With the recent publication of the government’s updated guidance on Awaab’s Law, social landlords now have in their possession definitive guidelines for compliance, just days before the first phase of the landmark legislation comes into force.

The comprehensive 40-page document moves beyond general  principles, providing crucial operational detail that should dictate operational implementation.

Phased approach

Awaab’s Law implies a covenant into all social housing tenancy agreements, legally requiring landlords to comply with specific, prescribed requirements. While the existing duty to ensure homes are fit for human habitation and to repair structural defects remains, the new law significantly extends that responsibility to include a rigorous process of investigation and remediation within legally enforceable timeframes.

The new regime will be implemented in a phased approach, as has previously been set out. For now, the sector’s immediate and undivided attention must be on the demands of Phase 1 – focusing on all emergency hazards and all damp and mould hazards.

The core obligations

From 27 October, the moment a social landlord becomes aware of a potential hazard, a strict clock starts ticking. Most elements of this timeline has previously been set out, but the new guidelines provides additional clarification:

1. Investigation: Landlords must both investigate potential emergency hazards and undertake relevant safety works within 24 hours. Landlords must investigate and potential significant hazards within 10 working days of awareness.
2. Communication: A written summary of the investigation’s findings must be provided to the tenant within 3 working days of its conclusion, unless all required works are completed within that period.
3. Remedial work: If a significant hazard is confirmed, relevant safety work must be completed within 5 working days.
4. Preventative measures: Steps to begin supplementary preventative work must be taken within 5 working days, with physical work commencing within 12 weeks and finished within a reasonable period.
5. Alternative accommodation: Should safety work be impossible within the set timeframes, the landlord must secure and fund suitable alternative accommodation for the household.
6. Ongoing engagement: Tenants must be kept informed throughout the entire process, with clear advice on how to remain safe.

We’ve previously noted that the definition of ‘working days’ provides a minor concession, but the tight turnarounds, particularly the 24-hour emergency window, will require robust and responsive operational systems.

Clarifications in the final guidance

The final guidance provides clarity on several points that will be fundamental to effective implementation and legal defence.

‘Emergency’ or ‘significant’?

It is for a landlord to determine whether any particular hazard is an ‘emergency’ or ‘significant’, but in light of the facts of Awaab’s Ishak’s death, it is likely that extensive mould growth will be classed as an emergency.

The guidance states that an emergency hazard is one that, “poses ‘an imminent and significant risk of harm’ to the health or safety of the occupier in the social home.” An ‘imminent and significant risk of harm’ is defined in the regulations as ‘a risk of harm to the occupier’s health or safety that a reasonable lessor with the relevant knowledge would take steps to make safe within 24 hours’.  In other words, emergencies are those which could cause immediate harm to a tenant if not addressed quickly.

By contrast, significant hazards are stated to be those which, “pose a significant risk of harm to the health or safety of an occupier of a social home,” being risks of harm that a reasonable landlord would take steps to make safe as a matter of urgency.

There is a degree of discretion within the guidance and regulations, but the clear message is that all risk should be addressed, with those which are obviously liable to cause immediate harm to be prioritised above all others.

The trigger of “awareness”

The starting pistol for a landlord’s obligations under Awaab’s Law  is the point of “awareness,” being the point in time at which they are made aware and put on notice of a potential hazard. The guidance clarifies that a landlord is deemed aware not only when a tenant reports an issue, but also when a hazard is identified during a routine inspection, or when notified by a contractor, staff member, or regulator.

Notification to a managing agent or contractor is likely to be legally construed as notification to the landlord itself. This makes ironclad internal reporting and escalation protocols with all third-party partners an absolute necessity. The statutory clock imposed by Awaab’s Law starts ticking as soon as the landlord is made aware of the possible hazard.

Right to a renewed investigation

One of the most significant additions is the formal right for tenants to request a ‘renewed investigation.’ If an initial assessment is conducted remotely (such as via video call or photo evidence) and concludes no hazard exists, the tenant can demand an in-person follow-up.

For a significant hazard, this renewed investigation resets the clock and must be completed within 10 working days of the request. This provision prevents remote assessments from becoming a tool for bypassing thorough, physical scrutiny and empowers tenants to ensure proper scrutiny.

The unacceptable lifestyle assumption

The guidance uses forceful and unambiguous language to condemn the attribution of damp and mould to tenant ‘lifestyle.’ It states it is “unacceptable” for landlords to make such assumptions or to withhold investigation or remedial action on this basis.

It emphasises that everyday activities like cooking, bathing, and drying clothes are normal and generate moisture; the landlord’s duty is to address the underlying cause through adequate ventilation and building fabric improvements, not to blame the occupant.

A note on cladding

The guidance explicitly excludes cladding remediation from the scope of Awaab’s Law, classifying it as a complex, long-term project rather than an emergency repair. Fire safety related to cladding remains governed by the Regulatory Reform (Fire Safety) Order 2005 and the Building Safety Act 2022.

However, if a fire safety hazard is reported in a building with cladding issues, the investigation and other immediate safety requirements of Awaab’s Law are still triggered.

