Aftermath

This is not about Grenfell Tower, at least not specifically.

I have still not been able to think about what happened in the tower that night. It is simply too awful to begin to imagine. The loss of life, and the impact on those who survived, is on a scale that I cannot even begin to process.

The reasons for the horror of the fire will become clear. Whatever they are, and whatever failings led to them, it is clear that something or things went catastrophically wrong. But I am not going to speculate. There must be accountability, but I have no special insight. 

But, while some will want to see in Grenfell only the specifics of, say, a defective cladding installation, or a botched refurbishment, both the event and its aftermath have also become about social housing, about the treatment of the homeless, about where we are. Save that some, at least, are trying very hard to make sure it isn't.

Many people seem to be suddenly realising that there is a problem. Many seem to be quite shocked at what is coming out about the situation of social tenants and about homelessness and its treatment. But of course, inevitably, it is the easy responses, the 'feels right' answers, that are getting traction. 

This is a bit of an essay in response to that. It began in anger, but turned to sadness, and a sense of wanting this to be a turning point, but doubting it will be. It is crude and reductive - inevitably - but I will stand by its direction. It has also been through many revisions. I have found it very hard to write, and, I apologise in advance, it is bad writing. I also anticipate a lot of 'but not us, we don't do that'. Still...

Let's start with the instant myths.

 

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The myths

These have arisen, swirling around social media (and some newspapers, to their shame), repeated, retweeted, embroidered, because they feel right. They fit, they explain, without actually troubling anyone. The problem is that each myth hides real issues, inverts and simplifies what are the genuine, complex problems of social housing now.

"It is about profit before people" - No, Grenfell Tower was council owned and managed by an ALMO/Managing company that is a not for profit company. If you start extending this to contractors and sub-contractors you are into a land in which nobody at all may make a profit. This may or may not be a valid political philosophy, but it is not a very useful analysis of what has gone wrong. However, it is about money...

"The cladding was added to improve the view from luxury flats elsewhere in Kensington". This is nonsense, apparently derived from a standard, minor K&C planning policy element (CD63, if you want to look it up) which suggest that any development in or within sight of a conservation area should have any improvement (or not) in its external appearance considered. However, the perception of and attitude to social housing is a serious issue...

"The residents couldn't get legal aid to challenge the managers because of legal aid cuts". It is certainly true that large swathes of issues were taken out of scope of legal aid in the devastating LASPO cuts. But I can't see that this would have made any difference to what the residents were trying to do. There is no legal mechanism for tenants, social or private, to make landlords carry out the kind of inspection or changes that the residents wanted. (These were not repairs, not identified defects, but decisions about the management of the block and what should be done, and none of them obviously suitable for judicial review). There would have been no legal aid in any event because there was nothing that could be done by lawyers. The issue is not legal aid per se (though heaven knows that needs addressing), but the lack of any legal structure by which tenants could get the landlord or managers to address their concerns. Social landlords imposing their decisions (or lack thereof) on tenants is an issue.

"72 Tory MPs who are landlords voted against Corbyn's amendment to make housing fit for habitation". Yes, the Tories did vote out a Labour amendment to the then Housing and Planning Bill which would have provided a degree of accountability to tenants for property standards (above the existing repair obligations). In fact they did so twice. And it is not true, as one conservative MP who voted against firmly told me on twitter, that it would only have applied to private sector tenancies. It would have applied equally to social tenancies. But, while this clearly feels like it would have some connection to Grenfell, as one of the people involved in the original drafting of that amendment when it was Karen Buck MP's private members bill, I have to say it doesn't look, on the present evidence, as if it would have made a difference. (Oh, and Corbyn, quite literally, had nothing to do with it at the time). But, even if the 'fitness for habitation' amendment would not have made a difference at Grenfell, the lack of legal accountability of landlords to tenants for the condition and standards of properties is important.

So, what underlies the myths (and which they serve to hide by being easy but wrong responses) are: money; attitudes to social housing; and lack of legal mechanisms for tenants to have their concerns addressed and hold their landlords accountable on property standards and management....

 

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Money

For decades social housing, and particularly council housing, has been underfunded. The occasional burst of capital largesse, like Decent Homes, did little to change this. Long term maintenance, staffing and support were and increasingly are short of funds.The release of the Housing Revenue Accounts (HRA) to councils, albeit accompanied by eye watering requirements for debt repayment to the Treasury, might have seemed like some relief, but then, despite promises, social rents were not just frozen, but cut, shrinking the HRA income and crippling councils' plans. Other housing related services are paid from the general fund, and the cuts to those have been drastic.

Social housing has paid for itself, and continues to do so. There is no subsidy any longer. But there are the decades of neglect during which any HRA surplus functioned as an income stream for the Treasury, and then the purse strings were artificially tightened. Of course, some councils spent less than others. Some, like RBKC, engineered a significant surplus on the HRA by 'limiting' spending, but for all councils, a shrinking pot in real terms, plans put on hold or discarded, budgets tightened.

There has been no money, and no access to money by way of borrowing, for new or replacement council stock. The available stock shrank through right to buy - again, this was accelerated recently by the imposition of new huge discounts, after the Labour governments had succeeded in slowing RTB by keeping the discounts small.

The upshot?  Not just undone, delayed or skimped repairs, not just shrinking stock and no replacements. The culture of council landlords (assuming that they had not, as with Kensington & Chelsea, hived off all management or ownership to a third party) changed too. Experienced officers left, or were made redundant. Training cut back. Local knowledge, and knowing the tenants, was discarded. Income and sub-letting prioritised - not in itself a problem, but done at the expense of other activities. 

