A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
On 18 May 2020, the Ministry of Housing Communities and Local Government (MHCLG) wrote to all social housing residents in England (residents). It sets out advice and support for residents badged as “keeping you safe” and “supporting you”.
Social housing landlords need to understand what the Government is pledging to residents on their behalf.
Landlords can expect questions and even challenges from residents about these commitments the Government has made directly to them, particularly as we start to move beyond the initial lockdown period.
In this briefing we focus on the core aspects of the letter with direct implications to landlords and set them alongside the current legal position:
- Maintenance and repairs
- Gas safety checks
- Building safety
- Moving home.
Maintenance and repairs
The MHCLG’s guidance advises that landlords should be able to carry out routine repairs (as well as essential repairs) as the lockdown restrictions are eased. As such, it encourages residents to contact their landlords regarding both essential and routine repairs. You can read more information about this in our ebriefing on routine repairs.
Whilst the letter acknowledges there will be a backlog and that landlords will need to prioritise repairs, the encouragement to report non-urgent repairs will inevitably add to the backlog and put additional pressure on hard-pressed landlords and their contractors. Landlords should certainly prepare for more complaints and referrals to solicitors looking to bring claims against landlords for tenant compensation. Landlords should also expect additional issues and repairs being reported that will now fall within the Homes (Fitness for Human Habitation) Act 2018, which extends implied repairing obligations under almost every tenancy agreement.
Landlords will need to carry out a risk assessment to determine how they can safely carry out repairs. They should then put in place suitable and sufficient measures to mitigate the risks identified. In completing this assessment, landlords should consider the Government’s guidance regarding working safely in people’s homes.
The letter says that no repairs should be carried out in any household that is isolating or where an individual is being shielded, unless it is to remedy a direct risk (in which case, prior arrangements should be made to avoid direct contact) or potentially to carry out “compliance checks” (see below). Where repairs are carried out, measures will be needed to limit the contact between residents and those entering their property. Strict cleaning and hygiene rules should also be observed.
In order to ensure effective mitigation of the risks of Covid-19, landlords should contact residents in advance of the scheduled appointment time to discuss and agree the measures that will be put in place.
The MHCLG’s letter also confirms that the Government is expecting landlords to resume external planned maintenance. This is in addition to the urgent safety works such as the replacement of dangerous cladding that many landlords have continued to undertake despite the lockdown.
Whilst the risks of exposure to Covid-19 are likely to be less for this type of work, it will still be necessary for landlords to carry out a Covid-19 risk assessment and put suitable and sufficient health and safety measures in place. In practice, the need to carry out sufficient risk assessments is likely to delay the start of most maintenance work other than emergency repairs and “compliance” work. Inevitably there will be a period whilst these are prepared and “signed off” in relation to a wider range of activity than just emergency and compliance work. Landlords and their contractors will need to approach health and safety requirements afresh.
One obvious issue that will need addressing is the provision of handwashing facilities and/or hand sanitiser for those employees undertaking the work, as required by The Construction (Design & Management) CDM Regulations 2015 (CDM Regulations 2015). For responsive repairs, this has been typically either in residents’ homes or at a depot. The increased importance of handwashing due to Covid-19 means that landlords and their contractors will need to consider whether it is still appropriate to rely on residents’ facilities and may need to check in advance with residents whether this is possible.
Gas-safety checks are critical, particularly during this crisis where many people are spending the majority of their time at home. The Health and Safety Executive (HSE) and the MHCLG have emphasised throughout the pandemic that landlords should take all reasonable steps to comply with their gas-safety obligations.
Early on in the pandemic, the guidance from the HSE stated that the annual checks for shielded, vulnerable and symptomatic tenants could be deferred. The guidance now, however, appears to be shifting; in most circumstances (such as for vulnerable tenants or those that are social distancing) pressure has now been placed on landlords to complete annual gas-safety checks in accordance with the standard procedures.
If a tenant is self-isolating, they are obliged to inform their landlord so that the gas-safety check can be rescheduled to take place after their isolation has ended. If a tenant is shielding, landlords must balance the risk presented (taking into account factors such as the age and type of appliance, its previous maintenance history and the date of the last gas check). In some circumstances, it may be determined that the gas-safety check should go ahead, in which case, prior arrangements should be made to avoid any face-to-face contact.
The MHCLG reiterates that making sure buildings are safe for residents is a top priority. Importantly, where it is safe to do so, any remediation or safety improvement work must go ahead. The letter refers to the Government’s previous guidance on this subject.
Where construction work is being carried out, it is important to complete a Covid-19 Risk Assessment. Following this assessment, measures should be put in place to ensure the site can operate safely, and the risk of exposure to Covid-19 is controlled.
As the pandemic progresses, landlords should also continue to review the other safety-related risk assessments for their properties. The occupancy of buildings is likely to be much higher, and as such, the measures in place may have to be enhanced. Similarly, landlords should review the safety measures that have been previously put in place to ensure these are both effective and safe. For example, landlords will need to check adequate staffing of waking watches and that during the watch, individuals can maintain social distancing.
The letter is clear that residents who wish to move home can now proceed. As landlords begin to handle tenants moving in and out of properties, they will need to ensure that they have fully assessed the risks of Covid-19. We anticipate that this assessment will need to consider how exposure to Covid-19 can be prevented and/or controlled during property inspections, the collection of keys, viewings, tenancy sign-ups and the preparation of voids for re-letting. Ideally, landlords should consider how these activities could be adapted to minimise social interaction. For example, it may be that keys are left in a secure location for tenants to pick up, rather than an employee handing them over directly.
If you need any support on any of the issues raised by the letter or this briefing, please contact:
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