Problems with TDS - advice needed

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  • Problems with TDS - advice needed

    Hi - we have just received a TDS adjudication which leaves us seriously out of pocket. It states it is non-appealable but would welcome advice on any other action that could be taken (we have obviously lodged a complaint with TDS).

    In summary - deposit ended up in dispute at end of tenancy with the T querying every deduction. We corresponded for several months (we did not have the time to initiate court proceedings at the time and hoped that matters could eventually be agreed). T then referred to TDS - we eventually received notice c. 5 months after the tenancy and the LA said the deposit was passed to them (without reference to us).

    Our contract does not allow for this referral so late so the deposit should not have been released like that, but that is not the main point:

    We received the notice from TDS when my co-landlord was seriously ill in hospital and I had a child who was only days old and in intensive care.

    I immediately (same day I got their letter, the day after the letter is dated)emailed TDS to say that we were not in a position to present a case at that time and told them the reasons. They sent a "confirmed receipt" email back so we know they got this.

    I also pointed out that they had sent us the "notification of dispute" form without the attachments so we did not either know what the "case" against us was or what the "evidence" was. [Correspondence by then was extensive and acrimonious and it was not obvious what points T was then contesting as they had switched positions on some items several times].

    After the email from them ackowledging receipt of ours we heard nothing further - and with a new (very ill) baby focussed on other things. Then out of the blue we received an adjudication which also included a cheque - leading me to believe that T has been sent the balance.

    Unsurprisingly the adjudication is not favourable to us with the ICE saying in several places words to the effect of -"if the landlords had been bothered to present a case my judgement might have been different".

    My hunch is that although TDS received the email pointing out that they had not sent the case or the evidence and that we were not in a position to respond then, they failed to read it or action it properly due to some admin error their end. ICE then proceeded on a "deemed consent" basis.

    Incidentally T, having prevaricated for months, suddenly referred to TDS only when they knew we were not in a position to respond - so it feels like we have been professionally turned over by the T.

    Any advice on how we should proceed other than lodging a complaint?
    Also does anyone have experience of their complaints process - if so any advice appreciated.

  • #2
    We wholly sympathise with you. We recently had a similar experience with the TDS and would never use them again. Likewise we received a copy TDS2 Form submitted by the tenants and under the heading "reasons for the dispute" the notes had been typed on a separate sheet which was not included in the envelope to us. I did indeed phone the TDS and said how can we possibly respond to something we can´t see!!! and asked for a copy of the notes when I was told that that was not possible...unbelievable! We submitted much evidence in support of our claim against the return of the deposit we even had digitally dated photos taken before & after however, despite this and other revidence the TDS ruled in favour of the tenants even though they had not submited any evidence whatsoever!!!!!!!!!!!!!!!!!!! how can this be? From personal experience I think it is a very unfair scheme

    Comment


    • #3
      Originally posted by Rossi View Post
      We wholly sympathise with you. We recently had a similar experience with the TDS and would never use them again. Likewise we received a copy TDS2 Form submitted by the tenants and under the heading "reasons for the dispute" the notes had been typed on a separate sheet which was not included in the envelope to us. I did indeed phone the TDS and said how can we possibly respond to something we can´t see!!! and asked for a copy of the notes when I was told that that was not possible...unbelievable! We submitted much evidence in support of our claim against the return of the deposit we even had digitally dated photos taken before & after however, despite this and other revidence the TDS ruled in favour of the tenants even though they had not submited any evidence whatsoever!!!!!!!!!!!!!!!!!!! how can this be? From personal experience I think it is a very unfair scheme

      I'd agree with the above.

      Everything I have heard about the TDS adjudication schemes leads me to the conclusion that they are staffed by cretins with absolutely no knowledge whatsoever of landlord/tenant or contract law, very little understanding of the basic concepts of natural justice or the rule of law (eg: as in when they told you that you couldn't be provided with a copy of the tenant's statement) and no idea whatsoever about how to judge the relevance, weight and probative value of evidence. I suppose the shockingly poor decisions outlined above are simply the obvious outcome of employing non-legal and not particularly intelligent carbon blobs to hand out rulings on legal issues.

      AVOID! AVOID!

      If you get into a dispute over a deposit, then exercise your rights to take the matter to court, where at least you will get a proper judge who understands the above matters.


