5-8 Frognal Mansions, 97 Frognal, London NW3 6XT LON/00AG/LDC/2025/0767
DECISION
Description of hearing This was a face-to-face hearing. Decision of the tribunal The tribunal dispenses unconditionally with those of the consultation requirements not already complied with in respect of the qualifying works which are the subject of this application. The application[1]The Applicant seeks dispensation under section 20ZA of the Landlord and Tenant Act 1985 (“the 1985 Act”) from full compliance with the consultation requirements imposed on the landlord by section 20 of the 1985 Act in relation to certain qualifying works.[2]The qualifying works which are the subject of this application comprise the carrying out of brickwork and gutter repair works. Applicant’s case[3]The Applicant states that in August 2023 spalling brickwork falling from the top of the building to the building entrance area and that this was affecting the adjoining building as well as the Property itself.[4]The extent of the damage was not known until the Property was inspected by the appointed contractor, and that inspection required scaffolding as both the damage and the cause were at a high level. That scaffolding also needed to be netted in order to protect residents.[5]The contractor was a specialist contractor as the Property is in a conservation area. The Applicant’s search for a suitable contractor concentrated on specialists accredited in the Building Conservation Directory. The Applicant states that it was no longer possible to source matching bricks in accordance with the requirements of the Conservation Area and therefore the affected bricks had to be removed and ‘turned’, which further restricted the choice and availability of the right sort of specialist contractor.[6]The total cost of the brickwork and gutter repair works, including scaffolding, was £11,694 spread between the Respondents.[7]The Applicant notified the Respondents about falling masonry and the need to erect (netted) scaffolding on 21 August 2023. It then emailed the Respondents again on 30 August 2023, emailed them on 21 September 2023 to request agreement to the waiving of the section 20 consultation requirements, chased responses on 3 October 2023 and then decided on 6 October 2023 to proceed with the works despite not having carried out a full consultation.[8]The Applicant’s email of 30 August 2023 set out some details as to what had happened (falling brick flakes) and why. It explained the reasons for erecting scaffolding and the need to use a specialist contractor and then stated that two firms had been invited to quote for the work. Its email of 6 October 2023 stated that full agreement to waive the section 20 consultation requirements had not been achieved but that the directors had decided to proceed with the works anyway because waiting for full consultation to expire would involve waiting until December and at that point it might not be possible to carry out the works because of the weather. Also, the brickwork would deteriorate further the longer it was left, and scaffolding costs would increase. The 6 October email also attached the two quotes and explained why the directors favoured the contractor (London Brick Restoration Specialists) that they then went on to appoint.[9]In summarising the basis of its application for dispensation the Applicant (via its managing agent) adds that when it started its investigations into possible solutions to the brickwork problem few qualified brickwork repair specialist contractors were available to quote, as heavy rainfall had increased the demand for their services. Most were not available until well into 2024. Two qualified contractors visited in early to mid September 2023 and offered to provide quotes. Quotes were received by 22 September. Both quotes were over the section 20 limit, and full consultation would have taken 60 days. The Applicant had to take into account the upcoming holiday period and limited contractor availability, with one of the contractors unable to confirm later availability.[10]In the Applicant’s submission the failure to consult fully did not cause any financial disadvantage to the Respondents as(a) delaying works into the winter could have worsened the problem and thereby increased costs,(b) two quotes from specialist contractors were obtained,(c) all leaseholders were invited to have input,(d) no recommendations of alternative contractors were received,(e) the better value of the two quotes was selected,(f) scaffolding was erected by a contractor who was already dealing with preliminary work in respect of an insurance claim and could therefore offer good terms and a fast service,(g) extending the timescale through carrying out a full consultation could have led to the netted scaffolding needed to protect residents being up for longer thereby increasing costs Responses from the Respondents[11]The application has been objected to by the leaseholder of Flat 6A, Elena Samsonenko (previously known as Elena Carver). Below is a brief summary of her main written arguments, excluding those arguments which relate more to the issue of reasonableness of the charges (which is not the subject matter of this application) or which are not clear to the tribunal.[12]Ms Samsonenko states that her own photographs taken in May 2023 show debris and staining at the front entrance. During the period 16–19 July 2023 she reported falling pieces of bricks, one narrowly missing her. The Applicant initially asserted that there were “no falling bricks”, yet by 21 August a building–wide email announced that a scaffold would be erected. No Stage 1 Notice was issued, and no disclosed scope, specification or options appraisal was shared showing why full-height netted scaffold was necessary from the outset or economically justified.[13]Ms Samsonenko adds that the Applicant relied on comments from a structural engineer who happened to be on site for an unrelated issue and who expressly said the façade/brick conservation method was not his expertise. The Applicant suggested that gutters were driving ingress, and Ms Samsonenko asks(a) why then was a façade wide full-height scaffold chosen at the start rather than targeted access and(b) why was the scaffold extended instead of addressing the gutters promptly. She suggests that the sequence indicates poor planning, not an unavoidable emergency.