The ‘reasonable endeavours’ defence

While the duties are strict, the law provides a defence if a landlord can demonstrate that all “reasonable endeavours” were used to comply, but factors beyond their control prevented it. Examples from the guidance include:

• Inability to gain access despite multiple, documented attempts at different times and via various communication channels.
• Delays in receiving necessary regulatory approvals, provided the application was submitted promptly and correctly.
• An inability to source specialist materials or contractors within the deadline, despite exhaustive efforts.
• A genuine lack of available suitable alternative accommodation in the locality.

The burden of proof for this defence rests entirely on the landlord, making meticulous record-keeping a critical legal safeguard. For example if, despite repeated requests for entry, a tenant refuses to engage with landlord, the landlord should maintain a clear record of the attempts made and responses received.

Ensuring readiness

With implementation imminent, the updatedguideance highlights key areas in which it would be particularly advisable for landlords to conduct a final review:

• Decanting strategy

The duty to provide suitable alternative accommodation will present a major challenge. ‘Suitability’ is subjective, considering space, location, disability needs, and pets. Retaining void properties is impractical, so landlords must have pre-arranged options, such as frameworks with local hotels, agreements with short-term let providers, or partnerships with private landlords. These options all cost however, and with many social landlords operating as not-for-profit, the questions remains – where will this additional funding come from?

• Staff training and cultural change

Frontline staff, particularly in contact centres, are often the first point of contact between a landlord and tenant.  They must be trained to recognise the language of potential hazards, differentiate between emergency and significant repairs, and understand the prohibition on ‘lifestyle’ judgements. Over and beyond training, this may require a fundamental cultural shift towards proactive, empathetic, and non-judgemental engagement, as well as appreciation of potential language barrier to effective reporting.

• Contractor management and integration

Given that contractor awareness triggers the legal clock, landlord-contractor relationships must be strengthened accordingly. It would be advisable to review contracts and, where necessary, update them to explicitly require contractors to immediately report any hazards they encounter and to provide all necessary information for tenant summaries. Landlords remain ultimately responsible for their contractors’ compliance.

• Enforcement, redress, and the wider context

Tenants have a clear pathway to redress through the landlord’s formal complaints procedure, the Housing Ombudsman, and ultimately, the county court for breach of contract. Courts can order specific performance (to do the repairs) and award damages and costs. It is also important to understand that Awaab’s Law sits within a wider regulatory web. It does not replace existing duties under the Homes (Fitness for Human Habitation) Act 2018, the Building Safety Act 2022, or the Regulator of Social Housing’s Consumer Standards. Where requirements overlap, landlords must adhere to the shortest applicable timeframe.

The updated guidance on Awaab’s Law marks the beginning of a new, more demanding era for social housing. While the new obligations will undoubtedly strain resources and force difficult, if not almost impossible, prioritisation decisions, they represent a fundamental and necessary step forward. For now, registered provides have less than a year to get used to adhering to Phase 1 requirements, before it steps up a level again to include even more hazards in Phase 2 in 2026.

Bill Dunkerley, associate partner at Pannone Corporate

Calls for a ‘Hillsborough Law’ and increased accountability of public servants have been voiced for many years.  However, despite a number of independent inquiries and investigations, litigation and even draft legislation being prepared, progress towards a statutory duty has been slow.

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that quick progress might be made. The resulting draft Public Authority (Accountability) Bill was put on hold following the snap General Election in May 2017, and the subsequent Conservative government stepped back from introducing a statutory duty, establishing instead the Hillsborough Charter.

At his first Labour Party conference as Prime Minister, Sir Kier Starmer also promised that a ‘Hillsborough law’ would be introduced in Parliament before the next anniversary of the 1989 football stadium tragedy in April 2025. Although that deadline passed, draft legislation has this month finally be published and received its first reading in the Commons.

 What does the draft Bill say?

At its core, the draft Bill seeks to ensure that public authorities, and public officials, at all times perform their functions with candour, transparency and frankness, and in the public interest. No further definition is provided within the draft legislation, other than to state that it requires public authorities to promote and take steps to maintain ethical conduct, candour, transparency and frankness within all parts of the organisation. Criminal sanctions are proposed for breaches of the new duty.

‘Public authority’ is given a wide definition within the Bill, and includes government departments, any of the regular or reserve forces, police forces, local authorities, NHS bodies and any organisation whose functions, “are functions of a public nature or include functions of a public nature.” Both Houses of Parliament are expressly excluded from the definition.

The Bill does not go so far as Andy Burnham’s initial proposals, which suggested including with the definition, “entities with a private structure but which are majority owned by public funds.”

Parity of funding

The guidance notes which accompany the draft Bill explain that the bereaved families at the Hillsborough inquest received no public funding for legal representation, in contrast to other parties to those inquiries.

To address this imbalance, the Bill proposes to expand the scope of legal aid available for inquests, to allow bereaved families to access legal help and advocacy for inquests whenever a public authority is an interested person.

