Legal aid cuts have left residents no way to challenge sub-standard housing
Among the many heartbreaking details of the Grenfell Tower fire is the fact that the Grenfell Action Group raised concerns about a fire risk in 2013 and earlier this year, and that residents tried to find legal advice but no legal aid was available.
Cuts to legal aid in the 2012 Legal Aid, Sentencing and Punishment of Offenders Act has restricted housing legal aid since April 2013 to legal actions where the aim is “removal or reduction of a serious risk of harm to the health or safety of the individual or a relevant member of the individual’s family”.
It might be thought that a council’s responsibility for fire safety would fall directly within this aim. The problem is that this legal claim only arises where the rented property is in “disrepair”: where the landlord allows the structure or exterior of the property, or the gas, electricity or water systems, to deteriorate. Until the inquiry and inquests, we won’t know what caused the fire. But decisions to install unsafe materials such as cladding, or not to install sprinklers, would not fall within the meaning of “disrepair”.
Before the act, the scope of legal aid was much wider. However, even with legal aid provision broad enough to fund a careful consideration of legal remedies, it is possible that, because the law governing housing standards is so ineffective and insufficient, housing advisers would have advised that there was no effective challenge.
A defect to the property that causes personal injury, including death, can be compensated, but only after the personal injury has occurred. It is almost impossible to litigate a risk of personal injury.
A tenant can prosecute a landlord in the criminal courts where the property might be prejudicial to health, but legal aid is not available, expensive expert evidence is needed and a risk of accidental physical injury does not fall within the test. If there was very strong evidence about the fire risk, a case might be arguable under the Human Rights Act, arguing that the state of the building endangered the residents and thus engaged their right to life.
There is a plethora of regulations relating to housing standards, mainly enforced through the Housing Act 2004. Environmental health officers inspect buildings for health hazards, including fire risk. However, it is the local authority that takes enforcement action. And the local authority cannot enforce against itself. The powers are generally used against private landlords. The most the residents could have achieved would have been to force the council to accept that a health hazard existed, and to threaten judicial review proceedings if the council then refused to implement the recommendations.
Any of these legal avenues would have been test cases, extending the current limitations of the law, and would potentially have taken several years. The legal arguments may, or may not, have succeeded. Residents at risk in their homes want straightforward, enforceable legal remedies to keep them safe. They should not have to rely on lawyers discussing innovative test case ideas.
Any public inquiry should include legislation to improve and upgrade housing standards, and making those standards enforceable by the people who live in homes that might be hazardous. A comprehensive overhaul of the whole of the law on housing standards is needed. Part of that might be requiring all properties rented out to be fit for human habitation, and cheap, quick and effective legal remedies if they are not.
But right now, the homeless residents of Grenfell Tower need accommodation. As Kensington and Chelsea council grapples with the government’s promise that all residents who have lost their homes will be rehoused within three weeks, it is worth remembering that all offers of accommodation made to homeless families must be “suitable”. That means suitable for the individuals involved, taking into account cost, location, needs to be near schools, hospital, workplace, support networks and anything else relevant.
Recently, London councils have offered private tenancies in other parts of the country. For Grenfell Tower residents, suitable accommodation must be near their friends, family and employment, and at similar rent and security to the tenancies that they have lost.
One complication is not all residents were council tenants. Some might have bought their flats under right to buy, others might be renting flats owned by private landlords. Those residents, and their legal advisers, will no doubt argue that in these exceptional circumstances, it is appropriate for them, too, to be offered long-term council secure tenancies.
Liz Davies is a housing law barrister and co-author of Housing Allocation and Homelessness: Law and Practice.
Shelter helpline with advice for residents and those affected by the Grenfell Tower fire.
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