Tribunal Grants Urgent Works Dispensation Without Hearing

OUTCOME: Allowed

Case Reference : MAN/00EX/LDC/2023/0025

Property : [COMPANY], Blackburn [POSTCODE]

Applicant: [redacted]

: [APPELLANT]

Respondents : [redacted]

Type of Application : Landlord & Tenant Act 1985 – Section 20ZA

Tribunal Member : Judge L Bennett

Date of determination : 19 September 2023

Date of Decision : 19 September 2023

_______________________________________________

DECISION ____________________________________

FIRST - TIER TRIBUNAL [NAME] (RESIDENTIAL PROPERTY)

© CROWN COPYRIGHT 2023

Application

1. [APPELLANT] applies to the Tribunal under Section

20ZA of the Landlord and Tenant Act 1985 (the Act) for dispensation from

the consultation requirements of Section 20 of the Act and the Service

Charges (Consultation Requirements)(England) Regulations 2003 (SI

2003/1987) in respect of Qualifying Works at the property. The qualifying

works concern a Communicall Vi Warden Call System (CVWCS).

2. The Respondents are the [NAME] at the [COMPANY]

and listed at Annex A to this decision.

Grounds and Submissions

3. The application to the Tribunal was received on 30 March 2023.

4. The Applicant is the freeholder and landlord of the property. The

[RESPONDENT] ([RESPONDENT]) are the managing agent, acting

on behalf of the Applicant.

5. The Tribunal did not carry out an inspection but understands that [COMPANY] is a self-contained estate of bungalows constructed within the last 30

years. The buildings are arranged as semi-detached bungalows, in total

there are 11 blocks, each containing 2 bungalows. They are constructed

with pitched, tiled roofs and main walls of cavity type brickwork.

Fenestration consists of uPVC frame double glazed casement windows and

half glazed entrance doors set within a single storey porch. The properties

are served by tarmacadam car park spaces approached via a brick paviour

driveway and concrete block paved pathways.

6. On 13 July 2023, a Tribunal Legal Officer made directions requiring the

service of documents by the Applicant upon each of the Respondents. The

directions provided that in the absence of a request for a hearing the

application would be determined upon the parties’ written submissions.

7. The Applicant has provided a statement of case explaining why the

application was made to the Tribunal together with supporting

documents. It is summarised below.

8. On 22 December 2022, the Applicant was notified of the failures of the

[NAME] ([NAME]). Upon the notification, the Applicant appointed

a contractor, [APPELLANT], to investigate and provide their findings for a new

updated system. [NAME] confirmed that the current system in use was

obsolete as it no longer communicates using an old protocol.

9. On 26 January 2023, [NAME] provided its findings of a new system.

[NAME] offered to supply and install a Communicall Vi Warden Call

System. The cost of such installation and equipment being £12,174. As part

of the quotation, [NAME] allows for two MyAmie pendants per

dwelling.

10. [APPELLANT] for [NAME] are members of the [NAME]

(“[NAME]”), a not-for-profit procurement organisation. Its membership is

primarily composed of managers of social housing. [NAME] procure

collaborative framework agreements, which sees a competitive process and

an end outcome of a number of contractors becoming approved Supply

Partners.

The [NAME] has completed a tender exercise, which resulted in a Framework

Agreement with a number of supply partners for technology enabled care

services. Contractors had to bid for a number of services, such as

installation works and an ongoing services that were grouped into ‘Lots’.

Acceptance was based on a quality and price evaluations of contractor

submissions.

[APPELLANT] for [NAME] selected Lot 1 and 2 package of works and services, for

which there was a shortlist of contractors. [NAME] were consistently rated

highly across the rankings.

A named document Assited Living Framework Agreement. Such document

illustrate the key features and benefits of the Assisted Living Framework

Agreement, explains the procument process has been followed to establish

the Frameowrk Agreement and explains the [NAME] process for contracting.

[APPELLANT] for [NAME] have subsequently entered into an agreement with

[NAME]. The Agreement illustrate the degree of costs, supply of products

and services.