      Toddster and Rossi - it is possible to appeal a perverse ruling of a TDS scheme. I wrote a couple of fairly extensive posts on the subject a while back. Do a search including the terms "TDS" and "Arbitration Act".
      Health Warning


      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

      Comment


      • #4
        But if you do choose to go through the court and the agent is holding the deposit in one of the insurance based schemes do they hand it over to the tenant go to court and if the L/L wins try to recover the award from the former T. Or keep hold of the disputed amount go to court and if L/L wins the funds are already in place.

        Comment


        • #5
          Originally posted by johnboy View Post
          But if you do choose to go through the court and the agent is holding the deposit in one of the insurance based schemes do they hand it over to the tenant go to court and if the L/L wins try to recover the award from the former T. Or keep hold of the disputed amount go to court and if L/L wins the funds are already in place.
          In the event of a dispute, the deposit must be paid over to the TDS scheme, who will hold it until the dispute is resolved (either by agreement or order of the Court).
          Health Warning


          I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

          All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

          Comment


          • #6
            Thanks Agent46 for responding

            Our LA DID NOT hand over the deposit to the TDS as noted in the ICE´s report back to us nor did the LA provide us with an Inventory exit report which incidentally we paid for this service as part of the fully managed service.

            Not having the check in/out report cost us dearly and we were not award any of the deposit to part cover damages etc left by the tenants which were in excess of 6,000).

            In our case the ICE stated in the report that "had the inventory checkout been available then the outcome may very well have been different"...... At the time of submitting our response to the TDS and again during the adjudication process we wrote, emailed and even telephoned the TDS advising that the LA were upholding from us the Inventory check in/out report and asked the TDS for the intervention. We also asked the TDS to send copies of all documentenation submitted by tenants and LA including the dispute NOTES in order we could respond accordingly. The TDS completely ignored our pleas for assistance in this respect but accepted accepted as evidence a very brief letter (5 lines in total) from the LA to the T stating that "the T´s had left the property in a good clean condition and that they would have no hesitation in the deposit, in full, being returned to the tenants immediately".... The contents of this letter were far.. far from the truth and how the TDS can accept and make a decision based on a letter as oppose to a properly conducted and duly completed Inventory report beggars belief.... We feel the TDS should have insisted that the LA hand over vital documents to the case in order to make a fair assessment, this never happened and as a consequence the full deposit was return to the tenant with the help of the LA!!!!! unbelievable

            We had long ago lost all trust, confidence and faith in the LA and did not believe that they were acting in our best interest but that of the tenants. Some weeks before the tenancy was due to expire, we wrote to the LA informing them that we wished to secure the deposit in a scheme of our choice but they refused its release. They wanted to continue to control it and obviously knew how flexible the TDS appear to be when it comes to submitting supporting evidence!!!!!!!!!!!!!!!!!!)

            Can we take this matter further as we believe the judgement is final and binding? Would appreciate any suggestions you may have regarding this disgraceful situation

            thank you

            Comment


            • #7
              Thanks for the post and pointers, agent46 (and indeed others). Looking at the references in agent46’s post and then following up in the Arbitration Act - in s68 you can challenge the ruling if there are “serious irregularites” which include:

              (a) failure by the tribunal to comply with section 33 (general duty of tribunal);

              (c) failure by the tribunal to conduct the proceedings in accordance with the procedure agreed by the parties;


              Section 33 reads –

              General duty of the tribunal
              (1) The tribunal shall—
              (a) act fairly and impartially as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and
              (b) adopt procedures suitable to the circumstances of the particular case, avoiding unnecessary delay or expense, so as to provide a fair means for the resolution of the matters falling to be determined.
              (2) The tribunal shall comply with that general duty in conducting the arbitral proceedings, in its decisions on matters of procedure and evidence and in the exercise of all other powers conferred on it.

              I cannot see how TDS could argue that they have complied with 1 a) of the general duty given they have proceeded to arbitration knowing that they have not sent the case to the landlord, not shown the landlord the evidence and the landlord has stated reasons why he is unable to present a “defence” case at the time.

              I also have never agreed any “procedure” by which TDS would consider the case: While the contract did allow for a referral to TDS (in circumstances that did not apply, but that is a different problem), there is no mention of any rules/processes/procedures that TDS would apply.

              I did not, and indeed would not, sign the form they sent agreeing that such arbitration was “final and binding” without some clarification of how they would arrive at the adjudication and being clear about what I needed to provide by way of evidence; judging by other comments on this board, such caution is necessary with TDS.
              In the circumstances I cannot see how TDS could maintain that they have conducted “proceedings in accordance with the procedure agreed by the parties” since I have not agreed a procedure, either directly or by reference in any other contract I have signed.

