Contribution criteria - Financial Assistance Package
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To be a qualifying claimant under the Weathertight Homes Resolution Services Act 2006 (“the Act”), and eligible for a Crown contribution to their agreed repair costs for repairing a dwellinghouse a homeowner must:
(a) have an eligible claim as defined in section 10 of the Act*; and
(b) meet the criteria set out in Clause 1 of this notice.
To be eligible for a contribution to their agreed repair costs for repairing the dwellinghouse from a Participating Territorial Authority, the homeowner must also meet the criteria in Clause 2 of this notice.
Definitions
In this notice:
Act
means the Weathertight Homes Resolution Services Act 2006.
Agreed Repair Plan
means a repair plan agreed in accordance with criterion 1E below.
Existing claimants
means claimants who have lodged a claim under the Act prior to the date of this notice.
Financial Assistance Package
means the package of financial assistance measures being offered by the Crown and any Participating Territorial Authority to qualifying claimants.
Participating Territorial Authority
means a territorial authority who has agreed to participate in the Financial Assistance Package.
Other terms in italics in this notice are defined in the Act*..
The headings in this notice are for convenience only and do not affect the interpretation of the clauses of this notice.
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Clause 1: Crown Contribution Criteria
To qualify for a contribution from the Crown all of the criteria in this clause 1 must be met:
A. No prior settlement:
The dwellinghouse must not have been the subject of a settled weathertight claim with a Participating Territorial Authority, whether that settlement was reached by agreement, mediation, through adjudication or any other civil proceedings.
B. WHRS Mediation and Adjudication:
If the claimant has applied for adjudication under the Act (regardless of whether the claimant has commenced mediation or adjudication) and the relevant Participating Territorial Authority was either named as a party in the application or later joined to the application then:
(i) the Participating Territorial Authority must agree to the claimant receiving a financial contribution under the Financial Assistance Package; and
(ii) the claimant must withdraw from adjudication in accordance with section 67 of the Act.
To avoid doubt, a claimant will not be required to withdraw an application for adjudication until all other applicable criteria are met.
C. Other civil proceedings:
If the claimant has applied for or is involved in any other civil proceedings relating to the weathertightness of the dwellinghouse where the relevant Participating Territorial Authority is named as a party, or has been joined as a party:
(i) the Participating Territorial Authority must agree to the claimant receiving a financial contribution under the Financial Assistance Package; and
(ii) the claimant must discontinue the civil proceedings entirely,
(iii) if the claimant has applied for mediation or adjudication under the Act in respect of the same dwellinghouse the claimant must also comply with clauses 1B(ii).
To avoid doubt, a claimant will not be required to discontinue civil proceedings until all other applicable criteria are met.
D. Assessor’s report:
Subject to the criteria in clause 1I, the claimant has obtained a full assessor’s report or a concise assessor’s report (but only if offered by ("the Department")) under the Act*.
E. Agreed Repair Plan:
Subject to the criteria in clauses 1H and 1I, a repair plan has been agreed to between the claimant and the Department.
F. Financial means:
Subject to the criteria in clauses 1H and 1I, the claimant must demonstrate to the Department’s satisfaction that they can pay their share of the cost of the works shown in their Agreed Repair Plan (taking into account the amount which will be contributed by the Crown and any Participating Territorial Authority and any contingency amount required by the Department).
G. Existing claimants to decide in 3 months:
Existing Claimants who have not yet applied for adjudication under the Act must advise the Department in writing that they wish to be assessed to determine whether they meet the criteria set out in this notice by no later than the date which is three months after the date of this notice.
H. Existing claimants with full assessor’s report who have undertaken repairs:
Claimants who:
(i) have an eligible claim as at the date of this notice; and
(ii) have carried out or physically commenced weathertight repairs to the relevant dwellinghouse (whether or not the repairs have been completed) before the date of this notice which the claimant wishes to have included in the agreed repair costs;
(iii) have a full assessor’s report that encompasses all weathertight repairs they wish to include in their claim;
(iv) had building consent granted for the repairs on or after 1 November 2009,
are eligible for a contribution provided that:
(v) criteria 1E and 1F will only apply to the extent that the repairs have not been completed; and
(vi) all other applicable criteria are met; and
(vii) the repairs have been carried out in accordance with all applicable laws and are satisfactory to the Department.
