First-tier Tribunal Grants Dispensation for Urgent Roof Repairs Without Consultation

OUTCOME: Allowed

© CROWN COPYRIGHT

Case Reference

:

BIR/00CN/LDC/2024/0621

Properties : Flats 1 - 29 [APPELLANT] 39 [ADDRESS] [POSTCODE]

Applicant: [redacted] : [COUNSEL] (Senior Leasehold Property Officer)

Respondents : [redacted]

:

An application under section 20ZA of the Landlord and Tenant Act 1985 for dispensation of the consultation requirements

Tribunal Member : V Ward BSc Hons FRICS – Regional Surveyor

Date of Decision

:

23 April 2025

___________________________________________________________

DECISION ______________________________________________________

FIRST - TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

2

DECISION

Dispensation to the consultation procedures set out in section 20 of the Landlord and Tenant Act 1985 is hereby granted.

______________________________________________________

Reasons for the Decision.

1. The Applicant seeks dispensation from all or some of the consultation requirements imposed by section 20 of the Landlord and Tenant Act 1985 (“the Act”).

2. The only issue determined under this application is whether or not it is reasonable to dispense with the statutory consultation requirements. This decision does not concern the issue of whether any service charge costs will be reasonable or payable.

3. The justification for the application provided by the Applicant is as follows:

There is escape of water from the flat roof/gutter at the front elevation of the building, which is seeping into flat 20 and causing damp and mould. Scaffolding was erected week commencing 11th November and based on the inspection, it has been identified that there are signs of water passing down the side of the building. The contractors have taken an action plan to prevent standing water on the roof and increase the size of the guttering to allow water to flow away freely. There was a similar occurring issue on the other side of the building, which has now been resolved by adding some hopper heads and downpipes from the flat roof into the guttering below. The guttering also required a clear out and then sealed in a water proof paint. The cost to complete these works are £8,950.66 inc vat.

However, the scaffolding is on a public footpath and a licence has been obtained by Birmingham City Council for a period of 4 weeks. Extending the scaffolding period will cost a further £2,500 for 2 weeks. It is anticipated that the contractors will complete the works within the 4 week timescale and carry out a full test of the roof to ensure the issues have been rectified.

4. Directions were issued by the Tribunal requiring the Applicant to provide all lessees a copy of the application for dispensation, a statement explaining the purpose of the application and the reason why dispensation is sought, and the Directions, and copies of any quotations relating to the works.

3 5. The Directions allowed for all lessees to respond to the application for dispensation by completing a form (the Tribunal Reply form) and sending it to the Tribunal and the Applicant. The form allowed the lessees to indicate whether they consented or objected to the application, and whether they wished for the Tribunal to hold a hearing.

6. No request for a hearing was received. The Tribunal accordingly has determined the application on the basis of the written documentation received. This document sets out our decision and the reasons for it.

The Law

7. The Act imposes statutory controls over the amount of service charge that can be charged to long [NAME]. If a service charge is a “relevant cost” under section 18, then the costs incurred can only be taken into account in the service charge if they are reasonably incurred or works carried out are of a reasonable standard (section 19). It not, a service charge payer can challenge those costs under section 27A of the Act.

8. Section 20 of the Act imposes an additional control. It limits the [NAME]’s contribution towards a service charge to £250 for works, unless “consultation requirements” have been either complied with or dispensed with. There are thus two options for a person seeking to collect a service charge for works on the building or other premises costing more than £250. The two options are: comply with “consultation requirements” or obtain dispensation from them. Either option is available. There are also restrictions on entering into long term agreements without consultation.

9. To comply with consultation requirements a person collecting a service charge has to follow procedures set out in the Regulations (see section 20ZA(4) of the Act). There are detailed procedures (including an obligation to seek competitive quotes) which normally take in the region of three months to complete.

10. To obtain dispensation, an application has to be made to this Tribunal. We may grant it if we are satisfied that it is reasonable to dispense with the consultation requirements (section 20ZA(1) of the Act).

11. The Tribunal’s role in an application under section 20ZA is therefore not to decide whether it would be reasonable to carry out the works, but to decide whether it would be reasonable to dispense with the consultation requirements.

12. The Supreme Court case of [COMPANY] v Benson [2013] UKSC 14; [2013] 1 WLR 854 (hereafter Daejan) sets out the current authoritative jurisprudence on section 20ZA. This case is binding on the Tribunal. [NAME] requires the Tribunal to focus on the extent to which the [NAME] would be prejudiced if the landlord did not consult under the consultation regulations. It is for the landlord to satisfy the Tribunal that it is reasonable to dispense with the consultation requirements; if so, it is for the [NAME]

4 to establish that there is some relevant prejudice which they would or might suffer, and for the landlord then to rebut that case.

Discussion and Determination

13. The Tribunal accepts that it is reasonable to make the application. It is sensible and pragmatic management to carry out the additional works whilst the existing scaffolding is in place to avoid unnecessary additional costs and a delay to completing the works.

14. We therefore need to consider whether there is any prejudice to the Respondents arising from the use of the dispensation route to consultation rather than the fuller statutory procedures under the Regulations, which would have provided the opportunity to make representations suggesting alternatives to the works carried out. The Tribunal cannot identify any prejudice that would be suffered by the Respondents as a result of Dispensation being granted.

15. No Respondent has claimed to have suffered or be likely to suffer any prejudice as a result of the grant of the Application. Only one Respondent Reply form was received and this was in favour of the grant of dispensation.

16. We determine that the Application is granted. The Applicant may dispense with the consultation requirements contained in section 20 of the Act in respect of the carrying out of the works.

17. This decision does not operate as a determination that any costs charged to any Respondent for the works are or would be reasonably incurred. They may well have been, but that is an entirely different issue, and Respondents remain at liberty to challenge such costs under section 27A of the Act in the future should they wish.

Appeal

18. Any appeal against this decision must be made to the Upper Tribunal (Lands Chamber). Prior to making such an appeal the party appealing must apply, in writing, to this Tribunal for permission to appeal within 28 days of the date of issue of this decision (or, if applicable, within 28 days of any decision on a review or application to set aside) identifying the decision to which the appeal relates, stating the grounds on which that party intends to rely in the appeal, and stating the result sought by the party making the application.