First-tier Tribunal Grants Dispensation for Urgent Roof Repairs

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00BJ/LDC/2019/0047 Property : 44 [ADDRESS] [POSTCODE] Applicant : [redacted] : [APPELLANT] Respondents : [redacted] out in the [NAME] :

Type of [NAME] : For the dispensation from the requirements to consult lessees about major works – [POSTCODE] Landlord and Tenant Act 1985 Tribunal Members : [APPELLANT] J [APPELLANT] and venue of Hearing : Paper determination on 13 [ADDRESS] [POSTCODE] Date of Decision : 21 May 2019

DECISION

2

Decision of the tribunal 1. The tribunal grants the applicant dispensation from the statutory consultation requirements in respect of works to be carried out to 44 [ADDRESS] [POSTCODE] (“the building”) in respect of repairs to the roof above [NAME]

8. The costs to be incurred in respect of the works is said to be in the region of £3,647.00 plus VAT. The background 2. On 12 February 2019 the long [NAME] at the building advised the landlord’s managing agents, [NAME], of a leak coming from a light fitting in the kitchen presumably from the [NAME] roof immediately above the [NAME] the repair of which was a landlord issue with the cost recoverable through the service charge. 3. [COMPANY] visited the site on Parkfords’ instructions and on 26 February 2019 sent Parkfords estimates of the costs involved in effecting repairs to the [NAME] roof though at that stage lacking scaffold access they could not be entirely sure of the cause. Two options were offered both requiring scaffold access at an estimated cost of £900. Option 1 basically entailed covering the exiting roof components with an additional layer of roofing felt at an additional cost of £882 whilst Option 2 envisaged stripping the existing roof covering and replacing it anew at a an additional cost of £2,747, all figures exclusive of VAT which would be charged.

4. On 18 March Parkfords sent all leaseholders of the flats at the building a Notice of Intent under the provisions of S20 of the Landlord and Tenant Act 1983 (“the Act”) stating that the landlord intended to carry out works to the building namely the erection of scaffolding and [NAME] roof replacement and any associated works. The intention was to invite tenders from contractors for the required works on a like for like basis based on a specification to be drawn up following consultation. The notice invited observations and the nomination of any contractor and gave a closing date for any such to be received of 22 April 2019.

5. The [NAME] had, on 27 February 2019 e-mailed Parkfords asking if the process could be completed sooner than a full S20 consultation would allow and on 18 March Parkfords made this [NAME], presumably having agreed that resolving the leak could not wait any longer.

6. Directions in respect of this [NAME] were made by the tribunal on 25 March 2019. These provided for the applicant to send to each [NAME] a copy of the [NAME], and any accompanying documents, the directions and the tribunal’s covering letter and to place a copy of all of them in the hall/notice board of the building. A form was included by which tenants could advise their support of or opposition to the [NAME] to the tribunal.

3

7. The directions provided for the [NAME] to be determined on the papers directed to be submitted to the tribunal unless any of the parties requested an oral hearing; none did and the tribunal considered the [NAME] and the supporting documentation on 13 May 2019.

8. Details of the statutory provisions relevant to this [NAME] are set out in Appendix 2 to this decision. The tribunal’s decision 9. The leading authority in relation to s.20ZA dispensation requests is [COMPANY] v Benson [2013] 1 WLR 845 (“Benson”) in which the Supreme Court set out guidance as to he approach to be taken by a tribunal when considering such applications. This was to focus on the extent, if any, to which the lessees were prejudiced in either paying for inappropriate works or paying more than would be appropriate, because of the failure of the landlord to comply with the consultation requirements. In his judgement, Lord [NAME] said as follows:

44. Given the purpose of the Requirements is to ensure that the tenants are protected from (1) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an [NAME] by a landlord under section 20ZA(i) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements.

44. Thus, in a case where it was common ground that the extent, quality and cost of the works were in no way affected by the landlord’s failure to comply with the Requirements, I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be – ie as if the Requirements had been complied with.

10. None of the leaseholders is opposed to the [NAME] or suggests that the works to be carried out are inappropriate or unnecessary. Nor is there any evidence that the leaseholders will be asked to pay more than is appropriate for the cost of the works. The tenant of [NAME] 8 clearly supports the [NAME] as does a Mr [APPELLANT] of [NAME] 3 the only tenant to return the pro- forma slip.

11. The factual burden of identifying some relevant prejudice is on the leaseholders. They need to show that they have been prejudiced by the failure of the landlord to comply with the statutory consultation procedure. If a credible case of prejudice is established, then the burden is on the landlord to rebut that case.

4

12. The tribunal is satisfied that no relevant prejudice has been identified. Whilst compliance with the consultation procedure would have enabled the leaseholders to suggest alternative contractors and make observations on quotes received, there is no evidence to suggest that failure to comply with the consultation requirements will lead to the applicant incurring costs in an unreasonable sum, or lead to works being carried out that fall below a reasonable standard. No alternative quotes have been provided that would support such a contention.

13. That these works are urgently required is clearly evidenced from the contents of the emails from the [NAME] to the managing agents and in the tribunal’s experience an actual leak from a [NAME] roof into living accommodation below will usually result in greater damage and more costs unless dealt with expeditiously. There is nothing before the tribunal to suggest dispensation should not be granted and the tribunal is satisfied that it is reasonable to dispense with the non-complied requirements of the Service Charge (Consultation Requirements)(England) Regulations 2003. Nothing in this decision to grant dispensation should be taken as limiting any [NAME]’s rights to challenge a subsequent service charge demand on any grounds save as to compliance with the consultation requirements. Name: [NAME] [NAME] [NAME]: 21 May 2019

5

APPENDIX 1 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.

6

7

© CROWN COPYRIGHT 2013

9

10

11