Housing and Communities, the Homes and Communities Agency (Homes England) and any person with a legal or equitable interest in the relevant building or any part of it, including leaseholders. This guidancedocument explainsprovides whena framework for any person considering making an application for a remediation order.

Building owners are responsible for complying with their legal obligations to keep their buildings safe. The government expects local authorities and howfire and rescue authorities to applytake enforcement action against building owners who are stalling on remediation, including applying for anremediation orders where appropriate. In some situations, leaseholders may wish to make their own application for a remediation order.

A remediation order is made by the Property Chamber of the First-tier Tribunal to require a relevant landlord to remedy specified building safety defects. A relevant landlord is the company or individual who has an obligation under a lease of the building, or by virtue of an enactment, to repair and maintain those parts of the building in need of remediation. See section 2.2.2 for more information about relevant landlords.

Remediation orders can be made in respect of self-contained residential buildings that are at least 11 metres high or have at least five storeys and contain at least one relevant defect. A relevant defect is defined in the Building Safety Act 2022.Applications are madeas toa thedefect First-tierthat Tribunalhas (Property Chamber).arisen from anything that has been done (or not done), or anything used (or not used), in connection with relevant works, and causes a building safety risk. See section 2.2.3 for more information about relevant defects.

InThis document does not constitute legal advice. Interested persons should seek their own legal and expert advice when considering making an application for a remediation order and should not rely on this guidance,document.

1.2 ‘theLocal Act’authority meansand fire and rescue authority enforcement powers in residential buildings

In addition to their powers under the Building Safety Act 2022.2022, Alllocal otherauthorities lawsand fire and regulationsrescue authorities have enforcement powers under the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005, respectively, that can be used where safety requirements in residential buildings are givennot theirmet. fullIt titles.

Whois thisnot guidanceexpected that remediation orders are used in every enforcement situation. Local authorities and fire and rescue authorities should determine which piece of legislation is for

most appropriate on a case-by-case basis.

ThisThe guidancegovernment isencourages forlocal anyoneauthorities makingand orfire subjectand rescue authorities to work together to ensure they have an applicationeffective forpartnership working protocol and/or memorandum of understanding in place. Regular communication and collaboration should take place at both a strategic and operational level.

Having an effective partnership working protocol in place will enable local authorities and fire and rescue authorities to share information proactively, prioritise resources and coordinate enforcement activity under their respective regimes, on buildings that may require enforcement action. It will also allow local authorities and fire and rescue authorities to review and agree on policy and procedural matters regarding enforcement.

The government encourages local authorities and fire and rescue authorities to make use of their new power to bring remediation order,orders including:against building owners who are failing to progress remediation on their unsafe buildings.

• residentsIt will depend on the details of the building as to whether the local authority or fire and rescue authority, or both, are best placed to take enforcement action. Local arrangements and protocols will vary. Both authorities should consider, ideally in conversation with one another, which legislative regime and enforcement action route is likely to be the most appropriate, taking into account the individual circumstances of each case. When taking enforcement action, regulatory bodies should make sure they are following the Regulators’ Code - a framework for how regulators should engage with those they regulate.

• ResidentSee ManagementChapter Companies4 (RMCs)for other useful documents on effective partnership working.

• 2. Guide to remediation orders

  RightThis Tochapter Managesets (RTM)out companieskey information about remediation orders including key definitions, pre-action correspondence, the application process, and the Tribunal process.

• Remediation orders were introduced to ensure that essential remediation work to remedy relevant defects takes place where landlords are not fulfilling their legal obligations to make their buildings safe.

• ownersA remediation order allows an interested person (see 2.1.1) to apply to the Property Chamber of the First-tier Tribunal for an order requiring a relevant landlord of a relevant building to remedy specified relevant defects by a specified time.

• leaseholdersIf a relevant landlord has failed to remedy a relevant defect, or has stalled remedial works, a remediation order can be used to compel them to fix the relevant defects within a specified time.

•   2.1 Key definitions 

  propertyThis managementsection companiessets out key definitions relating to remediation orders. 

• 2.1.1 Interested person 

  regulatorsThe includingBuilding localSafety authorities,Act 2022 and accompanying regulations specify the parties who can apply for a remediation order, known as interested persons. These are:

  • the Building Safety Regulator,Regulator Homes(the EnglandHealth and Safety Executive)
  • the local authority for the area in which the relevant building (see 2.1.3) is situated
  • the fire and rescue services
    authority for the area in which the relevant building is situated

  • anyonea person (company or individual) with a legal or equitable interest in the relevant building

    (for example, a residential leaseholder)
  • the Secretary of State for Levelling Up, Housing and Communities, under The Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022
  • the Homes and Communities Agency (Homes England), under The Building Safety (Leaseholder Protections etc.) (England) (Amendment) Regulations 2023

  2.1.2 Relevant landlord 

  ThisA guidanceremediation order is notan legalorder advice.made Youagainst shoulda getrelevant yourlandlord own(Building legalSafety andAct, technicalsection advice123). ifA yourelevant arelandlord consideringis andefined application.

