Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
In the case of R (Esposito v Camden LBC), decided in the High Court on 31 July 2017, the tenant had been evacuated from one of Camden’s tower blocks after the Grenfell Tower fire, on the advice of the London Fire Brigade, who had declared that the block of flats was unsafe. The tenant and her sons moved into a hotel. After the measures suggested by the Fire Brigade to make the building safe were complete, residents were asked to return. This particular tenant refused to return until the results of further safety testing (recommended by the DCLG) were known, and asked the Council to continue her temporary housing, which it refused to do.
The tenant argued that the Council’s refusal to extend temporary accommodation for a further two weeks was unreasonable, as the Fire Brigade had not positively asserted that a phased re-occupation should continue and the fire risk remained unknown. She argued that the refusal breached her rights under Article 8 of the Human Rights Act as the unknown risk meant that the flats were prejudicial to her health.
The Council argued that judicial review was not the appropriate remedy. It also argued that their decision was not irrational, as no other local authorities had asked their tenants to evacuate a building where the cladding had failed the fire safety test and their decision was consistent with the advice from the Fire Brigade and DCLG. It submitted that the Article 8 Human Rights Act claim was misconceived because it had no duty in relation to the condition of the flats.
The judicial review and injunction application was refused, but the Court held that public sector landlords providing social housing, such as Camden, were not in the same position as a commercial landlord. The number of people affected and the fact that they provided social housing was sufficient to make their decision judicially reviewable. The Court must look at all the matters in the round.
However, the Court found that the tenant had not made out a sufficient case that the Council had acted irrationally. The evacuation of the building was not done because of a failure of the cladding, but in response to advice from the Fire Brigade, therefore, the Council was justified in asking the tenants to return. There was no basis for an Article 8 claim by virtue of the risk of fire or due to the cladding.
It is possible, of course, that the tenant might appeal further, but this High Court decision is presently binding.
It is interesting that the Court supported the Council’s decision to rely on the advice and recommendations of the Fire Brigade. Landlords should do the same.
We are aware that many Fire Services are extremely busy inspecting tower blocks and other low-rise blocks of flats, so it can be difficult to get urgent advice from them. If not available, taking other independent external fire safety advice is suggested, especially if injunctions might be needed to support significant decisions like evacuation or to decant or gain access in order to carry out works, repairs or improvements that new fire risk assessments recommend.
If you would like more information on this topic, please contact Helen Tucker or Baljit Basra. If you would like to find out more about the work that Anthony Collins Solicitors does in the Housing sector, please visit our website.
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