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.