[2024] UKUT 0135 (LC)

Relevant building (section 117) - It is not disputed that 4 Sanctuary Street is a relevant building (the possibility that the development may comprise more than one building was alluded to by Mr Pratt but not developed in argument). It is self-contained, contains at least two dwellings, and is both at least 11 metres high and has at least five storeys above ground level.

Relevant works and relevant defect (section 120) - The disputed service charge is claimed in respect of the works found by the FTT to comprise the removal of the cladding and insulation, the replacement of the insulation with material meeting current standards, and the reinstatement of the cladding using the original panels. While the cladding was off the building the exposed structure was inspected to establish if cavity safety barriers were in place between each dwelling and barriers were installed where they had not originally been provided.

The insulation which was replaced dated from the original construction of the Block, and the risks associated with its use therefore arose as a result of something used in connection with the original construction; the risks associated with the absence of cavity barriers arose as a result of things not done at the same time. All of those works were completed within the period of 30 years ending on 14 February 2022 and they were therefore relevant works within the meaning of section 120(3)(a).

The leaseholders did not contest the LSMC’s justification for the works, which was that the absence of cavity barriers in the original construction, combined with insulation of the type originally employed, gave rise to an unacceptable building safety risk, namely the risk to the safety of people from the spread of fire. The defects to which the disputed service charges relate are therefore relevant defects for the purpose of sections 122 to 125 and Schedule 8, as defined in section 120.

Relevant measure (paragraph 1(1), Schedule 8) – The purpose of the works was to remedy the relevant defects, and the works were therefore relevant measures for the purpose of Schedule 8.

The paragraph 2 protection applies if the relevant landlord (i.e. the landlord or any superior landlord on 14 February 2022) was responsible for the defects or was associated with a person responsible for the defects. The starting point in considering whether that condition is met is paragraph 14(2) of Schedule 8, and regulation 6(7) of the Leaseholder Protections Regulations made pursuant to it, by which any person who was a relevant landlord on 14 February 2022 is to be treated as having been responsible for the relevant defect if they have not provided a landlord’s certificate which complies with regulation 6.

The Leaseholder Protections Regulations, and the obligation to provide a landlord’s certificate, came into force on 20 July 2022. The obligation does not apply in all circumstances, but only in those identified in regulation 6(1)(a) to (e). Regulation 6(1)(a) creates the obligation “when the current landlord makes a demand to a leaseholder for the payment of a remediation service charge”. The demand relied on by LSMC in this case was dated 8 February 2021, before the Regulations came into force, so there was no requirement on it to have given a landlord’s certificate within four weeks of making that demand. It does not appear to us to be possible to treat the condition in paragraph 2(2) of Schedule 8 as being satisfied on account of a failure to provide a landlord’s certificate, unless the obligation to provide such a certificate was in force when the relevant demand was made.

It was not argued before us that, after the Leaseholder Protections Regulations came into force, a relevant landlord then came under an obligation to serve a landlord’s certificate in respect of any demand which had been made before that date. Regulation 6(1)(a) would not appear to have that effect, but it could be argued that regulation 6(1)(c) might. That requires that the current landlord must provide a certificate within four weeks of becoming aware of a relevant defect not covered by a previous landlord’s certificate. Our provisional view is that the language is not apt to impose a duty to provide a certificate on a landlord who was already aware of a defect at a time, before the Regulations took effect, when the demand was made. We prefer to express no concluded view on that point, because it was not argued and because (as will become apparent) it will not be determinative, and to leave it open for future consideration if it arises.

Subject to the possibility of an argument based on regulation 6(1)(c), service charges demanded before 20 July 2022 would appear therefore to be outside the scope of the deeming effect of regulation 6(7) unless one of the other circumstances in regulation 6(1) giving rise to the duty to provide a landlord’s certificate was satisfied after that date. Regulation 6(1)(b) and (d) respectively require a certificate within four weeks of the landlord (b) receiving notification from the leaseholder that the lease is to be sold, or (d) being requested to provide one. Neither of those conditions was satisfied in this case after the Regulations took effect.

We therefore conclude that, when the matter came before the FTT, regulation 6(7) was not engaged and the absence of a landlord’s certificate did not affect the availability of the paragraph 2 protection in relation to the demand made on 8 February 2021.