  Whenas a remediationlandlord orderunder cana belease made

  of the building or any part of it who is required, under the lease or by virtue of enactment, to repair or maintain anything relating to a relevant defect. This is commonly known as a repairing obligation.

  AThe remediationrelevant orderlandlord canwill onlynot necessarily be madethe forfreeholder. Examples of a relevant buildinglandlord include a freeholder, superior landlord (e.g., head lessee) or a management company that hasis atparty leastto onethe lease. The relevant defect.landlord is the party with the repairing obligation for that building.

  Check

  In buildings with complex ownership structures, there might be multiple entities with repairing obligations for different parts of the buildingbuilding. isSee asection 2.2.2 for more information about the relevant building

  landlord.

  2.1.3 Relevant building 

  Remediation orders can only be made in respect of relevant buildings (Building Safety Act 2022, section 117). The definition of relevant building contains three elements that must be taken together for the relevant building status to be established. A relevant building is defined as a building in England and:that:

  • is a self-contained building (oror a self-contained part of a building)

    building

  • contains at least 2 dwellings

  • is at least 11 metres high or has at least 5 storeys

  ReadAs howset out in section 117(4), a building heightis self-contained if it is measuredstructurally indetached. DefinitionSection 117(5) sets out that a part of ‘relevanta building’building may be ‘self-contained’ if:

  Check

  • the therepart isconstitutes a vertical division of the building
  • the part could be redeveloped independently of the rest of the building
  • the relevant defectservices provided for occupiers in that part are provided independently, or could be provided without significant interruption to services used by occupiers in the rest of the building if works are carried out. Relevant services means services provided by means of pipes, cables or other fixed installations.

  Section 118(2) sets out that the height of the building is to be measured from ground level to the floor of the top storey. Any storeys below ground level are to be disregarded, and mezzanine floors are only counted as storeys if their internal floor area is at least half of the largest storey in the building above ground level.

  2.1.4 Relevant defect 

  A relevant defect is defined in section 120 of the Building Safety Act as a defect that:

  • ariseshas arisen from workanything that has been done (or not done)done), or anything used (or not used)used), in connection with relevant works

  • createscauses a building safety risk. A building safety risk (tois a risk to the safety of people in or about the building arising from firethe spread of fire, or structuralthe collapse)

    collapse of the building or any part of it

  • washas been created in the relevant periodperiod, defined as the 30 years prior to the leaseholder protections coming into force (28 June 1992 to 27 June 2022)

  • relates to construction,at conversionleast one of the following types of works (which are referred to as ‘relevant works’):

    • the construction or conversion of the building, if the construction was completed in the relevant period;
    • works undertaken or commissioned by or on behalf of a relevant landlord or management companycompany, if the works were completed in the relevant periodperiod, or or;
    • works doneundertaken after the end of the relevant period to remedy a relevant defect
      defect.

  ExamplesWhere include:work has been done after the relevant period, and that work is faulty, resulting in the need for further work, then this would also be considered as relevant works.

  So long as the above criteria are met, examples of relevant defects could include, but are not limited to:

  • unsafe cladding systems

  • flammable balconies and other external attachments

  • lack of compartmentation between flats

  • defective building foundations

  CheckDefects thethat definitionhave ofarisen ‘relevantin defect’.

  Checkconnection whowith the orderprovision canof beprofessional madeservices against

  Aare remediationalso orderincluded isin madethe againstdefinition aof relevant landlord.defects Aaccording relevantto landlordsection is120(4). aThis landlordcould asinclude, statedfor inexample, aif leasean ofarchitect theor building (ordesigner partspecified inappropriate use of it)flammable whomaterials mustand repairthe orcontractor maintainfollowed anythingthose relatingdesigns.

  2.2 Gathering information to thesupport relevanta defect.remediation order case 

  This section sets out the key areas where supporting information is oftenlikely calledto be required for a repairingremediation obligation.order case. 

  TheIt relevantis landlordthe willapplicant’s notresponsibility alwaysto begather theinformation freeholder.and Itbuild coulda becase for a managementremediation companyorder thatapplication. isThe partyinformation toin thethis lease.document Indoes somenot buildings,constitute morelegal thanadvice. oneWhere personpotential mayapplicants haveare repairingunsure obligationsabout forthe differentevidence partsgathering ofrequirements theand/or building.