Not all councils, of course, and not everywhere. But the direction of travel was clear. And where management was hived off to a third party, or an ALMO, the performance indicators certainly didn't include 'knowing and involving your tenants'.

Understandably, but disastrously, tenant resentment at declining and impersonal services, and at the condition of their homes, was increasingly met with defensiveness and hostility from their landlords.

Add into that that any attempt to carry out significant repairs or maintenance results in the leaseholders (Right to Buy or subsequent purchasers) themselves being charged huge amounts through the service charge - £30,000, £40,000, £50,000 or more each - and the leaseholders' own resentment at the costs, the years of neglect and their treatment by the council. Any attempt to carry out repairs itself turns poisonous.

Attitudes

Let's be honest. The many years of denigration of social tenancies by some media and by politicians have taken a serious toll. Portrayed as the tenancy of last resort, as being only for the damaged or hopeless, for the 'spongers'. The crystalisation of this is in the compulsory fixed term tenancies introduced in the Housing And Planning Act, predicated expressly on the basis that social housing and council housing in particular, is a 'safety net', there only for the time that people are in dire need.

Simultaneously (and in obvious contradiction) councils were urged to set conditions on access to the housing list, so that tenancies would, in effect, only go to those who were working or making a 'community contribution', and who had lived in the area for years. Council tenancies were simultaneously only for the desperate, for a short time, and only deserved by those who were 'making a contribution'. You have to deserve a tenancy, but even then, you only get it for a few years.

Council tenants should be pathetically grateful for whatever they are given (an attitude that has found purchase in certain councils, housing associations and housing departments). As such, exactly what tenants were given ceased to be of any great importance, as did tenants' views about it.

Of course things vary between councils, and of course specific decisions on allocation and use of estates matter. But the direction is clear.

And of course, of course it is about class, and also often about race. Social housing is like Whitechapel in the 18th to 20th centuries - it is where the poor - working or unable to work - find a place if they are lucky, and where people establish themselves, remaking their lives, forming and developing communities. But Whitechapel was a slum.

Yet it has never been clearer that the market cannot and will not provide adequate affordable housing (affordable to anyone on average income or lower), or the housing needed for families. The private sector advertises 'family homes' for rent, with a 'no children' condition, or turns former family homes into overcrowded HMOs for single and desperate people.

Housing Associations are abandoning social housing in droves, to put all their efforts into 'affordable' (somewhat sub-market rent), fixed term shorthold tenancies, or shared ownership properties. That is when they aren't developing their full market 'offers', which are different to the Private Sector only in that a tenancy of a fixed term of a few years may be offered.

Even then, some housing associations could not resist trying to add in 'self-improvement' clauses to tenancy agreements, such that tenants had to undertake, as a condition of tenancy, to be the very best them that they could be. Imagine Saltaire run by Gwyneth Paltrow and you hit the right level of forcible imposition disguised as self-help babble. And of course, housing associations abandoned the under 35 year olds as the cap on housing benefit for social rents to the private LHA maximum loomed.

The only tenure that can actually offer long term, affordable and adequate housing for many, on low or average income (if not above), is the tenure that has been condemned for many years. Secure or assured tenancies. Yet this is the very tenure that is being made impossible and sees its tenants portrayed as failures.

 

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Law or the lack of it

There is little law that governs the relationship of social housing tenants and their landlords. I'm writing this for a general audience, not lawyers, and in part because a lot of lay people have seemed... surprised.

There are statutory provisions on tenure - how a tenancy is held, on grounds for possession by the landlord, and on succession to a tenancy when a tenant dies.

There are the occasional consultation requirements, when the landlord must consult the tenants - on change of tenancy terms, stock transfer, setting up tenant management organisations and the like.

There are unavoidable obligations on the landlord to repair the structure of the property and installations for gas, water, electricity, heating and sanitation. But these only kick in when something is out of repair, not when there is a problem like cold, or a serious fire risk, or condensation due to the design of the property. 

This last - problems with affect the comfort, health or safety of the tenant, but are not 'repair' issues - was what the Fitness for Habitation Bill (and the Labour amendment to the Housing and Planning Bill as was) were aimed at. As it stands, it is only councils that can enforce fitness for habitation conditions against landlords - and councils can't enforce against themselves. (They hardly ever do against housing associations, and the figures for actual enforcement against private landlords show that only a minority of councils mange more than none or one a year - again, no staff, no money).  The bill would have allowed tenants to take action against their landlords for conditions in the property - including fire safety risks - where currently tenants have no power to do so.

And then on day to day of management of properties and buildings, tenants have absolutely no say, or right to a say. When the Grenfell tenants were trying to get the management company to respond to their views on the refurbishment, or to pay attention to their suggestions and concerns about the common parts of the building, there was - and is - quite simply no legal mechanism, no right, or bit of legislation, by which they could make that happen.

Tenants can be, and all too frequently are, ignored. Voiceless on decisions which have a significant impact on their homes, their living conditions and, sadly, the potential risks to them. (A residents consultation on the Grenfell refurbishment voted overwhelmingly for the fire-retardant version of the cladding, and they were told that was the preferred option. Two years later, that was simply ignored. Perfectly legally).

Leaseholders have a degree of a say, through statutory consultation on any works which will cost more than £250 per leaseholder. But this is, if anything, usually a precursor to the real struggle about the payability and reasonableness of those major works charges in the First tier Tribunal.

It may be that an effect of Grenfell is more of an appetite for legislation about duties to and engagement with tenants. I hope so. But some caution is needed. In the wake of awful events, there is demand for 'something must be done' legislation. It is always bad. Usually it attempts to legislate for good behaviour, rather than setting out what behaviour must be stopped. One cannot successfully legislate for people to behave well, or decently.

