[2025] UKUT 133 (LC)

The FTT set out the background to Mr Ortet’s application as follows:

“1.

The Applicant in this case is the leaseholder of premises at 7 The Officers Mess, Orchard Lane, Caversfield Bicester, OX278AH (“The premises”). The freeholders are Adriatic Land 7 Limited and the managing agents are The Garden Quarter (Caversfield) Management Co Ltd (“The Respondents”). …

2.

In the application the Applicant challenged a demand for major works relating to external decoration which principally involve the painting of window frames. The cost of the work was £3,392.16. The work was carried out in 2023 and attempted remedial works were carried out recently. At the first hearing on 15^th February 2024 the Tribunal were told that contractors were to carry out works remedying perceived defects. At the hearing on 10^th May 2024 the Tribunal received a report about the quality of these works.

3.

The Applicant challenged the consultation process and the quality of the major works.”

From the material in the appeal bundle and the parties’ explanations at the hearing I can fill in the background as follows.

The Officers Mess is a small part of the estate, being a block of four leasehold flats; Mr Ortet holds a 175-year lease of number 7, granted in 2012, which makes provision for payment of a service charge in the usual way. There has been no dispute in the proceedings about the terms of the lease. Although the appellant is a party to the lease as the management company, it employs Encore Estate Management Limited to manage the estate; in February 2023 Encore Estate wrote to the four leaseholders on behalf of the appellant explaining that the exterior of the building was going to be redecorated, and that a consultation was going to be conducted pursuant to section 20C of the Landlord and Tenant Act 1985. On 3 March 2023 Encore sent a service charge demand for £3,392.16, being Mr Ortet’s one-quarter share of the estimated cost of the work, which was £13,568.62. The charge was payable on 1 April 2023.

On 28 April 2023 Mr Ortet made an application to the First-tier Tribunal seeking a determination as to whether the charge was payable; the issues he raised in his application were about the consultation process, which he said had not been properly conducted, and about the necessity for the works. The work began in May 2023 and was finished in July 2023. It was not until October 2023 that Mr Ortet’s application was served on the appellant together with the FTT’s directions.

The FTT inspected the building in February 2024 and conducted a hearing, but adjourned the proceedings to a further hearing in May 2024. At that hearing the issues appear to have been whether the consultation had been properly conducted (the FTT decided that it had, and whilst Mr Ortet disagrees he does not have permission to appeal on that point) and whether the charge of £3,392.16 was a reasonable charge in view of the quality of the work done. The FTT’s decision on the latter point was as follows:

“11.

The Tribunal’s impression was that the works were of poor quality. Sealant had not been replaced, there were drip marks and windows were painted shut. These are all elementary mistakes by a decorating contractor. The Applicant had pointed out the defects but the work was not improved. The hearing was adjourned to give the contractors the opportunity of remedying the poor works. We saw photographs at the adjourned hearing which showed little had changed. Some windows still could not be opened, there were paint smudges evidence and there was some red paint on the walls.

12.

We remain unimpressed by the works. The Respondents should have got another contractor involved instead of using the original contractor Bagnells who had clearly failed. We allow £1000 for the work.”

The appellant (the respondent in the FTT) sought permission to appeal on the basis that it did not understand how that £1,000 had been calculated, and on the basis that it could not have selected a different contractor to put the work right because to do so would have been a breach of its contract with Bagnalls, which made provision for remedial works and for a retention pending the completion of the snagging process (which was still in progress at the date of the FTT hearing). To involve another contractor would have been a pointless additional expense.

Permission to appeal was granted by this Tribunal on the basis that the decision was not properly explained.

Following the grant of permission to appeal Mr Ortet suggested that the FTT be asked to provide further reasons for its decision, and the Tribunal asked the FTT judge and member to do so in exercise of its power under rule 5(3)(n) of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. In response the judge gave further reasons as follows:

“This was a straightforward assessment of the quality of works. The works

involved painting of the window frames and other external works. We were

surprised that the quality of the decorating work was so poor particularly as the

Respondents had been given a further opportunity to rectify the situation. I

personally had never seen work as poor as this in all of the time that I have sat

as a Tribunal judge.

3.

In detail we inspected on 15th February 2024. The quality of the paint work on

the Applicant’s flat was generally poor quality with areas missed, no use of

masking tape on the window frames and putty missing. We then looked at

photos on 10th May 2024 after the Respondent had been given the opportunity

to rectify the matter and overall the quality was still very poor in addition there

was red paint on the sill. We considered that the work had to be redone from

scratch.

4.

As the work did involve other aspects of the external area including the soffits

etc we awarded £1000. If the work had solely been the decoration we would

not have allowed anything. We consider that £1000 was a fair reflection of the

work involved.”