Building safety: construing ‘cladding system’

In light of the complexity of the Building Safety Act 2022, it was incumbent on the First-tier Tribunal to determine in every case whether the leaseholder protections in the 2022 Act applied. In Lehner v Lant Street Management Co Ltd [2023] UKUT 306 (LC); [2024] PLSCS 103 the Upper Tribunal (Lands Chamber) was asked to determine if a leaseholder was required to pay towards the cost of removal and replacement of the cladding system in his block. The appellant owned a flat in a five-storey block of flats within a three-block development. The construction of the appellant’s block was concrete framed, but included areas of cladding. The respondent was the appellant’s intermediate landlord. In November 2019 the respondent obtained advice from fire-risk experts recommending the replacement of insulation behind the vertical cladding panels on the exterior of the block and the addition of vertical cavity barriers between each flat. The leaseholders were notified that the total cost of the works would be £211,119. On 8 February 2021 the appellant received a service charge demand for the proposed works in the sum of £1,244.85. For the purposes of sections 47 and 48 of the Landlord and Tenant Act 1987, the demand incorrectly stated that his landlord was a third-party company. The appellant applied to the FTT under section 27A of the Landlord and Tenant Act 1985 for a determination of the payability of the service charges demanded. The FTT found that they were payable in full. Under paragraph 8 of schedule 8 to the 2022 Act, a qualifying leaseholder was not required to pay service charges for cladding remediation works that involved the removal or replacement of a cladding system that formed the outer wall of an external wall system that was unsafe. The FTT found that the protection afforded under paragraph 8 was not engaged. The works did not involve the removal and replacement of the cladding system only the internal insulation and other components behind the cladding. In allowing the appellant’s appeal, the UT observed that in breach of section 47(1) of the 1987 Act, the name and address of the landlord were incorrect. In the circumstances, under section 47(2) of the 1987 Act, no service charge was payable in respect of the works until such time as a compliant demand, providing the correct name and address of the landlord, was given to the appellant. The UT, however, went on to consider whether the leaseholder protections under the 2022 Act applied. It found that paragraph 8 of schedule 8 to the 2022 Act was engaged. The FTT had construed “cladding system” too narrowly. The UT found the term could encompass any component of a cladding system. The UT also provided guidance in the form of a series of questions that the FTT should address when faced with a case where it was alleged service charges were not payable due to the leaseholder protections under the 2022 Act. Elizabeth Dwomoh is a barrister at Lamb Chambers