A familiar response to Housing Conditions cases is to attribute defects to the tenant’s lifestyle. How often do we see opponents and their experts assert that condensation and mould is caused by a failure to effectively ventilate the home or to keep heating at a high temperature. This leads to an assertion that the tenant is to blame and is in breach of their duty to act in a reasonable tenant-like manner. It is an argument that ignores the obvious reality of fuel poverty.

This is far from new, but it has seen a revival since mould caused by condensation became actionable in March 2020 on the arrival of s9A Landlord and Tenant Act 1985.

Interestingly the issue was discussed in the well-known case of Quick v Taff Ely [1985] EWCA Civ 1. This was the case in which the Court of Appeal found that the work needed to remedy the condensation/mould did not amount to repair under s11 Landlord and Tenant Act 1985. This saw the end of claims arising out of condensation for over 30 years. Although they found against the tenant as a matter of law, the court clearly had sympathy for the tenants. On the issue of lifestyle Dillon LJ observed –

“In my judgment, that finding answers the argument that it would be anomalous or unreasonable that this house should be held to be in disrepair because the plaintiff cannot afford to keep the heating on at a high enough temperature whereas an identical adjoining house would not be in disrepair because the tenant had a good job and so spent more on his heating.”

This cannot be relied on as a statement of the law because the tenants lost. But it is certainly persuasive on the question of what is reasonable.

This issue was largely put to bed by the Housing Ombudsman in the 2021 report –

https://www.housing-ombudsman.org.uk/app/uploads/2025/11/Spotlight-report-Damp-and-mould-final.pdf

It is crucial that landlords avoid paternalistic attitudes, automatically apportioning blame or using language inferring blame on the resident. We have seen examples of this with landlords initially assuming that the cause is condensation due to the resident’s ‘lifestyle’. The term ‘lifestyle’ suggests that it is a resident’s choice to live in that way.

Again, this is not a statement of the law but is very persuasive.

It is certainly arguable that the ‘lifestyle’ argument as a defence, is dead. But it is not quite buried! It can be raised to reduce the level of damages. A bit like contributory negligence. This was considered in Charangat v Ali & Ali County Court at Kingston (30 November 2025) This was a possession claim with a counterclaim based on poor housing conditions including damp and mould. The landlord ran the lifestyle defence. This failed. However, the tenants had contributed to the problem - inadequate heating, inadequate use of extractor fans, leaving surfaces wet, etc.. compensation was assessed on the basis of a 25% rental reduction. Judge Andrews said that the reduction would have been 50% but for the tenants’ contribution.

Lawyers who advise tenants need to be aware of this risk. If landlords raise a lifestyle defence, this can, and should, be firmly resisted. But you still need to consider the issue of reasonableness. It is unthinkable that a court would reduce damages because a 15^th floor tenant in Newcastle did not keep their windows open in winter or failed to incur unmanageable heating costs. But it not something can be disregarded.

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(And challenging your opponent’s expert report)

Webinar via Zoom

Thursday 10^th September 2026 at 12.00

Most Housing Conditions cases stand and fall on the report of a surveyor, or other expert evidence. Practitioners are regularly faced with attempts to limit or even exclude their evidence. This webinar is all about the report itself. How do you ensure that the report written by your expert is compliant and will present your client’s case clearly and effectively. This will include a review of challenges that are commonly raised.

We will also look at reports served by the other side and points that you can raise.

· What does Part 35 require?

· What should your expert report say?

· What should your expert report not say? – e.g. defendants commonly accuse experts of making legal submissions

· How is the estimated cost of work calculated – what can be included, what about standard uplifts e.g. project fees?

· Is the cost of ‘investigations’ included as an estimated cost of ‘work’?

· Is Jalili v Bury still a concern?

· Managing the other side’s evidence

· Is it a Part 35 report at all?

· Is a report from an employed maintenance manager, an expert report?

· What about independence?

· Handling objections to admission of the report…

The cost of the webinar is £100 per booking. This means that there is no limit on the numbers attending from your organisation.

To book a place you can email me or send a direct message on LinkedIn.

2. Thursday 24^th September 2026 at 12.00

   Webinar via Zoom

   Prosecuting Housing Conditions cases under the Environmental Protection Act

   With barrister Faye Mellor

   This is a special presentation to introduce housing practitioner to a different or additional way to present housing conditions cases. For this event I will be joined by Faye Mellor who is a barrister specialising in EPA prosecutions –

   What is s82 Environmental Protection Act 1990?

   Who can start a prosecution?

   Who is the Defendant?

   What is a statutory nuisance?

   Examples of nuisances –

   Infestation

   Damp/Mould

   Why EPA? Why not just stick to s11/s9A

   How do you start a case?

   What happens next?

   What powers does the Magistrates Court have?

   Costs

   The cost of the webinar is £100 per booking. This means that there is no limit on the numbers attending from your organisation.

   To book a place you can email me or send a direct message on LinkedIn.

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AI for Housing Lawyers and a warning from the SRA

This week’s post is not only for housing lawyers. But it is about a topic that raises issues that housing lawyers need to address.

I am, of course, talking about AI.

From recent conversations across the profession, at some level everyone is now using it. We cannot escape the reality that this is already changing how we practice law. These changes are here to stay. And the pace of change is accelerating by the day.

The benefits are undeniable. I recently got Chat GPT to write the code to enable me to set up a website for my consultancy. It is also a great starting point for research.

This is going to make a huge difference to some of the most laborious tasks! Admit it, your heart sinks when you have to start wading through documents disclosed by a landlord - hundreds of repairs records, inspection notes, emails, complaints, works orders … Provided we use AI in a professional manner, it can do the boring bits for us. I recently asked Chat GPT to draft a summary of what it can do to help with disclosure. I got a response within seconds together with a draft instruction. So you upload the files after redacting any confidential data (see below!) and type something like this –

Review the attached maintenance records. Do not make assumptions or add information that is not contained in the records. -

Produce a chronological schedule identifying the date, defect/issue reported, action taken, inspection or contractor attendance, works ordered, works apparently completed, and any access issue.

Then group the history by individual defect and identify:

1. the first recorded notification.

2. subsequent reports of the same problem.

3. inspections and findings.

4. works ordered.

5. apparent completion dates.

6. periods exceeding 28 days in which no apparent action was taken.

7. unsuccessful or disputed access.

8. evidence suggesting that a repair was unsuccessful or that the defect recurred; and

9. any apparent inconsistency in the records.

Finally, produce a narrative summary of no more than 1,500 words.

For every significant factual statement, identify the page or entry in the source material from which it is taken. If something cannot be established from the documents, say so rather than inferring the answer.

That final requirement is particularly important. A summary saying “The landlord failed to deal with the leak for six months” is much less useful than one saying, in effect:

Kitchen leak: First reported 12 January 2024 [p.34]. Plumber attended 18 January [p.38] and recorded that further works were required. Works were raised on 22 January [p.41]. There is no record of completion until 17 April [p.76]. A further leak was reported on 2 May [p.81].

What’s not to like?

However, AI can also be a recipe for dangerous shortcuts that can end in tears!

On Monday this week, 17^th August the SRA has published a warning note for regulated solicitors and firms –

SRA | Misuse of AI - Warning notice | Solicitors Regulation Authority

The note accepts the advantages of AI - Many solicitors and law firms use AI safely and responsibly. But then we get to the inevitable ‘however…’ The concerns focus on two issues where AI had led to sleepless nights and worse –

1. Hallucinations and

2. Confidentiality

Hallucinations

Anyone who uses Chat GPT soon realises that it is keen to please. I have never had a response to a question that said – ‘don’t be so stupid.’ This can lead our chatbot to produce the answers that we want to hear. This has led to scary outcomes. The SRA Warning refers to the well-publicised case of –

Ayinde -v- London Borough of Haringey, and Al-Haroun -v- Qatar National Bank

The Ayinde case was an application for judicial review that concerned the council’s homelessness duties. The grounds for the application were settled by a barrister, Sarah Forey. These included a reference to a case called - R (on the application of El Gendi) v Camden LBC [2020] EWHC 2435 (Admin). Dame Victoria Sharpe noted - The case that is cited (El Gendi) does not exist.

