Priya Raman: roof answer, storm damage and a maintenance condition
Priya Raman owns a 1930s semi-detached house in Leeds. Her buildings and contents policy has a buildings sum insured of £280,000 and an annual premium of £420. When she bought it three years ago, the online proposal asked: "Is the roof in good repair and free from leaks?" She answered "yes". In 2021 a roofer had patched a leak around the chimney flashing and told her it "should hold for a while"; she did not mention this. In February 2025 a named storm lifted tiles and rain entered through the chimney area, damaging ceilings and a bedroom. The repair estimate is £18,000. The loss adjuster reports that the flashing was corroded and had not been maintained for at least eight years; the storm was the immediate trigger, but water had been seeping for some time. The policy excludes "loss or damage caused by wear and tear, damp, rot or lack of maintenance" and contains a condition that "you must keep the property in good repair". Had the insurer known about the roof it would have charged £560. It has not yet decided its position.
1. Is Mrs Raman's answer about the roof a qualifying misrepresentation, and at what level of culpability?
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Qualifying misrepresentation. Under s.2 of the Consumer Insurance (Disclosure and Representations) Act 2012 a representation is a qualifying misrepresentation if it is a statement of fact made to the insurer before the contract, in response to a request for information, which is untrue. The roof question is exactly that.
Culpability. The consumer's duty is only to take reasonable care (s.3). The court considers whether the insurer asked a clear question (s.4(1)) and what a reasonable consumer in her position would have understood. Here the question was clear and unambiguous about both repair and leaks.
- She was told by a roofer that a leak had been patched. A reasonable consumer would have disclosed that history, even in brief terms.
- There is no evidence she knew of continuing seepage, so the higher standard of deliberate or reckless (s.5(1)) is hard to sustain: that requires knowledge of the untruth or recklessness as to its truth.
- Her conduct is best characterised as careless.
Caution. If the insurer can show she knew the chimney area was still damp, or ignored a clear warning, a deliberate or reckless finding becomes arguable, which would allow avoidance and refusal of the whole claim.
On the facts as stated, the insurer should plan on the careless basis, which means the remedies in s.5(3) apply rather than automatic avoidance.
2. How should the wear and tear exclusion and the "keep in good repair" condition be applied to this loss?
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Exclusion – causation first. The exclusion removes damage caused by wear and tear, rot, damp or lack of maintenance. The insured must show an insured peril; the insurer must then show the loss falls within the exclusion. The immediate and dominant cause here is a named storm, which is an insured peril. Corroded flashing made the property more vulnerable but did not cause the storm. Unless the exclusion is worded so as to bite "regardless of cause" or the damage is genuinely attributable to long-term seepage, the storm element remains covered.
Partial loss. The damage that results from the wear and tear (the pre-existing damp staining, any rotting timber) is excluded; the storm-driven ingress is not. The adjuster's apportionment matters.
The condition. "You must keep the property in good repair" is an innominate promise, not automatically a condition precedent. For a consumer, it must satisfy the fairness and transparency tests in Part 2 of the Consumer Rights Act 2015: a broad, vague obligation to keep a 1930s house in repair may be unfair, and at minimum it should be construed as an obligation not to be in a state of disrepair that materially increases the risk. Even if binding, the insurer must show the breach caused the loss – the storm would still have caused some damage.
Conclusion. The exclusion and condition do not defeat the storm loss outright; they narrow it.
3. What should the insurer pay and how should it communicate the decision?
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Start with the covered loss. Value the storm damage, strip out the elements attributable to wear and tear and pre-existing seepage, and arrive at a covered figure – say £18,000 if the seepage element is not separately evidenced.
Then apply the misrepresentation remedy. Because the breach was careless, s.5(3) of CIDRA 2012 gives the insurer the remedy that reflects what it would have done:
- it would not have refused cover, so it cannot avoid;
- it would have charged £560, so the claim is reduced proportionately: £18,000 × (420 ÷ 560) = £13,500;
- if it would also have imposed a specific roof or chimney exclusion, that term is treated as part of the contract and applied first.
The insurer cannot simply refund the premium and walk away – avoidance for a careless breach is only available where it would not have written the risk on any terms.
Communication. Give a written decision setting out the covered loss, the apportionment, the CIDRA calculation and the net figures. Point out the policy condition was not relied on to refuse the claim. Handle it as a complaint under DISP, acknowledge promptly, give a final response and explain the right to refer to the Financial Ombudsman Service within six months. Complaint data on declinature should be monitored for Consumer Duty consumer-support failures.