England and Wales Lands Tribunal

[2005] EWLands LCA_144_2003 (9 February 2005)

LCA/144/2003

LANDS TRIBUNAL ACT 1949

COMPENSATION – disturbance – rehousing – claim for disputed costs associated with move – Land Compensation Act 1973, section 38 –statutory disturbance £4,027

IN THE MATTER of a NOTICE OF REFRENCE

BY

GLORETA JOHNSON Claimant

Re: 161B Harley Road, Harlesden, London, NW10 8AX

Before: P R Francis FRICS

Sitting at: Procession House, 110 New Bridge Street, London, EC4V 6JL

on

14 December 2004

Miss Gloreta Johnson, claimant, in person


 


DECISION

1. This is a reference, heard under the Simplified Procedure (rule 28, Lands Tribunal Rules 1996), to determine the compensation payable by Paddington Churches Housing Association ("PCHA") to Miss Gloreta Johnson ("the claimant") in respect of remaining disputed costs arising out of her move from 161B Harley Road, Harlesden, London, NW10 to 39 Verney Street, Harlesden, London NW10 0AY.
2. PCHA were named as respondent in the claimant's Notice of Reference dated 19 November 2003, but due to their failure to respond to correspondence and an order of this Tribunal dated 19 November 2004, they were debarred from appearing and giving evidence.
3. Miss Johnson explained that she had formerly occupied 161b Harley Road, Harlesden, a two bedroom flat, as a tenant of PCHA. There were a number of matters that she had been complaining about, including the need for repairs and replacement of a number of damaged items following a major water leak, but no satisfaction had been received. Subsequently her landlords advised her that she was to be re-housed as the property was required for redevelopment or refurbishment. She eventually moved in to 39 Verney Street, an end-terrace two bedroom Victorian house, on 21 January 2002. Although some of the works required to make the property suitable for occupation have been undertaken, and reimbursement has been received in respect of some undisputed items, Miss Johnson asserts she has been unable to obtain the compensation to which she is entitled under 9 remaining heads of claim.
4. The claim arises under section 37(1)(d) of the Land Compensation Act 1973 ("the 1973 Act") which provides:

"37.-(1) Where a person is displaced from any land in consequence of –

(d) the carrying out of any improvement to a house or building on the land or of redevelopment on the land by a housing association which has previously acquired the land and at the date of the displacement is [a registered social landlord within the meaning of the Housing Act 1985 (see section 5(4) and (5) of that Act)];

he shall, subject to the provisions of this section, be entitled to receive a payment (hereafter referred to as a "disturbance payment") from - ….

(iv) where paragraph (d) above applies, the housing association carrying out the improvement or redevelopement."

The amount of compensation is determined in accordance with section 38(1)(a) which provides:

"38. – (1) The amount of a disturbance payment shall be equal to –

(a) the reasonable expenses of the person entitled to the payment in removing from the land from which he is displaced…"

5. In the light of the above provisions and Miss Johnson's evidence, I deal with each of the disputed items in turn. In doing so, I also take account of PCHA's "decant procedure", contained in its Housing Management Policy and Procedure Manual, although I am not, of course, bound by it.
6. Item 1: Carpets. The former property had hessian fitted carpets in the living room, bedrooms and hallway, these having been provided by the claimant about 5 years before she was required to move. Due to the different shape of the rooms in the house in Verney Street (they being long and narrow, rather than square) the carpets were not adaptable. Neither were the linoleum coverings in the kitchen and bathroom. PCHA had accepted this fact, but their offer of £588.42 (based upon their assessment of the value per square metre of the existing carpets at £8.42 and linoleum at £4.73) were unacceptable. Miss Johnson said that she obtained a quote for carpeting the new property immediately after moving in, and for floor coverings of similar quality, which came to £1,632. That, she said, is what it will cost to provide suitable replacements, and that is the compensation that should be paid. Miss Johnson said that PCHA had subsequently (on 21 January 2003) revised their offer to £676.12, this being based upon £9.84 per sq m for carpets but with no mention being made of kitchen and bathroom linoleum.
7. Paragraph 5 of the entitlement section of PCHA's policy document says:

"5. The amount

The amount of disturbance payments will vary according to the circumstances of each case. It should cover 'the reasonable expenses which can be shown to flow from and be incurred as a natural and direct consequence of the necessity to remove from the old house and set up in the new.' Interest is payable on any amounts the tenant has spent from the day the expense was incurred to the day the payment is made."

