[2023] UKUT 152 (LC)

Section 20 of the Landlord and Tenant Act 1985, as substituted by the Commonhold and Leasehold Reform Act 2002, imposes a limit on the amount that leaseholders can be required to pay in respect of “qualifying works” or works done under a “qualifying long-term agreement” where requirements for consultation have not been complied with and the FTT has not given the landlord a dispensation from those consultation requirements.

The schedules to the Service Charges (Consultation Requirements) (England) Regulations 2003 set out the consultation requirements for the various kinds of works to which section 20 applies. The schedules specify the contents of the notices, and the extent to which a lessee who responds to a consultation notice is entitled to a further response from the lessor.

In her statement of case before the FTT Ms Yambasu complained that she was not given the notice until some 18 or 19 days after its date. She stated that she was entitled to be served with a notice “as laid down and in accordance with section 20 of the Landlord and Tenant Act 1985”. I read that as a statement that she was entitled to be consulted in accordance with the statute.

The FTT, at paragraph 18 of its decision, stated that the only point taken by Ms Yambasu was that she did not receive the notice until 17 July 2015. It accepted the evidence of the respondent’s witnesses and found that the notice was delivered by hand on 29 June 2015.

That decision said nothing about the content of the notice. The respondent in its grounds of opposition to the appeal, and Mr Evans in his skeleton argument, argued that the FTT was correct to say that the only challenge was to the date of service. I disagree; I take the view that Ms Yambasu in her grounds of appeal was saying that she had not been consulted as the statute required. However, both parties to the appeal produced a copy of the notice itself. It purports to be given under Schedule 3 to the 2003 regulations, being a consultation about major works to be carried out under a qualifying long-term agreement. It meets all the requirements of Schedule 3, which provides as follows:

There is no provision in Schedule 3 for the lessee to be able to nominate a contractor, because the work is to be done under an existing qualifying long-term agreement. Ms Yambasu did not make any observations under paragraph 1(2)(d).

Accordingly the consultation requirements were met. Insofar as there was a challenge to the content of the notice as well as to its date, that challenge was bound to fail. The appeal fails on this point and the FTT’s decision that the respondent had complied with the consultation requirements is affirmed.

At the hearing of the appeal Ms Yambasu said that what she meant in her statement of case was that there was no qualifying long-term agreement. She said she had asked the respondent for a copy of the agreement to which the notice referred, and she was given a copy of an agreement made in July 2015, which was therefore not in existence when the notice was given at the end of June. Moreover, she said that she had not been consulted before that agreement was made as section 20 of the 1985 Act requires.

That was an entirely new challenge; there was no hint of it in Ms Yambasu’s statement of case before the FTT, nor in her grounds of appeal to the Tribunal. It is therefore not a point she can now take on appeal. At my request, the respondent has helpfully written to the Tribunal since the hearing to provide details of the QLTA to which the notice referred, and has copied that to the appellant, for which I am grateful. The respondent was not obliged to provide that information to the Tribunal but I hope that it resolves the point for Ms Yambasu.