First-tier Tribunal Grants Dispensation for Consultation Requirements

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/26UE/LDC/2025/0617 Property : Flats 1-3 Bank Chambers, Radlett, Herts, [POSTCODE] Applicant: [redacted]

[NAME] & [COUNSEL] (Landlord) Representative : [RESPONDENT]. (Agent) Respondents :

[redacted] contribute at the Property noted in the application

Representative : None Landlord :

[COUNSEL] & [NAME] [COUNSEL] of Application :

S2oZA of the Landlord and Tenant Act 1985 - dispensation of consultation requirements

Tribunal : N. [NAME] :

First tier Tribunal (Property Chamber) [ADDRESS] [POSTCODE]

Date of Decision : 8 May 2025 DECISION

2 Decision

1. The Tribunal grants dispensation from the requirements on the applicant to consult all [NAME] under S.20ZA of the Landlord and Tenant Act 1985, in respect of the qualifying works referred to, only.

2. At the date of application it was stated that construction work had not started. It was understood that the [NAME] was able to recharge costs under the service charge provisions to all [NAME] in the Property.

Background

3. The landlord, through its agent, applied to the Tribunal under [POSTCODE] of the Landlord and Tenant Act 1985 (“the Act”) for the dispensation from all or any of the consultation requirements contained in S20 of the Act.

4. The application related to the commissioning of works at the Property which appeared to concern works involving removal of water ingress into one of more of the flats and communal areas at the Property. It arose from defects in a double pitched main roof and a dormer roof within it and related defects.

Directions

5. In response to the application dated 24 February 2025 for dispensation from consultation of [NAME], Directions dated 27 March 2025 were issued by [NAME], without an oral hearing. They identified that the respondents were the [NAME] of the 3No. flats at the Property above 2No. commercial premises on the lower level. The Directions provided for the Tribunal to determine the application on or after 8 May 2025, unless a party applied on or before 17 April 2025 for a hearing.

6. The applicant was to send to each of the [NAME] of the dwellings at the Property; a copy of the application form, brief description of the works, an estimate of the costs of the works including any professional fees and VAT and anything else relied upon, with a copy of the Directions.

7. The applicant was to file with the Tribunal a letter by 3 April 2025, confirming how and when it had been done.

8. [NAME] who objected to the application were to send a reply form and statement to the Tribunal and applicant, by 17 April 2025. The applicant was to prepare a bundle of documents including the application form, Directions, sample lease and all other documents on which they wanted to rely; all responses from [NAME], a certificate of compliance

3 referred to above; with two copies to the Tribunal and one to each [NAME] and do so by 24 April 2025.

9. In the event, the Tribunal did not receive any requests for a hearing, nor did it receive any forms in support of or objection to respondents either directly or indirectly via the bundle.

10. The Tribunal determined the case on the application form and of a sample lease of a flat at the Property, received from the applicant only, with copy documents sent to [NAME].

Applicant’s Case

11. The application, at box 3 confirms that the Building was a: “Mixed use development consisting of 2 commercial units and 3 residential flats.”

12. The application at box 7 confirms that these are to be qualifying works, but that they had not been started. They are not part of a long term contract.

13. At box 9 the applicant was content for paper determination and applied for it, at box 10, indicated the ‘Standard Track’ preference: It was not considered urgent.

14. The application at ‘Grounds for seeking dispensation’, box 1. stated in addition: “Works to roofs in regards to Flat 1 Bank Chambers. To prevent further leak damage being caused to the individual properties affected. This was first found in and around 22nd of October and 8th of November, we had a contractor name Xtra to carry out a leak investigation. Their finding was that a roof survey is required and we had this carried out by NDN some weeks later around 20th November.”

15. The application at box 2. below this, described the consultation that had been carried out or is proposed to be carried out. “We have carried out a notice of intention to tell the [NAME] of roof works that we intend to do as this would cross the section 20 limit.”

16. The application at box 3. below this stated: Determination was requested to “Works exceed section 20 threshold.”

17. The applicant did not include a list of the names and addresses for service of all [NAME] of the 3No. flats at the Property to this Tribunal.

18. The applicant provided one quote dated 20 November 2024, from [APPELLANT].. The price was £4730 plus VAT. This was followed by Invoice No.1675, dated 15 April 2025, job ref 1437694 from the same contractor. The works appeared then to have been undertaken. The completed work refers to the specification in the November 2024 quote.

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19. The work in the invoice: “Leak into ground floor flat, remove courses of tiles around the dormer and roof to expose upstands, lead flashing and remove damaged layer of tile and batten. Remove all black tiles and replace them with matching tiles. Remove flashings/ clear off this section of flat roof above leak circa 8sqm and overlay with new 4mm torch on felt, create 250mm min upstands around dormer and roof section, install new breathable felt to area and new batten/install new lead flashing where needed and using new tiles where required and pre used tiles which are sufficient to be refitted. Clear all rubbish from site…. Total £4730 +20% VAT £946.”

20. The [NAME] stated that they had notified [NAME] of the application and sent copies of the documents per the Directions, on 1 April 2025.

