First-tier Tribunal Grants Dispensation for Urgent Lift Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BF/LDC/2021/0241 P: PAPERREMOTE Property : [ADDRESS] [POSTCODE] Applicant : [redacted] as Trustees of the [NAME] : [COMPANY] Respondents : [redacted] schedule to the application Representative : Unrepresented Type of Application : Section 20ZA Landlord and Tenant Act 1985 Dispensation with consultation requirements Tribunal member(s) :

[NAME] (Valuer Chair) Date of Paper Determination : 23rd November 2021 Date of Decision : 23rd November 2021

DECISION

This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was P: PAPERREMOTE. A face-to-face hearing was not held because it was not practicable, and all issues could be determined on paper. The documents that I was referred to are in a bundle of 62 pages, the contents of which I have noted.

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Decision of the Tribunal

(a) The Tribunal grants dispensation under section 20ZA of the Landlord and Tenant Act 1985 (‘the 1985 Act’) for works to be undertaken to replace main lift control panel to reinstate lift at [ADDRESS] [POSTCODE] (‘the Property’). (b) There are no terms imposed on the grant of dispensation. (c) The applicant shall send a copy of this decision to each of the respondents, either by email, hand delivery or first-class post and shall send an email to the Tribunal by 1st December 2021, confirming the date(s) when this was done. The application 1. The applicant seeks dispensation from the consultation requirements imposed by section 20 of the 1985 Act.

2. The application was submitted on 15th September 2021 and directions were issued on 4th October 2021. These provided that the case be allocated to the paper track, to be determined upon the basis of written representations. None of the parties has objected to this allocation or requested an oral hearing. The paper determination took place on 23rd November 2021.

3. The relevant legal provisions are set out in the appendix to this decision. The background 4. The Property comprises a 1970’s development of purpose-built apartments arranged over two four storey blocks. Each block comprises 24 units with a separate lift serving each. It appears, from [ADDRESS], to be a typical development of its era with substantially brick cladding with small areas of wood rain screen under a flat roof. Some flats have small internal balconies and the majority of the windows are uPVC. No rainwater goods are visible, so it is presumed they are internal to the construction.

5. The applicant seeks dispensation from the statutory consultation requirements for committed works to the lift in Block 1, which stopped operating in August 2021, due to the failure of the main control panel. The lift is as originally installed and due to its age, it is now proving difficult to obtain spare parts. The lift is serviced and maintained by [NAME], no contract or terms of this contract were provided.

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6. A specification, prepared from advice by [NAME], for the works, have been market tested by seeking quotations from two other parties in addition to [NAME] (i) [NAME] £19386.00 inc VAT, and (ii) [NAME] £19080.00 inc VAT (iii) [NAME] – failed to respond

7. Following some post tender discussions, [NAME] were able to match the price of £19080.00 inc VAT and were appointed. Due to an 8 week order period for the build of components an order was placed and work is scheduled to commence on 29th November 2021.

8. The applicant did not engage in formal consultation but does evidence some communication with the tenants of Block 1 on the 27th August and 2nd September 2021.On the 20th September 2021 a letter was sent to all respondents, Block1 and Block2, enclosing the application made and providing an estimate of the works at £20,000 subject to tender. Following directions from the Tribunal a letter was sent to all respondents on 11th October 2021 enclosing Directions dated 4th October 2021 and informing the tenants that quotations were to be analysed and an appointment made and communicated with reasons. No comments our objections from the respondents have been recieved. On the 25th October 2021 a letter was sent to the tenants explaining that after some discussion over price and consideration of lead in times that an order had been placed with [NAME] for £15,900 plus VAT (£19,080).

9. The only issue for the Tribunal is whether it is reasonable to dispense with the statutory consultation requirements. This application does not concern the issue of whether any service charge costs will be reasonable or payable. The grounds of the application 10. The grounds are set out in the application dated 10th August 2021 and can be summarised as follows: (a) The Works are urgent and necessary due to the particular difficulties of access that the absence of a lift service would cause to some residents with mobility issues or those with young children.

11. Paragraph 2 of the directions gave the respondents an opportunity to object to the dispensation application by completing and returning

4 reply forms and serving statements, setting out their grounds of opposition. No forms were returned. The Tribunal’s decision 12. The Tribunal grants retrospective dispensation for the Works. There are no terms imposed on the grant of dispensation. Reasons for the tribunal’s decision 13. The Tribunal accepts that the Works are necessary and urgent, given the potential adverse impact, going beyond just inconvenience, on tenants with mobility issues and young children. 14. [COMPANY] consultation was undertaken there were efforts made to keep tenants informed, it is not clear that any tenants would have been prejudiced by the lack of formal consultation and no objections have been made objecting to the dispensation application.

15. Having regard to the particular facts of this case and the guidance in [COMPANY] v Benson [2013] UKSC 14, it is reasonable to dispense with the strict consultation requirements.

16. This decision does not address the cost of the Works, or whether the respondents are liable to contribute to the cost via their service charges. Nothing in this decision prevents the respondents from seeking a determination of ‘payability’, pursuant to section 27A of the 1985 Act. Name: [NAME]: 23rd November 2021

Rights of appeal

1. 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.

2. 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.

3. 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.

5 4. 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.

5. The application 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 making the application is seeking.

6. If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).

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Appendix of relevant legislation Landlord and Tenant Act 1985 (as amended) Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are [COMPANY] in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) the appropriate tribunal . (2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and

7 (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is [COMPANY] to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in accordance with, the regulations is [COMPANY] to the amount so prescribed or determined.] Section 20ZA (1) Where an application is made to the appropriate tribunal for a determination to dispense with all of 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.

Section 27A (1) An application may be made to the appropriate tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to the appropriate tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to -

8 (a) the person by whom it would be payable, (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable. (4) No application under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment.