[2024] UKUT 80 (LC)

The first ground of appeal relied upon section 27A(4), that Mr Atherden had agreed to pay his share of the £3,880 for the stairwell, by an email from Mr Bingham to the leaseholders on 10 May 2021 which said:

“DCP Decorating will start work on the staircase tomorrow morning, using my first-floor flat as a base.

The cost, assuming no extras and the discovery of nothing unexpected, will be £3,980 (no VAT applicable). At Sven’s request, Trade Diamond Paint will be used on the walls.”

to which Mr Atherden replied on the same day:

“Thank you David, I am really pleased to hear that the decorating is starting tomorrow.

In relation to the paint, you clarified Trade Diamond will be used on the walls, (resulting in an increased cost of £280) I presume you meant all surfaces including the woodwork as per my request?”

Both those emails were, as I understand it, in the bundle before the FTT. I am confident that that is the case because Mr Atherden was unhappy about the inclusion of some of the pages in the bundles on the basis that they were not before the FTT; I have therefore ignored those pages (42 – 44); he has not challenged the inclusion of this email chain on page 27-28 of the appeal bundle, repeated at 138-9.

So Mr Atherden was very pleased for the work to be done, and at his request the price was a little higher than it might have been because of the quality of the paint used.

Mr Atherden’s email of the 10 May 2021 did not in terms state that he was content with the overall price. But two things are perfectly clear: one is that he was content for the work to go ahead. The other is that when he made an application to the FTT he did not raise a challenge on the basis of consultation under section 20 of the 1985 Act. And I take it from his enthusiasm for the work to go ahead that the absence of formal consultation did not trouble him. There had already been considerable email discussion as to what work was needed and indeed Mr Atherden himself had originally proposed a more extensive programme costing £4,800 (his email of 14 January 2021).

Why the FTT introduced section 20 as an issue I do not know. Obviously when the FTT hears litigants in person it has to assist them, and such litigants will not often know the formal statutory basis of their case. Moreover, the FTT has to determine a great volume of service charge disputes; pragmatic decisions have to be made and for example it is sensible to give directions without a hearing. It is one thing to suggest to the parties in standard directions that consultation might be an issue; but without any indication from Mr Atherden following the directions that consultation actually was an issue for him, it is difficult to see any justification for deciding the application on the papers on a basis that Mr Atherden had not raised.

He had not raised it because, to put it informally, the absence of formal consultation as prescribed by section 20 and the regulations thereunder was not a problem for him; to put it formally it was “a matter” that he had agreed to for the purposes of section 27A(4). The decision that only £250 was payable because of the absence of consultation was therefore made without jurisdiction and is set aside.

I have to consider whether to substitute the Tribunal’s own decision on Mr Atherden’s application for a determination as to whether the service charge was payable.

As the FTT rightly found, the formal shortcomings in the information provided by the landlord did not make any difference to whether the service charge was payable. And there was no challenge to reasonableness. Mr Atherden stated simply on the Scott Schedule that it was not reasonable, but he said nothing else and that is not sufficient to put reasonableness in issue.

I therefore substitute the Tribunal’s decision that the service charge for Mr Atherden’s share of the £3,880 spent on the stairwell was payable.