First-tier Tribunal Grants Dispensation for Necessary Lift Repairs Without Prior Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AK/LDC/2024/0094 Property

Applicant : [redacted] 1-9 [NAME], 19 [ADDRESS] [POSTCODE]

[COMPANY] :

[COUNSEL], Managing Agent

Respondents : [redacted] : N/A Type of [NAME] : For dispensation under section 20ZA of the Landlord & Tenant Act 1985

Tribunal member :

Tribunal Judge I [NAME] of decision :

19 June 2024

DECISION

2 Introduction 1. The Applicant seeks an order pursuant to s.20ZA of the Landlord and Tenant Act 1985 (“the Act”) for retrospective dispensation with the consultation requirements in respect of lift repairs at the property known as 1-19 [NAME], 19 chase [ADDRESS], [POSTCODE] (“the property”).

2. The Applicant is the management company for the property and the Respondents are the long leaseholders.

3. The property is described as being one of 5 residential blocks within an estate with each block being 3 storeys high. Each of the blcoks of flats has a passenger lift installed, including the subject property.

4. It is the Applicant’s case that on 17 November 2023, there was an entrapment in the lift for the property. [NAME] attended the same day and found that the lift was “over travelling” and had to be taken out of service due to the risk of a further entrapment occurring. This posed a health and safety issue for anyone using the lift.

5. The advice given to the Applicant was that the lift required either the tape head shoes or the tape head needed replacing, but the contractor could not be certain which would solve the problem.

6. The tape head shoes were replaced on 1 December 2023 but this did not solve the problem. The estimated cost of this work fell below the statutory limit that required section 20 consultation.

7. The Applicant was advised by the [NAME] that the tape head needed to be replaced and the lift had to remain out of service until the work had been successfully completed. This occurred on 14 December 2023. The estimated cost of the repair was £2,258.85 and did require section 20 consultation to be carried out and in respect of which dispensation is sought.

8. On 17 april 2024, the Tribunal issued Directions. The Respondents were directed to respond to the [NAME] stating whether they objected to it in any way.

9. None of the Respondents have objected to the [NAME].

Relevant Law

10. This is set out in the Appendix annexed hereto.

Decision 11. As directed, the Tribunal’s determination “on the papers” took place on 19 June 2024 and was based solely on the documentary evidence filed by the Applicant. As stated earlier, no objections had been received from any of the Respondents nor had they filed any evidence.

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12. The relevant test to the applied in an [NAME] such as this has been set out in the Supreme Court decision in [COMPANY] v [NAME] & Ors [2013] UKSC 14 where it was held that the purpose of the consultation requirements imposed by section 20 of the Act was to ensure that tenants were protected from paying for inappropriate works or paying more than was appropriate. In other words, a tenant should suffer no prejudice in this way.

13. The issue before the Tribunal was whether dispensation should be granted in relation to the requirement to carry out statutory consultation with the leaseholders regarding the overall roof works works. As stated in the directions order, the Tribunal is not concerned about the actual cost that has been incurred.

14. The Tribunal granted the [NAME] for the following main reasons:

(a) at all material times, the Tribunal was satisfied that the Respondents have been kept informed of the need, scope and estimated cost of the proposed works.

(b) the Tribunal was satisfied that the Respondents have been served with the [NAME] and the evidence in support and there has been no objection from any of them. The Tribunal attached significant weight to this.

(c) The Tribunal was satisfied that any delay incurred by the Applicant having to carry out statutory consultation would inevitably have resulted in further significant loss of amenity and a health and safety risk to the occupants in the block. The Tribunal was informed by the Applicant that many of the residents in the property are elderly and rely on the lift for access to their flats. In particular, one of the residents on the top floor is disabled and relies on the lift, for example, to attend hospital appointments.

(d) Arguably, the carrying out of statutory consultation was academic because the lift maintenance contract required the Applicant to use the same contractor, rather than to tender for the work.

(e) importantly, the real prejudice to the Respondents would be in the cost of the works and they have the statutory protection of section 19 of the Act, which preserves their right to challenge the actual costs incurred by [NAME] a separate service charge [NAME] under section 27A of the Act.

15. The Tribunal, therefore, concluded that the Respondents were not being prejudiced by the Applicant’s failure to consult and the [NAME] was granted as sought.

4 16. It should be noted that in granting this part of the [NAME], the Tribunal makes no finding that the scope and cost of the repairs are reasonable.

Name: Tribunal Judge I [NAME]: 19 June 2024 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).

5 Appendix of relevant legislation Landlord and Tenant Act 1985 (as amended) Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) 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 the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in

6 accordance with, the regulations is limited to the amount so prescribed or determined.

Section 20ZA

(1) Where an [NAME] 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 determination if satisfied that it is reasonable to dispense with the requirements.