UPPER TRIBUNAL (LANDS CHAMBER)

UT Neutral citation number: [2014] UKUT 0232 (LC)

Case Number: LCA/115/2013

 

                         TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007

 

 

 

COMPENSATION – disturbance - rehousing - claim for disputed costs associated with move -Land Compensation Act 1973, section 38 - statutory disturbance £2,207.30

 

IN THE MATTER OF A notice of reference

 

BETWEEN                                                        

 

 

                                                         Maria L Ogunseye                                     Claimant

                                                                             

 

                                                                          And

 

 

                                        THE LONDON BOROUGH OF NEWHAM               Respondent                

 

 

Re: Flat 2, Dennison Point, Gibbins Road, London E15 2LY

                                                                    

 

 

                                                      Before: P D McCrea FRICS

 

 

                                   Sitting at 45 Bedford Square, London, WC1B 3DN

 

                                                                            On

 

9 May 2014

 

Ms Maria L Ogunseye, Claimant, in person

Alistair Mills, instructed by the London Borough of Newham, for the Respondent

 

 

 

 

 

The following case is referred to in this decision:

 

Re: The reference of Johnson LCA/144/2003

 

 

                                                                    DECISION

Introduction

1.             This is a reference, heard under the Tribunal’s simplified procedure, to determine the compensation payable by the London Borough of Newham (the respondent) to Miss Maria Lola Ogunseye (the claimant) in respect of disputed costs arising out of her move from Flat 2, Dennison Point, Gibbins Road, London E15 2LY (the “former property”) to 40 Gibbins Road, London, E15 2HU (the “new property”).

2.             It is not disputed that the claimant is entitled to compensation, to be measured in accordance with section 38(1)(a) of the Land Compensation Act 1973 which provides:

“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…”

3.             The claimant appeared in person. Mr Alistair Mills of Counsel appeared for the respondent and called Ms Becky Wrenn, an employee of the respondent, as a witness of fact.

Facts

4.             From the evidence I derive the following facts.

5.             With effect from 3 June 1985 the respondent granted the claimant a secure tenancy of a two-bedroomed ground floor flat in a tower block at 2 Dennison Point, Gibbins Road, London, EC15 2LY.  The claimant resided at the premises with her two sons and one daughter, whose dates of birth were 8 October 1989, 21 March 1994, and 21 March 1994 respectively.

6.             In October 1998 the claimant was registered on the respondent’s waiting list for transfer to a three bedroomed property. Plans for regeneration of the Carpenters Estate, of which Dennison Point formed part, were under consideration from 2000/1. It was falling into disrepair and required significant improvement. By 2009 a decision was taken to decamp tenants and demolish Dennison Point, as the refurbishment costs of the tower block were estimated to be £25 million. A “Decamp Charter” for council tenants was approved by the respondent’s Mayor on 23 July 2009. It was known as the Carpenters Residents’ Charter (“the first charter”).

7.             The first charter set out the process of rehousing residents, including members of their family living with them, who were required to move as part of the rehousing program. The tenants of the Carpenters Estate were given priority under a lettings scheme to be rehoused in the area. The respondent would pay for a removal company to undertake removals; provide a packing service for elderly or disabled tenants; pay for disconnection and reconnection charges of washing machines and cookers; and pay for the reconnection of telephones, satellite dishes and cable TV and redirection of mail for twelve months.

8.             The respondent provided independent housing advice via a Tenant Participation Advisory Service (“TPAS”) to the residents affected by the decamping program. The claimant received independent advice and assistance from TPAS regarding backdated claims for compensation.

9.             The claimant’s former property was a two-bedroomed flat. The new property was a three-bedroomed house with a front and back garden. On the ground floor it comprised a WC, kitchen and lounge and on the first floor three bedrooms and a bathroom. As part of the move the respondent carried out a refurbishment programme including the installation of a new kitchen and bathroom, and decorated throughout before the claimant took occupation.

10.         The claimant moved to the new property on 5 July 2000. A company called “Top Removals Ltd” provided the removal service, paid for by the respondent.

11.         The claimant qualified for a statutory home-loss payment of £4,700 which, subject to a deduction of a debt to the council of £127.15, was paid on 1 August 2011 together with a disturbance payment of £200.