In addition, the Bill once enacted will create a new duty on public authorities to only engage legal representation in a necessary and proportionate way, taking into account the:

• comparative position of affected person in respect of their means to engage legal representation;
• nature and extent of the obligations of public authorities to assist in respect of disclosure and other matters;
• importance of the issues under investigation and the need for those matters to be investigated fairly, proportionately, expeditiously and cost-effectively.

This expansion will apply across inquests and both statutory and non-statutory public inquiries.

Reform of Misconduct in Public Office offence

The existing common law offence of misconduct in public office is currently committed by a public office holder who, while acting in their capacity as public office holder either wilfully neglects to perform their duty or misconducts themselves to such a degree that it amounts to an abuse of the public’s trust in that office.

The Bill proposes the abolition of the above offence, and its replacement with two separate offences relating to ‘seriously improper acts’ and, separately, ‘breach of duty to prevent death or serious injury.’

1. Seriously Improper Acts: it is proposed that an offence will be committed when a person who holds a public office, uses that office to obtain a benefit (for themselves or another person); or to cause another person to suffer a detriment. They must also know (or ought to know) that their behaviour is seriously improper.
2. Breach of Duty to Prevent Death or Serious Injury: it is proposed that an offence will be committed when a person who holds public office is under a duty to prevent, or to prevent a risk of, another person suffering critical harm; and they intentionally or recklessly breach that duty by causing, or creating a significant risk of causing, another person to suffer critical harm. It is anticipated that this offence will only apply in practice to those whose role inherently involve a duty to prevent critical harm to others – being predominantly those who work in the emergency services.

It is proposed that both offences will be indictable only, and punishable by significant custodial sentences.

Hurdles to implementation

However laudable the aims may be of seeking to level the playing field between bereaved families and well-funded public authorities during investigations into mass casualty events, there are serious and fundamental procedural questions which need to be addressed before for any such duty can achieve its intended objective. Hopefully these issues will form the basis of future Parliamentary discussions.

Primarily, it remains unclear exactly what is intended by ‘candour’ other than a general duty to be open and honest. In any event there is an inherent tension with a potential defendant’s right to silence: where someone asserts that right, they are unlikely to be guilty of lacking candour – and to hold otherwise would fundamentally undermine well established principles of criminal justice. However, any suggestion that the assertion of the right of silence should be subject to third party scrutiny or assessment of reasonableness is seismic to say the least.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years and continuing austerity generally begs the question: where will the money come from?

Interestingly, the 2017 draft of the Bill proposed a limit on the legal spend of public authorities in responding to inquests and inquiries, the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations, and it remains to be seen how the restriction on public authority legal spend to that which is deemed ‘necessary and proportionate.’

Also, it is often extremely difficult at the outset of an inquiry or inquest to estimate the overall costs that may be incurred. Were a cap to be introduced in responding to any such proceedings, the basis for this would need to be carefully considered, to ensure that all parties are capable of achieving full and proper advice and representation.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in the sanction which has been imposed.

Conclusion

Whilst it appears that progress can now be made towards finally establishing a statutory Hillsborough Law, which will be welcomed by many and may be seen as going some way towards addressing the concerns and queries raised by the families following that disaster and subsequent litigation, there are equally fundamental questions and clarifications which are required to be openly debated before any proposed legislation can be enacted.

If Hillsborough Law is to become a reality then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.

The Government has confirmed that, subject to parliamentary approval, Phase 1 of Awaab’s Law will come into force on 27 October 2025. Guidance has now also been published, which is intended to provide additional support to landlords to help them achieve and maintain compliance with their new obligations.

Background

It is almost three years since the Coroner issued her Prevention of Future Deaths to the Department for Levelling-Up, Housing and Communities at the conclusion of the inquest into the death of Awaab Ishak.

The government of the day responded to that report by tabling amendments to the already existing Social Housing Regulation Bill, inserting an implied covenant requiring lessors to comply with all prescribed requirements applicable to a relevant lease. Whilst landlords have historically only been responsible for damp and mould caused by a structural defect, and ensuring that a property is fit for human habitation, Awaab’s Law serves to extend that duty further by mandating specific actions and responses within specified timescales.

Phase 1

Phase 1 serves to require social housing landlords to investigate concerns of damp and mould, and to attend to emergency repairs. Phase 2, coming into force in 2026, will extend the obligation to include additional hazards, including excess cold and heat, with the inclusion of further hazards (with the exception of over-crowding) being introduced in 2027.

Given the time taken already for Awaab’s Law to finally reach the statute books, this confirmation is to be welcomed but it is hoped that those operating in the market have already addressed their minds to the changes they may need to implement within their businesses going forwards.

The key obligations coming into force in October are:

• investigate any potential emergency hazards and, if the investigation confirms emergency hazards, undertake relevant safety work as soon as reasonably practicable, both within 24 hours of becoming aware of them
• investigate any potential significant hazards within 10 working days of becoming aware of them
• produce a written summary of investigation findings and provide this to the named tenant within 3 working days of the conclusion of the investigation
• undertake relevant safety work within 5 working days of the investigation concluding, if the investigation identifies a significant hazard
• begin, or take steps to begin, any further required works within 5 working days of the investigation concluding, if the investigation identifies a significant or emergency hazard. If steps cannot be taken to begin work in 5 working days this must be done as soon as possible, and work must be physically started within 12 weeks
• satisfactorily complete works within a reasonable time period
• secure the provision of suitable alternative accommodation for the household, at the social landlord’s expense, if relevant safety work cannot be completed within specified timeframes
• keep the named tenant updated throughout the process and provide information on how to keep safe

Whilst the reference to working days allows landlords some breathing space to respond, it could also result in repairs (and potentially avoidable harm) being delayed due to the intervention of a non-working weekend.

