First-tier Tribunal Grants Dispensation for Balcony Repairs Due to Health and Safety Risks

OUTCOME: Allowed

© CROWN COPYRIGHT 2023

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BK/LDC/2024/0227 HMCTS code : P: PAPERREMOTE Property : [ADDRESS], [POSTCODE] Applicant : [redacted] : [COUNSEL] of [COUNSEL] Respondent : [redacted] Type of [NAME] : [NAME] to dispense with statutory consultation requirements under section 20ZA of the Landlord and Tenant Act 1985 Tribunal members :

Judge [NAME] : 10 [ADDRESS], [POSTCODE] Date of decision : 28th October 2024

DECISION

Description of hearing

This has been a remote hearing on the papers which has been consented to by the Applicant and not objected to by any Respondent. The form of the remote hearing was P:PAPERREMOTE. A face-to-face hearing was not held because no- one requested a hearing and all issues could be determined on paper.

2 Decision of the Tribunal

In this determination, statutory references relate to the Landlord and Tenant Act 1985 unless otherwise stated. (1) The Tribunal grants unconditional dispensation pursuant to section 20ZA in respect of works to eliminate the health and safety risk arising from defective two balconies at the property known as [ADDRESS], [POSTCODE] (the “Property”).

(2) These works cost £11,460.00 including VAT, which cost also includes hiring scaffolding.

(3) This decision does not affect the Tribunal’s jurisdiction upon any future [NAME] to make a determination under section 27A in respect of liability to pay, for a reason other than non-consultation in respect of the subject works, and the reasonableness and/or cost of the subject works.

The [NAME]

1. This [NAME] under section 20ZA, is dated 9th August 2024, and seeks dispensation from the statutory consultation requirements in respect of the above-mentioned works required at the Property.

Background

2. The Applicant is the landlord of the Property, which is a complex comprising self-contained residential flats. The Respondents are the leasehold owners of the flats within the Property.

3. The Property is managed by [APPELLANT] (“JAR”), who are the Applicant’s representative.

4. The [NAME] relates to two of the balconies which form part of the property; they are stone balconies and two of them have cracks, resulting in a risk that debris may fall on anyone beneath them.

5. The Tribunal was provided with a 72-page electronic bundle including:

5.1 The [NAME] form requesting dispensation;

5.2 A schedule of the Respondent [NAME];

5.3 A sample lease;

5.4 Copy of a letter sent by JAR to all [NAME] dated 13th May 2024;

5.5 The Tribunal’s directions order dated 3rd September 2024;

3 5.6 A statement dated 11th October 2024 from Ms [NAME], Managing Director at JAR;

5.7 Photographs of the relevant balconies;

5.8 Estimates from: (i) [COMPANY] dated 13th May 2024 for £9,550 excluding VAT. (ii) [COMPANY] dated 6th March 2024 for £9,875.00 excluding VAT; and (iii) [NAME] (for comparison purposes only) dated 12th March 2024 for £6,445 excluding VAT

5.9 Confirmation from the Applicant’s representatives that the [NAME] and the Tribunal’s directions order have been sent to [NAME], with a copy of the notification e-mail sent to [NAME], all dated 12th September 2024.

6. On 13th May 2024 Ms [NAME], a former employee of JAR, wrote to all [NAME] notifying them that there were cracks to two balconies, which for health and safety reasons required prompt repairs. The letter continued that quotations for the repairs had been obtained, the lowest was £11,4600.00, and JAR intended to apply to the Tribunal for dispensation in respect of the cost of the repairs.

7. The grounds for the [NAME], as stated in the form, was as follows:

The apartments have balconies which are made of stone. The bottom section of two of the balconies have cracked in the corners and it is highly likely that the stone will fall off as it is currently only held on by glue inside of the stone.

8. In accordance with the Tribunal’s directions order dated 3rd September 2024, the Applicant e-mailed the Respondents on 12th August 2024 attaching a copy of the [NAME] and the directions, a copy of both documents were also displayed at [ADDRESS].

9. In her statement dated 11th October 202, Ms [NAME] states none of the [NAME] have informed JAR of any objections to the [NAME].

