First-tier Tribunal Grants Urgent Pump Replacement Dispensation

OUTCOME: Allowed

Case Reference : MAN/00BN/LDC/2022/0040

Property : 1-27 [ADDRESS] [POSTCODE]

Applicant : [redacted] : [COMPANY]

Respondents : [redacted]

Type of Application : Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge L Bennett

Date of Decision : : 12 December 2022

Date of Determination : 22 December 2022

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2022

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

2 Application

1. South at [RESPONDENT] applies to the Tribunal under Section 20ZA of Landlord and Tenant Act 1985 (the Act) for dispensation from the consultation requirements of Section 20 of the Act and the Service Charges (Consultation Requirements)(England) Regulations 2003 (SI 2003/1987) in respect of replacement of the pump sets (the Works) carried out at 1-27 [ADDRESS] [POSTCODE] (the Property).

2. The Respondents are Leaseholders of Flats at the Property and listed at the Annex to this decision.

Grounds and Submissions

3. The application was received by the Tribunal on 19 May 2022.

4. The Applicant is the [COMPANY] with responsibility for the building.

5. The Tribunal did not carry out an inspection but understands that the Property is a

purpose-built block of 14 flats, which is part of the South at Didsbury Point One

estate.

6. On 15 September 2022, a Tribunal Judge made directions requiring the service of

documents by the Applicant on each of the Respondents. The directions provided

that in the absence of a request for a hearing the application would be

determined upon the parties’ written submissions.

7. In response to directions the Applicant has provided a statement explaining why the

application was made to the Tribunal together with supporting documents.

8. At the time the application was submitted, it was reported that pump no.2 had a

recuring fault which would lead to the pump set tripping. Engineers were able to

restore water to the building by isolating pump no.2 and having the building

operating solely on pump no.1. Attempts were made by the contractors to restore

the pump but this was unsuccessful. Because the existing pump set is now obsolete

it was decided to obtain quotations for a replacement set rather than just replacing

pump no.2. The pumps had not been replaced since the construction of the building

in 2004. Without the works being carried out there was a high risk of the building

being left without running water.

9. [COMPANY] engaged with 3 separate contractors to provide a

quote to complete the works. Having reviewed the quotations, [NAME] were

the preferred contractors as they were not only the cheapest (£5,848(inc. VAT)) but

they also maintain and service the system. [COMPANY] quoted £6,895(inc. VAT).

[NAME] were unable to provide a comparable quote given the age of the system.

10. The development has a [NAME] in place to which Leaseholders contribute as

part of Service Charge collection. The Applicant confirmed that the works will be

funded for via the [NAME], meaning Leaseholders would not be expected to

make any additional payments outside of the service charge to fund the works.

3 11. The Tribunal did not receive any submissions from a Respondent Leaseholder.

Neither the Applicant nor a Respondent requested a hearing.

12. The Tribunal convened without the parties to make its determination on 12

December 2022.

Law

13. Section 18 of the Act defines “service charge” and “relevant costs”.

14. Section 19 of the Act limits the amount payable by the lessees to the extent that the

charges are reasonably incurred.

15. Section 20 of the Act states:- “Limitation of service charges: consultation requirements

Where this Section applies to any qualifying works…… the relevant contributions of tenants are limited……. Unless the consultation requirements have either:- a. complied with in relation to the works or b. dispensed with in relation to the works by …… a tribunal. This Section applies to qualifying works, if relevant costs incurred on carrying out the works exceed an appropriate amount”.

16. “The appropriate amount” is defined by regulation 6 of The Service Charges

(Consultation Requirements) (England) Regulations 2003 (the Regulations) as

“……. an amount which results in the relevant contribution of any tenant being more

than £250.00.”

17. Section 20ZA(1) of the Act states:- "Where an application is made to a 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 Conclusions with Reasons

18. I have determined this matter following a consideration of the Applicant’s case but

without holding a hearing. Rule 31 of the Tribunal Procedure (First-tier Tribunal)

([NAME]) Rules 2013 permits a case to be dealt with in this manner

provided that the parties give their consent (or do not object when a paper

determination is proposed). In this case, the Applicant has given its consent and

the Tribunal has not heard from a Respondent in response to the application.

Moreover, having reviewed the case papers, I am satisfied that this matter is

indeed suitable to be determined without a hearing. Determining this matter

does not require me to decide disputed questions of fact.

19. It is not necessary to consider at this stage the extent of any service charges

that may result from the works payable under the terms of the Respondents’

leases. If and when such is demanded, and if disputed, it may properly be the

subject of a future application to the Tribunal.

20. Having considered the submission made by the Applicant I accept the urgent nature

of the works. Carrying out a Section 20 exercise would be time consuming and add

4

to delays to the works. In the meantime if pump no.1 failed, the residents would be

left without any running water.

32. In [COMPANY] v Benson [2013] UKSC 14 it was determined that

a Tribunal, when considering whether to grant dispensation, should consider

whether the tenants would be prejudiced by any failure to comply with the

Consultation Requirements. Balancing the need for urgent action against

dispensing with statutory requirements devised to protect service charge paying

Leaseholders, I conclude that the urgency outweighs any identified prejudice.

Dispensation from consultation requirements does not imply that any resulting

service charge is reasonable.

Order

33. The Applicant is dispensed from complying with the consultation requirements in

respect of the work specified in the application.

Laurence J Bennett Tribunal Judge 12 December 2022

5 Annex - List of Respondent Leaseholders and Unit Number

Leaseholder Unit Mr [NAME] [ADDRESS] [NAME] [ADDRESS] Church Council [ADDRESS] [NAME] [ADDRESS] [NAME] [ADDRESS] [NAME] [ADDRESS] [NAME] [ADDRESS] [NAME] & Ms [NAME] [ADDRESS] [NAME] [ADDRESS] [NAME] [NAME] [ADDRESS] [NAME] 21 [NAME] [NAME] [ADDRESS] [NAME].[NAME] [NAME] [ADDRESS] [NAME] [ADDRESS]