8. There is a comprehensive section entitled 'Compensation payable for carpets and curtains' which sets out in detail tenants' entitlements. It confirms that it is PCHA policy to offer cash sums as compensation and if a tenant accepts such a sum, no receipts will be required prove that money has been expended on either the adaptation of existing, or purchase of replacement carpets. It says that under this system, tenants will have a clear idea of what they will receive before they move out of their home.
9. Where existing carpets are accepted as not being adaptable, compensation will be paid based upon an assessed 'as new' cost, depreciated according to age. Thus, in the version of the manual that I received, a 5 year old carpet valued at £16.40 per sq m as new will be depreciated by 40% to leave a compensation sum of £9.84 per sq m. The new price per sq m was assessed as "the average price quoted by High Street stores as at June 1999" and that "these will be regularly reviewed". Linoleum prices were quoted at £11 per sq m, but would be depreciated after 5 years by 57% to £4.73 per sq m.
10. It appears to me that the latest offer has been made in accordance with PCHA's stated policy, and whilst it seems, on the face of it, somewhat incongruous that the discount from new should be taken at 1999 rather than 2002 prices, it is a fact that retail prices for domestic goods such as carpets and floor coverings have remained fairly stable throughout that period. No adjustment is, therefore, in my view necessary. However, compensation for the old carpets that had to be left behind will not compensate the claimant for the actual cost of providing suitable floor coverings at her new home.
11. The PCHA policy states that "if there are new or good quality floor coverings etc in the new property there is no need to give tenants any financial compensation for similar items they must leave behind. They have been compensated in kind. This will normally only apply to kitchens and bathrooms. Team managers have the discretion to provide carpets and curtains to tenants who have to move".
12. It is the last sentence of this section that holds the key, but even if it were not there it would be wrong, in my judgment, and applying the test of reasonableness required under section 38(1)(a), for the tenant to be put in such a situation that replicating the essential comforts of her former home are put out of reasonable financial reach through no fault of her own. The claimant obviously needs floor coverings, and whilst it would not be right for her to receive financial recompense for her 5 year old coverings as well, it seems entirely reasonable to me that the quoted cost of providing new carpets and linoleum (or the modern equivalent) should be paid. The tenant will be put in a marginally better position in that she will be enjoying new rather than worn items but, as I have said, I do not see why she should be financially worse off due to her landlord's actions. I therefore award £1,632 as claimed under this heading.
13. Item 2. Net curtains. Miss Johnson claims £221.62 for new net curtains, and produced a receipt in verification. These are not covered in the PCHA policy document, but the expenditure does seem to me to be entirely reasonable, and in accordance with the provisions of section 38(1)(a) I award £222.
14. Item 3. Curtains. These are covered in the PCHA manual and the same policy is adopted as with carpets and other floor coverings. The claimant said that the lined velvet curtains in the former property were not adaptable and although she has not yet bought any, she had obtained a quote from the shop where she purchased the nets (based upon their sizes) of £500 for sufficient ready-made items. PCHA offered £93.87 as compensation for non-adaptable curtains based upon £9.84 per sq metre. For the same reasons given in respect of (1) above, I award the £500 claimed against this head.
15. Item 4. Electric Cooker. Miss Johnson said that in her former property she had a 4 ring hob with oven and grill underneath. Due to the configuration of the kitchen units at the new property, the existing cooker was too large, and she had to buy a new one – a Beko which cost £529.99. Unfortunately, she said, she could not find the receipt. The necessity to replace the cooker is, in my view, a reasonable expense and I accept the claimant's submission that, in terms of mitigating the loss, she would have been unable to achieve any monetary value if she had try to sell her old cooker. However, the price paid for the replacement does seem to me to be extremely high. Having referred to the Argos catalogue for 1993 (which the claimant had referred to herself in respect of later items) I find that a perfectly adequate replacement (a Creda 155 E) was available at £349.99. I thus award £350 under this head.
16. Item 5. A claim is made in respect of a number of items which, due to an apparent misunderstanding, were left at the former property and subsequently removed by PCHA and destroyed. Miss Johnson said that PCHA had moved some of her belongings to Verney Street but not all of them, and it was those that had been left behind for which she was seeking recompense. She explained that when she handed in the keys to the old property, she told the receptionist that there were some items remaining and she could arrange for her father to collect them if PCHA could not deliver them. Unfortunately, her old neighbour telephoned her on 8 February to say that the items were being consigned to a skip by PCHA. They comprised a gold-edged shower screen, a pine bath panel and wc seat, a bed base, computer table and portable TV and replacements, as per the Argos catalogue would amount to £719.99. The articles had been left in the old property for over 2 weeks, and in my judgment, the claimant's lack of urgency in ensuring their removal must be taken into account in assessing compensation. I award £250 under this head particularly as, in my view, such items as toilet seats and bath panels are not something that it is considered normal to remove.
17. Item 6. Disconnection/reconnection etc. Miss Johnson said she had claimed £573 costs incurred in respect of disconnection and reconnection of her washing machine, together with connection of her new cooker and other electrical items (such as light fittings and switches), a new front door lock, and removing and replacing gold effect door handles. PCHA had offered £450 and, as they were not represented at the hearing, I was unable to establish the reason for this reduction. In the circumstances, and with invoices produced to support the claim, I find it proved and award £573.
18. Item 7. Wardrobes. PCHA dismantled the wardrobes that had been located in Miss Johnson's sons room at the old property but as they did not fit in the new one, they had suggested she should try to sell the old ones and buy replacements. It was estimated (Argos) that replacements would cost £800, but the claimant has no made any attempt to sell the old ones and that fact must, in my view, be taken into account. The PCHA manual says, in connection with fitted wardrobes "….if a tenant has recently spent a great deal of money on fitted wardrobes which cannot be adapted to the new home, some compensation may be negotiated". I award £500.
19. Item 8. Convector heaters. Miss Johnson claims £100 for two electric convector heaters which she had bought at Argos as, she said, she cannot afford to run the gas central heating in the new property. This element of claim I find to be extraordinary, and I do not accept it.
20. Item 9. New Double bed. The sum of £149.99 is claimed for a double bed base and mattress which, Miss Johnson said, had been damaged by a severe water leak at her old property and PCHA had said they would pay, but had, to date, not done so. This is not an item associated with the move and is not, therefore, something over which I have jurisdiction. I cannot, therefore, make an award under this head.
21. Having set out my decision in respect of the nine items claimed, I determine that PCHA shall pay the claimant £4,027 statutory disturbance in accordance with the provisions set out in the relevant parts of ss 37 and 38 of the 1973 Act.
22. This case being determined under the Simplified Procedure, I make no award as to costs.

DATED 9 February 2005

(Signed) P R Francis FRICS