Despite the comments made in my previous post on complaints about the DPS, I have received a few further emails and blog comments outlining further problems with the DPS service. In one of my comments to this post, I mention the complaints procedure which is referred to in the FAQ on the DPS web-site.
However my DPS contact has drawn my attention to the fact that this complaints procedure cannot be used in respect of the arbitration process itself. Some of the problems that people have contacted me about have been regarding the arbitration decision, in particular evidence not being passed on to the arbitrator. My DPS contact told me
“The complaints process does not apply to the ADR decision these are binding on both parties and there is no appeal process. They are made aware of this when they accept the Terms and Conditions. If we receive a complaint about the decision we do check to make sure all the evidence has been included. Often when a case is lost and the decision has been received citing lack of evidence, we receive a claim saying the evidence was sent – there will always be one unhappy party in every case.
The complaints process can be used to complain about the service they have received but not to appeal any ADR decision.”
It is an important aspect of the arbitration process that decisions must be accepted as final by both parties. This prevents the process becoming long winded and allows people to move on.
However I can understand the indignation of a landlord or tenant who finds that his case has clearly been decided wrongly. If the decision is one which no reasonable arbitrator could have come to, is it right that it should be allowed to stand? But then on the other hand, how do we know that this is that one in a thousand case which really has been decided wholly unreasonably? Almost every losing party in a case considers that his case was wrongly decided! If one appeal or case re-hearing is allowed, then everyone will want it, and the advantage of the finality of arbitration will be lost.
I think probably the answer is that if the decision does not go your way, there is not much you can do about it, at least as far as changing the decision is concerned. In life one does sometimes come across injustices which we just have to put up with. You just have to do your best to make sure it does not happen again.
However I would suggest that you do at least write and complain about it, and tell the DPS exactly what happened. If a large number of complaints are received on a particular topic this may prompt a change of procedure which could prevent the same problem happening again.
Does anyone else have any ideas or comments on this? Also, the complaints I have received have also been about the DPS service – are people happy with the service from the other two providers?
Use of the arbitration act to challenge the award? Just a thought.
Thanks Francis. I have just had a quick look at the Arbitration Act 1996.
Section 68 provides for appeal to the County Court if there is a serious irregularity, and section 69 provides for appeal to the court on a point of law. However this must only be done if all other courses of action with respect to the award have been exhausted.
Any application must be made within 28 days of the date of the awared or notification of any ‘arbitral process of appeal or review’.
Tessa Hi
Thanks for following up on this. The response of the DPS is typical – they don’t listen to what is being said and are extremely arrogant. If there was a body for them to be made responsible to, it would certainly make them consider evidence in more detail and provide reasoning behind decisions made. In my case, their is clear breach of contract which the Adjudicator agrees to in his note post-decision and the DPS did confirm that they received all reciepts, but then the adjudicator says he did not see them. So either the Adjudicator is lying or the DPS failed to pass on the recipts but either way I am left with a ruling that is totally incorrect.
If I pursue it through the County counts, would the best way to do it be through a small claims court?
thanks for your help with this
Marbles
I am afraid I don’t have any experience with claims under the Arbitration Act. I have had a quick look at the CPR and cannot see that it is one of the claims which need to use the Part 8 procedure so I would assume the normal claim form N1 would be the one.
You may however want to take some further advice from a solicitor more familiar with the act than I am.
This is the third time now a tenant dispute lodged with mydeposits has gone against us.
I’m aware that there are probably our tenants reading this blog and the last thing we want you to think is that we make a policy of charging tenants unneccessarily. Not true. Those of you who are no longer our tenants will be aware that in most cases, we do a pre-checkout inspection when a tenant gives notice.
mydeposits praised us for doing this, saying that as far as they were aware, no other letting agent ever did this. Why do we do this? Simple. When you give notice, we will arrange a property inspection straight away. The purpose of this inspection is to give you ample opportunity to put right anything in the property which may need doing (against our inventories) so that on the day we collect your keys there is none of the traditional sucking air through teeth (like a car mechanic about to rip you off) and say, :oooh, this needs attention, that needs attention”.
Nothing could be fairer as our intention is to refund tenant deposits in full wherever possible. We know you rely on this money for your next place and quite rightly, its your money!
So, with this in mind why am i totally furious and exhasperated with mydeposits?
Scenario:
Tenants move into a brand new flat. Brand new I stress – they are the first occupiers so please be correct in assuming everything is clean, tidy and NEW. 18 months or so later I do a checkout. There was no pre-checkout inspection on this occasion as this was a tenant finder for us and we only did the checkout as a favour for a valued landlord and client who was away at the time.
I noticed things were not as they should be. The ceramic hob was cracked, the fridge was filthy, the window cills were dirty, marks on the walls, marks on the carpet. I explained to the tenants there may be deductions but it was up to their landlord to decide. So doing the right thing, I took photos of the offending articles to email to the landlord. The landlord agreed with our findings and carried out the repairs/cleaning himself and advised us what to deduct from the deposit.
The tenants lodged a dispute and to cut a long story short we lost the adjudication because the photos we took of the property did not have the digital camera date and time on them! So in short, we are a bunch of liars………..I’m sorry, what other assumption can one make?
Listen mydeposits, I’m prepared to accept your decision because we agreed to the adjudication process and the decision is final. Life is a learning curve then from now on all our photos have the camera date. But you are missing one vital thing:
THEY WERE THE FIRST OCCUPIERS OF A BRAND NEW FLAT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Who else left the flat dirty and damaged?
This whole issue is the tip of an ugly iceberg. Firstly, since I understand the Arbitration Act to prohibit binding arbitration below £5,000, the legislation always avoids the phrase as far as I can see. Adjudication is what you submit to. Surely there should still be a right of appeal for gross error. Try these two:
First case landlord and tenant agree deduction of £200, dispute a further £400 and £150 agreed to be refunded to the tenant. The adjudicator awarded the whole lot back to the tenant, even the money agreed by the tenant to be given to the landlord. Surely this sort of instance is outside the remit of the adjudicator as there was no dispute over the £200.
Second example, more bizarre, £650 disputed, papers sent to agent and tenant. Agent sends papers back and is award the whole £1,300 deposit as the tenant did not file a defence. Tell me that should be tolerated or allowed?
Third example, cases refused as the leaflet prescribed by the scheme is not given (what negative effect did that have on the ability to adjudicate?) or a case where the check out was done by a different person to the person who wrote to the tenant so the case was thrown out.
Could there be a human rights angle to the right to a fair trial? Now with the new general pre action procedure where there is no specific protocol, it all but requires the use ADR if available. We have experienced judges refusing to hear a case where parties did not use ADR (in one case ADR was not used as the dispute was for more than the deposit and the ADR cannot award the landlord more than the deposit).
My deposits quoted in a newsletter this summer than over 90% of disputed money has been returned to tenants, you have been warned.
All three schemes have judgements that I, neither as winner nor loser, would say are grossly wrong.