Guidance

Guide for local authorities: Homes (Fitness for Human Habitation) Act 2018

Published 6 March 2019

Applies to England

1. Introduction

This document provides guidance and advice to local authorities on the Homes (Fitness for Human Habitation) Act 2018 (‘the Act’) and their role if they chose to support tenants to make use of the powers within the Act.^{[footnote 1]}

The Act came into force on 20 March 2019. The aim of the Act is to help drive up standards in rented homes in both the social and private sectors and provide an alternative means for tenants to seek redress from their landlord if their rented property presents a risk of harm to the health and safety of the occupiers. It does this by empowering tenants to hold their landlord, including registered providers such as housing associations, to account without having to rely on their local authority to do so.

This is a power for tenants and does not alter any existing local authority powers. However, local authorities may decide that they have a part to play in supporting tenants to seek redress under the Act, so may want to consider how the Act fits in with their existing private rented sector enforcement policy and how this information may inform their strategy.

The Act adds to the existing regulatory framework. Under the Act, sections are inserted into the Landlord and Tenant Act 1985 requiring all landlords (private and social) to ensure that their properties, including any common parts of the building, are fit for human habitation at the beginning of the tenancy and throughout. The Act does so by implying a covenant to this effect in the tenancy agreement.

In England, 4.5 million households (19%) rent privately. The social rented sector provides around 4 million others (17% of all households).^{[footnote 2]} The majority of these are safe and secure, warm and dry. However, it is still not acceptable that there is a minority of landlords who rent out places that are not fit for their tenants to live in.

The government supports those good landlords who provide decent and well-maintained homes. Landlords who do not maintain safe properties prevent an effective and competitive rental market where all landlords operate on an equal footing. There are no new obligations for landlords under this Act; the legislation requires landlords to ensure that they are meeting their existing responsibilities with regards to property safety.

The Act builds upon the government’s programme of work to drive up standards in the rented sector, including the new powers introduced by the Housing and Planning Act 2016. We expect that standards will increase as tenants will be empowered to take action against their landlord in cases where landlords fail to maintain their property.

2. Overview of the Act

The Act applies to the social and private rented sectors and, while it does not impose any new responsibilities on landlords, it does confirm that:

• landlords must ensure that their property, including any common parts of the building, is fit for human habitation at the beginning of the tenancy and throughout
• to achieve that, landlords will need to ensure that their property is free of hazards which are so serious that the dwelling is not reasonably suitable for occupation in that condition

Where a landlord fails to do so, the tenant has the right to take action in the courts for breach of contract on the grounds that the property is unfit for human habitation. The remedies available to the tenant are an order by the court requiring the landlord to take action to reduce or remove the hazard, and / or damages to compensate them for having to live in a property which was not fit for human habitation.

The Act will apply to:

• tenancies shorter than 7 years that are granted on or after 20 March 2019 (tenancies longer than 7 years that can be terminated by the landlord before the expiry of 7 years shall be treated as if the tenancy was for less than 7 years)
• new secure, assured and introductory tenancies (agreed on or after 20 March 2019)
• tenancies renewed for a fixed term (on or after 20 March 2019)
• assured shorthold and introductory tenancies that become periodic tenancies on or after 20 March 2019

For pre-existing periodic or secure tenancies, landlords will have 12 months after 20 March 2019 before the requirement comes into force.

Exceptions

The landlord will not be required to remedy unfitness when:

• the problem is caused by tenant behaviour which is in breach of the tenancy
• the problem is caused by unforeseen circumstances beyond the landlord’s control
• the problem is with tenants’ own possessions
• the landlord has not been able to get necessary consent despite making reasonable efforts to do so, e.g. planning permission, permission from freeholders etc
• the tenant is not a person e.g. local authorities, national parks, housing associations, educational institutions

The Act does not apply to licences to occupy. This is likely to exclude some temporary accommodation, lodgers and some property guardians, depending on whether they have a tenancy agreement or licence to occupy. Local authorities can still use their enforcement powers in these circumstances.

3. How do tenants make use of the powers within the Act?

Where a landlord fails to comply with the obligation to ensure that their property is fit for human habitation, the tenant will have the right to take court action for breach of contract on the grounds that the property is unfit for human habitation.

The two remedies available to the tenant are a court order requiring the landlord to take remedial action, and / or an award of damages to compensate the tenant for living in a property that was not fit for human habitation.

We have published separate guidance for tenants.

Vulnerable tenants

While we expect all tenants to be able to take advantage of the provisions of this Act, there are vulnerable tenants living in private rented sector properties that are in poor condition. Vulnerable tenants might require more assistance to help them if they are at risk from retaliatory eviction. Vulnerable tenants in social housing have greater security of tenure.

Existing protections against retaliatory eviction provided under the Deregulation Act 2015 are available to tenants if local authorities have taken certain actions under the Housing Act 2004, including issuing an improvement notice or a notice of emergency remedial action.

Therefore, there may be circumstances where local authorities consider it necessary to take enforcement action under the Housing Act 2004 even though tenants are also seeking redress under the Act. See further information on retaliatory eviction.

Many tenants might also be unaware of certain statutory obligations that the landlord of a private or social rented property needs to fulfil, such as providing annual gas safety checks, energy performance certificates, the How to rent guide and information on deposit protection.^{[footnote 3]}

If landlords do not meet these obligations, tenants may have further protections against eviction, so local authorities should consider carefully how they may be able to support tenants who are fearful of retaliatory eviction. 

4. How will this affect local authorities as enforcers?

As the Act allows the tenant to seek remedy and redress for any defect in the property, the role of the local authority will be one of advice and guidance rather than enforcement. However, local authorities may choose to offer more practical assistance to tenants seeking redress under the Act, especially vulnerable tenants.

