Summary

As circumstances are changing rapidly, registered providers (RPs) need to adapt their policies and procedures to ensure that residents, staff and contractors are safe. Regular review of these policies and procedures will be needed.

The good news is that there will likely be a shift in how compliance is viewed, in light of the current situation.  More details are awaited from the Regulator of Social Housing (“the Regulator”), but allowances will be made to RPs who consider the risks and take reasonable steps to mitigate them.

The challenge

It is highly unlikely that any amount of contingency planning will have prepared boards of RPs, or their business cases, for the challenges presented by the coronavirus pandemic. To analyse and take steps to address a broad range of risk in normal times is no easy task and requires constant vigilance. To do so in a period of social distancing, self-isolation and skeleton staffing is an unprecedented challenge.

This note briefly considers the steps necessary to discharge your obligations to keep those affected by your activities – your staff and residents among others – safe, when current circumstances have removed many of the means for doing so and when PPE may be in short supply.

We have received a range of queries over the last week in particular, relating to:

• Checks and certification – gas and electrical, fire risk assessments etc.

• Repairs (some RPs are providing essential, emergency-only response, others a full service, but this may change)

• Safeguarding vulnerable adults and children

• The hiatus in evicting and the potential impact of reduced rent on RPs’ business cases, loan guarantees etc.

• How to deal with ASB issues – and the consequences of delays in doing so

• The consequences of a temporary suspension of IDAs

• Health and safety as an overarching obligation

Pending formal commentary from the Regulator (guidance which is itself delayed due to COVID-19) the following general consideration may provide a degree of reassurance, and will be added to over the coming days and weeks.

Public policy considerations and the approach of the Regulator

No responsible organisation within the housing sector (or outside it) will consider that the consequences of COVID-19 in any way absolve it from identifying and mitigating risk—bets in this respect, are anything but off. However, various factors militate against heavy-handed enforcement by the Regulator or any other relevant agency including the Health and Safety Executive (HSE), principal amongst which is public policy. Borrowing from overarching duties imposed by the Health and Safety at Work Act 1974 (for employers, including RPs, to conduct their undertaking in such a way as to protect, so for as is reasonably practicable, the health and safety of its employees and those affected by its activities), it is a question of identifying risk and taking appropriate steps to mitigate each one.

Each and every risk—very much taking into account the additional complexities imposed by the current circumstances—needs to be considered on a case by case basis. Should an incident arise, it is probable that any regulator with powers of enforcement would take a relatively lenient approach when considering which steps are reasonably practicable and which would actually have the effect of creating a different risk as a consequence. The Regulator has already confirmed that “our regulatory approach remains proportionate and we will take account of the circumstances, including those arising from the impact of coronavirus, in considering our response to non-compliance or potential non-compliance with the standards”.  In this context, RPs may be called upon to exercise judgment when for example intervening in a case involving anti-social behaviour, seeking a court appointment and potentially putting staff at risk in doing so.

Gas and electrical servicing/repairs and maintenance:

RPs must show that they “meet all applicable requirements that provide for the health and safety of the occupants of their homes.” In the context of the Gas Safety Regulations, this means being able to show that they have taken all reasonable steps to prevent a contravention. Furthermore, providers must “ensure a prudent and planned approach to repairs and maintenance of homes and communal areas” in addition to their contractual and statutory obligations to carry out repairs when on notice within a reasonable time.

When staff, contractors and tenants have to comply with “social distancing” and “self-isolation” requirements, what is considered reasonable will be somewhat different to what would have been reasonable before the COVID-19 pandemic.

With resource guaranteed to be stretched, RPs need to show that they have applied their minds to matters and adapted existing procedures to take reasonable and practicable steps.

Repairs:

In addition to cyclical repairs and maintenance, the sector is also facing challenges in pre-litigation and litigated disrepair claims where RPs have pressure to agree to inspections and works at tenants’ properties or in some cases obligations to carry out works within strict time frames as part of settlement terms.  

In such cases we encourage discussion with solicitors representing tenants to try and agree a common approach given it is highly likely that compliance with requests for works and settlement terms and with court directions, is going to become difficult if not impossible in the coming weeks or months.  In the light of these exceptional times we would hope for a spirit of compromise and flexibility. But without becoming repetitious, RPs should document and record the steps that are taken and any agreements reached.

Top tips:

1. Risk assess how services will be provided given limitations on resources, and the need for social distancing/self-isolation. For example, in what circumstances will PPE be required and how can supplies of PPE be ensured?
2. Review and update policies to reflect how you will use limited resources—identify need/vulnerability and prioritise accordingly, taking into account your risk assessment. 
3. Consider how to communicate with residents, particularly those with additional needs and who may be particular vulnerable at present, and adapt as necessary (e.g. calls or text messages to mobiles). 
4. Ensure new policies are reviewed at regular intervals so that they remain current.
5. Identify which properties are due for cyclical inspections and/or repair. Consider a triage approach to prioritising works by reference to the above and/or other risk assessments.
6. When identified, check records for any suggestion that some may be more at risk than others and prioritise in accordance with your updated policy. For example, as a result of reports being received from tenants or as a result of other maintenance or repairs inspections.
7. Identify tenants with particular vulnerabilities (i.e. physical or mental impairment.)
8. Are you aware of tenants who may have self-isolated?  Can a system be put in place to flag those tenants?
9. Document, record and justify your approach.
10. In some cases emergency or “without notice” injunctions may be justified and steps can be taken to try and get these dealt with by the courts by telephone.

Conclusion

The work of this sector is imperative to our society and it is important that this work continues. The focus for RPs at this stage should be on reviewing the steps needed to protect the health and safety of staff, residents and contractors and implementing temporary policies that mitigate any risks as far as is possible.

For more information and helpful tips and advice, please contact Susie Rogers, David Firth or Paul Lloyd.