Adam Fotiou, expert leasehold solicitor at Brady Solicitors, assesses how the Government has responded to the cladding crisis to date and what is expected of freeholders, RMCs and their managing agents.
The impact of the Grenfell Tower disaster of 14th June 2017 on the residential housing sector continues to be profound and evolving, as fire safety issues and their management have since been brought to the forefront of the minds of building owners, management companies, managing agents and leaseholders themselves.
Heightened awareness of these issues will of course be to the immeasurable benefit of the safety of flat occupants and the enjoyment of their properties; discovering that a building’s cladding (and possibly the balconies attached to it) is in fact a fire risk should prompt those in charge of the safety of the building and its communal areas to urgently perform the remedial works required and install any interim safety measures if appropriate.
Unsurprisingly, one of the most pertinent and unavoidable questions arising out of this scenario is “who bears the financial responsibility to put this right?”.
There are of course many competing interests at play; as of May 2019, owners and developers of around 100 privately-owned buildings whose cladding was the same as that installed at Grenfell had refused to pay for any remedial works; it is likely that such an approach will continue to be adopted should other cladding types be discovered as presenting similar fire risks going forwards. Developers would argue that buildings regulations were upheld at the time and signed-off by inspectors.
Whilst the debate rages as to who is ultimately responsible to pay for these works, landlords and managers in charge of the repair and maintenance of their buildings will be asking themselves what needs to be done in the interim in these highly challenging circumstances.
The Government response – stopping history being repeated
As of 21st December 2018, the Government introduced a change to the minimum standard of combustibility of materials on the external walls of new buildings over 18m high which contain flats (as well as certain other building uses) through the Building (Amendment) Regulations 2018. Essentially, the materials deployed must be either non-combustible, or of much stricter ‘limited combustibility’ than as previously defined under the Government’s fire safety guidelines. This change is regarded as a ‘ban’ on combustible materials being used. It also applies to existing buildings undergoing a change of use that would qualify the building for one of the protected types set out in these new regulations.
Whilst not of immediate practical interest to landlords and managers, it is worth mentioning briefly the Grenfell Tower public inquiry directed by the Government; it has been split into two ‘phases’; the first phase focused on the events of the night itself and the report detailing the Inquiry’s findings was released to the public on 30th October 2019.
- The second phase commences early this year and will seek to answer wider questions as to the adequacy of the regulations surrounding, amongst other topics, the testing and certification of exterior wall materials at the time the building was constructed. This may lead to future reform as to whether current methods of testing and certifying of materials for high-rise buildings (by reference to their combustibility) at the time of construction are fit for purpose and whether the current guidance on how to comply with building regulations is sufficiently clear and reliable.
- Leaseholders will inevitably (and with justification) have questions as to how it came to be that blocks of flats were permitted to be constructed with materials that are now being deemed as unacceptable fire risks. Whilst it may not be of comfort to those leaseholders already affected, the Inquiry will at least attempt to examine such questions and recommend changes where appropriate.
….But what about those currently affected?
The Government’s more immediate response to the Grenfell disaster was a series of fire safety tests commissioned over the Summer of 2017, which led to the set-up of two funds to cover the cost of removing and replacing unsafe cladding from hundreds of high-rise residential buildings where no alternative cover is available via building warranties or insurance.
- One fund is reportedly in the sum of £400 million in relation to those buildings over 18m in height and owned by councils and housing associations, and the other is reportedly in the sum of £200 million for privately-owned buildings that are also over 18m in height (and where those landlords have yet to undertake the remedial actions themselves at either their expense of that of the leaseholders).
- However, the significant caveat to the use these funds is that they relate only to buildings with Aluminum Composite Material (“ACM”) cladding systems i.e. the same as that installed in the Grenfell Tower that have been deemed unsafe by the Government through the said fire safety tests.
- The controversy of such limitation is that another material for cladding and insulation combinations, namely ‘High-Pressure Laminate’ (“HPL”), has been the subject of other high-profile building fires both before and after the Grenfell disaster and significantly an independent joint research paper released in November 2019 by Imperial College London and Warsaw’s Building Research Institute, in which the outcome of 252 building facade tests were analysed, concluded that such cladding is at least as flammable as the ACL type deployed at Grenfell. There is therefore dissatisfaction amongst leaseholders that so far the Government’s funding intervention is currently at the exclusion of at least one other equally dangerous cladding material, and potentially others if and when they are discovered; the Government’s conclusions to date are that unsafe HPL systems are indeed a fire hazard but are not as high of a risk as ACL systems.
The response of freeholders and property managers
The party responsible for the management of the building and its communal areas is legally obligated to undertake suitable assessments of a building’s fire risk.
If a freeholder or manager is currently unaware as to the suitability of the cladding and insulation materials to their building, action should be taken promptly to reassure the leaseholders, as with any matter of health and safety that falls under their remit.
As a general reminder:
- There is currently no legal requirement as to the frequency with which fire risk assessments are performed, but the Local Government Association offers guidance in this respect depending on age and height of the building.
- Generally, if circumstances arise such as the suitability of building cladding materials that suggest a new assessment may be required, then a prudent landlord and manager should perform one promptly.
- As seen throughout the sector, many landlords and managers have indeed been proactive in promptly commissioning fresh fire risk assessments since the Grenfell disaster, with the cost of those assessments often recoverable through the service charge if the wording of the lease allows.
- The need for prompt voluntary fire risk assessment is exacerbated by the possibility of a building being evacuated by the local authorities or fire service if deemed unsafe, which is not only disastrous for the occupiers of the flats but also for the landlord whose asset would become increasingly ‘toxic’.
- The local authorities have a duty to take enforcement action against the owner of a building where it fails to meet required safety standards set up by the Government’s risk-based evaluation system; such action can take the form of an ‘improvement notice’, in which remedial or other actions to be taken are set out, and ultimately a ‘prohibition order’, in which prohibitions on the use of the building are set out should the remedial action not be undertaken. Prohibition orders could take the form of evacuating all occupants of a building until the remedial works are undertaken. The Fire Service has similar enforcement powers.
In the second part of this post, we review how landlords and managers can navigate through the question of funding for both remedial works and the interim measures of a ‘waking watch’ (personnel based 24/7 at a building in order to coordinate an evacuation in the event of a fire) and the extension of the communal area fire alarm systems into the flats. Click here to read more.
This comment piece was written by Adam Fotiou, leasehold solicitor at Brady Solicitors. For advice or guidance on the topics raised in this article, please do get in touch.
 Using a polish database named Kresnik in which results of 252 commercial façade tests were analysed.