I will not dive any deeper into the judgment, save to say that a further four, non-existent cases made an appearance. Ms. Forey had drafted the grounds using AI. Both Ms. Forey and her instructing solcitor were referred to their professional bodies and came close to a finding of contempt of court. Gulp…

Confidentiality

The SRA Warning refers to –

UK v Secretary of State for the Home Department [2026] UKUT 81 (IAC),

This was an upper tribunal case which also involved fake cases. But paragraph 21 of the judgment also refers to the real danger of breaching confidentiality –

We also observe that to put client letters and decision letters from the Home Office into an open source AI tool, such as Chat GPT, is to place this information on the internet in the public domain, and thus to breach client confidentiality and waive legal privilege, and thus any regulated legal professional or firm that does so would, in addition to needing to bring this to the attention of their regulator, be advised to consult with the Information Commissioners Office. Closed source AI tools which do not place information in the public domain, such as Microsoft Copilot, are available for tasks such as summarising without these risks.

This all comes down that word with which we are now familiar – supervision! The SRA Warning says –

All those that we regulate need to ensure that the service they provide is competent, with effective supervision of work [paragraphs 3.2 and 3.5 Code of Conduct for Solicitors, RELs, RFLs and RSLs]. AI has no separate legal personality; solicitors and regulated individuals who use AI in the course of delivering legal services remain accountable for their work and outputs, regardless of how that work has been prepared.

Don’t forget, if litigation requires effective supervision of unauthorised persons, how much more does work conducted by a bot with no separate legal personality need the same or more.

Some lessons

Artificial intelligence has already changed the way that lawyers work, and this change will only accelerate. And the benefits from outsourcing laborious tasks are endless. But beware of the risks –

Don’t ever just copy and paste! Treat AI like a very junior staff member. Every word must be carefully checked.

If you outsource a task to AI, remember that you remain accountable for the work done.

Never, ever rely on case-law quoted by AI without very careful checking and cross referencing. Chat GP is useful for signposting to possible helpful cases but you are the lawyer! Chat GPT has a footnote - ChatGPT can make mistakes. Check important info.

Do not put and confidential data into an open source AI tool. Any such data must be suitably redacted or kept out of the public domain.

Read the SRA Warning, write a clear AI Policy, and ensure proper training for anyone who might use it…

In updates 19 and 20 we covered 5 of the seven –

Excess cold, Excess heat, Falls, Fire, Electrical hazards

Which leaves -

Domestic hygiene, pests & refuse

Structural collapse and falling elements

Domestic hygiene, pests and refuse

The Operating Guidance refers to a few hazards including –

• access into and harbourage within the dwelling for pests;

• inadequate and unhygienic provision for storing and disposal of household waste;

• threats of infection from inadequate facilities for the storage, preparation and cooking of food;

• threats of infection from inadequate or defective personal washing and clothes washing facilities;

• threats of infection from inadequate or defective provision for sanitation and drainage; and

• mental health impacts from any of these issues.

The Housing Health and Safety Rating System (HHSRS): Part 2 - A technical guide for assessors

These are self-explanatory. Many lawyers will have come across them before under s11 and/or s9A. As with the rest of Awaab’s Law, the difference is in the timing. If the social landlord has knowledge of any of these matters, they are under a duty to investigate in line with the regulations that we have already considered. So, the fact that rats are getting into the property, triggers the duty to investigate. We are all familiar with arguments that infestation is the fault of the tenant. But that does not get the landlord off the hook as far as investigation is concerned. Failure to investigate is a breach.

Structural collapse and falling elements

It is obviously a risk if the house falls down!!

According to the Guidance –

This hazard covers the threat of collapse of all or part of a dwelling. It includes elements of the building fabric being displaced or falling due to failures of fixings, disrepair and the effects of weather. Structural failure may occur internally or externally. In the latter situation members of the public may also be put at risk.

Structural collapse is obviously very rare. A more common risk would be objects falling from the building, such as slates. A defective balcony could present a huge risk. Again, these risks are already covered in existing duties. But again, it is the duty to investigate and report that makes the difference. There is also another subtle difference. A building that suffers from structural defects is not necessarily actionable under s11. This is because s11(1B) requires the defect to impact on the tenant’s enjoyment of the home. External cracks with no evidence of internal problems are a common issue. But the duty under s10A arises if there is a risk. So, it is at least arguable that the duty to investigate is triggered in any event.

Comment

These posts have really been by way of a taster of what is to come. But there will need to be big shift in thinking on all sides. Phase 1 was mainly about damp & mould and clear emergencies. Phase 2 changes everything. Practitioners need to look at a much broader range of hazards and then assess the nature and extent of the landlords’ duties. Landlords are already preparing for this.

In an interesting article in Inside Housing, A Director at Karbon Homes said –

“I would never have envisaged saying it but in hindsight, the triaging of damp and mould is probably a little bit easier than triaging some of these additional hazards coming in,”

Inside Housing - Interactive content - Preparing for Phase 2 of Awaab’s Law

This is the point. We will be moving from cases which, whilst far from straightforward, are within a narrow group. This provider has set up a working group to address how they are preparing. Tenant advisors need to do the same. I would suggest that practitioners identify the new hazards and start work now on preparing a triage process.

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The Justice Gap facing victims of Negligence - The Justice Gap

The report sets out some uncomfortable statistics –

· A 60% drop in personal injury claims over the last decade

· A 58% increase in the time taken to settle clinical negligence claims

· Almost a 2/3 drop in the number of workplace injury and illness claimants

One area of work that highlights the problem is road traffic claims. The report notes an 11% increase in the number of casualties and a 43% drop in the number of claims. This is largely down to the whiplash ‘reforms’.

I actually wrote a blog about this back in 2021 –

Steve Cornforth Blog: Whiplash - Concerning Doris and a nasty motor accident - what a difference a week makes!

I highlighted the stark difference experienced by a genuine victim immediately before and after the changes!

It is 8 months before she is fully recovered. In fact she still has the odd twinge but doesn’t want to cause a fuss. Tom secures a payment of £3250.00 which Bill and Doris use to buy that new shed they have been saving for.

Now imagine the same scene a week later. Everything is identical… But Tom tells her that she will get just £840.00 for her pain and suffering. He won’t be able to help her because this is now a ‘small claim’. She cannot recover legal fees. She can do it herself using a new-fangled portal and refers her to a 64 page guide. She discusses it with Bill and they quickly decide…’Let’s not bother.’

Fast forward to 2026 and here we are.

As the APIL report explains, it is not just a numbers game.

Since the ‘reforms’, an increased number of victims say that they find the process stressful.

Claimants find it difficult to cope with the Online Claims Portal (OIC)! Almost 70% of victims don’t know what the OIC is.

This is pattern that is repeated across other type of personal injury claim.

In my 2021 blog I quoted a Sky News headline –

Changes to Whiplash process will “put an end to greedy opportunism”.

Behind all of these stats is a genuine victim. They have been derived of justice, not opportunities!

It is more of a victim chasm! Enough is enough. It is time for politicians to listen…

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Haley V Leeds City Council Leeds Cc Judgment 20260603 V Final

234KB ∙ PDF file

Download

Download

–

The case is interesting because it concerns both fast track allocation and Birmingham v Lee (BvL) 2008 EWCA Civ 891

Proceedings were issued in April 2025. It was a familiar disrepair claim. It ticked the boxes for fast-track allocation. The council filed a defence and, by 11^th August 2025 they had completed the works. This was then a classic BvL type case. It had started out as a fast-track claim but once work was done it was clearly now destined for the small claims track. The claimant’s solicitors filed a Directions Questionnaire in which they agreed to SCT allocation and asked for standard costs to the date work was completed. This then raised the important question about what would have been the appropriate track before completion of the work.

The matter was considered by a District Judge who correctly identified that the key issue was the allocation position before work was carried out. It was also correctly noted that allocation in a housing conditions case involved two stages –

1. Deciding what was the normal track – CPR 26.9

2. Consideration of allocation in the light of CPR 26.23.

In the light of the estimated cost of works and the damages claim, the fast track was the normal track. However, the DJ then said –

‘… even before the repairs were carried out the most appropriate track for this case and the track to which I would have allocated this claim would have been the small claims track’ and ‘The foundation of the BvL provision is not … activated.’

The claimant appealed on two grounds –

1. That the DJ misconstrued or misapplied CPR 26.9 in deciding that this was always a small claim

2. He failed to understand and apply Birmingham v Lee which was binding upon him as a Court of Appeal judgment

The appeal was heard by HHJ Walsh who began by revisiting BvL. I don’t intend to rehearse the fact of that well known case here, but they are set out in paragraphs 18 – 26 of his judgment. He then summarised the BvL position –

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Furthermore, when identifying the normal track, the critical feature is identifying what would be the normal track prior to the performing of the repair, i.e. was it more than £1,000. Thereafter, if in identifying the normal track is the fast track, then when considering allocation overall, and applying the factors of the CPR r.26.13, the question whether consideration of those factors takes the matter away from the fast track to the small claims track.

