Tribunal Grants Dispensation for Urgent Lift Repairs

OUTCOME: Allowed

FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AW/LDC/2022/0206 HMCTS code (paper, video, audio) : P: PAPER REMOTE Property : 15-19 [ADDRESS] [POSTCODE] Applicant : [redacted] : [NAME] (UK) [COMPANY] ([NAME]) Respondents : [redacted] the Property listed in a schedule attached to the [NAME] of [NAME] : To dispense with the requirement to consult leaseholders Tribunal Member : Judge N Hawkes London Panel : 10 [ADDRESS] [POSTCODE] Date of paper determination : 1 February 2023

DECISION

PAPER DETERMINATION

This has been a paper determination which has not been objected to by the parties. The form of remote determination was P:PAPER REMOTE. A face-to- face hearing was not held because it was not practicable and all issues could be determined on the papers. The documents that the Tribunal was referred to are contained in a bundle of 60 pages (including index). The order made is described below.

Decision of the Tribunal

The Tribunal determines, pursuant to section 20ZA of the Landlord and Tenant Act 1985, that it is reasonable to dispense with the statutory consultation requirements in respect of the work which forms the subject matter of the Applicant’s [NAME] dated 10 October 2022.

Background

1. The Applicant has applied to the Tribunal under [POSTCODE] of the Landlord and Tenant Act 1985 (“the 1985 Act”) for retrospective dispensation from the consultation requirements contained in section 20 of the 1985 Act in respect of certain qualifying works to 15-19 [ADDRESS] [POSTCODE] (“the Property”).

2. The Tribunal has been informed that the Property comprises a masonry/brick building, built in the early 1900s and converted into 14 flats.

3. The Applicant’s statement in support of the [NAME] includes the following matters:

“We were alerted to a lift breakdown, on 19 May 2022. Upon investigation it was found that the lift was out of service because the door operator is excessively worn and should be upgraded to a new version. We obtained two quote[s] for the works, [NAME] (Exhibit A) for £4,579.50 + VAT and [NAME] (Exhibit B) for £6,750 + VAT. [NAME] were instructed as they were the cheapest contractor and completed the works within a good time frame. We seek dispensation from consultation on the ground that to delay the works would have resulted in elderly residents having to walk up numerous stairs to reach their apartment. “

4. The [NAME] is dated 10 October 2022 and the Respondent lessees are listed in a schedule to the [NAME].

5. Directions of the Tribunal were issued on 5 December 2022.

6. The Directions included provision that this [NAME] would be determined on the papers unless an oral hearing was requested. No [NAME] has been made by any party for an oral hearing. This

matter has therefore been determined by the Tribunal by way of a paper determination on 1 February 2023.

7. The Tribunal did not consider an inspection of the Property to be necessary or proportionate to the issues in dispute.

The Respondents’ case

8. None of the Respondents have submitted a reply form to the Tribunal and/or have made representations to the Tribunal opposing the Applicant’s [NAME] for dispensation from the statutory consultation requirements.

The Tribunal’s determination

9. Section 20 of the 1985 Act provides for the limitation of service charges in the event that statutory consultation requirements are not met.

10. The consultation requirements apply where the works are qualifying works (as is the case in this instance) and only £250 can be recovered from a tenant in respect of such works unless the consultation requirements have either been complied with or dispensed with.

11. The consultation requirements are set out in the Service Charges (Consultation Requirements) (England) Regulations 2003.

12. Section 20ZA of the 1985 Act provides that, where an [NAME] is made to the 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. In determining this [NAME], the Tribunal has considered [COMPANY] v Benson [2013] UKSC 54, [2013] 1 WLR 854.

13. In all the circumstances and having considered: a. the Applicant’s [NAME]; b. the evidence filed in support of the [NAME]; and c. the fact that none of the Respondents has submitted a reply form to the Tribunal and/or has made representations to the Tribunal opposing the Applicant’s [NAME] for dispensation from the statutory consultation requirements;

the Tribunal determines, pursuant to section 20ZA of the Landlord and Tenant Act 1985, that it is reasonable to dispense with the statutory consultation requirements in respect of the work which forms the subject matter of the Applicant’s [NAME] dated 10 October 2022. The Tribunal is satisfied on the balance of probabilities that, due to the urgent need to remedy the defect to the lift at the Property, it was not practicable to comply with the statutory consultation requirements in this instance.

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

Judge N Hawkes

Date: 1 February 2023

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).