14/01/2007

Social landlords seek to avoid disrepair claims. No repairs involved.

Searching for something else entirely, I stumbled across a press release from the Social Housing Law Association detailing their representations to the DCA on funding for disrepair claims, made late last year. Headed “Move to repel tenants’ bogus disrepair claims”, the report says that the SHLA made representations to the DCA to have the Public Funding eligibility cut off for a disrepair claim raised from a claim value of £1000 to £5000 because “It would make it five times more difficult for tenants to access public funding for disrepair claims” and in this way “the majority of tenants making claims for disrepair should be shunted into the small claims court to prevent them from claiming legal aid”.

Naturally it is in social landlord’s interests for this to happen, and the real reason for the proposals was perhaps made clear as “Quentin Paterson, a solicitor and committee member of the SHLA, said increasing the limit should lead to a large fall in the legal costs that social landlords pay to claimants’ solicitors.”

It is worth taking a closer look at some of the SHLA’s assertions.

Firstly, ‘bogus claims’? Given that an expert’s report – ideally a single joint expert – is a necessary part of the Pre-Action Protocol, any issued claim will, of necessity, be on the basis of actual disrepair. If there is dispute about duration and notice, then the Housing Association should be able to rely on their own records, assuming, of course, that they are at all competent. How is the claim bogus?

I would be delighted if the SHLA cared to put forward figures on ‘bogus claims’ and a description of what constitutes a bogus claim. Until then, I’m very sceptical.

Secondly, this level of £5000. General damages in a disrepair claim take the rent payable as a basis for assessment of quantum, considering diminuition of value of the tenancy. For social housing, weekly rent is typically £70 or £80 per week, giving an annual rent in the region of £3500-£4000. If we assume a really serious level of disrepair, such that the Court would give a 100% diminution of value, that had been going on for a year since the landlord was notified of the disrepair, then general damages would still be less than the £5000 proposed by the SHLA even for a full year. Such a serious level of disrepair would mean that the property was effectively uninhabitable, and would quite possibly be suitable for an application for interim injunction for immediate repairs. Nonetheless, for the SHLA, it shouldn’t be eligible for public funding if damages and repair value together were less than £5000.

Thirdly, the SHLA’s approach seriously misunderstands the current basis for awarding public funding. A claim for ‘compensation only’ has to be over the £5000 threshold currently, but also in actuality has to be of a potential level to meet a ratio of at least 2:1 claim value to likely costs, meaning some way over £5000 as a starting point in any case. However, a claim primarily for enforcement of repairs does not necessarily need to show the value to costs ratio. I find it very hard to see how a claim primarily for enforcement of repairs could be ‘bogus’. So the SHLA’s position would remove the most urgent cases where repairs needed enforcing from eligibility for public funding, whilst not actually affecting the compensation only cases. That is nonsense.

Small claims would be virtually impossible for a tenant – they couldn’t afford the expert’s report, just for starters. This is what the SHLA want, of course.

Frankly, I think that these representations to the DCA are more than somewhat cynical. If the housing associations are upset that they “were forced to devote considerable expense and staff time if they wished to resist claims”, the answer is fairly simple. Do the repairs within a reasonable time. Granted, some social landlords are lumbered with poorly built and decaying housing stock, and I have some sympathy with them on that basis, but attempting to make it difficult for people to make valid claims against them is not the solution.

As a postscript, it is worth noting that the Disrepair Pre-Action Protocol was introduced precisely to reduce the need for claims to be issued. Public Funding can be awarded to tenants to take the protocol steps. If social landlords were serious about reducing the amount of staff time and costs to tenants’ solicitors involved in disrepair claims, then they could avoid many claims by actually following the protocol. In my anecdotal experience, they tend to be atrocious at doing so, often doing nothing until a claim is issued.

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

9 Comments

  1. A housing lawyer

    I came across this comment while looking at something else on the site, but now I am here: I have both brought and defended these claims for many years. Few of them have any actual merit, as most tenants have not complained to their landlord about the state of their property. Even if they have phoned once or twice, they have very rarely made a written complaint. The Surveyors’ reports I see might list many defects of which the tenant is not even aware. And most defects listed have not caused any actual damage. Claims farming solicitors have tried to make an industry out of fleecing local authority and social landlords, but fortunately they have been defeated in all the cases I have worked on, at great cost to them and their insurers. However, they have left many disadvantaged tenants in debt and the solicitors themselves have suffered, all because the tenants did not make a formal complaint about the state of their property and felt they might make a quick buck from suing their landlord. This type of action brings lawyers into disrepute – ambulance chasing of the most lamentable kind

    Reply
  2. contact

    Interesting comment. I’d rejoin on a few points, though.

