First-tier Tribunal Grants Urgent Fire Safety Works Dispensation

OUTCOME: Allowed

© CROWN COPYRIGHT 2021

FIRST-TIER TRIBUNAL [NAME] CHAMBER ([NAME]) Case reference : LON/00BE/LDC/2021/0198 HMCTS code (paper, video, audio)

P: [NAME] : [ADDRESS] [POSTCODE] Applicant : [redacted] : Mr [COUNSEL], [NAME] Manager Respondent : [redacted] Ground Representative : [none] Type of [NAME] : [NAME] for dispensation from consultation requirements Section 20ZA Landlord and Tenant Act 1985 Tribunal member(s) : Deputy Regional Judge N Carr Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 12 October 2021

DECISION

Decision

(1) The requirements of section 20 of the Landlord and Tenant Act 1985 are hereby dispensed with in respect of works to ensure the communal fire door- sets at [ADDRESS] are 30-minute fire resistant; to include cold smoke seals, new hinges, and intumescent strips.

2 (2) In granting dispensation in respect of the works, the tribunal makes no determination as to whether any service charge costs are reasonable or payable. Reasons

The [NAME]

1. The applicant seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (‘the Act’), for dispensation from the requirements to consult in advance of qualifying works as set out in section 20 of the Act.

Directions

2. The applicant made the [NAME] on 24 June 2021. Once various administrative matters had been remedied, Directions were given on 18 August 2021, which included a requirement that the applicant notify the [NAME], identified in the schedule to the [NAME], of the [NAME] and the directions, by delivering to them copies by email, hand delivery or first-class post. The applicant was also required to display the documents in a prominent place in the communal areas.

3. By email of 25 August 2021 the applicant requested that the Directions be amended, as the scope of the works had been reduced. Amended Directions were therefore provided to the applicant on 1 September 2021, extending to 3 September 2021 the requirement for giving notice to the [NAME] of the reduced [NAME] and directions.

4. By those Amended Directions, [NAME] had until 14 September 2021 to provide any notification to the tribunal that they opposed the [NAME], and until 21 September 2021 to provide to the applicant their written reasons.

5. No [NAME] have responded to the tribunal. By its email of 6 October 2021, the applicant confirms that it has also received no objections to the [NAME].

6. This has been a remote determination on the papers which has not been objected to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to-face hearing was not held because all the issues could be determined on the papers provided.

7. The documents that the Tribunal were referred to were not provided in a bundle as directed, but were attached to an email from the Applicant dated 6 October 2021, and comprised: (1) a blank [NAME] form; (2) the Directions of 19 August 2021 as amended on 1 September 2021; (3) proof of service by email, through letterboxes and/or by display of the directions in a communal area; (4) a statutory notice from the [NAME] dated 21 June 2021.

3 8. In the interests of proportionality, in light of the fact that there are no participating [NAME] in the [NAME], and due to the fact that the [NAME] (‘[NAME]’) Notice requires remedy of the issues identified by 21 October 2021, rather than requiring the Applicant to provide its proper and compliant bundle (including its completed [NAME] form and copy lease) in accordance with the Amended Directions paragraph 4, I determined this [NAME] on the basis of those digital documents held in the tribunal’s files, including the properly completed [NAME] form, and confirmation from the [NAME] of the reduced scope of necessary works.

Brief Facts

9. The [NAME] is located in the Kings Reach development. It is one of two residential blocks built in the 1970s, and comprises 89 flats on 19 floors.

10. The applicant seeks urgent dispensation from the consultation requirement in respect of works identified in a statutory notice from the [NAME] dated 21 June 2021, as amended by an email from [NAME] dated 23 June 2021, pursuant to the Regulatory Reform (Fire Safety) Order 2005.

11. The works required are replacement of communal fire door-sets on all 19 floors of the building, to ensure that they have 30-minute fire resistance. Works will include the addition of cold smoke seals, new hinges and intumescent strips.

12. Those works are urgent, not just because of the deadline set by [NAME] (21 October 2021), but because of the risk to the [NAME]’ health and safety in the event of a fire. It is not known whether the works have yet been commenced, and no estimates have been provided in respect of the costs to be incurred.

The Law

13. Section 20ZA of the Act states that the tribunal may determine that there should be dispensation from the consultation requirements set out in section 20 of the Act in respect of any qualifying works or qualifying long term agreement when ‘it is satisfied it is reasonable to do so’.

14. In [COMPANY] v Benson [2013] UKSC 14, the Supreme Court set out the following factors to be taken into account:

a) The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA (1) is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.

b) The financial consequence to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor.

4 c) Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements.

d) The Tribunal has power to grant a dispensation as it thinks fit, including on terms, provided that any terms are appropriate.

e) The Tribunal has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s [NAME] under section 20ZA (1).

f) The legal burden of proof in relation to dispensation applications is on the landlord. The factual burden of identifying some “relevant” prejudice that they would or might have suffered is on the tenants.

g) The court considered that “relevant” prejudice should be given a narrow definition; it means whether non-compliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a reasonable standard, in other words whether the non-compliance has in that sense caused prejudice to the tenant.

h) The more serious and/or deliberate the landlord's failure, the more readily a Tribunal would be likely to accept that the tenants had suffered prejudice.

i) Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it.

Decision

15. There has been no objection or other representation received by any [NAME]. There has therefore been no assertion of relevant prejudice.

16. In light of the facts, I consider it reasonable to dispense with the section 20 requirements in respect of the works to be done to the fire-door sets on the 19 floors of the building to render them 30-minute fire resistant, including the cold smoke seals, new hinges, and intumescent strips.

17. In so determining, I make no decision on any question of the payability of the resulting costs to the service charge.

Name: Judge N Carr Date: 12 October 2021

5

Rights of appeal By rule 36(2) of the Tribunal Procedure (First-tier Tribunal) ([NAME] 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 [NAME] 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).