The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
The Grenfell Tower tragedy has understandably prompted a fundamental reconsideration of how building safety is approached for High-Rise Residential Buildings (HRRBs), in terms of the regulatory framework that applies to construction and management of HRRBs, and also construction methods and material selection.
Whilst the Hackitt Report and Building Safer Future consultation indicate how the regulatory environment may change, housing providers are facing on-going uncertainty as to precisely what new regulatory obligations they will take on, and whether they will have additional legal rights to discharge those new obligations.
This uncertainty is exacerbated by the continuing investigations by Ministry of Housing, Communities and Local Government (MHCLG) into building materials and systems. The MCHLG’s investigations into the efficacy of Aluminium Composite Material (ACM) cladding systems and Glass Reinforced Plastic (GRP) composite fire doors were well publicised, but investigations into other materials and systems continue.
In June 2019, MHCLG published an advice note regarding the use of combustible materials in balconies, followed by a test report in July 2019 regarding the fire resistance of High-Pressure Laminate (HPL) cladding systems when installed in conjunction with combustible insulation. That test report advised social housing providers to replace HPL cladding systems, but to prioritise the removal of ACM cladding systems. It is likely that as MHCLG investigates other building materials and systems, they will identify further fire safety risks.
Remediating the fire safety issues already identified following the Grenfell fire carries a significant cost, which was (understandably) not anticipated by the sector. In September 2019, the G15 group estimated the total cost of fire safety remedial works to their combined housing stock could cost as much as £6.9bn. In light of the on-going investigations by MHCLG, social housing providers will understandably have concerns about what further fire safety risks they will identify, and how they respond to those issues as they become known. Not only is resident safety of paramount importance, but providers will be concerned that they will need to remedy fire safety defects to the satisfaction of the new building safety regulator (once the regulator is established).
Practical steps to staying agile
Given the ongoing uncertainty as to whether further fire safety issues will be identified, social housing providers must be agile to respond promptly to evolving fire safety issues, including being able to:
- Identify the extent to which further fire safety risks affect their properties, and which specific properties are affected;
- Determine how to address those risks under the fire risk assessments (FRAs); and
- Identify where claims against contractors or designers are possible for recovering the costs of remedial schemes.
There are practical steps that social housing providers can take to place themselves in the best position to respond to evolving fire safety issues, including:
- Construction contracts – ensure that all contracts for construction, maintenance, and repairs works are collated and stored where they can be easily accessed. This would include not just legal terms of contracts and professional appointments, but specifications, scopes of service and ancillary documents, such as parent company guarantees, performance bonds, collateral warranties and product guarantees. Should further fire safety issues be notified by MHCLG, being able to identify whether the affected products, materials, or working methods have been delivered under a particular contract will assist social housing providers in scoping out the extent to which their housing stock is affected, whether a contractor or designer is liable for the cost of a remedial scheme, and help to identify any contractual limitation issues.
- Management – having a single point of responsibility for responding to fire safety issues is an approach some of our social housing provider clients have adopted. This ensures that ownership is taken for resolving issues as they arise, gives a “joined-up” and consistent approach across issues of fire safety, and helps to promote depth of knowledge within the delivery team.
- Stock information – ensuring that key data regarding housing stock, and in particular HRRBs, is collated in a centralised and easily accessible format will also help providers to respond to further fire safety issues as they are identified. This may include cross-references to any repairs, maintenance or works contracts that apply to the HRRBs, any major building products or systems that are installed at those buildings (such as cladding systems, or the manufacturers of flat entrance doors and the door type), and any other critical information. Having clear and reliable data means that when an issue is identified (for instance, if another cladding system is found to be unsafe), the affected properties can be readily identified. We are aware of providers who undertook a comprehensive stock survey programme following the Grenfell fire, for the purpose of collating a rigorous database of fire safety information for their housing stock, which has facilitated a prompt response to fire safety issues as MHCLG continues to circulate the outcomes of their investigations.
- Review FRAs – social housing providers will likely have reviewed the FRAs for their HRRBs in the context of concerns regarding cladding materials (both ACM and HPL) and GRP composite fire doors. If MHCLG notifies the sector of further fire safety issues, it may be necessary to revise FRAs again. This can be a significant task, and so having a reliable set of up-to-date FRAs that are collated and easily accessible can ease the process.
Seeking legal support
As a construction team, we are advising a significant number of social housing providers about the investigation and remediation of fire safety issues, including unsafe cladding, defective GRP composite fire doors, defective sprinkler installation, and wider fire stopping issues, together with claims against contractors for the recovery of remedial costs. This advice is supported by colleagues with fire safety experience drawn across our housing management, housing and property litigation, and regulatory and governance.
For more information
If you have any questions or concerns concerning fire safety, please contact Kieran Binnie.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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