First-tier Tribunal Grants Emergency Works Dispensation

OUTCOME: Allowed

© CROWN COPYRIGHT

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BJ/LDC/2020/0088 HMCTS code (paper, video, audio)

V: CVPREMOTE Property : 1-56 [ADDRESS] [POSTCODE] Applicant : [redacted] : Mr [COUNSEL], QC Respondents : [redacted]

In attendance and representing themselves as one of the Respondents

: [redacted] [NAME] of [NAME] : Dispensation from compliance with statutory consultation requirements Tribunal members : Judge P [NAME] [NAME] of hearing : 18th November 2020 Date of decision : 27th November 2020

DECISION

2 Covid-19 pandemic: description of hearing This has been a remote video hearing which has been consented to by the parties. The form of remote hearing was V: CVPREMOTE. A face-to-face hearing was not held because it was not practicable and no-one requested the same, and all issues could be determined in a remote hearing. The documents to which we were referred were in electronic document bundles, the contents of which we have noted. The tribunal’s decision is set out below in the paragraph headed “Decision of the tribunal”. Decision of the tribunal The tribunal dispenses unconditionally with those of the consultation requirements which have not been complied with by the Applicant in respect of the qualifying works which are the subject of this [NAME]. Background 1. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from the consultation requirements imposed on the landlord by section 20 of the 1985 Act in relation to certain qualifying works.

2. The qualifying works which are the subject of this [NAME] comprise works to restore a hot water supply to 24 flats within the block.

3. The Applicant was content for the [NAME] to be dealt with on the papers, without a hearing. However, the [NAME] requested an oral hearing, as was their right. Applicant’s case 4. The Applicant states that, as a result of a failure of underground, asbestos-clad, heating distribution pipework, 24 of the flats currently do not have a hot water supply. The vast majority of residents are over the age of 70 and are deemed vulnerable during the current pandemic. They are therefore staying at home and are unable to access any alternative hot water facilities.

5. A first-stage Section 20 notice has been issued to [NAME]. The Applicant has included within the hearing bundle copies of two reports on the works required which were prepared by [COMPANY] and [COMPANY] respectively.

6. At the hearing, Mr [APPELLANT] for the Applicant took the tribunal through the background circumstances, explaining that the pandemic stalled the carrying out of planned works to improve the old system which was known to need modernising. The emergency situation arose because there was flooding in the boiler room due, according to the [NAME], to a leak from a hot water flow pipe. The

3 consultants considered various options as to the best way forward and then concluded that the only realistic short-term solution was to create a new subterranean system. The works also include some precautions against other pipes failing. These precautionary works cost about £13,000, which is about 6% of the overall cost.

7. The emergency repair works are now well advanced although they are not yet at the stage of practical completion. There was a delay in starting the works due to the need to obtain a licence in connection with the presence of asbestos.

8. The Applicant has kept [NAME] informed throughout, but due to the urgent nature of the works it has been unable to carry out a full statutory consultation. None of the [NAME] has raised any objections apart from [NAME] [NAME]. Indeed, the general reaction amongst [NAME] was a keenness for the Applicant to proceed with the proposed works as soon as possible.

9. On the question of whether any of the [NAME] has suffered any prejudice as a result of the failure to consult, none of the [NAME] has claimed any prejudice. Respondents’ case 10. In written submissions, [NAME] [NAME] raised various objections, although the extent of their objections has narrowed between the date of their original written submissions and the date of the hearing.

11. Mr [NAME], on behalf of himself and Mrs [NAME], said at the hearing that they acknowledged the need for the emergency works and did not want to reverse those works. Their concern now was that they wanted more information. The tribunal put it to Mr [NAME] that his wish for further information, however understandable, was not necessarily a basis for the tribunal to refuse to grant dispensation from full consultation in respect of what the Applicant submitted were emergency works.

