The Building Safety Act 2022 ("the BSA") creates, among other things, two new remedies in the First Tier Tribunal ("FTT"): remediation orders ("ROs") and remediation contribution orders ("RCOs"). RCOs require the respondent to pay for remediation works, whereas ROs require respondents to carry out such work.
As an expert tribunal, the FTT can bring its own knowledge and expertise to such a case. In the recent case of Monier Road Limited v Blomfield and ors [2025] UKUT 157 (LC), the Upper Tribunal had to consider the extent to which the FTT was entitled to use its expertise to raise points not pleaded by the parties.
The Facts
Monier Road concerned a mixed-use residential and commercial building. The building was a quadrangle built around a courtyard. In October 2022, a fire safety report recommended that the cladding and combustible insulation on the external walls facing the courtyard be replaced. The report concluded that if such work were done, other potential fire safety concerns would be mitigated and no further remedial works would be required. The leaseholders applied to the FTT for an RO requiring such works to be carried out. The Respondent broadly agreed with the scope of the works, and the dispute largely centred on when such works would be carried out.
At the first hearing, the FTT raised concerns that the fire safety report failed to adequately address other potential fire safety concerns, such as the amount of timber on the walkways, balconies, and roof terrace. Directions were given for further expert evidence to address the concerns raised by the FTT. This evidence concluded that replacement of the cladding would sufficiently reduce fire safety risks such that the other issues identified by the FTT would not require remedial works. Despite this, following a further hearing, the FTT made an RO including both the works initially suggested by the fire safety report and further additional items identified by the FTT. The freeholder appealed to the Upper Tribunal, stating that the additional items should not have been included in the scope of the RO.
The FTT's ability to raise new points
It is well established that the FTT can raise points not raised by parties before it. However, the circumstances when it can do so are limited, and it must act in a procedurally fair way when doing so. Importantly, proceedings before the FTT remain adversarial, not inquisitorial.
Monier Road sets out three categories of cases where the FTT can raise new issues. The first is when it is required to determine whether the FTT has jurisdiction to determine the main question before it. The second is because statute requires the FTT to consider such matters regardless of whether the parties have raised them. The third category is to clarify a party's case.
The law on the third category (and this topic generally) was recently considered by the President of the Upper Tribunal in Sovereign Network Homes v Hakobyan and ors [2025] UKUT 115 (LC). The Upper Tribunal declined to impose any "hard rules" on what issues can be raised but stated that the general test was whether any such issue went to the question before the FTT. The President stressed that, where the FTT raises such a point, it must ensure it acts in a procedurally fair way, allowing a party reasonable time to respond, including (where necessary) adducing further evidence.
Application inMonier Road
The Upper Tribunal held that it was open to the FTT to specify works in an RO not set out in the initial application for an RO. When doing so, it must ensure proper procedure is followed.
In the present case, however, it was held that the FTT should not have included the additional works in the RO. Both the initial fire safety report and the additional expert evidence ordered by the FTT concluded that the additional works were not required if the cladding and combustible insulation were repaired. In circumstances where neither party had been asking for the additional works, it was not for the FTT to reject the uncontested expert evidence before it. The FTT had also failed to adequately explain its reasons for rejecting the expert evidence and ordering the additional works. The RO was therefore varied to only address the works sought in the initial application.
Comment
Many ROs will be sought by leaseholders without the benefit of legal representation and, regardless, inspections and fire safety expert evidence may identify new causes of concern. Monier Road therefore provides a helpful clarification of the FTT's role in such cases, building on the clarification provided in Sovereign Network Homes, and clearly states that proceedings must remain adversarial and all parties must have a reasonable opportunity to respond to the case put to them.
To that end, the Upper Tribunal provided helpful guidance at the end of its decision regarding what to do when potential fire safety concerns are raised by the FTT. In such circumstances, the FTT should raise the point with the applicant. If the applicant wishes to pursue the point, it will require an application to amend statements of case and subsequent case management directions. If the applicant declines to take the point, it is not for the FTT to take it further. The decision therefore serves as an important reminder of the boundary between using the FTT's expertise to assist in the disposal of such cases and the need for proceedings to remain adversarial and procedurally fair.
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