Flat 48 Miller Court, Mayplace Road East, Bexleyheath, Kent DA7 6DJ LON/00AD/LSC/2021/0362
FIRST-TIER TRIBUNAL
PROPERTY CHAMBER (RESIDENTIAL PROPERTY)
Case No LON/00AD/LSC/2021/0362
Between
Mr Robert CooperApplicantHyde Housing Association LimitedRespondent
Before
Judge TagliaviniMr K Ridgeway MRICSIn person for the ApplicantVictoria Gray (Hyde Housing Group) Service charges – section 27A Landlord for the RespondentVenue 10 Alfred Place, London WC1E 7LRDate 9 March 2022Property: East, Bexleyheath, Kent DA7 6DJType of application: and Tenant Act 1985
DECISION
Covid-19 pandemic: description of hearing This has been a remote hearing on the papers which has not been objected to by the parties. The form of remote hearing was P:PAPERREMOTE. A face-to-face hearing was not held because all issues could be determined in a remote on paper. The documents that the Tribunal were referred to are in a bundle of 193 pages, the contents of which have been considered. The tribunal’s summary decision(1) The tribunal finds that the charges incurred in respect of the provision of a Scheme Officer for the service charge year 2020/2021 are reasonable and payable in the sum demanded of the applicant amounting to £608.24.(2) The tribunal declines to make an order under section 20C of the Landlord and Tenant and under paragraph 5A of Schedule 11 of the Commonhold and Leasehold Reform Act 2002. The application[1]This is an application made section 27A of the Landlord and Tenant Act 1985 (‘the 1985 Act’) seeking the tribunal’s determination as to the reasonable of costs incurred for the provision of a Caretaker (Scheme Officer) in the service charge year 2020/2021 of which the applicant has been required to pay his proportion in the sum of £608.24. Background[2]The applicant is the long lessee of premises situate at Flat 48 Miller Court, Mayplace Road East, Bexleyheath, Kent DA7 6DJ (‘the premises’) under a lease dated 14 February 1986 made between Wimpey Homes Holding Limited and Sidney Hazel, granting a term of 99 years with effect from 25 December 1984.[3]The premises are part of a sheltered housing scheme at Miller Court for persons aged over 55 years old for which the services of a Scheme Officer are provided. The applicant’s case[4]The applicant asserts that the respondent has failed in its ‘duty of care’ by allowing or instructing the Scheme Officer to work part time from home with reduced attendance at the premises during the period 29/03/2020 to 03/08/2020 and 04/01/2021 to 16/04/2021. As a consequence, the cost of the reduced service provided under the heading as ‘Caretaking and Other Staff Costs’ during these periods should be reduced by 55%, as the lease requires the respondent to provide a Scheme Officer to be onsite at the accommodation from Monday to Friday during the hours of 9am-5pm.[5]In support of the application, the applicant relied upon a Full Statement of Case (undated) together with a number of exhibits, in which it was stated ‘The scheme officer would need to be present at the scheme for the majority of her duties in her role profile and obligations in the lease.’ The respondent’s case[6]The respondent relied upon a Statement of Case dated 25 January 2022 and exhibits. The respondent denied that any reduction in the charges for the Scheme Officer was merited.[7]Under paragraph 1 of the Fifth Schedule of the lease the respondent covenanted (with exceptions) ‘To use its best endeavours to maintain at all times the services of a resident manager* for performing specified duties at Miller Court. On 27 April 2020 the parties entered into a Deed of Variation which removed reference to the Resident Manager’s flat and no longer required residence at the Miller Court complex. *The lease refers to a Resident Manager although is also referred to as the Scheme Officer.[8]The respondent asserted that the coming into force of the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 came into force on 26 March 2020, required the respondent to limit visits by the Scheme Officer to once a week with the rest of the duties being carried out on a ‘work for home’ basis. On 3 August 2020 the Scheme Officer returned to onsite working at Miller Court. Subsequently, attendance at Miller Court by the Scheme Officer was reduced from 5 October 2020 to attendance to carry out key tasks only with the remainder of the Scheme Officer’s duties being carried out on a ‘work from home’ basis.[9]The respondent asserted that the costs incurred in respect of the Scheme Officer were reasonably incurred as the duties required were at all times carried out, although the place of working had of necessity to vary, in order to accommodate the demand of the pandemic legislation and requirements. Further, the respondent asserted, that in any event the Scheme Officer was not required to provide ‘face to face’ contact and that all key tasks required were at all times carried out by the Scheme Officer and a number of lessees requested that the Scheme Officer did not attend on site to carry out a fire alarm test because of the risk of infections from COVID-19. The tribunal’s decision and reasons[10]The tribunal finds the costs of the Scheme Officer to be reasonable and payable in full for the service charge year 2020/2021.[11]The tribunal only has jurisdiction to determine if the services challenged have been reasonably provided at a reasonable cost. The tribunal finds that although the applicant has referred to several lessees having been affected by the absence of an on-site Scheme Officer, the application has been made in the name of Mr Cooper only and that there are no co-applicants. Therefore, the tribunal’s determination is in respect of the applicant only.[12]The tribunal finds that the applicant has failed to identify any ‘losses’ caused by the changed mode of service provided by the Scheme Officer during the pandemic[11]The tribunal finds that the provision of a Residential Manager is not an absolute requirement under the terms of the lease as the respondent is required to use only its best endeavours to provide such a service. Due the lease variation the requirement of residence as of April 2020 was removed and the tribunal finds that the respondent at all times and in the extraordinary circumstances of the pandemic, provided a reasonable service at a reasonable cost in respect of the provision of a Scheme Officer. Therefore, the application is dismissed.[13]The tribunal also refuses to make an order under section 20C of the Landlord and Tenant Act 2985 and paragraph 5A of Schedule 11 of the Commonhold Leasehold Reform Act 2002. Name: Judge Tagliavini Date: 9 March 2022 ANNEX - RIGHTS OF APPEAL Appealing against the tribunal’s decisions[1]A written application for permission must be made to the First-tier Tribunal at the Regional tribunal office which has been dealing with the case.[2]The application for permission to appeal must arrive at the Regional tribunal office within 28 days after the date this decision is sent to the parties.[3]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.[4]The application for permission to appeal must state the grounds of appeal and state the result the party making the application is seeking. All applications for permission to appeal will be considered on the papers[5]Any application to stay the effect of the decision must be made at the same time as the application for permission to appeal.