Guidance on the use of remediation orders
Guidance for local authorities and fire and rescue services on the use remediation orders, a Building Safety Act 2022 enforcement power.
Applies to England
This guidance explains when and how to apply for an order under the Building Safety Act 2022.Applications are made to the First-tier Tribunal (Property Chamber).
In this guidance, ‘the Act’ means the Building Safety Act 2022. All other laws and regulations are given their full titles.
Who this guidance is for
This guidance is for anyone making or subject to an application for a remediation order, including:
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residents
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Resident Management Companies (RMCs)
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Right To Manage (RTM) companies
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landlords
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owners
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leaseholders
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property management companies
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regulators including local authorities, the Building Safety Regulator, Homes England and fire and rescue services
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anyone with a legal or equitable interest in the building
This guidance is not legal advice. You should get your own legal and technical advice if you are considering an application.
When a remediation order can be made
A remediation order can only be made for a relevant building that has at least one relevant defect.
Check the building is a relevant building
A relevant building is in England and:
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is a self-contained building (or a self-contained part of a building)
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contains at least 2 dwellings
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is at least 11 metres high or has at least 5 storeys
Read how building height is measured in Definition of ‘relevant building’
Check there is a relevant defect
A relevant defect is a defect that:
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arises from work done (or not done) or anything used (or not used) in connection with relevant works
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creates a building safety risk (to people from fire or structural collapse)
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was created in the relevant period (28 June 1992 to 27 June 2022)
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relates to construction, conversion or works by a relevant landlord or management company if completed in the relevant period or works done after the relevant period to remedy a relevant defect
Examples include:
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unsafe cladding systems
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flammable balconies and other external attachments
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lack of compartmentation between flats
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defective building foundations
Check the definition of ‘relevant defect’.
Check who the order can be made against
A remediation order is made against a relevant landlord. A relevant landlord is a landlord as stated in a lease of the building (or part of it) who must repair or maintain anything relating to the relevant defect. This is often called a repairing obligation.
The relevant landlord will not always be the freeholder. It could be a management company that is party to the lease. In some buildings, more than one person may have repairing obligations for different parts of the building.
What you need to prove in your application
When presenting your case, you need to show that:
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the building is a relevant building
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the respondent is a relevant landlord
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there is at least one relevant defect in the building
The tribunal may also need evidence to decide:
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what work is needed to fix the defect(s)
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what timescale is reasonable
Gather evidence to support your case
It’s your responsibility to gather evidence for your application. The evidence you need depends on the building and the defects.
This guidance is not legal advice. You should get your own legal and technical advice if you are considering an application.
Evidence the building is a relevant building
In many cases this will be straightforward (for example, confirming storeys and number of dwellings).
Evidence could include:
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a fire risk appraisal of external walls (FRAEW)
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a fire risk assessment
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photographs showing the number of storeys
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a Land Registry title plan
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planning documents
Evidence the respondent is a relevant landlord
Check the repairing obligation in the lease. It may sit with the freeholder, head lesee or a management company. You may also need to check other agreements or documents.
Evidence could include:
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the lease
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Land Registry title registers
Evidence there is a relevant defect
At the application stage you must identify at least one relevant defect and describe it in the BSA1 form.
Evidence could include:
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a surveyor’s report or other technical reports
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a fire risk assessment or FRAEW
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information from a landlord’s certificate
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notices or reports issued under the Housing Act 2004 or the Regulatory Reform (Fire Safety) Order 2005
If the full extent of defects is not known, you may propose in your application form that establishing a full list of defects and remedial work is factored into the tribunal process.
Pre-action correspondence (before you apply)
Before applying, it’s expected that you send a letter before making a claim to the respondent, as part of pre-action correspondence, giving them an opportunity to resolve the case.
You should seek legal advice about the content and strategy for pre-action correspondence.
Pre-action correspondence can:
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notify the respondent about the potential claim
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ask the respondent to take action
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request or share relevant documents
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clarify the scope of issues between parties
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propose alternative dispute resolution
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set a timetable for a response
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save potential costs for both parties
If the respondent agrees with some points, it may support your application, showing matters that are not in dispute.
Apply for a remediation order
If the matter is not resolved through pre-action correspondence, you can apply to the First-tier Tribunal.
