First-tier Tribunal Grants Dispensation for Urgent Fire Safety Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AP/LDC/2024/0170 Property :

[NAME], [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME] Respondents : [redacted] of [NAME] 2. [COMPANY] of [NAME] : [NAME] for the dispensation of consultation requirements pursuant to S. 20ZA of the Landlord and Tenant Act 1985 Tribunal Members :

Mr [APPELLANT] of Determination and Decision : 25 February 2025

DECISION

2 Decisions of the Tribunal (1) The Tribunal grants the [NAME] for the dispensation of all or any of the consultation requirements provided for by section 20 of the Landlord and Tenant Act 1985 (Section 20ZA of the same Act). (2) The reasons for the Tribunal’s decision are set out below. The background to the [NAME]

1. The property [NAME], [ADDRESS] [POSTCODE], , comprises 36 self-contained flat dwellings being a seven-storey high block.

2. The tribunal did not inspect the property as it considered the documentation and information before it in the trial bundle enabled the tribunal to proceed with this determination.

3. The documents that were referred to are in a bundle extending to 80 pages, the contents of which we have recorded, and which were accessible by all the parties. Therefore, the tribunal had before it an electronic/digital trial bundle of documents prepared by the respondent, in accordance with previous directions. (A) The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from all the consultation requirements imposed on the landlord by section 20 of the 1985 Act, (see the Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987), Schedule 4.) The request for dispensation concerns urgent remedial works following an inspection of the block by the London Fire Brigade on the 4 June 2024. A report from the LFB confirmed the fire safety are inadequate to meet compartmentation standards. The works are necessary to upgrade the fire alarm and detection system which included the installation of a new file alarm system including new control panel, 6 interface modules, 13 new call points, 36 new heat sounders, 23 new smoke detectors, more than 30 new emergency lights, various emergency exit signs (lit) and necessary associated cabling. The work is said to be urgent due to the risk of fire and the need to minimise walking watch costs. Three quotes for the work were obtained and the works were completed by PSL at a cost of £35,965.79 inclusive of VAT.

4. Section 20ZA relates to consultation requirements and provides as follows:

3 “(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.

(2) In section 20 and this section— “qualifying works” means works on a building or any other premises, and “qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a [NAME], for a term of more than twelve months. …. (4)In section 20 and this section “the consultation requirements” means requirements prescribed by regulations made by the Secretary of State. (5)Regulations under subsection (4) may in particular include provision requiring the landlord— (a) to provide details of proposed works or agreements to tenants or the recognised tenants’ association representing them, (b) to obtain estimates for proposed works or agreements, (c) to invite tenants or the recognised tenants’ association to propose the names of persons from whom the landlord should try to obtain other estimates, (d) to have regard to observations made by tenants or the recognised tenants’ association in relation to proposed works or agreements and estimates, and (e) to give reasons in prescribed circumstances for carrying out works or entering into agreements.

5. The Directions on 17 December 2024 made by Judge Martynski required any tenant who opposed the [NAME] to make their objections known on the reply form produced with the Directions. One objection form was received from the tenant of flat 7 and this was then followed by detailed written representations from the objecting tenant.

6. The Tribunal are informed that one [NAME] has been in touch in reply to the [NAME], which was a short email from [NAME] [NAME] [NAME] of [NAME] sent on 30 January 2025 to the Tribunal and copied to the Applicant’s solicitor. That email referenced the case number of this [NAME] and averred that [NAME] [NAME] had posted a reply form to the Tribunal which had been returned to her for “reasons unknown”. [NAME] [NAME] did not under cover of that email or since provide a reply form or any other substantive correspondence confirming whether she opposed this [NAME] or not. Otherwise, there were no objection to the proposed works from the [NAME].

