The respiratory effects of damp and mould can cause serious illness and, in the most severe cases, death. Everyone is vulnerable to the health impacts but people with certain health conditions, children and older adults are at greater risk of more severe heath impacts.
Damp and mould has been a health risk in housing that providers should have been addressing for some time, including to comply with health and safety law and the Housing Health and Safety Rating system which lists damp and mould as its first hazard profile.
In October 2021 the Housing Ombudsman published a spotlight report on damp and mould called “It’s not lifestyle”, recommending that landlords should adopt a zero-tolerance approach to damp and mould interventions and that they should review their current strategy and consider whether their approach will achieve this.
The Government has now published new damp and mould guidance for landlords. Understanding and Addressing the Health and Risks of Damp and Mould in the Home (published 7 September 2023) applies to all types of accommodation providers, including social landlords, private landlords and managing agents and those that provide temporary accommodation and aims to address the concerns and outline proactive action to be taken. The message is clear: take steps to proactively identify issues, respond to reports promptly (urgently where the risk is high), and ensure that all measures have been taken to minimise the risk of damp and mould.
The new guidance follows a Senior Coroner’s Prevention of Future Deaths Report following the inquest into the death of Awaab Ishak. On 15 November 2022, HM Senior Coroner Ms Joanna Kearsley concluded that two-year-old Awaab Ishak died as a result of a severe respiratory condition due to prolonged exposure to mould in his home environment. The Rochdale Boroughwide Housing Association (RBH) were noted to have failed to respond to complaints, act on the family’s application to be re-housed, and take appropriate action to treat and prevent the mould.
The new guidance outlines the five legal standards landlords must meet in relation to damp and mould in rented homes:
- The Housing Act 2004 – All homes must be free from hazards at the most dangerous “category 1 level” (generally, category 1 is defined as any hazard whereby an occupier of or a visitor to the property may require some form of medical attention over the course of a year) as assessed by the Housing Health and Safety Rating System.
- The Environmental Protection Act 1990 – All homes must not contain conditions prejudicial to health (i.e. not be a statutory nuisance).
- The Landlord and Tenant Act 1985 – Homes must be fit to live in.
- Social housing specifically must meet the Decent Homes Standard.
- The Energy Efficiency (Private Rented Property) (England and Wales) Regulations 2015 – Privately rented homes must meet minimum energy efficiency standards (an EPC band E).
Concerns around the management of damp and mould
The Prevention of Future Deaths Report raised a number of concerns from which we can all learn and be better. These concerns were not limited to RBH, and many applied to the sector as a whole.
- A previous document referenced at the inquest did not give any consideration to the issues presented by damp and mould, nor was guidance given on the need for properties to be adequately ventilated.
- The Housing Health and Safety Rating System used to calculate risks of the incident and the spread of harm was outdated and did not reflect current known risks of damp and associated health harms.
- There was no evidence that up-to-date information on the health risks of damp and mould was easily accessible to the housing sector.
- Evidence provided at the inquest illustrated a “policy” amongst the housing associations, in cases where disrepair claims had been brought, of waiting for claimant (or legal representative) agreement before undergoing remedial works.
- The private landlord sector did not have access to the Housing Ombudsman for complaints to be independently investigated.
The new guidance illustrates the significant risks that damp and mould can pose to both tenant’s physical and mental health, the imperative for landlords to respond quickly to any concerns, and the practical steps that should be taken to both address damp and mould already present and to prevent future growth.
In summary, the guidance:
- Provides an overview of the potential physical and mental health effects of living in a home with damp and mould.
- Outlines groups with increased vulnerabilities to severe exposure ramifications.
- Highlights relevant regulations and the legal responsibilities of all landlords in relation to damp and mould in homes across England.
- Suggests approaches landlords should consider when responding to reports of damp and mould.
- Suggests methods to reduce the likelihood of damp and mould developing in homes.
In a letter to social housing providers sent on 21 September 2023, Michael Gove, the Secretary of State for Levelling Up, Housing and Communities, confirms the new guidance is part of wider government work to improve standards in the renting sector. These commitments include:
- Introduce “Awaab’s Law” to set out new requirements for landlords to address hazards including damp and mould in social homes.
- Provide new powers for the Housing Ombudsmen and change the law so that social housing tenants can complain to them directly.
- Review the Decent Homes Standard and apply it to privately rented homes.
- Introduce new professionalisation standards that will require senior housing staff to hold, or actively work towards, recognised housing management qualifications.
- Introduce the new Private Rent Property Portal and give all private tenants access to an Ombudsman where their landlords fail to resolve legitimate complaints.