              Do people agree or am I mad?

              Then there is a real problem – they have “deemed my consent” as a result of the tenancy contract and (I believe) having not read or responded appropriately to my response to them. A propos of nothing (they have not explained this) they also appear to have “deemed” that I agree to their adjudication being binding and have duly sent most of the deposit back to the tenant. I stand little realistic prospect of recovering this now whatever the rights or wrongs of the situation, given that T appears to be dishonest in a number of respects and even the letting agent stopped dealing with him properly after a while saying he was confrontational and aggressive.

              So, how do I get my money? TDS need to stand good the loss in my view, but I suspect they will need some persuading….

              Comment


              • #8
                Rossi - you were probably typing as I was. Sounds like our cases a v.similar; our LA effectively threw in the towel with the T as the path of least resistance after complaining of aggressive behaviour from the T and that he breached the contract on several occasions. They now will not put anything in writing and are looking to wash their hands ASAP.

                Is your LA a member of ARLA? They have a code of conduct which obliges LA to amongst other things "act in the best interests" of their client, make sure a checkout report is done "thoroughly and a sufficiently detailed report prepared". They are also under a general duty in the event of a deposit dispute - "reasonable endeavours should be made to ensure that the process is fair and equitable and supported by appropriate documentation".

                My LA has not followed these points either and I wrote to ARLA last week - we will see whether or not they have any teeth and I will let you know.

                See my earlier post for some pointers on TDS. Have you lodged a complaint with TDS about their conduct? Apparently there is a bit of a backlog at the moment ........

                Comment


                • #9
                  At Todd and Rossi:

                  I've not got time to answer the specific detail of your points, but I would say you both appear to have a case against your letting agents for any or all of the following:

                  (a) Breach of the implied term of "reasonable care and skill" in their contract for services.

                  (b) Negligence.

                  (c) Breach of their fiduciary duties towards you (if relevant- ie: if they didn't hold the deposit).

                  (d) Breach of trust/duties as stakeholder for the deposit (if relevant - ie: if they held the deposit).

                  Note that (c) & (d) are mutually exclusive.
                  Health Warning


                  I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                  All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                  Comment


                  • #10
                    it does sound like you got shafted by the LA. I can understand the decision if they didn't have copies of the inventories. As for the other case, it does seem that there is a case for giving some more time to submit a case.

                    In my limited experience TDS will change their mind after an adjudication if they are shown that the decision was wrong (have seen it maybe twice - but fairly limited experience). I think there is a complaints process you need to go through. They are also fairly keen on the idea that a landlord (or agent) needs to prove their case. I've also seen the 'if the landlord had sent some stuff in then I'd have changed my mind'. It does seem like a fairly reasonable tack to take if you ask me. It is the landlord's job to show what the claim is.

                    Does the Arbitration Act cover TDS? I thought it was an adjudication scheme, not an arbitration scheme?

                    I'm sure I saw a post on one occasion on here where the head honcho posted? Perhaps someone can dig it out?


                    In case of interest, I found this on their site:

                    Senior staff of The Dispute Service Ltd

                    Ben Beadle (Casework Scrutiny Manager) had been a lettings manager before he joined TDS. In his spare time he is Appointments Secretary for the Middlesex Football Association and a keen referee.

                    Alex Britchfield (Casework Scrutiny Manager) was involved in day-to-day property lettings and management for over 10 years. He is a Fellow of both the Association of Residential Letting Agents and of the National Association of Estate Agents.

                    Angela Dickens (Operations Manager, Disputes) has been with The Dispute Service Ltd since its inception and supervises the ADR process.

                    Maureen Fitzgibbons (Financial Controller) is responsible for the supervision of TDS’ finance and accounting functions, membership subscriptions, and general office and human resource management. She is an Accounting Technician with extensive experience in private practice and commerce including accounts preparation, auditing, and finance management. A Member of the Association of Accounting Technicians, she is currently undertaking post-graduate studies for a Diploma in Management Services.

                    Prior to joining TDS, Sandy Fisher (Casework Scrutiny Manager) worked as lawyer for a city law firm. She initially became a fellow of the Institute of Legal Executives (FILEX) and worked mainly on commercial property and management work. She qualified as a Solicitor in 1999 and since then has concentrated solely on all aspects of residential sales, purchases and lettings. Sandy has also advised at Paddington Law Centre on various housing and consumer issues.