Counsel for the tenant, Paul Coyne explained that the judge had what was, in effect, a narrow discretion analogous to a presumption. In other words, once it was decided what was the normal track, the judge’s discretion was limited to whether anything in 26.13 justified ‘departure from the normal allocation to the fast track’. In addition, the DJ had failed to understand BvL itself. This was a binding decision, and he was ‘mandated’ to make the relevant costs order.

HHJ Walsh allowed the appeal.

Applying the approach that I have found to be correct, the claimant in those circumstances is entitled to a Birmingham v Lee order absent any other factors justifying the refusal of an order for pre-allocation costs of which none have been identified. Therefore, the learned judge should have made the order accordingly.

And

At first blush I considered that there would be no basis for interfering with the judge’s decision which seems well within the bounds of his discretion. The particulars of claim, however, sought an order for specific performance. The amount estimated for the cost of repairs was over £1,000 and the Appellant expected to recover more than £5,000 but less than £10,000.

Accordingly, the small claims track was not the normal track. But was the fast track? Given the same, looking at the factors that the Judge identified under CPR r.26.13, I agree with Mr Coyne that, in essence, those factors would not in this case indicate a deviation away from the normal track on the facts of the case.

Comment

This judgment, alongside others that I have posted, now gives us a clear framework when considering allocation in these cases. We firstly look at CPR 26.9. If there is a claim for specific performance with repairs estimated at over £1k, then the normal track is the fast-track. If there is a claim for specific performance with repairs estimated at less than £1k then the fast track is still the normal track provided the value of any damages claim exceeds £1k.

We then look at CPR 26.13 which refers to matters such as – the value of the claim, the nature of the remedy sought, complexity of facts law and evidence. But the important thing is that, once the fast track is found to be ‘normal’ the judge has a narrow discretion to explore whether any of these factors would take the case away from the normal allocation. In other words, it is fast track unless ….

As far as BvL is concerned this case is a strong reminder that it is a Court of Appeal decision. It is binding on lower courts. If it would have been a fast-track case before work was done, then the court must make an order for standard costs to that point.

I will end with the words of Hughes LJ in BvL –

‘The effect of that is: providing there is a claim for specific performance a tenant’s claim in a disrepair case will be a fast-track case if either the cost of repairs or the consequential damages claim exceeds £1000. If on the other hand there is no specific performance claim, the ordinary rule in CPR 26.6(3) applies and the claim will only be a fast-track claim if its overall value exceeds £5000’ (now £10k)

Is it really 20 weeks since I started these weekly posts. I hope that they are useful. Don’t forget that you can subscribe free of charge by clicking the button. If you have any topics that you would like me to cover, just message me.

Last week, we looked at the first three of the additional hazards that will be part of Phase 2 of Awaab’s Law that will be rolled out at the end of November 2026.

Today we will look at two the four remaining items.

· Fire and explosions

· Electrical hazards

We need to revisit the Operating Guidance - The Housing Health and Safety Rating System (HHSRS): Part 2 - A technical guide for assessors

And the Governments Guidance for Social Landlords -Awaab_s_Law_Phase_2_Guidance_for_social_landlords.pdf

1. Fire and explosions – it goes without saying that this is a significant risk to health and safety.

The guidance says –

This hazard covers threat to health from exposure to uncontrolled fire and associated smoke and fumes at a dwelling. It also covers the threat from the blast of an explosion and flying debris generated by an explosion. The hazard covers the partial or total collapse of a structure as a result of a fire or explosion. The hazard covers exposure to heat and hot gases from uncontrolled combustion.

And

Explosions include those caused by combustion and those caused by failure of vessels containing heated water and steam.

The Guidance points to particular areas of risk –

Missing or inadequate smoke/heat detection,

Multiple cooking facilities,

Inadequate separation,

Problems with the route of escape,

Lack of regular inspection of electrical wiring/appliances and gas appliances,

Unsafe gas storage,

Reliance on portable heaters,

Building height and

Length of escape to a place of safety.

It is wide and varied set of risks. Not all of the risks will be due to failings by the landlord. In fact, the guidance notes that human behaviour is a major factor in the cause of fires. But there also steps that can be taken to reduce the risk including –

· Internal doors leading between areas of a single dwelling must provide a sufficient barrier to the spread of smoke and fire (where appropriate). Any glazing in doors must respond safely to collision and must be designed for functionality to avoid strains or entrapment when in use and must be maintained in good repair. All bathrooms and WC room doors must be fitted with a suitable lock and must not contain clear glass.

· Adequate external lighting shall be provided to all means of access including entrances and external refuse stores, providing good visibility when there is no daylight.

· All electrical installations, including fixtures and fittings, must be maintained in good repair.

· Gas appliances and flues provided for occupants are safe for continued use.

· Any furniture or soft furnishings that are provided by the landlord should comply with the Furniture and Furnishings (Fire) (Safety) Regulations 1988, inclusive of being correctly labelled for fire resistance.

· All electrical equipment supplied by landlords in rented residential premises is safe and compliant with current UK requirements for safety of domestic electrical products; all electrical appliances supplied by the landlord are subject to testing in line with the IET Code of Practice for In service Inspection and Testing of Electrical Equipment (Fifth Edition) unless they are under one year old and display a UKCA/CE marking.

· An annual gas safety check should have been undertaken within the last 12 months with a satisfactory result. Any heating provided by LPG shall be inspected annually by a suitably qualified engineer.

· The electrical installation should have been inspected and tested within the last 5 years.

· There should be sufficient, properly designed and appropriately sited smoke and heat detectors with alarms in every dwelling. These should be properly maintained and regularly tested (additional guidance provided in appendix 1).

This is seen as a major risk and there is supplemental guidance that goes further -

https://assets.publishing.service.gov.uk/media/6a391aecc6e94f095f3efbab/HHSRS_Operating_Guidance_Part_3.pdf

As with other parts of Awaab’s Law these issues are largely already covered within the existing obligation under s11 and/or s9A. But the difference is again, the strict timetables and requirements for prompt reporting and action.

2. Electrical hazards

This is linked to the above.

This hazard covers risk to health from shock and burns resulting from exposure to electricity, including exposure to lightning strikes.

The risks can vary from minor shocks to electrocution. Exposed wiring is an obvious hazard.

Other specific guidance includes.

· All electrical installations, including fixtures and fittings, must be maintained in good repair.

· Every habitable room shall have at least 2 separate and remote double electric sockets that are suitably located for use. Kitchens shall have at least 4 suitably located double sockets.

· Every foundation, roof, roofing component, exterior wall, floor, door, skylight, and window shall be watertight, weathertight, free of persistent dampness or moisture and in good condition.

· No single room in any of the property shall have an observable level of damp or mould growth or deterioration of internal finishes that exceeds 5% of the wall and/or ceiling surface.

· The property and all structures and areas within the curtilage of the property shall be free of pest infestation, with no features present that will attract and support pests. Inspection shall take place to ensure a pest-free environment.

· All electrical equipment supplied by landlords in rented residential premises is safe and compliant with current UK requirements for safety of domestic electrical products; all electrical appliances supplied by the landlord are subject to testing in line with the IET Code of Practice for In service Inspection and Testing of Electrical Equipment (Fifth Edition) unless they are under one year old and display a UKCA/CE marking.

We can see from this a clear overlap with the existing hazard of damp/mould.

There has of course been a recent decision in connection with an electrical hazard.

This was brought under the existing Regulations. A leak of water affecting a socket was found to be an emergency requiring immediate action. This would certainly be covered under the terms of phase 2.

As I have said before, the implementation of Phase 2 is going to have a huge impact on the management of cases.

In the run up to 30^th November, I will post further updates in relation to the remaining hazards.

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For today’s update, let’s do a deeper dive into Awaab’s Law phase 2.

I don’t propose to repeat the actual regulations themselves which I talked about here –

The government has now confirmed that this will come into force on 30^th November 2026. Up until now the regulations have been limited to emergency cases and damp & mould. Phase 2 will see a big extension to a wider range of hazards –

Excess cold

Excess heat

Falls

Fire

Electrical hazards

Domestic hygiene, pests and refuse

Structural collapse and falling elements

We can make a start today with the top 3.