11. A Notice of Intention letter was issued to the [NAME] on 30 January

2023. The letter was adapted to demonstrate the proposed works.

[NAME] were also advised how their statutory rights would be

compromised and that an application for dispensation may be made to the

Tribunal. No observations were received.

12. In consideration of the mentioned particulars, the Applicant has intended

to act within a reasonable spectrum. The Applicant’s conduct

demonstrated a degree of avoidance of financial burden to the

[NAME]. The Applicant tested the market and is confident that the

pricing of such works by [NAME] is reasonable. For the reasons set out

above, it is averred that the [NAME] have not been prejudiced

by the lack of the consultation process and that it is reasonable to dispense

with the Consultation Requirements.

13. The Tribunal did not receive any submissions from [NAME]. Neither the Applicant nor a Respondent requested a hearing.

14. The Tribunal therefore convened without the parties to make its

determination on 19 September 2023.

Law

15. Section 18 of the Act defines “service charge” and “relevant costs”.

16. Section 19 of the Act limits the amount payable by the lessees to the extent

that the charges are reasonably incurred.

17. Section 20 of the Act states:- “Limitation of service charges: consultation requirements

Where this Section applies to any qualifying works…… the relevant contributions of tenants are limited……. Unless the consultation requirements have either:-

a. complied with in relation to the works or b. dispensed with in relation to the works by …… a tribunal. This Section applies to qualifying works, if relevant costs incurred on carrying out the works exceed an appropriate amount”.

18. “The appropriate amount” is defined by regulation 6 of The Service

Charges (Consultation Requirements) (England) Regulations 2003 (the

Regulations) as “……. an amount which results in the relevant contribution

of any tenant being more than £250.00.”

19. Section 20ZA(1) of the Act states:- "Where an application is made to a 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 Conclusions with Reasons

20. I have determined this matter following a consideration of the Applicant’s

case but without holding a hearing. Rule 31 of the Tribunal Procedure

(First-tier Tribunal) ([NAME]) Rules 2013 permits a case to be

dealt with in this manner provided that the parties give their consent (or

do not object when a paper determination is proposed). In this case, the

Applicant has given its consent and the Tribunal has not heard from a

Respondent in response to the application. Moreover, having reviewed the

case papers, I am satisfied that this matter is indeed suitable to be

determined without a hearing. Determining this matter does not require

me to decide disputed questions of fact.

21. It is not necessary to consider at this stage the extent of any service charges

that may result from the works payable under the terms of the

Respondents’ leases. If and when such is demanded, and if disputed, it

may properly be the subject of a future application to the Tribunal.

22. Having considered the submission made by the Applicant I accept the

urgent nature of the works. For the health and safety of all residents, a

decision was taken to act swiftly after being notified of the failures of the

[NAME] ([NAME]). Although the works have yet to be started, the

Applicant has notified [NAME] about the proposed works, and also

notified [NAME] of the application to the Tribunal giving the reasons

why it believes the application is necessary.

23. In [COMPANY] v Benson [2013] UKSC 14 it was

determined that a Tribunal, when considering whether to grant

dispensation, should consider whether the tenants would be prejudiced by

any failure to comply with the Consultation Requirements. Balancing the

need for urgent action against dispensing with statutory requirements

devised to protect service charge paying [NAME], I conclude that the

urgency outweighs any potential prejudice. Dispensation from

consultation requirements does not imply that any resulting service charge

is reasonable.

Order

24. The Applicant is dispensed from complying with the consultation

requirements in respect of the works specified in the application.

Judge L Bennett 19 September 2023

Annex A – List of Respondents

1. Mr [NAME] 2. [NAME] [NAME] 3. [NAME] [NAME] 4. [NAME] [NAME] 5. Mrs [NAME] 6. [NAME] [NAME] 7. [NAME] [NAME] 8. [NAME] [NAME] 9. [NAME] [NAME] 10. Mr [NAME] 11. [NAME] [NAME] 12. Mr [NAME] 13. Mrs [NAME] 14. [NAME] [NAME] 15. The Late of the Estate Mrs [NAME] 16. Mr [NAME] 17. Ms [NAME] 18. Mr [NAME] 19. [NAME] [NAME] 20. [NAME] [NAME] 21. Mr [NAME] 22. Mrs [NAME]