Richard Short is the Deputy Director of the Conservative Workers and Trade Unionists.
Number 20 Johnson Street, Salford. An unassuming house in a run-down part of Greater Manchester, earmarked for slum clearance and owned by the local authority. It was in a very poor state being riddled with damp and mould.
But in 1974, the court case of Salford City Council v McNally broke ground when the person living there, Mrs McNally, made a complaint to the local magistrate about the condition of her house – with prophetic echoes of the tragic death of Awaab Ishak at the hands of Rochdale Boroughwide Housing.
McNally’s home in Salford was so poor that it was a health hazard. The magistrate agreed and ordered the Council to make good within two months. The Council appealed, but eventually the House of Lords ruled that while the local authority could turn a blind eye to the rules of housing fitness, they absolutely had a firm, unequivocal duty, without ambiguity, to make sure houses they provided were not health hazards.
These so called ‘statutory nuisance’ public health duties are nothing new. They are now contained in the Environmental Protection Act 1990 but first appeared in the Public Health Act 1875, and the wording has barely changed.
Moreover, the same legislation states clearly, and word for word: “it shall be the duty of every local authority to cause its area to be inspected from time to time to detect any statutory nuisances which ought to be dealt with”.
The position was clear that social housing providers could not, in any circumstances, escape Public Health duties. And this presents a problem for houses owned by the council.
The enforcement of statutory nuisances is a function of the local authority. so if a health hazard house is owned by the same local authority it cannot be enforced as a local council can’t serve itself with a notice for improvement or take itself to court.
There is a recourse for an individual to bypass the council and make a complaint directly to a magistrate, just as McNally did all those years ago, but this places all the burden of proof and investigation onto the individual concerned, who will be up against the resources and expertise of the local authority.
As the tragic circumstances of Awaab Ishak are picked over, with the inevitable calls for new laws, the fact is there is enough law already and there has been since Queen Victoria was on the throne.
Michael Gove seemed genuinely concerned on his visit to the housing estate in Rochdale and gave assurances that the Social Housing Regulation Bill will give tenants more rights and the regulator more power to address poor performing social housing providers, and Awaab’s Law wants a duty for social housing providers to investigate complaints of damp within 14 days.
But this misses the point that the McNally case made clear: housing policy is completely and necessarily separate from public health policy.
Statutory nuisance law is effective and straightforward to enforce, so the question isn’t one of needing new laws but why was the existing, good and established law not pressed into action to save this little boy’s life. Their flat was not owned by the council, so the local authority could have acted and acted quickly. I’ve personally taken enforcement action to remedy some of the poorest housing conditions and the results of improvement are life changing, if not life saving.
Straightforward doesn’t mean easy. I know from experience that enforcing the public health statutory nuisance laws can be fraught and frustrating, so this may explain why Rochdale Council did not act sooner but I think this unlikely.
More likely is the cultural hang over from generations past when social housing meant one thing; the council house built and owned by the council. Although it has been over 30 years since some councils started transferring stock to housing associations, there is still the latent mindset that social housing as a whole, not just council owned housing, is self-regulating, never needing the intervention of the local authority.
This would especially be the case with those councils who transferred their entire stock to a housing association, where they are still viewed as being ‘council houses’ in a vernacular sense and with the associated mindset of non-intervention persists. This contrasts markedly to the private rented sector, where the statutory nuisance provisions are used extensively
The Social Housing (Regulation) Bill gives policy makers and legislators an opportunity to make this new legislation as ground-breaking as Salford v McNally. As it enters the committee stage in the House of Commons, I word urge MPs to make amendments to the Bill to make it clear that no social housing provider can escape their duties to public health; and where social housing is owned by a local authority, they must have a policy of candour where they inform tenants of their rights to go to a magistrate to make a statutory nuisance complaint, and direct them to resources to support them in doing so.
But this is more than a change in policy or amendments to yet another version of a Housing Act, this is about changing mindset. Social housing, including local authority-owned, can be some of the most dangerous to health in the national stock. The law to rectify this has been around explicitly for over 150 years. It’s application to social housing was clarified in a House of Lords ruling almost 50 years ago.
Awaab’s death must be the final wake up call that social housing providers can and must face the full force of public health law.