Tribunal Grants Dispensation for Urgent Water Ingress Repairs

OUTCOME: Allowed

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FIRST-TIER TRIBUNAL PROPERTY CHAMBER (RESIDENTIAL PROPERTY) Case reference : LON/00AW/LDC/2020/0247 HMCTS Code : P:Paper remote Property : 91 [ADDRESS], [POSTCODE] Applicant : [redacted] : [COMPANY] Respondents : [redacted] [NAME] : In person Type of [NAME] :

For dispensation under section 20ZA of the Landlord & Tenant Act 1985

Tribunal member :

Tribunal Judge I [NAME] [NAME] of determination : 22 March 2021 Date of decision :

22 March 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 dispensation from the consultation requirements imposed by section 20 of the Act.

2. 91 [ADDRESS], [POSTCODE] (“the property”) is a 5 story Victorian building that has been converted into 4 leasehold flats. 3. On or about October 2020 the Applicant became aware of water ingress

into Flat 4. Following an inspection on 5 October 2020 it was

discovered that there were 3 leaks resulting in water ingress into the

flat. The causes of the leaks were described in the inspection report as

“the lead detail around the rear dormer roof was inadequate. When

the roof pools with water, the water is rising under the lead detail and

ingressing into the roof structure causing large leaks across internal

beam. The lead around the rear skylight is not fixed, causing

lifting of the lead when high winds causing water ingress around

skylight frame. The front elevation box gutters are blocked and also,

other leaks are visible within the flat 4, however access to these box

gutters is only available via scaffold (inspection was not possible).

Front elevation windows, there is water ingress around box frames

caused by poor decorative state of windows and no sealant visible

around frames. We also identified pointing missing around chimney

and parapet wall, which may be contributing to leaks.”

4. The Applicant proposed to carry out the following remedial works at an estimated cost of £5,424 in December 2020 prior to shut down of construction sector ahead of festive period:

To inspect box gutters and carry out works on the main roof.

Carry out lead works on dormer roof and around skylight.

Carry out pointing works to chimney and parapet wall.

Install mastic around windows to prevent water ingress around box

frames.

5. On 8 December 2020, the Applicant served a Notice of Intention of the [NAME] and indicated to them that it was going to make an [NAME] to the Tribunal for dispensation given the urgent nature of the proposed works.

6. Subsequently, the Applicant made this [NAME] seeking dispensation from the requirement to carry statutory consultation in relation to the

3 urgent works. The works to prevent any further water ingress were completed following the [NAME] being lodged.

7. The reason for the urgency in the proposed works was for the benefit of the leaseholder of the top floor flat and that of the wider building to prevent further water ingress penetrating into any subsequent properties and to diminish potentially larger repair costs if consultation was carried out.

8. In addition, recent occurrences of rainfall during increase of Autumnal

inclement weather have progressively worsened the situation for the

directly affected leaseholder for whom it is their primary residence for

their children and with current restrictions working from home due

to COVID19. Water ingress is severely affecting the mental wellbeing of

the [NAME] children and should it be allowed to continue will lead

to potential respiratory issues with black spot mould beginning to show

signs of growth.

9. On 11 January 2021, the Tribunal issued Directions and directed the lessees 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.

10. None of the Respondents have objected to the [NAME].

Relevant Law

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

Decision

12. The determination of the [NAME] took place on 22 March 2021 without an oral hearing. It was based solely on the statements of case and other documentary evidence filed by the Applicant.

13. 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.

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

15. The Tribunal granted the [NAME] the following reasons:

4 (a) the Tribunal was satisfied that the water ingress into Flat 4 was significant and posed a health and safety hazard to the occupiers and were, therefore urgent in nature. This was confirmed in the inspection report dated 5 October 2020 prepared by [COMPANY].

(b) the Tribunal was satisfied that the Respondents were informed of the leak and water ingress in a timely manner and the need to carry out 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 occupants of Flat 4 would be prejudiced and, potentially, the cost of the remedial work could have increased.

(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 and they have done so by [NAME] the parallel service charge [NAME] under section 27A of the Act. It is in that [NAME] that any arguments in relation to historic neglect may be pursued by the Respondents.

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

17. 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]: 22 March 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.

5 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).

6 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

7 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.