First-tier Tribunal Grants Dispensation for Fire Safety Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BE/LDC/2021/0109 HMCTS Code : P:PAPERREMOTE Property : [NAME] 119 Newington Causeway London [POSTCODE] Applicant : [redacted] : [COUNSEL], Counsel (by written submission) Respondents : [redacted] : An application for dispensation from the consultation requirements of s.20 Landlord and Tenant Act 1985 Tribunal member : Judge D [NAME] [NAME] and venue of hearing : 26th August 2021 [ADDRESS], LondonWC1E 7LR Date of decision : 26th August 2021

DECISION

2 Covid-19 pandemic: description of hearing This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to- face hearing was not held because it was not practicable and no-one requested the same and all issues could be determined on paper. The documents that we were referred to are in two bundles prepared by the applicants. Bundle 1 contains 114 pages. Bundle 2 contains 435 pages. References in this decision page numbers are prefixed by A (for the 1st bundle) and B (for the 2nd bundle). The order made is described at the end of these reasons. Decision

1. The Tribunal grants the applicant retrospective dispensation from the statutory consultation requirements in respect of works required at [NAME], 119 Newington Causeway, London [POSTCODE] ("The building") to install a new fire alarm in the communal hallway areas and for automatic opening vents “AOVs” within the communal staircase areas.

2. Dispensation is granted on the condition that the applicant is to bear its own costs of this application, which should not be passed on to leaseholders.

Background to the Application

3. The tribunal did not inspect the building as it considered the documentation and information before it in the appeal bundle enabled the tribunal to proceed with this determination and also because of the restrictions and regulations arising out of the Covid-19 pandemic.

4. The building is Grade II listed. In the application it states that there are 426 flats. In the statement of Mr [NAME] he says there are 422 flats. The flats are contained in 4 blocks which have associated linkways above a common underground car park. The building dates from the 1960’s. It was converted for residential use in the 1990s. On 4/10/2012 the Applicant acquired the right to manage the building.

5. The building benefits from a gym and swimming pool.

6. This has been a paper hearing which has been consented to by the parties. The tribunal had before it two electronic/digital trial bundles of prepared by the applicant, in accordance with the directions dated 14/05/2021 which were varied on 05/07/2021 [A11].

7. An objection has been received from [NAME], the [NAME] of flat 232, by email dated 01/08/2021. [B27]

3 8. The applicant [COMPANY] seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from all/some of the consultation requirements imposed on the landlord by section 20 of the 1985 Act. The application was made on or around 13/04/2021. Since that application the urgency of the works has been demonstrated by the service of an enforcement notice from the London Fire Brigade dated 30/06/2021.

9. The bundle contains evidence of a long history of fire safety issues and non-compliance of fire safety regulations, detailed below.

10. On 7/11/2018 [COMPANY] carried out a fire safety risk assessment and prepared a report dated 14/11/2018 [B74] in which the general fire precautions in the building ”were found to be unacceptable” and “a large number of deficiencies were identified during the inspection and further action is required to address [NAME] deficiency” [B77]. 11. [NAME] report notes many issues are ‘Not Compliant’. These are detailed at paragraphs 3.3 Fire Risk Profile; 3.4 Fire Safety Records; 3.5 Means of Escape; 3.6 Protecting the Means of Escape; 3.7 The Means of Raising the Alarm of Fire; 3.10 The Means for Firefighting; 3.11 Management of Fire Safety; As well as findings of ‘[NAME] in part’ at paragraph 3.9 Arson Prevention [B82-87].

12. The overall property risk rating was found to be high risk, and the recommended action in the report was that action should be taken immediately on findings highlighted as High Priority[B88]. This included a complete audit of the AOV system, which the report identified as having multiple failures on a previous visit on 27June 2018. The Assessor was alarmed that no action had been taken [B90].

