First-tier Tribunal Grants Urgent Works Dispensation Without Consultation

OUTCOME: Allowed

Case Reference : MAN/00BU/LDC/2021/0068

Property : [APPELLANT], 63-71 [ADDRESS] [POSTCODE]

Applicant: [redacted] : [COMPANY]

Respondents : [redacted]

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

Tribunal Member : Judge L Bennett

Date of determination : 6 July 2022

Date of Decision : 20 July 2022

_______________________________________________

DECISION ____________________________________

© CROWN COPYRIGHT 2022

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

2 Application

1. [APPELLANT] 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 soffit rot investigation/superficial repair (the Works) carried out at [APPELLANT], 63-71 [ADDRESS] [POSTCODE] (the Property).

2. The Respondents are [NAME] of apartments at the Property and listed at the Annex to this decision.

Grounds and Submissions

3. The application was received by the Tribunal on 19 October 2021.

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

5. [APPELLANT] are 5 terraced houses constructed c1880, converted in the 1970s to

15 units split between the houses.

6. On 11 February 2022 Deputy Regional Judge Bennett 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 of case with

supporting documents.

8. The Applicant’s statement of case sets out a chronology of events leading up to the

application for dispensation.

9. It was reported that a timber and facia soffit had fallen from the building causing

serious health and safety concerns to the residents and visitors to the Property. The

management company raised this with its agent HML. HML instructed

[COMPANY], a contactor familiar with the site, to attend

and review the damage and the potential risks of more facia boards falling and

posing further danger to residents and visitors.

10. Following their investigation, [NAME] submitted a quotation dated 15 October

2021 to HML in relation to the proposed works. The total estimated cost amounted

to £2,844 inclusive of VAT.

11. HML passed the quote to the directors of the management company for approval.

The directors were advised that due to the costs a Section 20 Consultation exercise

would be required. However, because of the urgent nature of the works, it was

decided that the best course of action would be to seek dispensation from the First-

tier Tribunal. On 3 November 2021, HML issued a Section 20 Notice of Intention to

all [NAME]. The works were carried out shortly afterwards.

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

Neither the Applicant nor a Respondent requested a hearing.

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13. The Tribunal convened without the parties to make its determination on 6 July

2022.

Law

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

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

charges are reasonably incurred.

16. 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”.

17. “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.”

18. 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

19. 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.

20. 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.

21. I accept from the details provided by the Applicant the urgent nature of the work.

There was clearly a potential further risk of more facia boards falling from height

posing a danger and affecting the health, safety and welfare of the residents and

visitors. There would likely be an escalation of costs as winter approached as

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well as further damage due to the weather. The rotting timber could also cause more

damage internally to the roof area and possibly the top floor property.

22. Balancing the need for urgent action against dispensing with statutory

requirements devised to protect service charge paying [NAME], I conclude the

urgency outweighs any identified prejudice. Dispensation from consultation

requirements does not imply that any resulting service charge is reasonable.

23. I note from the estimate submitted that a dispensation order may not be necessary.

However, I conclude that in the event the costs of the permitted works exceed the

prescribed limit, an order should be granted and that it is reasonable in accordance

with Section 20ZA(1)of the Act to dispense with the consultation requirements

specified in Section 20 and contained in Service Charges (Consultation

Requirements)(England) Regulations 2003 (SI 2003/1987).

24. Nothing in this determination or order shall preclude consideration of whether the

Applicant may recover by way of service charge from the Respondents any or all of

the cost of the work undertaken or the costs of this application should a reference be

received under Section 27A of the Landlord and Tenant Act 1985.

Order

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

respect of the work specified in the application.

Laurence J Bennett Tribunal Judge 6 July 2022

5 [NAME], 69 [NAME] & [NAME] [NAME] 1, 63 [NAME] & [NAME] 1, 65 [NAME] 1, 67 [NAME] 1, 69 [NAME] 1, 71 [NAME] & [NAME] 2, 63 [NAME] & [NAME] 2, 65 [NAME] & [NAME] 2, 67 [NAME] [NAME] 2, 69 [NAME] 2, 71 [NAME] Al-Helou Flat 3, 69 [NAME] 3, 71 [NAME] 4, 69 [NAME] 4, 71 [NAME]