The misery caused by damp and mould is nothing new. However, the death of two year old Awaab Ishak in 2020 brought the risks of these problems into sharp focus. Awaab died from a severe respiratory condition caused by black mould in the flat he shared with his parents.

Despite requests for the problem to be resolved, made over several years, and concerns raised with the housing association by a health visitor, nothing was done to fix the problem. At the Inquest into Awaab’s death, the coroner found that Awaab died because the flat was not in a habitable condition. The coroner emphasised his concern that others would die if action was not taken.

In response, the leading Scottish housing trade bodies and the Scottish Housing Regulator have come together to produce new guidance for landlords. It is clear that this is an issue which is causing significant concern, and one which requires careful attention from landlords. The number of reported concerns about damp and mould by tenants had increased significantly, even before the coroner’s report on Awaab’s death was published on 16 December 2022; Scottish councils reported a 20% rise in reports between 2021 and 2022.

Is this relevant to my organisation?

Even if you provide residential property free of rent, at a lower than market rent, or as part remuneration for work, you have duties in relation to the condition of the property.

You are obliged to meet the Scottish Repairing Standard. Failing to meet that standard could result your organisation being reported to the Housing and Property Chamber which can impose a “repairing standard enforcement order” (RSEO) requiring you to carry out the work. If you don’t comply with an RSEO you could be prosecuted for a criminal offence. The order remains attached to the title of the property until it is revoked and could prevent it being sold.

If someone is injured as a result of the poor state of repair, you could be sued for damages in terms of the Occupiers’ Liability Act 1960. In some circumstances you could also be prosecuted for a health & safety offence.

What do we need to do?

To meet the Scottish Repairing Standard your property must be, amongst other things, wind and watertight, and it must meet the Tolerable Standard. The Tolerable Standard is a basic level of repair which a property must meet to make it fit to live in. The Standard provides that the property may not be fit for habitation if it has rising or penetrating damp or is not properly ventilated,

When the property is first handed over to a tenant, you must make sure that it meets the repairing standard. Thereafter, you must react to any reports from your tenant which require action to bring the property back to that standard.

What are the specific issues with damp and mould?

Consultation in the rented housing sector and with tenants demonstrated that tenants were often blamed for condensation in properties and for the damp and mould that resulted. Specifically, it was argued that the problems arose because of tenants’ lifestyles, however when it is recognised that those lifestyles included cooking, showering and drying laundry, the unfairness of this approach is clear. It is important to recognise that resolving these problems is a landlord’s responsibility and not something which can be ignored.

Another problem can be the tendency to take a cosmetic approach to the issues, scraping off mould and painting over stains, rather than identifying and combating the underlying cause. More fundamental work will often be required, for example, improving ventilation, fixing or replacing defective windows, and repairing external surfaces and structures which are allowing penetrating damp.

Overall, this specific problem highlights the need to have good oversight of residential property and ongoing awareness of its condition. A proactive approach to identifying and reacting to defects should greatly reduce the likelihood of a problem getting severe enough to cause harm.


Kate Donachie

Legal Director