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

norbet

Manual_Reversion wrote: »

I guess the balance of probability would say that cracks do not just appear in baths without good cause, it just doesn't happen. Something must have hit the bath to break it and the tenant is responsible for what happens inside the place, therefore tenant is responsible for the repair bill.

That's what I'd argue, but since this morning my view of what is sensible and what is not has taken a bit of a beating.

I hear ya!

Yorkie1

I *think* that in the small claims court each side bears its own costs, and I'm not sure solicitors generally appear there.

You'd lose the cost of bringing the case though - whatever the application fee was.

Manual_Reversion

jjlandlord wrote: »

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.

That seems true an extent. I have scoured the tenancy agreement and there is nothing in the 'Landlords obligations' section that requires them to repair a damaged appliance or fitting.

However, there is a clause in the 'Tenants obligations' section that states:

"...and in particular to clear, maintain, repair or replace and sinks, sanitary fittings, cisterns, drains, waste or soil pipes or other installation or equipment damaged, blocked or broken by any act, neglect or omission on the part of the Tenant or visitors."

In order to hold us to account on this clause wouldn't the burden of proof be on the Landlord to demonstrate that we broke it? I.e. evidence that we have caused physical damage? It seems odd and unjust to me that the default position is that if something stops working, it must be due to misue unless the Tenant can prove otherwise.

Clearlier

Manual_Reversion wrote: »

I guess the balance of probability would say that cracks do not just appear in baths without good cause, it just doesn't happen. Something must have hit the bath to break it and the tenant is responsible for what happens inside the place, therefore tenant is responsible for the repair bill.

That's what I'd argue, but since this morning my view of what is sensible and what is not has taken a bit of a beating.

Sometimes the cause isn't obvious - we bought a house which had just been refurbished. 18 months in the bath cracked. When I took off the side panel I could see that a supporting strut had been put in but at the wrong height so that it wasn't actually supporting the bath.....

In your case the judgement does seem perverse on the facts presented in my non-legal opinion. If it were me I'd move on but if it's worth your while chasing it then I'd do a bit of reading around laws in the area.

N79

Manual_Reversion wrote: »

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.

I don't think anyone has actually given you the correct answer to your actual question so here goes.

You can not appeal the decision to the courts. When you asked the TDS to arbitrate you signed a binding declaration which states (with my bolding):

"We would like the Independent case Examiner to adjudicate in accordance with the rules of the Tenancy Deposit
Scheme that currently apply.We will co-operatewith the investigation and adjudication, and agree that the
decision of the independent Case Examiner shall be final and binding."

You have thus given up your rights to have the facts of the case decided in court (in return for the LL giving up their rights).

You could, in theory, try to get a judicial review of the process (but not the facts) of your case. I suspect you are unlikely to succeed and will need a 5 figure sum just to get started.

Your call........

Manual_Reversion

Yes, I did sign such a statement.

To quote the covering letter from the TDS: "Under the terms of the sceme there is no right of appeal against this adjudication. However, this does not remove the statutory rights of the parties to ask the court to set this adjudication aside. In doing so one or both parties may find themselves exposed to a liability to pay costs".

Is it that the process of "asking the court to set aside" the decision happens somewhere other than a small claims court, as I have waived my right to that process by signing the TDS statement? And the fact that this process takes place outside of the small claims framework is how I may find myself "exposed to a liability to pay costs", a liability far greater than that incurred in a small claims process?

I think I'll just have to accept that I've been done over and just move on.

princeofpounds

I understand where N79 is coming from, but I am not sure it is quite so clear cut.

M_R, have you at least tried the complaint procedure at TDS? Complaining because a decision was 'wrong in law' is one of the valid grounds. But you only have 4 weeks to make one.

http://www.thedisputeservice.co.uk/complaints.html

princeofpounds

Also please read the case studies here, and the principles on which they deal with agents fees. Refer to all this specifically in your complaints.

http://www.thedisputeservice.co.uk/case-studies.html

I can see several key principles that they look to have mis-administered here. Did the tenancy agreement allow the deposit to be used for fees? (point 2). Was the charge set out in the tenany agreement? (point 3) and so on.

Plus thinking about it, was the new periodic tenancy document even 'issued'? You never signed it!

Argghhh this makes me so angry.

Manual_Reversion

princeofpounds wrote: »

M_R, have you at least tried the complaint procedure at TDS? Complaining because a decision was 'wrong in law' is one of the valid grounds

I hadn't until you mentioned it - so thanks for that. Despite their decisions being 'final' it seems that if I can successfully argue in law that they are wrong, then they can overturn their own decision. I have just drafted a letter of complaint to the TDS, and have set out why I believe this particular decision was wrong in law.

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[FONT=Times New Roman, serif]During the tenancy the Jacuzzi function of the bath stopped working. We immediately informed the landlord in writing. After the end of the tenancy, the landlord duly had the bath fixed (push button switch failed apparently) and submitted a claim against our deposit for the repair. The TDS upheld the claim stating that "As the switch broke during the tenants occupation of the property and there is no evidence to suggest that the Jacuzzi was not in good working order I consider the tenants to be responsible for the reasonable cost of repair". This seems absurd and unjust, as it effectively puts the onus on the tenant to provethat they didn't break whatever it is that has broken, rather than the onus being on the landlord to prove that they did in fact break it (e.g. photographic evidence of visible damage etc.). I understand the adjudicator has to make a decision based on the balance of probabilities, but I can't see how that balance of probability falls against us in light of the fact that there was no evidence that the bath switch had been damaged.[/FONT]

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Thing is, am I really arguing a point of law, or am I just saying that I disagree? If latter, then they will reject the complaint out of hand. I'm not sure I can argue any harder on a point of law, or that there even is a point of law to be argued with this bath case.

I will post an equivalent piece on my other thread, the one that deals with the renewal fee, which I think argues better in law.

I'd really appreciate any comments on whether or not I'm successfully arguing that they should overturn the decisions.

MissMoneypenny

I would challange that ruling. When I let my house, the electric shower stopped working and I paid to fix it. Nothing lasts forever.

Have you got Legal Cover with your contents insurance? Or with any other insurance? If you have, you may be able to claim on that. Once approved, they will cover your legal fees with a housing specialist solicitor/barrister and any court fees, even if you lose in court.