First-tier Tribunal Allows Emergency Call System Upgrade Without Leaseholder Consultation

OUTCOME: Allowed

Case Reference : MAN/00EQ/LDC/2023/0061

Property : [ADDRESS] [POSTCODE]

Applicant: [redacted]

: [COUNSEL], [NAME] & [NAME]

Manager

Respondents : [redacted]

Type of Application : Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge J Holbrook

Date of Decision : 19 February 2024

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2024

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

2 Application

1. [APPELLANT] applies to the Tribunal under Section 20ZA of the Landlord

and Tenant Act 1985 (the Act) for dispensation from the consultation

requirements of Section 20 of the Act and the Service Charges

(Consultation Requirements)(England) Regulations 2003 (SI 2003/1987)

in respect of Qualifying Works at the property. The qualifying works

concern replacement of the emergency call system.

2. The Respondents are the [NAME] at the [COMPANY]

and listed at Annex A to this decision.

Grounds and Submissions

3. The application to the Tribunal was received on 16 September 2023.

4. The Applicant is the landlord of the property.

5. The Tribunal did not carry out an inspection but understands from the

papers that [ADDRESS] consists of 63, 2 bedroomed apartments, which are

a mixture of rented and leasehold properties that are purpose built for

residents who receive extra [NAME] or have a support need.

6. On 30 November 2023, a Tribunal Legal Officer made directions requiring

the service of documents by the Applicant upon each of the Respondents.

The directions provided that in the absence of a request for a hearing the

application would be determined upon the parties’ written submissions.

7. The Applicant has provided a statement of case explaining why the

application was made to the Tribunal together with supporting

documents. It is summarised below.

8. The Applicant recognises that the telecoms infrastructure will change

to a digital environment by 2025. Analogue systems installed now could

become obsolete way in advance of their expected lifecycles. There is a

corporate recognition of the need to move to a more reliable and

contemporary service.

9. Due to the increasing unreliability to the emergency call system at [ADDRESS] and the potential risks to the health and safety of residents, the

Applicant decided that the system should be replaced as soon as possible.

10. The Applicant therefore explored the market to invest in a suitable digital

system. The chosen [COMPANY] system is currently the

only fully digital emergency call system available that uses secure

encryption to authenticate and encrypt both data and speech. There

are a limited number of other digital systems that offer general

functionality comparable to analogue systems, but they have limited health

and safety features in comparison to the [NAME] system. Although there

are a few systems that provide a digital service on site, no other provider

supports a fully encrypted digital onsite and offsite pathway.

3

The Applicant has provided a detailed quotation from [COMPANY] dated 30 November 2023. The gross price is £106, 191.18

which is £1,685.57 per unit. The installation rates have also been evaluated

against another contractor who priced the installation of the digital

installation and [NAME] were found to be more competitive. In addition,

[NAME] are the only company able to supply a digital end to end solution.

11. On 3 January 2024, the Applicant held a consultation meeting at [ADDRESS]. The agenda included:

• PROPOSED START ONSITE & FORECAST COMPLETION • CONTRACTOR START & FINISH TIMES • WHAT TO EXPECT WHEN WORK STARTS ON COURT • IMPACT UPON THE COURT & RESIDENTS • QUESTIONS

12. The Tribunal did not receive any submissions from Respondent

[NAME]. Neither the Applicant nor a Respondent requested a hearing.

13. The Tribunal therefore convened without the parties to make its

determination on 19 February 2024.

Law

14. Section 18 of the Act defines “service charge” and “relevant costs”.

15. Section 19 of the Act limits the amount payable by the [NAME] to the extent

that the charges are reasonably incurred.

16. Section 20 of the Act states:- “Limitation of service charges: consultation requirements

Where this Section applies to any qualifying works…… the relevant contributions of tenants are limited……. Unless the consultation requirements have either:-

a. complied with in relation to the works or b. dispensed with in relation to the works by …… a tribunal. This Section applies to qualifying works, if relevant costs incurred on carrying out the works exceed an appropriate amount”.