12.         Ms Becky Wrenn, of the respondent authority, visited the claimant at the new property on 24 June 2013.  Immediately after that meeting she went to inspect the former property and took photographs, which were submitted in evidence.

 

The Claim

13.         The particulars of the claim have varied over time but the claimant confirmed at the hearing that her claim comprised the following:

Discussion

14.         I refer to three documents throughout this decision.  These are a schedule of work (“the schedule”), undated, but which Ms Wrenn said outlined the work which the respondent arranged to have carried out at the new property before the claimant moved in; the first charter referred to above; and a second charter, dated 2012 which was not in force at the time that the claimant moved (“the second charter”).

15.          As I did in the hearing, I deal with each item in turn.

Floor covering

16.         The claimant claimed £1,488.76 for the supply and fitting of laminate flooring to the lounge, hall, landing and third bedroom.  This sum comprised three elements: £1,102.08 for flooring, £360.00 for fitting, and £26.70 for sealant.   In respect of the first element, three till receipts were submitted - these aggregated to £1,101.86 rather than the amount claimed of £1,102.06.  In respect of fitting costs, a hand-written receipt was submitted, and in respect of sealant, a trade receipt.  The claimant said that when she moved into the new property the ground floor had a bare concrete finish and the first floor had bare floorboards.  She accepted that the laminate flooring she laid was an improvement on the flooring at the former property, which had floor tiles.

17.         The respondent disputed the claim on the basis that the floors at the new property were fitted with standard tiles, and that the claim constituted betterment.   Ms Wrenn thought that the ground floor of the new property had tiled flooring rather than bare concrete but could not confirm absolutely – it could possibly have been concrete. 

18.         Mr Mills submitted that the second charter, whilst not in force at the time of the claimant’s move, provided a useful guide to value.  This said that where new laminate flooring was being laid at the new property to replace similar flooring at a former property, that could not be taken up and refitted, the council would pay for new laminate flooring up to a value of £20 per m² (my emphasis).

19.         Mr Mills submitted that the flooring at the new property was perfectly adequate and that the new flooring constituted betterment. However he quite properly drew my attention to Re: The reference of Johnson LCA/144/2003 where the Tribunal (Mr P R Francis FRICS) said this:

“…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.”

20.         Following that approach, I do not consider the respondent’s point on betterment succeeds.  However, the amount claimed seems to me to be high. Whilst the respondent’s floor areas did not account for the hall and landing, the schedule suggests (at paragraph 1.06 in respect of ceilings) that the aggregate of the lounge, small bedroom, hall and landing would be something in the order of 37 m^2. On the respondent’s rate, which I consider reasonable, that would equate to something in the order of £750.00, net of fitting costs.  I add to this the cost of fitting and sealant, and award to the claimant £1,136.70 for flooring.

Carpets

21.         The claimant claimed £380.00 for carpets to the other two bedrooms.  Two copies of the same invoice, number 16985, were submitted, both handwritten: one for £110.00 and one to which had been added a further “+90”. The claimant claimed £110.00 for each carpet, plus underlay of £160.00.  She said that reference to underlay on the invoice referred to the backing of the carpet, rather than separate underlay for which she claimed an additional amount.

22.         The respondent originally offered £380.00, but then reduced this to £200.00 after realising that there was duplication in the claim.  The first copy of the invoice was for £110.00 which included a roll of underlay.  A further £90.00 was added to the second copy of the invoice for a second carpet.  At that point the amended invoice said that deposit of £20.00 had been paid, with £180.00 owing.

23.         Having considered all of the evidence on this point I find that the underlay was included in the original sum of £110.00, to which £90.00 was added for the second carpet.  I am satisfied that the respondent’s offer was reasonable and I award to the claimant £200.00 for carpeting.

Curtains

24.          The claimant claimed £441.00 for curtains.  A handwritten receipt had been submitted, which was originally in the sum of £144.00 – this had been crossed out and £441.00 substituted for it. The claimant said that the £144.00 was simply a mistake.  The claim comprised £156.00 for window net curtains, £180.00 for curtains, £18.00 for door net curtains, and £50.00 for door curtains.  To this £37.00 was then added for a further curtain.

