Tribunal Grants Dispensation for Urgent Health and Safety Measures

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AW/LDC/2023/0108 Property :

4 & 4A [ADDRESS] [POSTCODE]

Applicant: [redacted] : [COUNSEL] [NAME] Respondents : [redacted] Type of [NAME] :

Dispensation from compliance with statutory consultation requirements

Tribunal member :

Judge P Korn

Date of decision : 28 November 2023

DECISION

Description of hearing

This has been a remote hearing on the papers. An oral hearing was not held because the Applicant confirmed that it would be content with a paper determination, the Respondents did not object and the tribunal agrees that it is appropriate to determine the issues on the papers alone. The documents to which I have been referred are in an electronic bundle, the contents of which I have noted. The decision made is described immediately below under the heading “Decision of the tribunal”.

2 Decision of the tribunal

The tribunal dispenses unconditionally with the consultation requirements in respect of the qualifying works which are the subject of this [NAME]. The [NAME]

1. The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from the consultation requirements imposed on the landlord by section 20 of the 1985 Act in relation to certain qualifying works.

2. The qualifying works which are the subject of this [NAME] consist of the installation of a chemical dosing system after the discovery of legionella in the water. The Property is a townhouse converted into 12 flats. Applicant’s case 3. During a recent water risk assessment, traces of legionella were found within the water supply and therefore the Applicant considers it essential to instal a chemical dosing system. A section 20 notice of intention has been issued but the Applicant states that it cannot go through the full section 20 process. This is because the works need to be carried out as quickly as possible to prevent the risk of water contamination and consequential threat to the health of the occupiers of the Property. Responses from the Respondents 4. None of the Respondents has written to the tribunal raising any objections to the dispensation [NAME]. The relevant legal provisions 5. Under Section 20(1) of the 1985 Act, in relation to any qualifying works “the relevant contributions of tenants are limited … unless the consultation requirements have been either (a) complied with … or (b) dispensed with … by … the appropriate tribunal”.

6. Under Section 20ZA(1) of the 1985 Act “where an [NAME] is made to the appropriate 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”.

3 Tribunal’s analysis 7. The Applicant has provided evidence of its having gone through stage one of the section 20 consultation process with [NAME]. It has also explained why the works are considered urgent for health and safety reasons. The bundle contains evidence that traces of legionella have been found in the water.

8. As is clear from the decision of the Supreme Court in [COMPANY] v [NAME] (2013) UKSC 14, the key issue when considering an [NAME] for dispensation is whether the [NAME] have suffered any prejudice as a result of the failure to comply with the consultation requirements.

9. In this case, none of the Respondents has expressed any objections in relation to the failure to go through the full statutory consultation process, and there is no evidence before me that the [NAME] were in practice prejudiced by the failure to consult fully. Furthermore, I accept on the basis of the uncontested evidence before me that the carrying out of the works is urgent for health and safety reasons.

10. The tribunal has a wide discretion as to whether it is reasonable to dispense with the consultation requirements. In this case the Applicant has explained clearly and plausibly why the chemical dosing system needs to be installed as a matter of urgency, and no [NAME] have raised any objections or challenged the Applicant’s factual evidence. I therefore consider that it is reasonable to dispense with the consultation requirements.

11. As is also clear from the decision of the Supreme Court in [NAME] v [NAME], even when minded to grant dispensation it is open to a tribunal to do so subject to conditions, for example where it would be appropriate to impose a condition in order to compensate for any specific prejudice suffered by [NAME]. However, as noted above, there is no evidence nor any suggestion that the [NAME] have suffered prejudice in this case.

12.

Accordingly, I grant unconditional dispensation from compliance with the consultation requirements.

13. It should be noted that this determination is confined to the issue of consultation and does not constitute a decision on the reasonableness of the cost of the works. Costs 14. There have been no cost applications.

4

Name: Judge P Korn Date: 28 November 2023

RIGHTS OF APPEAL

A. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) a written [NAME] for permission must be made to the First-tier Tribunal at the regional office dealing with the case.

B. 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].

C. If the [NAME] is not made within the 28 day time limit, such [NAME] must include a request for extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason and decide whether to allow the [NAME] for permission to appeal to proceed despite not being within the time limit.

D. 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.