13. On 10/12/2018 the London Fire Brigade wrote to the managing agents at that time. In that letter they report having recently carried out an inspection at the building and noted that some fire safety matters require attention to reduce the risk of fire at the building. The letter recommends that action be taken by 10/06/2019. [B107]. The particular areas of concern were in breach of the Regulatory Reform (Fire Safety) Order 2005, Articles 9, 11,14,17,38.

14. These breaches include concerns about fire doors not fully closing between the lift lobby and the protected staircase on 2nd and 3rd floors, the storage of combustible cleaning materials in the ground floor water and electric riser cupboards, concerns as to whether the means of escape were subject to sufficient protection and notification of a fault on the fire alarm panel [B110-113]

15. A further notification of fire safety deficiencies was issued by the London Fire Brigade on 07/02/2019 to [COMPANY] management [B118] with a recommendation for action to be taken by 27/06/2019, including providing an appropriate means of fire detection and warning and ensuring that AOV’s were fully functional [B123]

16. While the Tribunal noted the contents of the statement of [NAME], who is a non-resident [NAME] and the director of the [COMPANY], and his explanations about difficulties with tenders and difficulties with management of the building, this did not explain why a building of this size had been left without adequate fire safety for a prolonged period. The statement also asserts that various works were carried out to comply with the Fire Brigade’s notices in 2018/19, although it was not clear what works had been carried out.

17. The Tribunal noted the references to previous estimates in the appeal bundle. The earliest appears to have been from Briggs & Forrester dated 28/05/2019 for £432,755.10 plus VAT which included fire alarm maintenance for 8 years. There was mention of previous quotations from [NAME] for £347,836 plus VAT and from Future Fire for £318,770 plus VAT, in the letter dated 23/04/2020 to leaseholders [B141].

18. However, no works appear to have been commenced on remedial fire safety until 2021. The Applicant contracted with [NAME] on 30/04/2021 for the sum of £362,620 plus VAT with a contingency of £20,000 plus VAT. Some works have already been completed.

The leaseholders’ case

19. Ms [NAME] is the only [NAME] who has objected to this application. In her response of 01/08/2021 makes the following assertions:

(a) The s.20 Notice of intention was served on 12/02/2018 (b) S.20 Estimates were served on 23/04/2021 from [NAME] at £426,571 & Future Fire at £391,692 inclusive of VAT and surveyors fees (c) This application was issued on 13/04/2021 but leaseholders were only notified on 19/07/2021 (d) This application was made on the grounds that only one tender was returned and that the specification has changed, but the s.20 estimates show that two tenders were returned (e) A request is made for the applicant to provide the name of the contractor executing the works and the final all inclusive cost of the contract

20. Ms [NAME] sets out her objections to this application as follows (i) Loss of opportunity for leaseholders to make observations amounts to prejudice

5 (ii) Leaseholders are not protected from paying more than would be appropriate (iii) Allow dispensation with conditions that original estimates cost of contract remains the same

21. The Applicant’s reply to these objections refers to [COMPANY] v Benson [2013] WLR 854 and [NAME] v Chapman [2021] EWCA Civ 660, and goes on to say that Ms [NAME] has “not set out a case that meets the criteria identified in those decisions. In particular she has not shown a credible case for prejudice or identified a reasonable point which, if adopted, would have been likely to have reduced the costs of the works or to have resulted in some other advantage or identified terms or conditions that are appropriate in their nature or effect”

Reasons for Decision

22. The only issue for the Tribunal to decide is whether or not it is reasonable to dispense with the statutory consultation requirements. This application does not concern the issue of whether or not service charges will be reasonable or payable.

23. Having read the evidence and submissions from the applicant and respondent and having considered all of the documents and grounds for making the application provided by the applicant, the Tribunal determines the dispensation issues as follows.

24. Section 20 of the Landlord and Tenant Act 1985 (as amended) and the Service Charges (Consultation Requirements) (England) Regulations 2003 require a landlord planning to undertake major works, where a [NAME] will be required to contribute over £250 towards those works, to consult the leaseholders in a specified form.

