Upper Tribunal clarifies scope of leaseholder protections for cladding remediation under the Building Safety Act 2022

Summary

On 16 September 2025, the Upper Tribunal (Lands Chamber) (“UT”) handed down its decision in Almacantar Centre Point Nominee No.1 Ltd v Penelope de Valk [2025] UKUT 298 (LC).

The case concerned Centre Point House (“CPH”) in London and is a significant decision in relation to the interpretation of the leaseholder protections under Schedule 8 of the Building Safety Act 2022 (“BSA”) and whether the proposed works to the façade of CPH fell within the scope of the leaseholder protections in Schedule 8(8) of the Building Safety Act 2022.

The façade at CPH was in substantial disrepair and, whilst inherently defective when installed, had also deteriorated over time. The freeholders had proposed a scheme of remediation to address the condition and this deterioration (the “Proposed Scheme”).

As a result of the UT’s decision, landlords should be aware that service charge limitations contained in the BSA are wider ranging than purely fire safety and construction defects.

FTT’s decision

At first instance, the FTT determined that no service charges would be payable by the respondent lessees in respect of the Proposed Scheme, as they could rely on the leaseholder protections in Schedule 8(8) of the BSA, which provides that no service charge is payable by qualifying tenants for ‘cladding remediation’.

The freeholders of CPH appealed to the UT.

The UT’s Decision

In the UT’s words, the question for them to determine was as follows: ‘…whether paragraph 8 of schedule 8 applies to defective cladding which is not also a “relevant defect” and if so, are the works proposed to the façade of CPH “cladding remediation” within the meaning of paragraph 8?’.

This required consideration of the following:

• What is the scope of paragraph 8 of schedule 8 – is it limited to issues which constitute a relevant defect?

The UT held that the benefit of paragraph 8 is not limited by reference to relevant defects, as paragraph 8 of Schedule 8 operates independently of the "relevant defect" requirement that applies to other leaseholder protections in Schedule 8.

The UT considered that the wording of paragraph 8 is "clear and unambiguous” and if Parliament had intended to limit the scope in that way, they could have done so but instead had deliberately chosen different language. This also aligns with the underlying policy and intention of the BSA that ‘no leaseholder living in their own flat ‘would pay a penny to fix dangerous cladding’.

• Did the works to the façade of CPH constitute “cladding remediation”?

This required the UT to consider whether the façade at CPH was ‘cladding’ and, if so, whether the proposed scheme of works was “cladding remediation” in accordance with Schedule 8(8) i.e. the removal/replacement of a cladding system or any part of it which forms the outer wall of an external wall system and is unsafe.

The UT upheld the FTT’s factual finding that the façade at CPH constituted ‘cladding’ for the purposes of the BSA. The façade comprised an underlying structure to which the cladding was attached and met the technical definitions of cladding consistent with PAS9980:2022. The UT also considered that the FTT was correct in finding that the façade at CPH comprised “the outer wall of an external wall system”.

The UT also agreed with the FTT that "unsafe" in this context should be given its ordinary and natural meaning and could therefore encompass a range of threats to safety and was not limited to fire risk. The façade at CPH, due to its serious degradation and risk of detachment, posed a risk to the safety of residents and the public, and was therefore "unsafe" within the meaning of the BSA.

Qualifying lease presumption

The UT also briefly considered the presumption of qualifying lease status. The UT confirmed that the presumption in paragraph 13 of Schedule 8 applies unless and until rebutted by the landlord taking reasonable steps to obtain a qualifying lease certificate. However, the UT declined to make a final determination on the binding nature of the FTT’s findings in this respect, as the issue had not been fully argued.

Conclusion

Freeholders, landlords and tenants will all be impacted by this decision which now makes it very clear that tenants of qualifying leases will not be liable to pay for the costs of remediating unsafe cladding. It will not be necessary for the cladding to amount to a relevant defect in order for this to be the case.

It is therefore clear that cladding (even where there are no fire safety considerations) must be replaced before it deteriorates so significantly so as to become “unsafe” to retain the ability to recover repair costs. Determining precisely when that might be will be a difficult task and accordingly landlords may be tempted into replacing cladding at a much earlier stage that they ordinarily would, to ensure cost recovery.

We will have to wait and see what the potential ramifications may be as parties affected by the decision consider their next steps.

You can read the case here.