  Whatprocess, youthey needshould toseek provetheir inown yourlegal application

  advice.

  When presenting yourtheir case,case youto the First-tier Tribunal, applicants need to show that:

  • the building is a relevant building

    (see 2.1.3 and 2.2.1)

  • the respondent (the person against whom the remediation order is made) to the order is a relevant landlord

    (see 2.1.2 and 2.2.2)

  • there isexists at least one relevant defect in the building

    (see 2.1.4 and 2.2.3)

  The tribunalFirst-tier Tribunal may also need to be presented with evidence to decide:determine:

  • whatthe workworks isrequired needed to fixremedy the relevant defect(s)

    in question

  • whatthe timescale isfor reasonable

    doing so

  Gather

  Local evidenceauthorities and fire and rescue authorities may wish to consider whether they already hold any information that could be used in support yourof case

  It’stheir yourapplication responsibilityfor a remediation order, or if they can use any of their other statutory powers to gatherobtain evidencethis forinformation yourif application.they Thedo evidencenot youalready needhold dependsit. onEvidence thecan buildingalso andbe gathered as part of the defects.remediation order process. 

  ThisThe guidancefollowing issections notset legalout advice.the Youevidence shouldrequired getto yoursupport owna legalremediation andorder technicalapplication.

  2.2.1 adviceRelevant ifbuilding

  The youinformation arerequired consideringto anshow application.

  Evidencethat a building is a relevant building will depend on the case. Whether the building is a relevant building

  In will usually be a matter of fact and, in many casescases, thisis willunlikely to be straightforwardcontroversial (foror example,disputed confirmingby the respondent. Potential applicants should be able to confirm how many storeys are in the building, and numberthat ofit dwellings).

  Evidencehas couldat include:least two dwellings, by conducting a visual inspection.

  • aDocumentation firethat riskmay appraisalprovide ofappropriate externalevidence wallsthat (FRAEW)

  • athe firebuilding riskmeets assessment

  • the requirements includes, but is not limited to, photographs of the building showing the number of storeys

  • storeys, a Land Registry title plan

  • planningplan, documents relating to planning applications, a fire risk assessment, or a fire risk appraisal of external walls (FRAEW).

  Evidence

  2.2.2 Relevant landlord 

  A relevant landlord is defined as a landlord who has an obligation to repair or maintain the respondentbuilding. This is commonly known as a relevantrepairing landlordobligation. 

  CheckLeases of flats in the building should set out where the repairing obligation inlies. theFor lease.example, Itthe mayobligation sitcould lie with the freeholder, head leseelessee, or a management company. YouHowever, this may not be the complete answer and there may be other agreements, or documents, relating to the building which will also need to be reviewed to check otherthe agreementsposition. orThe documents.

  Evidenceidentity couldof include:

  • the leasecurrent party will also need to be confirmed, and in some circumstances the repairing obligation may rest with a number of parties, and all of these will need to be identified.

  • Documentation such as Land Registry title registers

  • or the landlord’s certificate may also be appropriate to support the position that the landlord is a relevant landlord. 

    Under the Building Safety (Leaseholder Protections) (England) Regulations 2022, a landlord must provide a certificate to a leaseholder in a series of instances, including where they want to pass on part of the cost of remediation to leaseholders. The certificate must contain information about the current landlord under the lease, at the time the certificate was provided, and any work undertaken on relevant defects since 28 June 2017. The information will need to be checked to confirm it is accurate and up to date.

  Evidence

  2.2.3 thereRelevant defect

  The types of evidence required to show that the defect is a relevant defect will depend on the case.

  Potential applicants may need technical advice to establish what evidence will be required to prove that the building has at least one relevant defect.

  At the initial application stagestage, youapplicants must identifybe able to show that there exists at least one relevant defect in the relevant building and describeprovide itdetails inof this within the BSA1 form.

  Evidenceform. couldThe include:BSA1 form is the form that is submitted to the First-tier Tribunal to apply for a remediation order.

  • Documentation such as a surveyor’s report or other technical reports

  • reports, a fire risk assessmentassessment, a FRAEW, or FRAEW

  • informationthe fromcontents of a landlord’s certificate may be appropriate to evidence the relevant defect. For example, a surveyor’s report describing the condition of the building, together with the surveyor’s opinion on whether this amounts to a relevant defect, may be appropriate evidence to support an application.

  • You can also use notices or reports issued by local authorities or fire and rescue authorities under the Housing Act 2004 orand the Regulatory Reform (Fire Safety) Order 20052005. It will ultimately be at the First-tier Tribunal’s discretion what evidence, from the information provided, they consider when making their decision.

