[2023] UKUT 174 (LC)

The various responses submitted to the FTT by the leaseholders in response to the application reveal entirely understandable concerns; the leaseholders were troubled by the delay between the risk assessment carried out in 2020 and the next one a year later; they were very unhappy about the installation of the waking watch, when battery operated alarms would have been cheaper; they did not accept that a waking watch was the safest option; they were very unhappy that a waking watch had been set up without consultation and then relied upon as justifying the application for a dispensation.

The FTT said this:

“23.

It is obviously the correct thing to do for a landlord to seek to upgrade the fire safety of buildings. … Obviously if works are urgent it is not feasible to go through the consultation process in full. In the present case the consultation was started but not completed. The Applicants decided unilaterally to appoint a waking watch at considerable expense to the leaseholders. The tribunal is concerned that this decision was made unilaterally and without considering potential alternative options. The waking watch was in place for a period of three months at a cost of 10,000 pounds a week. The alternative measure of battery operated alarms would patently have been a lot cheaper.

24.

Waking Watch has been the “go to” solution for many landlords concerned about the immediate risk of fire. Usually this is in buildings similar to Grenfell Tower where the risk of fire is caused by inappropriate and dangerous cladding. This was not the case here. The blocks in the scheme are of varying sizes. None of them were the height of Grenfell Tower or other larger social housing blocks. The issue was compartmentation rather than cladding. This should have been evident as an issue much earlier. The Respondents were advised to investigate it within 3 months and did not do so. Indeed, the identification of service access as a means of spread of fire is not a new concept and arguably the Respondents should have investigated the issue much earlier. If the investigation works had been carried out within the three months as advised the remainder of the year could have been used to carry out a proper consultation exercise. If the resultant report had recommended a Waking Watch then a short consultation on this issue would have been appropriate. …

25.

[Counsel for the landlord] was anxious to distinguish the waking watch from the rest of the works but they were part and parcel of the works to deal with the potential fire risk. The cost of waking watch does constitute a significant financial prejudice to the leaseholders. If matters had been properly dealt with by the Applicants they would have carried out some consultation in relation to the use of waking watch. This is not a case in which the leaseholders could be criticised for failing to put up cheaper suppliers of waking watch because in this case it was questionable whether a waking watch was required at all when there were much cheaper alternatives.

26.

Accordingly whilst recognising that the fire safety works had to be carried out notwithstanding the failure to properly consult the Tribunal considers that the dispensation must be made conditional on the waking watch scheme being funded by the Applicants and not through the service charge and on the costs of the current proceedings not being recovered from the service charges.”

So the appellant got its dispensation but on two conditions, and it appeals the imposition of those conditions. I discuss them in turn.