Upper Tribunal (Lands Chamber) considers disrepair and service charges in respect of fire resistance works.

In a notable case concerning disrepair and service charges, The Upper Tribunal (Lands Chamber) recently held that a front entrance or communal door within a block of flats is not in disrepair merely because it has been modified or replaced.

Southwark LBC v Various Lessees of the St Saviours Estate [2017] UKUT 10 (LC), 12 January 2017

The Landlord, Southwark LBC, carried out major works to several blocks of flats on the St Saviours Estate, to improve the fire resistance of the blocks. This work included the replacement of the communal doors, cupboard doors and refuse hatches and also many of the lessees’ front entrance doors. In advance of the works, the authority carried out a fire risk assessment of each block. Those assessments recommended the replacement of a small number of front entrance and communal doors that no longer complied with fire safety requirements and that in other instances further assessments of each individual door should be undertaken before any major works programme was carried out.

The authority’s contractors did not however undertake an assessment of the condition of each door; instead, a surveyor took photographs of each front entrance door to be replaced. Southwark LBC then sought to recover the costs of those works from each of the respondent lessees as a service charge.

First Tier Tribunal

The lessees’ applied to the First-tier Tribunal for a determination under s27A, Landlord and Tenant Act 1985 that the costs of the works were not payable. At the hearing, the parties agreed that the authority could recover the cost of replacing the doors if the doors were proven to be in disrepair. The authority produced the photographic evidence to show that almost all of the front entrance doors had been replaced or modified, by the insertion of new or additional locks or letterboxes for example, by the respondent lessees. A surveyor, employed by the authority’s contractors, contended that these modifications or replacements had compromised the fire resistance of each door, so that they were no longer able to provide 20 minutes’ fire resistance as would have been the case for the original doors and this meant that the doors were in disrepair.

The respondents, with the support of evidence from fire safety experts, argued that the mere fact that a door had been modified or changed did not necessarily mean that its’ fire resistance had been compromised. The answer to that issue could only be properly determined by an assessment of each individual door by an expert surveyor with knowledge of fire resistance.

The First-tier Tribunal rejected the evidence of the authority’s surveyor as he was not an expert in fire resistance. Other than where the authority’s initial fire risk assessments had recommended replacement, there was therefore no evidence of the front entrance doors being in disrepair. The First-tier Tribunal therefore decided that the cost of replacing each front entrance door was not recoverable except where the authority’s own fire risk assessments had recommended a door’s replacement. The First-tier Tribunal also decided that the authority was limited to recovering 50% of the costs of the works in respect of the other fire resistance measures, as while it was not disputed that some of the doors, cupboards and refuse chutes had been in a poor condition, some of the works may not have been needed if a fully comprehensive survey had been carried out.

The Upper Tribunal

Southwark LBC appealed to the Upper Tribunal on the grounds that the First-tier Tribunal had been wrong to decide that a front entrance door which had been modified or replaced could still be in repair and that the decision that 50% of the fire resistance works was payable was arbitrary and unreasoned.

The Upper Tribunal dismissed the appeal on both grounds. The First-tier Tribunal had identified the correct test: that a door which had deteriorated from its original condition and was no longer able to provide fire resistance for a period of 20 minutes was in disrepair. It had also then correctly asked itself whether there was any evidence to prove that the individual front entrance doors were no longer able to provide equivalent fire resistance. It had been entitled to reject the evidence of the authority’s surveyor that the doors were in disrepair, as he had not assessed the fire resistance of any of the individual doors and did not have the expertise, knowledge or experience to do so. The fact that the respondents had not adduced any evidence of the condition of the doors themselves was immaterial.

As to the fire resistance measures, the First-tier Tribunal had been entitled to adopt a broad brush approach; the figure of 50% was not unreasoned, but based on an assessment of the evidence that was before the Tribunal.

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