I’m going to break one of our rules (well, more of a guideline really) and comment on a case in which I had a role. I supervised the case, in which one of my colleagues acted for the claimant. It is also a report on a settled County Court claim, so not binding or authoritative in the slightest. But it does involve some interesting issues about the relation of Housing Ombudsman’s decisions (and value of awards) to housing conditions claims.
Plunkett v Clarion HA. County Court at Central London
Ms Plunkett was an assured tenant of Clarion, on the Eastfields Estate. She began a claim for disrepair and unfitness for human habitation while in temporary accommodation in a hotel. The defects complained of were primarily leaks to the interior of the flat and outside the front door causing interior damp, significant mould growth, leaks from above, non-functioning ventilation to kitchen and bathroom, and infestation of mice, for periods of two to four years. The existing issues and unfitness for human habitation were confirmed in an independent expert report. Clarion had refused to agree a single joint expert.
Ms Plunkett had raised a complaint with the Housing Ombudsman before instructing solicitors on a claim. The Ombudsman adopted a new policy that a complaint would not be stopped if solicitors were instructed if the claim was still in the pre-action protocol stages.
In December 2021, the Ombudsman delivered a decision finding serious maladministration by Clarion in its response to Ms Plunkett’s complaints. The Ombudsman made an award of £3092 (including compensation previously offered by Clarion) and required Clarion to apologise (no apology has been made). Clarion then stated that the Ombudsman’s decision determined the case. In the meantime, Ms Plunkett had accepted a transfer to another property.
Ms Plunkett replied that the claim proceeded, as the Ombudsman’s decision expressly stated:
it is not the Ombudsman’s role to make a determination on matters in the same way as the courts, such as the impact on health and liability for damages, as this is not in our expertise and jurisdiction. The Ombudsman’s role when considering complaints is to assess whether the landlord appropriately considered matters within the timeframe of the complaint, and reasonably applied its policy and procedure, complied with any relevant legislation and followed good practice when reaching decisions.
In the absence of further response, the claim for damages only for disrepair and unfitness for human habitation was issued.
Clarion defended on the basis that the Ombudsman’s decision was final and that there was no notice of most of the issues. Ms Plunkett applied to strike out the defence on the basis that it was not made with an honest belief in its truth, given the documents and the Ombudsman’s findings on the history.
After an exchange of offers the claim was settled in November 2022 for an additional £10,000 for general and special damages over the Ombudsman’s award, and costs.
Comment
While this is just a settled County Court claim, there are points here on the overlap between Housing Ombudsman’s decisions and housing conditions claims.
Given that the Ombudsman’s decision does not address
matters in the same way as the courts, such as the impact on health and liability for damages,
as the Ombudsman says, then my view (of course, given the arguments we made in this case) is that a conditions claim can be concurrent with an Ombudsman’s investigation – at least pre-action.
The same logic should apply to a housing conditions claim made after an Ombudsman’s decision and award (though there may well be an element of overlap/set-off in the damages/award), with at least some of the factual history already being set out in the Ombudsman’s decision.
Given the Ombudsman’s new policy of continuing investigations during the pre-action protocol stages of a claim (though not post-issue of claim), it may become more common. And given the disparity between Ombudsman’s awards for maladministration and the level of damages that a housing conditions claim can achieve (here £3092 as against £10,000 plus the £3092), there is a clear interest for the tenant in being able to pursue both.
Entirely logical. Well done. Excellent result for another unfortunate Clarion tenant.
Why on earth didn’t Clarion secure the settlement in a Tomlin Order?
They did. I don’t see how the Ombudsman’s award by itself could have been ‘secured’ in a Tomlin Order. There were no proceedings at that point.
Thanks Giles, this is interesting. My view had been that in these type of situations you can’t pursue both as a result of Clark v In Focus Asset Management [2014] EWCA Civ 118;
”For all the reasons I have given, I would allow this appeal. Parliament did not manifest any intention that complainants to the Ombudsman Service should be in any different position from other claimants who have taken their claim for compensation through a tribunal for dispute resolution and obtained a decision, and then sought to litigate the same grievances again in the courts. They are not able to raise the same claims in court proceedings even if they could have recovered more in court proceedings. What they had to do to obtain this higher level of compensation was to reject the award and bring court proceedings for that amount.” [121]
The Clark case concerned the Financial Ombudsman Service for consumers with disputes with providers of regulated financial services. That Service, as Arden LJ explains, “…determines disputes and may award compensation. If a consumer accepts an award of compensation, the award is binding on the adviser and the complainant, and is final.” That seems to be very different from the Housing Ombudsman, whose role is “…to assess whether the landlord appropriately considered matters, reasonably applied its policy and procedure, complied with any relevant legislation and followed good practice” and who does not”…make a determination on matters in the same way as the courts, such as the impact on health and liability for damages” regarding that as outwith their expertise and jurisdiction.
In any event, the Ombudsman’s recommendation included an apology, which we are told was not forthcoming. Even if the HO’s recommendation had been final and binding (which it wasn’t), Clarion hadn’t followed it.
Exactly, it is a completely different statutory scheme to the Financial Ombudsman.
Thanks for the interesting analysis. Is it just me or is there text missing in the middle? It seems to jump:
“In the meantime, Ms Plunkett had accepted a transfer to
Ms Plunkett replied that the claim proceeded as the Ombudsman’s decision expressly stated…”
Yes, corrected, thanks
Congratulations for your win! I am grateful that you represent residents, too.
Sir, how can I get more details about Ms Plunkett’s case? Thank you!
There’s not a lot to add.
This is really useful Giles – Thank you. Particularly in light of the subsequent DLUHC letter to advice agencies! Would you please be able to provide a link to the Ombudsman decision quoted?
Alas no. The published decision is different to the decision letter sent to my client and doesn’t have that passage. But that is definitely the Ombudsman’s approach.
ON the DLUHC letter, see https://nearlylegal.co.uk/2023/01/the-whirligig-of-time/
Oh no – that would have been helpful as a published decision! I have seen the other post, thank you!
Here’s the passage.