Chapter 3: Applying for a remediation contribution order
This chapter provides a guide on the process to obtain a remediation contribution order, from initial application stage to the First-tier Tribunal’s final decision.
This process can be divided into the following stages:
- gathering evidence to support the application (section 3.1);
- submitting an application to the First-tier Tribunal (section 3.2)
- the First-tier Tribunal process and the decision (section 3.3)
It is possible for the parties to reach a settlement before the First-tier Tribunal issues a decision – how this might work is outlined in section 3.4.
If an applicant or respondent is dissatisfied with the Tribunal’s decision, they may be able to apply to appeal the decision. This process is explained in section 3.3.2.
Section 3.5 explains how parties’ legal costs are distributed in a remediation contribution order case.
This section outlines the type of evidence that applicants may need to provide to support an application for a remediation contribution order. The BSA2 application form (see section 3.2.2) states no other documents should be filed with the claim form and that when further evidence is needed, the Tribunal will ask that it is sent separately.
At the initial application stage, the applicant will need to identify that the gateway criteria for a remediation contribution order case are met. These criteria are that:
- the applicant is an interested person;
- the building in question is a relevant building;
- the building has or had at least one relevant defect; and
- the named respondent(s) is a person against whom a remediation contribution order could be granted (see section 2.2)
Applicants will also be required to indicate the total amount that is being requested by the order (the “contribution sought”) in the application form.
Applicants may consider whether there are any third parties that may be able to provide additional evidence to support their application. Third parties could include current or former leaseholders, other landlords, regulatory bodies, or remediation contractors.
Potential applicants should seek their own legal advice when deciding what evidence is needed to support their case and at what stages of the application process it should be provided.
3.1.1 Evidencing a building is a relevant building
The evidence required to satisfy the Tribunal that a building is a relevant building will vary in each case (see sub-section 2.4.1 for the criteria of “relevant building”). Whether the building is a relevant building or not will be a matter of fact and, in many cases, is unlikely to be controversial or disputed by the respondent(s).
The following are examples of evidence that may be used to demonstrate that the building meets the requirements:
- photographs of the building showing the number of storeys,
- an official copy of the title register from the Land Registry,
- documents relating to planning applications,
- a fire risk assessment, or a fire risk appraisal of external walls (FRAEW).
This list is non-exhaustive. Legal advice should be sought on what is likely to be the appropriate evidence in each specific case.
3.1.2 Evidencing a relevant defect
At the initial application stage, applicants must be able to identify that there is, or previously was, at least one relevant defect in the relevant building and provide details of it.
The type of evidence that will be required to show that the building has at least one relevant defect will depend on the specific circumstances.
The following are examples of evidence that may be used to demonstrate the existence of a relevant defect:
- a surveyor’s report or other technical reports,
- a fire risk assessment,
- a FRAEW,
- the contents of a landlord’s certificate,
- notices or reports issued by local authorities or fire and rescue authorities under the Housing Act 2004 and the Regulatory Reform (Fire Safety) Order 2005.
This list is non-exhaustive. Potential applicants may need technical and/or legal advice to establish what evidence will be required to prove that the building has at least one relevant defect.
The evidence required in each case will depend on what specific costs, owing to a relevant defect(s), the applicant is claiming for. The applicant may need to provide appropriate supporting evidence to demonstrate that the costs they are seeking, were (or are to be) incurred in relation to the relevant defects.
For example, if an applicant is seeking to recover temporary accommodation costs, they may need to gather evidence showing that the relevant building was decanted and, that the decant was triggered by the building safety risk caused by at least one relevant defect at the building.
At the initial application stage, the applicant may be aware that relevant defects exist, but not yet be aware of their full extent. In this case, the applicant should seek legal advice about steps it should take to obtain further information and advance its case in the Tribunal.
3.1.3 Demonstrating the eligibility of the respondent(s)
The applicant may be required to provide evidence to the Tribunal that a respondent can be subject to a remediation contribution order. This evidence will vary depending on whether a respondent is or was a landlord, a developer or an associated person. For more information on which entities can be subject to a remediation contribution order, see section 2.2.
The following are examples of evidence that may be used to demonstrate the eligibility of a respondent:
- a lease of a unit of the relevant building including the landlord’s details
- Land Registry documents
- Contracts
- Planning documents and other publicly-available records accessible from the planning department of the relevant local authority
- Companies House public records
This list is non-exhaustive. Legal advice should be sought on what is likely to be, and how to obtain, the appropriate evidence in each specific case.
3.1.4 Determining the contribution sought
In their application, applicants will be required to specify the contribution amount being sought in the order (“the contribution sought”). The contribution sought may be revised after the initial application stage, with the permission of the Tribunal. This sub-section outlines how an applicant might decide the amount to request in their application, and the evidence they could use later in the process to justify it.
When deciding the contribution sought, applicants may wish to consider the amount necessary to achieve the intended purpose of the application. For example:
- if their motivation for applying for a remediation contribution order is to secure funding for remediation works to take place, the applicant should consider the expected cost of the works in question.
