Landlord and tenant – Service charge – Repairs – Appellant local authority carrying out major works to blocks of flats including replacement of doors – Whether doors in “disrepair” so as to fall within repairing covenant and scope of service charge provisions in leases of flats – Whether first-tier tribunal erring in approach to evidence on that issue – Appeal dismissed
Between March 2013 and April 2014, the appellant local authority carried out major works to a residential estate, dating from the 1960s, comprising 12 blocks of flats in Bermondsey, London SE1. The works resulted in a rise in the estimated service charges payable by long leasehold tenants on the estate, including the respondents, who were the owners of 80 of the flats under long leases granted pursuant to the right-to-buy legislation.
The respondents made an application to the first-tier tribunal (FTT), under section 27A of the Landlord and Tenant Act 1985, in which they challenged the estimated charges so far as they included the cost of replacing the front entrance doors to the flats and works to the communal fire doors to the blocks. They contended that those works constituted improvements, rather than repairs, and so fell outside the scope of the landlord’s repairing obligations and consequently of the service charge provisions in the leases.
The original doors to the flats had complied with the fire regulations then in force, being “FD20-compliant” fire doors capable of resisting fire for up to 20 minutes. A witness for the appellants indicated that indicated that, where individual leaseholders had replaced or altered the original doors, he had considered that they were no longer to be fit for purpose and not to FD20 standard and had concluded that they were in disrepair and in need of replacement.
The FTT took the view that that assessment was carried out on a narrow draconian basis without any real understanding of the fire resistance requirements. It considered that fire risk assessments (FRAs) carried out by the appellants provided the best evidence on disrepair, with no more than a few doors needing to be replaced or have door “closers” installed. It allowed the cost of replacing specific doors or installing closers where the fire risk assessments so suggested. It also considered that there was little evidence of the state of the communal doors and allowed 50% of the cost of the works to those doors.
The appellants appealed. They contended that the FTT had given inadequate reasons for its decision, had failed properly to define “disrepair” and had wrongly rejected the evidence of the appellant’s witness.
Held: The appeal was dismissed.
(1) It was common ground between the parties that whether a door was in disrepair depended on whether it was had ceased to be in repair to a standard commensurate with that of the original doors as built; the relevant standard was therefore whether the doors were FD20-compliant, even though that was no longer the current fire safety standard. The FTT had adopted that standard in determining whether any of the replaced or altered front doors were in “disrepair”. Nowhere in the decision was there any suggestion of a dispute about, or deviation from, that formulation of the test of “disrepair”. While some tribunals might have set out the test more fully and recited or summarised the relevant authorities, where the test was not in dispute it was not necessary to do so.
(2) The FTT had not been obliged to accept the evidence of the appellant’s witness as to whether doors were in disrepair. In the absence of any explanation of the witness’s reasoning or rationale for concluding that replacement or alteration of a door made it non-compliant with FD20, the FTT was entitled to view the witness’s evidence as wanting. The witness was not an expert in fire resistance and did not have the necessary expertise to reach the conclusion that he had reached. Simply stating that original doors which had been replaced or altered were not FD20-compliant, and were therefore in disrepair, was insufficient to shift the evidential burden of proof to the leaseholders to adduce evidence that the doors were FD20-compliant. A person who was obliged to keep property in repair could not determine that the property was in disrepair without understanding or being able to explain why he reached that conclusion. Moreover, this was a fairly typical case faced by courts and tribunals on a daily basis, in which decisions had to be reached on the basis of incomplete or unsatisfactory evidence and the burden of proof would rarely be critical: Daejan Investments Ltd v Benson [2011] EWCA Civ 38; [2011] 2 EGLR 113; [2011] 1 WLR 2330 applied.
(3) The FTT had been entitled to rely on the FRA reports for the purpose of determining whether any of the doors were in disrepair in the relevant sense, notwithstanding that those reports had been prepared for the purpose of assessing compliance with current fire regulations rather than FD20. The FTT was entitled to take a practical approach to evaluation of the evidence before it. Neither party had adduced live evidence to support any finding that any door was or was not FD20-compliant, but there was evidence in the form of the FRA reports which indicated that some of the doors were not sufficiently fire resistant. The FTT had properly approached the issue of disrepair on a door-by-door basis as best it could on the available evidence before it.
(4) The FTT was also entitled to allow only 50% of the cost of the works to the communal doors. Its decision was based on the FRA reports reinforced by its own inspection of the blocks. It was not a case of the FTT making an arbitrary decision based upon no knowledge or expertise other than its own. It was entitled to take a broad-brush approach, in which the 50% allowance represented the end result of the FTT’s evaluation of the available evidence, rather than simply a figure plucked out of thin air.
That conclusion did not offend the requirement of fairness but instead involved approaching the matter in a practical and robust manner which resulted in finality, in circumstances where the issue or amount at stake was modest when compared to the time, inconvenience and costs of inviting further evidence or submissions and then reconvening, and where the only alternative would be a refusal of any allowance at all.
Where, during the hearing, it appeared to the FTT from its own knowledge or expertise that methodology or costs figures were open to question or challenge, it would be appropriate for that matter to be ventilated for comment by those appearing before it. However, the situation was different once the evidence had closed, the hearing was concluded and the FTT withdrew to deliberate and evaluate the evidence and make its decision. At that stage, it was entitled to take a broad brush, robust approach. Only in exceptional cases would a tribunal, during the course of its deliberations, feel constrained to first ventilate what it was proposing to decide before final determination. While such circumstances might perhaps arise where a large amount of money was involved, or the tribunal was proposing to make a material departure from that which had been adduced or argued, it was not necessary in the instant case, where the FTT was proposing to make relatively modest allowances in respect of discrete items: Arrowdell Ltd v Coniston Court (North) Hove Ltd LRA/72/2005 [2013] PLSCS 278 distinguished.
Michael Walsh and Diane Doliveux (instructed by the legal department of Southwark Council) appeared for the appellants; Sam Madge-Wyld (instructed by Anthony Gold Solicitors) appeared for the respondents.
Sally Dobson, barrister
Click here to read a transcript of Southwark Council v Lessees of St Saviours Estate here
