Decision Nº LRX 54 2011. Upper Tribunal (Lands Chamber), 25-09-2012
| Jurisdiction | UK Non-devolved |
| Judge | His Honour Judge Gerald |
| Date | 25 September 2012 |
| Court | Upper Tribunal (Lands Chamber) |
| Judgement Number | LRX 54 2011 |
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UPPER TRIBUNAL (LANDS CHAMBER) |
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UT Neutral citation number: [2012] UKUT 323 (LC)
UTLC Case Number: LRX/54/2011
TRIBUNALS, COURTS AND ENFORCEMENT ACT 2007
LANDLORD AND TENANT – service charges – jurisdiction to determine issues not raised by the application – held there was none – Landlord and Tenant Act 1927 s27A – appeal allowed
IN THE MATTER OF AN APPEAL AGAINST A DECISION OF THE
LEASEHOLD VALUATION TRIBUNAL FOR THE
MIDLAND RENT ASSESSMENT PANEL
BETWEEN:
and
(1) MR R KEDDIE Respondents
(2) MR G HILL
Re: Flat 56 Galton Tower,
Civic Close,
Birmingham,
West Midlands B1 2NW
Before: His Honour Judge Nigel Gerald
Sitting at: Birmingham Employment Tribunal, 103 Newhall Street,
Birmingham, B3 3NH
The Appellant appearing by Mr Bates of counsel instructed by Mrs Kiteley of Birmingham City Council Legal Services
The Respondents appearing in person, Mr Keddie appearing for himself and Mr Hill
© CROWN COPYRIGHT 2012
The following cases are referred to in this decision:
Regent Management Limited v Jones [2012] UKUT 369 (LC), LRX/14/2009
DECISION-
The Appellant local authority landlord appeals against the 25th March 2011 decision (the “Decision”) of the Leasehold Valuation Tribunal (“the LVT”) disallowing recovery of the £5,909.57 cost of window replacement and balcony works because it was not reasonable to replace the old ones.
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In 2006/07 the Appellant undertook window replacement and balcony works to the Respondent tenants’ flat 56 at Galton Tower, Civic close, Birmingham as part of a programme of major works to the block. The Respondents purchased the flat after those works had been completed, and therefore had no knowledge of the condition of the old windows which had been replaced.
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The Appellant sought to recover the £5,909.57 costs of the works via the service charge. The Respondents applied to the LVT for a determination that the amount claimed was not reasonable under sections 27A and 19(1) of the Landlord and Tenant Act 1985 (“the 1985 Act”). The material part of the application form stated that the question they wanted the LVT to determine was:
“whether or not [the Appellant] should offer us a) compensation or b) a significant discount owing to the fact payment is being demanded for the windows, yet on-going repairs are still needed 3 years on?”
Further details of the windows’ problems were provided from which it was clear that the only complaint was the standard of workmanship, not the old windows did not need to be replaced or that it was not reasonable to replace them.
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Having inspected the flat on 15th November 2010, the LVT issued is on 25th March 2011 (the “Decision”) the kernel of which is to be found in the following paragraphs (italics supplied).
“34. The Applicants have not raised the issue of whether the replacement of the windows can comprise a repair (and thus maintenance) or whether the windows to the property were in such a condition in 2007 that they actually needed to be replaced. However, in meeting the allegation raised by the application, the Respondent dealt with the point in its submissions to the Tribunal dated 8 October 2010. the Respondent is clearly of the view that the implied and express covenants and the sixth schedule of the lease are sufficient to allow the Respondent to recover these sums as repairs or maintenance, there still must have been grounds for replacing the windows, those grounds must be based on evidence and it must be within the reasonable responses available to the Respondent to conclude that those grounds justified the replacement of the windows at the time and in the manner of the works they undertook.
“35. In the circumstances, it is with considerable surprise that we note from paragraph 14 of the Respondent’s statement that the window replacement works were carried out under the Decent Homes Standard initiative and that properties were not selected for inclusion in this programme on an individual basis. From which we conclude that, before carrying out the window replacement works, the Respondent did not consider whether or not such works amounted to a repair or maintenance at all or even whether the existing windows were still serviceable without replacement. Therefore, we conclude that the Respondent did not have such grounds for replacing windows, because no evidence has been presented to use to arrive at such a decision. Accordingly the Respondent did not act reasonably in concluding that the window replacement works should be carried out. Therefore on the evidence available to us, we find that the cost of the window replacement of £6,909.52 was not reasonably incurred.”
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On 13th April 2011 the Appellant applied to the LVT for permission to appeal the Decision on the basis that the LVT had breached natural justice by reaching a decision on grounds not raised in the application without giving the Appellant an opportunity to make submissions thereon and in any event that the decision was perverse, there being no evidence before it about the condition of the old windows which were replaced.
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On 21st April 2011 the LVT refused permission to appeal because it was “patently obvious” that the question of whether it was reasonable to replace the windows at all was in issue and the LVT’s jurisdiction under section 27A of the 1985 Act is “to determine the entire service charge not only the matters in dispute, pleaded or otherwise specifically identified in the Service Charge application” (the “Refusal Decision”).
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On 7th July 2011 His Honour Judge Huskinson on the Appellant’s renewed application granted permission to appeal to be by way of review with a view to a re-hearing stating inter alia:
“The grounds of appeal raise reasonable arguments to the effect that the LVT erred as there alleged by reason of reaching a conclusion that the windows did not need to be replaced in 2007 when, as the [Appellant] alleges, this was no part of the Respondent’s case and was a point that had never been raised with the [Appellant].”
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In its Statement of Case dated 8th August 2011 the Appellant stated inter alia that “nowhere in either the application form or the detailed evidence that was provided, was it suggested that it had been unnecessary to install new windows. The entire focus of the evidence is on the allegedly poor quality of the workmanship and the manner in which Birmingham have conducted themselves in connection with this matter”.
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In their lengthy response dated 8th September 2011 the Respondents agreed. They said “What isn’t being argued throughout this appeal (what is really the crux of the matter and the reason why applied to the LVT in the first instance) is that the installation of our UPVC windows to our property is simply not of a reasonable and acceptable standard.” Later on: “we had not raised the issue with the LVT of ‘whether the windows to the property were in such a condition in 2007 that they actually needed to be replaced” – “if the works had been completed satisfactorily in the first instance, then there would be no need for us to take out a case against Birmingham City Council”.
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The hearing of the appeal took place on 12th September 2012 in Birmingham. Mr Keddie, who was representing himself and also his co-Respondent Mr Hill who was unable to attend through ill-health, frankly said that he was surprised that the LVT had made the decision it did because only the standard of work was being challenged not that the old windows needed to be replaced, that as far as he was concerned the LVT had misconstrued his argument which only related to the standard of work and finally that he felt that the LVT by their Decision had put Mr Hill and himself in an “unfair position”.
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Mr Keddie was therefore content for the appeal to be allowed, the parties leaving me to give written judgment as to why the appeal should be allowed. That left the question of how much the £5,909.57 should be reduced by, the Appellant not appealing that part of the Decision which found that the work had not been carried out to a reasonable standard. It is of course unfortunate that the LVT did not answer the key question it had been asked to.
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I rose to give the parties an opportunity to reach agreement as to the sum reasonably recoverable, which they did. They also agreed that an order...
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