First-tier Tribunal Grants Dispensation for Urgent Balcony Repairs

OUTCOME: Allowed

Case Reference : MAN/30UE/LDC/2022/0063

Property : Various Residential Properties within the Applicant’s housing portfolio - See Annex A

Applicant: [redacted] : N/A

Respondents : [redacted]

(see Annex B)

Type of Application : Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge L Bennett

Date of determination : 4 September 2023

Date of Decision : 4 September 2023

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2023 FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

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Application

1. [APPELLANT] applies to the Tribunal under Section 20ZA of the 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 the refurbishment and repair to balconies programme.

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

Grounds and Submissions

3. The initial application to the Tribunal was dated 13 December 2022.

4. The Applicant is the Landlord of the subject properties.

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

properties are mostly ex-council stock bought via Right To Buy/Right To

Acquire.

6. On 13 June 2023 a Video Case Management Conference took place. A stay

of proceedings was granted to allow for the submission of an amended

application. This was received on 28 June 2023.

7. On 3 July 2023, a Tribunal Legal Officer made directions requiring the

service of documents by the Applicant upon 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.

8. The Applicant has provided a statement of case explaining why the

application was made to the Tribunal together with detailed supporting

documents.

9. Following investigations that took place in 2019-2020, serious structural

defects were noted in 2 separate balconies. As the Applicant owns a large

number of similarly constructed properties, it was decided to employ a

[NAME] to sample a further 121 balconies. This

showed similar defects in varying stages of advancement.

10. The Applicant asked [APPELLANT] (a specialist in liquid plastic coating concrete

repairs) to design a solution across a total of 204 balconies owned by the

Applicant. The company was chosen because, due to the highly

specialised nature of the works, there are limited suitably qualified

alternative providers in the North West. Additionally, [NAME] offered a 25

year guarantee on their product.

11. The works were tendered in 2022 on the MyTenders portal in line with

government procurement guidance owing to the large value of the

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contract. WRPS (specialists in applying liquid plastic coatings as specified

by [COMPANY]) won the tender. A measured term contract for 3 years (with 2

potential further 1 year extensions based on performance) was awarded. It

is anticipated that the same specialist contractor will be used to complete

the remainder of the 10 year programme.

12. Properties were prioritised based on the seriousness of the concrete

degradation. During the financial year 22/23, works at 34 properties were

completed, with a further 32 due to be completed in the 23/24 financial

year. It is acknowledged that works were carried out to leasehold

properties in the absence of section 20 consultation. These works were

necessary because they shared a balcony with a tenanted property, or in 1

case because works were so urgent they could not be left. Section

20 consultation was started but was incompatible with the nature of the

works required and the length of the programme.

13. The initial phase of the works focused on the balconies which returned the

poorest results during the surveys, meaning they were most in need of the

works and could not be pushed back. The programme will continue on the

basis of the properties with the poorest results being done earliest.

Works are to ensure the ongoing safety of the balconies.

14. Dispensation is being sought from the Section 20 process for the

properties that have been completed and for the remainder of the

programme. Value for money has been achieved by following government

procurement guidance and by including the leasehold properties in the

programme, thereby achieving economies of scale. Due to the specialist

nature of the works and limited number of suitably qualified contractors,

it is unlikely [NAME] would be able to suggest any suitable

contractors, or that it would be possible to achieve the minimum 2 quotes

necessary. Furthermore, to start a section 20 consultation at this

point would result in significant time delays and cost increases. It is

also anticipated that a number of separate consultations over the duration

of the programme would need to be carried out.

15. Detailed reasons for the urgency of the works and the consequences upon lessees of any delay

The concrete slabs form the first floor of the buildings and are integral to

their structural integrity. In each case the balconies are an extension of this

concrete slab. Whilst the failure of the concrete is currently present only in

external areas, if left unchecked it may spread internally beneath first floor

brickwork, which itself is supporting the roof structure. Degradation of the

concrete balconies, either by increasing chloride content or carbonation is

causing the concrete to crack and flake. In the worst cases lumps of

concrete have fallen, posing an obvious danger and exposing the steel

rebar, which further undermines the structural integrity of the buildings.

At the very least this can cause uneven surfaces and trip hazards and at the

worst in two cases balconies became so dangerous they had to be removed

altogether.

4 16. Part 1 section 20 notices were sent to [NAME] on 25 August 2022,

and 3 October 2022. Following the initial notices and subsequent meeting

held on 1 September 2022, the Applicant wrote to [NAME] on 26

September 2022, after reviewing queries raised with regards to the

planned works.

17. The Tribunal did not receive any submissions from Respondent

[NAME]. Neither the Applicant nor a Respondent requested a hearing.

18. The Tribunal therefore convened without the parties to make its

determination on 4 September 2023.

Law

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

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

that the charges are reasonably incurred.

21. 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”.

22. “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.”

23. 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

24. I have determined this matter following a consideration of the Applicant’s

case but without [NAME] a hearing. Rule 31 of the Tribunal Procedure

(First-tier Tribunal) (Property Chamber) 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

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determined without a hearing. Determining this matter does not require

me to decide disputed questions of fact.

25. 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.

26. Having considered the submission made by the Applicant I accept the

urgent nature of the works. A full consultation exercise was not

practical and would have added considerable delay and additional costs.

