How to manage disrepair claims
Key ways housing providers can defend themselves against improper claims
GOVERNANCE
Image: Istock
Anthony Armitage
Managing Director, First Law
Issue 66 | June 2023
Competent complaints handling is the bedrock of good governance. To understand the power of this proposition we can look at the intersection of claims and complaints in the context of disrepair allegations against housing providers.
Inside Housing reported last year that local authorities in England spent at least £45 million on legal disrepair claims over four years. This article explains the most effective measures housing providers can take to defeat cases brought with insufficient investigation of their merits, or which are pursued for improper purposes.
Understanding a claim
A disrepair claim is an allegation by a tenant of residential property that their home is in a state of disrepair, in breach of the Landlord and Tenant Act 1985. To be liable under Common Law, a landlord needs to have been put on notice that a disrepair exists, and then fail to rectify it within a reasonable time. The essence of a disrepair is therefore a failure to carry out a repair. To put that right means carrying out the repair as quickly as possible.
When working in-house as a solicitor at a G15 association in 2019, I found that by putting this thought at the forefront of my mind from the outset, the way to defend these claims became almost self-evident. The starting point was to examine each case forensically, before deciding what action to take, and in the meantime putting all operational resources into doing the necessary repairs.
Steps to respond
First, we gathered the repairs history. If we could show that we did not have adequate knowledge of the disrepair or that we had taken steps to resolve it in good time, the claim could be stopped. We then compared our records against the history of disrepair set out in the claim letter, and in particular the dates and methods by which we were notified of the items of disrepair and what actions we took in response.
The second step was to collate all the disclosure documents. A claim letter typically asks for the ‘tenancy file’. This is equivalent to a Subject Access Request under GDPR, so we took great care in compiling the data, to redact personal data belonging to third parties and to withhold legally privileged communications.
The third step was to check whether our complaints procedure had been used. If no complaint had been made, the claim could be suspended by applying the guidance in the Housing Conditions Protocol.
Common issues
The most common defaults we observed were:
- Invoking the Protocol prematurely, typically because we had not been notified of the need for repairs before receiving the claim, or because we had not been given a reasonable time to carry out the repairs
- Denying us access to the home to inspect or to carry out works
- Failure to prove causation
- Failure to disclose the tenant’s authority to act, or failure to specify the dates of alleged tenant contact with us
- Threatening legal action not permitted at law or against the terms of the tenant’s funding arrangement with the solicitors
- Supplying misleading photos with a claim, showing the condition of a home before repairs which had later been carried out
- Using connected parties to prepare surveys, raising questions over independence and authenticity
- Pursuing claims aggressively, focusing entirely on recovering legal costs, and sometimes with no regard to the compensation claim for the client
- Rejecting settlement offers within minutes if they did not include an adequate offer to settle legal costs
Any one or more of these behaviours can be used as a defence to a claim. It was crucially important to keep communication lines open across repairs, complaint and legal teams before, during and after claims to resolve them at minimum cost, and in the quickest time.
Effective approach
We tested this approach on a series of new claims with remarkable success, by addressing them all at no cost to the business, other than the costs of the repairs themselves. At that time, though, we were struggling to find a clear basis to report misconduct.
When I joined the Solicitors Regulation Authority (SRA) in 2021, I added new wording to the guidance on Conduct in Disputes, making specific reference to claims against social landlords made without merit, being capable of amounting to serious professional misconduct.
This has created a nationwide deterrent for all claimant solicitors and law firms, not to bring claims for improper purposes, for fear of being reported to the SRA. If that warning is insufficient to deter improper claims, then reporting the misconduct can be a new and effective second-stage weapon to defeat them.
Anthony Armitage was Head of Regulatory Management at the SRA from May 2021 to September 2022 and Group Legal Counsel at Southern Housing from 2012 to 2021.
This article is an abridged version of a bite-size learning session delivered to the Housing Ombudsman in March 2023
“We tested this approach on a series of new claims with remarkable success, by addressing them all at no cost to the business, other than the costs of the repairs themselves.”
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