- if the purpose of the remediation contribution order is to recover money already paid and/or charged for remedial work, the applicant should consider the amount already charged and/or paid.
- if the applicant is seeking to recover other costs, for example for a waking watch, or decanting costs, they may need to provide evidence that these costs were incurred in connection with the relevant defect in the relevant building, as well as the amount being sought.
See section 5 for further information about the potential uses of a remediation contribution order.
The relevant evidence to support the contribution sought will depend on the facts of the case and purpose of the application. The following are examples of evidence that may be used to demonstrate the contribution sought:
- expert evidence of the potential costs of the remediation works;
- invoices from contractors in relation to the remedial works;
- a statement of account which lists all transactions between a contractor and customer over a given time;
- tender documents and quotations for the remedial works;
- service charge demands, if demanded from or paid by the leaseholders;
- proof of payment of service charges by leaseholders;
- invoices for services relating to the implementation of relevant steps, such as waking watch services or the installation of fire alarms;
- invoices for accommodation costs for decanted residents.
Applicants should seek their own legal advice on how to establish the appropriate contribution and how that can be evidenced.
This section sets out the initial application process for a remediation contribution order.
Following receipt of the application form, the Tribunal may ask the applicant to submit further evidence for consideration. Details of this stage is outlined in sub-section 3.2.4.
A remediation contribution order application can be made in respect of a single relevant building. If prospective applicants wish to obtain remediation contribution orders for multiple buildings, they will need to submit separate applications for each building.
3.2.1 Pre-action correspondence
There is no formal pre-action procedure to be followed by applicants before they make an application to the Tribunal. However, engaging in some pre-action correspondence with the proposed respondent(s) may be useful in some cases.
Anyone considering making an application for a remediation contribution order should seek legal advice about whether pre-action correspondence is appropriate in their case, and if so, how this should be prepared
3.2.2 The remediation contribution order application form
Interested persons can apply for a remediation contribution order by completing the BSA2 application form.
The BSA2 form requires applicants to provide the following information:
- details of the applicant
- the address of the subject property
- a brief description of the subject property and the applicant’s connection with the property
- details of the specified body/bodies corporate or partnership(s) against which an order is sought (for more information on how to identify the appropriate respondent(s) for an order, see section 5.3)
- details of the specified person to whom a contribution would be paid (for more information on who could be named as the recipient of any money awarded by the order, see section 5.4)
- details of the contribution sought, specified in pounds sterling (for more information on how this can be calculated, see sub-section 3.1.4)
- the reasons for the application. Applicants should include details of the relevant criteria for a remediation contribution order, as well as why the application is necessary and just and equitable (see section 2.6 for more information on the “just and equitable” requirement). If the applicant is seeking to recover costs for purposes other than remediation, for example for a waking watch or costs associated with a decant,, they will need to set out here (and evidence) that these costs were incurred in connection with a relevant defect in the relevant building
- whether the applicant is involved in or aware of any other applications involving the same person(s) or property as referred to in the application
- whether the applicant would be content with a paper determination if the Tribunal thinks it appropriate (meaning that the application is dealt with entirely on the basis of written representations, without the need for the parties to attend a hearing or make oral representations)
- details about the applicant and any witnesses or expert’s availability to appear before the Tribunal
- whether there are any specific venue requirements for the applicant or persons attending the hearing
- a signed statement of truth
3.2.4 Further evidence requested by the Tribunal
Following receipt of the BSA2 application, the Tribunal may ask the applicant to provide further evidence, which may include a statement of case. The type of evidence requested by the Tribunal will depend on the specific details of the case and the issues in dispute, and examples are outlined at 3.1 above.
3.2.5 Bundling multiple remediation contribution order applications
Under Rule 6(3)(b) of the Tribunal Procedure (First-tier Tribunal) (Property Chamber) Rules 2013, Tribunal judges have the power to consolidate and/or hear two or more cases together where they raise common issues and relate to buildings in the same Tribunal region. With this power, the Tribunal can choose to ‘bundle’ multiple applications for remediation contribution orders into a single hearing process and decision. For example, the Tribunal has the power to bundle remediation contribution order applications relating to the same applicant, respondent(s), or relevant building.
Applicants are required to complete a separate BSA2 application form for each relevant building, and should not presume their cases will be heard together. Applicants should include details of any other application(s) involving the same person(s) or property that it is aware in section 8 of the BSA2 application form.
It will be at the Tribunal’s discretion whether to issue directions to hear the cases together. See section 3.3 for more information about the Tribunal process. Prospective applicants should not presume the Tribunal will exercise its power to bundle applications in their case.
This section sets out the stages that the applicant may expect to follow once the First-tier Tribunal has received a valid application for a remediation contribution order and considered the application. For more information about the First-tier Tribunal, please visit the First-tier Tribunal (Property Chamber) site.
Applicants should seek their own legal advice during the Tribunal process.
The Tribunal has wide powers to manage the process. However, the Tribunal process may involve the following stages:
- directions (instructions issued by the Tribunal which bind both parties) for the applicant and/or respondent to produce a Statement of Case. A Statement of Case typically 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 support their case.
