First-tier Tribunal Rejects Dispensation Request Under Section 20ZA

OUTCOME: Refused

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/33UG/LDC/2019/0034 Property : 36-42 [ADDRESS] [POSTCODE] Applicant : [redacted] Respondents : [redacted] :

For dispensation of the consultation requirements under section 20ZA Tribunal Member : Judge Wayte Date of Decision : 6 January 2020

DECISION

The Tribunal refuses to make an order for dispensation under section 20ZA of the 1985 Act in relation to the works described in the [NAME].

2 The [NAME]

1. The Applicant seeks an order pursuant to s.20ZA of the Landlord and Tenant Act 1985 (as amended) (“the 1985 Act”) for the retrospective dispensation of any or all of the consultation requirements in respect of works undertaken in April 2019 to deal with squirrels within the roof void. The property concerned is described in the [NAME] as a purpose-built block of 4 flats over two floors, constructed circa 1935. (“the Property”). The [NAME] is made against the [NAME] in the schedule attached to the [NAME] form (“the Respondents”).

2. The issue in this case is whether the consultation requirements of section 20 of the 1985 Act should be dispensed with. The background 3. The [NAME] was received on 8 November 2019. Directions were given on 15 November 2019 with the Applicant required to serve the [NAME] and directions on the Respondents. The directions contained a reply form for any [NAME] who objected to the [NAME] to return to the tribunal and the Applicant.

4. On 10 December 2019 the [NAME] wrote to the tribunal objecting “in the strongest possible terms to this [NAME]”. Their complaint, discussed in more detail below, was essentially that the works should not have been necessary given that they had contributed to roof replacement works the previous year and those works should have resolved the issue.

5. The directions provided that this matter would be considered by way of a paper determination unless a hearing was requested. A hearing was not requested and accordingly the [NAME] was considered on the papers on 6 January 2020.

6. The Tribunal did not consider that an inspection was necessary, nor would it have been proportionate to the issues in dispute.

7. The only issue before the Tribunal is whether it should grant dispensation from all or any of the consultation requirements contained in section 20 of the 1985 Act. The Applicant’s case 8. The Applicant provided a statement of case in their hearing bundle which set out the background to the [NAME]. In particular, in February 2019 they received reports of squirrels in the loft affecting [NAME]. The pest control contractor attended on three occasions at a cost of

3 £162. However, in order to bait the areas to the loft, scaffolding and the removal of some roof tiles and then re-instatement works were required at an additional cost of £1,238.40. This exceeded the section 20 threshold of £250 per flat, hence this [NAME] for retrospective dispensation. The Respondents’ position 9. The only objections received were from the [NAME], as set out above. They confirmed that they had been in discussions with the applicant concerning the state of the roof for over two years. The concerns were squirrels and water ingress into one of the first floor flats. They had hoped that the roof replacement works would deal with the matter once and for all, as they included the fitting of a “bird comb to the perimeter” as a more permanent measure to keep out the squirrels. The roof replacement works carried out in 2018 only covered half the roof, meaning that there have been ongoing issues with the remaining roof. Further emails were attached at the time the pest control works were carried out to indicate the [NAME]’ concern about the ongoing costs and the need for “birdcombing” around the entire building.

10. The Applicant’s response to those objections stated that at the time the roof replacement works took place the roof over [NAME] “was not deemed at the time as requiring full replacement”. As further complaints of water ingress had now been received, there would be a consultation process on the replacement of that side of the roof too. The Tribunal’s decision 10. The Tribunal refuses to make an order for dispensation under section 20ZA of the 1985 Act in respect of the works outlined above. Reasons for the Tribunal’s decision 11. The tribunal has the jurisdiction to grant dispensation under section 20ZA of the 1985 Act “if satisfied that it is reasonable to dispense with the requirements”.

12. The leading authority on applications for dispensation is the Supreme Court decision of [COMPANY] v Benson [2013] UKSC 14. That case held that the main question for the tribunal when considering how to exercise its jurisdiction is the real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.

13. It seems to the tribunal that the prejudice complained of in this case is that the failure to undertake full roof replacement works in 2018 has

4 led to avoidable further expenditure in respect of pest control and roof works. The objections from [NAME] also indicate that the Applicant was informed of other solutions in respect of pest control, although no further information is provided. The works also included patch repairs for the benefit of [NAME] and further roof works are currently being consulted upon. It is not clear that the patch repairs were authorised by the [NAME] beforehand, their evidence states that they only learned of the works after they had taken place. In these circumstances the [NAME] would appear to have an arguable case that unreasonable costs have been incurred, which might have been avoided had consultation been carried out. In the circumstances the tribunal does not consider that it is reasonable to dispense with the requirements retrospectively.

14. The effect of this decision is that a maximum of £250 will be recoverable per flat, producing a shortfall for the landlord roughly equivalent to the scaffolding costs or patch repairs. [NAME] under s.20C Landlord and Tenant Act 1985 15. There was no [NAME] for any order under section 20C before the tribunal. Name: Judge Wayte Date: 6 January 2020

Rights of appeal

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. 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 property and the case

5 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).