First-tier Tribunal Grants Dispensation for Urgent Health and Safety Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/OOBJ/LDC/2019/0141 Property : Cedars court 1 [ADDRESS] [POSTCODE] Applicant : [redacted] : - Respondents : [redacted] [ADDRESS] [POSTCODE] named on the schedule attached to the [NAME] tenants : [NAME] and [NAME] of [NAME] : [NAME] for the dispensation of consultation requirements pursuant to S. 20ZA of the Landlord and Tenant Act 1985 Tribunal Members : Judge Professor Robert M [NAME] of Paper Based Hearing : [ADDRESS], LondonWC1E 7LR Date of Decision : 16th October 2019

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 our decisions are set out below. The background to the [NAME]

1. The property, Cedars court 1 [ADDRESS] [POSTCODE], comprises a purpose built building of 17 flats for people aged 55 years or over. 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 health and safety works dealing with the [NAME] safe of a wall that has become unsafe due to tree roots and recent high winds. The works include urgent remedial action.

2. Section 20ZA relates to consultation requirements and provides as follows: “(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 superior landlord, 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,

3 (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.

3. At the time of a hearing for [NAME] on 29th August 2019 by Judge P Korn this required tenants who opposed the [NAME] to make their objections known on the reply form produced with the [NAME]. No objections were received by the Tribunal or sent to the Tribunal via the applicant but two objections were disclosed by the applicant in the trial bundle.

4. In essence, the works mentioned above are required to action health and safety works dealing with an unsafe wall. The works concerns work dealing with the [NAME] safe of a wall that has become unsafe due to tree roots and recent high winds. The works include urgent remedial action. The decision 5. By [NAME] of the tribunal dated 29th August 2019 it was decided that the [NAME] be determined without a hearing.

6. The tribunal had before it a small bundle of documents prepared by the applicant that contained the [NAME], grounds for [NAME] the [NAME], copy correspondence from both parties, details of remedial work carried out so far and copy Tribunal [NAME]. The issues 7. 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.

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

9. 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

4 leaseholder will be required to contribute over £250 towards those works, to consult the [NAME] in a specified form.

10. 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 have to be satisfied that it is reasonable to do so.

11. 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.

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

“Would the [NAME] 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.

13.

Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the

5 lessor/applicant and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above.

14. The tribunal is of the view that it could not find prejudice to any of the tenants of the properties by the works to make safe the exterior wall that is the subject of this [NAME]. The Tribunal was mindful of the fact that a defective and unstable and dangerous wall is clearly such that it will give rise to the need for urgent works. It is these works that will require dispensation.

15. The applicant believes that the remedial works are vital given the nature of the problems reported by the applicant. 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 remedial works to make safe the exterior wall should be dealt with as a matter of urgency to ensure the safety of all [NAME] and [NAME] and hence the decision of the Tribunal. The Tribunal also noted that the applicant did confirm in writing that “The actual replacement of the wall with salvaged bricks, new bricks or a fence will be consulted with [NAME] in the normal way, formally through the section 20 consultation Act”.

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

17. 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 on the applicant’s website.

Name: Judge Professor Robert M. Abbey Date: 16 October 2019

6 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.