The Upper Tribunal in Southwark LBC v Various lessees of the St Saviours Estate  UKUT 10 (LC) were called upon to consider the reasonableness (or otherwise) of a project of major works carried out by Southwark which included the replacement of the leaseholders’ front entrance doors, most of the communal doors and other works to improve the fire resistance of the blocks.
The costs of the works were sought to be recovered by the service charge.
And the leaseholders challenged the reasonableness of those costs.
What did the leases say?
The front doors to each of the flats remained part of the retained land, as did the communal fire doors within the common parts. This meant that they fell within Southwark’s repairing covenants under the leases, meaning that the costs of their repair were on the face of it recoverable under the service charge provisions of the leases.
The leases required Southwark to “keep in repair the structure and exterior of the flat …. And make good any defect affecting the structure and exterior” (which would include the front doors to each flat) and “to keep in repair the common parts of the building” (which would include the communal fire doors).
The Upper Tribunal relied upon the decision in Post Office v Aquarius Properties Limited  1 All ER 1055
“[A] state of disrepair, in my judgment, commutes a deterioration from some previous physical condition. I would have reached this conclusion even in the absence of authority, but it’s correctness is shown by the decision of this Court … in Quick v Taff Ely Borough Council. As Lawton LJ there observed: “as a matter of the ordinary usage of English that which requires repair is in a condition worse than it was at some earlier time”.
Front door replacements
When constructed back in the1960s, the front doors to the flats were FD20 compliant (in other words each of the doors was a fire door capable of resisting fire for up to 20 minutes).
The vast majority of the leaseholders (or their predecessors) had replaced the original 1960’s front doors with new doors, with others having installed new locks or letterboxes within the original doors.
Decision of the First Tier Tribunal
The leaseholders had challenged the costs of the front door replacements and the works to the communal fire doors on the basis that
- the replacement of the front doors and works to the communal fire doors constituted improvements (so fell out with the repairing obligations of the landlord and hence their costs were not recoverable under the service charge provisions); and/or
- they were not reasonable under section 19 of the Landlord and Tenant Act 1985.
Southwark had sought the assistance of a surveyor.
The surveyor referred in his witness statement to carrying out a visual inspection of the front entrance doors. In evidence before the Tribunal it seems he informed the Tribunal that he had walked the estate with the contractor. It seems that on further questioning, the surveyor did not accept the principle of a risk assessment and considered that any alterations to the door meant that the door was no longer fit for purpose and not to FD20 standard.
It was commented by the Tribunal that it appeared “clear to us that his survey was based on his limited understanding of what constituted disrepair and its interplay with the relevant fire resistance requirements and his interpretation of the fire resistant standards in force”.
The Tribunal considered that the survey carried out by the surveyor was “wholly insufficient”. It was perhaps not helped by his description of the exercise during his evidence as one in which he “walked around and wrote down as he went which doors should be replaced”. No notes were made to support his findings and the survey produced by him was retrospective (produced to assist the Tribunal).
It was also noted that the retrospective report did not record the alleged defects of the doors save only in one or two instances, but instead included the generic comment “no original door not rated to FD20 standard”.
The surveyor’s evidence was therefore found to be narrow, not based on a full and through inspection, and lacking in any real understanding of the fire resistance requirements.
As such, the Tribunal were not satisfied that the doors were in disrepair and had required wholesale replacement. Where the fire risk assessments required replacement of specific doors, the Tribunal allowed those costs. Where the fire risk assessments had recommended the fitting of door closers, an allowance was made to cover those costs. Otherwise, where the fire risk assessments were silent or no fire risk assessments provided, the costs of the replacement front entrance doors were disallowed in full.
Grounds of appeal
Southwark appealed the decision of the First Tier Tribunal. This was on the basis that the FTT had failed to apply the correct test of “disrepair”, and had erred in concluding that there was very little evidence of the condition of the front doors and the process Southwark went through in considering their condition and the action required.
Decision on appeal
The central factual question for the First Tier Tribunal to determine was whether or not any or all of the replacement or altered front doors were in “disrepair”.
It had been Southwark’s position that the doors on the flats “as built” were fire resisting (ie FD20 compliant). When the dropped below this “as built” standard, they were in “disrepair” requiring like for like replacement.
The Upper Tribunal examined the inspection and assessment that had been undertaken by the authority’s surveyor. Essentially, two points had been made by the surveyor:
- that the original door had been replaced by a new one (or altered);
- the conclusion that because it was not the original (or had been altered) it was not FD20 Compliant.
Whilst the first limb was unchallenged, the conclusion reached by the authority’s surveyor was tested by the Tribunal. In short, the Tribunal were looking for the reasoning or rationale or explanation, possibly supported by contemporaneous notes, from the surveyor as to what he had observed on inspection and assessment of each of the doors, so that the Tribunal could understand and evaluate why he had reached the conclusions he did.
It was in that respect that the surveyor’s evidence was found to be wanting.
During cross examination he had accepted that he was not expert in fire resistance, from which it necessarily followed that he did not have the expertise to and was himself unable to conclude based on any relevant expertise that mirror replacement or alteration of an original door rendered the replacement or altered door non FD20 Compliant.
The Upper Tribunal commented that it does not follow from the fact that an original door has been replaced or altered, that it is not or is no longer FD20 Compliant; it might be or might not be, depending on the evidence. It was wrong simply to assert that just because it was not the original door or had been altered that it was no longer FD20 Compliant.
The Upper Tribunal identified the actual issue of disrepair – was there any evidence that the replaced or altered doors were not capable for resisting fire for up to twenty minutes?
Neither Southwark nor the leaseholders had produced evidence to support any finding that the door was or was not FD20 compliant.
There was some evidence in the FRA Reports which indicated that some of the doors were not sufficiently fire resistant.
This serves as a reminder to landlords to ensure that when carrying out any projects of major works which involve replacement that clear evidence is needed as to the state of disrepair which would then “trigger” the obligation on the part of the landlord to perform the repairing covenant.