Having decided that the condition in paragraph 2(2) cannot be treated as being satisfied by virtue of any deeming effect of regulation 6(7), it is next necessary to consider whether it was established on the facts (independently of any statutory presumption) that the landlord on 14 February 2022 was responsible for the defects or was associated with a person responsible for the defects; if so, the paragraph 2(2) condition will be satisfied and no service charges will be payable in respect of the remediation of relevant defects.

Where one is required, the absence of a certificate stating whether or not the relevant landlord was responsible for the relevant defect or was associated with a person who was responsible, gives rise to a presumption of fact, but the certificate itself is not proof of the facts which it certifies. Where a compliant certificate has been provided the presumption that the contribution condition is met is dispensed with, but the facts remain to be determined if they are in dispute. If a leaseholder challenges statements made in an apparently compliant certificate, it is for them to demonstrate that the relevant landlord or an associate was responsible for the relevant defect.

Similarly, if there was no obligation to provide a certificate at the time a service charge became payable the absence of a certificate will not give rise to any presumption that the paragraph 2(2) condition is satisfied. But the absence of the presumption will not prevent a leaseholder from proving that the landlord or a superior landlord or their associate was in fact responsible for the relevant defect.

Nor do we think a leaseholder who contests a service charge demanded before the Leaseholder Protections Regulations came into force on 20 July 2022 is prevented from requesting a certificate under regulation 6(1)(d), which may lead to the presumption being engaged if the certificate is not supplied. The Tribunal determined in Hippersley Point (at [119] to [170]) that the paragraph 9 leaseholder protection applied to service charges demanded before the commencement of the 2022 Act liability for which was determined after commencement. In Triathlon Homes LLP v Stratford Village Development Partnership [2024] UKFTT 26 (PC), the First-tier Tribunal concluded that a remediation contribution order under section 124, 2022 Act could be made in respect of costs incurred before the commencement of the Act. Similarly, in principle, we consider that the other leaseholder protections are available in respect of costs incurred before the commencement of the 2022 Act.

Since the FTT made its decision LSMC has provided a landlord’s certificate in which it has stated that the freeholder, Damgate, is, or may be, “responsible for” the relevant defects by virtue of its original contract of sale with Wimpey and the related option to reacquire the freehold reversion at a predetermined price once all of the flats had been sold. Wimpey was the developer and was therefore responsible for the relevant defects by virtue of paragraph 2(3)(a), but for this purpose Damgate could also be responsible for the same defects on one of two alternative grounds: it will itself have been the “developer” within the meaning in paragraph 2(4) if it “commissioned the construction or conversion of the building … with a view to granting or disposing of interests in the building or parts of it”; it will also be responsible under paragraph 3(2)(a) if its arrangement with Wimpey amounted to a “joint venture”.

The material is not available to enable us to make a determination whether Damgate was a developer or whether its relationship with Wimpey was a “joint venture” but we are satisfied that it is not necessary for us to consider those questions. This is an appeal against the decision of the FTT and falls to be determined on the evidence provided to it. No application has been made to admit additional evidence, and the certificate itself is not evidence of the arrangements to which it refers. For the reasons already given concerning section 47, 1987 Act, this issue will not be determinative of the appeal. We therefore say nothing more about the effect of the landlord’s certificate provided by LSMC shortly before the appeal.

On the material provided to the FTT it was entitled to find, at paragraph 93, that neither LSMC nor Damgate was a developer of the Block, or associated with the developer, Wimpey. On that basis it was therefore correct to conclude that the paragraph 2 protection was not available to Mr Lehner.

Mr Lehner’s lease was granted before 14 February 2022 for a term of more than 21 years and includes a service charge. It therefore satisfies the first three of the four conditions in section 119(2) and may be a qualifying lease and eligible for the remaining leaseholder protections. Whether it is or not will depend on the fourth condition, section 119(2)(d), which concerns the relationship between the leaseholder and the flat and the extent of the leaseholder’s other property interests. The text of section 119(2)(d) has already been reproduced above (at paragraph 23). It requires either that the dwelling must have been the leaseholder’s only or principal home on 14 February 2022, or that on the same date the leaseholder did not own any other dwelling in the UK or owned no more than two dwellings in the UK apart from under the lease in question. These conditions are not as clear as they might be but they allow for three alternative conditions, any one of which may be satisfied to secure the status of qualifying lease (although, the second alternative seems to be entirely included within the third and would appear to be redundant).

