018 we knew we needed more: investment in social housing, enforcement capacity, legal help and an end to victim blaming. But how-how!- could anyone ignore conditions like these?


It is a cause for rage and despair that even after Fitness for Human Habitation came into force for existing tenancies on 20 March 2020 (and after landlords, including social landlords, having had effectively two years warning about what it meant), a social landlord failed to respond to complaints of dire conditions, blamed the tenant (with racist stereotyping thrown in) and then adopted a catastrophically stupid approach to legal cases - which it had to admit had no legal basis in the inquest - while leaving the tenant and family in conditions even the landlord's own surveyor came to categorise as unfit for habitation.


Perhaps the tenant should have turned the heating on and opened a window.


That the landlord was so organisationally incompetent that some key officers weren't aware of there being a family in the property, despite it being known to the landlord, or unaware of the health concerns about the child being raised with the landlord by health workers, is sadly not a surprise in the slightest.


The same mess lies behind every social landlord refrain of 'this was a regrettable one off incident that slipped through our system. We are learning lessons.' (Predictably RBH are 'learning hard lessons'. There is no evidence of any of the 'lesson learners' yet passing post lesson exams.)


But I am so tired of the excuses and the 'we are so sorry we fell below our usual high standards on this occasion' nonsense. There are hundreds of thousands of rented homes in England with severe condensation damp and mould problems. Double that with other damp issues. Landlords, the time has come to finally stop being crap at this, You are, awfully and tragically, killing people.


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