17. “The appropriate amount” is defined by regulation 6 of The Service

Charges (Consultation Requirements) (England) Regulations 2003 (the

Regulations) as “……. an amount which results in the relevant contribution

of any tenant being more than £250.00.”

18. Section 20ZA(1) of the Act states:- "Where an application is made to a Tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works ……..….. the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements."

4

Tribunal’s Conclusions with Reasons

19. The only issue for the Tribunal to decide is whether or not it is reasonable

to dispense with the statutory consultation requirements. The Tribunal

began with a general review of the papers in order to decide whether the

case could be dealt with properly without holding an oral hearing.

Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Property Chamber)

Rules 2013 permits a case to be dealt with in this manner provided that the

parties give their consent (or do not object when a paper determination is

proposed). None of the parties requested an oral hearing and having

reviewed the papers, I am satisfied that this matter is suitable to be

determined without a hearing.

20. Having considered the submissions made by the Applicant I accept that it

is necessary and appropriate to replace an unreliable system with a more

robust and contemporary system for the health and safety of the residents.

The Applicant has informed the [NAME] about the works, albeit

outside of the consultation requirements, and notified [NAME] of the

application to the Tribunal giving the reasons why it believes the

application is necessary.

21. The Supreme Court in the case of [COMPANY] v [NAME] [2013] UKSC 14 set out detailed guidance as to the correct approach

to the grant or refusal of dispensation of the consultation requirements. It

was determined that a Tribunal, when considering whether to grant

dispensation, should consider whether the tenants would be prejudiced by

any failure to comply with the Consultation Requirements. [APPELLANT]

confirms that the factual burden is on a tenant to identify any “relevant

prejudice” which they claim they will or might have suffered. In this

context “relative prejudice” means a disadvantage that they would not have

suffered if the consultation requirements had been fully complied with, but

which they will suffer if an unconditional dispensation is granted. After

carefully considering all the evidence and noting that none of the

[NAME] has indicated to the Tribunal any objection to the

application, I have not identified any relevant prejudice to the

[NAME], and I am therefore satisfied that it is reasonable to dispense

with the consultation requirements unconditionally.

It is not necessary to consider at this stage the extent of any service charges

that may result from the works payable under the terms of the

Respondents’ leases. Dispensation from the consultation requirements

does not imply that any resulting service charge is reasonable.

The [NAME] retain the ability to make an application the Tribunal

should they wish to challenge the costs of the works in the future.

5 Order

23. The Applicant is dispensed from complying with the consultation

requirements in respect of the works specified in the application.

Judge J Holbrook 19 February 2024

Annex A – List of Respondents

1. [NAME] 2. [NAME] 3. [NAME] 4. [NAME]

5. Mr & Mrs [NAME] 6. [NAME] 7. [NAME] 8. [NAME] & [NAME] 9. [NAME] 10. [NAME] 11. [NAME] & [NAME] 12. [NAME] 13. [NAME] 14. [NAME] 15. [NAME] 16. [NAME] 17. [NAME] 18. [NAME] 19. [NAME] 20. [NAME] 21. [NAME] 22. [NAME] 23. [NAME] 24. [NAME] 25. [NAME] 26. [NAME] 27. [NAME] 28. [NAME] 29. [NAME] 30. [NAME]

31. Mr & Mrs [NAME] 32. [NAME] 33. [NAME] & [NAME] 34. [NAME] 35. [NAME] 36. [NAME]

6 37. [NAME] 38. [NAME] 39. [NAME] 40. [NAME] & [NAME] 41. [NAME] 42. [NAME] 43. [NAME] 44. [NAME] & [NAME] 45. [NAME] 46. [NAME] 47. [NAME] 48. [NAME] 49. [NAME] 50. [NAME] 51. [NAME] 52. [NAME] & [NAME] 53. [NAME] & [NAME] 54. [NAME] 55. [NAME] 56. [NAME] 57. [NAME] 58. [NAME] 59. [NAME] 60. [NAME] 61. [NAME]