Disrepair and disease – Don’t despair!

The Pre-action Protocol for Housing Conditions claims allows for a disrepair claim to include a personal injury element, however it also stipulates that if the injury element requires expert evidence other than a GP letter, the Personal Injury Protocol should be followed for that aspect. If the disrepair situation is urgent, the Protocol allows for two separate claims to be brought which could potentially be consolidated later.

The majority of the claims I see are still for ‘pure’ disrepair with no separate claim for injury or illness, although the precedent Letters of Claim tend to reserve a claimant’s right to pursue such.

Injury and disease

However, recently, I have seen an increase in claims being pursued for injury and disease arising from disrepair, particularly for respiratory conditions, skin complaints, neurological conditions and pain syndromes. There has also been a notable number of claims being pursued for pure psychiatric injury.

A successful ‘disrepair’ claim does not automatically equate to a successful ‘injury’ claim. There is the small matter of causation to overcome.

For example, asthma can undoubtedly be caused or exacerbated by mould.  It can also, however be caused by dust mites, smoke, dietary insufficiencies and pollution. Similarly, transient respiratory conditions can be caused by mould, but equally can arise from smoking and secondary smoke, respiratory vulnerability from childhood, and general air pollution.

To succeed in pursuing a claim for such, a claimant will need expert evidence from both an independent surveyor to establish the existence of actionable disrepair, and medical evidence to link their illness condition to the disrepair. I would expect to see a clear, documented history of increased GP attendances. You would also want to examine the records for pre-tenancy respiratory conditions or other relevant factors.

I would stress that the arguments as to causation should not delay repairs.

Awaab’s Law is imminent; as of 27 October 2025, social landlords must investigate and fix dangerous damp and mould within these strict timeframes:

• Emergency repairs within 24 hours
• Investigate reports of damp and mould within 10 working days
• Provide a written report within 3 working days of investigation setting out the findings, proposed remedy, timescales and who to contact
• If the issue poses a serious risk to someone’s health, the landlord has 5 working days to make safe (it can be a temporary make safe as long the immediate health risk is eradicated with any follow-up works to be completed within 12 weeks)
• Alternative accommodation should be offered if the above timescales cannot be met.

Psychiatric claims

In terms of psychiatric claims, we are seeing allegations of anxiety, depression and post-traumatic stress disorder being attributed to living conditions. We would more traditionally expect to see these arising from traumatic one-off events, such as a serious accident which resulted in a significant physical injury. 

It is well-established that claimants who suffer a foreseeable physical injury as a consequence of a defendant’s breach of duty can pursue a claim for an associated and recognisable psychiatric injury. So, it follows that a tenant who suffers from an exacerbation of a respiratory condition due to damp or mould, can claim for a psychiatric condition arising.

However, we are now seeing claims where there is no physical injury or illness but rather a standalone psychiatric condition. This requires a reconsideration of the concept of primary and secondary victims:

• Primary victim – psychiatric illness is suffered as a result of a claimant’s physical injury or endangerment (recovery likely where physical injury is reasonably foreseeable.
• Secondary victim – psychiatric illness suffered solely due to endangerment or physical injury of another (recovery subject to strict control mechanisms).

A secondary victim must establish:

1. The psychiatric injury arose from witnessing the injury or death of the primary victim.
2. The injury arose from sudden and unexpected ‘shock’.
3. There were close ties of love and affection between the primary and secondary victims.
4. The claimant was present at the scene of the event or witnessed the aftermath a short time later.
5. Injury of that type to that claimant was reasonably foreseeable.

The issues a defendant landlord needs to consider in a pure psychiatric claim are:

• Whether the claimant can be deemed a primary victim and whether the condition now suffered was within the range of foreseeable injury.
• Did the disrepair affect the actual demised premises or just communal parts?
• Does the disrepair amount to an ‘accident’, that is, an unexpected and unintended event which causes injury (or risk of injury) to a victim by violent external means? This is known as the ‘Alcock test’.
• Is the disrepair of a nature that is gradual or minor?

There has been a previous County Court decision Asghar v Barnet LBC and Minoan Investments Limited (2013) where a tenant succeeded in a claim for exacerbation of depression and panic attacks due to disrepair. The Claimant was in the presence of physical danger (potentially from the damp) but did not actually suffer any physical injuries. If the Alcock principles had been applied, the claim should have failed and if a similar decision was made now, it would be ripe for appeal.

There are numerous other conditions which landlords may come across, including asbestos related diseases, skin conditions, Mycotoxins or Weil’s Disease, and should be considered in this context.