The Legal Framework

10. So far as is relevant, section 20 states:

(1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsections (6) or (7) (or both) unless the consultation have been either-

(a) Complied with in relation to the works or agreement, or

4 (b) Except in the case of works to which section 20D applies, dispensed with in relation to the works or agreement by (or on appeal from) the appropriate tribunal.

(2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by payment of service charges) to relevant costs incurred on carrying out the works under the agreement.

(3) This section applies to qualifying works if relevant costs incurred or on carrying out the works exceed an appropriate amount.

11. Section 20ZA(1) continues:

Where an [NAME] is made to the appropriate tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.

The Determination

12. In [NAME] its decision, the Tribunal took into account the information provided by the Applicant in the bundle, as set out above.

13. In [APPELLANT] v [NAME] and others [2013] UKSC 14 the Supreme Court provided the following guidance when dealing with section 20ZA applications for dispensation of the statutory consultation requirements:

13.1 The purpose of sections 19 to 20ZA is to ensure [NAME] are not required to pay any more than is necessary for services provided, and that they are not required to pay for unnecessary or unsatisfactory services.

13.2 The Tribunal is to focus on the extent to which [NAME] have been prejudiced by a landlord’s failure to comply with the requirements under section 20.

13.3 Ordinarily, where the failure to comply with section 20 had not affected the extent, quality and costs of the works carried out, dispensation is more likely to be granted.

13.4 The Tribunal’s main focus on such applications is what prejudice, if any, have [NAME] suffered.

13.5 The [NAME] bear a factual burden of identifying some relevant prejudice that they would or might suffer.

13.6 Where [NAME] make a credible case regarding prejudice, the landlord bears the legal burden to rebut this.

5

13.7 If appropriate, the Tribunal may grant conditional dispensation.

The Tribunal’s Approach to the Evidence

14. The Tribunal reached its decision after considering the documents in the bundle, and taking into account its assessment of that evidence.

15. This determination does not refer to every matter raised, or every document the Tribunal reviewed or took into account in reaching its decision. However, this doesn't imply that any points raised or documents not specifically mentioned were disregarded. If a point or document was relevant to a specific issue, it was considered by the Tribunal.

The Tribunal’s Decision

16. The Tribunal grants dispensation pursuant to section 20ZA in respect of the repairs, as quoted for by Vesta Construction Group, costing £11,460.00 including VAT.

The Tribunal’s Reasons

17. The Tribunal has had regard to the nature of the works and finds the works were necessary. The photographs support Ms [NAME] and Ms [NAME] view that the condition of the balconies posed a risk from falling debris. Therefore, the Tribunal considers these works were necessary and required prompt attention for health and safety health reasons, and this is our primary reason for granting dispensation.

18. Additionally, the Tribunal takes into account that [NAME] were notified about the [NAME], and by paragraph 2 of the directions order, [NAME] were afforded an opportunity to object to this [NAME], yet they raised no objections. Therefore, the Tribunal proceeds on the basis that the [NAME] have no objections to the [NAME], and that there has been no relevant prejudice to the [NAME], because it’s likely they would have objected to the [NAME] if they considered they would be prejudiced.

19. We have balanced the requirement to consult [NAME] against the need to carry out these repairs promptly. On balance, we have concluded that the need for these repairs to avoid the risks of falling debris justifies granting dispensation.

20. For the reasons stated at paragraphs 17 to 19 above, the Tribunal is satisfied that it is appropriate to grant dispensation from the consultation requirements bearing in mind the Supreme Court decision in [COMPANY] v [NAME] and others [2013] UKSC 14.

Name: Judge Tueje

Date: 28th October 2024

6 Rights of appeal

By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the tribunal is required to notify the parties about any right of appeal they may have. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written [NAME] for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. The [NAME] for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the [NAME]. If the [NAME] is not made within the 28-day time limit, such [NAME] must include a request for an extension of time and the reason for not complying with the 28-day time limit; the tribunal will then look at such reason(s) and decide whether to allow the [NAME] for permission to appeal to proceed, despite not being within the time limit. The [NAME] for permission to appeal must identify the decision of the tribunal to which it relates (i.e. give the date, the property and the case number), state the grounds of appeal and state the result the party [NAME] the [NAME] is seeking. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).