25.         The respondent said that any curtains in the former property were old and torn and referred to photographs in the bundle. Ms Wrenn said that there were no heavy curtains at the former property.  Based upon its experience in other claims, the respondent considered £150.00 to be a reasonable sum, and offered this as a gesture of goodwill. 

26.         Whilst the claimant accepted that the new curtains were better than those at the former property, in my view it is unrealistic to expect the claimant to simply use the curtains from the former property at the new property.  The second charter indicated that the respondent would expect the claimant to use the old curtains, altered if necessary, as much as possible.  After that, the respondent would pay for “middle range” curtains to a value of £15 per m².   

27.         Whilst no measurements were submitted, I have had regard to the fact that the new property was a three bedroomed house. It is not unreasonable for the claimant to be compensated for curtains. In the circumstances I consider an appropriate amount to be £300.00, and I award this to the claimant.

Curtain Poles

28.         The claimant claimed £183.59 for curtain poles.  Two till receipts were submitted.  The respondent disputed the claim, and offered £120.60, on the basis that some items on the till receipts were irrelevant, at least one item was returned, and that the claim did not allow for a staff discount that had been applied.

29.         The two till receipts aggregated to £183.59.  But this was before a staff discount of 13%, and also included a wide range of items that do not amount to disturbance compensation – coat hooks, photo frames etc.  The respondent’s offer appeared to be for curtain poles only.  I find it to be reasonable and I award £120.60 to the claimant.

Bunk beds

30.         The claimant claimed £810.00 for two bunk beds, comprising £450.00 for one bed and £360.00 for the other. Receipts were submitted in support of the claim.  She said that the old bunk beds, which were left at the former property, could not be taken apart and were damaged in the attempt to do so.

31.         The respondent disputed the claim, on the basis of betterment.  There was no evidence that the beds could not be moved.  The claimant had claimed for two adult beds where one of the old beds was plainly a child’s bed.  It agreed to pay £450.00 as a gesture of goodwill.

32.         Having considered the evidence I prefer the respondent’s evidence. One of the beds left at the former property was clearly a child’s bed, whereas the claimant accepted that an adult’s bed was claimed for as a replacement. I consider the respondent’s offer to be reasonable, and award £450.00 to the claimant.

Sofa

33.         The claimant claimed £1,130.00 for a replacement sofa.  The basis of the claim was that the sofa was too large for the new property, and that subsequently that the sofa was torn or broken by the respondent’s removal men when it was being taken from the former property.  She said that it was left in the hall of the former property.   As a result of the sofa breaking, she also left the chairs as they would no longer match any new sofa that she would buy. A receipt was submitted in support of the claim, for “3+2+1”, at £1,130.00.   The claimant confirmed that this was for a three-piece suite.

34.         The respondent disputed the claim on the basis that the lounge in the new property, at 19.3 sqm was larger than that in the former property, at 16.43 sqm.  It also said that the basis of the claim changed over time and was unreliable.  Evidence from the removal company had been submitted that recorded that a two-seater and three-seater sofa had been moved from the former property to the new property.  Ms Wrenn’s evidence was that there was no sofa at the former property after the claimant had left.

35.         I do not consider that the claimant’s case was sufficiently reliable to justify the claim.  The basis of the claim changed over time, including during the course of the hearing.  There was no evidence that properly supported the claim, and I make no award to the claimant for this item.

Washing Machine

36.         The claimant claimed £475.00 for a new washer-dryer.  She said that this was purchased in August 2012, and submitted a receipt in support of the claim.  From the date of move until August 2012, she hand-washed and used a launderette.  The old washing machine was left at the property, because it was too large to fit in a standard sized space. 

37.         The respondent disputed the claim.  It said that the washing machine was moved to the new property and plumbed in. The claim constituted betterment because the original machine was not a washer-dryer.  The photographs submitted showed that the washing machine was not left at the former property.

38.         Again, having reviewed the claim, I find the claimant’s evidence to be unreliable.  The washing machine was not left at the former property, and the photographs suggested that it could not have been over-sized. The remainder of the claim lacked credibility in my view. I make no award to the claimant.

