Tribunal Grants Dispensation for Urgent Lift Repairs

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY)

Case Reference

:

CHI/00MR/LDC/2023/0122

Property

:

[ADDRESS], [POSTCODE]

Applicant: [redacted]

[COMPANY] (Portsmouth) [COMPANY]

:

[NAME]

Respondents

:

[redacted]

:

Type of Application

:

To dispense with the requirement to consult lessees about major works section 20ZA of the Landlord and Tenant Act 1985

Tribunal Member

:

[NAME] and Venue of Hearing

:

Determination on Papers

Date of Decision

:

17 November 2023

DECISION

2 The Application

1. The applicant seeks 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 application was received on 12 October 2023.

2. The property is described as a converted Victorian building comprising 52 flats.

3. Dispensation is sought in relation to the replacement of a failed lift control panel and associated works. The Applicant states “We seek to dispense of the consultation to enable the repair to be carried out as soon as possible. There are disabled residents within the building who are unable to leave their property without access to the lift.”

4. Pursuant to section 20 of the Landlord and Tenant Act 1985 the Applicant issued a Notice of Intention to each Respondent on 11 October 2023. A copy of the Notice was included in the bundle.

5. A quotation dated 3 October 2023 has been provided by [COMPANY] in the sum of £20,078.00 + VAT. A copy was provided. The Applicant awaits a second quotation.

6. On 17 October 2023 the Tribunal directed that the application would be determined on the papers without a hearing unless a party objected in writing within 7 days. No objections were received.

7. The Tribunal Directions required the Applicant to immediately serve the application and Tribunal Directions on the Respondents and, by 20 October 2023, to advise the Tribunal that this had been done. On 19 October 2023 the Applicant confirmed compliance.

8. The Respondent [NAME] were informed in the Directions that neither the question of reasonableness of the works, nor cost, were included in the application, the sole purpose of which is to seek dispensation.

9. The Tribunal required the Respondents to return a pro-forma to the Tribunal and to the Applicant by 27 October 2023 indicating whether they agreed or disagreed with the application. No responses were received by the Tribunal.

10. On 14 November 2023 the Applicant confirmed that they had not received any objections from the Respondents.

Determination

11. The 1985 Act provides [NAME] with safeguards in respect of the recovery of the landlord’s costs in connection with qualifying works. Section 19 ensures that the landlord can only recover those costs that

3 are reasonably incurred on works that are carried out to a reasonable standard. Section 20 requires the landlord to consult with [NAME] in a prescribed manner about the qualifying works. If the landlord fails to do this, a [NAME]’s contribution is limited to £250, unless the Tribunal dispenses with the requirement to consult.

12. In this case the Tribunal’s decision is confined to the dispensation from the consultation requirements in respect of the works under section 20ZA of the 1985 Act. The Tribunal is not making a determination on whether the costs of those works 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 1985 would have to be made.

13. Section 20ZA does not elaborate on the circumstances in which it might be reasonable to dispense with the consultation requirements. On the face of the wording, the Tribunal is given a broad discretion on whether to grant or refuse dispensation. The discretion, however, must be exercised in the context of the legal safeguards given to the Applicant under sections 19 and 20 of the 1985 Act. This was the conclusion of the Supreme Court in [COMPANY] v [NAME] and Others [2013] UKSC 14 & 54 which decided that the Tribunal should focus on the issue of prejudice to the tenant in respect of the statutory safeguards.

14. Lord [APPELLANT] in Daejan said at paragraph 44 “Given that the purpose of the Requirements is to ensure that the tenants are protected from (i) paying for inappropriate works or (ii) paying more than would be appropriate, it seems to me that the issue on which the LVT should focus when entertaining an application by a landlord under s 20ZA(1) must be the extent, if any, to which the tenants were prejudiced in either respect by the failure of the landlord to comply with the Requirements”.

15. Thus, the correct approach to an application for dispensation is for the Tribunal to decide whether and if so to what extent the [NAME] would suffer relevant prejudice if unconditional dispensation was granted. The factual burden is on the [NAME] to identify any relevant prejudice which they claim they might have suffered. If the [NAME] show a creditable case for prejudice, the Tribunal should look to the landlord to rebut it, failing which it should, in the absence of good reason to the contrary, require the landlord to reduce the amount claimed as service charges to compensate the [NAME] fully for that prejudice.

16. The Tribunal now turns to the facts. The Tribunal is satisfied that it is necessary to carry out the works in order to reinstate a functioning lift. The Tribunal accepts that such work is urgent and, furthermore, the Tribunal accepts the applicant’s explanation that there is insufficient

4 time to undertake full statutory consultation. The Tribunal takes into account that there have been no objections from any of the Respondents and no prejudice has been demonstrated or asserted. The Tribunal also has regard to the partial statutory consultation undertaken by the Applicant.

17. On the evidence before it the Tribunal is, therefore, satisfied that the [NAME] would suffer no relevant prejudice if dispensation from consultation was granted.

Decision

18. The Tribunal grants an order dispensing with the consultation requirements under S.20 of the Landlord and Tenant Act 1985 in respect of remedial works to the lift.

19. The Tribunal directs the Applicant to supply a copy of the decision to the [NAME] and to confirm to the Tribunal that it has done so. Additionally, the Tribunal directs that, in due course, both quotations are provided to the [NAME].

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 by email to [EMAIL] to the First-tier Tribunal at [NAME] 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.