Downing tools lawfully: the section 112 right to suspend for non-payment, and the two halves of it nobody uses

Published 11 September 2026 · VariationFlow

The statutory right to suspend performance for non-payment under section 112 of the Construction Act, explained for UK subcontractors: when it arises, the seven days’ notice and what has to be in it, why you can now suspend part of the work rather than all of it, the costs of suspending and remobilising that the payer must pay, why the time you lose comes back off your programme, when the right ends, and the mistakes that turn a lawful suspension into a repudiation.

The notified sum was £47,000. The final date for payment was three weeks ago. There has been no payment notice, no pay less notice and no money, just a project manager who says it is with commercial and a quantity surveyor who does not return calls. You have four operatives on site tomorrow and a materials order to place on Thursday. Walking off feels like the only leverage you have left, and it is also the single fastest way to hand the other side a claim for repudiatory breach. There is a lawful version of the same move, it is in the Act, and most subcontractors either do not know it exists or use half of it.

Where the right comes from

Section 112 of the Housing Grants, Construction and Regeneration Act 1996 gives the payee a statutory right to suspend performance where the requirement in section 111(1) applies to a sum but is not complied with. Section 111(1) is the obligation to pay the notified sum on or before the final date for payment. So the trigger is not “the client is being difficult” and it is not “the account is disputed”. It is precise: a notified sum exists, the final date has passed, and it has not been paid in full.

That precision cuts both ways. If the payer served a valid pay less notice in time, the notified sum is the reduced figure, and paying that reduced figure means section 111(1) has been complied with and there is nothing to suspend for. If it served nothing, the notified sum is whatever your application or default notice stated, and non-payment of it opens the right. Establishing which of those you are in is the whole of the work, and it is the same question a smash and grab adjudication turns on.

The right is expressed to be without prejudice to any other right or remedy, so exercising it does not give up the adjudication, the interest or the debt claim. It sits alongside them.

The seven days’ notice, and what has to be in it

Section 112(2): the right may not be exercised without first giving the party in default at least seven days’ notice of intention to suspend performance, stating the ground or grounds on which it is intended to suspend. Three things follow, and each of them is a way people get it wrong.

• At least seven days. Not seven working days, and the count is reckoned under section 116 in Great Britain, which excludes Christmas Day, Good Friday and bank holidays from the period but not weekends. On a Northern Irish site the reckoning is different again and a holiday inside the period is counted; see the separate guide.
• The grounds have to be stated. A notice that says you intend to suspend, with no reason, is not a section 112(2) notice. Say which payment, which sum, which final date, and that no valid payment or pay less notice was served. It costs a paragraph and it is the difference between a lawful suspension and a walk-off.
• Notice first, then the wait, then the suspension. Suspending on the day you send the notice is a breach of contract however good the underlying grievance. If the money arrives on day six you do not suspend at all, which is the point of the notice.

Serve it the way the contract says notices are served, keep the proof of sending, and copy it to whoever actually pays rather than only to the site team. Seven days is short enough that a notice sitting in the wrong inbox wastes the whole window.

You can suspend part of the work, and almost nobody does

The original 1996 wording let you suspend performance of your obligations, full stop. It was all or nothing, which made the right a blunt instrument: a subcontractor owed money on one element had to stop everything or stop nothing. The Local Democracy, Economic Development and Construction Act 2009 changed the words to “any or all of” his obligations, and that small amendment is the most useful part of the section.

It means you can stop the element the money is owed on and keep the rest running, or stop the labour and keep the design going, or stop attending progress meetings and keep the work moving. A proportionate suspension is far easier to defend as reasonable, far less likely to be characterised as an attempt to abandon, and far more likely to get the invoice paid, because it makes the point without giving the other side a grievance of its own. Say in the notice exactly which obligations you intend to suspend.

