The monthly round-up from the Anthony Collins Solicitors charities team.
We have received instructions from a number of RPs who have tower blocks that have failed the tests undertaken by the Building Research Establishment (BRE) for the Department for Communities and Local Government (DCLG). While these tests are a good start, as David Orr (Chief Executive of the National Housing Federation) has pointed out, they only tell us what we should already know; if the cladding is made of an Aluminium Composite Material, it will fail and should be replaced. However, over the past few days, other experts have come forward and pointed out that the tests themselves are very narrow and do not test the suitability of the entire cladding and fire stopping systems applied to each block. What about the suitability of the insulation sitting behind the cladding panels? How effective is the fire stopping to each floor of the building?
Many contractors who originally fitted the cladding systems are coming forward and asking how they can help. In the hurry to resolve the situation, they are being instructed to remove and replace the cladding panels as quickly as possible. This fails to establish any clear plans for further investigations or what the scope of works should be done to replace any defective materials or systems.
This exceptional situation does, therefore, raise concerns around how remedial works are planned and supervised. In particular, we advise that it would be appropriate to consider retaining a façade engineering consultant to inspect and supervise all works undertaken by appointed contractors. Their role would be to:
- Inspect and record the defects with cladding in situ and, as it is removed, check for any wider defects (including to fire stopping and insulation situated behind the cladding panels);
- Approve the scope of works for all remedial action and approve the cost of works. Such approval will include ensuring full compliance with statutory regulations and any recommendations from the Fire Service, as appropriate; and
- Advise on the cause of the defects and whether there has been any breach of duty on the part of the contractor or consultants who clad the buildings initially that would make it appropriate for them to provide an indemnity for the remedial costs.
To move quickly through the issues is very important, but a considered approach must be adopted. To that end:
- Contracts and consultant appointments should be drafted and entered into to ensure that all usual legal and operational risks are allocated in the most appropriate way. We can assist with this and with advising on exemptions from the EU procurement regime;
- Health and safety arrangements for the proposed works need more intense scrutiny, as there is little or no pre-construction phase time to consider and write the construction phase plan and comply with other duties;
- Although this may be unlikely, it is still necessary to decide whether it is appropriate to re-charge the cost of any improvements to leaseholders through the service charge. If so, consultation will be required about the proposed work. We can advise on this or on the case for obtaining dispensation from the consultation requirements; and
- We can assist with reviewing the findings of the façade consultant to advise on potential recovery of costs for remedial repairs and costs of disruption to residents.
If you would like to find out more information about how we can help you, please contact Andrew Lancaster. To find out more about the work that we do at Anthony Collins Solicitors, please visit our website.
In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
A recent High Court case on costs could prove essential reading for clients who have cases in the magistrates' courts.
The employment and pensions team offer practical advice on whistleblowing.
Partners, David Alcock and Sarah Patrice, have been involved in reviewing the new Code of Governance for community-led housing, published on 21 May 2021 by the Confederation for Coop Housing.
Following the eviction ban being lifted on 31 May 2021 and further to our previous ebriefing, the new notice of seeking possession forms are now available on the Government website as Word versions.
The European Court of Justice's standpoint on the Wiener Wohnen landowning developer case, and how the level of influence over the work did not amount to a decisive influence.
The Law Commission's Technical Issues in Charity Law report revealed that many charities struggle with a range of technical issue in the law.
The Law Commission recommended four key changes to the law in respect of mergers and the incorporation of charities which we have detailed in this ebriefing.
Over the last few weeks, we have published individual ebriefings on some of the key changes to be implemented following the Government’s response to the Law Commission’s report.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.