Defences

The duties are not absolute and social housing landlords will have a defence if they can show that they have used all ‘reasonable endeavours’ to avoid breaching the requirements of Awaab’s Law. In other words, it will be a defence for landlords to demonstrate that despite them having taken all reasonable steps to comply with the requirements of the regulations, it has simply not been possible for reasons genuinely beyond their control.

Examples provided within the government’s guidance document include:

• The landlord may not be able to complete work within the timeframes because the building is high-risk and building control approval from the Building Safety Regulator is required before starting works to make the property safe. In this case ‘reasonable efforts’ could be making an application to the Building Safety Regulator as soon as reasonably practicable. Likewise, other approvals and permissions might be needed from external bodies, and the landlord should show that they are taking the appropriate steps to obtain these.
• The landlord may not be able to gain access to the property to complete relevant safety works. For example, the landlord may have made multiple attempts to arrange a time to access the property but has been unable to do so within the given timeframes.
• The landlord may have been unable to source specialist contractors or materials within the required timeframes, but has made reasonable efforts to do so.
• The landlord may have made reasonable efforts to secure suitable alternative accommodation, but there may be no suitable properties which are within a reasonable distance of schools/ places of work or in the local area. In this case the landlord could work with the tenant to identify the best option.

If a tenant seeks compensation from a landlord following an alleged breach of Awaab’s Law, the onus will be on the latter to show why the failure was unavoidable. This will clearly be something which will be determined on a case-by-case basis, but at this stage, it is recommended that landlords retain clear, detailed and unambiguous records of all efforts made to achieve compliance.

What can providers do to prepare?

As touched upon above, it is to be hoped that social housing landlords are already well aware of the imminent changes and are ready for 27 October 2025.

If not done so to date, landlords may also want to address their minds to the following:

• Decanting processes: if there is an immediate risk, or other requirement to move tenants whilst works are undertaken, landlords need to have available empty properties into which to move them. This is likely to cause extreme difficulties for many social housing landlords, who have to balance ongoing waiting lists and limited available housing stock and it is unlikely to be practicable to retain empty properties solely as a decanting resource. An option may be for landlords to re-negotiate their contracts with local authorities to ensure that they retain more control over lettings. An alternative solution is paid-for hotel accommodation, but this will only serve to squeeze already stretch budgets, at a time when increased funding streams appear unlikely.

• Stock condition reports: it would be helpful for social landlords to understand where the risks are within their properties, and the nature and form of those risks. For example, it is accepted that contributory factors for damp and mould include structural issues, poor ventilation and over-crowding. All of these issues ought to form part of the stock condition report, and should therefore be monitored on a rolling basis. Damp and mould are largely seasonal issues and this variance in presentation ought to be taken into account when undertaking condition reports.

• Staff knowledge: it will be helpful for providers to understand where and how concerns are likely to enter their business. For example, first notification may be through a customer contact centre, and if so it will be necessary for customer-facing staff to be aware of the potential hazards being reported by tenants, and how they as representatives of the landlord can help identify emergency repairs – to ensure compliance with the relevant timescales. Staff may require training and education in this regard to ensure that they are alive to possible risks. There also needs to be consideration as to how staff engage with customers and the language which they use when discussing issues arising.

• Escalation processes: once a concern has entered into a business, landlords need processes to be able to respond in a timely manner and in compliance with the above timescales. Where works are required, there needs to be available maintenance and repairing resource to respond. Where these resources cannot be sourced internally, it would be prudent to have procedures in place to ensure that third party contractors can be appointed and are ablet o attend. In this case, it would also be beneficial to implement procedures and monitoring relating to the quality of work undertaken by third parties.

• Record-keeping: in light of the reasonable endeavours defence social housing landlords must be able to demonstrate what steps they have taken on becoming aware of a risk, and in responding to it. This will include attempts to engage with tenants, access properties and adherence to timescales. Should a query be later raised in terms that there has been non-compliance by the landlord, it will only help to have access to this information and data in an easily accessible format.

Conclusion

Despite the time taken for Awaab’s law to finally come into force, the direction of travel has been clear for a long time and although the recently issued guidance is to be welcomed, it ought not to come as a complete surprise to social housing providers.

What remains to be seen is how the application of Awaab’s law develops in practice, and specifically the extent and circumstances which will satisfy the reasonable endeavours defence. It is inevitable that case law will develop around this issue, and additional guidance may be required in due course.

Whilst the new obligations are clear, they will undoubtedly create real and practical difficulties for landlords: the resources to respond and comply with the new timescales must be secured. Compliance with Awaab’s Law will be a challenge but must nonetheless be a priority for providers going forwards. This may mean that other aspects of the landlord’s operations have to be de-prioritised by an equivalent amount, which may only serve in the long-term to prejudice those whom Awaab’s Law is designed to protect – the tenants.

