Death of Awaab Ishak - Proposed introduction of fixed costs and how mandato

Death of Awaab Ishak - Proposed introduction of fixed costs and how mandatory mediation in housing disrepair cases might help.

By Alex Christian

Many people will have seen the news this week about Awaab Ishak a young boy who tragically died due to a respiratory condition caused by exposure to mould in the family home. For those who missed the story, The Manchester Evening News did an excellent in depth article detailing all the ways the family were let down which you can find here. Giles Peaker from Nearly Legal did another typically superb piece, passionately explaining the legal failings leading up to the child’s death, you can find that here.

Since the Today programme covered the story Wednesday morning and again on Thursday morning, I’ve been reading the social media posts and commentary from all quarters, laying blame at various doors and making suggestions for preventing such incidents in the future.

Wensum Mediation carries out a lot of mediations involving housing disrepair. In fact, we regularly conduct mediations for many large social landlords and for specialist disrepair solicitors including Antony Hodari Solicitors, the solicitor’s firm who initially represented the family in this case on a conditional fee agreement (no win no fee) basis.

Now here is where I am going to break the cardinal rule of mediators and offer an opinion. The housing disrepair legal sector working on conditional fee agreements is a huge force for good in the housing sector. Every year it allows thousands of individuals and families, who aren’t able to afford upfront legal costs, to bring claims against their landlords for disrepair. What is often forgotten, or misrepresented in the press, is that is housing disrepair claims are as much about getting the disrepair rectified, as they are about financial compensation.

Currently these specialist housing disrepair firms charge standard rates for the work they carry out in line with government guidelines, but this might be about to change with the proposed introduction of fixed fees. I believe fixed fees in disrepair cases to be a huge mistake and that it will lead to a vast number of claims not being economically viable for firms to run. It appears that the case in point was dropped as the specific performance (the works that needed to be carried out) were estimated to be below the £1k necessary to bring a claim using the fast track and therefore the firm would have been unable to claim their costs. Whilst the work such firms do is important in providing access to justice, they aren’t charitable organisations and as in the case in topic, they simply can’t pursue cases which are not financially viable. If these firms won’t take on such cases, where can the tenant’s turn?

With housing disrepair claims for the most part falling outside legal aid and the Housing Ombudsman taking upwards of a year to reach a decision, let alone rectify the problems, without access to affordable legal representation, tenants will be left living with housing disrepair, with very few options to quickly resolve issues.

So, what can practicably be done? Well, the Housing Ombudsman could indeed be given greater powers and resources to combat the problem. I don’t know how much money the service would require in order to deal with the thousands of cases currently brought by solicitors every year, but I can imagine it will be an eyewatering amount of money; certainly, too much for the government to consider investing in the current climate.

A new body could be set up to deal housing disrepair with powers to decide cases and to enforce; again an expensive option.

A system of arbitration could be used and currently Lambeth Council are trialling such a system. I don’t know how that is going, but again I expect it is expensive and the taxpayer I imagine is ultimately footing much of the bill.

So, I would like to make a case, instead of stopping solicitors charging standards fees, the introduction of early mandatory mediation paid for by the respective parties in all housing disrepair claims may well be a better option. Now I know some ‘mediation puritans’ (which in most cases I count myself amongst) reading this will balk at the idea of forcing parties into mediation; however, there is now a lot of solid evidence of it working in other sectors such as special educational needs and family matters.

I am in no doubt that requiring parties to mediate will mean a drop in the overall success rates of mediation as a process. However, Wensum Mediation’s settlement rate for housing disrepair cases is over 80%, and even if only 40% settle under a mandatory mediation system, then that’s still thousands of cases each year where the housing conditions are rectified far faster and with much less cost to both the tenant and the landlord, and of course with no cost to the taxpayer.

With the money the landlords save settling claims quickly they can reinvest into housing. With the time saved, they can assist many more people living with housing disrepair and with a faster conclusion to their case, tenants can improve their living conditions quicker and can have the compensation they deserve faster (not an inconsequential consideration in these uncertain economic times we are all living in).

But most importantly, the faster and more cost-effective route to a resolution by way of mediation might just prevent another innocent child like Awaab dying due to mould in their home.