Tribunal Grants Dispensation for Urgent Repairs Without Consultation

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : CAM/00MD/LDC/2024/0014 HMCTS code : P:PAPERREMOTE

Property : 52-100 (evens) [ADDRESS], [POSTCODE] Applicant: [redacted] Respondent : [redacted] Property Type of application : Dispensation from the consultation requirements as set out in Section 20ZA of the Landlord and Tenant Act 1985 Tribunal members : Mr [APPELLANT] [NAME] of Determination : 23 August 2024

DECISION

This has been a determination on the papers which the parties are taken to have consented to, as explained below. The form of determination was a paper hearing described above as P:PAPERREMOTE. A hearing was not held and all issues were determined on the papers. The Applicant submitted a bundle. The Tribunal has noted the contents and the decision is below.

2

Decision The Tribunal grants the application for retrospective dispensation from further statutory consultation in respect of the works as described below.

The Applicant shall be responsible for serving a copy of this Decision on all of [NAME].

In granting dispensation, the Tribunal makes no determination as to whether any service charge costs are reasonable or payable (section 27A of the Act). The Tribunal also makes no determination in respect of the liability for the cost of the works.

Reasons Background

1. The Applicant seeks a determination pursuant to section 20ZA of the Landlord and Tenant Act 1985 (the “Act”) for retrospective dispensation from the statutory requirement to consult in respect of qualifying works.

2. The Application was completed on 11 Mach 2024 by [APPELLANT] on behalf of the Applicant. This Decision therefore relates to that Application.

3. The work has been completed.

4. No representations have been received from any of [NAME].

5. Before making this determination, the papers received by the Tribunal were examined to determine whether the issues remained capable of determination without an oral hearing and it was decided that they were, given the lack of any challenge.

6. The only issue for determination is whether it is reasonable for the Tribunal to dispense with the statutory consultation requirements.

7. The Tribunal has not considered whether the service charge costs will be reasonable or payable, nor by whom they will be payable.

The Law 8. Section 20 ZA (1) of the Act states:

3 “Where an application 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.” 9. In having regard to the question of reasonableness, the Tribunal has considered the extent to which [NAME] would be prejudiced in dispensing of the requirements.

10. The Supreme Court provided guidance to the Tribunal in the application of section 20 AA (1) of the Act in case of [COMPANY] v [NAME] and others [2013] UKSC 14 (the “Daejan case”). The principles can be summarised as follows:

1. The main question for the Tribunal when considering how to exercise its jurisdiction in accordance with section 20ZA is whether there is real prejudice to the tenants flowing from the landlord’s breach of the consultation requirements.

2. The financial consequence to the landlord of not granting a dispensation is not a relevant factor. The nature of the landlord is not a relevant factor.

3. Dispensation should not be refused solely because the landlord seriously breached, or departed from, the consultation requirements.

4. The Tribunal has power to grant a dispensation as it thinks fit, provided that any terms are appropriate.

5. The Tribunal has power to impose a condition that the landlord pays the tenants’ reasonable costs (including surveyor and/or legal fees) incurred in connection with the landlord’s application under section 20ZA (1).

6. The legal burden of proof in relation to dispensation applications is on the landlord. The factual burden of identifying any “relevant” prejudice that they would or might have suffered is on the tenants.

7. The court considered that “relevant” prejudice should be given a narrow definition; it means whether noncompliance with the consultation requirements has led the landlord to incur costs in an unreasonable amount or to incur them in the provision of services, or in the carrying out of works, which fell below a reasonable standard, in other words whether the non- compliance has in that sense caused prejudice to the tenant.

8. The more serious and/or deliberate the landlord's failure, the more readily a Tribunal would be likely to accept that the tenants had suffered prejudice.

4 9. Once the tenants had shown a credible case for prejudice, the Tribunal should look to the landlord to rebut it.

11. The Tribunal has therefore applied the statutory provisions in accordance with the approach taken in the [APPELLANT] case. Representations – The Applicant 12. The Applicant’s description of the qualifying works is: “In November 2022, the party herein referred to as the “Applicant” was notified of a drainage obstruction at premises numbered 54 and 56. The Applicant engaged the services of a contractor, [APPELLANT], who possessed prior knowledge of the site. Given the urgency of the situation, it was deemed appropriate to proceed with this contractor.

JLB conducted a survey of the drainage system to ascertain the cause and location of the obstruction. The inspection revealed a collapsed section of the drain approximately 7 meters upstream. The proposed remedial works involved the removal of a bath and toilet pan to facilitate excavation and expose the damaged pipe. JLB subsequently installed new pipework and restored the surface to its original condition, including the reinstallation of the bath and toilet.

The total cost of these works inclusive of VAT, amounted to £11,814.

The Applicant acknowledges the principles of financial prejudice and the need to consider protection for the leaseholders. Despite these considerations, the Applicant deemed it acceptable to proceed with the works as soon as possible based on a single quote, due to JLB’s experience and credibility”

13. The Applicant confirmed that no consultation with the Tenants has been carried out.

14. The Applicant explained that they seek dispensation as, inter alia: “The works were necessary and urgent as recommended by the contractor, [NAME].” 15. The Applicant provided a quote from [NAME] dated 23 December 2022.

16. The Applicant did not explain why, having received this quote in December 2022 and completed the works in March 2023, the application for dispensation was not made until 11 March 2024.

17. The Applicant submitted a Statement of Case which provided further background information to the request for dispensation for which the Tribunal is grateful.

5 [NAME]

18. The Tribunal has not received any representations from [NAME]. Determination 19. As set out above, the Tribunal may grant dispensation “…if satisfied that it is reasonable to dispense with the requirements”.

20. In making its decision the Tribunal has regard to the extent to which any real prejudice has arisen to [NAME] as a result of the Applicant breaching the consultation requirements.

21. No objections or representations have been received by the Tribunal from [NAME]. In this regard, [NAME] have received the Tribunal Directions and are therefore considered to have been given ample opportunity to submit representations should they have so wished.

22. The Tribunal therefore considers that it has not seen any evidence of prejudice arising to [NAME]. Furthermore, it is apparent from the submissions that the required works were necessary and further delay in their implementation would have been prejudicial to the continued safety of the Leaseholders.

23. The Tribunal consequently grants dispensation from the remaining consultation requirements of section 20 of the Landlord and Tenant Act 1985.

24. In granting dispensation, the Tribunal makes no determination in respect as to whether any of the service charge costs are reasonable or payable.

25. The Applicant shall comply with the requirements as set out under the section headed “Decision” above.

Name: [NAME] [NAME]: 23 August 2024

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 application for permission must be made to the First-tier Tribunal at the regional office which has been dealing with the case.

6 The application for permission to appeal must arrive at the regional office within 28 days after the tribunal sends written reasons for the decision to the person making the application. If the application is not made within the 28-day time limit, such application 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 application for permission to appeal to proceed, despite not being within the time limit. The application 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 application is seeking. If the tribunal refuses to grant permission to appeal, a further application for permission may be made to the Upper Tribunal (Lands Chamber).