In getting our heads around the nature of these hazards we will be relying far more on the operating guidance to the HHSRS Hazards

80858-ODPM-Housing-PFI-Cover

1. Excess cold.

This can be due to any number of factors – poor insultation, draughty windows, defective heating, expensive heating (?). But what makes cold excessive? The operating guidance says –

‘A healthy indoor temperature is around 21°C, although cold is not generally perceived until the temperature drops below 18°C. A small risk of adverse health effects begins once the temperature falls below 19°C. Serious health risks occur below 16°C with a substantially increased risk of respiratory and cardiovascular conditions. Below 10°C the risk of hypothermia becomes appreciable, especially for the elderly’ – Operating Guidance 2.05

The guidance goes o

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n to explain why this is a serious issue -

‘Although there is some excess winter deaths in all age groups, it becomes significant for those in the 45+ age group. The risk increases with age in a roughly linear pattern up to the 85+ age group, after which there is a marked increased risk’ – 2.08

‘The extent to which housing contributes is not clearly known, but the indication is that people living in dwellings that are poorly heated are at significantly greater risk’ – 2.10

Poor heating is already actionable under s11 and s9a but what this will do is bring excessive cold within the strict deadlines.

2. Excess heat.

This is something we have all experienced during this long dry summer!

The guidance says –

where temperatures exceed 25°C, mortality increases and there is an increase in strokes. Dehydration is a problem primarily for the elderly and the very young – 3.06

But the nature of the risks is not limited to this –

Evidence from investigations into heat waves and morbidity in other countries shows that there is an increase in genitourinary diseases, and, as ozone levels rise during heat waves, an increase in respiratory conditions. Also, heat waves have been linked with excess mortality due to mental disorders – 3.07

In fairness, heatwaves are not a common feature in the UK. But the strong evidence from the Met. Office is that these will increase significantly in the future –

UK and Global extreme events – Heatwaves - Met Office

But it is not just about climate. Poorly controlled heating systems can cause a ‘hot house’! The guidance notes that a home near the top of a block of flats can be a risk – 3.13.

Hot air rises.

3. Falls

Someone who suffers injury or illness dur to a breach of s11 or s9A can bring a claim for damages under s4 Defective Premises Act 1972. This is about taking steps to reduce the risk of falls. The guidance refers to four categories of risk –

Falls associated with baths

Falls on the level surfaces

Falls associated with stairs and steps

Falls between levels

This risk is already established in s11 cases. So in Sheridan v Broadbridge (unreported) a defective staircase that was at risk of collapse justified an emergency injunction. What the extension of Awaab’s Law will is bring these cases within the strict timescales of the regulations.

The risk of bath related falls is covered in the Operating guidance –

‘The main cause of falls in bathrooms is slipping when getting into or out of the bath. Thus the slip resistance of the internal surfaces of baths and showers when wet will affect the likelihood of an incidence occurring’ 19.08

Someone who is injured due to poor slip resistance has the right to bring a personal injury claim. But this will bring the risk of suffering a fall within the scope of Awaab’s Law.

I will look at the remaining hazards next week.

This will mean a different way of thinking in relation to these risks. They are all covered under existing obligations. But from the end of November, they will be subject to the strict Awaab’s Law time limits. I have said before that this in turn will see more injunction applications. I expect that it will be increasingly difficult for landlords to argue against such applications when the risks are included in regulations that are designed to address urgent cases.

Effective use of Part 8 Proceedings for Housing Lawyers

Webinar 30th July 2026

12.00

Enforcement of pre issue settlements is a longstanding issue in housing conditions cases. It is fair to say that this has become more prevalent in recent years. We have all been there, damages are agreed costs are agreed, but the work is never done.

In this webinar we will explore in detail the use of Part 8 in these cases. This will include an explanation of Part 8 and how to ensure that it can be used in your cases. We will look at the special rules on allocation and costs, and the problems that can arise if a case is transferred to Part 7. The webinar will include

· Enforcement is a big issue!

· Why Part 8

· When is Part 8 appropriate?

· When is Part 8 not appropriate?

· Transfer to Part 7

· The Claim Form

· Evidence

· Allocation

· Hearing

· Settlements

· Costs

· A word about tenancy deposit claims

The price is £100 per booking with no limit on numbers, so it can cover 1 person of 20 or more in your firm!

The webinar is included in the annual training ticket.

To book a place you can email me at steve@cornforth.me

Or message me at Steve Cornforth | LinkedIn

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It is as if experienced firms decided ‘enough is enough’. There has since been a number of allocation appeals, with the trend swinging firmly towards the fast track.

I am very grateful to Alisha Butler of Phoenix Solicitors who has sent me details of one such successful appeal.

The matter is not reported but the facts are very helpful.

A claim was issued in June 2025. The tenant was seeking specific performance and damages exceeding £1k. The case ticked the boxes for FT allocation but was nevertheless allocated as a small claim. The tenant properly appealed. The appeal hearing took place in Leeds County Court before HHJ Walsh on 14^th July. Interestingly there was some discussion about the well known case of Birmingham City Council v Lee and the importance of enabling tenants to recover legal costs incurred in brining a claim via the Housing Conditions Protocol. The words of Hughes LJ are among those that I have quoted most often in the last few years –

Without some order as to the early-incurred costs, it would be open to a landlord who is in fact and in law liable for want of repairs to adopt a deliberate policy of omitting to repair until the protocol letter is received, but then of repairing without admission of liability so as to ensure that any subsequent court claim fell to the small claims track. The result of that would be that fast track costs which would otherwise have been due to the tenant would no longer be payable.

The learned judge agreed counsel for the tenant that allocation in a Housing Conditions case. The first thiong is to identify the ‘normal track’. This involves the test that is familiar to us all. Is there a claim for specific performance? If so does the estimated cost of work exceed £1k? If it is less than £1k does claim for damages exceed £1k. If those tests are satisfied then fast track is normal.

The judge then considered the secondary test which is whether are reasons to allocate to any other track i.e. SCT. This brings into play the matter referred to in CPR 26.13 – Matters relevant to Allocation to a Track. The judge found that there were no clear factors that would point to SCT allocation. So there was no reason to disregard the ‘normal track,’

The tenant succeeded and the case was re-allocated to the Fast Track. The claimant was awarded costs of the appeal which interesting was described by the judge as straightforward!

In other news I have talked about the decision by many courts to insist that Housing Conditions Claims are now issued via the damages claims portal following the May 2026 CPR update –

Following discussions with solicitors I have established that there are some exceptions.

The most important of these is about Help With Fees. Cases that involve exemption from fees are excluded from the DCP pursuant to PD51ZB para 1.6(ga) –

the claimant will not, before submitting their claim, apply for remission or part remission of a fee prescribed by the Civil Proceedings Fees Order 2008;

A significant number of Housing conditions Claimants are of limited means so this could make a big difference. Another exemption might apply where there is an application for an interim injunction prior to issue. PD51ZB para 1.6 (bc) says that the DCP can be used where –

an application for an interim remedy is not made either before or at the same time the claim is issued;

This will certainly apply in Awaab’s Law and other urgent cases where you need an interim injunction.

To be honest it is a mess!

Hopefully these exceptions will be of some help…

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At the beginning of October 2026 we will have a new Master of the Rolls following the retirement of Sir Geoffrey Vos. The new MR will be Sr Colin Birss. He is best known to most of us the one who have the lead judgment in the Mazur appeal, earlier this year. He was also in the Churchill v Merthyr Tydfil appeal.

The most celebrated MR of my legal life with Lord Dennng! Back in those days, newly admitted solicitors received a certificate that was personally signed. So I am the proud owner of Lord Denning’s autograph!

In other news we will also have a new President of the King’s Bench Division – Lord Justice Warby.

Judiciary announces new master of the rolls and president of the King’s Bench Division | Law Gazette

For today’s update, I and handing over the reins to barrister, Jonathan McDonell as a guest contributor. He has also posted these thoughts here - The Legal Position

We finally have a High Court authority concerning s.9A LTA 1985 (fitness for human habitation). For nearly two years, parties have relied on Jillians v Red Kite Community Housing (HHJ Clarke, 24th September 2024, Oxford County Court) as the primary authority that explains the various components of s.9A LTA 1985. However, moving forward, parties are likely to rely on Harvey & Anor v Heaver & Anor [2026] EWHC 1671 (KB).