25. Should a landlord not comply with the correct consultation procedure, it is possible to obtain dispensation from compliance with these requirements by such an application as is this one before the Tribunal. Essentially the Tribunal must be satisfied that it is reasonable to do so.

26. The leading authority in relation to s.20ZA dispensation requests is [COMPANY] v Benson [2013] 1 WLR 854 (“Benson”) in which the Supreme Court set out guidance as to the approach to be taken by a tribunal when considering such applications. This was to focus on the extent, if any, to which the lessees were prejudiced in either paying for inappropriate works or paying more than would be appropriate, because of the failure of the landlord to comply with the consultation requirements. In his judgment, Lord [NAME] said as follows;

6 44. Given that the purpose of the Requirements is to ensure that the tenants are protected from (i) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an application by a landlord under section 20ZA(1) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements.

45. Thus, in a case where it was common ground that the extent, quality and cost of the works were in no way affected by the landlord’s failure to comply with the Requirements, I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be – ie as if the Requirements had been complied with.

27.

Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the applicant and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above.

28. The tribunal has considered fully the objections made by the respondent and notes the frustration that must be felt by her in relation to the considerable delay in carrying out essential works. Indeed, the Tribunal found it difficult to understand why there had been such a delay in the fire safety works, based on the abundance of evidence from 2018 of quotations to remedy the serious failings in fire safety. It appears that neither of the original estimates were considered later to adequately cover the works that were needed and hence the [NAME] quote has increased. However, in their determination of prejudice, the difference in quotations previously obtained compared with the current contract with [NAME], when divided between the individual leaseholders is minimal. This does not constitute prejudice.

29. As stated above, the only issue for the Tribunal to decide is whether or not it is reasonable to dispense with the statutory consultation requirements. This application does not concern the issue of whether or not service charges will be reasonable or payable.

30. The tribunal took into account that the application evidences urgent fire safety works which must be addressed as quickly as possible and finds that it is reasonable to dispense with the statutory consultation requirements.

7 31. Although prejudice was not found, the Tribunal did find that there had been undue delay by the applicant in remedying fire safety defects, and found that works should by now have been carried out further to the s.20 consultation that had been commenced in 2018 if the works had been properly specified. The costs of this application for dispensation could therefore have been avoided. The tribunal therefore make the following conditions of such dispensation.

32. Retrospective dispensation is granted on the condition that the applicant is to bear their own costs of this application, which should not be passed on to respondent [NAME].

Judge D [NAME]

26th August 2021

8 APPENDIX 1 RIGHTS OF APPEAL

1. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) then a written application for permission must be made to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application for permission to appeal must arrive at the Regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.

3. 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.

4. 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.

9 ‘; APPENDIX 2 RELEVANT LEGISLATION

Landlord and Tenant Act 1985

20ZA. Consultation requirements: supplementary (1) Where an application 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 long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements.

Service Charges (Consultation Requirements) (England) Regulations 2003. Part 2 - consultation requirements for qualifying works for which public notice is not required Notice of intention 1. (1) The landlord shall give notice in writing of his intention to carry out qualifying works— (a) to [NAME]; and (b) where a [NAME] 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) invite the making, in writing, of observations in relation to the proposed works; and (d) specify—

10 (i) the address to which such observations may be sent; (ii) that they must be delivered within the relevant period; and (iii) the date on which the relevant period ends. (3) The notice shall also invite [NAME] and the association (if any) to propose, within the relevant period, the name of a person from whom the landlord should try to obtain an estimate for the carrying out of the proposed works.

Inspection of description of proposed works 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. Duty to have regard to observations in relation to proposed works 3. Where, within the relevant period, observations are made, in relation to the proposed works by any tenant or [NAME] tenants' association, the landlord shall have regard to those observations.

Estimates and response to observations 4. (1) Where, within the relevant period, a nomination is made by a [NAME] tenants' association (whether or not a nomination is made by any tenant), the landlord shall try to obtain an estimate from the nominated person.

