Tribunal Grants Dispensation for Urgent Repairs to Prevent Damage

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AW/LDC/2021/0073P Property : 2-[ADDRESS], London [POSTCODE] Applicant : [redacted] : [COUNSEL] of [NAME]) [COMPANY] Respondents :

[redacted] listed in the [NAME] of [NAME] :

Dispensation from compliance with statutory consultation requirements

Tribunal member :

Judge P [NAME] of decision : 4th May 2021

DECISION

Description of hearing

This has been a remote hearing on the papers. The form of remote hearing was P. 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] comprise works to repair and waterproof the balcony of Flat 7 at a cost of £3,177.60 inclusive of VAT. It appears that the works have now been carried out in full and that therefore this is a request for retrospective dispensation.

3. The Property is a building constructed in the early 1900s converted into 22 flats. The Respondents are the long [NAME] of the flats. Applicant’s case 4. Following a report into a leak into Flat 5, [NAME] attended the Property on behalf of the Applicant to investigate the cause. N- Compass then reported back that they had found cracks in the balcony of Flat 7, that flat being the one immediately above Flat 5. [NAME] then provided a quote to repair and waterproof the balcony of Flat 7.

5. Due to the size of the leak into Flat 5 and the risk of the ceiling falling down, the Applicant states that it was unable to source a second quotation and it instructed [NAME], through its managing agents, to proceed with the work.

6. The Applicant seeks dispensation from compliance with the statutory consultation requirements on the ground that to have delayed the works in order to consult with [NAME] would have resulted in further damage to Flat 5, leaving it uninhabitable. Responses from the Respondents 7. There have been no objections from any of the Respondents to the [NAME].

3 The relevant legal provisions 8. 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”.

9. 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”. Tribunal’s analysis 10. There is no evidence before me that the Applicant has been through any consultation process with [NAME], whether formally or informally.

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

12. In this case, there is evidence to indicate that the works were urgent, in the sense that delay could have led to further damage (including a collapsed ceiling) and could have rendered Flat 5 uninhabitable. The Applicant’s submissions on this point have not been contradicted by or on behalf of any of the Respondents. Also, and importantly, whilst there has been no compliance with the consultation requirements, none of the [NAME] has objected to this [NAME].

13. In addition, none of the Respondents has suggested that there has been any prejudice to [NAME] as a result of the failure to comply with the statutory consultation requirements.

14. The tribunal has a wide discretion as to whether it is reasonable to dispense with the consultation requirements, and on the facts of this case in the light of the points noted above I consider that it is reasonable to dispense with them.

15. As is clear from the decision of the Supreme Court in [NAME] v [NAME], even where 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 prejudice suffered by [NAME]. However, as noted above, there is no evidence nor any suggestion that the [NAME] have suffered prejudice in this case.

4 16. Accordingly, I grant unconditional dispensation from compliance with the consultation requirements. 17. For the avoidance of doubt, 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 18. There have been no cost applications.

Name: Judge P [NAME]: 4th May 2021

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 [NAME] dealing with the case.

B. The [NAME] for permission to appeal must arrive at the [NAME] 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.