Has anyone approached the court to have a TDS tenancy deposit decision overturned?

Manual_Reversion

Hello,

Essentially my query is as per the subject line. I've just received in the post a decision by the TDS mostly against us, as tenants.

I am weighing up whether or not to pursue it (time and cost) in a small claims court. I'm a little worried that the court won't look favorably on the case as the TDS was set up partly to remove this work from the courts.

So has anyone disputed a TDS decision in the courts and won/lost?

Many thanks.

sonastin

You would have to present the court with compelling grounds to overturn TDS's decision. e.g. evidence that was not made available to them (for whatever reason), evidence that it is a clear breach of natural justice etc. If you merely disagree with TDS's decision and are hoping that the courts will reach a different conclusion, you claim has little chance of succeeding.

What is the basis for your desire to pursue this further?

Manual_Reversion

sonastin wrote: »

What is the basis for your desire to pursue this further?

The sum involved is not huge, around £150, so my motivation is the desire to see justice.

It's not a complex case. The Landlord put in a claim for a broken electrical appliance, by claiming that we broke it, which the TDS upheld and hence awarded the circa £150 to the Landlord.

The truth of the matter is that the device broke of its' own accord, through normal use, hence my feeling of injustice.

In their explanation for the award to the Landlord, the TDS essentially argued that, to paraphrase, "because you were tenants in the property, and the appliance ceased working, you are responsible", which to me implies that the burden of proof lies with the tenant to prove, somehow that they didn't break it, rather than the other way round, namely that the Landlord must prove beyond reasonable doubt that the tenant did indeed break it.

sonastin

OK, as a starting point "beyond reasonable doubt" is the burden of proof required in criminal cases. Civil cases (like this) are decided on the "balance of probabilities".

So, how old was the appliance? How frequently did you use it (compared to how frequently the man in the street would consider reasonable usage)? What state was the appliance in when you moved into the property?

Things don't "break of their own accord" but they can reach the end of their useful life and fair wear and tear is the landlord's responsibility. Defective manufacturing can shorten the useful life considerably in comparison to what you might deem "reasonable". (I've lost count of the number of cheapy appliances I've had that break down in their 13th month!)

Is it a well known brand or a cheap-no-name import? What went wrong with it? Could it have been repaired at less cost than replacement? (watch out for betterment - replacing a 5 year old appliance with a new one at your cost is putting the LL in a better position than he was in before you started).

And above all, how are you going to convince the court that TDS didn't take this information into account when they reached the conclusion that it was your actions which caused the appliance to fail and not fair wear and tear? Because that is going to be the first question that they'll expect to be answered.

jjlandlord

Well, my understanding is that the tenant is responsible for repairs to white goods unless it is specifically stated otherwise in the agreement.
It would only have been landlord's problem if it was beyond repair and had to be replaced.

Also, if it broke and you never notified the landlord who found out during the check out inspection, you put yourself in a tight place I'm afraid.

Manual_Reversion

Ok, I'll flesh it out a bit.

The 'appliance' was in fact a bath, which had a jacuzzi function built into it, and a button to turn on and off. The jacuzzi function stopped working, and it was assumed (and effectively upheld by the TDS) that we had somehow broken it, and therefore the cost of repair was awarded to the landlord.

I think the bath was between 2 and 4 years old, in good condition visibly, but I couldn't comment on the inner workings of it. The jacuzzi function was used every couple of weeks, in order to clean the plumbing. (I'm a bloke and have no interest in jacuzzis, I just want a shower!)

It turns out that the switch that turns the thing on and off had broken, it was repaired (much cheaper than new bath obviously!), and we've been forced to pay for it.

sonastin wrote: »

And above all, how are you going to convince the court that TDS didn't take this information into account when they reached the conclusion that it was your actions which caused the appliance to fail and not fair wear and tear?

I'll quote what the TDS said in justifying their decision: "As the switch broke during the tenants occupation of the property and there is no evidence to suggest that the Jaccuzi was not in good working order I consider the tenants to be responsible for the reasonable cost of repair"

So, effectively, because it broke on 'our watch', and we can't show evidence that failure was to be expected, that therefore we are responsible. That's what I think they're saying, and to me it's illogical and unreasonable. I would expect the burden of proof to fall on the landlord to show that our misuse caused it's failure e.g. evidence of hammer marks on or near the switch.

But I think I may be flogging a dead donkey with this one....

Manual_Reversion

jjlandlord wrote: »

Also, if it broke and you never notified the landlord who found out during the check out inspection, you put yourself in a tight place I'm afraid.

I agree with you. As soon as it broke we informed the landlord in writing, but nothing was done until the end of the tenancy. (We were happy for it not to be repaired)

jjlandlord

Manual_Reversion wrote: »

I'll quote what the TDS said in justifying their decision: "As the switch broke during the tenants occupation of the property and there is no evidence to suggest that the Jaccuzi was not in good working order I consider the tenants to be responsible for the reasonable cost of repair"

I'm afraid that they've taken the view I expressed in my previous post above: As there was no express agreement that landlord was responsible for repairs, you were.

princeofpounds

I'm afraid that they've taken the view I expressed in my previous post above: As there was no express agreement that landlord was responsible for repairs, you were.

I don't think that is their line of reasoning at all, because white goods are not the immediate responsibility of the tenant in the absence of written agreement. In the absence of specific contract, the court would look for implicit contract and normally the white goods are the responsibility of the party that provided them in the absence of anything written.

The line of reasoning the TDS have used is quite clear and I think the original paraphrase is wrong.

The bath works, the switch was broken, the tenants were in occupation and must have been the direct users of the switch when it broke. The balance of probability is that the switch broke because it was used incorrectly. It is not a great decision, because switches can and do fatigue. The OP probably didn't help themselves be not reporting it before the end of the tenancy. But it is an understandable one and I doubt the OP would get much further in court.

jjlandlord

princeofpounds wrote: »

I don't think that is their line of reasoning at all, because white goods are not the immediate responsibility of the tenant in the absence of written agreement.

It's actually the contrary at common law.

Manual_Reversion

princeofpounds wrote: »

The OP probably didn't help themselves be not reporting it before the end of the tenancy.

Sorry, I wasn't very clear in a previous post. We reported the fault when it happened but apart from one failed attempt to mend the bath during the tenancy, it wasn't until we had left that it was fixed and the blame attributed to us.