The Pre-Action Protocol for Housing Disrepair Cases

The Pre-Action Protocol for Housing Disrepair Cases sets out steps parties to a housing disrepair case should carry out before court proceedings are issued. It encourages parties to avoid unnecessary litigation, exchange information early and minimise the costs of resolving disputes. It also promotes speedy and appropriate repairs which are the landlord’s responsibility and aims to ensure tenants receive compensation they are entitled to as quickly as possible.

Before using the Protocol, tenants should ensure their landlords are aware of the disrepair as it is intended for those cases where, despite the landlord’s knowledge of the disrepair, the matter remains unresolved.

When does the Pre-Action Protocol for Housing Disrepair Cases apply?

This Protocol relates to claims by tenants, lessees and members of the tenant’s family in respect of housing disrepair of residential property in England and Wales.

It does not apply to disrepair claims which originate as counterclaims or set-offs in other proceedings or claims brought under s 82 of the Environmental Protection Act 1990.

Where the case has a personal injury element, the Pre-Action Protocol for Personal Injury Claims should be followed in relation to the personal injury element of the claim, unless the personal injuries suffered are insufficient to warrant a separate procedure and no expert evidence is needed beyond the letter of a GP.

If a limitation period is about to expire, the tenant may commence court proceedings without following the Protocol. However, in such circumstances landlords are encouraged to confirm that they will not rely on limitation as a defence in subsequent proceedings and tenants should ask landlords to agree to extend the limitation period.

What are the requirements of the Pre-Action Protocol for Housing Disrepair Cases?

Early notification letter

If the claimant is unable to send a letter of claim setting out full details of the claim because he is awaiting information or where a repair is urgent, the claimant should send an early notification letter to the landlord.

The letter of claim

The tenant should notify the landlord of his claim at the earliest reasonable opportunity by sending to him a letter of claim.

The landlord’s response

A landlord should normally reply to an early notification letter or a letter of claim within 20 working days. This time will be extended where a single joint expert is appointed or where experts agree a schedule following a joint inspection.

The landlord’s response should disclose all relevant records or documents, including a copy of the tenancy agreement and documents or records relating to the notice given, the disrepair reported, inspection reports or requirements to the property.

If the tenant has proposed the instruction of an expert, the landlord should indicate whether a proposed single joint expert is agreed and whether any letter of instruction provided is agreed. If the landlord agrees to a single joint expert but with separate instructions, a copy of his letter of instruction should accompany his letter of response. If the appointment of a single joint expert is not agreed the landlord should state whether he agrees to a joint inspection.

The landlord’s response should state whether liability is admitted and if so, in respect of which defects. If the landlord disputes part or the entire claim he should give reasons.

If the landlord wishes to make any point regarding lack of notice of the repair or any difficulty in gaining access, he should set this out in the letter of response.

Where liability is admitted the landlord should provide a full schedule of intended works and any offers of compensation and costs.

Where the landlord is not an individual, a person should be designated to act as a point of contact for the tenant.

Failure by a landlord to respond

If a landlord fails to respond to an early notification letter within 20 working days, the tenant should send him a letter of claim.

Experts

The Protocol sets out the circumstances where expert evidence may not be necessary and where expert evidence is required and encourages the instruction of single joint experts. Where the parties are unable to agree to the instruction of a single joint expert, joint inspections by experts are recommended.

Alternative dispute resolution (ADR)

The Protocol expects the parties to consider ADR procedures as an alternative to court proceedings. The courts take the view that litigation should be a last resort and may require parties to provide evidence that ADR was considered.

The protocol sets out ADR options for the parties including discussion and negotiation, early neutral evaluation by an independent third party, mediation. Other procedures recommended include:

  • for council tenants, local authority repairs, complaints and/ or arbitration procedures and the Right to Repair Scheme (this applies for small, urgent repairs of less than £250 in value);
  • for tenants of social landlords and for tenants of qualifying private landlords, complaints to the Independent Housing Ombudsman;
  • for private tenants, complaints to local authority environmental health officers.

Where a tenant’s claim is settled, the Protocol requires the landlord to pay the tenant’s reasonable costs or out of pocket expenses.

What happens if a party does not act in accordance with the Protocol?

When determining costs, the court will take into account the conduct of the parties including whether the parties have complied with the Protocol.

When considering compliance, the court will look at whether the parties have largely complied – it is unlikely to be concerned with minor or technical shortcomings. It will also consider the proportionality of the steps taken compared to the size and importance of the matter, the urgency of the matter and the effect of non-compliance on the other party.

A single minor breach by one party will not exempt the other party from following the Protocol.