  IfWhilst applicants only need to identify at least one relevant defect at the application stage, by the date of the final Tribunal hearing, the First-Tier Tribunal will require detailed evidence of the specified relevant defect(s) to support the Tribunal in deciding whether to make an order, and the contents of that order, requiring those specified relevant defects to be remediated by a specified time.

  In circumstances where, at initial application stage, the existence of some relevant defects may be known but the full extent of relevant defects ismay not known,be, youthe mayapplicant proposecould consider proposing in yourtheir application form (see Chapter 2.4) that establishing a full list of relevant defects and remedial work required is factored into the tribunalTribunal process.process (see Chapter 2.5).

  2.3 Pre-action correspondence

  This (beforesection yousets apply)

  Beforeout applying,information it’sabout expectedwhat thatmay yoube sendincluded ain letterpre-action correspondence. Pre-action correspondence is the communication exchanged between the parties before makingan aapplication claimis made to the respondent,First-tier asTribunal. It is an expected part of the pre-action correspondence,process givingthat thema anletter opportunitybefore claim is sent to resolvethe respondent before the case.

  Youapplicant shouldsends seektheir legalremediation adviceorder aboutapplication to the contentFirst-tier andTribunal. strategyThe forrespondent pre-actionmay correspondence.choose to respond to the letter before claim.

  Pre-actionA correspondenceletter can:before claim has multiple purposes:

  • notifyit notifies the respondent about the potential claim

  • askit themay respondentseek action to takebe action

    taken by the respondent

  • requestit ormay share and / or it may request relevant documents

  • clarifyit themay scoperesult ofin the issues between the parties

    being narrowed, which should shorten the procedure before the Tribunal and save both parties costs

  • it may propose the parties consider alternative dispute resolution

    which, if successful, may avoid the need to go to the Tribunal, and / or

  • it can set a clear timetable for the respondent to respond, with the provision that if the respondent does not provide a response

  • saveresponse, the potential costsapplicant formay bothissue parties

    proceedings without further notice

  IfThe respondent may choose to respond to the respondentletter agreesbefore claim and may agree with somethe points,applicant’s itstatements. For example, they may agree that they are the relevant landlord, and / or may be prepared to agree the extent of the relevant defects, and this agreement could be used in support yourof any application, showingto mattersshow thatthese matters are not in dispute.dispute between the parties.

  Apply

  The response to the letter before claim is likely to determine the potential applicant’s next steps. The next steps in the process will depend on the details of the case.

  Pre-action correspondence is beneficial for various reasons. It offers a remediationpossibility order

  for parties to resolve the case or narrow the issues in dispute without the need for litigation, which should ultimately be a last resort. Applicants may also use pre-action correspondence to establish certain facts by seeking out or sharing documents.

  IfIt should be noted that the mattercontents isof notthe resolvedpre-action throughcorrespondence will differ depending on the circumstances of the case and the strategy being adopted by the applicant.

  Applicants should seek their own legal advice about the content and strategy for pre-action correspondence.

  2.4 The remediation order application

  Depending on the outcome of the pre-action correspondence, youthe canapplicant applymay decide that a remediation order application to the First-tierFirst-Tier Tribunal.Tribunal is required. This section sets out the next steps in the remediation order application process, once the pre-application process is complete.

  What

  The yourBuilding Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022 make clear there are four formal requirements that a remediation order application must include

  and will be requested in the BSA1 application form. The application for the remediation order must:

  • state it is an application under section 123 of the Building Safety Act

  • identify the building

    to which the application relates

  • identify the defect(s)defects youto wantthe itbuilding tofor cover

    which a remediation order is sought

  • identify the relevant landlord youwhich believethe applicant considers is responsible

    for repairing or maintaining anything relating to the relevant defects

  IncludeEvidence supporting evidencean application for a remediation order should show that the criteria set out above are met.

Step

There 1:are Completethree andparts submitto applying for a remediation order, two of which are optional and/or at the discretion of the First-Tier Tribunal:

• completing the BSA1 application form

You must(see submit2.4.1). This step is required.

submitting a bundle of documents (see 2.4.2). This step is optional unless requested by the First-tier Tribunal.

submitting a Statement of Case (see 2.4.3). This step is optional unless requested by the First-tier Tribunal.

2.4.1 BSA1 application form

The BSA1 application form needs to startbe submitted to the First-tier Tribunal to begin the remediation order process.

Send itThe form will need to be submitted to the tribunalTribunal regionalRegional officeOffice that is responsible for the area wherein which the relevant building is locatedlocated. (addressesApplicants arecan find the addresses of Tribunal Regional Offices in the formAnnex annex).of the BSA1 application form.

