[2023] UKUT 271 (LC)

The Dispensation Application was dealt with by the FTT by way of paper determination. As I have said, the Original Decision is dated 20^th December 2021. For the reasons set out in the Original Decision, the FTT decided to allow the Dispensation Application and to grant a dispensation with the consultation requirements in relation to the Works.

The reasons for the decision of the FTT to dispense with the consultation requirements are set out in paragraphs 11-15 of the Original Decision. It is convenient to quote these paragraphs in full:

“11.

The Tribunal will allow the application for dispensation in this case. It is clear that the building is presently unsafe in terms of fire risk. The public's attention is focused on this worrying issue at present. It is also clear that the building may not have been built to satisfactory standards at the outset. This situation has to be rectified. It is simply not an option to delay works to unsafe premises.

12.

The Tribunal accepts that the Applicants have sought to tender the works widely. The Tribunal also accepts that the Applicants have to a limited degree at least sought to keep the leaseholders up-to-date as to the proposed works.

13.

The focus on any dispensation application has to be on prejudice suffered by leaseholders as a result of the failure to consult. Here it is impossible to identify any prejudice suffered by the leaseholders because no comparative estimates (even on a global level) have been provided by the leaseholders. If such estimates had been provided the Tribunal would be able to assess the value of potential prejudice suffered. It seems likely that had the leaseholders sought to obtain alternative estimates they would have suffered the same problems as the Applicants in trying to get quotes for this sort of work. The question of fire safety in large buildings is very much a live issue. Companies that provide re-cladding services are likely to be overwhelmed with enquiries considering the number of buildings affected across the country.

14.

Whilst it would have been preferable that the Applicants had carried out a full consultation process there is no real evidential indication that this would have made any difference. The tender analysis report is detailed. This is not a case in which the Applicants are seeking to avoid their responsibilities in relation to the leaseholders. Far from it they are seeking to ensure that an unsafe building is made safe as quickly as possible.

15.

If funding is given by the government for the works this is plainly to the advantage of the leaseholders and any obstacle put in front of the application e.g. a delay in works within a timescale imposed by the government will itself cause prejudice to the leaseholders.”

The FTT concluded the Original Decision, at paragraph 16, in the following terms:

“16.

Accordingly, the Tribunal has no hesitation in confirming that dispensation should be given unconditionally in this case. The Tribunal does however consider that the Applicants should be precluded from pursuing any costs in relation to this application from the leaseholders themselves. It is considered that they would be unlikely to do this however the Tribunal makes such a determination pursuant to section 20C of the Landlord and Tenant Act 1985.”

As can be seen, the FTT decided, in addition to their decision to make an unconditional grant of dispensation, that an order should be made, pursuant to Section 20C of the 1985 Act, preventing the Appellant from recovering the Costs from the Respondent by the Service Charge. This is the order which I am referring to as the Section 20C Order. As I understand the position, and as matters stood at the date of the Original Decision, no application to the FTT had been made for such an order by any of the Respondents.