Tribunal Grants Dispensation for Urgent Lift Repairs

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00BK/LDC/2024/0656 Property : 25 [ADDRESS] [POSTCODE] Applicant : [redacted] : lrmprime (Managing Agent) Respondent: [redacted] : None Provided Type of [RESPONDENT] : [RESPONDENT] for dispensation from the consultation requirements of s20 under section 20ZA of the Landlord and Tenant Act 1985 Tribunal member : [NAME] Venue : 10 [ADDRESS] [POSTCODE] Date of decision : 4 March 2025

DECISION

2 Decision of the tribunal 1. The tribunal exercises its discretion to grant dispensation from the consultation requirements of s20ZA in respect of the works to replace a defective autodialler in the lift which provides an emergency callout facility if anybody is trapped in the lift. The [RESPONDENT]

2. By an [RESPONDENT] dated 11 November 2024 the Applicant seeks dispensation from the consultation requirements under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) in respect of works to replace the defective autodialler in the lift providing emergency callout facilities. The works cannot wait for a three-month consultation period. The works had not been carried out at the date of the [RESPONDENT]. An estimate dated 28 May 2024 from [NAME] has been provided. No notice was given under s20 of the Landlord and Tenant Act 1985 but letters were sent to the [NAME] on 9 January 2025. No representations have been received from the Respondents who were advised of the cost of the works and the [RESPONDENT] to the tribunal.

3. Directions were made on 11 December 2024 for a paper determination in the week commencing 3 March 2025. The only issue for the tribunal is whether it is reasonable to dispense with the statutory consultation requirements.

4. This decision does not concern the issue of whether any service charge costs will be reasonable or payable.

The hearing 5. A written [RESPONDENT] was made by the freeholder.

6. A copy lease has been provided. The case was decided on paper and no appearances were made. The tribunal considered the written [RESPONDENT] form, copy letters to the [NAME], and the specimen lease included in the bundle.

The background 7. The property is a block of 25 apartments arranged over 8 floors with commercial offices over 8 floors and 4 retail units.

8. Each flat is held on long lease which requires the landlord to provide services and the tenant to contribute towards their costs by way of a variable service charge.

3 9. An inspection was not requested and the tribunal did not consider that one was necessary, nor would it have been proportionate to the issue.

10. The lease shows the scope of the works is within the service charge provisions of the lease. The tribunal directed the applicant to provide copies of the [RESPONDENT] and directions to the lessees. Confirmation was sent to the tribunal that the [RESPONDENT] had been provided to the [NAME]. No representations have been received objecting to the [RESPONDENT] as to the scope of the works or appropriateness of the [RESPONDENT]. Reasonableness and payability of the service charge is not within the scope of this [RESPONDENT].

The Law s20ZA of the Landlord and Tenant Act 1985 Service charges 20ZA Consultation requirements: supplementary (1)Where an [RESPONDENT] 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 or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements. (2)In section 20 and this section— “qualifying works” means works on a building or any other premises, and “qualifying long term agreement” means (subject to subsection (3)) an agreement entered into, by or on behalf of the landlord or a superior landlord, for a term of more than twelve months. (3)The Secretary of State may by regulations provide that an agreement is not a qualifying long term agreement— (a)if it is an agreement of a description prescribed by the regulations, or (b)in any circumstances so prescribed. (4)In section 20 and this section “the consultation requirements” means requirements prescribed by regulations made by the Secretary of State.

4 (5)Regulations under subsection (4) may in particular include provision requiring the landlord— (a)to provide details of proposed works or agreements to tenants or the recognised tenants’ association representing them, (b)to obtain estimates for proposed works or agreements, (c)to invite tenants or the recognised tenants’ association to propose the names of persons from whom the landlord should try to obtain other estimates, (d)to have regard to observations made by tenants or the recognised tenants’ association in relation to proposed works or agreements and estimates, and (e)to give reasons in prescribed circumstances for carrying out works or entering into agreements. (5A)And in the case of works to which section 20D applies, regulations under subsection (4) may also include provision requiring the landlord— (a)to give details of the steps taken or to be taken under section 20D(2), (b)to give reasons about prescribed matters, and any other prescribed information, relating to the taking of such steps, and (c)to have regard to observations made by tenants or the recognised tenants’ association in relation to the taking of such steps. (6)Regulations under section 20 or this section— (a)may make provision generally or only in relation to specific cases, and (b)may make different provision for different purposes. (7)Regulations under section 20 or this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

11. The applicable case law is [COMPANY] v Benson [2013] UKSC 14, 1 WLR 854 where the Supreme Court held that the relevant test is whether the [NAME] have suffered prejudice by the failure to consult. Where the extent, quality and cost of the works were unaffected by the landlord’s failure to comply with the consultation requirements, an unconditional dispensation should normally be granted.

5

The tribunal’s decision 12. The tribunal exercises its discretion to grant dispensation from the consultation requirements of under s20 ZA of the Landlord and Tenant Act 1985 and the Service Charges (Consultation Requirements) (England) Regulations 2003

Reasons for the tribunal’s decision 13. The works were necessary to restore to working order the facility for anybody trapped in the lift to call for assistance.

14. Although the dates of the estimate and subsequent [RESPONDENT] and correspondence are troubling in that the estimate is dated some months before this [RESPONDENT], the tribunal is satisfied that the [NAME] were aware of the works required and they have not objected.

15. The Tribunal is being asked to exercise its discretion under s.20ZA of the Act. The wording of s.20ZA is significant. Subs. (1) provides:

“Where an [RESPONDENT] is made to a [leasehold valuation] tribunal for a determination to dispense with all or any of the consultation requirements in relation to any qualifying works or qualifying long term agreement, the tribunal may make the determination if satisfied that it is reasonable to dispense with the requirements” (emphasis added).

16. The Tribunal understands that the purpose of the consultation requirements is to ensure that [NAME] are given the fullest possible opportunity to make observations about expenditure of money for which they will in part be liable. The test laid down by the Supreme Court in [NAME] v Benson is whether the [NAME] would suffer prejudice if the [RESPONDENT] were to be granted and a full consultation not carried out.

17. The tribunal considers that there is no prejudice to the [NAME] in granting dispensation as the works are urgently needed to restore the emergency call facility from the lift. The tribunal is satisfied that the risk of delay outweighs any possible prejudice arising from a failure to carry out the full consultation process.

18. The tribunal is satisfied the works are urgent and that dispensation should be granted.

6 19. The granting of dispensation is not concerned with the cost and recoverability of service charges for the works which are dealt with under section 27A of the Act.

Name: [NAME]: 4 March 2025

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 ([NAME]), then a written [RESPONDENT] for permission must be made to the First- tier Tribunal at the [NAME] which has been dealing with the case. The [RESPONDENT] for permission to appeal must arrive at the [NAME] within 28 days after the tribunal sends written reasons for the decision to the person making the [RESPONDENT]. If the [RESPONDENT] is not made within the 28-day time limit, such [RESPONDENT] 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 [RESPONDENT] for permission to appeal to proceed, despite not being within the time limit. The [RESPONDENT] 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 making the [RESPONDENT] is seeking. If the tribunal refuses to grant permission to appeal, a further [RESPONDENT] for permission may be made to the Upper Tribunal ([NAME]).