Respondent’s Case

21. The applicant had identified 3No. residential [NAME] of the 3 flats. However there is no evidence that they provided their identities or contact addresses, to the Tribunal from whom the service charge would eventually be recovered and had been identified as the potential respondents. The applicant did not confirm that there had been no objections from any [NAME].

22. The Tribunal did not receive any objections or other representations from the [NAME], either through the applicant, or directly.

The Law

23. S.18 (1) of the Act provides that a service charge is an amount payable by a tenant of a dwelling as part of or in addition to the rent, which is payable for services, repairs, maintenance, improvements or insurance or landlord’s costs of management, and the whole or part of which varies or may vary according to the costs incurred by the landlord. S.20 provides for the limitation of service charges in the event that the statutory consultation requirements are not met. The consultation requirements apply where the works are qualifying works (as in this case) and only £250 can be recovered from a tenant in respect of such works unless the consultation requirements have either been complied with or dispensed with.

24. Dispensation is dealt with by S.20 ZA of the Act which provides:- “Where an application is made to a leasehold valuation tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying long term agreement, the tribunal may make the

5 determination if satisfied that it is reasonable to dispense with the requirements.”

25. The consultation requirements for qualifying works under qualifying long term agreements are set out in Schedule 3 of the Service Charges (Consultation Requirements) (England) Regulations 2003 as follows:-

1(1) The landlord shall give notice in writing of his intention to carry out qualifying works –

(a) to each tenant; and (b) where a recognised tenants’ association represents some or all of the tenants, to the association.

(2) The notice shall –

(a) describe, in general terms, the works proposed to be carried out or specify the place and hours at which a description of the proposed works may be inspected; (b) state the landlord’s reasons for considering it necessary to carry out the proposed works; (c) contain a statement of the total amount of the expenditure estimated by the landlord as likely to be incurred by him on and in connection with the proposed works; (d) invite the making, in writing, of observations in relation to the proposed works or the landlord’s estimated expenditure (e) specify- (i) the address to which such observations may be sent; (ii) that they must be delivered within the relevant period; and (iii) the period on which the relevant period ends.

2(1) where a notice under paragraph 1 specifies a place and hours for inspection-

(a) the place and hours so specified must be reasonable; and (b) a description of the proposed works must be available for inspection, free of charge, at that place and during those hours.

(2) If facilities to enable copies to be taken are not made available at the times at which the description may be inspected, the landlord shall provide to any tenant, on request and free of charge, a copy of the description.

3. Where, within the relevant period, observations are made in relation to the proposed works or the landlord’s estimated expenditure by any tenant or the recognised tenants’ association, the landlord shall have regard to those observations.

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4. Where the landlord receives observations to which (in accordance with paragraph 3) he is required to have regard, he shall, within 21 days of their receipt, by notice in writing to the person by whom the observations were made state his response to the observations.

Tribunal’s Decision

26. The scheme of the provisions is designed to protect the interests of [NAME] and whether it is reasonable to dispense with any particular requirements in an individual case must be considered in relation to the scheme of the provisions and its purpose.

27. The Tribunal must have a cogent reason for dispensing with the consultation requirements, the purpose of which is that [NAME] who may ultimately pay the bill are fully aware of what works are being proposed, the cost thereof and have the opportunity to nominate contractors where there is no public procurement. The correspondence showed that the applicant complied generally with Directions.

28. The terms of this Dispensation from the requirements of Section 20, are:

29. That this only covers the work set out in the application form. No other documents detailing the extent, quality, or price of the works being carried out and/or to be undertaken in respect of the works to remedy this roof defect at the Property other than the quote and matching invoice from one and the same contractor, as provided to the Tribunal.

30. No dispensation for any prior report, nor ancillary work before or after whichever quote or estimate was accepted by the applicant, is included in this dispensation. In this case only one contractor was contacted by the applicant and provided the work specifications and the price. This cost still remains subject to potential subsequent challenge by any [NAME], both of the item itself and/or the amount reasonably payable, in the usual way. Other than this no other items are included given dispensation because they were not specifically sought. Those other costs including any professional fees associated with the work will be subject to the annual cap of £250 per [NAME] for a contract for works rechargeable under a service charge or to a further application for dispensation if required. This is because they do not form part of this application for dispensation.

31. The applicant will meet all of its costs arising from the making and determination of this application. However these costs may be recovered from any [NAME] as service charge and/ or as an administrative charge

7 if the lease of each unit allows for it, subject to the usual scope for [NAME] challenge to its reasonableness and payability.

32. In making its determination of this application, it does not concern the issue of whether any service charge costs are reasonable or indeed payable by the [NAME]. The Tribunal’s determination is limited to this application for dispensation of consultation requirements under [POSTCODE] of the Act; in this case, on terms.

[NAME]

8 May 2025

8 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 either party is dissatisfied with this decision, they may apply for permission to appeal to the Upper Tribunal (Lands Chamber) on any point of law arising from this Decision.

Prior to making such an appeal, an application must be made, in writing, to this Tribunal for permission to appeal. Any such application must be made within 28 days of the issue of this decision to the person making the application (regulation 52 (2) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rule 2013).

If the application is not made within the 28-day time limit, such application 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 application for permission to appeal to proceed, despite not being within the time limit.

The application 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 making the application is seeking.

If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).