First-tier Tribunal Rejects Tenant's Challenge to Pandemic-era Service Charges

OUTCOME: Dismissed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER ([NAME]) Case reference : LON/00AD/LSC/2021/0362 HMCTS code (paper, video, audio)

P: PAPERREMOTE Property : [ADDRESS] [POSTCODE] Applicant : [redacted] : In person Respondent : [redacted] : [COUNSEL] ([COMPANY]) Type of application : Service charges – section 27A [NAME] 1985 Tribunal member(s) : Judge [NAME] : 10 [ADDRESS] [POSTCODE] Date of decision : 9 March 2022

DECISION

Covid-19 pandemic: description of hearing 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 all issues could be determined in a remote on paper. The documents that the Tribunal were referred to are in a bundle of 193 pages, the contents of which have been considered.

2 The tribunal’s summary decision (1) The tribunal finds that the charges incurred in respect of the

provision of a Scheme Officer for the service charge year

2020/2021 are reasonable and payable in the sum demanded

of the applicant amounting to £608.24. (2) The tribunal declines to make an order under section 20C of

the [NAME] and under paragraph 5A of Schedule

11 of the Commonhold and Leasehold Reform Act 2002.

The application 1. This is an application made section 27A of the [NAME]

1985 (‘the 1985 Act’) seeking the tribunal’s determination as to the

reasonable of costs incurred for the provision of a [NAME] (Scheme

Officer) in the service charge year 2020/2021 of which the applicant has

been required to pay his proportion in the sum of £608.24. Background 2. The applicant is the long lessee of premises situate at [ADDRESS] [POSTCODE] (‘the premises’)

under a lease dated 14 February 1986 made between [COMPANY] and [NAME], granting a term of 99 years with

effect from 25 December 1984. 3. The premises are part of a sheltered housing scheme at [ADDRESS] for

persons aged over 55 years old for which the services of a Scheme

Officer are provided. The applicant’s case 4. The applicant asserts that the respondent has failed in its ‘duty of care’

by allowing or instructing the Scheme Officer to work part time from

home with reduced attendance at the premises during the period

29/03/2020 to 03/08/2020 and 04/01/2021 to 16/04/2021. As a

consequence, the cost of the reduced service provided under the heading

as ‘Caretaking and Other Staff Costs’ during these periods should be

reduced by 55%, as the lease requires the respondent to provide a

Scheme Officer to be onsite at the accommodation from Monday to

Friday during the hours of 9am-5pm.

3 5. In support of the application, the applicant relied upon a Full Statement

of Case (undated) together with a number of exhibits, in which it was

stated ‘The scheme officer would need to be present at the scheme for

the majority of her duties in her role profile and obligations in the

lease.’ The respondent’s case 6. The respondent relied upon a Statement of Case dated 25 January 2022

and exhibits. The respondent denied that any reduction in the

charges for the Scheme Officer was merited. 7. Under paragraph 1 of the Fifth Schedule of the lease the respondent

covenanted (with exceptions) ‘To use its best endeavours to maintain at

all times the services of a [NAME] manager* for performing specified

duties at [ADDRESS]. On 27 April 2020 the parties entered into a Deed

of Variation which removed reference to the [NAME] Manager’s flat and

no longer required residence at the [ADDRESS] complex.

*The lease refers to a [NAME] Manager although is also referred to as

the Scheme Officer. 8. The respondent asserted that the coming into force of the Health

Protection (Coronavirus Restrictions) (England) Regulations 2020 came

into force on 26 March 2020, required the respondent to limit visits by

the Scheme Officer to once a week with the rest of the duties being

carried out on a ‘work for home’ basis. On 3 August 2020 the Scheme

Officer returned to onsite working at [ADDRESS]. Subsequently,

attendance at [ADDRESS] by the Scheme Officer was reduced from 5

October 2020 to attendance to carry out key tasks only with the

remainder of the Scheme Officer’s duties being carried out on a ‘work

from home’ basis. 9. The respondent asserted that the costs incurred in respect of the Scheme

Officer were reasonably incurred as the duties required were at all times

carried out, although the place of working had of necessity to vary, in

order to accommodate the demand of the pandemic legislation and

requirements. Further, the respondent asserted, that in any event the

Scheme Officer was not required to provide ‘face to face’ contact and that

all key tasks required were at all times carried out by the Scheme Officer

and a number of [NAME] requested that the Scheme Officer did not attend

on site to carry out a fire alarm test because of the risk of infections from

COVID-19. The tribunal’s decision and reasons 10. The tribunal finds the costs of the Scheme Officer to be reasonable and

payable in full for the service charge year 2020/2021.

4 11. The tribunal only has jurisdiction to determine if the services challenged

have been reasonably provided at a reasonable cost. The tribunal finds

that although the applicant has referred to several [NAME] having

been affected by the absence of an on-site Scheme Officer, the

application has been made in the name of Mr [NAME] only and

that there are no co-applicants. Therefore, the tribunal’s determination

is in respect of the applicant only. 12. The tribunal finds that the applicant has failed to identify any ‘losses’

caused by the changed mode of service provided by the Scheme Officer

during the pandemic 11. The tribunal finds that the provision of a [NAME] Manager is not an

absolute requirement under the terms of the lease as the respondent is

required to use only its best endeavours to provide such a service. Due

the lease variation the requirement of residence as of April 2020 was

removed and the tribunal finds that the respondent at all times and in

the extraordinary circumstances of the pandemic, provided a reasonable

service at a reasonable cost in respect of the provision of a Scheme

Officer. 12. Therefore, the application is dismissed. 13. The tribunal also refuses to make an order under section 20C of the

[NAME] 2985 and paragraph 5A of Schedule 11 of the

Commonhold Leasehold Reform Act 2002.

Name: Judge Tagliavini

Date: 9 March 2022

ANNEX - RIGHTS OF APPEAL

Appealing against the tribunal’s decisions

1. A written application for permission must be made to the First-tier Tribunal at the Regional tribunal office which has been dealing with the case.

2. The application for permission to appeal must arrive at the Regional tribunal office within 28 days after the date this decision is sent to the parties.

5 3. 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.

4. The application for permission to appeal must state the grounds of appeal and state the result the party making the application is seeking. All applications for permission to appeal will be considered on the papers

5. Any application to stay the effect of the decision must be made at the same time as the application for permission to appeal.