Tribunal Grants Dispensation for Urgent Repairs to Prevent Water Ingress

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AN/LDC/2021/0095 HMCTS Code : P: Paper remote Applicant : [redacted]

[COMPANY] Respondents : [redacted] : 156-158 [ADDRESS] [POSTCODE]

Type of [NAME] : For dispensation under section 20ZA of the Landlord & Tenant Act 1985

Tribunal members :

Tribunal Judge I [NAME] [NAME] of determination : 5 July 2021 Date of decision :

5 July 2021

DECISION

2 Covid-19 pandemic: description of hearing This has been a remote hearing on the papers, which has been consented to by the Applicant and not objected to by the Respondents. The form of remote hearing was P: PAPER REMOTE. A face-to-face hearing was not held because it was not practicable and no one requested the same. Introduction 1. The Applicant makes an [NAME] in this matter under section 20ZA of the Landlord and Tenant Act 1985 (as amended) (“the Act”) for retrospective dispensation from the consultation requirements imposed by section 20 of the Act.

2. 156-158 [ADDRESS] [POSTCODE] (“the property”) is a mid-terrace property comprised of 5 self-contained flats arranged over the ground and first floors with further accommodation in the roof space.

3. On 9 December 2020, the Applicant’s managing agent, [APPELLANT] (“[NAME]”), was made aware of water ingress into Flat 1 by the lessee. On 10 December 2020, [NAME] instructed a roofing contractor, [COMPANY] (“[NAME]”) to carry out an investigation of the leak. It was confirmed that there was damp found in two rooms in Flat 1 in the front right and rear right bedrooms.

4. Apparently, [NAME] did not progress the work and eventually in January 2021, [NAME] instructed another roofing contractor, Darran Hall Roofing to urgently carry out any necessary repairs. These were done on 29 January 2021 once the issue about access had been overcome at an estimated cost of £2,750.

5. By a circular dated 27 January 2021, the leaseholders have been kept fully informed about the urgent nature of the repairs and the need to dispense with statutory consultation. The circular also informed the [NAME] that an [NAME] would be made to the Tribunal seeking retrospective dispensation from the requirement to carry out such consultation. On 26 March 2021, the Applicant made this [NAME].

6. On 14 May 2021, the Tribunal issued Directions and directed the [NAME] to respond to the [NAME] stating whether they objected to it in any way. The Tribunal also directed that this [NAME] be determined on the basis of written representations only.

7. The Tribunal notes that the [NAME] were served with the [NAME] on 20 May 2021 and a copy was also placed in the communal area of the property. None of the Respondents have objected to the [NAME].

3 Relevant Law

8. This is set out in the Appendix annexed hereto.

Decision

9. The determination of the [NAME] took place on 5 July 2021 without an oral hearing. It was based solely on the statements of case and other documentary evidence filed by the Applicant.

10. The relevant test to the applied in an [NAME] such as this has been set out in the Supreme Court decision in [COMPANY] v [NAME] & Ors [2013] UKSC 14 where it was held that the purpose of the consultation requirements imposed by section 20 of the Act was to ensure that tenants were protected from paying for inappropriate works or paying more than was appropriate. In other words, a tenant should suffer no prejudice in this way.

11. The issue before the Tribunal was whether dispensation, retrospectively or otherwise, should be granted in relation to the requirement to carry out statutory consultation with the leaseholders regarding the works to prevent further water ingress. As stated in the directions order, the Tribunal is not concerned about the actual cost that has been incurred.

12. The Tribunal granted the [NAME] for the following reasons:

(a) the Tribunal was satisfied that the initial investigation by [NAME] had identified significant water ingress into two rooms in Flat 1 and were, therefore, urgent in nature.

(b) the Tribunal was satisfied that the Respondents have been kept informed of the need to carry out the remedial repairs. The Tribunal was also satisfied that if the Applicant carried out statutory consultation, it is likely that the health and safety of the occupant(s) in Flat 1 would be prejudiced and further delay may have resulted in greater cost for remedial works being incurred.

(c) the Tribunal was satisfied that the Respondents have been served with the [NAME] and the evidence in support and there has been no objection from any of them.

(d) importantly, the real prejudice to the Respondents would be in the cost of the works and they have the statutory protection of section 19 of the Act, which preserves their right to challenge the actual costs incurred by [NAME] a separate service charge [NAME] under section 27A of the Act.

13. The Tribunal, therefore, concluded that the Respondents were not being prejudiced by the Applicant’s failure to consult and the [NAME] was granted as sought.

4

14. It should be noted that in granting this part of the [NAME], the Tribunal makes no finding that the scope and estimated cost of the repairs are reasonable.

Name: Tribunal Judge I [NAME]: 5 July 2021

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).

5 Appendix of relevant legislation

Landlord and Tenant Act 1985 (as amended) Section 20 (1) Where this section applies to any qualifying works or qualifying long term agreement, the relevant contributions of tenants are limited in accordance with subsection (6) or (7) (or both) unless the consultation requirements have been either— (a) complied with in relation to the works or agreement, or (b) dispensed with in relation to the works or agreement by (or on appeal from) the appropriate tribunal . (2) In this section “relevant contribution”, in relation to a tenant and any works or agreement, is the amount which he may be required under the terms of his lease to contribute (by the payment of service charges) to relevant costs incurred on carrying out the works or under the agreement. (3) This section applies to qualifying works if relevant costs incurred on carrying out the works exceed an appropriate amount. (4) The Secretary of State may by regulations provide that this section applies to a qualifying long term agreement— (a) if relevant costs incurred under the agreement exceed an appropriate amount, or (b) if relevant costs incurred under the agreement during a period prescribed by the regulations exceed an appropriate amount. (5) An appropriate amount is an amount set by regulations made by the Secretary of State; and the regulations may make provision for either or both of the following to be an appropriate amount— (a) an amount prescribed by, or determined in accordance with, the regulations, and (b) an amount which results in the relevant contribution of any one or more tenants being an amount prescribed by, or determined in accordance with, the regulations. (6) Where an appropriate amount is set by virtue of paragraph (a) of subsection (5), the amount of the relevant costs incurred on carrying out the works or under the agreement which may be taken into account in determining the relevant contributions of tenants is limited to the appropriate amount. (7) Where an appropriate amount is set by virtue of paragraph (b) of that subsection, the amount of the relevant contribution of the tenant, or each of the tenants, whose relevant contribution would otherwise exceed the amount prescribed by, or determined in

6 accordance with, the regulations is limited to the amount so prescribed or determined.

Section 20ZA

(1) Where an [NAME] 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.

(2) In section 20 and this section—

"qualifying works" means works on a building or any other premises.