Check the date on your contract before relying on any of this. The Act is of 2009 and the amendments to section 112 are not: all five of them, the partial suspension, the costs limb and the wording of subsections (3) and (4), came into force on 1 October 2011 in England and Wales and 1 November 2011 in Scotland. A contract entered into before those dates can still be on the original all-or-nothing wording with no right to the costs of suspending. On a long-running framework that is worth checking rather than assuming, and if the answer matters it is a question for a solicitor.

The payer pays for the suspension

Section 112(3A): where the right is exercised, the party in default is liable to pay the party exercising it a reasonable amount in respect of costs and expenses reasonably incurred as a result of the exercise of the right. That is demobilisation and remobilisation, plant standing or offhired and rehired, labour you had to release and rehire, and the storage or rescheduling the stoppage forced. Before this subsection existed you bore that cost yourself, which is why the right was worth less than it looked.

The word doing the work is “reasonably”. Keep the evidence as you go: the offhire and rehire dates from the plant supplier, the timesheets showing who came off and when they came back, the delivery reschedules, the emails. A costs claim assembled six weeks later out of memory is the one that gets negotiated down to nothing.

The time comes back

Section 112(4) is the half that is almost never claimed. Any period during which performance is suspended in pursuance of, or in consequence of the exercise of, the right is disregarded in computing, for the purposes of any contractual time limit, the time taken to complete any work directly or indirectly affected. Where the contractual time limit is set by reference to a date rather than a period, the date is adjusted accordingly.

Read that twice. It is not an entitlement to apply for an extension of time that the other side then assesses. The period is disregarded as a matter of statute, and a completion date moves. It covers not only the suspension itself but time lost in consequence of it, which is the remobilisation tail, and it covers work indirectly affected, which is the follow-on trades whose sequence you broke. If you suspend for eleven days and lose three more getting back up to speed, the contractual clock did not run for fourteen. Put that in writing at the time rather than arguing it at final account, when it will be met with a delay analysis.

When the right ends

Section 112(3): the right to suspend ceases when the party in default makes payment in full of the sum. In full, not on account, and not on a promise. A part payment does not revive the obligation to perform, and continuing to suspend after full payment does. Go back to work promptly once the money clears, confirm the date you resumed, and keep the costs and time claims alive separately.

The clause that says you cannot, and why it does not

Subcontracts sometimes carry a term purporting to remove the right to suspend, or to make payment conditional on the main contractor being paid first. Section 113 makes a provision conditioning payment on the payer receiving payment from a third person ineffective, which is the pay when paid prohibition, and the 2009 amendments extended the same treatment to pay when certified arrangements. The Act’s payment and suspension machinery is not something a subcontract can contract out of; where the contract falls short, the Scheme for Construction Contracts supplies the missing terms. Read the clause, then read section 113, and take advice before relying on either.

The order to do it in

• Establish the notified sum and the final date, and confirm no valid payment notice or pay less notice was served in time. Get this right before anything else, because the whole right stands on it.
• Decide what you are suspending. Name the obligations. Partial is usually better.
• Serve the section 112(2) notice, stating the grounds, by a method the contract permits, with proof of service, to the people who release money.
• Diarise the seventh day and do nothing before it.
• If payment arrives, stand down in writing and keep the record. If it does not, suspend on the date you said and confirm that you have.
• Record the costs from day one and the time from day one, separately, because they are separate entitlements under 3A and 4.
• Resume promptly on payment in full, and confirm the resumption date in writing.

VariationFlow tracks the payment cycle that decides all of this: the due date, the payer’s notice window, the pay less deadline and the final date for every valuation, reckoned under the statutory rule for the region the site is in, with the notified sum flagged the moment a window closes with nothing served, and the application, the notices and their dates held in one record you can put in front of an adjudicator. This guide is general information about the Construction Act, not legal advice. Suspension is a serious step with real consequences if the underlying position is wrong, and it is worth an hour with a construction solicitor before you serve the notice rather than after.