The FTT dealt with the question of whether Mr Lehner’s lease was a qualifying lease by accepting the submission of LMSC’s counsel that he had produced no evidence to support a finding that it was. That was an important conclusion because, if it was correct, it would mean that none of the leaseholder protections from paragraph 3 onwards would be available to him.

The FTT’s approach to this issue was clearly wrong and Mr Pratt conceded that it should have determined that the lease was a qualifying lease. That concession was correctly made. From the copy of Mr Lehner’s lease it was apparent that the conditions in section 119(2)((a), (b) and (c) were satisfied (i.e. the lease was a long lease of a single dwelling which included a service charge and had been granted before 14 February 2022). Paragraph 13 of Schedule 8 therefore applied, and the lease was to be treated as a qualifying lease unless the landlord “has taken all reasonable steps (and any prescribed steps) to obtain a qualifying lease certificate from a tenant under the lease, and … no such certificate had been provided” (paragraph 13(2)).

Once again, we think it irrelevant that the demand relied on by LSMC was dated 8 February 2021, before the 2022 Act came into force. For the reasons explained in Hippersley Point and Triathlon, the leaseholder protections have effect in relation to service charges which became payable before the commencement of the Act. It was therefore necessary for the FTT to consider whether LSMC had taken reasonable steps to obtain a qualifying lease certificate from Mr Lehner. Had it done so it would have discovered that no such steps had been taken and it should therefore have concluded, in accordance with paragraph 13(2), that Mr Lehner’s lease must be treated as a qualifying lease.

We would add that there is now evidence before this Tribunal, which was not provided to the FTT, that Mr Lehner owns no other property in the UK, and that his lease is a qualifying lease by virtue of satisfying the section 119(1) conditions, and not simply by virtue of paragraph 13(2) of Schedule 8. Mr Lehner had authorised his father, Dr Lehner, to speak on his behalf at the FTT hearing, and it is surprising that the FTT did not ask him whether his son lived at the flat. The documents which were before the FTT showed that LSMC communicated with Mr Lehner at the flat.

The effect of paragraph 3 of Schedule 8 is that no service charge is payable under a qualifying lease in respect of a relevant measure where the landlord at the qualifying time met the contribution condition. The first step in determining whether this protection is available is to consider whether the presumption that the condition is met in paragraph 14(1) applies. The presumption applies unless the landlord provides a certificate to the tenant, complying with any prescribed requirements, that the person who was the landlord on 14 February 2022 (the relevant landlord) did not meet the contribution condition. If the presumption applies, it is not necessary to consider whether the qualifying condition was in fact met.

The FTT’s treatment of the contribution condition was comprised in paragraph 94 of its decision, which we have quoted above, and its conclusion that LSMC did not meet the condition was based entirely on the fact that the ground rents of each individual flat was only £150 a year. It did not consider the effect of the paragraph 14(1) presumption.

Whether the paragraph 14(1) presumption applies in this case is an issue on which we did not receive detailed argument. We have explained (at paragraph 71 above) that we do not consider that a landlord can be said to have failed to provide a landlord’s certificate for the purpose of paragraph 14(2) when the Leaseholder Protections Regulations were not in force at the time the relevant demand was made. That is because the requirement to provide a certificate within four weeks of a demand was created by regulation 6(1)(a) and cannot be said to have been breached when the regulation was not yet in force. But the paragraph 14(1) presumption is expressed in different terms and does not depend on the making of any regulation. It may be that the making of a regulation which requires a landlord’s certificate dealing with the contribution condition only when one of the circumstances described in regulation 6(1) has occurred, and the reference in paragraph 14(1) to a certificate “complying with any prescribed requirements”, means that the presumption only applies where the demand was made after the prescribed requirement came into force. But we are not satisfied that an alternative interpretation could not properly be given to paragraph 14(2), requiring a certificate dealing with the contribution condition notwithstanding that there was no occasion to serve a landlord’s certificate because none of the conditions in regulation 6(1) had occurred since the Leaseholder Protections Regulations came into force.

Because the contribution condition is not determinative of the appeal, and because the issue is a tricky one on which we have not heard proper argument, we prefer to say nothing further about it.

