Upper Tribunal Clarifies Meaning Of "Cladding Remediation" In The Building Safety Act 2022

Overview

The judgment laid down in Almacantar Centre Point Nominee No.1 Ltd & Ors v Penelope de Valk & Ors [2025] UKUT 298 (LC) provides much needed judicial clarification on the meaning of "cladding remediation" under the Building Safety Act 2022 (BSA).

The dispute was first heard by the First-Tier Tribunal (Property Chamber) (FTT), a specialist tribunal that deals with residential property and leasehold matters. The decision was appealed to the Upper Tribunal (Lands Chamber) (UT), which is part of the specialist tribunal system that hears appeals on property, land and housing matters from the FTT. The UT held that:

• Paragraph 8, Schedule 8 BSA is not restricted to works relating to a "relevant defect."
• The meaning of "unsafe" in regard to "cladding" should be given its ordinary and natural meaning and so is not limited to fire risks.

Background

This case concerned Centre Point House (CPH), a building forming part of the Centre Point complex and connected to the more famous Centre Point Tower. Little is known about why CPH was originally built, and the building remained unoccupied for many years. In the late 1980s, CPH was transformed into 36 residential flats, a configuration that has remained unchanged to this day.

Almacantar, the freeholder of CPH, proposed a scheme to update and replace the façade of CPH. Almacantar proposed recovering the costs of the scheme through a service charge on the leaseholders of CPH. The leaseholders argued that the costs should not be recoverable due to the relevant protections set out in paragraph 8, Schedule 8 of the BSA.

In 2024 the FTT held that "qualifying leaseholders" were protected from having to pay any service charge in relation to the proposed scheme as the protections set out in paragraph 8, Schedule 8 BSA applied. Almacantar appealed this decision to the UT.

Appeal

The UT considered two main issues on appeal:

1. Whether the protections set out in paragraph 8, Schedule 8 BSA apply only where "cladding remediation" relates to a "relevant defect"; and
2. Whether the façade of CPH constituted "cladding" and, if so, whether it was "unsafe."

Does Paragraph 8, Schedule 8 Apply Where "Cladding" Is Not a "Relevant Defect"?

Paragraph 8, Schedule 8 BSA states:

• "(1) No service charge is payable under a qualifying lease in respect of cladding remediation.
• (2) In this paragraph 'cladding remediation' means the removal or replacement of any part of a cladding system that –
  • (a) forms the outer wall of an external wall system, and
  • (b) is unsafe."

Unlike other sections of the BSA, paragraph 8, Schedule 8 makes no reference to a "relevant defect." A "relevant defect" is defined in section 120(2) of the BSA as a defect that "(a) arises as a result of anything done (or not done), or anything used (or not used), in connection with the relevant works, and (b) causes a building safety risk."

In order for works to be "relevant works" they must be completed during the "relevant period." This period is defined in section 120(3) of the BSA as the 30 years prior to the date the relevant part of the BSA came into force, which was 28 June 2022. As the façade at CPH was constructed during its original development in the 1960s, the remedial works could not amount to "relevant works" intended to fix a "relevant defect." If the UT had found that the protections under paragraph 8, Schedule 8 were limited to "relevant defects", the "qualifying leaseholders" of CPH would have been liable to pay the service charge.

Instead, the UT held that the protections under paragraph 8, Schedule 8 are not limited to "relevant defects." It found that the omission of "relevant defect" under paragraph 8, Schedule 8 was deliberate and not the result of poor drafting, emphasising that the "words of paragraph 8 are clear and unambiguous and accord with the underlying policy of the BSA." The UT reinforced its reasoning by referring to ministerial statements, such as Michael Gove's assurance that "no leaseholder living in their own flat would pay a penny to fix dangerous cladding."

The tribunal found that as paragraph 8, Schedule 8 applies only to "qualifying leaseholders" and to "cladding" that is "unsafe", it is clear that the scope of the paragraph was deliberately restricted in some ways. This deliberate narrowing made it clear that Parliament intended to leave "relevant defects" out of the equation.

Was the CPH Façade "Cladding"?

There is no definition of the term "cladding" provided in the BSA. This meant that whether the façade at CPH constituted "cladding" was subject to substantial judicial debate. The FTT relied on the Oxford Dictionary of Construction, Surveying and Civil Engineering alongside expert evidence and a site view to come to their conclusion that the façade at CPH was "cladding."

The UT agreed with the FTT and found "no justification at all" to depart from the FTT's conclusion at first instance, noting that "the question of whether a building includes cladding is one of fact."

Was the Cladding "Unsafe"?

Almacantar argued that the word "unsafe" in paragraph 8, Schedule 8 should be read narrowly. Counsel for Almacantar argued that "unsafe" in paragraph 8, Schedule 8 should be limited to mean unsafe cladding proposing a fire risk, not general degradation or structural decay. They argued that, as the BSA had come into existence due to "historic problems which came to light following the Grenfell Tower fire", the BSA should be interpreted with that context in mind and so unsafe cladding should be interpreted as cladding which is defective as it poses a fire risk.

The UT rejected this argument and found that the word "unsafe" should be given its ordinary and natural meaning. It agreed with the FTT that there is no justification for narrowing the scope of paragraph 8, Schedule 8 since the words used were clear and unambiguous with no limitation included for fire risk. To impose such a limitation would go beyond the statute and undermine the policy aim that leaseholders should not shoulder the costs of remedying unsafe cladding of any kind.

Accordingly, the UT concluded that the façade at CPH amounted to unsafe cladding, even though the risk was not confined to fire safety. Therefore, the "qualifying leaseholders" of CPH were not required to pay the service charges in relation to the proposed works.

What This Decision Means Going Forward

This decision confirms that qualifying leaseholders, broadly those holding long leases of their only or principal home, will not be liable for the costs of remediating unsafe cladding. For landlords and freeholders, the ruling significantly restricts cost recovery through service charges and emphasises the need to carefully assess whether proposed works fall within the statutory definition of "cladding remediation" before seeking to recover costs.