Harvey is an excellent High Court authority. The counsel and solicitors involved were clearly legally adept and highly capable. The Judge, Paul Bowen KC, has provided one of the best analyses of the law that I have ever seen. Whilst I am providing a deep-dive analysis in this blogpost, nothing beats reading the authority in full, and I cannot do justice to the exquisite level of detail within this post. The authority can be found here:

Before engaging in a deep-dive analysis of the authority, it is useful to set out the bottom line up front. The authority confirms, inter alia, that:

Premises may be not be fit if, first, the living conditions present a risk to the health or safety of the occupiers; and, second, the living conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety.

The focus is on ‘any risk of harm’ to the occupiers.

A finding does not depend on whether there is a ‘category 1’ or ‘category 2’ hazard. However, a category 1 or category 2 hazard would be strong evidence of unfitness.

The expert does not need to opine that a decant from the Property is required for a finding under s.9A LTA 1985 to be made.

The ‘tenant conduct’ defence very much focusses on the attribution of responsibility and a tenant default that is a real but secondary cause of ‘unfitness’ does not meet it.

With that, let’s look at the authority in detail.

Background

Several causes of action were live, including a claim for personal injury and alleged breaches of the Equality Act 2010. The High Court decided that it did not have jurisdiction over the Equality Act 2010 claim and decided to hear the housing conditions claim only. Within the housing conditions claim, as usual, both s.11 and s.9A LTA 1985 were pleaded as causes of action. The High Court focussed on the s.9A LTA 1985 claim only (fitness for human habitation). The remaining causes of action were to be transferred to the County Court. The Claimants sought specific performance for completion of the works, a decant from the Property, and damages. The Claimants were ultimately successful in their claim and notably received £130,000 in costs on account. The High Court did not, however, award a decant from the Property.

The Claimants were husband and wife and parents of four children aged 16, 12, 11 and 7. The Property was a four-bedroom dwelling.

Evidentially, Paul Bowen KC relied solely on the single joint expert report of Mr Paul Badham, a chartered building surveyor.

Preliminary issue – deficient pleadings

The Defendant raised the point that it ought to be open to them to argue that the failure to permit access to the Property to allow the Defendants to effect repairs had been ‘wholly or mainly’ responsible for the current state of the Property so that, if the Court did find it to be unfit, the Defendant would have a defence under s 9A(3) of the LTA 1985.

There is nothing unusual about this. In fact, an alleged lack of access appears in pretty much every housing disrepair defence I have ever seen. Often it is pleaded with the necessary precision and specificity for the Claimant to be able to reply, for example ‘the Claimant did not allow access on X date’. Other times, it is pleaded in vague terms for example ‘the Claimant has failed to allow access.’ The latter example is risky for Defendants as they leave themselves open to the criticism that their pleaded case is too vague for the Claimant to reply to and it ought to be struck out. Whether it is struck out or not depends on how technically minded the judge is.

My point is: an allegation of a lack of access is almost always pleaded in some capacity. I find it extraordinary that the Defendants failed to plead an alleged lack of access in this case. It appears that they did not even plead it vaguely, as the authority makes clear:

[4] When I pointed out that the First Defendant had not pleaded that ground of defence Mr. Brady made an application to amend the Defence. I refused that application, for reasons I give at the end of this judgment.

If there is any takeaway from this preliminary issue it is this: you must plead your case fully and properly.

The disrepair in the Property

As above, a single joint expert was used. There were other reports, but the Judge focussed solely on the single joint expert. The expert was not required for cross-examination and his evidence was unchallenged. Importantly, the Judge quite properly recorded that whilst the professional conclusions and photographs were the evidence in the case, the Judge remained the ultimate judge of the questions of fitness for human habitation and relief. I see this mistake time and time again: parties treating the expert reports as if their opinion is determinative. Ultimately, the Judge is the final decision maker, and expert evidence is but one strand of evidence that is considered.

The relevant disrepair in the Property was as follows:

Damp and mould in every room. Importantly, causation was attributed to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof. It was described as being of ‘a light extent’.

The Judge relied on Chapter 11 of the Housing Act 2004 (‘the HA 2004’): the ‘Housing Health and Safety Rating System (HHSRS): Operating Guidance, Part 2: A technical guide for assessors’ (June 2026) (‘the HHSRS Operating Guidance’). This is statutory guidance issued by the Secretary of State under s 9 of the HA 2004 to which local authorities must have regard in the exercise of their statutory functions (section 9(2)). Chapter 11 treats penetrating and rising damp, water ingress through defective rainwater goods, and dampness tracking through solid walls that lack an effective damp-proof course as core to the damp and mould hazard, and as matters of the condition of the structure.

Notably the expert noted that the trickle vents were closed. You can probably see where this is going. The Defendant alleged that the damp was ‘squarely within the tenant’s control’ despite the expert finding that the closed vents were ‘not.. a primary or significant cause.’ The Court found the Defendant’s position to be at odds with the expert evidence, with the HHSRS Operating Guidance, and with the Government’s health guidance, ‘Understanding and addressing the health risks of damp and mould in the home’ (MHCLG, DHSC and UKHSA, updated 1 April 2026) (‘the Damp and Mould Guidance’) which provides that it is unreasonable to attribute damp and mould to tenants’ ‘lifestyle choices’, that the fundamental cause will be building deficiencies, inadequate ventilation, inadequate heating or poor energy efficiency rather than tenants’ normal domestic activities, and that tenants cannot be expected to reduce moisture levels if the home does not enable them to do so.

Importantly, the Judge goes on to find two important points:

That the damp and mould is wholly or mainly attributable to a combination of the limited thermal performance of the construction and active moisture ingress through the chimneys, external walls and roof due to defects or disrepair.

That the damp and mould is so widespread as to present a risk to the health, including the mental health, of any occupant of the Property regardless of any particular vulnerability. The Judge did not need to make any findings as to the particular impact of damp and mould on the Claimants by reason of the health conditions from which they may suffer.

Excess cold. The expert found ‘reduced thermal performance’ as a result of uninsulated walls and poor roof insulation. The Property had an EPC rating of E (the lowest permissible rating). Asbestos. The textured coating to the cracked and deflected ceiling to bedroom one contained asbestos.

The Court relied on an asbestos survey which scored the coating as a 4 out of 12, with a damage factor of 2 (medium damage). The Court referred to the HHSRS Operating Guidance: Asbestos is present in many homes and presents little if any risk if the fibres are not exposed. Asbestos in good condition that is left undisturbed may be left in place. The risk arises where asbestos is friable, in poor condition, or where it is, or is likely to be, disturbed. There is no safe level of exposure. Given the ceiling was cracked and deflected, the Court found it liable to be further disturbed.

Rodent infestation with no control measures in place.

Septic tank – the vent pipe was damaged, and the jointing/seal was inadequate. This falls under the ‘drainage and sanitary conveniences’ hazard. Defective heating system – there were defects in respect of the oil-fired central heating that serves the radiators. Risk of entry by intruders – the garden fencing had numerous gaps and missing sections. The Court found that, individually and collectively, most of the above issues rendered the Property unfit for human habitation.

Analysis of s.9A LTA 1985

The Judge notes: ‘Counsel were unable to point me to any authoritative interpretation of sections 9A and 10 and the revised test of unfitness, although it has been in force for more than seven years’ before going on to provide a high-level, detailed, and extremely helpful analysis of the concept of fitness for human habitation. This element of the authority is beyond the scope of this blogpost, but I encourage everyone to read it because it is a masterclass in legal research.

The main points to note for cases moving forward are:

[54] First, in assessing ‘fitness’ the same relevant matters (‘repair’, ‘stability’, ‘freedom from damp’ etc.) and test (‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’) continue to apply as before the amendments, so that a property that was ‘unfit’ before would also be ‘unfit’ after. The core test in section 10 is carried over unchanged, and the older authorities on its meaning remain a reliable guide. In particular, Summers and Rendlesham remain good authority that fitness has two distinct components: premises may be not be fit if, first, the living conditions present a risk to the health or safety of the occupiers; and second, the living conditions have a sufficiently negative effect on the occupier’s comfort and convenience, even if there is no risk to health or safety. Nothing in the 2018 amendments displace that conclusion.