Practical Advice and Complying with Legal Standards
Below is a summary of the actions landlords should be taking to deal with damp and mould.
- Landlords must ensure that all measures have been taken to minimise the risk of damp and mould. For example, landlords should ensure there is appropriate ventilation and carry out both internal and external checks to identify potential problem areas. It should not be assumed that a landlord is able to diagnose all problems themselves and they should seek guidance from appropriately qualified professionals to prevent misdiagnosis.
- Landlords should regularly inspect properties, ensure any deficiencies are promptly remedied and have a regular programme of damp and mould management and maintenance. Landlords have a right, with reasonable notice to tenants, to enter their properties to inspect the premises’ conditions and perform any repairs.
- There should be clear processes in place for both tenants and other professionals, both internal staff and external contractors, to report any concerns. Landlords should look to build positive relationships with tenants to ensure tenants feel encouraged to report any instances of damp and mould.
- If a report of damp and mould is made, landlords should establish the source, identify any contributing property defects and undertake appropriate remedial work. Whilst there is currently no timeline for performing remedial works, landlords should have policies which clearly outline timescales to respond, assess and carry out remedial works. Landlords should respond promptly and address issues as a matter of urgency where there is significant damp and mould and/or when there is a significant concern for the occupying tenant’s health. There is clear indication that further legislation is intended to introduce timelines.
- Landlords should ensure tenants remain informed about works taking place and the likely timescales for completion. Compassionate and active communication should be encouraged. Landlords should not delay taking action waiting for any medical evidence/opinion to be obtained as this is not a requirement for taking action.
- Landlords should inspect the home at least six weeks after any remedial works to ensure issues of damp and mould have not recurred. If there has been recurrence, further investigation and intervention should be undergone.
- Landlords, where aware of tenants with vulnerabilities who may be at increased risk from exposure (for example those with pre-existing health conditions, pregnant people and young children), should ensure tenants are not left living with damp and mould; consideration should be given as to whether suitable alternative accommodation should be offered whilst the issue is rectified.
The new guidance and other changes to come raise a number of issues that providers will need to consider.
- Cost and time implications – Landlords are now obligated to not only respond to tenant complaints but also spend time pre-empting issues and investigating and implementing remedial works to deal with root causes and prevent future damp and mould (no more simply painting over). This is inevitably going to involve a large financial cost, at the same time as providers are trying to address new requirements and costs to comply with fire and building safety.
- Complaints to Ombudsmen – A new Private Rented Property Portal will give both residents of social housing and private tenant’s access to an Ombudsman if their landlord fails to resolve any legitimate complaints. Private tenants have previously not been able to make such complaints. The impact of this could be significant as the Ombudsman will likely investigate and as a result can make orders or recommendations and order remedies. In some instances the landlord may have to pay compensation (whilst this will likely be less than any compensation offered by the court, this could still be significant).
- Claims – A tenant may be able to claim for breach of contract where landlords have failed in their repairing obligations or their health and safety obligations (under the Landlord and Tenant Act). The new guidance clearly outlines the rights of tenants and the obligations of landlords and provides updated information about the health ramifications in the event that landlords neglect their duties. This may have the impact of incentivising tenants to be more aware of their rights and indeed the obligations their landlords have.
- Re-housing tenants whilst conducting work – This may have an impact on social housing providers as, in the event that it is deemed unsafe for a tenant to remain in their property, they will have to re-house their tenants. Given current demands on social housing this could prove difficult.
- Impact on building new homes – The Levelling Up and Housing select committee have called on the government to commit to building more affordable homes by setting a target of 90,000 social rented homes a year. Many housing associations are stepping up and building new homes to fill this gap, but the finances required to address damp and mould may mean taking away financial resources allocated for new homes.
- Increase in disrepair claims – We have seen a large increase in disrepair claims being brought against social landlords across the country. Damp and mould are prevalent in nearly all of those claims. It seems apparent that the tenants in some of these claims are being advised not to permit access to their landlords, at least until the evidence has been preserved to support their claims and often beyond that until any repairs required are agreed between the parties. This can leave the tenant exposed to risk for many months. We anticipate an increase of Access Injunctions being required as the only option for landlords to obtain access in these circumstances.
The new guidance should assist landlords and housing providers to understand what they need to be doing in relation to damp and mould. What is clear however, is it is likely to be a widespread issue affecting many properties that will not be solved overnight.
Landlords will need to show they are acting reasonably. This will require landlords to assess their property portfolio, assess risks (considering issues such as the amount of damp and mould and whether any vulnerable tenants live in the property) and then prioritise remedial works required.