The BSA1 form asks for:for the following information:

• yourdetails informationof (name,the applicant

• the address andof contactthe details)
  subject property (i.e., the relevant building to which the application relates)

• whya youbrief aredescription of the relevant building and the applicant’s connection with the property (i.e., the identity of the applicant, who must be an interested person

  person)

• details of the buildingrelevant addresslandlord (including name, address, and basiccontact description

  details)

• detailsdefects ofto the building for which a remediation order is sought (at least one relevant landlord

  defect will need to be specified)

• reasons for yourthe application

  (e.g., the issues in dispute)

• details of the order sought

  (i.e., what it is that the applicant wants the respondent to do)

• whether there are any other existing applications involving the relevantsame defect(s)

  landlord or property mentioned in the application

• hearingwhether preferencesthe applicant would be content with a paper determination if the Tribunal thinks it appropriate (meaning that your application is dealt with entirely on the basis of written representations, without the need for parties to attend a hearing and make oral representations)

• availability
  (e.g., any dates the applicant will not be available for, or should be avoided for the convenience of any witnesses or experts that may be called upon)
• whether there are any requirements required for the applicant or persons attending the hearing

• a statement of truth

  (e.g., applicants must sign that they believe the facts stated in the form are true)

Step

Much 2:of Providethe supportingabove documentsmay (optional)

have been set out and/or shared as part of the pre-action correspondence process, specifically information showing that the case is eligible for a remediation order as the application is against a relevant landlord in respect of a relevant building with at least one relevant defect.

TheApplicants tribunalmay consider whether there are any third parties that may askbe youable to provide documentsadditional information to support yourtheir case.

This Third parties could include:include current or former leaseholders.

• 2.4.2 Submitting a ‘bundle’

  titleFollowing the receipt of the BSA1 application, the applicant may be asked by the First-tier Tribunal to provide a number of documents, which are referred to as a ‘bundle’. The bundle will consist of documents

• that will be used to support the case for a remediation order. The Tribunal will inform the applicant as to which documents are required. The types of documents requested by the Tribunal will depend on the details of the case but may include title documents, a sample lease

• and any commissioned reports identifyingwhich identify the relevant defectsdefects.

Step

It 3:should Providebe anoted statementthat, if the applicant sends key documents with their BSA1 application, then this step may not be required. The types of casedocuments (optional)

requested will depend on the details of the case.

2.4.3 Statement of Case

TheAn tribunalapplicant, maywhilst directnot youobliged to, may wish to providesend a statementStatement of case,Case whichalongside usuallythe setsBSA1 out:form. A Statement of Case consists of a document, or multiple documents, that set out the facts of an applicant’s case. It enables the applicant to provide additional detail to their case.

A Statement of Case would typically include:

• details about how the eligibilityrelevant criteria arefor a remediation order have been met

  (e.g., that there is a relevant building, the respondent is the relevant landlord, and there exists at least one relevant defect)

• whatbrief (ifdetails anything)of happenedthe response from the respondent at pre-action stage

  (if any)

• why ana remediation order isapplication needed

  has been necessary

• additional evidence aboutrelating theto relevant defects, requiredremedial worksworks, and athe reasonablespecified completiontime date

  to complete the works

YouIf cana alsoStatement includeof relevantCase evidenceis fromnot thirdissued parties,alongside suchthe asBSA1 currentform, orthen formerthe leaseholders.First-tier Tribunal may request that a Statement of Case is lodged by the applicant during the Tribunal process.

What

2.5 happensThe afterTribunal youprocess

This applysection sets out the stages that an applicant may expect to follow, once the First-tier Tribunal has received the remediation order application and considered the case.

Applicants should seek their own legal advice during the Tribunal process.

The tribunalFirst-tier controlsTribunal has wide powers as to the processmanagement andof the Tribunal process. However, the remediation order process may useinvolve the following indicative stages:

• if the applicant has not done so already, directions (instructions issued by the Tribunal which bind both parties) for the applicant to produce a rangeStatement of Case
• directions for the respondent to produce a Statement of Case in response to the application (see 2.5.1 below)
• a case management powers.hearing (see 2.5.2)
• a final hearing (see 2.5.3) that will take place before a remediation order is made, unless the parties have indicated and/or agreed that they will be content with a paper determination and the First-tier Tribunal thinks it appropriate

The stepstimescale belowof arethe typicalTribunal butprocess will varydepend on the case and will be presided over by case.a Tribunal Judge. In some cases, it may be that multiple case management hearings are required before a final hearing takes place.

