If your landlord fails to follow the Section 20 process

What counts as failing to consult

The Section 20 consultation process is required by law. Failure to comply can take several forms:

• Skipping a stage entirely: for example, going straight to awarding a contract without issuing a Notice of Intention or Statement of Estimates
• Serving an invalid notice: a notice that does not contain the required information, does not give the full 30-day observation period, or is not served on all qualifying leaseholders
• Ignoring a leaseholder nomination: failing to try to obtain an estimate from a nominated contractor without a valid reason
• Failing to obtain an independent estimate: all estimates coming from contractors connected to the landlord or managing agent
• Awarding the contract to a non-cheapest, non-nominated contractor without serving a notice of reasons within 21 days
• Seeking dispensation without good reason: applying to the tribunal to avoid consultation for convenience rather than genuine urgency

Not every procedural irregularity will automatically invalidate the consultation or cap leaseholder contributions. Tribunals look at the substance of what happened and whether leaseholders were genuinely prejudiced by any failure. This is why keeping records and taking advice matters.

The £250 cap

Under Section 20 of the Landlord and Tenant Act 1985, if a landlord carries out qualifying works without following the correct consultation process, leaseholder contributions are limited to £250 per leaseholder. For qualifying long-term agreements, the cap is £100 per leaseholder per accounting year.

This cap is powerful but it is not automatic. In most cases you will need to apply to the First-tier Tribunal (Property Chamber) to have it enforced. The tribunal will consider whether the consultation requirements were breached and, if so, whether the landlord should be granted dispensation (permission to recover charges despite the failure to consult).

The cap applies per leaseholder, so in a building of 10 flats, the landlord could still recover up to £2,500 in total even if the consultation was defective.

Dispensation: what it means and when it applies

A landlord who has failed to follow the Section 20 process, whether deliberately or by mistake, can apply to the First-tier Tribunal for dispensation from the consultation requirements. If dispensation is granted, the landlord can recover the full cost of the works despite the procedural failure.

The leading case on dispensation is Daejan Investments Ltd v Benson [2013] UKSC 14, decided by the Supreme Court. In plain English, the Supreme Court held that tribunals should focus on whether leaseholders suffered real financial prejudice as a result of the failure to consult, not on whether the landlord followed every procedural step. If the landlord can show that leaseholders would not have been in a better position had proper consultation taken place, dispensation is more likely to be granted.

What this means in practice: if the works were genuinely necessary, the price was reasonable, and leaseholders could not have obtained a cheaper alternative, a tribunal may grant dispensation even if consultation was defective. Leaseholders can argue against dispensation by showing they were financially prejudiced. For example, that a nominated contractor would have been cheaper, or that proper consultation would have led to a different scope of works.

If your landlord applies for dispensation, you should respond to the tribunal application setting out the ways in which you were prejudiced by the failure to consult. Take legal advice before the hearing if possible.

How to challenge at the First-tier Tribunal

The First-tier Tribunal (Property Chamber) handles disputes about service charges, including challenges to Section 20 consultation failures. You can apply to the tribunal to:

• Determine whether the service charge is reasonable
• Determine whether the consultation requirements were complied with
• Oppose a landlord's application for dispensation

How to apply

The tribunal application form is available from GOV.UK. There is an application fee: currently up to £100 for most applications, with a hearing fee if the matter proceeds to a full hearing. Total tribunal fees are capped at £500. You may also incur professional costs if you instruct a solicitor or surveyor.

You can apply before or after paying the service charge. If you have already paid, you can still apply. The tribunal can order a refund of amounts found to be unreasonable.

Timing

Apply as soon as possible after you become aware of the issue. There is no fixed limitation period for service charge disputes but delay can weaken your case.

What to expect

Most straightforward cases are resolved at a paper hearing or a short in-person hearing. You do not need a solicitor to attend, though professional representation can help in complex cases.

Before you withhold payment

Many leaseholders instinctively want to withhold payment when they believe a Section 20 consultation was defective. This is understandable but carries serious risk.

Your lease almost certainly contains a covenant to pay service charges on demand. If you withhold payment, even while disputing the charge, your landlord may commence lease forfeiture proceedings. Forfeiture is the process by which a landlord seeks to terminate your lease for breach of covenant. Courts have wide discretion in forfeiture cases and will usually give leaseholders the opportunity to remedy the breach by paying, but the process is stressful and costly.

The safer approach in most cases is to:

1. Pay the charge under protest. Write to your landlord stating that payment is made under protest and without prejudice to your right to challenge the charge.
2. Apply to the First-tier Tribunal to have the charge determined.
3. If the tribunal finds in your favour, seek repayment of any overpaid amount.

Taking this approach protects your lease while preserving your right to challenge. Always take independent legal advice before deciding whether to pay or withhold.

Evidence to gather

Strong tribunal cases are built on good records. Start gathering evidence as soon as you suspect the consultation process has not been followed correctly:

• The original Notice of Intention: check the date, the description of works, and whether it contained all required information
• Your written response: keep a copy of any observations or nominations you sent, plus proof of delivery
• The Statement of Estimates: check whether at least two estimates were provided, whether one is independent, and whether your nominated contractor was included
• Any notice of reasons for the contract award: check whether it was served within 21 days
• All correspondence with your landlord or managing agent: emails, letters, and any read receipts
• The final service charge demand and supporting accounts
• Any invoices or contracts you can obtain for the works carried out
• Evidence of alternative costs: for example, quotes from your nominated contractor if they were ignored

The stronger your paper trail, the stronger your tribunal case.