Calls for a ‘Hillsborough Law’ and increased accountability of public servants have been voiced for many years.  However, despite a number of independent inquiries and investigations, litigation and even draft legislation being prepared, progress towards a statutory duty has been slow.

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that progress might now have been made.

His draft Public Authority (Accountability) Bill (also known as Hillsborough Law), prompted by his involvement with the Hillsborough families, would have required public authorities to be open, transparent and honest and to admit responsibility following public disaster and mass casualty incidents, potentially even before court proceedings had been intimated.

That Bill was put on hold following the snap General Election in May 2017, and the recent Conservative government stepped back from introducing a statutory duty, establishing instead the Hillsborough Charter.

However, the King’s Speech has confirmed that the current Labour government intends to proceed with the introduction onto the statute books of a Hillsborough Law. At his first Labour Party conference as Prime Minister, Sir Kier Starmer, also promised that a ‘Hillsborough law’ will be introduced in Parliament before the next anniversary of the 1989 football stadium tragedy in April 2025.

What will Hillsborough Law say?

There is currently no draft legislation before Parliament, but it is likely that any future wording will closely mirror the above-mentioned Public Authority (Accountability) Bill. That draft legislation proposed establishing a statutory duty of candour, requiring public authorities, public servants and officials to:

• act at all times in the public interest and with transparency, candour and frankness, and to detail the measures taken to further to these objectives in a published Code of Ethics;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

The draft Bill proposed that ‘public authority’ be given the wide-ranging and inclusive definition: “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

To ensure compliance with the proposed duties, it was suggested that new offences be created for failure to discharge the duty, punishable by a fine and/ or custodial sentence.

Offences would also be committed by public servants, if they intentionally or recklessly misled the general public, the media or proceedings. In addition to an organisation’s offending, individuals would also be liable if by their acts or omissions they hindered their authority’s compliance with its the duty.

Parity of funding

Hillsborough Law also suggests that bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly-funded legal assistance and representation at the same level, or in proportion to, the resources available to the public authority, to ensure a parity of arms.

What could this achieve?

When introducing the initial draft of what is now the Hillsborough Law back in 2017, Andy Burnham summarised the motivation as “simple”:

“It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

Hurdles to implementation

However laudable the aims may be of seeking to level the playing field between bereaved families and well-funded public authorities during investigations into mass casualty events, there are serious and fundamental procedural questions which need to be addressed before for any such duty can achieve its intended objective.

Primarily, it remains unclear exactly what is intended by ‘candour’ other than a general duty to be open and honest. In any event there is an inherent tension with a potential defendant’s right to silence: where someone asserts that right, they are unlikely to be guilty of lacking candour – and to hold otherwise would fundamentally undermine well established principles of criminal justice. However, the idea that any assertion of the right of silence should be subject to third party scrutiny or assessment of reasonableness is seismic to say the least.

Another difficulty is that until draft legislation is available for comment, proposals for a Hillsborough Law leaves open to interpretation the definition of a public tragedy. The answer may be that the public will know a tragedy when they see one, but the definition cannot simply be determined by the number of people injured or who have died. To set any such arbitrary distinction risks severe unfairness and injustice.  In addition, any pledge in terms of activation of an emergency plan and deployment of resources to support the bereaved is perhaps only a restatement of the current emergency services framework and is not really an extension of the existing procedures already in place.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years and continuing austerity generally begs the question: where will the money come from?

Interestingly, the 2017 Bill proposed a limit on the legal spend of public authorities in responding to inquests and inquiries, the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

Also, it is often extremely difficult at the outset of an inquiry or inquest to estimate the overall costs that may be incurred. Were a cap to be introduced in responding to any such proceedings, the basis for this would need to be carefully considered, to ensure that all parties are capable of achieving full and proper advice and representation.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in fine imposed.

Whilst there may be a very strong moral imperative for public servants to be open and honest following tragedies, absent a ‘stick’ with which to enforce compliance and punish breach, there remains a question as to how compliance will – or even can – be enforced.

However, there does not appear to be any comparable or tangible ‘carrot.’ In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant to further investigation is likely to consider themselves caught between a rock and a hard place.

Conclusion

Whilst it now appears that progress will be made towards establishing a statutory Hillsborough Law, which will be welcomed by many and may be seen as going some way towards addressing the concerns and queries raised by the families following that disaster and subsequent litigation, there are equally fundamental questions and clarifications which are required to be openly debated before any proposed legislation can be enacted.

The law does not operate in a vacuum and were the Hillsborough Law to be enacted in the terms previously suggested in 2017, this would cause significant tension within the criminal justice system and simply could not be imposed unilaterally without detailed and considered consideration of parallel issues which would be naturally flow from the proposals.

If Hillsborough Law is to become a reality then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.

Care Quality Commission (CQC) inspections have fallen to their second lowest level in almost 10 years, as the day-to-day regulatory function of the public body continues to lag behind pre-pandemic activity.