(2) Where, within the relevant period, a nomination is made by only one of the tenants (whether or not a nomination is made by a

11 [NAME] tenants' association), the landlord shall try to obtain an estimate from the nominated person.

(3) Where, within the relevant period, a single nomination is made by more than one tenant (whether or not a nomination is made by a [NAME] tenants' association), the landlord shall try to obtain an estimate— (a) from the person who received the most nominations; or (b) if there is no such person, but two (or more) persons received the same number of nominations, being a number in excess of the nominations received by any other person, from one of those two (or more) persons; or (c) in any other case, from any nominated person.

(4) Where, within the relevant period, more than one nomination is made by any tenant and more than one nomination is made by a [NAME] tenants' association, the landlord shall try to obtain an estimate— (a) from at least one person nominated by a tenant; and (b) from at least one person nominated by the association, other than a person from whom an estimate is sought as mentioned in paragraph (a). (5) The landlord shall, in accordance with this sub-paragraph and sub-paragraphs (6) to (9)— (a) obtain estimates for the carrying out of the proposed works; (b) supply, free of charge, a statement (“the paragraph (b) statement”) setting out— (i) as regards at least two of the estimates, the amount specified in the estimate as the estimated cost of the proposed works; and (ii) where the landlord has received observations to which (in accordance with paragraph 3) he is required to have regard, a summary of the observations and his response to them; and

12 (c) make all of the estimates available for inspection. (6) At least one of the estimates must be that of a person wholly unconnected with the landlord. (7) For the purpose of paragraph (6), it shall be assumed that there is a connection between a person and the landlord— (a) where the landlord is a company, if the person is, or is to be, a director or manager of the company or is a close relative of any such director or manager; (b) where the landlord is a company, and the person is a partner in a [NAME], if any partner in that [NAME] is, or is to be, a director or manager of the company or is a close relative of any such director or manager; (c) where both the landlord and the person are companies, if any director or manager of one company is, or is to be, a director or manager of the other company; (d) where the person is a company, if the landlord is a director or manager of the company or is a close relative of any such director or manager; or (e) where the person is a company and the landlord is a partner in a [NAME], if any partner in that [NAME] is a director or manager of the company or is a close relative of any such director or manager. (8) Where the landlord has obtained an estimate from a nominated person, that estimate must be one of those to which the paragraph (b) statement relates. (9) The paragraph (b) statement shall be supplied to, and the estimates made available for inspection by— (a) [NAME]; and (b) the secretary of the [NAME] tenants' association (if any). (10) The landlord shall, by notice in writing to [NAME] and the association (if any)—

13 (a) specify the place and hours at which the estimates may be inspected; (b) invite the making, in writing, of observations in relation to those estimates; (c) specify— (i) the address to which such observations may be sent; (ii) that they must be delivered within the relevant period; and (iii) the date on which the relevant period ends.

(11) Paragraph 2 shall apply to estimates made available for inspection under this paragraph as it applies to a description of proposed works made available for inspection under that paragraph.

Duty to have regard to observations in relation to estimates 5. Where, within the relevant period, observations are made in relation to the estimates by a [NAME] tenants' association or, as the case may be, any tenant, the landlord shall have regard to those observations. Duty on entering into contract 6. (1) Subject to sub-paragraph (2), where the landlord enters into a contract for the carrying out of qualifying works, he shall, within 21 days of entering into the contract, by notice in writing to [NAME] and the [NAME] tenants' association (if any)— (a) state his reasons for awarding the contract or specify the place and hours at which a statement of those reasons may be inspected; and (b) there he received observations to which (in accordance with paragraph 5) he was required to have regard, summarise the observations and set out his response to them.

14

(2) The requirements of sub-paragraph (1) do not apply where the person with whom the contract is made is a nominated person or submitted the lowest estimate.

(3) Paragraph 2 shall apply to a statement made available for inspection under this paragraph as it applies to a description of proposed works made available for inspection under that paragraph.