Cladding costs: key tribunal ruling

LEASE Senior Legal Adviser Nicholas Kissen examines a tribunal decision confirming that those with a qualifying lease may be protected from cladding remediation costs, even in older buildings. The ruling clarifies the definition of cladding and confirms that safety risks beyond fire, including structural hazards, are covered.

Centre Point House is a mixed-use building in London constructed in the early 1960s (specifically 1963–1966). It features a distinctive façade made of a timber frame, glass, and spandrel panels attached to a concrete structure.

Over the decades, this façade deteriorated significantly. The structure had degraded to the point where some panes of glass were loosening and falling to the street, creating a severe safety hazard to pedestrians and residents. This was not a fire safety issue in the traditional sense, but a structural degradation issue.

The landlord (Almacantar) proposed a major scheme to replace the entire façade, costing over £6 million. They sought to recover these costs from the leaseholders via the service charge.

The leaseholders refused to pay, arguing that the works constituted “cladding remediation” under the Building Safety Act 2022, and therefore, they were exempt from the costs. The landlord argued that the façade was not “cladding” but rather the wall itself (an integral part of the structure), and even if it was cladding, the building was too old (over 60 years) to trigger the Building Safety Act protections.

Certain leaseholders applied to the First-tier Tribunal to challenge the costs of this intended work.

The First-tier Tribunal ruled in favour of the leaseholders on all counts. They determined that the building’s façade – the timber frames and panels attached to the concrete core – did indeed count as a “cladding system”. It was a non-loadbearing skin applied to the primary structure.

The First-tier Tribunal ruled that “unsafe” has its ordinary meaning. A façade dropping glass onto pedestrians is clearly unsafe. Finally, the FTT ruled that the 30-year time limit applied to other defects but not to Paragraph 8 (Cladding Remediation).

The landlord appealed this decision to the Upper Tribunal hoping to overturn the interpretation of the 30-year rule.

The Upper Tribunal dismissed the landlord’s appeal and upheld the First-tier Tribunal’s decision completely. The Upper Tribunal confirmed that Paragraph 8 is a standalone provision operating independently of the Section 120 “relevant defect” regime and the so-called 30-year rule is not applicable.

There is no requirement for the cladding problem to arise from relevant works and no rule relating to the restriction of time. The landlord’s attempt to import the 30-year limitation into paragraph 8 was rejected.

On the issue of what is cladding, the Upper Tribunal rejected the argument that the façade was integral to the building. They stated that the definition of cladding is a question of fact. Since the timber and glass were attached to the outside of the structural concrete frame, they constituted a cladding system.

Furthermore, the Upper Tribunal agreed that “unsafe” is not limited to fire risks. The Building Safety Act is designed to ensure building safety generally. Therefore, a risk of structural failure makes the cladding unsafe for the purposes of the Act.

If you have a qualifying lease you are protected from the costs of fixing unsafe cladding even if your building is 50, 60, or 100 years old. The “30-year rule” does not apply to cladding remediation.

The protection is not just for combustible cladding. If your building’s external envelope is degrading and posing a risk (for example falling masonry or loose glass panels), it might be covered under “cladding remediation”.

The Upper Tribunal took a practical view of what “cladding” is. Many older buildings with curtain walls or timber frames attached to concrete structures may now fall under this definition, with liability for the cost of replacing unsafe cladding in such building.