2.5.1 Respondent’s statementStatement of case

Case

TheAs tribunalset out in 2.4.3, the applicant can choose to provide a Statement of Case alongside the BSA1 form at the application stage or the Tribunal may direct the applicant to provide one as part of the Tribunal process.

Following receipt of the applicant’s Statement of Case, the First-tier Tribunal may exercise its case management powers during the Tribunal process and direct the respondent to provide atheir statementown Statement of case,Case including:that addresses the following:

• theirany grounds of opposition

  in relation to the application

• whetherif they disputebelieve the eligibilityqualifying criteria

  are not met (e.g., if the landlord is not a relevant landlord, the building is not a relevant building or the defect in question is not a relevant defect)

• whatif defects they saybelieve dothere orare any relevant defects that do require remediation, and their reasons for not needremediating remediation

  those defects

• whether they agreebelieve on the scope of the relevant defects should be wider or more narrow, and the/ timetable

  or
• whether they agree with the specified period for the remedial works to be undertaken

IfIt youis canexpected didthat notthe provideFirst-Tier aTribunal statementwill ofhold a case duringmanagement yourhearing application,at a reasonable period after the tribunalStatement mayof askCase youhas tobeen submitsubmitted, oneif afterthe yourespondent apply.has been directed to complete one.

2.5.2 Case management hearings

A case management hearing is where the Tribunal Judge decides the next steps in the process. The Tribunal Judge will make directions (i.e., instructions to the relevant parties on how they are to prepare the case) setting out how the case will progress and what actions the parties are required to take and when. The Tribunal may give a direction at any time, including a direction amending, suspending, or setting aside an earlier direction.

The tribunalnumber of case management hearings and directions issued by the Tribunal Judge will differ depending on the details of the case. It may holdbe that only one orcase management hearing is required. For more complex cases, multiple case management hearings tomay setbe directionsrequired.

The oncase nextmanagement stepshearing andis alikely timetable,to including:consist of the following stages:

• documentthe searchesTribunal Judge will listen to oral submissions from both parties and disclosureidentify (includingthe documentsissues thatin dispute
• where appropriate, the Tribunal Judge will inform both parties about the availability of alternative dispute resolution procedures. If the alternative dispute resolution is compatible with the overriding objective, and the parties wish to proceed with this route, the First-tier Tribunal may notseek to facilitate the use of this procedure
• a procedural timetable is laid out setting out the directions that the parties must follow

 The supportprocedural yourtimetable case)may include all or some of the following directions:

• exchange the parties to carry out a reasonable search for documents and disclose copies to the other party. These are usually documents which are relevant to the issues in the application and include not only documents which each party intends to rely on, but also documents that may adversely affect their case. Disclosure of witnessdocuments statements

  is therefore not limited to documents which are helpful to a party’s case. Applicants should note that electronic and third-party communications may also be disclosable.

• how experts may be appointed by the Tribunal to give evidence in relation to the relevant defects, the scope of remediation works required and the timescales (it will depend on the particular case and what, if any, expert evidence will be handledpermitted). For the Tribunal to make a sufficiently clear and precise order, they will need information about the works required to remedy the relevant defect. The works required will be set out by the Tribunal in the remediation order and will be case dependent. By the date of the final hearing, the Tribunal will require evidence as to the works required to remedy the relevant defects, although they may not require the applicant to propose a detailed schedule of works. Types of evidence needed to show the works required to remedy the relevant defect will also differ depending on the case.

• a timetable for exchange of witness statements.

It should be noted that the First-tier Tribunal has the following powers under The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013:

• Rule 20 sets out that the First-tier Tribunal can order any person to produce any documents in that particular person’s possession or control which relate to any issue in the proceedings

• whether Rule alternative6 disputesets resolutionout that the Tribunal can permit or require a party or another person to provide or produce documents, information or submissions to the Tribunal and/or a party

• under Rule 21, the Tribunal can inspect the land, property or premises which is the subject of the application, providing that it obtains all appropriate
  consents to its request for entry

TheIt tribunalis mayat alsothe inspectFirst-tier Tribunal’s discretion to exercise the buildingabove (subjectpowers toand consents).this decision will depend on the specifics of each case.

2.5.3 Final hearing

before a decision is made

MostAt hearingsthe arefinal publichearing, (withthe exceptionsTribunal setJudge outwill inreview the tribunalevidence rules).and make a decision. Subject to certain exceptions, the Tribunal must hold a hearing before making a decision that brings proceedings to a close.

AtThe First-tier Tribunal may make a decision without a hearing if either or all parties involved agree, or if the Tribunal gives notice to the parties involved and no party objects to the proceeding. See Rule 31 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013 for more information about decisions with or without a hearing.