[56] … ‘Prescribed hazard’ is defined by reference to the list of 21 ‘matters and circumstances’ in the HHSRS Regulations (by virtue of section 10(2)) and the definition of ‘hazard’ is to be found in section 2(1) of the HA 2004 (section 10(3)). If any of those 21 ‘matters and circumstances’ exist and they present ‘any risk of harm’ within the meaning of the HA s 2(1) (above, paragraph 48), including temporary harm and harm to mental health, they are both a ‘hazard’ for the purposes of section 2(1) of the HA 2004 and a ‘prescribed hazard’ within the meaning of section 10(1) LTA 1985, as amended. Any such ‘prescribed hazard’ is relevant to the court’s assessment of whether the property is ‘so far defective in one or more of those matters that it is not reasonably suitable for occupation in that condition’ and therefore unfit for human habitation under section 10(1).

[57] … the court’s power under section 10 does not depend upon a finding that there is a ‘category 1’ or ‘category 2’ hazard. Indeed, as Summers and Rendlesham make clear, a finding of unfitness can be made even if there is no risk of harm (i.e. a hazard), if by reason of one of the relevant matters (including ‘freedom from damp’) the dwelling is ‘not capable of occupation for a reasonable period … without undue inconvenience or discomfort’ to the occupants. That said, a local authority assessment of a category 1 or category 2 hazard would be strong evidence of unfitness.

Paragraphs [59-60] are also extremely important when it comes to the attribution of responsibility for the existence of any hazard.

[59] By s 9A(3) the covenant is also ‘not to be taken as imposing on the lessor any liability in respect of the dwelling being unfit for human habitation if the unfitness is wholly or mainly attributable to … the lessee’s own breach of covenant’.

[60] The s 9A(3) question concerns the attribution of responsibility for the premises being in an unfit state. Where the dwelling has become unfit for reasons ‘wholly or mainly’ attributable to a breach of the tenant’s own obligations – including any express duty and the implied duty to use the premises in a tenant-like manner – the landlord is not liable under the implied covenant. The threshold is a high one, however: tenant default that is a real but secondary cause of ‘unfitness’ does not meet it. So, for example, condensation mould wholly or mainly the result of the tenant’s own failure to ventilate or heat the dwelling will defeat the claim; but the same mould, if mainly attributable to a defect that is the landlord’s responsibility, such as inadequate insulation or the absence of effective ventilation, will not, even if the tenant’s use of the dwelling has played some part in it.

One final point, the expert opined that a decant from the Property is not required and indeed the Court did not award one. Yet, the Property was still found to be unfit for human habitation for a number of reasons. This lays to rest once and for all the argument that if the expert does not opine that a decant is required, the Property must be fit for human habitation.

Conclusion It is about time that we got an authority on s.9A LTA 1985. Parties have been battling over the precise definitions and evidential requirements in these cases for years. Defendants will not be happy with the conclusions reached in this judgment, but clarity will help keep costs down for everyone.

Paragraph 57 of the Judgment puts Defendants in a very difficult position. The point regarding a decant also strips Defendants of one of their main arguments.

This authority, in combination with Awaab’s law, should force Defendants to treat hazards more seriously and expeditiously.

Jonathan McDonnell

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• excess cold and excess heat

• falls associated with baths etc., on level surfaces, on stairs and between levels.

• structural collapse, and explosions

• fire, and electrical hazards.

• domestic and personal hygiene and food safety

•

This will come at a time when practitioners are still getting to grips with how best to apply the law in the real world.

We now have a case! I am very grateful to barrister Jonathan McDonnell of Park Square Barristers - Leeds, Teesside, Newcastle who appeared for the tenant and has written about the case here - https://thelegalposition.co.uk/2026/06/19/awaabs-law-injunctions/ It is unreported, but we still learn a lot from the case.

The tenant was pregnant and had a child. The child’s bedroom was seriously affected by a leak that was causing damp. The landlord did a mould wash but nothing else, so the underlying problem remained unresolved. Further investigations revealed that the leak was in fact affecting an electrical socket. The tenant’s solicitors applied for an injunction. This was opposed on two rather odd grounds.

Firstly, it was said that an injunction was not appropriate as there had not been any HHSRS assessment. This was rejected by the court. Counsel rightly referred the court to the Guidance to the Fitness for Human Habitation Act 2018 -

It is for the courts to decide whether the dwelling is fit for human habitation. A Housing Health and Safety Rating System (HHSRS) assessment is not necessary.

Secondly, it was argued that the tenant could sleep on the sofa! The logical consequence of this argument was of course that if she had to sleep on the sofa, it was because the bedroom was not safe!

The court found that the dangerous electrics amounted to an emergency hazard. The continuing damp and mould was a significant hazard.

The court ordered

1. That the tenant be decanted to suitable alternative accommodation

2. That work was to be completed within 3 weeks.

3. Costs

What is particularly helpful about this case is that it addresses a question that I have raised a few times. Why do we need ‘Awaab’s Law’ when these matters fell with in the s11 and/or s9A duties? There has always been the right to apply for an emergency inunction. In fact, it is all about timing. The Regulations under s10A prescribe strict deadlines for investigation, commencement of work and/or decant. Failure to comply with these deadlines means that there is a breach. There is no scope for arguments that ‘reasonable expedition’ is the test.

The case also provides clarity about what is an emergency and what is a significant hazard.

I will be posting further updates concerning the legal basis and procedure for applying for an injunction.

Talking about injunctions, I wrote last week about Practice Direction update 195 and the decision by some courts to insist that Housing Conditions Cases be issued via the Damages Claims Portal (DCP) - https://stevecornforth.substack.com/p/thursday-housing-update-15-practice?r=caxg7

I have since had conversations with solicitors and also people in the courts. I do think that there are major question marks about the wording the PD. However, it is clear that it is intention of the courts that these cases go through the portal. In other words, it is going to happen. This does mean that firms that do not already use the portal will need to familiarise themselves!

Thursday 16^th July 2026

At 12.00 – 13.30

HOW TO LITIGATE AFTER MAZUR and SLEEP AT NIGHT

This is an invitation to a free presentation to discuss where we are up to in relation to Mazur and to clear up some worries that are still causing sleepless nights…

This will include -

· Supervision

The Court of Appeal judgment emphasised the need for supervision – ‘ I have explained. It is not unlawful for an unauthorised person to act for and on behalf of an authorised individual so as to conduct litigation under their supervision, provided the authorised individual puts in place appropriate arrangements for the supervision of and delegation to the unauthorised person’

On 12^th June 2026 the SRA published updated Supervision Guidance -

SRA | Effective supervision | Solicitors Regulation Authority

This will be the main focus of the webinar

· Who supervises who? And for what?

· What happens if my supervision arrangements are not ‘appropriate’.

· Recording instructions

· Managing Simple matters

· Managing Complex matters

· Drafting an effective litigation policy

· Anything else that comes to light!

There will be time for questions and discussion of any particular issues of concern.

If you wish to attend, just let me know and provide an email address for the Zoom link. You can message at Steve Cornforth | LinkedIn or email steve@cornforth.me

This event Is free to all. When sending out the link I will invite attendees to make an entirely voluntary donation to the Liverpool Legal Walk to support Access to Justice.

www.stevecornforthlaw.com

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Over the years that I have worked with and trained lawyers in housing conditions cases, I have always emphasised that the pr

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ocess for issuing proceedings is different than for other cases. This is because, under the CPR they come under the heading of Landlord and Tenant cases –

56.1(1) In this Section of this Part ‘landlord and tenant claim’ means a claim under –

(a) the Landlord and Tenant Act 1927.

(b) the Leasehold Property (Repairs) Act 1938.

(c) the Landlord and Tenant Act 1954.

(d) the Landlord and Tenant Act 1985.

(e) the Landlord and Tenant Act 1987; or

(f) section 214 of the Housing Act 2004.

This brings these cases under s56.2 when it comes to issuing of proceedings.

56.2

(1) In the County Court—

(a) the claim may be made at any County Court hearing centre, unless paragraph (2) applies or an enactment provides otherwise.

(b) the claim will be issued by the hearing centre where the claim is made; and

(c) if the claim is not made at the County Court hearing centre which serves the address where the land is situated, the claim will be sent to the hearing centre serving that address.

The effect of all this is that you can issue in whatever court you want, but the case will ultimately be transferred to the court that serves the property address.

After the 27^th May 2026, this has all changed …. Or has it?

This is all about the Damages Claims Portal. According to the Department of Justice in 2025 –

The Damages Claims Portal (“DCP”) is an online portal for bringing damages claims (a compensation claim where judgment is to be determined) in the county court.

Housing claims normally involve an application for specific performance.

Yesterday, within the space of 10 minutes I had two enquiries from solicitors who had issued proceedings and had them returned. The court advised that it was now necessary to issue these claims via the DCP.