- a case management hearing, where the Tribunal Judge may decide the next steps in the process and may make directions (i.e., instructions to the relevant parties on disclosure of documents and/or the exchange of evidence) setting out how the case will progress and what actions the parties are required to take and when.
- a final hearing, that will take place before a remediation contribution order is made, unless the parties have indicated or agreed that they will be content with a paper determination, and the First-tier Tribunal thinks it appropriate,
The timescale of the Tribunal process will vary in each individual case depending on complexity, issues in dispute, and the facts.
3.3.1 The decision
The Tribunal will publish a decision, setting out whether a remediation contribution order is granted. If the Tribunal decides to grant a remediation contribution order, the decision will include the order, specifying the amount which the respondent(s) is/are required to pay, and to whom. It may also specify the timeframe within which the payments must be made. The order may require payment to be made at a specified time, or to be made on demand following the occurrence of a specified event (for example, the beginning of remediation works).
3.3.2 Appealing a decision
If an applicant or respondent is not satisfied with the First-tier Tribunal’s decision, or any element of the decision, and there is a point of law which could give grounds for an appeal, they can apply to the First-tier Tribunal for permission to appeal the decision to the Lands Chamber of the Upper Tribunal (“the Upper Tribunal”). The application form for permission to appeal can be found here. Before applying for permission, it is recommended legal advice is sought on whether there are grounds for an appeal, and the likelihood of permission being granted, and legal support is obtained on making the application.
The procedure to appeal a decision of the First-tier Tribunal is set out in Rule 52 of The Tribunal Procedure (Tribunal) (Property Chamber) Rules 2013.
If the First-tier Tribunal does not grant permission to appeal, then parties may seek permission to appeal directly from the Upper Tribunal under Rule 21 of the Tribunal Procedure (Upper Tribunal) (Lands Chamber) Rules 2010. Parties should obtain legal advice before launching an application for permission to appeal.
It is possible for parties to reach an agreement outside of the Tribunal process which would make a remediation contribution order unnecessary, if they wish to do so. This allows the parties to explore whether a mutually agreeable solution can be reached that would settle the case ahead of the final trial, and without the need for a remediation contribution order to be made. Applicants should take legal advice to support them during these discussions.
The terms of a settlement between the parties will be set out in a settlement agreement and/or consent order. Applicants should seek legal advice when agreeing these terms, as well as if a party violates the terms of the agreement.
This sub-section looks at how the parties’ legal costs are dealt with in the First-tier Tribunal. Although it is possible to pursue a remediation contribution order application without taking legal advice, applicants may wish to do so – particularly in complex cases.
The First-tier Tribunal process is cost neutral for remediation contribution orders. This means the parties have to bear their own costs, regardless of the outcome. The First Tier Tribunal does have jurisdiction to order one party to pay the costs of the other party where one party’s behaviour merits it. See sub-section 3.5.1 for more information on this.
If either party to the order is a landlord, then they may then seek to recover their costs through the service charge. There are certain leaseholder protections in the Building Safety Act 2022. There is also an option under Section 20C of the Landlord and Tenant Act 1985 to apply to the First Tier Tribunal for an order that the Landlord is not able to pass on these costs through the service charge (see section 3.5.3 for further detail).
3.5.1 Order in respect of costs
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.
3.5.2 Costs which landlords can pass to leaseholders
The leaseholder protections in Schedule 8 to the Building Safety Act 2022 limit the legal costs which landlords can pass to qualifying leaseholders at relevant buildings through the service charge.
Under Paragraph 9(1) of Schedule 8 to the Building Safety Act 2022, landlords cannot pass their legal costs to qualifying leaseholders through service charges if they relate to the liability (or potential liability) of any person incurred as the result of a relevant defect. This may include costs relating to legal advice and Tribunal proceedings incurred in pursuit of an application for a remediation contribution order. The terms of some leases may still allow landlords to charge their legal costs to non-qualifying leaseholders through the service charge.
Under section 117(3) of the Building Safety Act 2022, leaseholder-owned buildings are not considered relevant buildings and are therefore not covered by the Act’s leaseholder protections. Where the terms of the lease allow, leaseholders in a leaseholder-owned building may find they are obliged to pay legal costs through the service charge.
Under Paragraph 9(1A) of Schedule 8 to the Building Safety Act 2022, RTM companies and RMCs can charge both qualifying and non-qualifying leaseholders for costs associated with a remediation contribution order application, provided the terms of the relevant lease(s) allow these costs to be recovered through the service charge.
3.5.3 Section 20(c) orders
Leaseholders can prevent their landlord from passing their legal costs to non-qualifying leaseholders, by applying for an order under . A Section 20C order is an order of the First-tier Tribunal, specifying that a landlord’s legal costs are not to be regarded as relevant costs to be taken into account when determining the amount payable in the service charge. This means the affected leaseholders will not need to pay the amount demanded. The Tribunal may grant a Section 20C order if it considers it just and equitable in the circumstances.
See more information on applying for a Section 20C order. Find the application form here.