During the final hearing, each party will present and summarise their case. The applicant will need to set out why a remediation order is required and the tribunalterms of the order it seeks. The respondent is likely to set out why it opposes the order sought. It may be that witnesses will hearbe fromrequired bothto parties,give consideroral expertevidence at the hearing (this will normally be during the case management hearing).

As set out in Rule 33(1) of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, subject to some exceptions, all hearings must be held in public. See Rule 33(1) for information about the exceptions.

The final hearing may include the following events:

• the applicant or their representative may begin the hearing by summarising the questions the Tribunal has to decide on
• the applicant’s witnesses may be called in turn to give evidence on oath or affirmation:
  • usually, each witness is asked to give their name, address and to confirm the contents of their statement is true
  • the respondent or their representative may then cross-examine the witness about the contents of their statement, and
  • if the applicant or their representative has any questions for the witness which arise from the cross-examination, they can ask questions.

    them once cross-examination has finished.

• the respondent’s witnesses may then be called to give evidence. The decisionprocedure is similar to that of the applicant. The applicant or their representative may cross-examine and enforcementthe respondent or their representative may ask further questions if permitted
• the respondent or their representative will put forward their case, referring to the evidence that has been given
• the applicant or their representative does the same
• experts will give evidence
• the Tribunal Judge may ask questions at any time

2.5.4 The tribunaldecision

In judgesome cases, the Judge may give an oral decision at a hearing. They may also provide detailed reasons for the hearingdecision butat willthe oftensame issuetime. aIn writtenmost cases, however, the Tribunal will make a decision after the hearing, with reasons.the reasons for the decision set out in writing and sent to all parties involved.

AThe Building Safety Act 2022 makes clear that a First-tier Tribunal decision (othermade under or in connection with a remediation order, other than onea decision ordering the payment of a sum)sum, canwill be enforcedenforceable with the permission of the County Court. Proceedings will function in the same way as under orders of that Court.

2.5.5 Costs

RemediationIn orderthe proceedingscase areof generallyremediation ‘costorders, neutral’.the ThisFirst-tier meansTribunal eachprocess partyis payscost itsneutral, meaning that parties will have to bear their own legalcosts. costs,Schedule regardless8 of the outcome.Building TheSafety Act 2022 also prevents legal costs incurred inas fixinga result of a relevant defect being passed toonto qualifying leaseholders. This includes costs relating to legal advice and tribunal proceedings, in respect of the remediation order process.

Remediation

At present, there are no application or hearing fees for any of The Building Safety Act 2022 cases.

It should also be noted that under Rule 13 of The Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, the First-tier Tribunal may make an order in respect of costs if a person has acted unreasonably in bringing, defending or conducting proceedings. Guidance from HM Courts & Tribunal Service on what costs and leaseholderexpenses protectionsmay (whatbe applicantsrecoverable in the First-tier Tribunal makes clear that, to make such an order under Rule 13, the Tribunal must be satisfied that the conduct of the party is unreasonable.

Interested persons who are considering applying for a remediation order should consider)seek their own legal advice throughout the process and should not rely on the information provided in this document.

3. Remedial cost liabilities associated with relevant defects

When

Potential applicants should consider and familiarise themselves with the Building Safety Act 2022’s leaseholder protections, which may alter liabilities for remediation costs, when deciding whether to apply for a remediation order and against whom,whom. youThis shouldchapter seeksets legalout advicewhere toliabilities understandfor theremediation leaseholdercosts protectionsassociated with relevant defects and works required under remediation orders may sit under the Act,Building asSafety theseAct may2022. alterThis liabilitiesincludes the position for right-to-manage companies (RTMs) and resident management companies (RMCs) in relation to cost liabilities and remediation costs.orders.

3.1 Leaseholder protections under the Building Safety Act 2022

LeaseholderThe Building Safety Act 2022 protects leaseholders by limiting, or preventing altogether, the costs that can be passed through the service charge to qualifying leaseholders in connection with historical building safety defects (relevant defects). Statutory protections for leaseholders are provided for under:

Sections

• sections 116 to- 125 of and Schedule 8 to the Building Safety Act 2022. These provisions came into force in June 2022. Two further sets of regulations, the Act,Building Safety (Leaseholder Protections) (England) Regulations 2022 and amendingthe leaseholderBuilding protectionSafety regulations,(Leaseholder Protections) (information etc.) (England) Regulations 2022, limitcame orinto preventforce costsin beingJuly passed2022 throughto make additional provisions relating to leaseholder protections under the serviceBuilding chargeSafety Act 2022.
• amending regulations that came into force in February 2023 to qualifyingamend leaseholdersthe definition of “associated persons” in the Building Safety (Leaseholder Protections) (England) Regulations 2022 for historicalthe buildingpurpose safetyof defects.
  calculating the contribution condition
• amending regulations that came into force on 5 August 2023 to clarify the leaseholder protection regulations