This is all about the Practice Direction 195 that came into force on 27^th May 2027.

Civil – Civil Procedure Rules – Justice UK

This extends the scope of the DCP to include some non-monetary claims –

The new category covers three types of remedy: injunctions, declarations, and rescission:

• a claim for an injunction (when a party seeks a court order requiring another party to do something or to stop doing something).

• a declaration (where the court is being asked to clarify the legal position between the parties, for example whether a contract is valid or to declare the meaning of a legal right or obligation).

• a rescission (where a party is seeking a specific court remedy, such as setting aside a contact).

Some courts have used this to refuse t issue housing claims under CPR 56.2.

This has slipped in under the radar!

A number of matters arise.

The obvious starting point - is it right?

The update refers to an injunction. It does not refer to a claim for specific performance. Although they are both equitable remedies that require action, they are not the same. Injunctions compel or restrain conduct. Specific Performance is used to enforce contractual obligations. I remember using Snell’s Equity many years ago. This defines specific performance –

Specific performance is an equitable remedy compelling a party to perform its contractual obligations.

This is different from an injunction. We have certainly been relaxed in our use of the words. Maybe this needs to change.

The update is very specific, naming three specific remedies. If it was intended to include Specific Performance it would say so.

The other question is this – has the Practice Direction Update removed CPR 56.2. It is still there as far as I can see. The CPR provides a clear procedure for issuing Landlord and Tenant Claims. This has not gone away.

What is clear is that firms should expect claims to be returned. It is for practitioners to respond. One way forward is to just get on with it and use the portal. From discussions that I have had, there no great enthusiasm. Poor service seems to be the common view.

The other option is to hold the line, refer to 56.2, the absence of a reference to Specific Performance in the update and insist that it is issued.

I suspect that Specific Performance might be added to any further update.

Watch this space, very closely.

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I want to use today’s update to discuss a useful appeal about a surprising and ultimately unsuccessful argument concerning enforcement.

I am grateful to Andrew Dow of Legal HD, Solicitors for bringing this to my attention.

Smith v Sanctuary Housing Association - judgment below

Enforcement is becoming a serious issue in housing conditions cases. As far back as I can remember, and that’s a long, long time (!), there were cases where repair work would not be completed even after settlement or even judgment. But it has certainly got worse. Some firms now have designated enforcement department.

The more cases we see, the more likely we are to see tactical arguments raised. Which is what happened here. For the purpose of this update, I will assume that readers are familiar with the rules on allocation of housing conditions cases. If not, the judge has helpfully set out those rules in the judgment.

The facts are straightforward.

The case started out as a familiar housing conditions claim. The case settled pre-issue. The agreement in relation to repairs was breached. Part 8 proceedings were issued. There was then a dispute over which work had or had not been done. This factual disagreement meant that the action was transferred to Part 7. Of course, the advantage of Part 8 is that there are no concerns about allocation. Cases are treated as allocated as allocated to the multi-track. The transfer to Part 7 opened the door to an argument over allocation.

The rather convoluted argument was that an enforcement action was no longer a housing conditions claim. That claim had settled. This was now a simple breach of contract claim arising out of the settlement agreement. This meant that CPR 26.9 was no longer engaged. The value of the claim for damages was less than £10k so it should be allocated as a small claim.

That sounds a bit farfetched. But the Deputy District Judge accepted this argument and allocated it to the small claims track.

It comes as no surprise that the decision was appealed. This came before HHJ Salmon in Worcester County Court.

He summarised the decision of the DDJ –

The Deputy District Judge’s conclusion was that the claimant was not seeking an order requiring the landlord to carry out repairs or other works to the premises. Rather, she treated the claim as one seeking compliance with contractual obligations contained in the compromise agreement, albeit obligations that consisted of carrying out specified repairs.

This was wrong –

10. In my judgment, DDJ Chappell erred in concluding that this claim did not fall within CPR 26.9(1)(b). My reasons may be stated shortly:

(1) On its ordinary and natural meaning, the rule encompasses the present claim.

(2) The claimant is a tenant bringing a claim against her landlord. That is common ground.

(3) She seeks an order requiring the landlord to carry out repairs or other works to the premises.

(4) More particularly, she seeks an order requiring the landlord to perform the repairs identified in the compromise agreement, which the landlord had agreed to undertake.

And

For those reasons, I agree with the appellant’s submissions that:

(1) This is properly seen as a claim falling within CPR 26.9(1)(b).

(2) The CPR cannot sensibly have been intended to exclude from CPR 26.9(1)(b) a claim by a tenant seeking to enforce a compromise agreement made in settlement of allegations of housing disrepair.

The claim was duty re-allocated to the Fast Track.

At one level this looks like a simple decision. Of course it was a fast-track case. It is almost an Orwellian 2 + 2 = 5! But, a Deputy District Judge bought the argument. Less robust solicitors might have accepted the allocation.

This is the main lesson from this case. Be confident in your understanding of the rules on allocation. If you are on the receiving end of a poor decision, do not be afraid to appeal.

This case is also an example of tactics used by landlords in these cases. In this matter, not only did Sanctuary breach the settlement agreement, but they also then tried to defeat any entitlement to costs into the bargain.

It is very useful to read about and share the experiences of practitioners in these cases. I hope that these updates can play some part in developing a reservoir of useful decisions.

Please keep them coming.

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Smith V Sanctuary Housing Assoc Worcester Cc Judgment 20260422 V Final (4)

208KB ∙ PDF file

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Pleased to report a strong result at trial for a client in a recent housing disrepair matter.

The Defendant landlord adopted a fairly predictable approach: denying that repairs remained
outstanding and then unsuccessfully attempting to have the matter allocated to the Small Claims Track.

Following allocation to the Fast Track, the Defendant made a series of “global offers”, seemingly designed to limit the Claimant’s costs recovery. The only offer made on a standard costs basis contained an unsatisfactory proposal on general damages.

Despite the Claimant making a reasonable settlement offer, the Defendant elected to take
the matter all the way to trial.

As is often the case, negotiations continued at the doors of Court. Two further global offers were made and rejected. Eventually, the Defendant offered just £100 less than the Claimant’s final position on generals, with costs to be assessed on the standard basis.

The Claimant accepted, leaving costs as the only issue for determination.

The Court ultimately awarded circa £22,000 in costs, representing 77% of the Claimant’s
bill as drafted.

The Defendant was entitled to its day in court. The resulting costs consequences demonstrate the price that can attach to that choice.

Hamzah Sharif Hashmi | LinkedIn

There are a few lessons to learn from this case –

1. When you have an opponent who raises the small claims argument, do not be intimidated. Provided your expert evidence supports fast track allocation pursuant to CPR 26.9, these arguments should be rejected. See last week’s update for another example of why these arguments are misconceived and likely to fail…

2. Do not be drawn into ‘global’ offers if your case has reasonable prospects. Assess quantum on the basis of your evidence. Decide on your parameters for settlement and stick to them.

3. If necessary, and unless there are problems with your case, do not be afraid to run the claim to trial,

4. Insist of recovery of realistic costs for the

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work that you have done, especially when the landlord’s tactics have caused more work.

I you have any similarly helpful results please let me know…

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Another important new decision on Small Claims Allocation

There has been anther successful appeal against allocation to the small claims track. This is the case of Bellion v Nottingham - Another Allocation Appeal success reinforces correct approach in housing conditions claims - 8PP Barristers & Associates Ltd. Gordon Exall appeared for the tenant and has written about the case here - A CLAIMANT’S SUCCESSFUL APPEAL IN A HOUSING DISREPAIR CLAIM: THE DISTRICT JUDGE WAS WRONG TO ALLOCATE THE MATTER TO THE SMALL CLAIMS TRACK… – Civil Litigation Brief ®

The court adopted what is hopefully, now the established two fold test –

(a) What is the normal track

(b) Is there a reason to depart from this track

Interestingly HHJ Sadiq applied the well known quote from Hughes LJ in Birmingham City Council v Lee which is something that I have been saying for years –

11. Turning then to the grounds of appeal, ground 1 is that the Judge failed to consider paragraph 7 of Birmingham City Council v Lee [2008] EWCA Civ 891, a Court of Appeal decision, where Hughes LJ said that the effect of CPR 26.61(b), now 26.91(b), is that it provides, where there is a claim for specific performance the disrepair case will be allocated to the fast track if either the cost of repairs or consequential damages claims exceeds £1,000. Here, in the District Judge’s judgment, there was no reference at all to paragraph 7 of Lee. The effect of CPR 26.91(b) is clear, where the tenant is seeking specific performance or either of their costs exceed £1,000 or any other claim for damages exceeds £1,000, the claim should be allocated to the fast track. Here the claimant was seeking specific performance and repair costs exceeded £1,000, i.e. £1,279, and the general damages claim exceeded £1,000, that is clear from the pleaded case. Therefore the normal track for this case was the fast track, not the small claims track. Therefore ground 1 succeeds. The Judge failed to consider paragraph 7 of Birmingham City Council v Lee and the effect of CPR 26.91(b) properly or at all. In other words he failed to apply the correct legal principles.

