First-tier Tribunal Grants Urgent Water Pump Repairs Dispensation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference:

LON/00BG/LDC/2020/0109 P

HMCTS code:

P: PAPERREMOTE

Property:

The flats at [ADDRESS] [POSTCODE]

Applicant: [redacted]

[NAME], Tribunal appointed manager.

Representative :

In person

Respondents:

[redacted] [ADDRESS] named in the [NAME]:

None advised

Type of [NAME]:

To dispense with the statutory consultation requirements under section 20ZA Landlord and Tenant Act 1985

Tribunal:

Judge Pittaway

Date of decision:

3 November 2020

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Covid-19 pandemic: description of hearing This has been a remote hearing on the papers which has been consented to by the applicant and not objected to by any respondent. The form of remote hearing was P:PAPERREMOTE. A face-to-face hearing was not held because no-one requested a hearing and all issues could be determined on paper. The documents to which the tribunal was referred are in an electronic bundles of 26 pages, the contents of which the tribunal has noted. In addition the tribunal referred to the lease dated 15 October 2008 of second floor flat known as Flat 8, 15-25 High Street Cheam provided by the applicant with his [NAME] as a specimen lease (the ‘lease’) The decision made is set out below.

DECISION The Tribunal grants the [NAME] for retrospective dispensation from further statutory consultation in respect of the subject works, namely the replacement of the water pumps at the Property. The applicant should place a copy of this decision together with an explanation of the [NAME]’ appeal rights on its website (if any) within seven days of receipt and maintain it there for at least three months, with a sufficiently prominent link to both on its home page. It should also display copies in a prominent position in the common parts of the Property. This decision does not affect the Tribunal’s jurisdiction upon any future [NAME] to make a determination under section 27A of the Act in respect of the reasonableness and/or the cost of the work. The [NAME]

1. The Applicant, a manager appointed by the tribunal after the freeholder went into receivership, seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (“the Act”) for retrospective dispensation from consultation in respect of the replacement of the water pumps at the property and certain ancillary works. The Service Charges (Consultation Requirements) Regulations 2003 provide that consultation requirements are triggered if the landlord plans to carry out qualifying works which would result in the contribution of any tenant being more than £250. The cost of the works the subject of the [NAME] exceed this threshold.

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2. By directions dated 25 August 2020 (the “directions”) the tribunal directed that the applicant send each of the [NAME] the [NAME] and the tribunal’s directions and display the same in the common parts of the Property and place them on its website (if any). If no website exists the applicant was directed to write to each [NAME]. The applicant was directed to confirm to the tribunal that it had done so. The applicant confirmed to the tribunal on 9 September 2020 that it had complied with this direction. As it confirmed it had written to each [NAME] it is presumed that there is no website for the Property.

3. The directions required that any [NAME] who opposed the [NAME] should tell the tribunal. If they opposed the [NAME] they should send the tribunal and the applicant’s representative a statement responding to the [NAME] together with any documents they wished to rely on. The tribunal has received no such statements of objection and the applicant has not provided the tribunal with copies of any replies from any [NAME] in his electronic bundle.

4. The directions provided that the tribunal would decide the matter on the basis of written submissions unless any party requested a hearing. No such request has been made. The applicant’s case 5. The applicant is the tribunal-appointed manager of the Property, the freeholder being in receivership.

6. The lease which the applicant has provided to the tribunal contains a covenant by the landlord, at clause 5.5.1, to maintain and keep in good and substantial repair and condition, ‘all such gas and water mains and pipes drains waste water and sewage ducts and electric cables and wires as may by virtue of the terms of this lease by (sic) enjoyed or used by the Tenant in common with the owners or tenants of all or any of the other flats in the Building”.

7. In his [NAME] the applicant explained that he had to carry out urgent repairs to replace the water pumps at the Property, which work was carried out in March 2020. The pumps had failed due to heavy rainfall, resulting in an [NAME] being required to attend on site every time it rained to clean manually the site.

8. In his statement of case the applicant stated that a notice of intention to replace the two pumps at [ADDRESS] was issued on 20 February 2020. Two estimates for the replacements were obtained. [NAME] quoted £5,594.40 including VAT and [NAME] £3,840 including VAT. On 22 February 2020 the pumps failed again, causing a sewage overflow. The [NAME] called to attend found that the pumps had failed and could no longer automatically pump out

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waste and water. On 26 February 2020 the applicant wrote to the [NAME] to advise them that the pumps had ceased to function automatically and would have to be cleared manually on a regular basis. The letter advised the [NAME] that if the applicant followed the statutory consultation process the work could not be scheduled before the end of April. The letter also advised the [NAME] that the applicant proposed to schedule the work to take place as soon as possible and to apply to the tribunal for dispensation from the statutory consultation requirements. [NAME] were instructed to carry out the work (which involved replacing both pumps, replacing guiderails and control floatswitches and fitting suspension bracket (sic) for the floats) which [NAME] completed at the quoted price on 4 March 2020.

9. The applicant sought dispensation as he did not consider manual clearing to be a sanitary or financially viable solution. He considered the works to be urgent to minimize the number of times it was necessary to call out an [NAME]. The applicant states that between 26 February and 4 March the failed pumps overflowed again on 28 February and 3 March 2020. The Respondents’ case 10. No respondent objected to the tribunal about the [NAME] and the bundle provided by the applicant to the tribunal contained no objection by any respondent. Determination and Reasons

11. Section 20ZA(1) of the Act provides: “Where an [NAME] is made to a leasehold valuation tribunal for a determination to dispense with all or 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.”

12. The whole purpose of section 20ZA is to permit a landlord to dispense with the consultation requirements of section 20 of the Act if the tribunal is satisfied that it is reasonable for them to be dispensed with. Such an [NAME] may be made retrospectively, as it has been made here.

13. The Tribunal has taken account the decision in [COMPANY] v [NAME] [2013] UKSC 14 in reaching its decision.

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14. There is no evidence before the tribunal that the respondents were prejudiced by the failure of the applicant to comply with the consultation requirements. The tribunal is therefore satisfied that it is reasonable to dispense with all or any of the consultation requirements in relation to the replacement of the water pumps and ancillary works.

15. Whether the works have been carried out to a reasonable standard and at a reasonable cost are not matters which fall within the jurisdiction of the tribunal in relation to this present [NAME]. This decision does not affect the tribunal’s jurisdiction upon any future [NAME] to make a determination under section 27A of the Act in respect of the reasonableness and /or cost of the works. Name: Judge Pittaway Date: 3 November 2020

ANNEX - RIGHTS OF APPEAL

1. 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.

2. 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].

3. 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.

4. 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.