According to new data, physical inspections by the CQC have dropped from a peak of almost 23,000 in 2016, to just less than 8,000 in 2023 – a marginal increase on 2020 figures, which showed that 7,711 inspections were carried out during the height of the COVID-19 pandemic.

Of the 107 inspections with an overall rating of ‘Requires Improvement’ or ‘Inadequate’, only four have resulted in completed and published full Quality Statement reviews.

The fall in inspections also coincides with the commencement of the CQC’s new operating model, which may account for some of the reduction.

Bill Dunkerley, regulatory associate partner at Pannone Corporate, which conducted the annual research under the Freedom of Information Act, commented: “Despite the fanfare and extensive publications to promote its introduction, the CQC’s new regulatory model has had something of an inauspicious start.

“The regulator was hopeful that its new approach would enable it to be more dynamic in its assessment of services, and permit more contemporaneous data collection to take place. Far from becoming a more proactive, dynamic and responsive agency, as the data shows, the CQC is becoming more sedentary in its approach.”

The research shows that despite an increase in the number of concerns being received by the CQC, the total number of regulatory actions taken by the Commission has fallen year-on-year and currently sits at around half of pre-lockdown levels (10,618 in 2019; 5,783 in 2023). Although there was a clear drop-off in the number of regulatory actions in 2020, figures have remained consistently low since then, compared with upwards of 15,000 each year in the period following the CQC’s receipt of enhanced powers in 2015.

In addition, the use of warning notices has dropped significantly, from a peak figure of just over 1,500 during 2015 to less than 600 in 2023. Despite a flurry of prosecutions over the last few years, the annual figures also show that prosecutions are decreasing rapidly. There are currently 121 open criminal investigations concerning specific incidents or unregistered providers.

Dunkerley added: “To be an effective regulator going forwards, and one with real teeth, the CQC has to combine its new inspection and assessment framework with meaningful regulatory activity. Whilst to date, the CQC could have been seen to be relatively proactive – undertaking inspections of providers at fairly reasonable intervals – an inherent danger within its ‘data-driven’ approach is that this may result in it becoming reactive, as recent data perhaps tends to indicate.

“At the end of the day, the CQC’s new regulatory model does not change its investigatory and enforcement powers. The latest figures suggest that either the CQC is becoming less active, or is achieving compliance by providers without the need to resort to use of its enforcement powers.”

Following Pannone Corporate’s Freedom of Information Act request to the Care Quality Commission (CQC), regulatory associate partner, Bill Dunkerley, looks in more detail at what the statistics tell us and asks: what next for the CQC? Read more here:

What next for the CQC

Pannone Corporate – the North West law firm – has expanded its team with the senior appointment of David Walton.

David joins Pannone’s regulatory team as partner, bringing over 30 years’ experience to the role. He joins from Keoghs LLP, where he played an instrumental role in establishing the crime and regulatory team, working throughout his career on high profile prosecutions instigated by the CPS, HSE, Environmental Health and the Environment Agency.  This includes the CPS-led prosecution following the death of four employees in the Bosley Mill (Macclesfield) explosion in 2015.

At Pannone, David will be responsible for supporting corporate and individual clients facing investigation and/or prosecution by a raft of bodies, including the Police, the HSE, CQC, CIW and Trading Standards, following serious work place accidents or incidents. He will work alongside associate partner Bill Dunkerley to promote the regulatory team’s capabilities to existing and new clients of Pannone Corporate.

Paul Jonson, senior partner at Pannone, said: “Client services is an integral part of our proposition as a firm and that can only be delivered by a highly skilled and talented team. We continue to build our expertise at all levels and David’s appointment is a significant hire – not only for the regulatory team, but the firm as a whole.

“David has an excellent reputation within the marketplace, consistently being ranked as a ‘leading individual’ by Legal 500 and Chambers rankings. He has a wealth of experience in handling heavyweight health and safety prosecutions over a hugely successful career and we’re delighted to have him onboard.”

David said: “I have enormous respect for the Pannone Corporate brand and for the people who have established it over a relatively short period of time.

“I believe my professional and personal background, and my approach to workplace life, is ideally suited to the Pannone culture and to the people who work there. Bill Dunkerley was my assistant for several years when he worked at Keoghs and it’s exciting for both of us that we have the opportunity to work together again. Many of our clients and peers have commented that it is great to see the ‘Dave Walton/Bill Dunkerley team’ back together again!”

Commenting on the sector, he added: “Traditionally, regulatory lawyers are called into action when a client is in distress. Whilst that will undoubtedly continue, I believe the sector will carry on evolving in line with the HSE’s own strategy for the next 10 years, which includes an increased focus on the prevention of accidents. As a result, there will be considerable opportunities for the team to support clients in improving what they already have in place, stress testing systems and procedures and reinforcing key aspects of employee training.”

The results of Pannone Corporate’s 2023 Regulatory survey are in!

Earlier this year we invited responses on a number of issues, to gauge the current concerns and anxieties within businesses as to their compliance obligations and worries for the coming year.

Responses continue to be received, although at this early stage a number of clear trends have already started to emerge.

