Responding to the Regulator in respect of damp and mould – Five key actions for legal compliance

In the past fortnight I have been contacted by numerous landlords asking what they need to do in order to ensure they are able to respond adequately to the Regulator of Social Housing’s letters of the 22 November 2022 in respect of damp and mould in tenants’ homes, as well as how they can achieve legal compliance going forward.

The letter from the Regulator followed Michael Gove’s letters to all local authority chief executives and council leaders, and to all providers of social housing on 19 November. The letter seeks assurance from the sector following the tragic case of Awaab Ishak, who died of a respiratory condition caused by mould in his home. For local authorities he has directed them under Section 3(3) of the Housing Act 2004 in that carrying out their duties to review housing conditions in the area, in respect of private rented properties, they must:

1. Have particular regard to high scoring damp and mould hazards;
2. Supply the DLUHC with an assessment of damp and mould in their area together with action that may need to be taken, and;
3. Provide data covering the last three 12 monthly reporting periods, including how many times enforcement action has been taken/prosecutions successfully pursued.

For all providers of social housing, he signaled the information that was going to be required by the Regulator as well as reminding landlords that they should self-refer to the Regulator should they become aware through those assessments, or by other means, that they may be in breach of the relevant regulatory standards.

The Regulator wrote to CEOs of large RPs on 22 November asking for the following information:

1. Their approach to assessing the extent of damp and mould issues affecting their properties, including how they assess the prevalence of category one and two damp and mould hazards;
2. In the context of the above approach, the most recent assessment of the extent of damp and mould hazards in their homes, including the prevalence of category one and two damp and mould hazards;
3. The action that is being taken to remedy any issues and hazards, and ensure that their homes meet the Decent Homes Standard; and
4. How they ensure that individual damp and mould cases are identified and dealt with promptly and effectively when raised by tenants and residents.

The Regulator’s letter to small RPs reminded them that damp and mould are potential hazards under the HHSRS and that failure to address them could lead to failure of the Decent Homes Standard and the Home Standard. Although not required to formally report, small RPs need to have a comprehensive understanding of potential damp and mould issues and be taking action to remedy them.

Responses from large RPs have to be supported with recent data and if data is not available, this has to be noted. The deadline for these submissions is 19 December, a tight timescale for some with huge quantities of stock to assess but this urgency underlines the seriousness of the position.

So, what should RPs be doing to be able to give assurance to the Regulator that action is being taken and then to ensure future compliance?

I set out my five key actions below:

1. Urgently review records to identify where there are reports of damp and mould and ascertain what action is being taken.
2. Seek urgent access to all properties where there are reports of damp and mould that have not been inspected in order to ascertain whether there is a category one or two hazard present and what works are required. If a tenant is not allowing access or (if they have a solicitor) their solicitors are refusing access, then landlords may need to seek an injunction order to compel access. I am aware that this is a step landlords will not wish to take unless absolutely necessary but it is clear that doing nothing is not an option and this may be the only way the landlord can ensure compliance.
3. Prepare a schedule of works and take steps to remedy the damp and mould without delay. The schedule should be provided to the tenant (or solicitor if applicable) with a timescale for works. Again, if there are issues regarding access an injunction may be required.
4. Use the Housing Ombudsman report ‘Spotlight On Damp and Mould’ as a checklist for good practice. Were the recommendations implemented? Is there still work to be done?
5. What can be done internally to improve performance? Are policies and procedures fit for purpose and, preferably, co-designed with residents? Are contractors performing well? Is there a need to refresh training to ensure that the response to damp and mould is robust in all parts of the organisation?

Although time is short to reply and there is much to be done, it is imperative that the actions are taken as instructed by the Regulator by 19 December. Should you become aware through these assessments, or by other means, that you may be in breach of the regulatory standards then there may be a need to self-refer. Of course, there is an ongoing need for compliance beyond the 19 December and the actions outlined above can form a useful template for ensuring a robust and responsive approach to reports of damp and mould into the new year and beyond.