Under the Building Safety Act’s statutory leaseholder protections,protections (Schedule 8), remediation costs cannot be passed on to leaseholders, subject to certain exceptions. Where the landlord is not responsible for the relevant defects in the building, and does not have a net wealth of at least £2 million per relevant building (known as the contribution condition, they may be able to recoup a capped contribution from qualifying leaseholders. Any costs which cannot be recovered from leaseholders,leaseholders they must be met by the landlord. Landlords who refuse to meet their financial liabilities under the Act and Regulations are acting unlawfully.

Right

See ToChapter Manage4 (RTM)for companiesuseful documents on the regulations and residentremediation managementcosts companiesin (RMCs)relation to leaseholders.

3.2 RTMs and RMCs: Repairing obligations

AnRTMs and RMCs are typically leaseholder-run entities that are responsible for the management of their building. RMCs are usually party to the lease (along with the landlord and the leaseholder), but an RTM company is formed by leaseholders and the right to takemanage overis buildingacquired management.by Anthem RMCexercising istheir usuallystatutory partyright to thetake leaseover (withmanagement landlordof anda leaseholder).building. In some cases, repairing obligations may lie with the RMC.

IfAs anset RMCout hasin theChapter repairing2.1.2, obligation,a itrelevant maylandlord against whom a remediation order can be sought, is a party who has a repairing obligation under the lease for the relevant landlord.building. Enforcement actionaction, (includingincluding application for a remediation orderorder, application)can maytherefore be taken against it.RMCs Youif shouldrepairing considerobligations gettinglie legalwith advicethem. beforeHowever, if a prospective applicant is considering applying for a remediation order against an RMC.RMC, it is recommended that legal advice should be sought.

3.3 RTMs and RMCs: Liability for costs

EvenUnder regulations and the Building Safety Act’s Schedule 8, any costs (which would otherwise be lawfully recoverable as service charge) above the contribution caps which cannot be recovered from leaseholders, are to be met by building owners. Find out more at Leaseholder contribution caps - GOV.UK (www.gov.uk).

This cost liability applies equally at buildings where there is an RTM or an RMC haswith a repairing obligation,obligation in place. While the liabilityrepairing forobligation costsmay thatlie cannotwith bethe recoveredRMC, the liability to meet costs not recoverable from leaseholders sitslies with the building owner,owner. RTMs and RMCs are not theliable RTMfor orcosts RMC.not RTMsrecoverable from leaseholders and RMCsare mustrequired to recover thosethese costs from building owners. This is provided for under regulations 3(3), 4(2) and 5(7) of the buildingBuilding owner.Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022.

Remediation

The contributionlandlord, orders

named manager, RTM or RMC must give notice to landlords or building owners of their liability to pay for relevant measures in relation to a relevant defect under the Building Safety (Leaseholder Protections) (Information etc.) (England) Regulations 2022. The landlord or building owner must then pay the RMC or RTM the amount for which they are liable.

Section 124 of the Building Safety Act 2022 introduced an additional civil remedy known as a remediation contribution orders.order. TheseShould a landlord or building owner refuse to meet their cost liabilities under the Act and Regulations, an application for a remediation contribution order can be usedmade towith recoverthe intention of recovering costs incurredincurred, (oror to be incurred)incurred, in remedying relevant defectsdefects. whereFurther aguidance currenton orremediation formercontribution landlord,orders developerwill be published in due course.

If those landlords or associatedbuilding entityowners refusesrefuse to meet their liabilities.

Othercost enforcementliabilities optionsassociated forwith regulators

Localrelevant authoritiesmeasures andfollowing fireservice andof rescuethe authoritiesappropriate alsonotice, haveor powersfail under:

• to appeal the Housingnotice, Actthen 2004

• action for a civil debt may be taken by the RegulatoryRTM Reformor (FireRMC Safety)against Orderthem 2005

Ato remediationrecover orderthese willsums. notA berelevant appropriatemeasure is defined in everySchedule case.8 Regulatorsof shouldthe decideBuilding whichSafety legalAct route2022 a measure, in relation to usea basedrelevant ondefect, taken to remedy the circumstances,relevant anddefect, workor togetherfor locallythe wherepurpose needed.of preventing a relevant risk from materialising, or reducing the severity of any incident resulting from a relevant risk materialising.

4. Relevant documents

RegulatorsThe shoulddocuments alsolisted followbelow are referenced in the Regulators’guidance Code.