[14]Ms Samsonenko states that had the Applicant acted quicker there would have been plenty of time for a full consultation. She also states that the Applicant should have used abseiling rather than full scaffolding and asserts that no expert states that abseiling is unsuitable for this type of heritage façade. She notes that the Applicant states that leaseholders were invited to put companies forward to quote but objects that no scope/specification was provided despite repeated requests.[15]Ms Samsonenko goes on to state that on 6 October 2023 the quotes were circulated with a decision to proceed without consultation. Works did not, though, start until 5 December and there was therefore a window of some ten weeks in which the statutory process could have been run if urgency truly permitted no delay.[16]In addition, Ms Samsonenko expresses disagreement with various technical points made by the Applicant. The hearing[17]At the hearing Ms Greenaway for the Applicant said that Ms Samsonenko had bought her flat on 9 May 2023. There were limited service charge funds at that time as there had been a sharp rise in the building insurance premium and as one of the leaseholders had died and therefore no service charges were being received in respect of that flat. There had been a sinking fund but it had been spent on fire safety, electricity safety and the roof.[18]Ms Greenaway said that bricks started flaking in July 2023 and that the problem then worsened by August. There were contractors on site who were dealing with an insurance claim and they were asked to provide netted scaffolding to ensure the safety of residents. The Property is in a conservation area and therefore special brickwork was needed. The Applicant researched specialist contractors, and out of the eight specialist contractors that it approached only two were prepared to quote as the others were too busy with existing work. Of the two who were prepared to quote, one (who was also the Applicant’s preferred contractor) could start in October but this would not leave sufficient time for a full section 20 consultation. Leaseholders were therefore asked whether they would be prepared to waive the right to full consultation; seven leaseholders said yes, one said that he needed more information but then did not object to waiving the right to full consultation and only one (Ms Samsonenko) objected to the absence of full consultation.[19]Ms Greenaway added that the Applicant did not want to delay the works until winter as there was a good chance that the weather would be bad. Nevertheless, because Ms Samsonenko and one other leaseholder had asked for more information the Applicant decided not to book the contractor for October and instead did its best to deal with the requests for more information. On making further enquiries with the preferred contractor the Applicant was told that the contractor was prepared to fit the work into its next available slot in December but only if the Applicant made a firm booking. Concerned at what would happen if it missed the December slot the Applicant decided to go ahead and book the contractor even though it remained the case that it would not be able to go through the full consultation process.[20]Ms Samsonenko reiterated, as per her written case, that she had raised the problem of flaking bricks in July 2023 and had received no response to emails dated 19 and 28 July 2023 raising this issue. She did not accept that scaffolding was needed to look into the issue; someone could just have stuck their head out of the window to ascertain the position. Ms Samsonenko also said that the Applicant was unable to produce written evidence of advice that specialist bricks were needed and that the failure to go through a full consultation meant that leaseholders were deprived of information. There was also no written evidence that the contractor needed to be booked so early, and Ms Samsonenko also objected that the two quotes received were not comparable. In addition, in her view the works were carried out in a sub-standard manner.[21]Ms Samsonenko said that she was seeking a refusal of dispensation. Failing that, she was prepared to agree to the commissioning of a jointly appointed expert funded by the Applicant to propose a solution to what she believed had gone wrong in relation to these works and/or their cost. This could involve re-tendering for further works and a reassessment as to how much leaseholders should pay.[22]In response, Ms Greenaway said that both contractors who were prepared to quote had said that scaffolding was needed to inspect the gutters and to check generally what the problem was and what the solution was. A cherry picker was not feasible because of the steep slope, and abseiling was not practical because of the nature of the front roof space. The relevant legal provisions[23]Under Section 20(1) of the 1985 Act, in relation to any qualifying works “the relevant contributions of tenants are limited … unless the consultation requirements have been either(a) complied with … or(b) dispensed with … by … the appropriate tribunal”.[24]Under Section 20ZA(1) of the 1985 Act “where an application is made to the appropriate 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 analysis[25]It is clear from the hearing bundle that leaseholders were invited to suggest alternative contractors. We note that Ms Samsonenko feels that she was not given sufficient information to enable her to source alternative contractors, although it is also the case that ultimately none of the other leaseholders objected.[26]In our view there were two distinct stages to the process as the original decision to put up netted scaffolding was a stand-alone decision unconnected with the later decision to appoint a specific contractor to carry out the works. At the point at which the decision to put up netted scaffolding was made it was, in our view, a reasonable decision taken in order to protect residents from falling brickwork. Ms Samsonenko objects that the Applicant did not pay attention to her July emails and therefore did not start to deal with the matter as early as they should, but even if she is correct on this point it remains the case that having identified the danger to residents it was right – or at least justifiable – for the Applicant to take speedy measures to protect residents by putting up netted scaffolding rather than going through a full consultation process before doing so.