The Pre-Action Protocol for Housing Disrepair: a surveyor's guide

What it is

The protocol most people mean when they say “the housing disrepair protocol” is the Pre-Action Protocol for Housing Conditions Claims (England). It is one of the pre-action protocols under the Civil Procedure Rules (CPR) — the rules that govern what parties must do before a claim is issued in court. It replaced the older Pre-Action Protocol for Housing Disrepair Cases (Wales kept a separate version).

Its purpose is narrow and practical: get information exchanged early, push the parties toward a settlement without litigation, keep expert and legal costs proportionate, and — where a claim can't be avoided — make sure the case is ready to be managed efficiently. Courts expect the protocol to have been followed, and can penalise a party (in costs) for not following it.

Who and what it covers

It applies to claims by tenants and other occupiers against landlords about the condition of residential premises — both social and private landlords. That includes claims grounded in:

• Section 11, Landlord and Tenant Act 1985 — the landlord's repairing covenant for the structure, exterior and installations.
• Section 9A, Landlord and Tenant Act 1985 — the implied term that the dwelling is fit for human habitation, inserted by the Homes (Fitness for Human Habitation) Act 2018 and assessed by reference to HHSRS hazards. (The protocol was revised specifically to take in s.9A claims — it was previously the Pre-Action Protocol for Housing Disrepair Cases.)
• Section 4, Defective Premises Act 1972 — the duty owed where the landlord knew or ought to have known of a relevant defect.
• Common law nuisance and negligence, and express or implied tenancy/lease terms — the protocol also covers claims on these bases.
• HHSRS hazards — damp and mould, excess cold, falls, fire and the other Housing Health and Safety Rating System categories increasingly drive these claims (see our HHSRS assessment template).

One thing it does not cover: statutory nuisance claims under section 82 of the Environmental Protection Act 1990 (those go to the Magistrates' Court and sit outside this protocol). For the surveyor the headline is simple: you are being asked for an independent opinion on whether reported defects exist, what caused them, whether they fall within the landlord's obligation, and what it costs to put them right.

The stages

The protocol runs as a sequence. Exact timescales are set out in the published protocol and can be amended — treat the day-counts below as the framework, and verify against the current text (linked at the foot of this page) for any live matter.

1 · Notice of disrepair

The tenant reports the defect to the landlord. The date and manner of notice matters: for many repairing obligations the landlord's liability runs from when it knew (or should have known) of the defect. That notice date becomes a key fact you will be asked to record. Where the situation is urgent the protocol allows a short early-notification letter before the full Letter of Claim; otherwise the Letter of Claim is the formal opening step.

2 · Letter of Claim

The tenant's representative sends a Letter of Claim to the landlord. It sets out the tenant and property details, a schedule of defects (the protocol provides a template), the defect history, the effect on the household, any personal injury and special damages, the works said to be required, the proposed expert and a draft letter of instruction, and a request for disclosure of specified documents. The expert's report is normally annexed or follows shortly after.

3 · Landlord's response and disclosure

The landlord acknowledges and then provides a full written response together with disclosure of relevant records — the tenancy file, repair and works history, complaint logs, gas safety and inspection records. The protocol sets a response window (at the time of writing, 20 working days from the Letter of Claim, with receipt deemed two days after the date of the letter — confirm against the current protocol). Urgent health-and-safety risks, an interim injunction, or the need to preserve evidence can justify instructing the expert early rather than waiting on the full timetable.

4 · Expert evidence

The protocol expresses a strong preference for a single joint expert (SJE) to keep costs proportionate. If the landlord doesn't object within its response window, the expert is instructed as SJE on the tenant's proposed instructions. If joint instructions can't be agreed, the parties send separate instructions to the same single joint expert, or arrange a joint inspection by their own experts at the same time. Cost follows the route: for a single joint expert each party pays half the cost of the inspection and report; where each instructs its own expert, each pays its own in full.

