First-tier Tribunal Grants Dispensation for Urgent Lift Replacement Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BG/LDC/2020/0002 Property : [ADDRESS] [POSTCODE] Applicant : [redacted] : - Respondents : [redacted] Derwent House listed in the [NAME] tenant : [APPELLANT] ([NAME]

19) Type 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 Abbey

Venue of Determination : [ADDRESS], LondonWC1E 7LR Date of Determination and Decision : 4th February 2020

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, [ADDRESS] [POSTCODE], comprises fifty six dwellings being a six storey high tower block with a T shape layout.

2. 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 to reinstate the lift service to all residents at the property as more particularly described within sections 4 and 5 of the trial bundle. The [NAME] is said to be urgent, as the works are necessary to replace the old non-functioning obsolete lift with a reliable replacement lift in the building. This work will also include the removal of asbestos in the lift motor area.

3. 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.

3 (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.

4. At the time of a hearing for Directions on 10th December 2019 made by me the Directions required tenants who opposed the [NAME] to make their objections known on the reply form produced with the Directions. One objection form was received from the [NAME] by the Tribunal but this was not followed by any detailed written representations.

5. In essence, the works mentioned above are required to ensure that all residents can access all parts of the block, particularly those who may be less ambulant. Plainly it is not appropriate to allow a situation to develop where a person with a disability cannot easily access their [NAME] because the block lift system is not functioning or not functioning properly. The decision 6. By Directions of the tribunal dated 10th December 2019 it was decided that the [NAME] be determined without a hearing.

7. The tribunal had before it a substantial bundle of documents prepared by the applicant that contained the [NAME], grounds for [NAME] the [NAME] including lift maintenance service history together with a lift breakdown report for the last 12 months, copy correspondence including the single copy objection form, a specimen copy lease and copy Tribunal Directions. The issues 8. 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.

4 9. 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, and the one short objection from the objecting tenant the Tribunal determines the dispensation issues as follows.

10. 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 leaseholder will be required to contribute over £250 towards those works, to consult the leaseholders in a specified form.

11. 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.

12. 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.

13. 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] 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 leaseholders 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 leaseholders 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 leaseholders. 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 leaseholders to establish:

5 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.

14.

Accordingly, the Tribunal had to consider whether there was any prejudice that may have arisen out of the conduct of the [NAME]/applicant and whether it was reasonable for the Tribunal to grant dispensation following the guidance set out above. It should also be remembered that only one leaseholder has indicated through a written objection that he actually opposes the [NAME]. That objection seemed to the Tribunal to be misguided as the objecting tenant seemed to believe that this kind of repair should be at the cost of the landlord, contrary to the lease terms.

15. The tribunal is of the view that, in the absence of any significant written representations from any of the remaining leaseholders, it could not find prejudice to any of the tenants of the properties by the lift replacement works set out in detail in the documentation in the trial bundle submitted in support of the [NAME].

16. The Tribunal was mindful of the fact the absence of a properly functioning and safe lift is of considerable concern and that the safety and well being of all of the residents, able bodied or otherwise, is paramount and that therefore dispensation is wholly appropriate.

17. The applicant believes that the lift replacement works are 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 crucial lift replacement works should be carried out as a matter of urgency to ensure the safety and comfort of all leaseholders and hence the decision of the Tribunal.

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

19. The applicant shall be responsible for formally serving a copy of the tribunal’s decision on all leaseholders. Furthermore, the applicant shall place a copy of the tribunal’s decision on dispensation together with an explanation of the leaseholders’ 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 several blocks. In this way, leaseholders who have not returned

6 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: 4th February 2020

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.