In granting permission to appeal a remediation order, the Upper Tribunal has reminded the First-tier Tribunal of how it should approach raising new points outside a party's statement of case.
We reported on the First-tier Tribunal's ("FTT") decision in Blomfield and others v Monier Road Limited in 2024, where that Tribunal granted a wide-ranging remediation order and indicated that it considered that a rooftop garden constituted a "storey" for the purposes of the Building Safety Act 2022 (the "BSA"), contrary to government guidance.
Mr Blomfield and other leaseholders had sought a remediation order pursuant to section 124 of the BSA regarding Smoke House and Curing House. Experts had comprehensively examined the exterior of the building and recommended replacement of cladding. They had identified timber decking but considered that if the cladding were removed, this would be sufficient to alleviate the risk of spread of fire and no action was recommended with respect to the decking or otherwise. The remediation order was therefore sought to remediate the defective cladding only.
The FTT made a broader remediation order requiring Monier Road Limited as the landlord to remediate balconies, bin stores, courtyard walkways and floor areas and roof terrace flooring and planters, referred to as the "Additional Items" in addition to the external walls.
In allowing permission to appeal the FTT's decision, Upper Tribunal Judge Elizabeth Cooke referred to the recent decision in Sovereign Network Homes v Hakobyan [2025] to remind the FTT of the questions it should ask itself when considering whether to raise new points beyond the scope of a party's statement of case, given that the Additional Items and whether the rooftop garden was a "storey" were not referred to by either party in their original cases.
The FTT can raise points not previously raised but must remember that proceedings are adversarial and not inquisitorial. It is for the parties to present their cases and the relevant court or tribunal to make a decision – not for that court or tribunal to state a party's case for them, as to do so is to "step out of its proper role and into the arena of dispute" which is unfair and "involves taking sides".
It will be appropriate to raise a new point if there is a jurisdictional issue or fundamental problem with a party's case, to clarify a party's case or if statute requires a matter to be addressed.
Raising a new point is a matter of discretion, which should be a decision that a reasonable tribunal could have made. If a new point is to be raised, a fair procedure should be followed, including allowing parties to make submissions and evidence to be considered if required.
There was no appeal on whether the rooftop garden was a storey, because the FTT, when refusing permission to appeal, stated that it had given an "expression of opinion" regarding the rooftop garden and not a decision, because it had no jurisdiction to make a declaration that the building was a higher risk building for the purposes of the BSA. Consequently, there was no decision to be appealed.
Concluding, the Upper Tribunal confirmed that the FTT may wish to raise new points, such as where the FTT spots a serious fire safety risk in an application for a remediation order that neither party has noticed, that it thinks is a relevant defect. In that instance, the FTT may exercise discretion to raise that point but must follow a fair procedure and if the party seeking a remediation order does not wish to pursue it then the FTT has "discharged its responsibility". That said, Judge Cooke thought this was a "vanishingly small" possibility given the likelihood of comprehensive, professional risk assessments having been undertaken prior to the issuing of an application for a remediation order.
The decision is a reminder as to the factors and guidance that the FTT must have in contemplation when considering whether to raise a new point not presently before it, particularly in areas such as the BSA which are likely to be contingent on expert evidence.
