The introduction of the Building Safety Act 2022 (BSA) has had a significant impact on fire safety which managing agents, RMC Directors, leaseholders and freeholders are all having to familarise themselves with.
With this in mind, the recent case of Radcliffe Investments Limited v Meeson and others regarding the responsibility for paying for waking watch costs amounting to £57,894 is a useful reference point when determining the responsibility of fire safety costs within a building you may be involved with.
This case related to a former office block in Manchester that was converted to 96 residential flats on long leases in 2018, which Radcliffe Investments Limited (freeholder) acquired the freehold for in August 2018.
Before the conversion was completed in 2018 a fire risk assessment (FRA) was carried out by the developer as part of their obligations under the Regulatory Reform (Fire Safety) Order 2005 (FSO). Within the assessment it was stated that the risk to life was ‘moderate’ and that it was essential for efforts to be made to reduce the risk. Additionally, stated on the front page of the assessment it was suggested that the FRA should be reviewed by a competent person by 2019 or sooner should there be any significant changes. However, the evidence was that the freeholder had not had another FRA carried out within that time frame.
The building came to the attention of the local fire service later in 2019 due to the fire alarm being disabled by a water leak. The building was subsequently inspected by the fire service and evidence was also found that the compartmentation and fire separation measures were inadequate. They also found there was a lack of information relating to the material that had been used to clad the building and it was then assumed by the fire officer that inspected the building that the cladding was aluminum composite material (ACM). These discoveries presented a risk to leaseholders and residents which meant that unless fire safety measures were put in place, including a 24 hour waking watch, the leaseholders would need to leave their flats. The freeholder therefore took the necessary steps and put a waking watch in place.
First-tier Tribunal decision
The waking watch costs were substantial, totaling at £57,984 between 30 May and 20 September 2019, which the freeholder looked to recover from the leaseholders via the service charge. However, the costs only became apparent to leaseholders in February 2021 when they were asked to pay towards them following the completion of the 2019 service charge accounts. Having paid their contribution under protest, Mr and Mrs Meeson applied to the FTT under S27A of the Landlord and Tenant Act 1985 for a determination of whether the costs were payable by them.
Mr and Mrs Meeson argued that the waking watch costs were incurred due to the freeholder’s failure to fully comply with the guidance of the FSO, which was a criminal offence. Therefore, because the costs were attributable to a criminal act by the freeholder they could not be ‘service costs’ or considered to be ‘reasonably’ incurred. Mr and Mrs Meeson were also joined in their application by 78 other leaseholders within the building.
The FTT ultimately determined that the leaseholders were required to contribute towards the costs, but only for the period that the waking watch was in place prior to the fire alarm being reinstated. Within the summary the FTT stated that the main issue within the case was the freeholders failing to undertake a proper FRA, which lead to the costs incurred being considered unreasonable. This meant the leaseholders were only required to pay £5,859 worth of the costs incurred and resulted in the freeholder appealing.
The Upper Tribunal appeal
The freeholder’s appeal was based upon the FTT applying the wrong test to determine whether the costs were unreasonable. However, the UT agreed with the reasoning of the FTT and concluded that the leaseholders weren’t responsible for covering the waking watch costs entirely. This was because whilst the leaseholders were required to contribute towards the costs of necessary remedial work, the increase in costs mainly due to the waking watch, could have been avoided had the freeholder commissioned an up to date FRA that had been recommended in January 2018.
The verdict within this case goes to show the importance of carrying out necessary fire safety works within buildings, not only to maintain the safety of people in and around the buildings, but also to ensure that should remedial works be required, you’re in a position to maximise your funding options.
The FSO does not state the frequency at which FRA should be carried out, but simply states that they should be kept up to date or undertaken if there has been a significant change in their environment. However, general advise is that FRAs are conducted every one to two years, or whenever there is a significant change to the environment, as this will ensure you don’t find yourself in a similar scenario to the freeholder within this case.