Landlord Granted Dispensation From Tenant Consultation Requirements

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/24UJ/LDC/2020/0074

Property

:

[NAME], 58 [ADDRESS] [POSTCODE]

Applicant: [redacted]

:

[COMPANY]

Respondent: [redacted]

:

Type of Application

:

To dispense with the requirement to consult [RESPONDENT] about major works

Tribunal Member(s)

:

Judge J. Dobson

Date of [NAME]

:

24th November 2020

DECISION

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Decision

1. The Applicant is granted dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act in respect of major works being repairs to the lift at [NAME]. The Tribunal has made no determination on whether the costs of the works are reasonable or payable.

The application and the history of the case

2. The Applicant applied for dispensation under Section 20ZA of the Landlord and Tenant Act 1985 from the consultation requirements imposed on the landlord by Section 20 of the 1985 Act. The repairs have already been carried out so the application is for retrospective dispensation from the consultation requirements.

3. The Tribunal gave [NAME] on 30th October 2020, explaining that the only issue for the Tribunal is whether, or not, it is reasonable to dispense with the statutory consultation requirements and is not the question of whether any service charge costs are reasonable or payable. The [NAME] listed the steps to be taken by the parties in preparation for the determination of the dispute, if any.

4. The [NAME] stated that the Tribunal would proceed by way of paper determination without a hearing pursuant to of the Tribunal Procedure Rules 2013, unless any party objected. There has been no objection to determination of the application on the papers and indeed agreement from each Respondent who replied.

5. This is the decision made following that paper determination.

The Law

6. Section 20 of the Landlord and Tenant Act 1985 (“the Act”) and the related Regulations provide that where [NAME] undertakes qualifying works with a cost of more than £250 per lease the relevant contribution of each [NAME] (jointly where more than one under any given lease) will be limited to that sum unless the required consultations have been undertaken or the requirement has been dispensed with by the Tribunal. An application may be made retrospectively.

7. Section 20ZA provides that on an application to dispense with any or all of the consultation requirements, the Tribunal may make a determination granting such dispensation “if satisfied that it is reasonable to dispense with the requirements”.

8. The appropriate approach to be taken by the Tribunal in the exercise of its discretion was considered by the Supreme Court in the case of [COMPANY] v [NAME] et al [2013] UKSC 14.

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9. The leading judgment of Lord [NAME] explained that a tribunal should focus on the question of whether [NAME] will be or had been prejudiced in either paying where that was not appropriate or in paying more than appropriate because the failure of [NAME] to comply with the regulations. The requirements were held to give practical effect to those two objectives and were “a means to an end, not an end in themselves”.

10. The factual burden of demonstrating prejudice falls on [NAME]. [NAME] must identify what would have been said if able to engage in a consultation process. If [NAME] advances a credible case for having been prejudiced, [NAME] must rebut it. The Tribunal should be sympathetic to [NAME](s).

11. Where the extent, quality and cost of the works were in no way affected by [NAME]’s failure to comply, Lord [NAME] said as follows:

“I find it hard to see why the dispensation should not be granted (at least in the absence of some very good reason): in such a case the tenants would be in precisely the position that the legislation intended them to be- i.e. as if the requirements had been complied with.”

12. The “main, indeed normally, the sole question”, as described by Lord [NAME], for the Tribunal to determine is therefore whether, or not, [NAME] will be or has been caused relevant prejudice by a failure of the Applicant to undertake the consultation prior to the major works and so whether dispensation in respect of that should be granted.

13. The question is one of the reasonableness of dispensing with the process of consultation provided for in the Act, not one of the reasonableness of the charges of works arising or which have arisen.

14. If dispensation is granted, that may be on terms.

15. The effect of [NAME] has very recently been considered by the Upper Tribunal in [NAME] v [NAME] and Others [2020] UKUT 177 (LC), a decision published only several days ago, although that decision primarily dealt with the imposition of conditions when granting dispensation and that the ability of [RESPONDENT] to challenge the reasonableness of service charges claimed was not an answer to an argument of prejudice arising from a failure to consult.

Consideration

16. The Applicant explained that the Property comprises 14 flats with five on the ground floor, six on the first floor and three on the second floor, accessed via a central stairwell and lift. The Property is estimated to have been built mid- 2000s. Powered doors lead to the ground floor apartments and main entrance. The entrance to the lift is located on the ground floor and serves all upper floor. There is also a small under-

4 croft parking area and further parking to the rear, along with gardens.

17. The Applicant explained in the application that the major works relate to emergency repairs to the lift at [NAME]. The lift broke down on Tuesday, 14th July 2020 resulting in some of the residents being trapped inside. The Dorset and Wiltshire Fire and Rescue Service were involved to release them from the lift. [NAME] depended on the lift to access their property. The [NAME] has the use of a wheelchair and the Fire Service had to, after assisting with releasing them from the lift, carry them up the stairs to their apartment as they were trapped on the middle floor. An engineer from [COMPANY] attend to assist the Fire Service and discovered that the hydraulic hose had split and leaked oil into the pi, resulting in clearing up and parts requiring to be fabricated before repairs could take place.

18. The Applicant also explained that no consultation was carried out with the residents because of the urgency of the works. The Applicant added that residents had been contacting the Applicant’s representative pushing for an early repair to the lift to put it back into working order. Permission was granted to proceed with repairs as soon as possible due to the access restrictions of the resident who had to be assisted to their flat by the Fire Service.

19. The lift was repaired by replacing the hydraulic hose and oil on Friday, 17th July 2020 and by [COMPANY]. The costs associated with the works amounted to £4,943.36. The Applicant further explained that the selected contractor is regularly used on the site and considers that [COMPANY] costs are reasonable and competitive.

20. A sample lease, of Apartment 5, was provided with the application (“the Lease”). The Tribunal understands that the leases of the other properties are in the same or substantively the same terms.

21. The Applicant is responsible for repairs and other services. The relevant provisions are contained in, amongst others, clause 7 and the Eighth Schedule of the Lease.

22. There has been a response from 2 [NAME] agreeing to the application. There has been no response from the [NAME] of the other flats, whether agreeing or, more relevant for these purposes, opposing.

23. None of the Respondents have therefore asserted that any prejudice has been caused to them. The Tribunal finds that nothing different would be done or achieved in the event of a full consultation, except for the potential delay and potential problems.

24. Accordingly, the Tribunal finds that the Respondents have not suffered any prejudice by the failure of the Applicant to follow the full consultation process.

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25. The Tribunal consequently finds that it is reasonable to dispense with all of the formal consultation requirements in respect of the major works to the lift of the building.

26. This decision is confined to determination of the issue of dispensation from the consultation requirements in respect of the qualifying long- term agreement. The Tribunal has made no determination on whether the costs are reasonable or payable. If a [NAME] wishes to challenge the reasonableness of those costs, then a separate application under section 27A of the Landlord and Tenant Act 1968 would have to be made.

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RIGHTS OF APPEAL

1. A person wishing to appeal this decision to the Upper Tribunal (Lands Chamber) must seek permission to do so by making written application to the First-tier Tribunal at the Regional office which has been dealing with the case.

2. The application must arrive at the Tribunal within 28 days after the Tribunal sends to the person making the application written reasons for the decision.

3. If the person wishing to appeal does not comply with the 28- day time limit, the person shall include with the application for permission to appeal a request for an extension of time and the reason for not complying with the 28- day time limit; the Tribunal will then decide whether to extend time or not to allow the application for permission to appeal to proceed.

4. The application for permission to appeal must identify the decision of the Tribunal to which it relates, state the grounds of appeal, and state the result the party making the application is seeking.