4 7. In essence, the works mentioned above are required to ensure that the building complies with fire safety standards, in order to make the building safe for habitation and to protect the occupiers in case of fire breaking out. Thus, negating the need for a waking watch as an interim measure. The decision 8. The tribunal had before it a bundle of documents prepared by the applicant that contained the [NAME], grounds for [NAME] the [NAME] including full details of the necessary remedial work, the three quotations, final invoice from [COMPANY], a specimen copy lease and copy Tribunal Directions. The issues 9. The only issue for the Tribunal to decide is whether or not it is reasonable to dispense with the statutory consultation requirements. This [NAME] does not concern the issue of whether or not service charges will be reasonable or payable.

10. Having read the evidence and submissions from the Applicant and having considered all of the copy deeds, documents and grounds for [NAME] the [NAME] provided by the applicant,the Tribunal determines the dispensation issues as follows.

11. Section 20 of the Landlord and Tenant Act 1985 (as amended) and the Service Charges (Consultation Requirements) (England) Regulations 2003 require a landlord planning to undertake major works, where a [NAME] will be required to contribute over £250 towards those works, to consult the [NAME] in a specified form.

12. Should a landlord not comply with the correct consultation procedure, it is possible to obtain dispensation from compliance with these requirements by such an [NAME] as is this one before the Tribunal. Essentially the Tribunal must be satisfied that it is reasonable to do so.

13. In the case of [COMPANY] v Benson [2013] UKSC 14, by a majority decision (3-2), the Supreme Court considered the dispensation provisions and set out guidelines as to how they should be applied.

14. The Supreme Court came to the following conclusions: a. The correct legal test on an [NAME] to the Tribunal for dispensation is:

5 “Would the flat owners suffer any relevant prejudice, and if so, what relevant prejudice, as a result of the landlord’s failure to comply with the requirements?” b. The purpose of the consultation procedure is to ensure [NAME] are protected from paying for inappropriate works or paying more than would be appropriate. c. In considering applications for dispensation the Tribunal should focus on whether the [NAME] were prejudiced in either respect by the landlord’s failure to comply. d. The Tribunal has the power to grant dispensation on appropriate terms and can impose conditions. e. The factual burden of identifying some relevant prejudice is on the [NAME]. Once they have shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it. f. The onus is on the [NAME] to establish: i. what steps they would have taken had the breach not happened and ii. in what way their rights under (b) above have been prejudiced as a consequence.

15.

Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the [NAME] and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above.

16. The tribunal is of the view that, in the absence of any significant written representations from any of the [NAME], it could not find prejudice to any of the tenants of the properties by the granting of dispensation relating to the fire safety works set out in detail in the documentation in the trial bundle submitted in support of the [NAME].

17. The Tribunal was mindful of the fact that the works were undertaken by the applicant supported by proper estimates and works specifications and that therefore dispensation is wholly appropriate.

18. The applicant believes that fire safety works were vital given the nature of the problems reported. The applicant also says that in effect the tenants of the properties have not suffered any prejudice by the failure to consult. On the evidence before it the Tribunal agrees with this conclusion and believes that it is reasonable to allow dispensation in relation to the subject matter of the [NAME]. It must be the case that the necessary fire safety works should be carried out as a matter of

6 urgency to ensure the safety and the well-being of the [NAME] and hence the decision of the Tribunal.

19. Rights of appeal made available to parties to this dispute are set out in an Annex to this decision.

20. The applicant shall be responsible for formally serving a copy of the tribunal’s decision on all [NAME]. Furthermore, the applicant shall place a copy of the tribunal’s decision on dispensation together with an explanation of the [NAME]’ appeal rights on its website (if any) within 7 days of receipt and shall maintain it there for at least 3 months, with a sufficiently prominent link to both on its home page. Copies must also be placed in a prominent place in the common parts of the block. In this way, [NAME] who have not returned the reply form may view the tribunal’s eventual decision on dispensation and their appeal rights.

Name: [NAME]: 25 February 2025

7 ANNEX - RIGHTS OF APPEAL

1. 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.

2. 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].

3. 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.

4. 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.