Many tenants will use the provisions of the Act and will not contact their local authority, but some tenants might approach their local authority for advice, guidance or even assistance with the Act.

As tenants increasingly invoke their powers under the Act, local authorities will become aware of more properties that do not meet the required standards and may choose to make use of their enforcement tools to bring the property up to standard.

Advice and guidance

Local authorities might consider producing advice and guidance on the Act for landlords and tenants if they consider this a useful addition to their work in the private rented sector.

Retaliatory eviction

As discussed above, local authorities can also issue guidance and support around the issue of retaliatory eviction. Local authorities should make it clear to tenants that there are protections from retaliatory eviction in the Deregulation Act 2015 and that the local authority will work with the tenant to ensure that they benefit from these protections.

Social tenants have greater security of tenure than tenants in the private sector as their landlord cannot issue them with a section 21 ‘no fault’ eviction notice.

In cases where a local authority has served an improvement notice or a notice of emergency remedial action, a landlord cannot evict a tenant for 6 months using a ‘no fault’ section 21 eviction notice.

Local authorities should consider their enforcement policies and procedures carefully and use these powers to protect tenants seeking redress through the Act from retaliatory eviction.

Housing Health and Safety Rating System

For the purposes of the Act the courts will decide whether a property is fit for human habitation by considering the matters set out in section 10 of the Landlord and Tenant Act 1985, which will include any of the 29 hazards prescribed in the Housing Health and Safety (England) Regulations 2005.

Due to their experience using the Housing Health and Safety Rating System (HHSRS) and their strong powers under the Housing Act 2004, local authorities are in a good position to help identify potential unfit conditions and deliver clear guidance to landlords on how to remedy the hazard.

An HHSRS inspection is not required for the purposes of the Act, and a report that does not specify a category 1 or 2 hazard does not automatically mean that the property is fit for human habitation.

The local authority can take enforcement action alongside acting in a support role if a tenant informs them that they are seeking redress through the Act. A tenant taking action against their landlord does not preclude the local authority from taking enforcement action where the most serious hazards are present. An HHSRS inspection may be helpful and the report may identify further hazards and also provide details of how these hazards can be remedied.

Many tenants who seek redress through the Act will not contact their local authority. However, some tenants, including vulnerable tenants, may choose to do so.

5. What might local authorities start doing straight away?

Local authorities are encouraged to review their existing enforcement policies and to look at ways the Act can complement the approach currently taken and how best to make use of the tools available to them.

Local authorities will have an existing approach for encouraging engagement from tenants to report poor and sub-standard accommodation.

As the Act requires no action on the part of the local authority, the local authority may wish to proactively develop a promotional campaign to inform tenants of the circumstances under which they can take action against their landlord. Promotional material can make it clear to tenants what is their responsibility and what is the responsibility of the landlord with regard to maintaining a property that is fit for habitation.

The local authority may decide to have specific support available to assist tenants who wish to make use of the Act where their landlord has neglected their responsibilities, such as arranging for an HHSRS inspection and report where one has not been done.

Promotional activity could also encourage engagement with landlords about their role and responsibilities in maintaining a good standard of accommodation. Through engaging both tenants and landlords, the local authority can help to drive up standards in rented accommodation.

As the Act applies to both private and social rented accommodation, the local authority may wish to engage with social housing providers and provide advice and guidance on how to ensure that their housing stock is fit for human habitation and, where appropriate, work with them to raise standards. It is also good practice for local authorities to develop protocols for enforcement with local registered providers of social housing.

The local authority may wish to look at ways that they can highlight the improvements to a property following successful action by a tenant, subject to the tenant’s agreement. By doing so, the local authority can encourage landlords to ensure that their properties are fit for human habitation and encourage other tenants to take action where this is not the case.

The Act will further enable local authorities to make use of their existing tools to tackle poor quality accommodation by making them aware of poor management and poor quality properties. Landlords may or may not be aware that a property is in poor condition and not fit for human habitation.

The local authority can take the opportunity to remind the landlord of their responsibility to conduct checks of the property at an appropriate frequency. Where the landlord fails to engage with the tenant or the local authority, further action can be taken.

The local authority will be in a position to make use of the substantial enforcement tools available. As such, we recommend that local authorities review their enforcement policies and keep them up to date. This includes familiarisation with the criteria and process for adding a landlord to the database of rogue landlords and property agents to deter repeat offences.

The local authority should hold themselves to the same standards which they are enforcing for private landlords in regard to their own stock. This may mean that the implementation of this Act would require a review of the local authority’s housing stock to ensure that all properties are fit for human habitation.

6. Local authorities’ existing powers and the Act

As well as helping to protect tenants against retaliatory eviction, as discussed above, local authorities have a range of enforcement powers which allow them to tackle poor and illegal practices by landlords and letting agents.

If a tenant seeks redress from a landlord under the Act this does not preclude local authorities from using their existing enforcement powers.

Specific guidance on the use of existing powers has already been published and can be found at:

• Banning orders
• Rogue landlord database
• Financial penalties as an alternative to prosecution
• Rent repayment orders
• Housing Health and Safety Rating System (HHSRS)
• Decent Homes Standard

1. If a local authority officer is reading this guidance in the local authority’s capacity as a landlord, they should refer to the guide for landlords. ↩

2. English Housing Survey 2017 to 2018: headline report ↩

3. Landlords are required to provide an Energy Performance Certificate and in date Gas Safety Certificate prior to the tenancy commencing. A copy of the annual Gas Safety check is also required to be provided to the tenant within 28 days of the check being completed. ↩