Housing Disrepair: The rise of private prosecutions against Landlords for damp and mould under the Environmental Protection Act 1990

There is an increasing trend of tenants pursing private prosecutions against their landlords for nuisance, relating to alleged damp and mould, brought in respect of breaches of the Environmental Protection Act 1990.

The recent appeal heard by the High Court in the case of Damian Ferko v Ealing Magistrates Court, Kapiesa Ltd T/A Xara Estates [2024] (& others) exemplifies and provides clarity on the pursuit of such an action.

It is uncontroversial that no tenant deserves to live in a property which is unfit for human habitation. Indeed the Regulator of Social Housing published a report on 2 February 2023 indicating that between 1-2% of social homes (40,000 to 80,000) are estimated to have serious damp and mould problems, and a further 3-4% (120,000 to 160,000) to have notable damp and mould.

However, it seems likely that an increase in claims and private prosecutions are, at least in part, financially driven by claimant firms seeking to broaden and diversify their revenue streams. There is therefore a strong possibility of a marked increase in these prosecutions in the near future.

Defendants and their insurers therefore need to be aware of the demanding timeframes connected with such actions, the potentially costly punitive implications, and the likely consequential impact upon any civil claim for housing disrepair which may follow.

A Growing Claims Market

Following the expansion of fixed recoverable costs (“FRC”) to encompass qualifying public liability and employers’ liability claims in July 2013, claimant solicitors have sought alternative revenue streams to address this loss of income.

This loss of income has arguably been further impacted with the expansion of FRC, in October 2023, to most civil litigation claims valued up to £100,000.

The above changes in the costs regime have come as something of a perfect storm as personal injury claims brought in England and Wales are also falling. According to statistics released by the Ministry of Justice, in the period between October and December 2023, the number of personal injury claims fell by 25% to record its lowest level at 61,000 since 2009.

However, one type of civil claim which does not yet fall within the fixed costs regime are claims for housing disrepair; the majority of which are brought against Registered Providers (“RPs”) of social housing.

Perhaps unsurprisingly therefore the number of housing disrepair claims being brought in England and Wales has increased dramatically in the past 4 years and continue at pace. According to statistics released by Inside Housing in September 2023, over the last 4 years there has been a staggering 132% increase in housing disrepair claims against local authorities.

Whilst this is in part because of increased public and media scrutiny, such as that following the inquest into the tragic death of Awaab Ishak, and the changing legal landscape (i.e. such as the introduction of the Homes (Fitness for Human Habitation) Act 2018), a significant driver is claimant firms actively seeking to pursue these claims, as they offer a lucrative revenue steam.

The recent High Court case of Damian Ferko v Ealing Magistrates Court, Kapiesa Ltd T/A Xara Estates (& others) demonstrates a growing trend of claimant firms, effectively diversifying their practices, by pursuing claims for statutory nuisance connected to housing disrepair brought pursuant to s.82 Environmental Protection Act 1990 (“EPA 1990”).

These prosecutions benefit (when successful) result in a quick return on costs compared to housing disrepair claims, which, if defended, may take up to 12 months to proceed to trial, if not longer.

What is a “Statutory Nuisance”?

Pursuant to s.82 EPA 1990, a tenant can provide their landlord (or any other “Responsible Person” such as a managing agent) with notice specifying a complaint of statutory nuisance. Their landlord then has 21 days within which to abate the nuisance. Should the landlord fail to do so, the tenant can apply to the Magistrates Court to request that a summons be issued to the landlord to attend court.

If the court is satisfied that a nuisance exists or that one is likely to re-occur, it can make an order requiring the landlord to abate the nuisance within a specified time, make an award for damages and costs, impose a fine, or prohibit the use of the premises until such time as the nuisance is abated.

The term “statutory nuisance” is helpfully defined in s.79 EPA 1990 as being “any premises in such a state as to be prejudicial to health or a nuisance”. The term “Prejudicial to health” is defined as “injurious, or likely to cause injury, to health”. A “nuisance” is something which interferes with a homeowners use or enjoyment of their home.

These claims can be distinguished from housing disrepair claims as they are criminal cases rather than civil cases. A breach of the EPA 1990 is a criminal offence, with commensurate punishment. A failure to comply with a subsequent order made by the court will also be considered contempt of court. It is noteworthy that the evidential hurdle in such claims differs from that of a civil action. These prosecutions are subject to the criminal burden of proof i.e. beyond all reasonable doubt.

Is this a foundation for a personal injury claim?

It is important that landlords’ public liability insurers are placed on notice of any housing disrepair or EPA claims as these could be the foundation for a future personal injury claim such as that for damages for exacerbation of respiratory conditions, etc.

Damian Ferko v Ealing Magistrates Court, Kapiesa Ltd T/A Xara Estates (& others) [2024] EWHC 2592 (Admin), 2024 WL 04497280:

In the underlying action Mr Ferko issued a summons against (i) his landlords (with whom he had entered into an assured shorthold tenancy), (ii) the managing agent of the property and (iii) the freeholders of property, pursuant to section 82 of the EPA, in connection with damp and mould at the property.

The defendants pleaded not guilty and the matter to proceed to trial. As this was a criminal case, the claimant had to establish to the criminal standard of proof that there was in existence a statutory nuisance which the defendants caused.

At trial at the Magistrates’ court Mr Ferko relied upon the expert evidence of Mr Lawrence (Environmental Control Officer). He concluded that the property was unfit for human habitation due, in part, to significant damp and mould growth.

