First-tier Tribunal Grants Dispensation for Qualifying Works Without Full Consultation

OUTCOME: Allowed

1

FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME]) Case Reference : LON/00BC/LDC/2022/0031 [NAME] :

28 [ADDRESS] [POSTCODE]

Applicant : [redacted] Representative : [NAME] Respondents : [redacted] 28 [ADDRESS] [POSTCODE] Representative : None Landlord : [RESPONDENT]. Type of Application :

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

Tribunal : [COMPANY] :

10 [ADDRESS] [POSTCODE]

Date of Decision : 28 February 2023

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 in this application, only. Dispensation is granted on terms, as set out at the conclusion.

Background

2. The landlord through its managing agent applied on 2 February 2022 to the Tribunal under [POSTCODE] of the Landlord and Tenant Act 1985 (“the Act”). The application was for the dispensation from all or any of the consultation requirements contained in S20 of the Act.

3. The application related to the failure of an external roof gutter to channel rainwater from the roof to the downpipes and drains, but instead to leak into the external brickwork and then to wet the interiors surfaces of one of the flats at [NAME]. At the date of the application it was stated that the work had been started. It was understood that the landlord’s agent was able to recharge costs under the service charge provisions to all flats in the [NAME] to all [NAME].

Directions

4. Directions dated 29 March 2022 were issued by Legal [NAME], without an oral hearing. These directed for various actions to be undertaken by the applicant and respondents if any, to reply, within a timetable.

5. By an un-stated date the Tribunal was to send to each potential respondent a copy of the application, a brief and clear description of the scope of the works for which dispensation was to be sought.

6. By 26 April 2022 any respondent who objected to the application was to respond to the landlord, who was entitled to reply briefly by 3 May 2022. By 10 May 2022 the applicant was prepare a bundle containing the application form, directions, sample lease and copies of all correspondence with the Tribunal and between parties, the latter if relevant to the application; to the active respondent and to the Tribunal.

7. In the 7 day period following 23 May 2023 the Tribunal would determine the application based on these written representations. If a party wanted a hearing they should request same of the Tribunal by 10 May 2023. No such request was received by the Tribunal. However it appears that no determination took place nor were any responses received.

3 8. On 15 December 2022 the Deputy Regional Judge Martynski issued a second set of Directions for this application. The respondents who objected to the application now had until 27 January 2023. The applicant had until 10 February 2023 to send a brief reply and until 17 February to serve a bundle on all active respondents and file a copy at the Tribunal. The Tribunal was then to determine the application within 7 days of 27 February 2023. Any request for a hearing was to be made by 28 January 2023. A list of names and contact details for the 4 [NAME] was sent to the Tribunal.

9. In the event, the Tribunal did not receive any requests for a hearing, nor did it receive any forms from potential respondents either supporting, or objecting to the application.

10. The Tribunal determined the case on the paper bundle received from the applicant. The Directions appear to have been largely followed by the applicant. Correspondence from the landlord was dealt with by their managing agent signed off by the applicant, the landlord’s agent.

Applicant’s Case

11. The [NAME] appears to consist of a former Edwardian House since converted into 4 self contained flats, lower ground [NAME], ground, first and second. The accommodation is on 4 levels. All flats appeared to be let on essentially identical leases. A sample [NAME] lease was included the bundle.

12. In the application form at box 7 it confirms that these works are to be qualifying works and that they had been started. At Box 8 in reply to the question “Do you know of any other cases involving either (a) related or similar issues about the management of this [NAME]; or (b) the same landlord or tenant or [NAME] as in this application ?” They did not.

13. At box 9 the applicant was content for paper determination and applied for it, marking at box 10, but asked it could be dealt with by ‘Standard Track’. There was no reason for urgency.

14. The application at box ‘Grounds for seeking dispensation’, was completed. At 1 “A report was received from the [NAME] of a leak from the guttering, causing internal damage into the [NAME] and damaging the external brickwork every time it was raining. Due to the urgency of the works no section 20 notices were issued.”

15. At 2. Describe the consultation that has been carried out or is proposed to. “None.”

4 16. At 3, the applicant explained: “We would like to request a dispensation of Section 20 due to the health and safety aspects associated if the work was not carried as a matter of urgency and the Section 20 process had to be followed.”

Respondent’s Case

17. The Tribunal did not receive any representations from the [NAME] either in support of or raising any objection, at any time during the application process.

The Law

18. 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.

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

20. 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 –

5 (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.

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

21. 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.

22. The Tribunal must have a cogent reason for dispensing with the consultation requirements, the purpose of which is that [NAME] who

6 may ultimately pay the bill are fully aware of what works are being proposed, the cost thereof and have the opportunity to nominate contractors.

23. The correspondence showed that the applicant complied generally with Directions. It was unclear for the delay in determining the application and the Tribunal apologises to the applicant for the delay in dealing with a relatively routine matter such as this. No representations to the application were received by the Tribunal either within or beyond the relevant submission date for such.

24. If there were costs associated with a prior survey and any associated work carried out prior to this application, (but, not subject to it), is not covered by this dispensation as it was not sought.

25. The terms of this dispensation are:

26. This dispensation does not determine what service charges are reasonable and payable by any leaseholder under the lease, as a service charge for these capital works, just the cap.

27. No copy of the contractor’s specification, price or other correspondence was supplied to the Tribunal. No copies of quotes, schedule of rates and quantities, or other basis for prices were included. This dispensation does not extend to any other works at the [NAME] other than those named in the application. This is because they do not form part of this application.

28. 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]

28 February 2023