What EHS issues are currently causing the greatest concerns for businesses?

By far and away the most common concern for recipients of the survey is the issue and impact of sustainability, with 75% of respondents highlighting this as an area of current concern for them and their business.

• Much commentary has already been prepared as to the increasing awareness and presence of sustainability as a concept, and we consider that the focus on re-use, recycling and drive towards a circular economy will continue to pervade all aspects of day-to-day business operations, across sectors.
• We have already started to see claims in the UK against Boards regarding the accuracy of their green credentials, and this area only looks set to further dominate business attention over the coming months and years.

Of almost equal concern amongst respondents to our survey (62%) was their ability to attract and retain quality staff.

• This is an issue which may have its roots in Brexit, but which has likely been exacerbated by global events since 2020. In our experience, employees are now more conscious of issues arising within their working environment and less likely to accept conditions that may be prejudicial to them.

However, somewhat surprisingly, less than 40% of respondents ranked employee wellbeing as a current concern for their business.

• Despite recent emphasis on employee wellbeing within the wider media, and an express intention by the Health and Safety Executive in its current Business Strategy to address workplace stress, on a practical level it does not appear that this external pressure has translated into a significant business priority at this time.
• It is only a matter of time before enforcement action is taken in connection with employee wellbeing, and it is hoped that businesses address their mind to this growing area sooner rather than later.

What has had the biggest impact on EHS?

A clear concern amongst respondents to our survey is confusion caused around the introduction of new legislation, the extent to which new regulations will apply to them and the potentially limited guidance available from central Government in respect of discrete issues, with one respondent stating a desire for, “plain and simple,” language to be used.  For regulations and guidance to be effective, they need to be capable of understanding and comprehension by recipients.

Added to this, the still unknown impact of the Retained EU Law Bill is continuing to cause anxiety for many respondents to our survey, with a number highlighting this as a concern for the immediate future.

The draft Bill continues to work its way through Parliament but, if enacted in its current form, risks removing overnight the majority of EU-derived workplace regulations, including the Working Time Directive, Work at Height Regulations and CDM. Were this to occur, it would have a seismic impact on all businesses and would fundamentally change the nature of workplace regulation.

How can businesses prepare?

The world of workplace and business regulation has been evolving over a number of years, and global events since 2020 have accelerated this change. For example, not only has there been an increase in the number of matters subject to regulation, but the manner and methodology by which regulators discharge their functions has also had to be revised.

These changes look set to continue, and what is clear from the survey responses is that businesses appear to be less concerned with traditional compliance issues and physical health and safety and are currently focused instead on novel issues.

No one can predict the future, but the recent shift in the nature of workplace compliance looks set to continue and businesses should take steps to embrace these changes.

As Lord Robens suggested in his 1972 report, which laid the foundation for the Health and Safety at Work etc Act, what he considered was required was a “greater acceptance of shared responsibility, for more reliance on self-inspection and self-regulation and less on state regulation.”

Going forwards, we consider that rather than businesses addressing their mind to specific risk as they arise – as may have been the case in respect of traditional health and safety concerns and risks to physical safety – what the world of workplace compliance increasingly requires now is a holistic approach.

For example, in respect of employee wellbeing, provision of workplace perks is unlikely to be sufficient on its own. Whilst such measures will usually be appreciated by a workforce, what is of increasing importance is the condition of their entire employment relationship, including in respect of management culture, monotony of daily routines and efficiency of IT systems.

When Andy Burnham, then MP for Leigh, proposed a statutory duty of candour for public authorities back in 2017, he no doubt hoped that progress might now have been made. His draft Public Authority (Accountability) Bill, prompted by his involvement with the Hillsborough families, would have required public authorities to admit responsibility following adverse and mass casualty incidents, potentially even before court proceedings had been intimated.

That Bill was put on hold following the snap General Election in May 2017, but calls for progress have recently been reinvigorated following the introduction of similar duties within the healthcare sector, as well as a number of high-profile incidents, including the Grenfell Tower fire and, more recently, the inquest touching upon the death of Awaab Ishak.

Statutory duty of candour

During a public discussion held in Manchester last month, Mr Burnham supported calls for the playing field to be levelled between bereaved families on the one hand, and well-resourced public authorities on the other during investigations into mass casualty events. It appears that this objective has been borne out of disquiet that, despite the extent of investigations prior to the second Hillsborough inquest, neither the coronial nor criminal justice system had been able to reveal the cover-ups which subsequently came to light.

The ‘Hillsborough Law’ which is proposed would establish a statutory duty of candour, requiring public authorities, public servants and officials to:

• act at all times in the public interest and with transparency, candour and frankness, and to detail the measures taken to further to these objectives in a published Code of Ethics;
• assist court proceedings, official inquiries and investigations where their own acts or omissions are (or may be) relevant; and
• disclose information which may change the scope of any proceedings, inquiry or investigation.

It is proposed that ‘public authority’ be given the wide-ranging and inclusive definition: “any national or local government department… institution or agency engaged in functions of a public nature… [this] includes entities with a private structure but which are majority owned by public funds.”

