First-tier Tribunal Grants Dispensation for Urgent Roof Repairs

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AK/LDC/2024/0180 Applicant : [redacted] : [COUNSEL] - [COMPANY] Respondents : [redacted] (2) Mrs [NAME] (No. 4) (3) [NAME] (No. 6) (4) Ms [NAME] (No. 8) (5) Mrs [NAME] (No. 10) (6) Mr [NAME] (No. 12) (7) Mr [COUNSEL] (No. 14) (8) Mr [COUNSEL] (No. 16)

Representative : n/a Property : 2-16 (Evens) [ADDRESS], [POSTCODE] Tribunal : Judge N O’Brien Date of decision : 3 December 2024

DECISION

2

Decisions of the tribunal

1. The Tribunal grants the [NAME] for retrospective dispensation from the statutory consultation requirements in respect of the subject works namely repairs to the flat roof over the communal entrance porch to the building. The [NAME]

2. The Applicant landlord seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (LTA 1985) for dispensation from the consultation requirements in respect of works to the subject premises. The premises consist of a 3-storey purpose-built block containing 8 flats. The entrance to the block is via a communal porch with a flat roof which required repair. The Applicant’s case is essentially that after it commenced repair works it became apparent that the works required were more extensive than its agents initially believed, and that the repair had to be completed quickly to prevent further damage to the fabric of the building.

3. By directions dated 5 August 2024 and amended 21 October 2024 the Tribunal directed that the Applicant should, by 25 September 2024, send to the [NAME], and the [NAME] and any [COMPANY], both a copy of the dispensation [NAME] and the directions, and affix them to a prominent place in the common parts of the property, and confirm to the Tribunal that this had been done by 30th October 2024. The Applicant confirmed by email sent to the Tribunal on 23 October 2024 that those directions had been complied with.

4. The directions provided that if any [NAME] or sublessee objected to the [NAME], he or she should inform the Applicant and the Tribunal by 8th November 2024. The Tribunal received no objections to the [NAME] from any of the Respondents.

5. The directions provided that the Tribunal would decide the matter on the basis of written representations unless any party requested a hearing. No party has requested a hearing Legal Framework 7. The Service Charges (Consultation Requirements)(England) Regulations 2003 set out the consultation process which a landlord must follow in respect of works which will result in any [NAME] contributing more than £250 towards the cost. In summary they require the Landlord to follow a three-stage process before commencing the works. Firstly the Landlord must send each [NAME] a notice of intention to carry out the

3 works and give the [NAME] 30 days to respond. Then the Landlord must send out details of any estimates and permit a further 30-day period for observations. Then, if the landlord does not contract with a contractor nominated by the [NAME] or does not contract with the contractor who has supplied the lowest estimate, it must service notice explaining why. 8. Section 20ZA of the LTA 1985 provides:

“Where an [NAME] is made to the appropriate tribunal for a determination to dispense with any or all 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”.

9. In [COMPANY] v [NAME] and others [2013] UKSC 14 the Supreme Court held that in any [NAME] for dispensation under s20ZA of LTA 1985 the Tribunal should focus on the extent, if any , to which the [NAME] are or would be prejudiced by either paying for inappropriate works or paying more than would be reasonable as a result of the failure by the landlord to comply with the Regulations. The gravity of the landlord’s failing or the reasonableness of its actions of the landlord are only relevant insofar as they are shown to have caused such prejudice. The evidential burden of identifying relevant prejudice lies on the tenants but once they have raised a credible case of prejudice, the burden is then on the landlord/applicant to rebut it. The Applicant’s Case 10. The Applicant’s case is set out in its [NAME]. It is said that the flat roof over the entrance porch had been leaking for some time. No remedial action was taken until a resident informed the Landlord’s agent that the damage caused by the leak was getting worse and eventually the ceiling partially collapsed. The Applicant’s agent instructed a [NAME] to prepare an estimate for the cost of repair works. The initial estimate dated 30 May 2024 is included in the bundle. The estimated cost was £1930 plus VAT, which was less than £250 per [NAME] and so the statutory consultation requirements did not apply.

11. The agent instructed its chosen contractor to commence the works in or about June 2024. However according to the documents attached to the [NAME] when the roof covering was stripped back it became apparent that the repairs required were more extensive than initially thought and would in fact cost £6450 plus VAT. The Applicant’s agent proceeded to instruct its contractor to proceed forthwith as by that stage the porch was open to the elements, which risked further structural damage, and was a security hazard. Consequently it did not have time to comply with the consultation requirements.

4 Responses from the Respondents 12. There has been no objection from any of the Respondents to the [NAME]. The Tribunal’s decision 13. The Tribunal determines that it will grant dispensation in relation to the roof works described in the [NAME]. The Tribunal does not consider that there is any evidence that Respondents have been prejudiced by the lack of consultation. No objections have been received.

14. This determination does not prevent any [NAME] in the future from challenging the reasonableness of the works, or their cost or the payability of any service charge arising from the works, save insofar as any such challenge relates to the fact that the statutory consultation requirements were not complied with.

15. The Applicant is reminded that, as stated in the directions, it is the responsibility of the Applicant to serve a copy of this decision on all the affected lessees.

Name: Judge N O’Brien Date: 3 December 2024

Rights of appeal 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. 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. 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]. 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.

5 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. If the tribunal refuses to grant permission to appeal, a further [NAME] for permission may be made to the Upper Tribunal (Lands Chamber).