The protocol also drives the surveyor's timetable: at the time of writing, the inspection should take place within 20 working days of the landlord's response, and the expert's report should follow within 10 working days of the inspection (again, confirm against the current protocol — these are the relevant deadlines for your own diary).

5 · Stocktake, settlement or proceedings

Before issuing, the parties are expected to review their positions ("taking stock") and to have considered alternative dispute resolution — the court can require evidence that ADR was considered. Most cases settle here. If they don't, proceedings are issued and your report — with its schedule of works in Scott Schedule form — becomes the substantive expert evidence.

Where the surveyor fits

Most often you'll be instructed as the single joint expert. The single most important thing to internalise: under CPR Part 35 your duty is to the court, not to whoever pays your fee. That duty overrides any obligation to the instructing party, and it must be visible in how the report reads.

What you are actually being asked to do:

• Inspect and identify each item of disrepair the claim relies on, plus anything material you find.
• Determine cause. This is where cases are won and lost — particularly damp and mould, where the landlord will argue condensation/lifestyle rather than a penetrating or rising-damp defect within its obligation. Your reasoning on causation has to be explicit and defensible.
• Locate it in the obligation. Is the defect within s.11, the fitness implied term, the Defective Premises Act duty? An item outside the landlord's obligation doesn't belong in the schedule of works.
• Specify and cost the remedial works — item by item, with costings that will survive challenge.

The protocol expects the expert to identify the defects, their cause, the works needed, an estimate of the cost of those works, and to flag any urgent works. The report must be CPR Part 35 compliant to be usable — the protocol's model instructions expressly direct the expert to comply with Practice Direction 35 and the Guidance for the Instruction of Experts in Civil Claims (2014). In practice that means: the expert's overriding duty to the court, the statement of truth in the prescribed form, the expert's declaration, a statement of the substance of your instructions, your qualifications, and a fair statement of any range of opinion where the question isn't clear-cut. A report missing these can be excluded — the worst outcome for everyone, including you.

The schedule of works and the Scott Schedule

The protocol itself calls this a schedule of disrepair / schedule of works and gives a template for it; "Scott Schedule" is not a term the protocol uses. The Scott Schedule is the litigation format that schedule takes once the matter is in (or heading for) proceedings — the columnar, item-by-item table the court works through: the defect and the claimant's case and cost in one set of columns, the defendant's response and cost in the next, and a column reserved for the judge. It is the document the parties negotiate line by line and the judge ultimately rules on, so getting your schedule of works into clean, exportable form early pays off.

A vague or unusable schedule draws court criticism and delay. Our Scott Schedule template produces the columnar court format and exports to Word for the bundle.

Common pitfalls

• A report that isn't Part 35 compliant. Missing declaration or statement of truth is the classic own-goal — the report gets excluded and the instruction is wasted.
• Costings that won't survive challenge. Unsupported round numbers invite the other side's expert to pick them apart. Show your basis.
• Causation left implicit. Especially on damp and mould: if you don't expressly deal with condensation versus a defect within the obligation, you've left the landlord's best argument unanswered.
• Straying into advocacy. Arguing the instructing party's case rather than giving an independent opinion breaches the Part 35 duty and destroys your credibility with the court.
• A schedule that isn't in usable Scott Schedule form. It delays the case and draws judicial criticism.

How SurveyorSuite fits this workflow

The Housing Disrepair report template is built around this protocol: the statutory hooks (s.11, fitness, Defective Premises Act), notice-date capture, causation and HHSRS impact per item, costed remedies, and a CPR Part 35 declaration in the report. It works for both tenant-instructed and landlord-instructed (and single joint expert) reports. The Scott Schedule template produces the columnar court format the schedule of works ends up in, and where the claim turns on housing conditions the HHSRS assessment template covers the hazard analysis. You stay the named expert — the software handles the structure and the formatting, you provide the judgement and sign off.

See the Housing Disrepair template →