Some suggestions (and these are not about fire safety or building regulations, as those are not my turf).

Bring back the Fitness for Habitation bill, possibly changed to ensure that it covers risks to any part of the building in which the landlord has an interest which may affect fitness of the tenant's home. This would allow tenants to enforce on property conditions which amounted to unfitness for habitation through fire risk, inadequate heating etc.

Consider introducing a right to consultation on works to building for tenants - something that parallels the consultation requirement in s.20 Landlord and Tenant Act 1985 for leaseholders, only with a penalty for non-compliance (as the penalty for noncompliance with s.20 is to cap major works charges at £250, which is useless for tenants).

And - J's idea, not mine - bring into force the existing, languishing,  s.38 Building Act 1984, which would enable victims of a breach of Building Regulations to sue for damages.

The existing mess on responsibility for fire safety inspections, on those not extending to flats, only common parts of a block, and things like responsibility for flat entrance doors where those need to be fire-resisting (an issue under some leases, including, it appears, RBKC leases) needs to be sorted. 

Beyond this, there are broader issues of tenant engagement and participation and accountability of landlords to tenants that need considering. I am not sure how suited they are to legislation - and certainly not hasty legislation - but there have to be changes...

After-effects

I had hoped, perhaps foolishly, that the Grenfell tragedy and its immediate aftermath might shine a spotlight on both the condition of social housing (and the law around it) and, as people reacted in horror to the rumour of someone being sent to Preston for temporary accommodation, and as families camped out on hall floors, the precarious situation of the whole homelessness system in London.

There is no free temporary accommodation, no reserves, homeless families being shipped out to Stoke, or Birmingham or Telford on 24 hours notice, backed up with the threat to discharge duty (not, as various people have had it in the wake of Grenfell, a threat to find them intentionally homeless).

And for a moment, people's jaws visibly dropped at the rumoured treatment of the Grenfell survivors and the sheer chaos surrounding the support operation. Words like 'intentionally homeless' were everywhere (albeit mostly wrongly used). How dare someone be sent to Preston? How dare the council not find permanent accommodation for these people nearby immediately?

For a moment, the sheer creaking, lumbering, hostile environment of social housing and homelessness appeared to be on the brink of being discovered by the public, the same public that think 'the council' will house you no matter what.

But no, now shiny new accommodation (not 'luxury' but the portion of a development built for 'social rent affordable housing' under a s.106 agreement) has been found. There is a resolution of sorts. Except of course that it isn't an ending - not an ending for the victims and survivors, not an ending for those whose uncertain immigration status means that they won't come forward, or that their bodies will never be identified, and not an ending for the thousands and thousands facing the grind, the degradations and displacements of homelessness.

I only hope I am wrong, that it is an opportunity to be taken for reform - and of more than just planning and building regulations. I hope and will certainly try to do what I can in support of that.

But I'm not making any bets.

 

67 Comments

  1. You are right about the inability of tenants to hold their landlord to account for poor management, but there is a statutory Right to Manage available for tenants fed up with incompetence or indifference. It is confusing that RBKC’s managing agent was styled as a tenant management organisation when it is in practice an ALMO with a tenant majority board. Had the tenants of Grenfell Tower or the whole Lancaster West Estate used the Right to Manage to set up their own local TMO, they would have had the power and budget to improve the management and maintenance of their homes.

    I don’t pretend for a moment that they would have been able to control the capital works that saw flammable cladding fitted to Grenfell Tower, TMOs tend to get as badly treated and marginalised when council’s do major works as any other tenant group. However, it is likely that tenants in direct control of their own management would have addressed the day to day concerns that the Grenfell Action Group rightly identified. Such an activist group often forms the kernel of a new TMO.

    A TMO is not a panacea but a good one can be transformative both in terms of practical matters and the psychology of tenants – having control by right, rather than being supplicant to the local authority.

  2. Arguably, planning permission should not have been granted for the cladding because it was a serious health and safety risk. The due diligence into the product’s suitability, as advised by the manufacturer, was that I was not suitable for Grenfell Tower. Also, the spirit of fire safety legislation is that the Council had an overriding duty to investigate this issue, after all they were on notice from tenants, and take enforcement action to have the panelling removed – as Camden and other authorities are now doing. There has been a failure of a common law dereliction of duty. Also, the cladding, in the circumstances, was not fit for purpose which gives raises design issues vis-à-vis contractual negligence.

    • This is not entirely accurate, about the planning permission, about the manfacturer’s advisory, about fire safety legislation obligations or what had been raised by the tenants (Not the cladding).

      But, as I made clear, this is not about the specifics of Grenfell and any liabilities there. I do not wish to speculate unhelpfully on potential liabilities, or negligence, nor any potential criminal charges that may arise. I’d ask that others do not here, likewise.

    • ‘planning permission should not have been granted for the cladding’ – I think this is a misunderstanding of a planners role. Planners usually have something like a Geography degree.They operate almost like ‘post boxes’ They consult with others – say highways or heritage and neighbourhood interest groups. They then evaluate proposals against policies, taking into account the views of consultees ( also reviewed against policies)
      Planners generally would not review a technical specification. They might ‘condition it’ but planners do not have the capacity or training to control/condition everything. The whole system would back up if they did.
      Relevant Policies are likely to relate to ‘sustainability’ – adding insulation externally is a very good thing to do in terms of reducing CO2 emissions.
      Building Control could themselves consult with the Fire Brigade BUT I’d say they did’ent because there was no change of use – cladding was seen as not ‘not material ‘to the Fire Brigade. Again the whole system would back up if they did.
      For the future, we notify most significant projects to the HSE via F10 forms however they almost never visit sites.( no capacity) It could be that a sim system to the Fire Brigade would be a useful check…but there is no substitute for ‘good judgement’ and ‘experience’ and ‘training’!

