[2025] UKUT 157 (LC)

The appeal was, as we said at the outset, opposed by the leaseholders. We accept that they were content with what the FTT did and believed what the FTT said; and in that response is seen the damage that the FTT has done. The leaseholders are now convinced that they live in a dangerous building. The cladding and combustible insulation in the courtyard have now been removed and replaced, and the building has an EWS1 B1 rating so that the flats can be sold and mortgaged, yet the leaseholders do not feel safe because the FTT has convinced them that they are not. Their relationship with MRL is seriously damaged. We do not know to what extent our decision might begin to put things right; we hope that they will read it and come to understand that the course taken by the FTT was not only unfair but substantively wrong because there is no evidence that the building is unsafe and ample evidence that it is now safe.

It is appropriate that we add a comment about the FTT’s “expression of opinion” that the building is a higher-risk building. By contrast with its position about the Additional Items, the FTT knew and acknowledged in its decision that it had no jurisdiction to decide or declare that the building was a higher-risk building and that what it said had no legal effect. It confirmed as much in its refusal of permission to appeal. Why it did not therefore review its decision in response to that application so as to remove the lengthy discussion about higher-risk buildings is impossible to understand.

The FTT’s comments in its refusal of permission to appeal did not mend the damage that has been done. Before the March hearing neither party took the view that this was a higher-risk building. The FTT in raising the point caused MRL to incur the expense of producing evidence about the height of the building, pointlessly since the FTT had no jurisdiction to say anything about the point. We see from the leaseholders’ statement of case in the appeal that Mr Blomfield is now convinced, and perhaps other leaseholders are too, that the building is a higher-risk building; yet there was no evidence before the FTT to support that opinion. And its public expression of its opinion in its decision, including its comments on government guidance, has doubtless caused concern and confusion for building safety professionals. All of this illustrates how dangerous it is for a tribunal to express a view about a matter that is not within its jurisdiction.

So what should the FTT do in a case where an application has been made for a remediation order and the FTT spots a serious fire safety risk that neither party has noticed and which it thinks is a relevant defect that requires remediation? Imagine a case where the application before the FTT is clear, and the defect the FTT has spotted has nothing to do with the defects specified in the application. It is not addressed in any of the evidence before the FTT. The FTT has visited the building and thinks that there is a problem that no-one has spotted. Is it required to close its mind to a problem that is not figuratively (as in Admiralty, see paragraph 41(a) above) but literally potentially fatal?

We discussed this question with Mr Selby KC at the hearing and we agree with his answer. The FTT has a discretion to raise new points. In the case we have imagined there is a sound reason for doing so. But having done so the FTT must then follow the correct procedure, and if the applicant for the remediation order declines to pursue the point there is nothing the FTT can do about that and it has discharged its responsibility.

We would add that the likelihood of that happening is vanishingly small. Usually an application for a remediation order will be made after a comprehensive risk assessment, as was the one in the present proceedings. It is unlikely that a real risk will have gone unnoticed by professionals charged with a risk assessment and yet be obvious to the FTT from a hearing bundle and a site visit. Furthermore if that does happen and the FTT is able to explain why there is a real risk to life it is very unlikely that neither party will be willing to address it.

What we saw in the present case was a very long way from that situation. The FTT raised its concerns without having seen the building and in the face of unchallenged evidence that its concerns were unfounded. Nothing that we have said in this decision, and nothing in the law we have discussed, gives rise to concerns that real fire risks will go unremedied because of a legal technicality. On the contrary, the law is designed to ensure that risks are properly assessed and the FTT’s discretion can safely be exercised within that framework.