First-tier Tribunal Grants Dispensation for Urgent Major Works

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AF/LDC/2024/0038 Property : [ADDRESS] [POSTCODE] Applicant : [redacted] Respondents : [redacted] the property Type of Application :

Application under section 20ZA to dispense with consultation requirements for a scheme of Major work Tribunal Members : Judge Daley

Date and venue of Paper Determination : 13 May 2024 Paper Determination dealt with remotely Date of Decision : 13 May 2024

DECISION

Decision of the tribunal i. The tribunal grants dispensation in respect of the works required to repair the windows at [ADDRESS]. ii. The Tribunal makes no order for the cost occasioned by the making of the application.

The application 1. The applicant by an application, made in 3 January 2024 sought dispensation under section 20ZA of the Landlord and Tenant Act 1985 from part of the consultation requirements imposed on the landlord by section 20 of the 1985 Act1.

2. The premises which is the subject of the application is a purpose-built block of 14 flats over three floors with the upper floor being constructed later than the main block in a residential area. The Background

3. This application which was dated 3 January 2024, sought an order for dispensation of the consultation requirements in respect of repairs required to the UVPC windows of the premises, which has led to water ingression into flats 9,10 and 12 at the premises.

4. The work which has not been set out in detail requires the removing the mastic sealing in its entirety from the wall to the windows and replying new sealant throughout, this work requires full scaffolding.

5. It was stated that the work which was estimated to cost £5000, was urgent as a result of damage being caused to flats 9,10 and 12. Directions were given in writing on 21.02.2024, setting out the steps to be taken by the Applicant, (including serving the directions on the respondents) for the progress of this case. These directions were subsequently amended on 29 February, and 2 April 2024.

1 See Service Charges (Consultation Requirements) (England) Regulations 2003 (SI2003/1987)

6. The Directions at paragraph C stated that -: “…The only issue for the tribunal is whether or not 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 Amended Directions also provided that -: Those leaseholders who oppose the application must by 22 March 2024 should complete form attached to the directions and send it by email to the Tribunal; and to the applicant. It also provided for the applicant to reply .

7. The Amended Directions also provided that the application would be determined on the basis of written representations in the week commencing 13.05. 2024, and that any request for a hearing should be made to the tribunal. No request was made for a hearing, and the Tribunal satisfied itself that the matter was suitable to be dealt with on the papers. The Applicant’s case

8. The application was made on behalf of the landlord by [APPELLANT] property manager. The Applicant’s case was as set out in the Application form and in the report of [NAME] by [APPELLANT] dated 10.11.23. The Applicant also provided photographs of the damage to flats 9, 10 and 12. Mr [NAME] set out that he had inspected the flats and damage had been caused to the flats which required urgent action from the Applicant which could not be remedied by a temporary repair whilst a full Section 20 consultation took place.

9. The Applicant had also provided two quotes for the work. There was no information concerning whether the work had been undertaken, although the quotation was only valid for 30 days.

10. There were two responses from the leaseholders, Mr [NAME] who had some knowledge of construction. He set out that the leak had been on-going for over a year, however he considered that three quotes should be obtained as he considered the existing quote of £5000 to be too high, he also considered that if consulted he had experience which could lead to a saving on the cost of scaffolding.

11. Mr [NAME] also responded and set out that there was an issue of when the inspection report had been received, and

whether the costs of the work could potentially be covered by [NAME]. Mr [RESPONDENT] responded by setting out that the landlord intended to get further quotations and keep the tenants informed.

The tribunal’s decision and reason for the decision I. The Tribunal having considered all of the circumstances in this case, it noted the work was considered to be urgent as there was a possibility of further damage to the flats at the premises. It also appears that no contractor has been identified. However it has decided to grant the dispensation.

II. The Tribunal has considered the lease. The Tribunal noted that its jurisdiction in this matter is somewhat limited and the scope is set out in Section 20ZA and as discussed by the court in Daejan –v- Benson (2013) which requires the Tribunal to decide on whether the leaseholders would if dispensation is granted suffer any prejudice. Although the Tribunal does not find that there is any prejudice to the dispensation being granted. It noted the issues raised by the tenants concerning the reasonableness of the costs and whether the work should be paid by [NAME].

III. The Tribunal would note that the limit in its jurisdiction has meant that although the Tribunal has considered whether the work is within the scope of the repairing covenant in the lease, it is for the landlord to satisfy themselves of this and to determine the proportion payable by each [NAME]. As nothing in the Tribunal’s decision deals with the reasonableness or payability under the lease of the work in issue.

IV. Further the Applicant shall within 28 days provide the Respondents with information of the full scope of the work, the provisions within the lease under which the work is carried out and if the work is within the scope of the lease the contribution to the costs of the work to be paid by each [NAME].

V. The leaseholders will of course enjoy the protection of section 27A of the 1985 Act so that if they consider the costs of the work are not reasonable (on the grounds set out above or any other ground) they may make an application to the tribunal for a determination of their liability to pay the resultant service charge. VI. No applications were made for costs before the tribunal.

Judge Daley Date 13 May 2024

Appendix of relevant legislation

Landlord and Tenant Act 1985 Section 27A (1) An application may be made to a leasehold valuation 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 a leasehold valuation tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, [NAME] or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (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. Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited 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) a leasehold valuation 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 (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 limited 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 limited to the amount so prescribed or determined.]

1. [POSTCODE] Consultation requirements: supplementary (1) Where an application 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. (3) The Secretary of State may by regulations provide that an agreement is not a qualifying long term agreement— (a) if it is an agreement of a description prescribed by the regulations, or (b) in any circumstances so prescribed. (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 [COMPANY] representing them, (b) to obtain estimates for proposed works or agreements,

(c) to invite tenants or the [COMPANY] 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 [COMPANY] 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. (6) Regulations under section 20 or this section— (a) may make provision generally or only in relation to specific cases, and (b) may make different provision for different purposes. (7) Regulations under section 20 or this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. [...]

2. The relevant Regulations referred to in section 20 are those set out in Part 2 of Schedule 4 of the Service Charge (Consultation etc) (England) Regulations 2003.