  3. I felt the same about the potential for the social housing and homelessness situation to have come to light. But it won’t. The victims at Grenfall have largely gained massive public sympathy, but many continue to assume that other homeless people and people in poor housing are somehow deserving of their situation and enjoying the consequences of their own conscious choices.

    The media are referring to the new accommodation where they will be housed having been ‘acquired’ specifically for them. But if this was housing already intended to form social housing, then the units lost to the fire are not being replaced, and there will now be even less housing available to other homeless applicants/people on the allocations register. Allocations to Grenfall residents will presumably be made outside the borough’s register? It is a shame that no such magic wand is ever produced for the many, many other homeless families. I am very pleased that the victims will hopefully be housed quickly and suitably, but would have liked to see additional accommodation above existing provisions for social housing acquired, to account for the many families made homeless and units of social housing lost as a result of the fire. Perhaps that will be accommodated in future development plans, but perhaps it will not if the issue does not resister in the public awareness. If not, then many other households awaiting an allocation of social housing in the area will be further victims as a result of the further burden on the already limited housing stock.

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  5. This is slightly off topic perhaps, but your comments regarding how the attitudes of social housing landlords and their officers have deteriorated towards tenants reminded me of a summer job I had sorting the archives of a local authority housing department.

    I was working on files dating from around the first world war when the council were letting tenancies on a newly built garden surburb. Each prospective tenant was visited by an inspector who seemed to have absolute discretion over lettings, each having their own idiosyncratic criteria. Many of their comments have stuck with me, and the overall sense was that families had to earn the unquestionable privilege of being offered a council home. Decisions seemed to turn primarily on the inspector’s assessment of someone’s good character.

    One family was permitted a tenancy because, ‘ Mr X’s wife had recently black-leaded her cooking range and her hearth showed no sign of ash’. Another was rejected because the mother held a small child on her knee throughout the interview, and ‘failed to wipe the child’s nose adequately’. Other people were simply ‘the wrong sort’, failed to show ‘due deference to the inspector’s station’, ‘married to a known drinker’, ‘seemed to be a gypsy man’, a ‘trader in horses with a low reputation’.

    From some of what you wrote above I wondered how far on we really are from those times.

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  7. I was curious as to your comment that there was no legislation to tackle excess cold and condensation. No doubt if you were involved with Karen’s fitness bill, you are aware of category one hazards under part 1 of the Housing Act 2004, designed to replace the previous ‘fit for human habitation’ legislation. Local housing authorities must serve a notice on the person in control of the property if there is a category one hazard e.g. damp or excessive cold. Not useful if the LHA is also the landlord rather than a separate body; and of course, it is the LHA’s judgement as to whether to take action, which is perhaps your point. In a slightly different vein; it is interesting that while other areas of local authority​ enforcement e.g. health and safety are progressively being minimised, we have a load of piecemeal legislation for housing standards despite previous Conservative watering down of aspects of the legislation they have introduced. As an enforcer, I have a certain amount of sympathy for small portfolio holders who have to cut through a miriad of pieces of relevant legislation. Time for a full-scale review of housing legislation; my only concern is that we could end up with something worse and not fit for purpose.

    • As per the post:

      As it stands, it is only councils that can enforce fitness for habitation conditions against landlords – and councils can’t enforce against themselves. (They hardly ever do against housing associations, and the figures for actual enforcement against private landlords show that only a minority of councils mange more than none or one a year – again, no staff, no money).

      I agree on the piecemeal nature of current legislation. Incredibly hard to keep track of, let alone use…

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  9. Great article thanks Giles. Your point about fire doors is a really important one. I have just stepped down as the chief executive of a housing association. Following the Lakanal fire in 2009, and reading the coroner’s inquest recommendations we did a major review of fire safety in our blocks and decided to replace all the doors free of charge and also fit sprinklers retrospectively as they are the ONLY effective way of guaranteeing safety because they extinguish the fire in the flat before it can spread. All three tower blocks that we owned have had sprinklers fitted. But when we reviewed fire safety in 3 storey blocks of flats the chaotic overlap between the leases (which said the leaseholder owned the front door) and the fire safety regulations (which rightly imposed obligations on the landlord to ensure safety in the common parts created a huge problem. The right to buy leases we had inherited only questionably permitted us to insist on new fire doors for leaseholders. We need clear legislation that enables the landlord and the fire enforcement authorities both to insist that doors entering onto the common parts are fire doors. Duncan Forbes

    • When the Regulatory Reform (Fire Safety) Order 2005 came into force, I contacted Karen Buck to ask (a) who was regulating the new industry of fire consultants who had suddenly become essential (b) how could landlords compel leaseholders to change their flat front doors into 30 minute fire doors if these were found to be necessary following on from the FRA. No help and no answer.

    • The answer to the later is that, if the doors are demised to the lessees, they can’t. The answer to the former appears to be no-one. No answer indeed.

  10. Great article. I worked in social housing ( bricks and mortar side) in London for about 15 years.

    When I started the Housing Corporation oversaw grants to the Housing Associations and many of these had good in-house development capacity. As sites became more scarce and funding streams more circumscribed many HAs began to borrow against their assets and development of true social housing became unaffordable in all but name. More and more project managers started to appear with expertise around spreadsheets. Many HAs had produced standard specifications eg around types of cabling or whatever but fewer and fewer people within HAs understood them.