[27]The second stage is more complicated. Whilst full consultation did not take place, arguably the Applicant was in a difficult position. Its own narrative is that most suitable contractors were unavailable, leaving just two suitable contractors who were available to quote and to carry out the works. It was in our view reasonable at this stage to be concerned about whether the works could be done before the winter arrived in circumstances where the was also a risk to residents of falling brickwork, a risk which might get considerably worse, and there was also the cost of months of netted scaffolding to consider if the remedial works were considerably delayed by a full consultation coupled with the apparent difficulty of pinning down a suitable contractor to carry out the works.[28]The Applicant, according to its narrative, decided to give up the October date for starting the works in order to provide more information to the two leaseholders who were seeking more information. This then placed the Applicant in an even more difficult position as, again according to its narrative, there was only one suitable contractor who it knew could do the work and even that contractor could only do it in December and only if booked in October (thereby leaving no time for full consultation). The Applicant was therefore, it seems, left in the unenviable position of either not carrying out the full consultation process or not knowing when these urgent works could be carried out.[29]Furthermore, the Applicant is a leaseholder owned company with no funds of its own and no ground rent coming in. It is therefore wholly reliant on the service charges, and for a combination of reasons funds were at a very low level when these decisions were being made. This provides at least some context for the way in which decisions were made.[30]Ms Samsonenko has raised some arguable points. There is some evidence that the Applicant did not respond to her initial emails and that the Applicant could have begun the whole process slightly earlier. She also states that the Applicant did not provide her with the extra information requested by her after being invited to nominate alternative contractors. In addition, having looked at the two quotes obtained we accept that there is some basis for stating that it is not easy to compare them.[31]However, in relation to Ms Samsonenko’s assertion that the roof and gutters could be checked simply by sticking one’s head out of a window, we do not accept this and Ms Samsonenko has no professional qualifications or experience to support such an assertion. Ms Samsonenko has also, amongst other things, asserted that abseiling would have been more suitable than scaffolding, that specialist bricks were not needed and that a specialist contractor was not needed, but again she has no relevant property qualifications and nor has she produced any expert evidence in support of her position.[32]Whilst this is not a straightforward case, on the basis of the information before us we consider that it is right to grant dispensation. For the reasons already given, we consider that it was reasonable to put up netted scaffolding when the Applicant did in order to protect residents. As regards the second stage, whilst the Applicant could and probably should have provided Ms Samsonenko with better information, on the basis of the evidence before us we consider that the Applicant was justified in selecting London Brick Restoration Specialists to carry out the works in December 2023 without going through a full consultation process as the Applicant had very limited options. If it had gone through a full consultation process it would have risked long delays in securing a suitable contractor which in turn could have led to the situation becoming more dangerous and more expensive to fix whilst also risking significant extra expenditure on scaffolding. In the context of the Applicant’s very low funds this in turn meant that there was a potential risk that the Applicant company could become insolvent or at least reliant on individual leaseholders being able and willing to make a cash injection to keep it afloat.[33]As for Ms Samsonenko’s alternative position in relation to conditional dispensation, in our view her demands are unreasonable and unrealistic. Those demands are uncosted, and in the context of a freehold company with such limited resources it is unreasonable to expect it to fund an unquantified cost which it has not been demonstrated would necessarily benefit leaseholders or be a proportionate way of dealing with whatever prejudice may have been suffered. If, for example, Ms Samsonenko had obtained an expert report to assist her in this case then a reasonable condition for granting dispensation might have been for the Applicant to reimburse the cost of that report, but we do not accept that the actual conditions sought by Ms Samsonenko are reasonable.[34]In all the circumstances and in the absence of any plausible alternative conditions we have reached the conclusion that unconditional dispensation should be granted. It should, though, be noted that this determination is confined to the issue of consultation and does not constitute a decision on the reasonableness of the cost of the works. Costs[35]There have been no cost applications. Name: Judge P Korn Date: 5 November 2025 RIGHTS OF APPEALa. A. If a party wishes to appeal this decision to the Upper Tribunal (Lands Chamber) a written application for permission must be made to the First-tier Tribunal at the regional office dealing with the case.b. B. 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.c. C. If the application is not made within the 28 day time limit, such application must include a request for extension of time and the reason for not complying with the 28 day time limit; the Tribunal will then look at such reason and decide whether to allow the application for permission to appeal to proceed despite not being within the time limit.d. D. 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.