                    Lawrence Greenberg (Independent Case Examiner) was Secretary of the Housing Tenants Ombudsman Scheme 1993-97 and General Manager of its successor, Independent Housing Ombudsman from 1997-2003. In the latter capacity he was Chair of the British & Irish Ombudsman Association Managers Group from 1998-2001. Lawrence was director of both the pilot and voluntary tenancy deposit schemes. He is a qualified mediator and arbitrator.

                    Josy Haigh (Casework Scrutiny Manager) worked for a Local Authority Legal Department for 10 years with the last five years being within the Commercial Contracts Section and Conveyancing Section as an Assistant Legal Officer. Subsequently she worked as a paralegal in private practice dealing, amongst other things, with Assured Shorthold Tenancies (from the opening of the file through to completion) and the preparation of the Agreements on behalf of Landlords. Josy also advised Landlords on Tenancy Deposit Schemes.

                    Maldwyn Jones (Deputy Independent Case Examiner) is a qualified Chartered Surveyor. He spent the first stage of his career in a general practice partnership based in Cheshire before concentrating on residential sales with a large corporate estate agency group. In 1996 he moved across into residential lettings and two years later joined Blackhorse Agencies which subsequently became Bradford & Bingley Letting Agents. In 2004 the business was acquired by Countrywide Residential Lettings who he left in summer 2008 prior to joining The Dispute Service.

                    John King (Casework Scrutiny Manager) has been in Agency for more than 26 years. He worked with Black Horse Agencies in North West London in the early Nineties. More recently he set up a new lettings department for Robsons Estate agents in Northwood, and before that was running a lettings and management team for a multi office partnership on Harrow on the Hill. John is a long term member of the NAEA and ARLA.

                    Elizabeth Knight (Deputy Independent Case Examiner) was previously a senior investigator at the Financial Ombudsman Service.

                    Alison MacDougall (Deputy Independent Case Examiner): was previously a Member, Police Complaints Authority (2000-2004) and an Adjudicator, Office of the Independent Adjudicator for Higher Education 2004-2007. She has also been an Associate Investigator, Parliamentary and Health Service Ombudsman since 2005.

                    Helen McCarthy (Outreach Manager) prior to joining the organisation, Helen worked as a trainer/consultant in the letting industry and as a freelance adjudicator for The Dispute Service. Her role as a trainer included running a ‘damages & deposits’ course for property professionals. The course aims were to help the agent to be better equipped to deal with the settlement of deposits and to be able to present a clear, relevant and practical case to the ICE, if it became necessary. Before this, Helen worked for many years in both sales and lettings, working her way up through the ranks until she became director of a lettings agency based in Brighton. She has also worked as a Rent Officer where she was responsible for carrying out rental valuations and fair rent determinations for regulated tenancies.

                    Mike Morgan (Deputy Independent Case Examiner) worked for Hertfordshire Trading Standards running a consumer advice team before moving to Qualitas Furnishing Standards (which subsequently became The Furniture Ombudsman).

                    Many of our 50+ Adjudicators have experience of other ADR and Ombudsman schemes.

                    Comment


                    • #11
                      I can only see 1 lawyer and 1 paralegal in that list of senior staff, whereas there are 5 former estate/lettings agents. On paper at least, to me that looks like the wrong balance.

                      Additionally, what are the qualifications and professional backgrounds of the people making the actual decisions? I would imagine that an awful lot also depends on the quality and throroughness of the oversight; if, perhaps, the legal bods were to review and sign off every adjudication, then that might be sufficient. But, as I've said before, from what I have experienced myself and from what I have heard from others, I have my doubts about that.

                      In summary, given the choice between having a case adjudicated on:

                      (a) by an independent judge, who, having seen and HEARD all the evidence, brings his/her many years of experience, knowledge and training as both lawyer and judge to bear on the matter before the Court; or

                      (b) by a TDS adjudicator who works for an organisation set up with the aim of protecting the interests of one of the parties to the dispute but not the other, who is (probably) not legally qualified, who makes their decision on the basis of the paperwork alone, and whose work may or may not be subject to scrutiny by a lawyer.

                      ....it's a bit of a no-brainer IMHO.

                      Re: the arbitration/adjudication issue. You make a good point, possibly (no time to dig into the matter any deeper I'm afraid). However, I would be very surprised if adjudications that involve such flagrant breaches of natural justice such as witholding evidence or details of the other side's case from a party were allowed to stand unchallenged. I have a feeling that the High Court would exercise its inherent jurisdiction in such cases. Also, as the TDS is, possibly, a body exercising functions of a public nature, its decisions might be amenable to judicial review.
                      Health Warning


                      I try my best to be accurate, but please bear in mind that some posts are written in a matter of seconds and often cannot be edited later on.