    LAs just stopped building they were so circumscribed around funding. They had agreements with the HAs re taking people from the housing list for a while but that got more difficult as the HAs ran into difficulties. Westminster also moved many homeless to outer London boroughs like Ilford via arrangements with the HAs ( not sure how Ilford felt about that?) I will never forget my visit to one such block, less than ten years old, that had no glass in any of the windows in the corridors. It was tremendously unsafe – and there was no money to ‘secure the building’ against drug dealers.

    Also ‘public good bodies’ if I can call them that eg the BRE, Ordinance Survey etc were sold off and the services they provided plus building control services opened up to competition. Building Control services are a very poor shadow of what they were as when you can choose who provides the service and pay their bill how can they have teeth?

    People who actually had very little technical knowledge were making decisions in the whole building/development process often based around risk. ‘who will carry the can if things go wrong’? I recently asked an in-house fire officer recently for advise on what standards applied to a replacement fire escape stairs ( the existing one is reaching the end of its life) in terms of width, refuges etc. and was given the response ‘I don’t know. I’m not a designer’. Her primary degree was history from memory..

    I would say this as an architect who has a specialism in historic buildings but all put way too much faith in building systems eg a cladding system by x (all situations are the same !) rather than really getting to grips with building physics ( all situations are different, and different things are happening depending on interactions everything has to be approached from first principals).

  11. I also feel sympathy for companies including Celotex..maybe misplaced.. but I imagine they will be left to take much of the blame for structural problems derived from a belief in small government.

  12. For comparison, my manager who is retiring soon, instructed the spending of over 70k on emergency lighting on a building she was in the process of agreeing the sale of. Her rationale ‘we know people we have a responiability to will be living in this building no matter who owns it and we cannot have ‘our’ people in a building that is unsafe’. This was her bottom line. One has to ask how many managers of property portfolios understand this – they might be managing property/money but they are also managing people’s safety and sometimes decisions are not just made on the basis of what makes commercial sense.

  13. Superb article Giles.
    Taking on from the point about RPs moving away from social housing (which they are) is a similar point about the regulator.
    Provided you, as an RP, are hitting your governance and viability ratings (G1 & V1 etc), there is no incentive to involve residents because governance and viability is is all that matters to the HCA.
    Unless you happen (and by god, recent examples show you *really* have to try) to engage the “serious detriment” provisions you can be as, frankly dangerous, as you like provided you don’t affect G & V.
    Whilst that situation continues, I fear this won’t be the last time you have to write an article like this.

  14. Being a Planning and Property Consultant Designer I come at this from a holistic point of view with a recognition of the stark reality of the current housing crisis, all thought or any semblance of the housing standards that prevailed late 40s, and early 50s long forgotten and current space standards and densities that are just untenable for habitation. It now being acceptable for two people to live in a 10sq m room with facilities shared with innumerable others. I believe Whitechapel was mentioned above.
    My role involves me from design to use and in upgrading, conversions etc and advice and various involvement during use.
    As I see it there is regulation adequate to ensure safety from inception to demolition, if it were fully enforced or utilised.
    First the Building Act and Regulations Full Plans where the RRAct FSO is engaged regards proposed use.
    H&S Exec responsible for the construction stage with CDM Regs obligating designing out/minimising risk during construction and for future users including an obligation to inform owners or users of completed building by way of Safety Plan etc on any risk remaining inherent on completion or use.
    The Reg Ref Act FSO kicks in on completion requiring a Fire Risk Assessment before a building is brought into use and that it is regularly revised and complied with during use.
    Finally the Last Resort the HH&S RS which I concur councils can but do not utilise against themselves or HA Partners unless being embarrassed into so doing.
    There are as I see no gaps in regulation or areas of immunity from responsibility. It is just a failure to Enforce that needs addressing Including I think providing for that Tenants can Statutorily request enforcement under the RR Act FSO and HH & RS and have a right of appeal if not satisfied by enforcement. Not through a council complaint procedure or the LGO but with legal representation to a body with teeth enough to penalise the lax enforcers.

    • Keith

      Councils cannot enforce HHSRS failings against themselves. Tenants cannot request its enforcement. Tenants cannot require enforcement under HHSRS even in private stock.

      It is clear that Building Regulations are completely inadequate – see http://www.bbc.co.uk/news/uk-40418266 It is the very bodies that have responsibility for assessing standards that have allowed for their deterioration. The ‘approved inspector’ regime means no direct oversight.

      H&S exec are not responsible for safety and standards of the building, only construction process.

      The RRO FSO does not include residential parts of the building, only the communal areas.

      There are gaping holes in both the regulation and enforcement powers. Tenants in particular are powerless. I am afraid you are going to have to do some reconsideration of your job…

  15. Giles

    I will not comment individually on each and every of your above However if as it appears you rely on the BBC or similar for your information, you ought at least corroborate that before propagating it. I am aware that tenants have next to no real powers which is why I suggested they were required. I would add that the HH&SRS methodology is overly complicated for most to understand so a revision of that would be welcomed.

    • Keith

      Is anything in that Newsnight article factually wrong?

      Councils can’t enforce HHSRS against themselves. You suggested they could if persuaded. They can’t.

      RRO FSO does not extend to residential parts of the building.

      I am failing to see how the ‘everything is adequately regulated and rosy’ view is adequate.

    • Out of curiosity, would you support the bringing into force of s.38 Building Act 1984? Enabling direct claims for breach of building regulations, rather than having to establish negligence?

    • Yes. I believe your interpretation of R(G) v Barnet is fundamentally flawed. Lambeth only co-incidentally a unitary authority. Position expressed as two separate authorities.

    • Giles,
      My argument doesn’t rest on R(G) v Barnet. I mention it as just one point amongst many. You are being unduly dismissive if that is your only point. What about the fact that planning, inspection and report obligations remain even if ex p Cross still applies?

    • Which gets one nowhere on enforcement. Besides, there is no obligation to inspect, save for notification by a JP or parish council…

    • I’m not sure what else there is to say? If enforcement is the crucial point and Cross still applies, then that is that. If Cross doesn’t apply and the only authority to date on a council enforcing a duty on itself is R(G) v Barnet, I’ve explained why I don’t think G does that. Which leaves the whole question completely in the air. Against that, is the fact that, as you say, there was Govt consultation on the issue but that did not result in a clear decision or a clear statement in the legislation.

      And then, a housing authority enforcing against itself raises clear issues of conflict and indeed public policy.

    • Giles,
      There is so much more to say, as summarised in my article. To start with, ex p Cross is not authority for the proposition that Councils cannot enforce housing standards in relation to property they own, only that they cannot serve notices on themselves under the Housing Act 1985 regime for fitness for human habitation. Woolf J’s judgment actually supports the proposition that a Council may serve notices in relation to property it owns if some other organisation manages it, e.g. K&C TMO. I am assured by Tribunal colleagues who used to work in local authority environmental health departments that they used to inspect council properties and serve informal notice on their housing colleagues to good effect. Naturally this practice has stopped. The legal obligation to inspect is not limited to official complaints from JPs or parish councils. I have run my argument twice in JR proceedings. Both times the Council carried out remedial works which would otherwise never have happened.
      The above is only part of what can be said. It is way below your normal standards to dismiss legal options so glibly.

    • Nik, I read your article. Carefully. And I’ve heard you talk on it.

      I don’t think there is much more to say. Either a Housing Authority can enforce, by way of service of notices and prosecution against itself, or it can’t.

      A housing authority is a singular legal entity, like I am. I can’t sue myself, serve myself, or prosecute myself. Cross is not so much a limited precedent as a statement of general principle.

      R(G) v Barnet is not authority for the contrary, for reasons I’ve explained. Nor is anything else in your article, or whatever informal practices or abortive JRs there might have been. Unless you can get over the hurdle of the singular legal entity, it isn’t going anywhere.

  16. Giles
    There is much inaccurate and misleading over simplification in the BBC article in respect of what is undeniably a complicated subject a part of the regulatory regime. First Part B is not guidance but a government statement of one way to comply with the Building Regulations. It is an Approved Document. It does not prevent other means being used but if they are, compliance with the regulations is required to be demonstrated whereas adopting the methods in the approved documents demonstrates that in itself. The Approved document and looks at Fire Safety in the round, it has no regard for protecting buildings just for protecting the occupants of buildings and adjoining buildings. Flammable aluminium cladding although not the least bit sensible or even reasonable is not the whole story as is being perpetrated. Active Fire Suppression/Control, Compart-mentation, Detection and Alarm, Protected Means of Escape, Smoke Venting from Escape Routes and Emergency Evacuation Plans are all more relevant
    Additionally the physical nature of one element of the building, for instance the cladding, in itself although adding risk, that risk can be mitigated, minimised or neutralised by other components and tenets of fire safety.
    Then as I said originally, If the RRAct FSO FRA identifies the “cladding” risk and accounts deals with it by whatever means, although still an unnecessary risk, it can be mitigated and neutralised. Also as an unnecessary risk it ought have been designed out under the CDM Regulations and if not ought have been notified to the building owner or operator on completion of construction.
    Finally for now if LA Building Control, whom in my experience still dominate, find, discover or are dissatisfied with or identify anything they consider is non-compliant with the Building Regulation, enforcement of the regulations by prosecutions is their remit.
    I did not say adequately regulated. What I said was there are adequate regulations but inadequate enforcement.
    I defer to your expertise in regard to the HH&SRS but have to note that not all of your peers concur with you.

    • I’m sorry, you haven’t pointed to anything factually inaccurate in the article. What you say about Part B is exactly what the article says. It is a route to comply with Regs.

      If what the article suggest about the alternative routes is accurate – any you have given no reason why it isn’t – then there are clear problems with the regulations, and those setting standards, regardless of any enforcement issues.

      And all the hand-waving about compartmentalisation etc is pointless if the cladding goes up as it did. There was supposed to be compartmentalisation…

      And by the way, I deeply disagree with Nik on the HHSRS issue. Indeed, I suspect his point at a) is fatal to the whole argument but R(G) Barnet concerned social services and housing as different authorities, (co-incidentally in one authority in the case of Lambeth).

  17. Just a point here..

    If you move everyone out of a building, certain stringent rules apply before you can re occupy. Ditto ‘change of use’ say from office to residential. This is not the same if you scaffold the outside of a building and add cladding while everyone remains inside – much more ‘light touch’ regulation applies.
    ‘Signed Off’ Full plans BC submissions prior to starting works used to be the norm but no more. BC inspectors are the services they provide are very, very variable.

    By contrast ( another anecdote -sorry) I remember BC and the fire officer turning up with a medical ‘scope’ they had hired, asking for voids to be opened up and carrying out an inspection of factory made bathroom and kitchen ‘pods’ for fire barriers within concealed voids, on a building site. These were found to be missing and all had to be retrofitted before the building could be occupied.

    De-regulation, austerity and belief in small government have meant that these services ( needed in the public interest although that is a deeply unfashionable thought) have been hollowed out and I cannot conceive of a situation where this would happen today.

  18. Giles
    Is s38 not already in force excepting authority to make regulations. I am always cautious of short cutting evidential requirements because they can potentially impact on the innocent as well as the guilty.

    • No, it isn’t. There is no ‘cutting of evidential requirements’, what there would be is a statutory tort of breach of building regulations rather than having to rely on the common law (and more complex) negligence.

  19. AM
    It is a little appreciated fact that the single legislated for approval under the Building Regulations is for Full Plans Approval. That approves only the plans it does not certify the building is constructed in accordance with the plans but just that if it is so, so far as the plans specify, compliance with the B Regs is demonstrated. However even in the instance of FP Submissions, it also allows for Rejection of Full Plans. The onus is on notifying of failure to comply not on approving or confirming compliance.
    Regards your above The B Regs as I said are only one component of the regulations in respect of building safety. The circumstance you describe rely on similar and different regimes and regulators.

    • I’ve made lots of Full Plans Submissions in my working life. To be honest they were ‘my norm’ and I do *get* the difference between Approval of proposals as opposed to building in conformity to those proposals..that relies on understanding by all stakeholders of the *why* of things and a good inspection regime.

  20. relying on ‘suing’ is a very poor approach from my perspective
    – it relys on failure, rather than preventing failure
    -it is so punitive, that only ‘cowboys’ enter the market because insurance costs so much.

    …………Wonder how many so called ‘experts’ carry PPI?

    • Oh it is not the sole option, ‘relying’ is putting it too strongly. But I don’t see any problem with liability for breach of regulations, both as a deterrent and a remedy.

      I’m not sure why you would call it punitive – it is not a punishment measure, simply ensuring that tortious liability follows unprofessional practice where it causes harm.

  21. Giles
    Second para of BBC article “The short answer is: the organisations responsible for maintaining standards in the building industry have been advising contractors not to take the regulations too literally” Is factually incorrect it says regulations but is meaning to refer to Approved Documents.
    Because there was meant to be compartmentalisation does not mean there was. There should have been 2 x 30min compartments and 3 x 30min fire doors FD30S between any room (excepting bathrooms) and the escape stairs.. Sprinklers would in all probability have extinguished the fire before it ignited the cladding but even if not as each flat above caught light more or less immediately the sprinklers in each would have activated and enabled safe evacuation. Smoke Venting in the Escape Stair Well would have ensured no deaths from smoke inhalation. Erc Etc. That is my point, I am not hand waving,. Enforcement

    • To the best of our present knowledge, the Grenfell refurb met building reg approval requirements. If so, the rest of the items you mention were not required (and there is no retrospective requirement for sprinklers either). That is a failure of regulations, not enforcement.

      (There may well have been failures of enforcement as well, of course, but that not on this point).

    • sprinklers should be mandatory. having read the recommendations of various coroners following Lakanal and Southampton fires at Bron Afon Community Housing where I was chief exec we reviewed all the fire safety advice and evidence and concluded the only way to keep our tenants safe was to retrospectively fit sprinklers to all our tower blocks

      watch these videos that highlight the impact of sprinklers. you only need to watch 8 mins of the video without sprinklers and 3 minutes of the video with sprinklers

      Open door- non sprinkler https://www.youtube.com/watch?v=5vlH6KocCPQ

      Open door- sprinkler https://www.youtube.com/watch?v=ceFIoQG_FZ0

  22. Giles
    But as we are all to aware a breach is no more likely to be easily demonstrable than negligence and would not compliance with the approved document regardless of the fitness for purpose of the approved document be a defence, which I think is not necessarily so in the case of negligence where it could I think be argued or demonstrated that in the light of evidence to the contrary or where the ADs are not specific or definitive, negligence has occurred

    • Oh a breach is certainly easier to establish than negligence. The question of what would amount to a breach is another question.

      Compliance with Approved Document would rule out negligence in construction, certainly. Whether the AD was negligent is another question.

  23. Giles
    Regards Grenfell, The only approval requirement under the B Act is Approval of Full Plans, the Plans appear to have been Rejected and not approved, but as I understand it was inspected by LABC and a Completion Certificate was issued by LABC on completion. . Additionally F&R are Statutory consultees in respect of FP Apps in respect relevant premises so ought have flagged up any Fire Safety deficiencies in the Pans with requirements to resolve them, including recommendations beyond the statutory. The RRAct FSO FRA should then have been revised to take account of the changed situation, referring to Plans and Specifications etc, and as necessary other or additional measures instigated to ensure safety.
    The regulations provide for all of that, the fact it did not or might not have occurred is not a failure of Regulations but a failure of Enforcement.

    • Specifics of Grenfell I know nothing about and would’ent want to speculate..
      I’d be surprised if the Application only referred to Part B. Parts E, K,L, M may also have applied. It is not unusual to get a 20 point response to a FP submission, respond to those 20 points and ‘push on’ with the work reasonably confident that all issues have been flagged up and addressed even if the paperwork will follow on. Some statutory consultees are ‘silent’ unless a problem eg Thames Water. I’m not comfortable with absolutes – failures are rarely down to a single failure.

    • Plans not rejected.

      According to RBKC

      ‘The proposed plans and other details submitted under FP/14/03563 were reviewed by RBKC Building Control. While a formal Decision Notice was not issued for the plans, the plans submitted were fully vetted by Building Control with comments provided; these comments were then followed up by the site inspection regime. Site inspections began on the 29/08/2014 with 16 inspections undertaken with final completion issued on the 07/07/2016 and a completion certificate issued. A Fire Risk Assessment was completed after the refurbishment works on Grenfell Tower were concluded in 2016.’

      So, let us assume, as appears to be the case, that it did all happen. Still looking at failure of the Regs…

  24. I’m taking it most contributors have a legal background rather than a background within construction?

    Risk is a very big issue in construction.( Who will carry the can if something goes wrong?) It tends to get ‘pushed around’ from designer to contractor to sub-contractor and maybe manufacturer – most attempts are pretty worthless when it comes down to it because if sued all will be ‘joined’ I suspect?
    I’m being a bit cynical here but often risk is left either with someone who really dos’ent understand it or who understands it very well and who will ‘disappear’ if they get sued. Eventually the only people who will lose are those with insurance pushing up the price of insurance. This cannot be described as anything but punitive when you are on the receiving end.

    It is not possible for building control fees could possibly compensate for building control taking on risk that they would be sued for a variety of reasons eg they were not aware of all the issues in an existing building when asked to approve plans for alterations to a discrete part, the works carried out were different to those approved ( eg client made a substitution), workmanship was defective etc., fraud, negligence..

    I appreciate people want someone to blame ( would’ent that be straightforward) but not realistic or even fair – much better put in place a system where ‘we get things right because everyone understands what they should doing and have the tools ( money, time, training) to do so.

    • This is a legal site… The clue is in the name.

      I’m not sure that ‘we have done our best to structure things to avoid liability, so you shouldn’t impose a liability because we’ll just take further steps to avoid it’ is a good look, to be honest.

      Obviously there would be various defences – the 1984 Act actually provides for that. It is not a strict liability offence.

      Obviously a system geared towards getting things right would be a good idea. But then, these are not either/ors

  25. AM
    There has I think been discussion on amalgamation of BC and H&S inspections during the Construction Phase. The current H&S regime is perverse, find no fault get no payment for inspection.. B Inspectors are well placed to carry out CDM Regs Site Safety Inspections and that could enable more frequent checks. I think there is something in it.
    I think you are describing a culture rather than regulation or enforcement. It is easy to change regs changing cultures is much more complicated.

  26. Lat comment from me.. I guess I think the best approach is to make it clear how to do the right thing in the most straightforward way (Those involved in construction with any competency are very practical and want to do a good job and move onto the next project ) but for that to happen it has to be clear what we should all be doing ( that includes really clear regulations and examples showing how to comply) and everybody has to their bit ( that includes the LA) rather than picking over who should be sued when things go wrong….

  27. Giles
    Having checked the RBK&C Building Control Record it says, Application Reference Number FP/14/03563 Valid Date Thu 04 Sep 2014 Decision Date Not Available Status Completed Not approved . Which under the B Act/Regs means that he Plans were Rejected or else Approved by default of their not being rejected.
    Still no more than (understatement) a failure of application or enforcement of the Regs To demonstrate failure of the requires specifics of inadequacy of the Regs.

    • I’ve given you RBKC’s explanation.

      Where lies the failure to apply or enforce? And in the other 80 towers (so far) that have failed the current cladding tests?

      You keep insisting this is the case, but have not pointed to any failure. Nor to any regulation element that would mean the use of that cladding material on that tower was in fact a breach that should have been enforced upon?

      Keith, I have to say I don’t think you are going to like what is coming. Your cosy insistence that all is perfectly fine (except for enforcement) is going to come under very close scrutiny, from the media and politically. I must say that I have found your answers to be unsatisfactory and frankly, unconvincing. Particularly as you have conceded the main thrust of the Newsnight piece about the opaque mechanisms of ‘desktop’ assessments and unchecked, unverified ‘expert’ views by which the A2 requirements have been watered down by BCA and NHBC.

  28. Giles
    The information I stated is the public record/register not a press release. I suspect RBKC are maybe being economical with the truth. If they do not reject Full Plans they are approved by default.
    The failure to apply and enforce is that FRAs were not revised in light of the known risk posed by cladding. For Instance how were Fire Risk Assessors and others concerned with fire safety unaware of the Lacrosse Apartments Fire in Melbourne’s Docklands Australia on November 25, 2014, VBAs investigations and audit/report into/of that was concise and lessons should have been learnt here. BCA is of course technically different to the B Regs but serves the same purpose. A minimum response in the UK ought have been FRAs revised and additional measures implemented as necessary to safeguard residents. Incidentally Lacrosse was sprinkled except for open balconies which is where the fire started. There was no loss of life.
    If any by chance were unaware of Lacrosse how could the numerous in Dubai or China have additionally been missed, many were widely publicised in the MSN but more pertinently in the professional press and associated media.
    Newsnight tonight an entirely different story to last night. Evan Davis interviewing the HA Representative,
    Like or not like is irrelevant Cover up, misinformation, clouding of issues and moving the test goal posts to build a plausible case against “The Regulations” rather than the regulators will serve no one other than the culprits. For clarity regards which you say I have conceded, I remind you that I said “compliance with the regulations is required to be demonstrated” that is demonstrated to the regulators.

  29. Pingback: Grenfell Tower – horror and grief becomes the source of political point scoring | Oxford Inciter

  30. This: “it has never been clearer that the market cannot and will not provide adequate affordable housing (affordable to anyone on average income or lower), or the housing needed for families.” should be tested against the role played by the market where housing is less unaffordable, and how it interacts with the legal systems and (local) government. Comparators which immediately occur to me are Germany and Japan.

  31. Excellent piece.

    I too had hoped that the desperate plight of the those displaced by the Grenfell Tower fire would open up to the public just how badly homeless people get treated….and maybe it will, but I have my doubts.

    I get that this is a site primarily addressed to the law (and what an incredibly valuable resource it is), but fundamentally we need to ensure that secure affordable homes are available to those living in the UK. It is hard not to conclude that the reason that this modest ambition is not actually fulfilled is a direct result of deliberate policy.

    We do have the power to do something about this if we want to.

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