    First why is telephone notice lesser notice (apart from evidence, obviously)? The landlord is given notice, so…

    Where there is no notice given by the tenant, we wouldn’t touch the case, for obvious reasons. Not even tempted. Given the tendencies of the Courts at present, it is tricky going for a period of disputed notice on top of a period of uncontested notice, let alone asserting unevidenced notice tout court.

    The tenants are often unaware of the substance of the disrepair, agreed, but they are not surveyors. The tenants usually identify symptomatic issues, rather than a causative underlying issue, for instance. But I’d agree tenants misidentify matters all the time – if only I had a tenner for every time I’ve heard ‘damp’ and thought ‘condensation’. (We’d be very unlikely to go with a solely ‘damp’ claim where it sounded like condensation, it probably wouldn’t go as far as getting the expert in).

    As for the ambulance chasers – remember the point of the post was about the SHLA proposals to increase the legal aid cut-off. This was not about claim farming and CFA merchants, but about cases that currently won’t even get funding past the Pre-Action Protocol stage without a decent expert’s report. No success fees and at best inter-parte rates. In my experience, admittedly less than yours, it is hard to push a bogus claim past the LSC.

    You more or less make my point about bogus claims – it has been tried, and largely failed. The SHLA wants to blame legal aid funding for them, not the CFA brandishing ambulance chasers. Wrong target.

    The result – the Claims farmers will pick up more clients who can’t get public funding for claims that the more unscrupulous are willing to exaggerate in value to the client, while very real claims whose primary purpose is the enforcement of repairs (but which are worth less than £5K) go by the wayside.

    The most bewildering part of the SHLA proposals is that it is shooting themselves in the foot in terms of their own income. I can only believe it was an attempt to curry favour with their clients and shift the blame for their own costs.

    Reply
  3. Bella Darling

    I lived in a housing assocation basement rental sewer with a market value of £45,000. I was deprived of heat and hot water for 38 months, toxic black mold, fungal spores, gaps where you could see into the wall cavities, damp in excess of 90%, lethal electrics, constant episodes of flooding from corroded copper pipework which had been laid in concrete, crumbling interior and exterior masonry, unsanitary pipework, leaks and stains from upstairs flats etc. Independent professional evidence supports my case. My claim is going to be well above the £5,000 mark because I am going for a human rights violation too and personal injury and failure of the landlord to address harassment issues, the landlord being guilty of harassment too my harassing me over trivia like twiglets from a bay tree which was their property anyway. The bullies within these housing associations are toxic narcissists who will try and use all sorts of treachery to escape paying out, but tenants living in sub standard toxic properties, I beg you do not back down or back off, because some of these landlords should be behind bars with the keys thrown away and some of the lawyers too. And avoid lawyers who have a conflict of interest of which there are many. Arrogance hides a multidute of sins including failing to turn up at court, failing to get documents in to court on time, being accused by a Judge of gross negligence and severely breaching pre-action protocol and that one of the documents put before the Judge being a forgery to cover the lawyers incompetence and failing to put crucial evidence before the Judge. Choose your solicitor well and DO NOT BE BAMBOOZLED. This is 2012 and tenants have Human Rights too. Afterall, tenants pay the landlord’s mortgage!! Never forget that. These toxic landlords who might be under the impression that their tenant is vulnerable will use all sorts of excuses for their neglect of your home. I was eventually evicted from a property that did not belong to the landlord and had been a tenant for 25 years and was dumped from one Class 1 Hazard Property to another one. But I am still on the case until I have my landlord in the dock! So watch this space!

    Reply
    • vikki ramsay

      Has anyone any information as to case law concerning non room sealed internal manhole covers?

    • NL

      Err, no.

    • simplywondered

      you really are useless, arentcha!

    • vikki ramsay

      No, just unpracticed in the field of expertise I am currently investigating, hence the question!

    • NL

      It is OK – Simplywondered meant me!

  4. vikki ramsay

    Oh…LOL! OK.

    Reply

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  1. shlep: the Self-Help Law ExPress » Blog Archive » UK p/i lawyers oppose increase in small claims limits - [...] http://nearlylegal.co.uk/archives/126 [...]
  2. Small claims limits unchanged | nearlylegal - [...] As regular readers may recall, the limit for disrepair claims to fall into small claims was under review. Proposals…

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