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Housing associations undervaluing cost of repairs in legal proceedings, conference hears
Housing associations are undervaluing the cost of repairs during disrepair claim proceedings, while surveyors for claimants are overestimating them, attendees at a conference have been told.
Legal Futures’ Housing Condition Conference in Manchester heard calls for a single source of expert evidence to combat the issues.
The details emerged during a session focused on a new working group made up of experts, solicitors and barristers from the both defendant and claimant side in housing condition cases, launched to bring a “consistent standard” to the quality of the work of surveyors used in disrepair cases.
The Housing Condition Strategy Group, whose members include chartered surveyors, social landlords and tenant lawyers, wants both defendants and claimants to use a single expert witness surveyor during housing condition cases.
The group was formed in response to a decrease in the quality of expert witness – surveyor – evidence in disrepair claims and a move away from a former collaborative approach to resolving housing condition cases.
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Members of the group include housing association Onward Homes, Stockport Council, Matthew Wilson, a partner at law firm Clarke Willmott, and Giles Peaker, a partner at Anthony Gold.
Jonathan Milner, chair of the Housing Condition Strategy Group, spoke via video to open the session.
Mr Milner, a chartered surveyor and member of the Royal Institution of Chartered Surveyors (RICS), said: “The aim of the group is to consider issues within this area of law and the expert witness’s perspective and in turn consider how we can tackle the issues.
“Traditionally, the role of the chartered surveyor in expert witness cases has been in low volume, higher value claims.
“It’s been a niche within which a smaller number of surveyors have operated.
“With the increase in housing condition repair claims, there has been a movement to higher volume, lower value cases.”
He added: “With the tragic events that led to the creation of Awaab’s Law, fuel poverty, energy crisis and cost of living issues, this created a perfect storm of publicity that increased the number of surveyors operating in the market.”
Mr Milner said there is a “shortage of experienced surveyors, who understand the nuances this type of work brings, and the skills shortage has meant that lesser experienced surveyors have come into the marketplace”.
He said there was “increased concern” about the quality of expert witness functions being performed by RICS members, while the body put out an alert “requiring immediate action” from its members to “address the evident failure of some members to comply with mandatory standards”.
“The Housing Conditions Strategy Group acknowledges this and seeks to assist this through collaboration and guidance with parties to address these issues and also to look at those upcoming challenges,” he said.
Phil Bigelow, a solicitor with Driscoll Kingston, also a member of the new group, said one of the main issues “is the quality of the evidence”.
He added: “Approximately five, six years ago, you noticed an entrenchment in claimants and defendant’s positions.
“[At that time] there was more of an appetite to have single joint experts than there is now.
“Parties are becoming entrenched in their positions to where there’s challenges to the experts’ evidence for numerous reasons. Some experts are viewed as a ‘hatchet man’, some experts are viewed as one sided.
“We want to move away from that.”
He said there used to be a “collaborative approach to trying to get issues resolved quite quickly”.
Mr Bigelow continued: “Whatever side of the fence we’re one, we’ve moved completely away from that; we’ve all lost sight of that and it’s about time we get back to thinking about how we get back to that position. And it’s effectively by improving standards of the quality of the expert evidence.
“If we can get back to that, we can get back to more simple joint expert instructions. Things can get resolved more quickly. Because at the heart of this, no matter which side of the fence you’re on, if you’re a tenant you want to live in a property that’s fit for habitation.
“Equally if you’re a landlord, in order to ensure you’re making enough profit and providing a proper service to your tenants, your properties want to be in good condition. That can only be achieved if parties move to a more collaborative approach in resolving the issues.”
Another panel and group member Jamie Paterson, a chartered surveyor and managing director at Paterson Associates, said: “One of the things we’ve talked a lot about is training and creating a new widely recognised benchmark that isn’t currently there.”
He said there is not one consistent training course for surveyors in this area and that the group wants to put something together that “gives more consistency, that leads to more trust and, ultimately, single trade, a single data structure”.
One audience member said there is an issue around remuneration because some surveyors are “being paid on results”.
Mr Paterson said they should also be remunerated on surveys where they do not find evidence of what a client is looking for.
David Deacon, of Housing Disrepair Surveys, said: “It is fair to say there has been an inclination over the years in the sector that some cases do end up with inflated costings.
“It doesn’t help anyone in the sense that if you’re inflating the costs and there’s actually very little there, it won’t help the resident and it certainly won’t help the solicitors, and the surveyors will tarnish their reputation.”
Mr Paterson said: “Having a single expert that’s appointed by both sides has got to lead to better agreements, quicker settlements, and less adverse costs.”
One audience member, who said he used to represent social landlords, said housing associations and councils are using people who are not experts to survey.
Mr Paterson said this can come down to financial pressures for social landlords.
“That’s part of the reason we are putting this thing together,” he said, adding that the group wants to work with social landlords to understand the barriers.
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