Well done to all involved. Hopefully we can now see and end to these misconceived arguments on allocation…

Awaab’s Law – how is it going? What next?

It is hard to believe that we are already almost 8 months on from the arrival of Awaab’s Law – Phase 1 which is limited to Emergency Hazards together with Damp and Mould. We are now just 4 months away from the launch of Phase 2. This will extend the regulations to cover more hazards including Excess Cold & Heat, Fire Hazards and Hygiene.

I think now is a good time to stop and look at what the impact has been.

I explained the regulations in an earlier post –

Awaab’s Law - some guidance - Steve Cornforth News

The requirements of Awaab’s Law are incorporated into the tenancy agreement by s10a Landlord and Tenant Act 2025. The principal effect of the regulations is to impose strict time limits on Social Landlords, who must investigate significant hazards within 10 days of becoming aware of them. If the investigation reveals a significant hazard, relevant safety work must be undertaken within 5 days. If this cannot be done in this time scale it must be started within 12 weeks and completed within a reasonable time. If this cannot be achieved the social landlord must secure suitable alternative accommodation.

The rules can be enforced by way of Specific Performance – Regulation 19.

So, what has been the difference bearing in mind that we already have implied covenants for repairs and fitness for human habitation. And there has always been the right to apply for an emergency injunction in urgent cases. How should advisers make the best use of Awaab’s Law. One big difference is the clarity over timings. As we know, ss11 and s9A require work to be done with reasonable expedition’. These regulations prescribe clear deadlines. So, if there is no investigation within 10 days, this is a breach. If work is not started within 12 weeks, this is a breach.

If there is a breach of these rules, what can we do? Issue proceedings and seek specific performance, including, if necessary, an injunction? The latter is the most obvious choice as the point of the rules is the immediacy of the risk of harm. I have applied for interim injunctions in the past. These were aways the worst cases – sewage entering the home, actual water penetration, absence of heating and/or hot water (Parker v Camden). Are we really going to get an emergency injunction to enforce a duty to investigate?

The tenants’ argument will be yes. The whole point is to ensure action is taken to avoid harm. The urgency is built into the rules themselves by the tight deadlines. This is a discretionary remedy so it will be for a judge to decide. Are damages an alternative remedy? In a case involving delayed investigations?

I have commented before that ‘completed within a reasonable time’ is a bit open ended. We can anticipate the arguments that will be made, including workforce, finances of public bodies, drawn out investigations. In fact, we could end up where we started – ‘reasonable expedition’. The rules include an escape for landlords if they have used all reasonable endeavours –

10A (5) - In any proceedings for a breach of the covenant that is implied by subsection (2), it is a defence for the lessor to prove that the lessor used all reasonable endeavours to avoid that breach.

I can foresee plenty of litigation ahead!

If the law is to have any effect, it must be used. Phase 1 requires an element of urgency, and this must form the basis of arguments for tenants. ‘Reasonable endeavours must be read in that context.

It is hard to assess the impact of Awaab’s Law to date as there are no decided cases. If any firms have applied for an injunction or otherwise issued proceedings, I would be grateful to hear from you so that we can build up a reservoir of knowledge.

I will be discussing this in more detail in a Webinar via Zoom on 25^th Jun 2025 email steve@cornforth.me for details –

It also produced the coding for my consultancy website, which was exactly what I wanted.

AI can be helpful. But never ever see it as the definitive answer to the question. In fact responses have a footnote - ChatGPT can make mistakes. Check important info.

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I am not now in legal practice but can certainly see how this can simplify the arrangement of facts, collation of documents and other repetitive, administrative tasks. Drafting bills could become a lot less time-consuming…

But beyond this are dangerous places! Some lawyers have got into a terrifying mess by over-reliance on AI. There have been many reported cases of court documents citing fictious case-law. ‘Hallucination’ is becoming a familiar word among lawyers. I wrote about this a year ago -

But the recent case of Cork v Smith has taken things to another level. The background is summarised here –

Law firm Pinsent Masons and three solicitors referred to SRA after ‘astonishing’ AI failures where court misled by hallucinations | Law Gazette

This involves one of the country’s leading solicitors firms. The case itself was an insolvency matter. Documents were filed by a junior lawyer. These included letters which caused the judge some concern, so questions were raised. The response clearly referred to a ‘hallucination.’ Not only had the original been drafted by AI, but so had the response to the judges question. Not surprisingly the firm has referred themselves to the SRA. This amounts to misleading the court –

Horrified lawyers warn of dangers of AI reliance in aftermath of Pinsent Masons case | Law Gazette

We have certainly not heard the last of this.

It can even give me answers when I don’t really understand the question.

These incidents keep occurring and there cannot be many lawyers who are unaware of the dangers. So why does it happen? Here some thoughts –

1. I know from my interactions with Chat GPT that it is eager to please. It is verging on the obsequious. So, it might well produce the answer that it thinks you want to hear. If it cannot find genuine case law, then why not make it up?

2. It will never refuse. It is never too busy.

3. It is genuinely smart. It comes up with answers in minutes, even seconds. It can even give me answers when I don’t really understand the question. That is a real danger.

4. It can come to the rescue when there is a tight deadline. Stressed lawyer realises that they need to file a document by 16.00. It is now 15.30. Chat GPT will knock something out by 15.45. Phew. Job done. But then the questions start to come…

I would encourage firms of all sizes and shapes to develop a clear AI policy. In fact, I expect that some Indemnity Insurers will soon insist on seeing this at renewal. BUT don’t get Chat GPT to write the policy!!!

It concerns getting settlement terms right in housing conditions case and in particular, the problems that can arise in ensuring that the repair work is done. This is at a time when more and more cases are proceeding to enforcement when there is a failure by the landlord to do the ‘agreed’ work.

We discussed some pointers that can help us manage possible difficulties.

Always avoid anything that introduces uncertainly into the agreement about what work will be carried out, when this will be carried and when will it be completed. For example, I have seen one case where this was included in an offer –

‘Our client will complete repairs within 56 days of commencement of work…’

The offer was reasonable on damage and costs, but meaningless in relation to the work. There is nothing to say when the work might commence!

Or this –

‘Our clients will carry out the works set out in the joint surveyors’ report within 90 days’.

This sounds good except that it was ‘joint report’ not an ‘agreed report.’ There was a significant difference between the two experts about what was needed. You can guess that there would soon be a dispute over what was or was not agreed!!

Whether these offers are made to deliberately muddy the waters, they should never be accepted. A settlement is a contract. Most law students are familiar with the case of Guthing v Lynn [1831] which concerned the sale of a horse. An extra £5 was payable if the house was ‘lucky’. This was not enforceable!! Contracts require certainty.

This is not limited to defendants’ I have seen claimant’s offers that refer to damages but are silent on any obligation to do the work. Negligence claims beckon… Never offer without due care and attention. A sloppy settlement can be a messy thing.

Then there are ‘escape clauses. Here is an extreme, fictitious, example –

Our client makes the following offer –

All works will be completed in accordance with report of Mr Joseph Bloggs dated 03/01/2025 within 90 days.

Our client will pay your client £5000 compensation.

Costs on the standard basis to be subject to detailed assessment if not agreed.

This offer is made in full and final settlement of all past, present and future claims relating to you clients’ tenancy of whatever kind.

The last sentence is designed to block all future claims arising out of the tenancy, there might well be arguments that such a wide exclusion would not be enforceable. But why have the sleepless nights. Just don’t go there. There might be more subtle variations. In doubt never agree anything without getting it signed off by an experienced colleague.

There will always be cases where you might need to accept a ‘dodgy’ offer. These will be those cases when you want to settle because the claim itself is very weak. Those which need to be ‘settled on the best terms. Litigation risks could well outweigh any technical legal arguments. If this situation arises, you must ensure that the clinet is fully aware of the risks and understands possible outcomes.

Again, you should always discuss a compromise with an experienced colleague…