A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
Readers will know that any housing provider with cladding consisting of aluminium composite panels has been required to submit a sample of cladding to DCLG for testing. Not one sample has yet fully passed the tests, which are being carried out through the DCLG programme.
Have you completed your fire risk assessment review?
All tower blocks must be re-assessed for fire safety. Any doubts about the cladding or a lack of fire stopping between floors are unlikely to have been considered in previous assessments. Along with the fire brigade, you will need to determine whether, simply on the basis of the current assessment, it is safe for residents to remain in the block or whether you need to conduct additional tests or take further action. Such steps may range from reassurance and information for residents through to urgent investigations and remedial action.
The HCA has already written to Registered Providers (RPs) reminding them that should they find systemic failings in internal controls of health and safety that indicate non-compliance with the Standard, then RPs should notify the Regulator and “resolve the issues immediately”.
Test results – are you planning ahead?
The DCLG tests are being carried out as quickly as possible, but are not being turned round in the expected time frames. Whilst waiting for the test results, you should:
- Gather information relevant to any emergency evacuation or repairs that you might have to carry out. For example, have you an easily accessible record of the ownership of flats within the tower? Understanding which homes are shared ownership, leasehold or market or social rented will allow you to take rapid decisions about your legal rights to ask residents to leave the building where necessary, or to effect emergency repairs. For example, if the front doors (which are fire rated) to flats need replacing, are they owned by leaseholders or within your common parts?
- Review whether there are any “stuck” housing management issues (e.g. no access for gas/electrical safety checks; hoarders; fire door issues; storage of belongings in communal areas; known unlawful sub-letting etc.), which you should take into account in reviewing the overall fire safety risks. You should take urgent enforcement action wherever necessary to reduce risks.
- Plan a ‘decant’ strategy in case this is necessary. Your rights to require residents to move and the ability of other social landlords to assist in providing alternative accommodation depends on tenure, allocations and nominations issues to a degree. The local authority’s homelessness duties may be relevant, together with their Housing Act 2004 enforcement powers, as a last resort for leaseholders who may refuse to leave. The emergency accommodation you offer and the seriousness of the risk assessment will no doubt impact on the willingness of residents to move quickly.
Do you have a plan for remedial actions?
- If residents will not move out whilst emergency remedial works are carried out, enforcement action injunctions may be necessary to move residents if expert fire safety advice is they cannot safely remain until works are done, or works are too intrusive to do around them.
- Are you considering charging for repairs via the service charge? If so bear in mind Section 20 consultation processes and taking advice about dispensation from compliance with the consultation requirements if appropriate.
- Is it appropriate for the same contractor to undertake remedial repairs if there is any implication that its previous work was not satisfactory? This approach needs to be balanced by the requirement to minimise the remedial costs involved in reaching a satisfactory and rapid solution. Is the basis upon which any contractor is effecting emergency repairs clear, and have you made appropriate health and safety arrangements for the work to be carried out safely? Consider which consultants you need to appoint to record the defects, advise on the remedial solutions and supervise the works.
Although secondary to immediate safety issues, the board and executive teams will still need to consider the following regulatory and liability matters urgently.
Are you complying with the law and all regulatory obligations?
There are several layers of obligation incumbent on directors, board members or trustees (of charities).
Boards and executive teams will be concerned to ensure they are:
1. Fulfilling their duties in the Governance and Financial Viability Standard of the Regulatory Framework to:
- Protect social housing assets (under charity law as well as RP regulation);
- Take reasonable steps to ensure the RP "adheres to all relevant law", "protects social housing assets" and "has an effective risk management...framework";
- Monitor and comply with funder covenants, particularly asset cover and, by implication, manage the risks of any breach of covenant.
2. Complying with relevant health and safety legislation. Failure to comply can have a range of consequences for individual staff members, officers and board members if found guilty of gross negligence or manslaughter (at common law) or breach of health and safety legislation.
3. Exercising reasonable care, skill and diligence in the discharge of their duties under the Companies Act 2006 and related obligations.
Finally, we must recognise that the Corporate Manslaughter and Corporate Homicide Act 2007 makes it an offence where an organisation is deemed to have managed or organised its activities in such a way that causes a person’s death in gross breach of the relevant duty of care. Organisations face unlimited fines, and there is potential to disqualify board members for up to 15 years.
The key question for your organisation to answer is: Are you doing everything you reasonably can and that the law would expect you to do, in order to protect people to whom you owe a duty of care and your social housing (charity) assets?
If you need assistance or wish to discuss any of the issues raised in this briefing, please contact us. Some useful contacts are:
Helen Tucker for all housing management issues
Victoria Jardine for all regulatory issues
Sarah Knight for all health and safety and HSE issues
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We’re delighted to announce that we have been ranked in the top five national legal advisers in the Top 3000 Charities 2021 directory.
The Law Commission published its report on Technical Issues in Charity Law in September 2017 following a public consultation.
Changing charitable purposes and amending governing documents.
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One of the stated aims of the Green Paper is “to deliver the best commercial outcomes with the least burden on the public sector".
The proposals concerning dynamic purchasing systems (DPS) and framework agreements are the most disappointing aspect of the Green Paper.
Family team partner, Elizabeth Wyatt, is delighted to congratulate Kadie Bennett for attaining Resolution Specialist Accreditation in both children law - private and complex financial remedy matters.
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