                      All information contained in my posts is given without any assumption of responsibility on my part. This means that if you rely on my advice but it turns out to be wrong and you suffer losses (of any kind) as a result, then you cannot sue me.

                      Comment


                      • #12
                        http://www.landlordzone.co.uk/forums...d.php?p=125257

                        This is the thread I meant. Doesn't look like those with the issues actually raised them further though, or if they did I've not spotted them.

                        Comment


                        • #13
                          Interested in the arbitration vs adjudication point - and have investigated without success. TDS appear to be extremely opaque about exactly what they are doing and why, with very little information on either their website or published forms. For instance:

                          TDS aim to settle disputes "fairly" but what does this mean? I think most people assume that they are trying to get to the same end-result that a court would, albeit quicker and cheaper. Do they actually say this anywhere? If not, what is their aim? How do they define it?

                          Also most people assume that evidence requirements and evaluations will be as for a court process - I have, however, been unable to find anywhere where they say this. Since, judging by some of the posts on this forum, they may operate totally different standards, why do they not publish clear examples of how certain (commonly arising) pieces of evidence will be evaluated? A court process is open and you can obtain (at cost) pretty clear guidance as to how things normally work; TDS seem to do something different but not tell anyone they are doing so and provide no guidance that is relevant.

                          Worth noting that the assumption above that they are quicker and cheaper is also wrong. My T has paid (through lost interest on the deposit) a premium to use TDS rather than a (small claims) court; in practice TDS also do not seem to meet their time targets for turning around issues either - so if they are not quicker or cheaper, why would a T use them unless there is an inherent bias in their favour?

                          And, if that is the case, agent46 has to be right that these people are worth avoiding by LL until they have learnt to be a bit more open and transparent about who they are and what they are doing, to understand the importance of some of the issues they are dealing with and are competitive in terms of time and cost.

                          Comment


                          • #14
                            Originally posted by toddster View Post
                            I also have never agreed any “procedure” by which TDS would consider the case: While the contract did allow for a referral to TDS (in circumstances that did not apply, but that is a different problem), there is no mention of any rules/processes/procedures that TDS would apply.
                            Do people agree or am I mad?

                            Then there is a real problem – they have “deemed my consent” as a result of the tenancy contract and (I believe) having not read or responded appropriately to my response to them. A propos of nothing (they have not explained this) they also appear to have “deemed” that I agree to their adjudication being binding and have duly sent most of the deposit back to the tenant. I stand little realistic prospect of recovering this now whatever the rights or wrongs of the situation, given that T appears to be dishonest in a number of respects and even the letting agent stopped dealing with him properly after a while saying he was confrontational and aggressive.

                            So, how do I get my money? TDS need to stand good the loss in my view, but I suspect they will need some persuading….
                            Personally, I wouldn't bother arguing with the TDS - I don't see how the adjudication can be binding in the circumstances you describe - I'd issue a court claim against the tenant for the full cost of the damage and leave it for the judge to decide whether the adjudication is binding or not.

                            In any case, the cost of damages are (well) over the deposit amount so how on earth can the TDS make a 'ruling' regarding a sum of money it wasn't protecting? It can't prevent LLs from seeking remedy for sums above and beyond the deposit amount.

                            Comment


                            • #15
                              I would love to be able just take matters into my own hands, but TDS have really prejudiced my position:
                              - Deposit was substantial and does actually (largely) cover the damage, but they appear to have released it without authority (although TDS appear too bureaucratic to respond to urgent enquiries). Even if I win a CCJ against T that does not mean I will ever receive the money. Deposits are meant to protect against this credit risk - TDS have effectively left me in the position I would be in if I had never bothered with the deposit in the first place (and worse because of the adverse paper trail until that is withdrawn/set aside).

                              - Litigation was probably always likely but there are merits for me in being the "defendant", i.e. waiting to see whether he has the cheek to come after me. LL and T now live 100's of miles apart and under the CC rules I would expect to be able to have the hearing local to me as the defendant, but not as the claimant. Given we have a young, ill baby that cannot be left for several nights with anyone yet, in practice I cannot enter into a process where the hearing could be so remote - I need to defend a claim rather than bring one.

                              Given the above an argument with TDS is inevitable....

                              Comment

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