Had the FTT found that the lease was a qualifying lease and that the paragraph 14(1) assumption was engaged so that the contribution condition must be taken to have been satisfied, the proper conclusion would have been that the paragraph 3 protection applied and that no the disputed service charge was not payable (because it was in respect of relevant measures relating to relevant defects). If the presumption did not apply the FTT would have been entitled to conclude that the contribution condition was not satisfied and that the paragraph 3 protection did not apply.

It was not suggested by Dr Lehner that the value of his son’s lease on 14 February 2022 was less than £325,000 and it is clear that the paragraph 4 protection is not available in this case.

By paragraph 8 of Schedule 8, no service charge is payable under a qualifying lease in respect of “cladding remediation”. The provision is quoted in full at paragraph 39 above and gives rise to the question whether the service charge is claimed in respect of the removal or replacement of any part of a “cladding system” which formed “the outer wall of an external wall system”, and which was unsafe? If so, the service charge is not payable in respect of the removal or replacement works. To the extent that the relevant measures comprise work other than the removal or replacement of any part of the cladding system, the protections in paragraphs 5, 6 and 7 may apply to the cost of that part of the work.

The FTT’s conclusion on this issue was that the removal of the external cladding panels, the stripping out of the original insulation, its replacement with new insulation, the installation of fire safety barriers where these were missing, and the reinstatement of the original cladding panels, was not “cladding remediation”. It accepted the submission on behalf of LSMC that although the works “involved the replacement of the insulation and the addition of a cavity barrier [t]he cladding system itself was neither removed nor replaced”. Its approach therefore involved distinguishing between the “cladding system” on the one hand, and the insulation and cavity barriers behind the external skin on the other.

From the photographs and drawings we were shown we understand that most of the façade of the Block comprises brickwork panels and glazed windows, with only a few areas on each floor, mostly around balconies and above and between some of the windows, being fitted with cladding. Houston Lawrence Professional Services, who prepared the tender documents for the remediation works, included a diagram illustrating the current construction of the façade of the building. From that diagram we understand that in those locations where cladding was present, it was fitted into openings in the façade, rather than being fitted on to a continuous structural component, or as a facing on a concrete panel or beam. The fixing arrangement is not clear from the material we were shown, but the composition of the cladding in these parts of the Block is. It comprised ten layers in all, namely, from its outer face, a 2mm aluminium cladding panel, behind which were layers successively comprising an air gap of 37mm, a 6mm sheet of fibre board, an air gap of 33mm, a first 25mm Kingspan xps insulation board, a 10mm air gap, a second 25mm Kingspan xps insulation board, a 12.5mm sheet of plasterboard, an air gap of 100mm, and a final 12.5mm sheet of plasterboard, the internal face of which formed part of the interior wall of the adjacent room to which we assume one or more finishing coats of plaster or other coating would be applied.

In addition to the installation of fire-stopping, the remedial works undertaken to the Block removed and replaced some of these layers, reducing the original ten to eight. The aluminium cladding panel was taken off, the fibre board was removed and replaced with 6mm Magply board, and the two layers of xps insulation were removed and replaced with 75mm of Rockwall slab. The aluminium cladding panel was then reinstalled.

Dr Lehner submitted that the “cladding system” comprised the whole of the original construction between the external face of the aluminium cladding panel and the internal surface of the last layer of plasterboard. It therefore included the Kingspan insulation boards with the result that the replacement of that insulation was “cladding remediation” and was within the scope of the paragraph 8 protection.

Mr Pratt submitted that the “cladding system” comprised only the 2mm aluminium cladding sheet which formed the outermost skin of the Block in these locations. Alternatively, even if the insulation and other components behind the aluminium cladding could be considered part of a “cladding system”, they did not form the “outer wall” of that system and so their replacement was not “cladding remediation” within the meaning of paragraph 8(2).

We understand “cladding” to refer to material attached to the structure of a building to provide a protective or decorative outer skin. But the expression with which we are concerned is not “cladding”, but “cladding system”.

The 2022 Act contains no definition of a “cladding system”, but we have no doubt that the FTT’s narrow interpretation of that expression was wrong. We have reached that conclusion for the following reasons.

First, the reference to a “cladding system” is clearly not intended to be limited simply to a single building component such as the final layer of cladding panels visible on the facade of a building. Any “system” has a number of components, and each component is within the scope of paragraph 8(2): cladding remediation comprises the removal of replacement of “any part of a cladding system”.

