Landlord Granted Dispensation for Urgent Lift Repairs Without Leaseholder Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case Reference : CAM/11UF/LDC/2021/0050 HMCTS code (paper, video, audio) : P:PAPERREMOTE

Property :

40 [ADDRESS] [POSTCODE]

Applicant: [redacted]

[COMPANY]

Respondents :

[redacted] 2.[NAME] [NAME] (flat 2) 3.Mr [NAME] and [NAME] (flat 3) 4.Mr [NAME] (flat 4) Type of [NAME] : For dispensation from consultation requirements - Section 20ZA of the Landlord and Tenant Act 1985 Tribunal members : [APPELLANT] [NAME]([NAME]) Date of decision : 17 January 2022

DECISION Covid-19 pandemic: description of hearing This has been a remote determination on the papers which the parties are taken to have consented to, as explained below. The form of determination was P:PAPERREMOTE. A hearing was not held because it was not necessary, and all issues could be determined on paper. The documents that I was referred to are in an electronic bundle from the Applicant. I have noted the contents and my decision is below.

2

The tribunal’s decision The tribunal determines under section 20ZA of the Landlord and Tenant Act 1985 to dispense with the consultation requirements in respect of qualifying works to repair the lift and return to service. Reasons for the tribunal’s decision The [NAME] (1) This is an [NAME] to seek retrospective dispensation with the statutory consultation requirements in respect of urgent works to repair the lift and return it to service. (2) The matter was urgent as the lift was not functioning and one of the [NAME] is elderly and reliant on the lift to access their property. Works were completed in October 2021. (3) The total cost of the works was £4,488 which was met from reserves. (4) The relevant contributions of [NAME] through the service charge towards the costs of these works would be limited to a fixed sum unless the statutory consultation requirements, prescribed by section 20 of the Landlord and Tenant Act 1985 (the “1985 Act”) and the Service Charges (Consultation etc) (England) Regulations 2003: (i) were complied with; or (ii) are dispensed with by the tribunal. (5) In this [NAME], the Applicant seeks a determination from the tribunal, under section 20ZA of the 1985 Act, to dispense with the consultation requirements. The tribunal has jurisdiction to grant such dispensation if satisfied that it is reasonable to do so. (6) The only issue here for the tribunal is whether it is satisfied that it is reasonable to dispense with the consultation requirements (7) This [NAME] does not concern the issue of whether any service charge costs of the relevant works will be reasonable or payable or by whom they are payable.

3 The Property and parties (8) The Property comprises four flats in a converted commercial property. The flats are located on the first and second floor of the building with a commercial unit on the ground floor. (9) The [NAME] is made by [NAME] on behalf of the landlord, London and [RESPONDENT]. The [NAME] was made against the [NAME] of the 4 flats (the “Respondents”) Procedural history (10) The Applicant said that the works were urgent, as explained below. The [NAME] states that all [NAME] were happy to proceed without formal consultation and includes e mail confirmation from all [NAME]. (11) Initial case management directions were given on 15 November 2021. The directions included a reply form for any [NAME] who objected to the [NAME] to return to the tribunal and the Applicant, also indicating whether they wished to have an oral hearing. Any such objecting [NAME] was required to respond 6 December 2021. (12) The directions further provided that this matter would be determined on or after 10 January 2022 based on the documents, without a hearing, unless any party requested an oral hearing (13) No [NAME] has responded to the tribunal, and no party has requested an oral hearing. (14) On reviewing these documents, the tribunal considered that an inspection of the Property was neither necessary nor proportionate to the issues to be determined and that a hearing was not necessary. The Applicant’s case (15) Documentation provided by the Applicant states that the lift was not operational, and it was agreed with the [NAME] that repairs needed to be completed as soon as possible (16) The work was carried out by the [COMPANY] at a cost of £4,488 including VAT. The Respondents’ position (17) As mentioned above, the directions provided for any Respondent who wished to oppose the [NAME] for dispensation to complete the reply

4 form attached to the directions and send it to the tribunal and the Applicant. (18) The tribunal has not received any response or statement of case opposing the [NAME], or comments on the Applicant’s statements in the [NAME] form. In the circumstances, the tribunal concluded that the [NAME] was unopposed. The tribunal’s decision (19) Following the Supreme Court decision of Daejan Investments Ltd. v Benson [2013] UKSC 14, the only issue for the Tribunal is whether the Respondents have suffered prejudice in dispensing with the requirements. (20) This [NAME] for dispensation from the consultation requirements was not opposed by the Respondents, who have not challenged the information provided by the Applicant in the [NAME] form, identified any prejudice which they might suffer because of the non- compliance with the consultation requirements, nor asked to be provided with any other information. (21) Accordingly, in the circumstances set out in this decision, the tribunal is satisfied that it is reasonable to dispense with the consultation requirements in relation to the works. (22) For the purposes of this [NAME], the tribunal determines under section 20ZA of the 1985 Act to dispense with all relevant consultation requirements in relation to works to repair the lift. (23) This is not an [NAME] for the tribunal to approve the reasonableness of the works or the reasonableness, apportionment or payability of the service charge demand. I make no finding in that regard and the [NAME] will continue to enjoy the protection of section 27A of the Act. (24) There was no [NAME] to the tribunal for an order under section 20C of the 1985 Act. (25) The Applicant shall be responsible for serving a copy of this decision on all [NAME].

[NAME] [NAME]([NAME]) 18 January 2022

5 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 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).