First-tier Tribunal Grants Dispensation for Repair Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/22UG/LDC/2021/0011 HMCTS code (paper, video, audio) : P:PAPERREMOTE

Property :

1-12 [ADDRESS] [POSTCODE]

Applicant : [redacted]

Respondents :

[redacted] application Type of application : For dispensation from consultation requirements - Section 20ZA of the Landlord and Tenant Act 1985 Tribunal members : [APPELLANT] [NAME]([NAME]) Date of decision : 22 June 2021

DECISION Covid-19 pandemic: description of hearing This has been a remote determination on the papers which the parties are taken to have consented to, as explained below. The form of determination was P:PAPERREMOTE. A hearing was not held because it was not necessary, and all issues could be determined on paper. The documents that I was referred to are in a 112 page bundle from the Applicant and further document setting out the quotes and details of the work required. I have noted the contents and my decision is below.

2 The tribunal’s decision The tribunal determines under section 20ZA of the Landlord and Tenant Act 1985 to dispense with all the consultation requirements in respect of respect of qualifying works to install lead soakers to 11 dormer windows at [NAME]. Reasons for the tribunal’s decision The application 1. This is an application to dispense with the statutory consultation requirements in respect of works to install lead soakers to 11 dormer windows following water ingress to one of the flats 2. It says that the missing soakers were not discovered until recently because felt had been providing protection but has now deteriorated, causing water ingress and “structural damage”. It says it has written to the parties advising them of investigations and that the cost of the works is likely to be “high”. The cost of repair work to one side of one dormer window, “the area causing the most damage”, carried out while scaffolding was in place, was £1,728. It says it has given leaseholders the opportunity to propose contractors, and that it is essential to start work without delay to prevent further damage.

3. The relevant contributions of leaseholders through the service charge towards the costs of these works would be limited to a fixed sum unless the statutory consultation requirements, prescribed by section 20 of the Landlord and Tenant Act 1985 (the “1985 Act”) and the Service Charges (Consultation etc) (England) Regulations 2003: (i) were complied with; or (ii) are dispensed with by the tribunal.

4. In this application, the Applicant seeks a determination from the tribunal, under section 20ZA of the 1985 Act, to dispense with the consultation requirements. The tribunal has jurisdiction to grant such dispensation if satisfied that it is reasonable to do so.

5. In this application, the only issue for the tribunal is whether it is satisfied that it is reasonable to dispense with the consultation requirements.

6. This application does not concern the issue of whether any service charge costs of the relevant works will be reasonable or payable or by whom they are payable.

3 [NAME] and parties 7. [NAME] was originally built in 1876 and converted to 12 one- bedroom flats some 35 years ago.

8. The application is made by the right to manage company, [COMPANY]. The application was made against the leaseholders of the flats (the “Respondents”) Procedural history 9. The Applicant said that the works are urgent, as explained below.

10. Case management directions were given on 15 April 2021, requiring the Applicant by 30 April 2021 to serve on the Respondents copies of the application form and these directions. It also required them to provide a statement explaining the nature of the relevant works and access arrangements in more detail, how they have been or are being procured, and the estimated total costs. They were to file with the tribunal a certificate to confirm that this has been done and stating the date(s) on which this was done.

11. On 5 May 2021 the Applicant emailed the tribunal to confirm that this had been done referring to letters of 17 February 2021, 30 March 2021, 8 April 2021 and 20 April 2021.

12. However, on looking to determine the application the procedural chair noted that these letters did not include details of the relevant works nor of the estimated total cost. These were then provided on 17 June 2021.

13. The directions included a reply form for any leaseholder who objected to the application to return to the tribunal and the Applicant, also indicating whether they wished to have an oral hearing. Any such objecting leaseholder was required to respond by 14 May 2021.

14. The directions further provided that this matter would be determined on or after 28 May 2021 based on the documents, without a hearing, unless any party requested an oral hearing.

15. No leaseholder has responded, and no party has requested an oral hearing.

16. On reviewing these documents, the tribunal considered that an inspection of [NAME] was neither necessary nor proportionate to the issues to be determined and that a hearing was not necessary

4 The Applicant’s case 17. The Applicant states that investigations at one of the flats revealed that damp ingress appeared to be due to the absence of lead soakers to the dormer window. Roofing felt, that had prevented the damp getting in, was now deteriorating and there were signs of wet and dry rot in the floor and roof. Lead soakers had been installed to this window, but it was recommended that any dormer window should be fitted with lead soakers to avoid further damp ingress.

18. Two quotes had been obtained and they were proposing to proceed with the lower quote of £10,710.91 inclusive of vat, which also included £1728 for the work already carried out. The Respondents’ position 19. As mentioned above, the directions provided for any Respondent who wished to oppose the application for dispensation to complete the reply form attached to the directions and send it to the tribunal and the Applicant.

20. The tribunal has not received any response or statement of case opposing the application, or comments on the Applicant’s statements in the application form. In the circumstances, the tribunal concluded that the application was unopposed. The tribunal’s decision 21. Following the Supreme Court decision of Daejan Investments Ltd. v Benson [2013] UKSC 14, the only issue for the Tribunal is whether the Respondents have suffered prejudice in dispensing with the requirements.

22. This application for dispensation from the consultation requirements was not opposed by the Respondents, who have not challenged the information provided by the Applicant in the application form, identified any prejudice which they might suffer because of the non- compliance with the consultation requirements, nor asked to be provided with any other information.

23.

Accordingly, in the circumstances set out in this decision, the tribunal is satisfied that it is reasonable to dispense with the consultation requirements in relation to the works.

24. For the purposes of this application, the tribunal determines under section 20ZA of the 1985 Act to dispense with all the consultation requirements in relation to the installation of lead soakers to the 11 dormer windows .

5 25. This is not an application for the tribunal to approve the reasonableness of the works or the reasonableness, apportionment or payability of the service charge demand. I make no finding in that regard and the leaseholders will continue to enjoy the protection of section 27A of the Act.

26. There was no application to the tribunal for an order under section 20C of the 1985 Act.

27. The Applicant shall be responsible for serving a copy of this decision on all leaseholders.

[NAME] [NAME]([NAME]) 22 June 2021

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 application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case. 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. 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, [NAME] 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).