Cladding and fire safety: recent developments

In the aftermath of the Grenfell Tragedy, the government introduced a raft of proposals and measures to address both the issue of cladding as well as other fire safety issues, including:

1. Advice on action (including the removal and replacement of cladding in some instances) that should be taken regarding certain categories of multi-occupied residential buildings with specific types of cladding and/or insulation. In some instances the guidance relates to residential buildings that are over 18 metres in height, but some of the guidance applies to residential buildings of any height with residents who need significant assistance to evacuate, such as care homes.

2. Guidance on the use of a ‘waking watch’ (i.e. 24/7 surveillance to raise the alarm in the event of fire) in some residential buildings. This is intended as a short term interim measure before remediation measures are undertaken.

3. A Building Safety Programme which provides for applications for funding from both the public and private sector for the remediation of certain cladding in residential buildings which are over 18 metres in height. Separately the government said in February of this year that no leaseholder will ever pay more than £50 per month towards the removal of unsafe cladding. There is also a fund to provide for waking watch measures to be replaced with alarm systems in buildings with cladding that requires remediation. The government is proposing a new tax on developers and a levy on new developments to help pay for cladding remediation costs.

4. The enactment of the Fire Safety Act earlier this year. The primary purpose of this Act is to clarify the role of the responsible person in residential buildings. In such buildings the responsible person is usually the owner or manager of the building. The concept of the responsible person was introduced by the Regulatory Reform (Fire Safety) Order 2005 and applies to both workplaces and the non-domestic parts of residential buildings.  The responsible person is required, among other things, to undertake general fire precautions and fire risk assessments.  There seems to have been some uncertainty as to whether the responsible persons’ duties covered the structure, external walls (including cladding and balconies) and individual flat entrance doors between domestic and non-domestic parts of residential buildings. The Act is intended to make it clear that it does.

5. The introduction of the Building Safety Bill, which is currently progressing through parliament. This, among other things, places greater duties and responsibilities across the life cycle of a building, from design through to the construction and occupation of the building. It introduces the concept of an ‘Accountable Person’, who again is likely to be the owner or manager of a building, who will be under a number of obligations, both before and after a higher risk building is occupied. It is likely that a higher risk building will be defined as one which has two or more dwellings, or two or more rooms for residential purposes or is student accommodation and which is 18 metres or more in height, or more than six storeys (whichever is reached first).

6. The Fire Safety Consultation which was issued in July 2020, which consulted on the role of the responsible person (see point 4 above). The government has responded to the consultation and is likely to include the following in the Building Safety Bill: increasing the obligations and responsibilities of the responsible person, requiring Premises Information Boxes, including a copy of up to date floor plans and information about the nature of any lift intended to be used by the fire and rescue services, in all new blocks of flats above 11 metres in height, and the mandating of a statement that the plans of building work have been checked and considered to be compliant.

7. EWS1 form. Although not introduced by the government, there has also been the introduction of what is known as a EWS (External Wall System) 1 form by the Royal Institution of Chartered Surveyors (RICS). The process requires a qualified professional to conduct a fire risk assessment on the external wall system and either signing them off as being safe, or flagged them as requiring remedial works.  The reason this form was introduced was because leaseholders of many flats in high rise buildings were finding it very difficult to sell or re-mortgage. There have been some teething problems with the forms, not least the shortage of qualified professionals and the difficultly of those professionals to obtain professional indemnity insurance to sign off EWS1 forms.

8. New Builds. So far as new builds are concerned, the government has also introduced the following:

• A ban on the use of combustible materials in the external walls of new build high-rise residential buildings. This was introduced in December 2018. It applies to all buildings which are at least 18 metres above ground level and which include one or more dwellings, contains an institution or contains a room for residential purposes (excluding hostels, hotels or boarding houses). The ban also applies to building work which is a material change of use such that it brings an existing building within these uses.   

• A requirement that sprinklers be installed in flats themselves on residential buildings between 11 and 30 metres in height, and that there be way tracking for the fire service in buildings over 11 metres in height.

• A consultation on the ban on combustible materials in the external walls of new buildings ended in May 2020 and the government’s response is awaited. The consultation considered:
  • Extending the ban on the use of combustible materials in the external walls of residential buildings to a) those over 11 metres high; and b) hotels, hostels and boarding houses.
  • Banning the use of metal composite material with polyurethane core in and on external walls (which includes the ACM used in Grenfell and solar shading) in all buildings of whatever height.
  • Extending a ban to solar shading shutters.

In addition to the above, changes have been announced to the Defective Premises Act, a consultation has been launched on the Building Safety Levy and a statement has been made by housing secretary Robert Jenrick in relation to EWS1 forms.  More to follow on these shortly; for more information and commentary on the current situation, most recent developments and questions still to be answered, read our Construction team’s blogs on the issues.