First-tier Tribunal Grants Unconditional Dispensation for Urgent Repairs

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AG/LDC/2023/0125 Property :

140 [ADDRESS] [POSTCODE]

Applicant: [redacted] : [COUNSEL] of [COMPANY] Respondents : [redacted] Type of [NAME] :

Dispensation from compliance with statutory consultation requirements

Tribunal member :

Judge P [NAME] Mrs A Flynn MRICS

Date of decision : 6 November 2023

DECISION

Description of hearing

This has been a determination on the papers without a hearing. An oral hearing was not held because the Applicant confirmed that it would be content with a paper determination, the Respondents did not object and the tribunal agrees that it is appropriate to determine the issues on the papers alone.

2 Decision of the tribunal

The tribunal dispenses unconditionally with the consultation requirements in respect of the qualifying works which are the subject of this [NAME]. The [NAME]

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] consist of repair/replacement works to high-level guttering following leaks and deterioration affecting the top flat and the basement flat. The Property is a circa 1840s semi-detached 4-storey house converted into 4 flats. Applicant’s case 3. The Applicant states that the problems with the high-level guttering has caused water damage to the communal external walls and internal wall/ceiling. The exterior window-sill fascia to Flat 1 has crumbled and fallen into the communal garden area. Scaffold towers are required to access these areas to stop the water damage and to make safe. Responses from the Respondents 4. None of the Respondents has written to the tribunal raising any objections to the dispensation [NAME], and the Applicant has confirmed in writing that none of the Respondents opposes its [NAME] for dispensation. The relevant legal provisions 5. 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”.

6. 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”.

3 Tribunal’s analysis 7. The Applicant has briefly explained why the works are considered to be urgent, and the explanation is a plausible one. There is, though, no evidence that the Applicant has taken any steps even to begin the consultation process. The information contained in the [NAME] is minimal, and in particular the [NAME] includes no information about the scope of the works nor about the anticipated or actual cost of the works. This is all the more surprising as the [NAME] states that the works have been completed, and therefore it should have been easy to provide this information. There is also no information on whether the Applicant obtained competitive quotes or whether it simply approached one contractor.

8. As is clear from the decision of the Supreme Court in [COMPANY] v [NAME] (2013) UKSC 14, the key issue when considering an [NAME] for dispensation is whether the [NAME] have suffered any prejudice as a result of the failure to comply with the consultation requirements.

9. In this case, none of the Respondents has expressed any objections in relation to the failure to go through the statutory consultation process. There is also no specific evidence before us that the [NAME] were in practice prejudiced by the failure to consult. Furthermore, it seems on the basis of the uncontested evidence before us that the Respondents all agreed that the works needed to be carried out as a matter of urgency.

10. The tribunal has a wide discretion as to whether it is reasonable to dispense with the consultation requirements. In this case the key factor in favour of dispensing is the lack of objections from the Respondents. If any of the Respondents had objected then the [NAME] could well have been vulnerable to challenge, given its failure to address the issues referred to above. However, as no [NAME] have raised any objections or challenged the Applicant’s factual evidence, we consider that it is reasonable to dispense with the consultation requirements for that reason alone.

11. As is also clear from the decision of the Supreme Court in [NAME] v [NAME], even when minded to grant dispensation it is open to a tribunal to do so subject to conditions, for example where it would be appropriate to impose a condition in order to compensate for any specific prejudice suffered by [NAME]. However, as noted above, none of the Respondents have claimed that they have suffered any prejudice in this case through the Applicant’s failure to go through any part of the consultation process, and it is not for the tribunal to infer prejudice where none has been complained of.

4 12. Accordingly, we grant unconditional dispensation from compliance with the consultation requirements. 13. It should be noted, particularly by the Respondents (i.e. the [NAME]), that 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 14. There have been no cost applications.

Name: Judge P [NAME]: 6 November 2023

RIGHTS OF APPEAL

A. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) a written [NAME] for permission must be made to the First-tier Tribunal at the regional office dealing with the case.

B. 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].

C. If the [NAME] is not made within the 28 day time limit, such [NAME] must include a request for extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit.

D. 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.