Given the extent and nature of the works it is unlikely any leaseholder

could realistically find an alternative contractor. For the safety of all

residents, a decision was taken to act swiftly and carry out the works. The

Applicant did notify [NAME] about the works and answered initial

queries raised. The Applicant also notified [NAME] of the application

to the Tribunal and the reasons why it believed the application was

necessary.

27. 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 the

urgency outweighs any potential prejudice. Dispensation from

consultation requirements does not imply that any resulting service charge

is reasonable.

Order

28. The Applicant is dispensed from complying with the consultation

requirements in respect of the works specified in the application.

Judge L Bennett 4 September 2023

6 Annex A – [APPELLANT] within the Applicant’s Housing Portfolio 1. [ADDRESS], [POSTCODE] 2. [ADDRESS], [POSTCODE] 3. [ADDRESS], [POSTCODE] 4. [ADDRESS], [POSTCODE] 5. [ADDRESS], [POSTCODE] 6. [ADDRESS], [POSTCODE] 7. 12 [ADDRESS], [POSTCODE] 8. [ADDRESS], [POSTCODE] 9. [ADDRESS], [POSTCODE] 10. [ADDRESS], [POSTCODE] 11. [ADDRESS], [POSTCODE] 12. 28 [ADDRESS], [POSTCODE] 13. 32a [ADDRESS], [POSTCODE] 14. 34a [ADDRESS], [POSTCODE] 15. 1a [ADDRESS], [POSTCODE] 16. 2a [ADDRESS], [POSTCODE] 17. [ADDRESS], [POSTCODE] 18. 1a [ADDRESS], [POSTCODE] 19. 6a [ADDRESS], [POSTCODE] 20. [ADDRESS], [POSTCODE] 21. [ADDRESS], [POSTCODE] 22. [ADDRESS], [POSTCODE] 23. [ADDRESS], [POSTCODE] 24. [ADDRESS], [POSTCODE] 25. [ADDRESS], [POSTCODE] 26. 7 Greenside, Euxton, Chorley, [POSTCODE] 27. [ADDRESS], [POSTCODE] 28. [ADDRESS], [POSTCODE] 29. [ADDRESS], [POSTCODE] 30. [ADDRESS], [POSTCODE] 31. [ADDRESS], [POSTCODE] 32. [ADDRESS], [POSTCODE] 33. [ADDRESS], [POSTCODE] 34. [ADDRESS], [POSTCODE] 35. [ADDRESS], [POSTCODE] 36. [ADDRESS], [POSTCODE] 37. [ADDRESS], [POSTCODE] 38. [ADDRESS], [POSTCODE] 39. [ADDRESS], [POSTCODE] 40. [ADDRESS], [POSTCODE] 41. [ADDRESS], [POSTCODE] 42. [ADDRESS], [POSTCODE] 43. [ADDRESS], [POSTCODE]

7 44. [ADDRESS], [POSTCODE] 45. [ADDRESS], [POSTCODE] 46. [ADDRESS], [POSTCODE] 47. [ADDRESS], [POSTCODE] 48. [ADDRESS], [POSTCODE] 49. [ADDRESS], [POSTCODE] 50. [ADDRESS], [POSTCODE] 51. [ADDRESS], [POSTCODE] 52. [ADDRESS], [POSTCODE] 53. [ADDRESS], [POSTCODE] 54. [ADDRESS], [POSTCODE]

8 Annex B – List of Respondents 1. [NAME] [NAME]

2. Mrs [NAME] 3. [NAME] [NAME] & Mrs [NAME] 4. [NAME] J [NAME] 5. [NAME] [NAME] 6. [NAME] [NAME] & Miss H [NAME] 7. [NAME] [NAME] 8. [NAME] [NAME] 9. [NAME] [NAME] 10. [NAME] [NAME] 11. [NAME] [NAME] & [NAME] [NAME] 12. [NAME] [NAME] 13. [NAME] [NAME] 14. [NAME] [NAME]

15. Miss [NAME] A [NAME] 16. [NAME] [NAME]

17. Mrs [NAME] 18. [NAME] [NAME] 19. [NAME] [NAME]

20. Executors of [NAME] [NAME] 21. [NAME] & Mrs [NAME] 22. [NAME] [NAME] & Miss [NAME] 23. [NAME] [NAME]

24. Dr [NAME]

25. Mrs [NAME] 26. [NAME] [NAME] 27. [NAME] [NAME] 28. [NAME] [NAME] 29. [NAME] [NAME] 30. [NAME] [NAME] [NAME] & Mrs [NAME]

31. Mrs [NAME] 32. [NAME] [NAME]

33. Mrs [NAME] 34. [COMPANY] 35. [NAME] [NAME] 36. [NAME] [NAME] 37. [NAME] 38. [NAME] & Mrs [NAME] 39. [NAME] [NAME]

40. Mrs [NAME] 41. [NAME] [NAME] 42. [NAME] [NAME] 43. [NAME] [NAME] & Mrs [NAME]

44. Mrs [NAME] 45. [NAME] [NAME] 46. [NAME] [NAME] 47. [NAME] [NAME] 48. [NAME]

49. Mrs [NAME] M Nicol & [NAME] 50. [NAME] 51. [NAME] 52. [NAME] 53. [NAME] [NAME] [NAME] 54. [NAME] [NAME]