Almacantar v de Valk [2025] UKUT 298 – Further Debate about Schedule 8

In his article, Andrew Butler KC examines the recent Upper Tribunal decision in Almacantar v de Valk [2025] UKUT 298 (LC), handed down on 16 September 2025. 

 

The process of deciphering the Building Safety Act 2022 (“the BSA”) continues. In Almacantar Centre Point -v- de Valk [2025] UKUT 298 (LC), 16 September 2025, the Upper Tribunal has decided several points which will be of interest to BSA watchers everywhere.

The battleground in Almancantar was service charges in relation to residential leases at Centre Point House, next to the famous Centre Point building in central London. The FTT had decided that no service charges would be payable by the respondent lessees, on the basis that the works in question were works of cladding remediation and thus fell within para.8 of Schedule 8.

The unusual feature of the case (or an unusual feature of it) was that the cladding remediation which was required was not a relevant defect, as that is defined in s.120(2)  BSA – namely, “a defect … that (a) arises as a result of anything done (or not done), or anything used (or not used), in connection with relevant works, and (b) causes a building safety risk”. It will be recalled that the concept of relevant works relates to works done in the 30-year period before the BSA came into force. The cladding at Centre Point House was older than that, having been installed between 1963 and 1966.

So the main question which arose was whether the protection given by para.8 of Schedule 8 – which, uniquely amongst the Schedule 8 protections, makes no reference to relevant defects – applied. Para.8 provides:

“No service charge payable for cladding remediation

8(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.”

I have to confess that if anyone had asked me this before I had read the arguments in Almancantar, I would not have thought it a very difficult question. To anyone who reads Schedule 8 from the beginning, the word “relevant” appears so often that it starts reverberating around inside one’s head, so its absence in para.8 stands out like a sore thumb. I had always therefore read para.8 as an exception to the general run of Schedule 8 protections for that reason. That is indeed the conclusion the Upper Tribunal reached – but I have to accept (and chapeau to Counsel for the freeholder for this) that the arguments to the contrary were powerful.

Counsel for the freeholder pointed out that s.116(1) provides that ss.117-24 make provision in connection with the remediation of relevant defects in relevant buildings”. Furthermore, s.122, which introduces Schedule 8, states that Schedule 8 “provides that certain service charge amounts relating to relevant defects in a relevant building” are not payable. So the concept of relevant defects appears twice in the provisions which introduce Schedule 8. Counsel then cited caselaw to the effect that a schedule to an Act is generally confined to matters of detail rather than matters of principle, and that the Explanatory Notes to the BSA (in particular paras.984-5) also supported this limited reading of Schedule 8.

Notwithstanding the power of these points, the view that para.8 stood outside the package of protections offered by Schedule 8 in relation to relevant defects held sway. The words of para.8, said the tribunal, were “clear and unambiguous” and accorded with ministerial statements made at the time the BSA was enacted. The tribunal acknowledged that the protections were “largely” limited to works done in the 30 year period prior to the coming into force of the BSA, but they held that para.8 “does not fall within that package of remediation”. They recognised – in answer to a further point made by Counsel for the freeholder – that this also meant that it was not possible to apply for Remediation Orders, or Remediation Contribution Orders, in relation to unsafe cladding which was not a relevant defect. Para.8, they held “has its own integrity and…cannot be criticised as being the result of inadvertence or careless drafting”.

The tribunal therefore went on to consider the next question, which was whether the surface on which the work was required came within the definition of “cladding”. They declined to interfere with the FTT’s decision that it did. No real point of principle arose in this context – the question seemed to involve a somewhat metaphysical debate about whether the surface was part of the external wall system or not – but the Upper Tribunal did agree with the FTT’s conclusion that a surface which is part of the external wall system (and which therefore served design purposes beyond that of purely cladding) could nevertheless constitute cladding. They agreed that if there had only been one composite outside wall, that would not constitute cladding, but that was not what the FTT had found.

The next issue which fell for decision was whether the cladding was “unsafe” within the meaning of para.8. In an argument which had echoes of the debate about the scope of the para.8 protection, the freeholders’ contention was that “unsafe” in this context meant unsafe because of the fire risk it created, rather than (as was the position on the facts) something which became unsafe because of slow degradation as a result of water ingress. Again, the Upper Tribunal rejected this argument; they held that there was no justification for limiting the meaning of “unsafe” in the way that the landlord proposed.

Finally, a curious but potentially important point arose in relation to the provisions governing the meaning of “qualifying lease” in BSA s.119(2), as supplemented by para.13(2) of Schedule 8. s.119(2) sets out four conditions which must be met in order to decide whether a lease is a qualifying lease, but para.13(2) provides that if a lease satisfies the first three of these, it will be treated as a qualifying lease unless the landlord has taken all reasonable steps to obtain a qualifying lease certificate from the tenant and no such certificate has been provided.

It is not entirely easy to decipher what happened in this case, but it appears that the FTT decided (without having heard argument) that the para.13(2) presumption applied and that the leases were therefore qualifying leases. In seeking permission to appeal, the freeholder had challenged the FTT’s jurisdiction to make that determination. The FTT had declined to review their decision and the freeholder sought permission to appeal.

Permission to appeal was granted at the hearing before the Upper Tribunal, but the ground was rejected. The freeholder’s concern appeared to be whether the FTT had made a binding determination of qualifying lease status or whether it remained open to the freeholder to rebut that in future proceedings. The Upper Tribunal declined to provide that clarification. They took the view that in the absence of evidence to the contrary, the FTT had simply applied the presumption.

The lesson for the freeholder here is that, if they intend to challenge the status of a lease as a qualifying lease, they should do so at first instance, and that if they do not, the point may be determined against them on the basis of the statutory presumptions. That is what happened here, although whether the freeholder would be able to challenge the point in future proceedings was not decided.

The jigsaw of the BSA continues to be put together. Almacantar has certainly supplied a few more of the pieces.