What Is the Pre-Action Housing Disrepair Protocol?

 

 

If you receive a letter of claim under the Pre-Action Housing Disrepair Protocol from one of your tenants you need to take action within a certain timeframe, or you could be taken to court.

 

This article explains what the Pre-Action Housing Disrepair Protocol is and how you should approach the process.

 

What Is the Pre-Action Protocol?

 

The Pre-Action Housing Disrepair Protocol is a type of court action used by tenants whose landlord has failed to address poor housing conditions when they are brought to their attention by tenants. 

 

It is sometimes known as the Pre-Action Protocol for Housing Disrepair or the Pre-Action Protocol for Housing Condition Claims.

 

Under the Disrepair Protocol, a court sets out a series of steps that both parties need to take in order to address habitability issues on a residential property.

 

The aim of the Pre-Action Protocol is to encourage early resolution and avoid unnecessary litigation. However, if either side fails to engage in the process correctly or can’t reach an agreement, then it may still proceed to a court case.

What are the Pre-Action Protocol requirements? 

 

Where a tenant believes the landlord has failed in their obligations, they may start the Pre-Action Protocol process.

 

To do this, the following must be true:

 

• The tenant has informed the landlord of the poor conditions or the need for repairs

• The poor conditions or need for repairs are the landlord’s responsibility under the tenancy agreement 

• The landlord knows about the poor conditions

• The landlord has had reasonable time to have the work done

• The matters causing the poor conditions remain unresolved
  
  

Who is covered by the Housing Disrepair Protocol?

 

Most tenants living in rented residential properties in England can use the Pre-Action Housing Disrepair Protocol. It applies to civil claims against social landlords and private landlords alike.

 

This includes:

 

• Private renters

• Housing association tenants

• Council tenants

• Some lodgers or those living in temporary or supported accommodation

• Leaseholders where the landlord is responsible for repairs

• Family members of tenants who are part of the household and directly affected by the disrepair 

 

The Protocol only applies in England. Housing disrepair claims in Wales follow a different legal framework under the Renting Homes (Wales) Act 2016.

 

In all cases, the disrepair must relate to conditions that the landlord is responsible for under the tenancy agreement or relevant legislation, such as the Landlord and Tenant Act 1985 or the Homes (Fitness for Human Habitation) Act 2018.

What disrepair issues are covered?

 

Landlords are usually responsible for a property’s structure or essential services.

 

This can include damage, wear and tear, or poor maintenance related to:

 

• Damp and mould

• Faulty electrics, boilers or heating systems

• Broken windows, doors or locks

• Leaks from roofs, pipes or guttering

• Unsafe flooring or stairs

• Defective plumbing

 

If one of these problems makes the home unsafe, unhealthy or unfit to live in, it’s likely to fall under disrepair.

What to Do If You Are Issued with a Letter of Claim

 

Receiving a letter of claim from one of your tenants can be frustrating, especially if you feel that it’s unjustified. Here are some things to consider if it does happen.

Don’t react emotionally

 

Stay calm and professional. Getting angry will likely only make the situation worse. Also, don’t panic! If you are confident that your tenant’s claim is incorrect, then the expert should recognise this and you’ll avoid an expensive court case.

Get a solicitor

 

You may wish to get legal advice. You can navigate the Pre-Action Protocol procedures yourself, but having expert advice could make the process quicker, and easier and lead to a better outcome for you.

Engage in the process and be constructive

 

The best way to ensure a good outcome is to fulfil all requirements as soon as possible and to the best of your abilities.

 

What Is the Pre-Action Protocol Process?

The Disrepair Pre-Action Protocol sets out procedures and timetables that you have to follow. The timetables begin from the moment a claim is lodged.

 

1. Alternative dispute resolution

 

You and your tenant may be asked to prove that an intermediary was used to reach an agreement before approaching the court. 

 

ADR isn’t mandatory, but courts expect both sides to attempt it where possible. The court will consider the extent to which each party complies with an alternative dispute resolution when making a ruling. 

