Many will see the enactment of the Passing of the Homes (Fitness for Human Habitation) Act 2018 (the Act) (1) which will be effective from March 2019, as a triumph not just because of the potential significance of its content but because its Parliamentary sponsor, Karen Buck MP, worked so tirelessly over a three-year period so as to ensure its enactment. Some reservations are set out below but none of these detract from her marvellous achievements.
It seems particularly fitting that this Act received Royal Assent in late December 2018. It is a piece of legislation that either those who contend that they are living in unfit accommodation or landlords who feel that they are having to address unwarranted demands or expectations may be able to utilise. This Act may help to bring clarity and help those affected to find a way through the mire of existing housing legislation and case law. At the very least, at the beginning of a New Year when people feel inspired to make future plans it may be the spur for some landlords to pre-empt potential litigation by putting their property management affairs in better order and I suspect that over time this new Act of Parliament will engender a much more responsible outlook. Equally, it is conceivable that knowledgeable parties or astute representatives will be able to rely on the provisions of this new legislation in the course of informal or semi-informal negotiations.
As things stand, none of the provisions in this brand-new act of Parliament have been subjected to judicial/court scrutiny and one suspects that at some point, authoritative guidance from the UK appeal courts or indeed, the UK Supreme Court will be required. However, for the present it should be emphasised that this new Act is not some sort of unbridled tenants’ or occupiers’ charter. It does not endow unfettered rights and at the very least those who are genuinely aggrieved and find they cannot negotiate informally will still have to fund any court cases they may wish to bring.
Many of these may consider the option of legal aid. However, aside from the fact that the rules relating to financial qualification or legal aid are very restricted, in Housing disrepair cases there is the added barrier that it can only be given in cases where there is a risk of substantial damage to health. This will apply even in respect of cases in which this brand-new Act of Parliament is invoked. Even if cases can be funded, the chances are that given cuts in funding, an already severely stretched UK courts service may not be able to process documentation promptly and efficiently and cases that should be dealt with in weeks or months could end up taking years to resolve.
Some people will act in person but in practice many of those will be deterred either by the complexity of the court process or tellingly, the high level of court fees in respect of which there are only very limited exemptions. Individual local authorities could be called in to provide assistance or that in some instances, there may be an ombudsman service available but in practice, such bodies are as stretched and underfunded as the England and Wales Courts Service.
For want of a better term, this toxic, multiple whammy will probably pre-empt tenants who quite legitimately anticipate damage to health and who wish to pre-empt this contingency ever arising may be precluded from doing so. This may well transpire even in cases where they are contesting claims brought by landlords for possession on the basis of non-payment of rent. They may well find they cannot bring the counterclaims and that County Court or High Court Judges who are hearing their cases may be powerless to intervene. Equally, landlords who have quite legitimate concerns about their tenants’ conduct may find that economic considerations prevail and they too are denied justice.
I do not wish to appear unduly negative and in one sense, nothing should detract from Ms Buck’s magnificent achievement. However, as I was taught as an undergraduate law student, a right without a remedy is not a right and whilst there doubtless will be some that benefit from this new legislation, it may be that because the practicalities have not been addressed, that an opportunity will be lost.
So, why mediation or one of the other ADR services offered by ASM PLUS?
- The ADR services that we offer are timely and provide the means for those in dispute to address their issues and resolve them promptly rather than at some indeterminate point in the future;
- The safe, confidential environment that our input provides ensures that those involved in individual disputes are less pressured which in turn means they can become better informed;
- The parties to individual disputes and cases maintain a significant level of control and will not be “put upon” by external decision-makers and judicial officials;
- Our services are cost effective and accessible to all including those of limited means;
- The facilitated engagement and discussion that is at the very heart of our services helps those involved to focus their minds and communicate frankly and honestly;
- Meaningful engagement in dispute resolution invariably means that those involved take a wider better-rounded view of matters and will help them to focus on what is important;
- ADR is a very effective way of managing both legitimate and unrealistic expectation. It is much easier for a landlord for instance to privately concede that his tenant has a point but at the same time make it clear that the compensation demanded is unrealistic. Equally, it will be possible for a tenant to effectively explain how he or she has been affected.
- The settlements that arise from ADR processes tend to much better reflect the needs, aspirations and concerns of the interested parties and it is much more likely that moving forward, agreements will be honoured in both the legal and moral senses.
Housing lawyers have nothing to fear from ADR. Mediators and other ADR practitioners are not lawyers and they do not either advise or act as surrogate judges. It is lawyers rather than ADR practitioners who have the responsibility of interpreting and explaining what brand-new statutory wording such as “Fitness for Habitation” actually means. People bringing financial claim other remedies still need to be guided by them and in many instances, the parties to a mediation will probably benefit from a legal presence. At the very least, timely legal guidance given “on the day” will help ensure that legitimate settlements are implemented promptly and that in appropriate cases, judicial approval in the form of a court consent order is obtained.
In the results driven legal environment that we have, the worst that can happen is that prompt resolution results in good turnover for lawyers which over time will be reflected in a regular and in all probability, improved income stream. Legal reputations will be enhanced by lawyers associating with invariably successful ADR processes and the satisfaction that this engenders amongst their client is more likely to ensure repeat instructions.
Whether the terms of this new Act are invoked in your case or not, if as either a lawyer or a party you are involved in a housing dispute, perhaps at the start of 2019 you might care to reflect and consider how mediation or some other form of ADR could benefit you and your case, save a good deal of time and money.
The ASM PLUS Civil/Commercial Team has extensive housing experience. We could be assisting you as early as next week and being very good at what we do, we will make a difference.
An informal initial discussion with our director, Paul Sandford, will cost you nothing and commit you to nothing. Call him on (07476) 279 307. His phone line is open now and he awaits your call. ASM PLUS could save you hundreds or thousands of pounds
- Those wishing to read a well written commentary on this new Act can do no better than read the excellent Nearly Legal Housing Law blog, “Fitness for Habitation – a thumbnail guide” by Giles Peaker – https://bit.ly/2VhtriO
Principal Director of ASM PLUS, civil/commercial, workplace, employment, family and educational mediator and trainer with a judicial/legal background. He has knowledge and expertise in dispute resolution in a wide range of areas and disciplines and mediates online.