Fixed Fee Future: The fate of disrepair claims

With the use of private rented accommodation continuing to rise yearly, it is a concern as to whether landlords are maintaining accommodation to a habitable standard as the law requires.

Currently all Council, Housing Association and private renting tenants are protected by section 11 Landlord and Tenant Act 1985 and Section 4 Defective Premises Act 1972, which provides guidance on the repairing obligations of landlords and maintains that they provide an accommodation that is “reasonably safe from personal injury or from damage to their property” from a relevant defects.

Despite the positive changes being campaigned for in the Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill currently being deliberated by Parliament, threats have been made to the ability for tenants to make claims against their landlords for accommodation that is in a state of disrepair.

In consideration of the effect of the Jackson reforms recommended in the personal injury sector and following the changes recommended in The Legal Aid, Sentencing and Punishment of Offenders Act (LASPO), it has been learnt that the reforms previously proposed by Jackson have restricted access to justice across the board with sights now turned to tenant rights.

We are strongly opposed to the proposals in Lord Justice Jackson’s ‘Review of Civil Litigation Costs: Supplemental Report – Fixed Recoverable Costs’ for civil claims to be subject to fixed fees.

Lord Jackson’s recommendation is to introduce fixed recoverable costs (FRC) in disrepair cases, with one level of set fees for fast track claims (those up to a value of £25,000 – the bracket the majority of disrepair cases fall within) and another for those valued between £25,000 and £100,000. In our view, the proposed reforms fail to appreciate that disrepair cases are extremely complex and are of vital importance to tenants, many of whom are extremely vulnerable and seek an order for repairs in addition to a monetary sum of compensation.
In particular, we are concerned about the proposals that all ‘fast track’ cases be subject to these fixed recoverable costs. This fixed costs model could force firms to restrict their activities on behalf of clients to fall within the costs limit, counter to a duty to act in their best interests. In an era of ongoing austerity, it is likely the costs limits will be decreased in real terms, creating ongoing downward pressure on quality of legal service provided to the most vulnerable in society.

Tenants: Voice your opposition!

The impact on disrepair cases in the aftermath of Jackson will focus on the most vulnerable: those with homes in a state of disrepair, often unfit for habitation. The right to claim damages in disrepair cases is already out of scope for legal aid and further pressure on fixed fees will simply result in less and less firms operating in this area of specialist work, thus creating further advice deserts in the UK and significantly impacting on the fundamental rights of access to justice.

The current LASPO changes have reduced the availability of legal aid to those cases with disrepair posing a serious risk of harm to health and safety, reducing the number of tenants able to successfully hold their landlord accountable for serious breach of their legal duty.

The proposed Jackson reforms reviewed in July 2017 are still under consideration and are likely to come into effect in October 2019. It is therefore urged that tenants voice their opposition when the reforms are brought to public consultation.

We also consider the need here for lawyers to take a hard line with the proposed Jackson reforms and strongly believe that the decision of R (Unison) v Lord Chancellor, a ground breaking decision of July 2017, a 7-0 decision of the Supreme Court has considerable weight in challenging these reforms.

The judgment declared that the fees introduced in the Employment Tribunal were an impediment to access to justice and were therefore unlawful, and the Government is now in the embarrassing position of having to refund everyone who paid them. The judgment clearly has widespread implications.

All past and future reforms of civil justice now need to pass the R (Unision) v Lord Chancellor test. If an act of reform fails this test then we consider this to be unlawful. Most of the LASPO reforms – including those cutting legal aid scope and removing, reducing or fixing costs, making it harder for individual litigants to access the courts – would fail this test.