The Building Safety (Remediation of Unsafe Cladding etc.) Bill – Bolstering the Routes to Recovery for Historic Unsafe Cladding Claims
15th Oct 2026
On 14 October 2026, the Government introduced the Building Safety (Remediation of Unsafe Cladding etc.) Bill in the House of Commons (“the Bill”).[1] The explanatory notes to the Bill state that its introduction arises from the Government’s Remediation Acceleration Plan and builds on the foundations laid by the Building Safety Act 2022 (“BSA 2022”):
“While regulators have taken action against over 900 buildings over 11 metres in height with suspected unsafe cladding, the current enforcement regime is unclear and cumbersome. Where sanctions are implemented against a building owner, they may not be compelled to fix their building, and there is no current mechanism to ensure these homes are made safe.”[2]
The Bill is wide-ranging in its proposals for new powers and duties in relation to fire safety, while also adding new financial penalties and offences for non-compliance. However, this note will focus specifically on the proposed reforms concerning liability for unsafe construction products in Part 5. If introduced into law in its current form, Part 5 would expose manufacturers and suppliers of historically unsafe cladding products to significant extended liability, as well as bringing their associated companies within the Building Liability Order (“BLO”) regime of s.130 BSA 2022.
Expanding liability under section 149 BSA 2022
Part 5 of the Bill proposes several amendments to s.149 BSA 2022 which would open the doors to greater liability for cladding manufacturers and suppliers.
Clause 83(2) amends Condition A in s.149(2) to remove the requirement that a person fails to comply with a cladding product requirement in relation to a cladding product. The amendment removes the requirement to establish a breach of an existing regulatory requirement and instead provides that liability may attach to a person who “engages in misleading conduct” or “manufactures a cladding product that is inherently unsafe”. In both instances, the amended wording is broader than the existing requirement that a person “makes a misleading statement” or “manufactures a cladding product that is inherently defective”.
Clause 83(6) proposes a new s.149(10A) – (10D) clarifying the meaning of “engages in misleading conduct” under the new s.149(2)(b) and the meaning of “inherently unsafe” under the new s.149(2)(c):
“(10A) For the purposes of subsection (2)(b), a person engages in misleading conduct in relation to a product if the person’s conduct (including any omissions), viewed as a whole, unreasonably creates a risk of another person being misled as to the properties or performance of the product.
(10B) A person’s conduct may (in particular) be regarded as creating such a risk—
(a) if the person fails to warn against a use of the product that, although not its ordinary use, the person knows or should know is occurring or likely to occur;
(b) even if the other person would be negligent in being misled.
(10C) For the purposes of subsection (2)(c), a product is “inherently unsafe” if (whether or not because of any failing in its design or manufacture) the ordinary use of the product creates an unreasonable risk to safety.
(10D) For the purposes of this section, the “ordinary use” of a product includes any use for which the product is marketed or for which a reasonable person would take it to be marketed.”
Clause 83(3) amends Condition D in s.149(5) to provide that the facts referred to in Condition A “caused, or contributed more than trivially to the building or dwelling being unfit for habitation”. Again, this amended wording is broader than the existing requirement that the facts referred to “were the cause, or one of the causes, of the building or dwelling being unfit for habitation”.
Finally, clause 83(4) proposes a new rebuttable presumption whereby if s.149(2)(b) of Condition A and Conditions B and C apply, and it is shown that the defendant’s misleading conduct made it more likely that the cladding product would be used as it was used, “it is to be presumed for the purposes of subsection (5), unless the contrary is shown, that the defendant’s… misleading conduct caused the cladding product to be used in that way.”
The explanatory notes to Clause 83 state that although the policy intention behind s.149 BSA 2022 is clear, it has not operated effectively in practice:
“In particular, claimants have faced evidential and legal barriers in establishing liability under the existing tests, including the concepts of defectiveness, compliance with product requirements and misleading statements. These difficulties are particularly acute in cases involving complex building systems, where risks arise from the interaction of multiple products rather than from a single product considered in isolation.”[3]
Broadening the scope of BLOs to include s.149 claims
Clause 86(b) of the Bill proposes an amendment to s.130(3) BSA 2022 to provide that the “relevant liability” in relation to which a BLO may be made would also extend to a liability that is incurred under s.149 BSA 2022.
Extensions to limitation periods
Clause 88 of the Bill amends the wording of s.10B Limitation Act 1980 to provide that the extended limitation periods which apply to construction products also apply to an action “that a person is entitled to bring by virtue of” ss. 148 and 149 BSA 2022. This amendment intends to clarify that any claims that depend on establishing liability under ss.148 or 149 (such as a contribution claim under the Civil Liability (Contribution) Act 1978) also benefit from the extended limitation periods set out in s.10B Limitation Act 1980.
In addition, clause 89 proposes an addition to s.130 BSA 2022 which explicitly states that “No time limit under the Limitation Act 1980… applies to the ability to apply for a building liability order.”
Comment
The policy intention behind the proposed amendments to s.149, and particularly the desire to address liability where multiple products interact together in an unsafe manner, are similar to the concerns driving the reforms set out in the Construction Products Reform White Paper.[4] It is clear that the Bill represents another attempt to stop manufacturers and suppliers of unsafe construction products finding loopholes to avoid blame.
Further, it is not difficult to see the incredible boost offered to historic defective cladding claims by the proposal to include s.149 liability within the BLO regime. Case law addressing s.130 BSA 2022 so far has made clear that the courts will take a broad approach to the question of when it is “just and equitable” to make a BLO to ensure that the money is found to pay for remediation works. Manufacturers and suppliers of cladding products who anticipate claims would therefore need to consider their own exposure as well as that of their associated companies (including those located outside the UK, as confirmed in the recent case of Mulalley & Co Ltd v STO Ltd & Anor [2026] EWHC 1552 (TCC)).
It will be very interesting to see how the Bill and the proposed reforms in the Construction Products Reform White Paper progress together. From where things currently stand, construction product manufacturers will need to prepare for significant changes on the horizon as well as reviewing their historic projects for potential liability risks.
Article by Sahana Jayakumar.
Footnotes:
[1] Building Safety (Remediation of Unsafe Cladding) HC Bill (2026-27) [155], accessed at https://publications.parliament.uk/pa/bills/cbill/59-02/0155/260155.pdf.
[2] Explanatory notes to the Building Safety (Remediation of Unsafe Cladding) Bill, page 8, paragraph 5, accessed at https://publications.parliament.uk/pa/bills/cbill/59-02/0155/en/260155en.pdf .
[3] Ibid, page 86, paragraph 591.
[4] See my previous article on the white paper here, “Construction Products Reform White Paper and General Safety Requirement Consultation: Untangling the Web of Blame” (Crown Office Chambers, 31 March 2026),https://www.crownofficechambers.com/2026/03/31/construction-products-reform-white-paper-and-general-safety-requirement-consultation-untangling-the-web-of-blame/
