First-tier Tribunal Grants Dispensation for Fire Safety Works

OUTCOME: Allowed

Case Reference : MAN/00EQ/LDC/2021/0056

Property : [ADDRESS] [POSTCODE]

Applicant: [redacted] : N/A

Respondents : [redacted] Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge L Bennett

Date of determination : 12 December 2022

Date of Decision : 12 December 2022

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DECISION ____________________________________

© CROWN COPYRIGHT 2022

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

2 Application

1. [APPELLANT] applies to the Tribunal under Section 20ZA of 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 fire safety works to the common parts, which included compartmentation and fire stopping works which were undertaken during the latter part of 2019 (the Works) at [ADDRESS] [POSTCODE] (the Property).

2. The Respondents are the [NAME] at the Property and listed at the Annex to this decision.

Grounds and Submissions

3. The application was received by the Tribunal on 8 September 2021.

4. The Applicant is the Freeholder of the building.

5. The Tribunal did not carry out an inspection but understands that the Property is a

retirement development comprising 34, one bedroom leasehold flats, for occupation

by persons aged 60 and over.

6. On 9 June 2022, a Tribunal Judge made directions requiring the service of

documents by the Applicant on 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. In response to directions the Applicant has provided a statement explaining why the

application was made to the Tribunal together with supporting documents.

8. During 2018/2019, [NAME] [APPELLANT] (now [NAME]), consulted [NAME] in

accordance with Section 20, under schedule 2 of the Service Charges (Consultation

Requirements) (England) Regulations 2003, prior to entering into a qualifying long

term agreement (QLTA) with [NAME].

9. During the latter part of 2019 it was necessary to carry out fire safety works to the

common parts of the Property, which included compartmentation and fire stopping

works. In accordance with Section 20 requirements prior to carrying out works

under a QLTA, a notice of intention should have been served on all [NAME]

under Schedule 3 of the consultation requirements. However, this notice was not

served in error. The total cost of the works was £13, 233.55, which exceeded the

Section 20 threshold by £4, 733.55.

10. Dispensation is sought on the basis that whilst the 30 days’ notice of intention to

carry out work under a long-term agreement was not served in error, this has not

resulted in any financial prejudice to [NAME]. The works were necessary to

ensure the safety of residents living at the location and would have been carried out

by [NAME] who were appointed under the QLTA at the same cost had the consultation

process been followed.

11. The Tribunal did not receive any submissions from a Respondent Leaseholder.

Neither the Applicant nor a Respondent requested a hearing.

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12. The Tribunal convened without the parties to make its determination on 12

December 2022.

Law

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

14. Section 19 of the Act limits the amount payable by the lessees to the extent that the

charges are reasonably incurred.

15. 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”.

16. “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.”

17. 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."

Tribunal’s Conclusions with Reasons

18. I have determined this matter following a consideration of the Applicant’s case but

without holding a hearing. Rule 31 of the Tribunal Procedure (First-tier Tribunal)

([NAME]) 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). In this case, the Applicant has given its consent and

the Tribunal has not heard from a Respondent in response to the application.

Moreover, having reviewed the case papers, I am satisfied that this matter is

indeed suitable to be determined without a hearing. Determining this matter

does not require me to decide disputed questions of fact.

19. 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. If and when such is demanded, and if disputed, it may properly be the

subject of a future application to the Tribunal.

20. Having considered the submission made by the Applicant I accept that there was an

error in not serving the notice of intention, which is a requirement of Section 20.

However, the works were of an urgent nature and necessary. In any event, they

would have been carried out by [NAME] as part of the QLTA at no extra cost.

4 32. In [COMPANY] v Benson [2013] UKSC 14 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. Balancing the need for urgent action against

dispensing with statutory requirements devised to protect service charge paying

[NAME], I conclude that in this instance there was no identified financial

prejudice suffered by the [NAME] as a result of the consultation process not

being followed. Dispensation from the consultation requirements does not imply

that any resulting service charge is reasonable.

Order

33. The Applicant is dispensed from complying with the consultation requirements in

respect of the work specified in the application.

Laurence J Bennett Tribunal Judge 12 December 2022

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Annex - List of Respondent [NAME] and Unit Number

Leaseholder Unit Mrs [NAME] 26 Cedarwood Mrs [NAME] 9 Cedarwood Mrs [NAME] 8 Cedarwood Mrs [NAME] 22 Cedarwood Mrs [NAME] 30 Cedarwood Mrs [NAME] 12 Cedarwood Mrs [NAME] B [NAME] 18 Cedarwood Mrs [NAME] 20 Cedarwood Mr [NAME] & Mr [NAME] 4 Cedarwood Mrs [NAME] 34 Cedarwood Mrs [NAME] J [NAME] 11 Cedarwood Mrs [NAME] 27 Cedarwood Mrs [NAME] 31 Cedarwood Mrs [NAME] M [NAME] & [NAME] [NAME] 21 Cedarwood Miss [NAME] 5 Cedarwood Mrs [NAME] M [NAME] 35 Cedarwood Miss M [NAME] 6 Cedarwood Mrs [NAME] 24 Cedarwood Mrs [NAME] 33 Cedarwood Mr [NAME] 7 Cedarwood Mrs [NAME] 14 Cedarwood Mrs [NAME] M [NAME] 15 Cedarwood Mrs [NAME] 10 Cedarwood Mr [NAME] J [NAME] 25 Cedarwood Mrs [NAME] 23 Cedarwood Mrs [NAME] 2 Cedarwood Mr [NAME] 3 Cedarwood Mrs [NAME] 19 Cedarwood Mrs [NAME] 17 Cedarwood Mrs [NAME] 29 Cedarwood Mrs [NAME] 16 Cedarwood Mrs [NAME] 32 Cedarwood Ms [NAME] 28 Cedarwood Mr [NAME] 36 Cedarwood

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