12. None of the other Respondents has objected to the [NAME] for dispensation. Discussion between the Applicant and the [NAME]

13. After hearing the parties’ initial oral submissions, the tribunal invited the Applicant’s representative to explore with the [NAME] whether the Applicant might be able to commit to providing the [NAME] with some further information in due course, possibly in return for the [NAME] withdrawing their objection to the [NAME] for dispensation. Both parties were happy with this approach and there was an adjournment.

14. After the adjournment the parties confirmed that they had been able to reach an agreement whereby the [NAME] would formally withdraw their objections to the [NAME] upon the Applicant agreeing:-

4 (A) To provide to [NAME] the following copy documents by 5pm on 28th November 2020 (by email only):

1. Copies of the quotations identified on pages 202 and 203 of the hearing bundle;

2. Copies of quotations received from A&G Heating and Quotehedge;

3. A copy of the Asbestos Risk Assessment for the building (a copy of which was provided in the previous tribunal [NAME]). (B) To answer the following questions by email by 5pm on 28th November 2020:

1. In the communication from KFH on 11 June (page 170 of the hearing bundle), it was mentioned that a resident raised the question of KFH’s experience on a similar issue – the response to which was that KFH have never encountered a problem such as this. What efforts, if any, were made by the Applicant given the lack of experience of KFH to find an alternative project manager? 2. What process did KFH follow to engage the suppliers such as the asbestos specialists, technical coordinators given that a significant level of costs have been incurred on them – were there competitive bids obtained and can we see them? 3. On 8th July there was a communication (page 175) from the landlord regarding costs having moved from £90,000 to £178,000 – can we have further information detailing the cost movement and/or change in scope such that the 2 numbers could be reconciled? 4. On Page 202 – Expense overview – Estimated project cost of c.178K was provided as at 7 July – can we have information/an update to residents as to where are we with the total cost base and highlight the areas of overrun? 5. Have there been any service level agreements with the suppliers such that any delays or remedial works for poor quality standards are not being charged to the service charge pool? (C) To arrange for a zoom meeting between [NAME] and KKAD (and a member of the Board) to ask questions relating to the emergency works, the subject of this [NAME].

5 The relevant legal provisions 15. Under Section 20(1) of the 1985 Act, in relation to any qualifying works “the relevant contributions of tenants are limited … unless the consultation requirements have been either (a) complied with … or (b) dispensed with … by … the appropriate tribunal”.

16. Under Section 20ZA(1) of the 1985 Act “where an [NAME] is made to the appropriate tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works…, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements”. Tribunal’s analysis 17. [NAME] [NAME] have now withdrawn their objection to the [NAME] on the basis set out above, and none of the other Respondents has raised any objections. However, as noted at the hearing, it does not automatically follow that dispensation from compliance with the statutory consultation requirements should be granted.

18. Having noted that it is not an automatic process, we are nevertheless able to confirm that we are satisfied in this case that the statutory consultation requirements can retrospectively and unconditionally be dispensed with to the extent that they have not already been complied with. These were emergency works needed to restore hot water for residents of 24 flats, the vast majority of whom are over the age of 70 and deemed vulnerable during the current pandemic and who are therefore staying at home and are unable realistically to access any alternative hot water facilities.

19. There has been some formal consultation, to the extent reasonably possible in the circumstances, and some significant informal consultation. There is evidence of the Applicant having explored various options and having advised [NAME] of these. In relation to the precautionary works, it is arguable that these did not have to be carried out and that if they had amounted to a large percentage of the total value of the works there might have been an argument that consultation in respect of those works was being avoided to the potential detriment of [NAME]. However, as they only amount to 6% of the total value and as the evidence suggests that the precautions in question are very prudent ones, we do not consider there to be an issue here.

20. There is no actual evidence that any of the [NAME] has suffered prejudice as a result of the lack of full formal consultation and none of the Respondents has claimed any prejudice.

6 21. For the avoidance of doubt, this determination is confined to the issue of consultation and does not constitute a decision on the reasonableness of the cost of the works. Costs 22. There were no cost applications. Name: Judge P [NAME]: 27th November 2020

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. 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).