 

Mediation services include:

 

• The government’s free Rental Mediation Service 

• The Civil Mediation Council’s Fixed Fee Mediation Scheme

• Social landlords' internal complaints procedures

• The Housing Ombudsman service (for social housing residents whose landlords are members of the organisation)

 

ADR is useful in resolving disputes before they escalate to formal proceedings. It shows good pre-litigation practice and may reduce costs in the long term.

2. Letter of housing conditions claims

 

The tenant must send the landlord a detailed letter outlining the issue and warning them of court action. It should include information such as:

 

• The tenant's details.

• When the property is available for the landlord to perform repairs.

• A list of outstanding defects.

• The history of the defects and any attempts to rectify them.

• When the tenant informed the landlord of poor housing conditions.

• The impact of the defects on the tenant.

• Details of a proposed expert and a letter of instruction to them.

• Relevant documents disclosed by the tenant.
  
  

The landlord has 20 working days to respond, either by performing the required repairs, scheduling a date to perform them, or providing a satisfactory reason why they can’t or won’t perform the work.

 

The tenant should also try to send the landlord an early notification letter that informs them that they intend to take legal action.

 

3. The tenant sends claim documents

The tenant should also request that the landlord sends relevant documents including:

• A copy of the tenancy contract.

• The tenancy file.

• Any documents relating to notice of poor housing conditions.

• Inspection reports or documents relating to work required. 

 

4. The landlord responds

 

The landlord’s response should include:

 

• Copies of records or documents requested by the tenant

• A response to the tenant's proposals for instructing an expert to inspect, including whether they agree with the proposal.

• If they disagree with the expert or the instructions, they should suggest alternatives.

• Which issues they admit liability for and which ones they dispute.

• Any points that they want to make regarding lack of notice or difficulty gaining access.

• A schedule of work to remediate the poor conditions, including start and finish dates.

• Any offer of compensation.

 

If the landlord fails to respond to the letter of claim within 20 days then the tenant is free to escalate the matter to regular court proceedings.

 

You should therefore respond quickly to avoid unnecessary delay and additional costs.

5. Expert opinion

 

The expert’s job is to report on any adverse conditions they find. 

 

They provide a recommended schedule of work along with estimated costs, and highlight any urgent actions that are required.

 

Not every case will need an expert opinion⁠, for example, if the issue only relates to disagreements over claiming damages.

 

When instructing experts, both landlords and tenants should follow guidance from the Civil Justice Council.

 

6. Inspection takes place

 

Tenants must allow the landlord reasonable access to the property so that the inspection can take place. The landlord should also give reasonable notice of the need for access.

 

The property should be inspected within 20 working days of the landlord responding to the tenant’s letter of claim.

 

Following the inspection, the expert’s report should be sent to both landlord and tenant within 10 working days. 

 

7. Take stock

 

In most cases, the Protocol procedures are enough to resolve any issues. But if they aren’t, both parties must review their positions to try to reach an agreement again.  

 

8. Agreement or go to court

 

If the housing disrepair claim does not lead to a resolution, the next step may be to take the matter to court. This typically happens when:

 

• The landlord fails to respond to the Letter of Claim within the 20-working-day timeframe.

• The landlord denies liability or refuses to carry out necessary repairs.

• The tenant disagrees with the landlord’s proposed resolution, such as a low compensation offer or inadequate repair plans.

• The issue is urgent, and court action is needed to prevent harm or further deterioration of the property.

 

To activate legal proceedings, the resident will submit an N1 Claim Form and a Particulars of Claim, outlining the disrepair, its impact, and the landlord’s failure to resolve the issue.

 

The landlord must admit liability and offer a settlement or dispute the claim. If it is disputed, then the judge will schedule a hearing. 

 

Will the Protocol Cost Me Money?

 

There are several ways that the Protocol process could cost you money. They include:

The cost of a solicitor: If you decide to hire a solicitor you are unlikely to be reimbursed.

Repairs: If you accept liability and agree to make repairs, it will be at your own cost.

Expert fees: If an expert is hired you have to pay your half of the expert fees.

