Upper Tribunal clarifies the scope of ‘Cladding Remediation’ in the Building Safety Act 2022. Samir Amin acted for Respondents 11 and 12.

In a decision handed down on 16 September 2025, the Upper Tribunal has clarified a number of important points arising from Schedule 8 to the BSA 2022.

Read the decision here: Almacantar Centre Point Nominee No.1 Ltd v Penelope de Valk & Ors [2025] UKUT 298 (LC)

Most significantly, the Upper Tribunal considered that:

  • Paragraph 8 of Schedule 8 is not limited to ‘relevant defects’, and is to be read independently from sections 116 and 122. It is a free-standing provision which applies so long as a tenant holds a ‘qualifying lease’ and the remedial works fall within the definition of ‘cladding remediation’. Therefore, for Paragraph 8 to apply, there is no requirement for a defect to have arisen in the 30 years prior to 28 June 2022. In the case of the property in issue, Centre Point House (“CPH”), Paragraph 8 therefore applied even though the defects in its façade had been inherent since it was constructed between 1963 and 1966. This respected the Ministerial Statement of Michael Gove which “guaranteed that no leaseholder living in their own flat will have to pay a penny for unsafe cladding”.
  • The BSA does not provide a definition of ‘cladding’. However, the First Tier Tribunal had heard expert evidence at trial and concluded that the façade of CPH amounted to cladding, despite its unusual make-up. That was a finding of fact which the Upper Tribunal would not interfere with.
  • As to whether there was a ‘cladding system’ at CPH, the Upper Tribunal rejected the Appellant’s argument that a ‘cladding system’ requires two systems, being a ‘cladding system’ and a separate ‘external wall system’. The Upper Tribunal applied its previous decision in Lant Street: “The other requirement of paragraph 8 is that the cladding system must form the “outer wall” of the external wall system. Paragraph 8 is not concerned with a cladding system which forms the inner wall of an external wall system. If an external wall comprised an outer wall and an inner wall, with a cavity between them, only a cladding system which formed the outer wall would be covered by paragraph 8.”
  • Paragraph 8 is not limited to defects which result in unsafety due to a fire risk. It applies to all defects which result in cladding being considered unsafe. In the case of CPH, the façade was unsafe because it was degraded such that components of it might fall off, causing a risk of injury to the residents of CPH and nearby members of the public.
  • The First Tier Tribunal had concluded that certain leaseholders held ‘qualifying leases’. It did so even though the landlord had not yet taken steps, by the time of trial, to rebut the presumption in Paragraph 13 of Schedule 8. The Upper Tribunal would not intervene to clarify whether the landlord would now be able to take steps to rebut the presumption.