To ensure compliance with the proposed duties, it is suggested that new offences be created for failure to discharge the duty, punishable by a fine and/ or custodial sentence.

Offences would also be committed by public servants, if they intentionally or recklessly misled the general public, the media or proceedings. In addition to an organisation’s offending, individuals would also be liable if by their acts or omissions they hindered their authority’s compliance with its the duty.

Parity of funding

Hillsborough Law also suggests that bereaved families and ‘core participants’ at inquiries and inquests be entitled to publicly funded legal assistance and representation at the same level, or in proportion to, the resources available to the public authority, to ensure a parity of arms.

What could this achieve?

When introducing the initial draft of what is now the Hillsborough Law back in 2017, Andy Burnham summarised the motivation as “simple”:

“It [is]…to protect other families from going through what the Hillsborough families went through and from a similar miscarriage of justice. It empowers victims to secure disclosure of crucial information and prevent public authorities from lying to them or hiding the truth by making that an imprisonable offence… it creates a level legal playing field at inquests for bereaved families so that finally inquests become what they should always be – a vehicle to get to the truth.”

When can we expect a change?

First introduced in 2017, the Bill’s progress was thwarted by the dissolution of Parliament for the General Election in May of that year.

The Law Commission has consulted generally on the offence of misconduct in public office, providing its final report in December 2020, which concluded that the offence should not be retained in its current form. Specifically the Commission recommended repeal of the offence and its replacement with two separate offences, being:

• An offence of corruption in public office, applicable when a public office holder knowingly uses, or fails to use, the public position for the purpose of achieving a benefit, where that behaviour would be considered seriously improper; and
• An offence of breach of duty in public office, which would apply where a public office holder is subject to and aware of a duty to prevent death or serious injury that arises only by virtue of the functions of the public office, where there is a breach of that duty and in so doing the person is reckless as to the risk of death or serious injury.

The Government’s response to the Commission’s report is awaited, and it does not therefore appear that there is any current appetite within government to progress the proposals.

By contrast, Labour have publicly stated that the Hillsborough Law will form part of its next election manifesto and it will introduce relevant legislation is if is elected.

Public Advocate Bill

Some progress may have been made towards the general aims of ensuring parity between bereaved families and public authorities with the introduction last summer of the Public Advocate Bill, which has received its first reading in the House of Lords. A date for its second reading is awaited.

The current draft of the Bill proposes the establishment of a Public Advocate office, which would have responsibility for reporting to bereaved families regarding the progress of criminal and inquisitorial investigations into casualty events, to set up a panel to review all documentation relating to the event if requested, and publish a report following its review of such documents. Again, the objective is to minimise the potential for cover-ups and permit full analysis of the facts at the earliest opportunity.

Comment

To date there is little clarity as to what exactly is meant by the term, ‘candour,’ and the precise scope of the proposed Hillsborough Law remains unclear. Certainly we would not expect any duty to require criminal suspects to make admissions prior to appearing before the Court: that would fundamentally undermine the criminal justice system.

A similar proposal in Scotland has recently been rejected by the Scottish Government, on the basis that it considers the existing legal framework to be, “robust,” and has dismissed further specific legislation as, “unnecessary.”

Questions will also arise as to the tension between the requirement for candour and the right to silence in the criminal process. Where someone reasonably asserts that right, they are unlikely to be guilty of lacking candour. However, the idea that any assertion of the right of silence will be subject to third party scrutiny is seismic to say the least.

The proposal to extend legal assistance to bereaved families is likely to receive widespread support. However, the very significant cuts to the legal aid budget in recent years and continuing austerity generally begs the question: where will the money come from?

Interestingly, the 2017 Bill proposed a limit on the legal spend of public authorities in responding to inquests and inquiries – the logic being that the requirement for them to ‘come clean’ at the outset will reduce the length of investigations and thereby ensure costs savings for all. Any such limits may however fetter the ability of public authorities to fully and properly articulate their case when responding to investigations.

Also, it is often extremely difficult at the outset of an inquiry or inquest to estimate the overall costs that may be incurred. Were a cap to be introduced in responding to any such proceedings, the basis for this would need to be carefully considered, to ensure that all parties are capable of achieving full and proper advice and representation.

In addition, of the organisations which have to date voluntarily accepted responsibility in the immediate aftermath of adverse incidents, there has been little acknowledgement of their acceptance or explicit reduction in the fine imposed.

For example, Sentencing Guidelines for health and safety offences are stated to be punitive and designed to send a message to shareholders. To this end they can therefore be seen as a ‘stick’ to encourage early admissions and prompt acceptance of responsibility.

However, there does not appear to be any comparable or tangible ‘carrot.’ In the absence of an acknowledged benefit or (financial) incentive for being candid, a potential defendant to further investigation is likely to consider themselves caught between a rock and a hard place.

Conclusion

Despite the suggestions for improvement which have been highlighted by bereaved families over recent years, the enactment of a statutory duty of candour appears low on the Government’s priorities at the current time.

If the proposed Hillsborough Law is to become law then there needs to be careful consideration of the potential, but significant, implications to ensure that there is genuinely fairness to all parties concerned.