First-tier Tribunal Grants Urgent Repairs Dispensation Without Full Consultation

OUTCOME: Allowed

© CROWN COPYRIGHT 2013

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : LON/00AP/LDC/2021/0273 P: PAPERREMOTE Property : 2 [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME]) Respondents : [redacted]

2. Mr [NAME]

3. Mr [NAME]

4. Mrs [COUNSEL]

5. Mr [COUNSEL] and Ms [COUNSEL] : Unrepresented Type of Application : Section 20ZA Landlord and Tenant Act 1985 Dispensation with consultation requirements Tribunal member(s) : Judge Donegan Date of Paper Determination : 02 February 2022 Date of Decision : 02 February 2022

DECISION

This has been a remote hearing 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 it was not practicable, and all issues could be determined on paper. The documents that I was referred to are in a bundle of 108 pages, the contents of which I have noted.

2 Decision of the Tribunal

(a) The Tribunal grants retrospective dispensation under section 20ZA of the Landlord and Tenant Act 1985 (‘the 1985 Act’) in relation to roof and downpipe repairs (‘the Repairs’) undertaken at 2 [ADDRESS] [POSTCODE] (‘the Property’). (b) No terms are imposed on the grant of dispensation. The application 1. The applicant seeks dispensation from the consultation requirements imposed by section 20 of the 1985 Act.

2. The application is dated 19 October 2021 and directions were issued on 26 October 2021. These provided that the case be allocated to the paper track, to be determined upon the basis of written representations. None of the parties has objected to this allocation or requested an oral hearing. The paper determination took place on 02 February 2022.

3. The relevant legal provisions are set out in the appendix to this decision. The background 4. The Property is a five-storey block comprising five flats with a parking area to the front and large rear garden. The applicant is the freeholder of the Property, which is managed by HML. The respondents the leaseholders of the five flats at the Property and are members of the [COMPANY].

5. Flats 4 and 5 at the Property have suffered from water ingress since last summer. HML instructed contractors, [COMPANY] (‘MGL’) to investigate. MGL produced a short report dated 02 August 2021 and identified various defects including a blocked downpipe outlet, slipped tiles, missing mortar pointing and missing lead flashing. They also supplied a quote for repairing these defects in the sum of £2,395 (excluding VAT), which exceeds the section 20 consultation threshold.

6. After submitting the Tribunal application, HML instructed MGL to undertake the Repairs.

3 The grounds of the application 7. The grounds were briefly set out in the Tribunal application. The determination bundle also contained the MGL report and quote and email correspondence passing between HML and the respondents.

8. The Repairs were urgent due to the water ingress to Flats 4 and 5 and the respondents wanted this work undertaken without waiting for a full section 20 consultation. The Tribunal’s decision 9. The Tribunal grants retrospective dispensation for the Repairs. No terms are imposed on the grant of dispensation. Reasons for the tribunal’s decision 10. The Tribunal accepts the Repairs were urgent, given the water ingress to Flats 4 and 5 and the risk of further damage. A full section 20 consultation would have taken three months or more and considerably delayed the repairs. HML acted promptly and reasonably in instructing MGL to investigate the problem and then reporting to the respondents before making the Tribunal application.

11. None of the respondents have contested this application or identified any prejudice that might arise from the grant of dispensation or proposed any terms as a condition of granting dispensation. It is apparent from the email correspondence that the respondents wanted the Repairs undertaken without a full section 20 consultation.

12. Having regard to the particular facts of this case and the guidance in [COMPANY] v Benson [2013] UKSC 14, it is reasonable to dispense with the consultation requirements.

13. This decision does not address the cost of the Repairs or whether the respondents are liable to contribute to the cost via their service charges. Nothing in this decision prevents the respondents from seeking a determination of ‘payability’, pursuant to section 27A of the 1985 Act. Name: Judge Donegan Date: 02 February 2022

4 Rights of appeal

1. 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.

2. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber), then a written application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case.

3. The application for permission to appeal must arrive at the regional office within 28 days after the Tribunal sends written reasons for the decision to the person making the application.

4. If the application is not made within the 28-day time limit, such application 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 application for permission to appeal to proceed, despite not being within the time limit.

5. The application 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 making the application is seeking.

6. If the Tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).

5 Appendix of relevant legislation

Landlord and Tenant Act 1985 (as amended) Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are [COMPANY] in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) the appropriate tribunal . (2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is [COMPANY] to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in

6 accordance with, the regulations is [COMPANY] to the amount so prescribed or determined.] Section 20ZA (1) Where an application is made to the appropriate tribunal for a determination to dispense with all of any of the consultation requirements in relation to any qualifying works or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements. (2) In section 20 and this section –

“qualifying works” means works on a building or any other premises, and

“qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months.

Section 27A (1) An application may be made to the appropriate tribunal for a determination whether a service charge is payable and, if it is, as to - (a) the person by whom it is payable, (b) the person to whom it is payable, (c) the amount which is payable, (d) the date at or by which it is payable, and (e) the manner in which it is payable. (2) Subsection (1) applies whether or not any payment has been made. (3) An application may also be made to the appropriate tribunal for a determination whether, if costs were incurred for services, repairs, maintenance, improvements, insurance or management of any specified description, a service charge would be payable for the costs and, if it would, as to - (a) the person by whom it would be payable, (b) the person to whom it would be payable, (c) the amount which would be payable, (d) the date at or by which it would be payable, and (e) the manner in which it would be payable. (4) No application under subsection (1) or (3) may be made in respect of a matter which - (a) has been agreed or admitted by the tenant, (b) has been, or is to be, referred to arbitration pursuant to a post-dispute arbitration agreement to which the tenant is a party, (c) has been the subject of determination by a court, or

7 (d) has been the subject of determination by an arbitral tribunal pursuant to a post-dispute arbitration agreement. (5) But the tenant is not to be taken to have agreed or admitted any matter by reason only of having made any payment.