First-tier Tribunal Grants Dispensation for Urgent Works Including Asbestos Removal

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

Lon/ooAB/LDC/2025/0982

Property

:

1-5B, 8-20b & 22-25B [ADDRESS] [POSTCODE]

Applicant

:

[redacted] Dagenham

Representative

:

[COUNSEL], [NAME]

Respondents

:

[redacted] schedule attached to the Application.

Representative

:

Type of Application

:

To dispense with the requirement to consult lessees about major works Section 20ZA of the Landlord and Tenant Act 1985 (“1985 Act”)

Tribunal Member(s)

:

Judge Tildesley OBE

Date and Venue of Hearing

:

Determination on Papers

Date of Decision

:

2 April 2026

DECISION

2 The Application

1. The Applicant seeks dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act.

2. The property comprises three blocks of flats known as 1-5B (nine flats), 8-20B (21) flats and 22-24B (six flats). The blocks were built in 1953 (according to the stock condition survey). Each block has a pitched roof with interlocking tiles that were replaced in 1985 and is serviced by a cast iron gutter. The soffits are concrete and the wall to the [NAME] are of cavity construction. The roof above the communal area is flat and felted. The windows to the block are UPVC double glazed units and all flats are accessed via a single staircase in the communal corridor. Each flat has its own heating arrangement via a storage heater.

3. The Applicant said that on 13 October 2025 it commenced major works to the property which included the replacement of the existing roof coverings, fascias, soffits, gutters, downpipes and loft insulation. The Applicant also stated that fire compartmentation was to be installed within the loft space to prevent the spread of fire. The Applicant had carried out the necessary statutory consultation with the [NAME] in respect of the proposed major works.

4. The Applicant explained that on commencement of the works it was required under the CDM Regulations 2015 to undertake a “Refurbishment and Demolition” Asbestos Survey which found the presence of Amosite and Chrysotile asbestos fibres in the loft spaces of the blocks. The Applicant’s “[NAME]” survey contained no details of any asbestos within the lofts. On discovery of the asbestos the Applicant stopped the major works.

5. The Applicant requests dispensation from consultation in respect of the additional works involved with the removal of the asbestos. The Applicant states that the costs of these works would be above the relevant threshold and that the works would also increase the costs of the major works because of the necessity to extend the time for the completion of the contract for the major works. The Applicant states that the dispensation is justified because of the urgent nature of the works and that it was unaware of the presence of the asbestos in the loft spaces,

6. The Application for dispensation was dated 1 December 2025.

7. On 13 February 2026 the Tribunal directed the Applicant to serve the application and directions on the [NAME] and display copies of the relevant documents in the common parts of the property. On 2 March 2026 the Applicant confirmed that it had complied with the Tribunal directions.

3 8. The Tribunal required the [NAME] who opposed the Application to return a pro-forma to the Tribunal and the Applicant by 6 March 2026 stating their reasons for opposing the Application.

9. No [NAME] returned a pro-forma stating his/her opposition to the Tribunal and the Applicant. The [NAME] of [ADDRESS] raised a query with the Application about whether a response was required to the Tribunal directions. The Applicant informed the [NAME] that the directions were for information unless the [NAME] wished to object to the application or request an oral hearing.

10. The Tribunal directed that the Application would be dealt with on the papers during the seven days commencing 30 March 2026 unless a party requested a hearing. No party requested a hearing.

Determination

11. The 1985 Act provides [NAME] with safeguards in respect of the recovery of the landlord’s costs in connection with qualifying works. Section 19 ensures that the landlord can only recover those costs that are reasonably incurred on works that are carried out to a reasonable standard. Section 20 requires the landlord to consult with [NAME] in a prescribed manner about the qualifying works. If the landlord fails to do this, a [NAME]’s contribution is limited to £250, unless the Tribunal dispenses with the requirement to consult.

12. In this case the Tribunal’s decision is confined to the dispensation from the consultation requirements in respect of the works under section 20ZA of the 1985 Act. The Tribunal is not making a determination on whether the costs of those works are reasonable or payable. If a [NAME] wishes to challenge the reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1985 would have to be made.

13. Section 20ZA does not elaborate on the circumstances in which it might be reasonable to dispense with the consultation requirements. On the face of the wording, the Tribunal is given a broad discretion on whether to grant or refuse dispensation. The discretion, however, must be exercised in the context of the legal safeguards given to the Applicant under sections 19 and 20 of the 1985 Act. This was the conclusion of the Supreme Court in [COMPANY] v [NAME] and Others [2013] UKSC 14 & 54 which decided that the Tribunal should focus on the issue of prejudice to the tenant in respect of the statutory safeguards.

14. Lord [APPELLANT] in Daejan said at paragraph 44 “Given that the purpose of the Requirements is to ensure that the tenants are protected from (i) 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 application by a

4 landlord under s 20ZA(1) 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”.

15. Thus, the correct approach to an application for dispensation is for the Tribunal to decide whether and if so to what extent the [NAME] would suffer relevant prejudice if unconditional dispensation was granted. The factual burden is on the [NAME] to identify any relevant prejudice which they claim they might have suffered. If the [NAME] show a creditable case for prejudice, the Tribunal should look to the landlord to rebut it, failing which it should, in the absence of good reason to the contrary, require the landlord to reduce the amount claimed as service charges to compensate the [NAME] fully for that prejudice.

16. The Tribunal now turns to the facts. The Applicant had carried out the required statutory consultation before awarding the contract for the major works to the tenderer with the lowest tender. The Applicant was not aware of the presence of asbestos in the loft spaces. There was no reference to it in its [NAME]. The Applicant was, therefore, taken by surprise with the results of the “Refurbishment and Demolition” Asbestos Survey showing asbestos in the loft spaces. The Applicant had no choice but to stop the major works. The Tribunal finds that the works to remove the asbestos are urgent and that delays with the removal would adversely affect the completion and the costs of the major works as a whole. The Tribunal notes that no [NAME] has objected to the Application for dispensation. The Tribunal considers there is no evidence to support the proposition that the [NAME] would be prejudiced if the Applicant did not consult them about the additional works and costs associated with the removal of the asbestos.

17. The question for the Tribunal is whether to treat the removal of the asbestos as a discrete set of works or as part of the major works. It appears to the Tribunal that the Applicant regards the removal of asbestos as part of the major works and that the dispensation should apply to the revised major work project which includes the removal of the asbestos. The Tribunal is inclined to the view that the removal of asbestos should be regarded as part of the major works.

18. The Tribunal is, therefore, satisfied that the [NAME] would suffer no relevant prejudice if dispensation from consultation was granted.

Decision

19. The Tribunal, therefore, dispenses with the consultation requirements in respect of the revised major works arising from the removal of the asbestos in the loft spaces.

20. The Tribunal directs the Applicant to inform the [NAME] of the Tribunal’s decision and to display the written decision on a noticeboard in the common areas.

5

RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal ([NAME]) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28 day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.