Secondly, where an expression is used in a statute dealing with a technical subject, such as fire safety, it is legitimate to consider how that expression is usually understood in that context. In The Dunelm (1884) 9 PD 164, at 171, Brett MR said:

We are aware that the expression “cladding system” is often used in technical literature concerned with fire safety in a way which includes the layers of insulation commonly found behind the outermost sheet of cladding material. For example, in the prospectus for the Building Safety Fund published by the Department for Levelling Up, Housing and Communities in May 2021, a footnote on page 11 explains that:

“A cladding system includes the components that are attached to the primary structure of a building to form a non-structural external surface. The cladding system includes the weather-exposed outer layer or ‘screen’, fillers. Insulation, membranes, brackets, cavity barriers, flashing, fixings, gaskets, and sealants.”

On 1 May 2024 the RICS updated its guidance to surveyors engaged to certify that the safety of a building’s external wall system has been assessed. The publication addresses the question ‘What is an external wall system?’ and advises that ‘The external wall system (EWS) is made up of the outside wall of a residential building, including cladding, insulation, fire break systems, etc.” (Footnote: ¹)

The RICS guidance also makes reference to the British Standards Institution code of practice BSI PAS9980:2022 – Assessing the external wall fire risk in multi-occupied residential buildings. This defines “cladding” at paragraph 3.1.4, and includes an explanation of a cladding system:

“cladding

system of one or more components that are attached to, and might form part of the weatherproof covering of, the exterior of a building

NOTE Such systems are normally attached to the primary structure of a building to form non‑structural, non-loadbearing external surfaces and can comprise a range of facing materials/cladding panels, including metal composite panels or non-loadbearing masonry, along with insulating materials, rendered insulation systems (ETICS) and insulated core sandwich panels, which are attached to a substrate. Combinations of, for example, cladding panels and insulation form cladding systems and such systems might include cavities, which can be ventilated or non‑ventilated. The cladding system also encompasses the supporting rails and bracketry, as applicable, to attach the cladding to the building, and cavity barriers where applicable. Systems that constitute the entire thickness of the external wall, by definition, cease to be cladding systems and are the external wall, e.g. curtain walling.”

(our emphasis)

Annex M to BSI PAS9980:2022 also explains:

“External cladding systems involve the combination of several different components, including cladding panels, ventilated cavities, thermal insulation, breather membranes, cavity/fire barriers and support systems.”

These examples shed light on the meaning of a “cladding system” and support the conclusion that the ordinary meaning of that expression includes materials installed behind the external screen. This usage is consistent with the definition of “cladding system” relied on by Dr Lehner, which he attributed to the National Fire Chiefs’ Council (but without a specific source citation).

Finally, where the expression “cladding system” is used elsewhere in the 2022 Act, it appears to us to support the conclusion we have reached about its meaning. Section 149 is concerned with liability for past defaults relating to “cladding products”. A “cladding product” is defined as “a cladding system or any component of a cladding system” (section 149(12)). One condition of liability for cladding products includes that the “the cladding product is attached to, or included in, the external wall of a relevant building” (section 149(3)). No attempt has been made by Parliament to distinguish between different building components which might be attached to or included in the external wall of a building; that seems to us to invite a wider, rather than a narrower, interpretation of “cladding product” and “cladding system”.

We therefore conclude that the FTT was wrong to dismiss Mr Lehner’s reliance on the paragraph 8 protection on the basis that the insulation was not “part of a cladding system”.

The work done to the Block comprised the removal of the original two sheets of insulation and their replacement with a new single sheet of a different material with improved fire-resistant properties. We are satisfied that this part of the work involved the removal and replacement of part of the cladding system. The work also included the installation of cavity barriers where these had previously been omitted. The FTT said that the installation of these new components was not the removal or replacement of part of a cladding system, but we consider that in this respect also it took too narrow a view of the scope of paragraph 8. The original insulation was part of the cladding system; it was removed and replaced as part of a single package of works with new insulation and new cavity barriers. The fact that the original construction of the cladding system may not have included cavity barriers, or that cavity barriers which were originally included were defectively installed and had to be replaced (the evidence does not show which was the case), does not prevent the whole package of work from being viewed as the replacement of part of a cladding system. The replacement was not on a strictly like for like basis and included both materials of an improved specification and materials which had been absent or poorly fitted, but in our judgment the whole of the work nonetheless comprised the replacement of part of the cladding system. The replacement of the insulation panels with a less flammable substitute would not in itself make the building compliant – the introduction, where absent, or the improvement, where defective, of cavity barriers constituted an important element of making the building safe.

