[The Uni’s wordpress has been out of action.\u00a0 These posts were from last week]<\/p>\n
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In my view, there is a special place in hell for those people who take advantage of the vulnerable.\u00a0 In two reports this week (here<\/a> and here<\/a>), Inside Housing<\/em> have sought to isolate perches for those involved in disrepair claims brought by social housing tenants against their landlords.\u00a0 I am not sure that either report necessarily hit its mark but, among landlords at least, it has certainly raised the profile of issues relating to independent expert survey reports of affected properties and certain law firms commonly labelled \u201cclaims farmers\u201d.\u00a0 It is right to say that the various firms and people highlighted emphasise that there have been no adverse findings of fact made against them by their representative bodies or courts.<\/p>\n Even so, I remain ambivalent about this kind of reporting and reports.\u00a0 I want to explain why but it does come down to funding models and the removal of legal aid for most disrepair cases.\u00a0 But also, we have a tendency to forget about the impact of poor conditions on residents when we focus on those running litigation.\u00a0 There is an excellent recent paper on the effect of mould and claims on Somali residents<\/a> here which makes for sobering and urgent reading.<\/p>\n Disrepair litigation<\/strong><\/p>\n Disrepair claims have become high volume litigation, a kind of offshoot of motor finance and PPI claims.\u00a0 In general, disrepair claims don\u2019t attract legal aid, so they have to be run on funding models that probably encourage high volume litigation at reduced costs.\u00a0 The key with this litigation is to get it over the threshold for a Fast Track claim.\u00a0 That threshold requires that \u201cthe tenant is seeking an order requiring the landlord to carry out repairs or other work to the premises\u201d (this is an order for what lawyers call \u201cspecific performance\u201d); repairs costing more than \u00a31k; and general damages of more than \u00a31k. if your reach that threshold, generally the claim will be allocated to the Fast Track.<\/p>\n The important point is that there are costs consequences of tracking a disrepair claim \u2013 if you are on the fast track, then you will get your legal costs and disbursements, including for experts (if successful); if not, generally you won\u2019t.\u00a0 The litigation models run on the basis that these claims will be allocated to the Fast Track. The Starmer government had a call for evidence on housing disrepair claims<\/a>, but I don\u2019t think anything came of that.\u00a0 The costs regime which limits costs on the fast track to fixed sums does not apply to disrepair claims.\u00a0 Fixed costs tend to be a lot lower than those usually charged.\u00a0 The exemption for disrepair claims was hard fought (and extended to 2028) in part because these are complex and technical claims which would be uneconomic under the fixed costs limits.\u00a0 Generally, disrepair claims are funded under conditional fee agreements, under which the tenant\u2019s lawyers take a degree of risk of the claim being unsuccessful (but get a little more if successful).<\/p>\n There is quite a bit of satellite litigation on whether a claim for specific performance remains extant if the landlord has done all of the works.\u00a0 Different courts may take different views on this (see here<\/a>).\u00a0 And there has been satellite litigation on whether there should be a stay to allow a tenant to use the complaints process<\/a>.\u00a0 These are always interesting arguments, but what they are trying to do usually is either to move the claim on to the small claims track; or into a free complaints service which ultimately will take you to the Ombud (and we have seen that the Welsh Ombud provides very low levels of compensation compared with the courts and the English version).\u00a0 Both of these are litigation \u201cgames\u201d if we remember that what the tenant will want is the repairs to be done and, perhaps, compensation for the hassle and living in poor conditions.<\/p>\n The issues raised<\/strong><\/p>\n The Inside Housing<\/em> reports suggest that tenant surveyors may not be properly qualified, do not appreciate their duty to the court of being impartial and independent, and may over-estimate the cost of repairs to bring them above the \u00a31k threshold in the rules.\u00a0 These are the common refrain of social landlords which are also the survivors of this high volume litigation.\u00a0 They will tell you that, once the lawyers and all walk away from the claim, their relationship with the tenant will continue and probably needs to be repaired (if possible).\u00a0 Nobody talks about that element \u2013 the ongoing relationality.<\/p>\n We seem to have moved quite a long way from the \u201csingle joint expert\u201d that the pre-action protocol governing disrepair claims encouraged.\u00a0 That is a shame, adds to costs, and causes mistrust between the parties.\u00a0 It produces adversarialism, which is problematic and against the spirit of the pre-action protocol which is designed to ensure swift resolution of disrepair and keep cases out of court.<\/p>\n Equally, there is a lot of discussion about \u201cclaims farmers\u201d.\u00a0 This is a pejorative label to which I probably don\u2019t subscribe in the main because we know that vulnerable people are less likely to prosecute their rights.\u00a0 Tenants living in poor conditions have rights.\u00a0 Rights can be enforced and tenants are entitled to compensation.\u00a0 Social housing tenants might need to have a little push or enticement to bring a claim.\u00a0 So what?\u00a0 To describe claims managers as \u201cfarmers\u201d implies the wrong motivations to the social housing tenants (and labels them as what?), who may also want their landlords to be held to account.\u00a0 Furthermore, there are some excellent and outstanding lawyers who are being tarnished with this label, and that is just plain wrong.<\/p>\n There is, of course, bad practice and the individual cases discussed in the IH article indicate that there are costs orders that reflect that bad practice.\u00a0 Clearly, there is no good reason for a lawyer\/paralegal\/representative to impersonate a housing officer.\u00a0 And, it remains an important principle that tenants should know two what they are signing up when instructing a lawyer.\u00a0 However, I am afraid that you end with a legal system for which you are willing to pay.\u00a0 In the absence of legal aid, how else are vulnerable people going to pay to get their landlords to take action on disrepair.<\/p>\n Concluding thoughts<\/strong><\/p>\n There is a lot wrong with litigation.\u00a0 I don\u2019t suggest that everybody involved in disrepair litigation might have a higher motive to help tenants and their landlords.\u00a0 But, perhaps, we should focus on the fact that a lot of claims are resolved quite quickly between the parties.\u00a0 It may or may not be the case that claims have increased over time, and perhaps even a short period of time as is suggested by IH, but is this a \u201cbad thing\u201d?\u00a0 If it roots out bad practice, remedies wrongs, and assists vulnerable people to live in the ways in which we would expect and hope that our social housing provides, surely that is a positive?\u00a0 In the absence of public funding, expect claims companies to come on to the scene.\u00a0 They are likely to be more acquisitive and less likely to take the proportionate view which legal aid requires but that is the policy balance struck in another place.\u00a0 There might be some bad practice, which is the responsibility of professional associations and the courts to root out.<\/p>\n <\/p>\n <\/p>\n","protected":false},"excerpt":{"rendered":" In my view, there is a special place in hell for those people who take advantage of the vulnerable.\u00a0 In two reports this week (here and here), Inside Housing 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