Mr Lawrence said at 7.1 of his report:

“There is a well documented association between the dampness and mould growth and respiratory ill-health and therefore I considered this dwelling to be prejudicial to health. If a dwelling is not free from dampness prejudicial to the health of the occupants then it may also be considered unfit for human habitation.”

He went on to say that he was satisfied that the condition of the dwelling was prejudicial to health and that a Statutory Nuisance, as defined by s.79 EPA 1990, was in existence.

The second respondent (the managing agent) instructed its own expert, Mr Simon Hands (MRICS). Mr Hands attended the property on 30 June 2022 and prepared an agreed schedule with Mr Lawrence. However, Mr Hands gave no evidence at trial because at the close of the Appellant’s case the respondents made a submission that there was “no case to answer”.

On considering the submission of no case to answer, the Magistrates concluded inter alia that as there was no structural disrepair, there was no Statutory Nuisance.

The appeal

Mr Ferko appealed the matter to the High Court. He contended that the expert evidence had not been properly considered by the magistrates. Amongst the points which were considered by the High Court were:

1. Whether the “but for” test applied i.e. that a Statutory Nuisance would not arise but for the actions or inaction of the defendant: The Court concluded that this was the incorrect test. The Court concluded that whilst causation is a requirement, a defendant may be liable for a Statutory Nuisance even if they are not the sole cause of the nuisance, “as long as they have made a significant or material contribution to it”.

The Court said that “the mere fact that a tenant may have contributed to a statutory nuisance does not exonerate others who have also caused the nuisance. The tenant’s conduct is only relevant insofar as it casts doubt upon the culpability of others or suggests that the tenant was the sole source of the nuisance.”

2. Whether the magistrates were entitled to conclude, based on the evidence that they had read and heard, that the causal link between the mould and condensation and the state of the property had not been established: The High Court concluded that they were. Mr Lawrence attributed the issues with the extractor fan, loft insulation, and windows to the condensation and mould growth. The Court said that there “was no foundation for rejecting that evidence, which was uncontested, at the close of the prosecution case”.
3. Whether there needed to be structural disrepair to establish a Statutory Nuisance for the purposes of the EPA 1990: The Court concluded that this was not required. The test for establishing whether there was a Statutory Nuisance was not dependent on whether there was structural disrepair (as is the case with a housing disrepair claim in the civil courts pursuant to the provisions of the Landlord and Tenant Act 1985). The definition of a “Statutory Nuisance” within s.79 EPA 1982 is broad and encompasses a wide range of issues which include, but are not limited to, structural disrepair. The predicate question is therefore not whether the issue is structural disrepair, but rather, whether it is “prejudicial to health or a nuisance”.
4. Whether it was correct in law for the magistrates not to consider or address the fact that the property was unfit for human habitation in determining whether the respondents were responsible for the Statutory Nuisance at the property: It was an implied statutory condition that the property be fit for human habitation when it was let and for the duration of the lease. The High Court found that the Claimant had dealt with this clearly in the prosecution case. Mr Lawrence’s opinion was that the property was unfit for human habitation, contrary to s.9A Landlord and Tenant Act 1985. The High Court concluded that “a reasonable tribunal properly directing itself on the law could have concluded on the prosecution evidence that the defendants had failed to meet this standard of fitness for human habitation”.
5. Whether it was necessary for the Appellant to provide notice of particular defects at the premises prior to providing a notice pursuant to s.82(6) EPA 1990 for the Respondents to be held responsible for the Statutory Nuisance at the property: It was concluded that this had already been dealt with as part of the procedure in place for providing a notice setting out the nature of their complaint. This notice was not dealt with and a court summons was issued as a result. The High Court cited Pearshouse v Birmingham City Council [1999] Env LR 536, where Lord Bingham said that s.82(6) EPA 1990 does not require, even in the case of a statutory nuisance alleged to fall within s.79(1)(a), “that the aggrieved person should serve an itemised schedule or a specification or a specification of works or any diagnosis of the cause of any defect complained of”.

Consequently, the appeal was allowed, the Magistrates’ decision set aside, and the case listed for a new trial.

What does this mean for Defendants and their insurers?

It is important that prospective defendants are aware of the severity of such claims. A notification letter placing the registered provider on notice of a Statutory Nuisance should not be treated in the same way as a Pre-action Protocol Letter of Claim. There is a tight timeframe for compliance and a failure to abate a Statutory Nuisance will result in court proceedings for what is a criminal offence.

Further, it is important to note that a summons under the s.82 of the EPA 1990 is not limited to landlords alone. As this recent case demonstrates, managing agents, freeholders and other leaseholders could potentially be drawn into a prosecution if deemed a “responsible person”.

These are potentially costly actions both with regards to any punitive fines as well as connected prosecution and defence costs.

There has been increasing media attention surrounding poor quality social housing and defendants must therefore also consider the potential harmful reputational implications of a successful criminal prosecution.

Whilst the costs of and associated with such prosecutions may not be covered by insurance, subsequent civil actions for housing disrepair (including any associated injury) may be. Consequently, Public Liability insurers, amongst others, may wish to proactively engage and/or monitor such actions in order to suitably respond to any civil claim that may present.

Further, policyholders are best suited in notifying their insurers at an early stage, should such an action present, in order to avoid inadvertently breaching the conditions of their policies (such as late notification).