 

Wardrobe

39.         The claim was in the sum of £470.00 including delivery and fitting. A handwritten receipt in this amount was submitted.  The claimant accepted that the old wardrobe was not in good condition.

40.         The respondent confirmed that the wardrobe was in poor order, indeed it had no doors.  A photograph appeared to show that this was the case.

41.         In the circumstances I do not consider the claim amounts to a claim for disturbance within section 38. The only reason the wardrobe could not be re-used was because of its condition. Any new wardrobe would be a clear improvement on the old one. I make no award to the claimant for this item.

Cooker

42.         The claim was in the sum of £450.00 for a new cooker. The claimant said that the glass to the old cooker door was broken during the move.  She subsequently replaced it on 1 September 2011, largely for safety reasons.

43.         The respondent disputed the claim, saying that there was no record from the removal company to suggest that the cooker was damaged during the move.  It also doubted the credibility of the claim, on the basis that the claimant did not raise the issue of damage with them or the removal company at the time of the move, and pointed to the delay in the claimant buying a new cooker, a month after the date of the move.

44.         Again, I am not satisfied on the claimant’s evidence alone that a new cooker was required.  There was insufficient evidence in support of the claim, and I make no award to the tenant.

Connection costs of cooker and washing machine

45.         The claimant claimed £100.00 for the reconnection of the oven and washing machine.  No receipts or paperwork were submitted.  The respondent said that the appliances were reconnected by the removal contractors. In respect of the oven, the claimant accepted that she used it for a month before replacing it.  I am not satisfied that reconnection charges were incurred by the claimant, and I therefore make no award to the claimant for these.

 

“Replacement” of front door

46.         This element of the claim was in the sum of £185.00.  This was not for a replacement front door, but for a second front door, in front of the original door to form an enclosed porch.  The claimant said that the existing door was inadequate.

47.         Ms Wrenn said that it was common, owing to the arrangement of the front of these properties, for the occupier to enclose the porch area in this way, particularly when a former tenant had exercised their right to buy.    The schedule suggested that a new upvc front door had been fitted.

48.         Having reviewed the evidence I do not doubt that the work was carried out, but it does not fall within s.38(1)(a), as it was not made necessary by the claimant’s removal from the former property but was simply for the claimant’s convenience.  I make no award to the claimant for this item.

“Sky” connection

49.         The final element of the claim was for the claimant’s “Sky” connection.  Again, little evidence was submitted in support of the claim, and the amount claimed of £150.00 was, in my view correctly, criticised by Mr Mills as being simply plucked out of the air.

50.         Some paperwork was submitted at the Hearing which confirmed that there was a “Sky” connection at the new property.  What was not clear was whether there was an installation charge, or whether installation was free when a contract was entered into.  Insufficient evidence was submitted in support of the claim, and I make no award to the claimant.

Summary

51.         I summarise my award as follows;

          Floor:                 £1,136.70

          Carpets:             £200.00

          Curtains:            £300.00

          Curtain poles:    £120.60

          Bunk Beds:        £450.00

 

          Total:                 £2,207.30

         

52.         I therefore determine that the respondent shall pay to the claimant £2,207.30 disturbance in accordance with the provisions of the relevant parts of ss.37 and 38 of the Land Compensation Act 1973.

53.         The case was determined under the Tribunal’s simplified procedure, and I make no award as to costs. 

54.         I would however, add this.  I found the claimant’s evidence to be unreliable in many aspects of the claim.  On some issues the claim was obviously not due to her removal from the former property to the new property.  On others, there was either no evidence in support of the claim, or the veracity of documents was questionable, or the basis of the claim changed over time. 

55.         Claimants are quite entitled to apply to the Tribunal to determine compensation under circumstances such as these.  They should not be discouraged from doing so, nor from representing themselves.  However, they should ensure that the basis of the claim is supported by credible evidence if it is to succeed.  It is inappropriate to simply claim anything and everything with a hope of at least some of it succeeding, as seemed to be the case here.  I would remind claimants that under the Tribunal’s simplified procedure costs can be awarded against a party for unreasonable conduct.

 

                                                                                    Dated: 28 May 2014

 

 

 

 

                                                                                    P D McCrea FRICS