We do not consider that paragraph 8 can sensibly be interpreted as covering only the removal of part of a cladding system and its replacement with an identical component, and we see no reason either as a matter of language, or having regard to the policy of the Act, why the replacement of part of a cladding system with something quite different, or additional, should not fall within the paragraph 8 protection. “Replacement” need not mean replacement with something identical. The policy of the Act of providing leaseholders with protection against the cost of putting cladding systems into a safe condition would be frustrated if it was necessary to divide essential remedial work into those parts which involved the replacement of components which were there before and those which involved the introduction of something new. We therefore regard the whole of the work done to the Block as comprising the removal or replacement of part of a cladding system.

The definition of “cladding remediation” in paragraph 8(2) gives rise to two further issues of interpretation. Both questions concern the conditions in sub-paragraphs (a) and (b) of paragraph 8(2). The first is, what is meant by the expression “the outer wall of an external wall system”? The second is: is it the cladding system as a whole which must form the outer wall of an external wall system, and which must be unsafe? Or is it the part of the cladding system that is being removed or replaced which must do so?

Cladding remediation involves the removal or replacement of any part of a cladding system that forms the outer wall of an external wall system. Modern buildings are complex structures and the use of the expression “the outer wall of an external wall system” reflects that complexity. The first characteristic of a cladding system which is covered by paragraph 8 is that it is part of an “external wall system”. We received no detailed submissions on the meaning of this expression, but as currently advised we interpret it as signifying that paragraph 8 is only concerned with the external walls of a building, and not with internal walls, separating different areas within a building. Plasterboard or other coverings applied to internal dividing walls are not within the scope of paragraph 8.

The other requirement of paragraph 8 is that the cladding system must form the “outer wall” of the external wall system. Paragraph 8 is not concerned with a cladding system which forms the inner wall of an external wall system. If an external wall comprised an outer wall and an inner wall, with a cavity between them, only a cladding system which formed the outer wall would be covered by paragraph 8.

On the relatively limited information available in this case we consider that the outer wall of the external wall system includes the aluminium rainscreen panel, the framework on which it is supported, the insulation behind it and the newly installed cavity barriers; we do not consider that the two internal plasterboard sheets, separated by a small cavity, are part of the outer wall of the external wall system.

As to the second question, we consider that the conditions in paragraph 8(2)(a) and (b) must be satisfied by the cladding system as a whole, and not simply by the parts of the system which are to be removed or replaced. That seems to us to be the natural consequence of the reference to the removal or replacement of “any part” of a cladding system that forms the outer wall of an external wall system. If the intention had been to confine the scope of paragraph 8 to the removal or replacement of the outer wall of an external wall system, the reference to “any part” of the system would be both redundant and misleading. The appropriate way to express the narrower intention would be to refer to “so much of” or “such part of” a cladding system as forms the outer wall of an external wall system.

We also consider that it is the cladding system as a whole which must be unsafe, and not simply the part which is to be removed or replaced. It is difficult to imagine circumstances in which the use of a building component which is itself unsafe will not also render the system of which the component is part unsafe. In this case the FTT did not take a different view, but it nevertheless decided that the cladding system was not unsafe. It explained at paragraph 97(ii) that the Efectis report had “identified the lack of cavity barriers behind the aluminium cladding system as unsafe” and reasoned that “this did not require any removal or replacement of part of the cladding system” and was therefore not cladding remediation. We read that finding as being a consequence of the narrow view the FTT took of the meaning of “cladding system”, which we have already rejected.

There is no doubt that the cladding system was “unsafe” in the sense that it failed to meet the standards required to comply with Government’s Advice for Building Owners of Multi-storey Multi-occupied Residential Buildings issued in January 2020. It lacked adequate cavity barriers and, without them, the increased risk of a fire spreading meant that the form of insulation which had been employed in the cladding system was inadequate and failed to meet the appropriate safety standard.

In our judgment the FTT was wrong to conclude that the works were not covered by the paragraph 8 protection. We are satisfied that the works in their entirety were cladding remediation. That conclusion provides an additional reason why no service charge is payable in respect of the works by Mr Lehner or any other qualifying leaseholder.

In view of this conclusion it is unnecessary for us to consider whether the protections in paragraphs 5, 6 or 7 apply.