What your application must include
The application must:
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state it is an application under section 123 of the Act
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identify the building
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identify the defect(s) you want it to cover
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identify the relevant landlord you believe is responsible
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Include supporting evidence
Step 1: Complete and submit the application form
You must submit the BSA1 application form to start the process.
Send it to the tribunal regional office responsible for the area where the building is located (addresses are in the form annex).
The form asks for:
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your information (name, address and contact details)
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why you are an interested person
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the building address and basic description
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details of the relevant landlord
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reasons for your application
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details of the order sought
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the relevant defect(s)
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hearing preferences and availability
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a statement of truth
Step 2: Provide supporting documents (optional)
The tribunal may ask you to provide documents to support your case.
This could include:
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title documents
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a sample lease
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commissioned reports identifying relevant defects
Step 3: Provide a statement of case (optional)
The tribunal may direct you to provide a statement of case, which usually sets out:
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how the eligibility criteria are met
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what (if anything) happened at pre-action stage
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why an order is needed
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evidence about the defects, required works and a reasonable completion date
You can also include relevant evidence from third parties, such as current or former leaseholders.
What happens after you apply
The tribunal controls the process and may use a range of case management powers. The steps below are typical but will vary by case.
Respondent’s statement of case
The tribunal may direct the respondent to provide a statement of case, including:
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their grounds of opposition
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whether they dispute the eligibility criteria
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what defects they say do or do not need remediation
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whether they agree on the scope of defects and the timetable
If you can did not provide a statement of case during your application, the tribunal may ask you to submit one after you apply.
Case management hearing
The tribunal may hold one or more case management hearings to set directions on next steps and a timetable, including:
- document searches and disclosure (including documents that may not
support your case)
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exchange of witness statements
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how expert evidence will be handled
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whether alternative dispute resolution is appropriate
The tribunal may also inspect the building (subject to consents).
Final hearing
Most hearings are public (with exceptions set out in the tribunal rules).
At the hearing, the tribunal will hear from both parties, consider expert evidence and ask questions.
The decision and enforcement
The tribunal judge may give an oral decision at the hearing but will often issue a written decision with reasons.
A decision (other than one ordering payment of a sum) can be enforced with the permission of the County Court.
Costs
Remediation order proceedings are generally ‘cost neutral’. This means each party pays its own legal costs, regardless of the outcome. The Act also prevents legal costs incurred in fixing a relevant defect being passed to qualifying leaseholders.
Remediation costs and leaseholder protections (what applicants should consider)
When deciding whether to apply and against whom, you should seek legal advice to understand the leaseholder protections under the Act, as these may alter liabilities for remediation costs.
Leaseholder protections
Sections 116 to 125 and Schedule 8 of the Act, and amending leaseholder protection regulations, limit or prevent costs being passed through the service charge to qualifying leaseholders for historical building safety defects.
Under the leaseholder protections, remediation costs cannot be passed on to leaseholders, subject to certain exceptions. Where costs cannot be recovered from leaseholders, they must be met by the landlord.
Right To Manage (RTM) companies and resident management companies (RMCs)
An RTM company is formed by leaseholders to take over building management. An RMC is usually party to the lease (with landlord and leaseholder). In some cases, repairing obligations may lie with the RMC.
If an RMC has the repairing obligation, it may be a relevant landlord. Enforcement action (including a remediation order application) may be taken against it. You should consider getting legal advice before applying for a remediation order against an RMC.
Even where an RMC has a repairing obligation, the liability for costs that cannot be recovered from leaseholders sits with the building owner, not the RTM or RMC. RTMs and RMCs must recover those costs from the building owner.
Remediation contribution orders
Section 124 of the Building Safety Act 2022 introduced remediation contribution orders. These can be used to recover costs incurred (or to be incurred) in remedying relevant defects where a current or former landlord, developer or associated entity refuses to meet their liabilities.
Other enforcement options for regulators
Local authorities and fire and rescue authorities also have powers under:
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the Housing Act 2004
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the Regulatory Reform (Fire Safety) Order 2005
A remediation order will not be appropriate in every case. Regulators should decide which legal route to use based on the circumstances, and work together locally where needed.
Regulators should also follow the Regulators’ Code.
Updates to this page
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This page has been updated to reflect current legislation on the use of remediation orders. It is guidance for the remediation order process.
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First published.