Where this criterion applies the claimant will be required to provide evidence of the scope and costs of the repairs to the satisfaction of the Department which will be reviewed against the estimate in the full assessor’s report. The agreed repair costs will be an amount determined by the Department. When considering the scope of repairs carried out, the Department will take into consideration the definition of repair in the Act and whether any aspects of the repair works constitutes betterment.
I. Existing claimants without a full assessor’s report who have undertaken repairs:
Claimants who:
(i) have an eligible claim as at the date of this notice; and
(ii) have carried out or physically commenced repairs to the relevant dwellinghouse (whether or not the repairs have been completed) before the date of this notice which the claimant wishes to have included in the agreed repair costs;
(iii) cannot obtain a full assessor’s report;
(iv) had building consent granted for the repairs on or after 1 November 2009,
may be eligible for a contribution, provided that:
(v) criterion 1D will not apply; and
(vi) criteria 1E and 1F will only apply to the extent that the repairs have not been completed; and
(vii) all other applicable criteria are met; and
(viii) the repairs have been carried out in accordance with all applicable laws and are satisfactory to the Department.
Where this criterion applies the claimant will be required to provide evidence of the scope and costs of the repairs to the satisfaction of the Department. The agreed repair costs will be an amount determined by the Department. If the evidence of costs provided by the claimant is not satisfactory to the Department then the claimant will not be eligible for a contribution. When considering the scope of repairs carried out the Department will take into consideration the definition of repair in the Act and whether any aspects of the repair works constitutes betterment.
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Clause 2: Participating Territorial Authority Contribution
Subject to clause 2C, to qualify for a contribution from a Participating Territorial Authority:
A. the claimant must meet all of the criteria set out in clause 1; and
B. the territorial authority must owe a duty of care to a person in the position of the claimant in respect of the damage to which the full assessor’s report or the concise assessor’s report (as applicable) relates.
C. A claimant who:
(i) has previously been or is currently involved in any civil proceedings relating to the weathertightness of the dwellinghouse where the relevant Participating Territorial Authority is named as a party, or has been joined as a party; and
(ii) discontinues those proceedings before lodging a claim in accordance with the Act,
will not qualify for a contribution from the Participating Territorial Authority, unless the Participating Territorial Authority agrees otherwise.
Without limiting clause 2B above, as at the date of this notice:
1. the intended use of the dwellinghouse when built will be relevant to whether a Participating Territorial Authority has a duty of care, generally the intended use must have been for residential purposes; and
2. the Participating Territorial Authority may not owe a duty of care to dwellinghouses within mixed use developments depending on the proportion of the residential component of the development;
3. a Participating Territorial Authority will not be required to contribute in circumstances where:
(a) the relevant territorial authority did not inspect the dwellinghouse or issue a code compliance certificate or interim code compliance certificate for the dwellinghouse.
(b) the relevant territorial authority issued a code compliance certificate for the dwellinghouse because required to do so by the Department of Building and Housing by a determination under subpart 1 of Part 3 of the Building Act 2004.
(c) the relevant territorial authority issued a code compliance certificate or interim code compliance certificate for the dwellinghouse for non-weathertight aspects of the dwellinghouse only.
(d) a private certifier carried out all inspections and issued a code compliance certificate, regardless of whether the relevant territorial authority holds the private certifier’s records.
(e) the relevant territorial authority issued a code compliance certificate or interim code compliance certificate for the dwellinghouse in reliance on a certificate from a private certifier issued under section 56 of the Building Act 1991 in respect of weathertightness related work.
(f) the relevant territorial authority never inspected the weathertightness related work forming part of the dwellinghouse.
(g) the relevant territorial authority inspected the weathertightness related work and either:
(i) issued a notice to fix (under the Building Act 2004);
(ii) issued a notice to rectify (under the Building Act 1991); or
(ii) otherwise advised the homeowner of any defects,
and a code compliance certificate was never issued.
(h) The claim relates to a dwellinghouse within a retirement village within the meaning of the Retirement Villages Act 2003, and the owner by or on behalf of whom the claim is made is the retirement village’s operator or promoter as defined in that Act.
For the avoidance of doubt the above circumstances are not the only circumstances in which a claimant may not receive a contribution from a Participating Territorial Authority.
For further information please contact the Department of Building and Housing on 0800 116 926.
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