[2025] UKUT 298 (LC)

The words of paragraph 8 are indeed clear: “No service charge is payable under a qualifying lease in respect of cladding remediation.” And cladding remediation means the removal or replacement of any part of a cladding system that forms the outer wall of an external wall system and is “unsafe.” No reference is made to “relevant defect.” However, Mr Hutchings contends that the context of and the remaining parts of schedule 8 and sections 116-124 undermine that clarity.

Firstly, he referred to section 116(1) which provides that sections 117 to 124 and schedule 8 “make provision in connection with the remediation of relevant defects in relevant buildings.” Secondly, he referred to section 122 which introduces schedule 8 as follows:

“Schedule 8 –

(a)

provides that certain service charge amounts relating to relevant defects in a relevant building are not payable, and

(b)

makes provision for the recovery of those amounts from persons who are landlords under leases of the building (or any part of it)”

The clear import of both sections and the purpose of schedule 8 is, he said, to deal with relevant defects and nothing else. Whilst the key words of paragraph 8(1) do not refer specifically to relevant defects they do not need to as, he argued, it is obvious from sections 116 and 122 as well as each of the other paragraphs of schedule 8, that its scope is confined to relevant measures in relation to relevant defects. He contended that a section providing an overview of what is intended to be covered by the BSA or part of an Act is admissible and relevant as regards interpreting particular, succeeding sections (or schedules) even if it contains no substantive content (Bennion p.451) He submitted that what paragraph 8 is dealing with is a specific type of relevant defect.

In support of that submission he said that whilst schedules to Acts should be read as far as possible consistently with their ‘introducing’ sections they are nevertheless subsidiary to sections of Acts: ‘It is desirable to include in a schedule matters of detail; it is improper to put in a schedule matters of principle. The drawing [of] the proper line of demarcation between the two classes of matters is often difficult. All that can be said is that nothing should be placed in a schedule to which the attention of Parliament should be particularly directed….’ (Lord Thring, Practical Legislation (1877), approved in R (on the application of Maugham v Senior Coroner for Oxfordshire[2020] UKSC 46 at [44] per Lady Arden).

Furthermore, he contended, that interpretation sits with the overall policy underlying the leaseholder protections as expressed in the Explanatory Notes which, although published after the commencement of the BSA still provide supportive commentary. Paragraph 957 is as follows: