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.

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….

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.

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.