Tenant’s costs: If the tenant's claim is successfully settled without litigation, the landlord has to pay the tenant's reasonable costs. This includes legal costs, the expert’s fees and loss of earnings.

Non-compliance: The court could apply financial penalties to any party that doesn’t comply with the Protocol or conducts themselves inappropriately.

Court proceedings: A subsequent court case could force you to pay additional expenses if it finds in the tenant’s favour and you didn’t accept to settle out of court via the Protocol process.

Personal injury claims protocol: Tenants can also use a special procedure under the Protocol to make a personal injury claim that was caused by the disrepair.

 

Case Study: Landlord Pays Four-Figure Settlement for Failing to Carry Out Repairs

 

In February 2023, Jonathan Lea Network Solicitors was contacted by a frustrated resident. The resident had recently moved into a private rented property only to find that it had not been cleaned or decorated to a satisfactory standard. 

 

More importantly, the property had several serious disrepair issues, including faulty electrics that posed a fire hazard, a broken cooker, broken lighting systems, a faulty heating system, defective flooring, and faulty home security devices.

 

These issues effectively rendered the property unfit for human habitation. The landlord had not done the repairs when requested and was not engaging with the resident on the issue. 

Needless to say, this caused the resident “immense distress and discomfort”. They contacted a solicitor who issued the landlord with a pre-action letter. 

 

The case did not go to court; however, the landlord agreed to pay the resident a “four-figure sum” in compensation. It’s also likely they would have been forced to make the repairs at the earliest reasonable opportunity.

How to Avoid Tenants Using the Protocol

 

The best way to avoid your tenants using the Protocol or sending you an early notification letter is to be organised and efficient in all aspects of your property management. You should:

 

Keep your properties in good condition

 

It’s your responsibility to ensure that your residential premises are fit for human habitation. If you do this and have good tenants then you should have very little concern about the Protocol.

In the case study above, the landlord should have ensured that the property issues were fixed before the resident moved in.

 

Respond quickly to requests 

 

In recent years, housing disrepair cases have been on the rise, particularly where landlords fail to respond quickly.

 

An issue that seems low priority for you could be a nightmare for your tenants. By making sure that repairs are performed as quickly as possible, you keep your tenants happy and give them less reason to use the Protocol.

 

In our case study, issues such as painting and cleaning could be postponed. But electrical faults and problems with cooking facilities and heating are serious hazards that should have been dealt with as soon as reasonably possible. 

 

Communicate well with tenants

 

It should be quick and easy for your tenants to contact you to report problems. When they do it’s a good idea to respond quickly and let them know what action you will take and by when. Keep them updated on progress.

If the landlord in our case study had communicated well on the issue, then the resident may not have felt the need to contact a solicitor.

 

Know your tenancy agreement

 

One of the biggest reasons tenants use the Protocol is disagreements with the landlord over who is responsible for a repair. Tenants often get fed up dealing with problems they perceive as the landlord's responsibility.  

 

Make sure your tenancy contract is explicit and clear. This way, when a disagreement arises you can highlight the relevant section. 

 

Keep records

 

By keeping clear and relevant records of what was reported, when, how you responded, the work done and any inspections, you can evidence the fact that you knew about an issue and addressed it.

In our case study for example, it’s possible that the landlord had already investigated the problem and had hired someone to make repairs, but that there had been unavoidable delays. Providing records could have helped them prove that they were taking reasonable steps to rectify the situation.

 

Keep Your Property Maintenance on Track

 

EVO is an end-to-end digital platform that housing providers can outsource all of their repairs and maintenance to. 

 

It enables landlords to boost resident satisfaction by providing high-quality, efficient repairs across all their properties. 

 

It does this by using modern technology, automation and data to:

 

• Improve communication between landlords, residents and tradespeople

• Make requesting and carrying out repairs fast and easy

• Ensure high-quality repairs and maintenance

• Enable data-driven property decisions

• Ensure no resident or job is forgotten

 

Contact us to learn more about how EVO can help you provide and maintain high-quality housing. 

Or, to learn more about maintaining your properties and meeting regulations, check out our articles on EICRs and Gas Safe Building Compliance Regulations Certificates.