Supporting residents who have been affected by cladding and other building safety issues

Fire safety of cladding system - supporting residents front cover
This Local Government Association (LGA) briefing is aimed at ward councillors supporting residents in their local areas. It explains the background to the cladding scandal, highlights issues facing residents, and sets out ways in which councillors might support them.

Introduction

Update: The Building Safety Fund has reopened for new applications as of 28 July 2022. Buildings over 18 metres with cladding issues are eligible to apply for the fund.

Since the Grenfell Tower disaster in June 2017, a number of problems have emerged relating to the fire safety of residential buildings, in particular (but not only) in relation to cladding systems (often called External Wall Systems, EWS). The Government, councils, and building owners in the social and private sectors have been engaged in work to remediate these issues.

This has had a significant financial and emotional impact on residents of affected buildings, particularly where these residents are long-term leaseholders who under the law as it stood in 2017 were generally thought to be legally liable for remediation costs ( see the details of the Government’s support for leaseholders below).

This Local Government Association (LGA) briefing is aimed at ward councillors supporting residents in their local areas. It explains the background to the cladding scandal, highlights issues facing residents, and sets out ways in which councillors might support them.

What is the building safety programme?

The Government’s Building Safety Programme (BSP) is led by the Department for Levelling Up, Housing and Communities (DLUHC), formerly the Ministry for Housing, Communities and Local Government (MHCLG). It was established following the Grenfell Tower disaster in July 2017 and aims to ‘make sure that residents of high-rise buildings are safe – and feel safe – now and in the future’.

The BSP includes several work programmes, including a new regulatory framework for building safety to introduce reform of the system. The Building Safety Act received Royal Assent in April 2022 and the Government is setting up a new Building Safety Regulator.

In the shorter term, the programme also includes a large-scale programme to identify and remediate buildings with unsafe cladding – this is the work most relevant to the current ‘cladding scandal’.

Remediation works and associated costs

Which buildings are within the scope of the cladding remediation programme?

The scope of the cladding remediation programme has varied over the years since the Grenfell Tower Fire (see Annex 2)

The Government's current position on cladding remediation is that the industry should be seeking to remediate any fire safety issues in the buildings above 11 metres.

The Government has issued various pieces of advice on cladding since the Grenfell Tower fire. It currently advises that PAS9980:2022 should be used as the basis for conducting fire risk assessments of external wall systems and PAS 9980 supersedes previous documents.

On 1 June 2022, the Government published the consultation outcome on the review of the ban on the use of combustible materials in and on the external walls of buildings. Updated guidance to fire safety and building regulations was also published. All new residential buildings over 11m will now have to provide Secure Information Boxes, with a requirement for new residential developments over 18m to also incorporate an Evacuation Alert System. There will be a widespread ban on the use of MCM PE cladding panels for all new buildings. The ban on the use of combustible materials in and on external walls will now also cover new hotels, hostels and boarding houses that are 18m and over. New statutory guidance will restrict the combustibility of materials used for the external walls of residential buildings, between 11-18m in height.

Why is cladding remediation needed?

Remediation can be required for a number of reasons. Cladding systems can consist of rainscreen panels on a metal or wooden frame, behind which are a cavity and then insulation. This system may be overlaid on an existing building's exterior or be an integral part of the wall of a more recent block.

In a fire, the cavity can act as a chimney and so barriers are installed (usually of a reactive material that leaves a gap for ventilation but closes in the event of a fire) at various points in the cladding system.

Some external wall systems consist of insulation with a render applied directly onto it. Alternatively, there are timber systems. All can be dangerous.

Remediation is necessitated where the cladding system is dangerous. This may involve removing the cladding itself, or the insulation, or both, or it may involve remediating defects in the cavity barriers (missing or wrongly installed).

In the years since Grenfell, other problems have emerged, such as inadequate fire stopping in buildings with timber frames which also require remediation. These problems are usually breaches of compartmentation, such as the process by which the design and construction of a block prevents fire in one flat from spreading out of that flat before the fire service can arrive to deal with it.

How many buildings are affected?

According to the Government’s data release for June 2022, 486 buildings over 18 metres have been identified as having ACM cladding. Of these, 160 are social sector residential buildings, 231 are private sector residential buildings, and 56 are student accommodation (these releases are issued monthly, usually in the last week of the month after the one they relate to. Googling ‘building safety programme data release’ and the relevant month is the easiest way to find them).

More broadly, the Government has identified 12,500 residential buildings over 18 metres. Of these, it has assumed that 8000 will require an assessment of their external wall systems to identify whether the cladding on them is dangerous. 

It also estimates that there are a further 78,000 residential buildings between 11 metres and 18 metres. Of these, it estimated in March 2021 that around 50,000 had cladding in place which may require an assessment.

In addition, 2,824 private buildings and 222 social sector buildings applied for the Building Safety Fund - government funding to remediate unsafe non-ACM cladding.

There is no figure for non-cladding issues but evidence so far suggests that many buildings with cladding issues also have non-cladding issues and for every five blocks where cladding is the main issue, one block has non-cladding issues.

Why are there cladding defects on so many buildings?

The LGA’s position is that the widespread existence of cladding defects is a result of regulatory and industry failure.

Approved Document B contains the government’s official explanation of how to meet the fire safety requirements set out in the statutory building regulations. Since the Grenfell fire, there has been an ongoing debate as to whether this document required cladding to be of ‘limited combustibility’, or whether a lower standard could be applied.

There is also a debate about whether the cladding fire safety testing process set out in Approved Document B is robust enough – in many cases, the dangerous cladding on buildings was certified as being compliant through ‘desktop studies’, which take data from materials previously tested to make a judgment about whether a new combination of materials would pass if it were tested.

Potential issues with the regulations came to light following the 1999 fire at Garnock Court in Scotland, and the 2009 fire at Lakanal House, a council-owned tower block in London, both of which involved flammable cladding. However, changes to the building regulations had not yet been made by the time of the Grenfell fire in 2017.

As a result, the use of dangerous cladding became widespread amongst developers seeking to reduce the costs of housing delivery or refurbishment.

The current phase of the Grenfell Tower Inquiry is exploring and revealing the shortcomings of the regulatory system, confusion within the industry, and the deliberate acts to exploit that confusion that may have contributed to the current crisis. 

In its closing submission to the Inquiry the Department of Levelling Up, Housing and Communities admitted that it had failed to heed warnings that the regulatory system was failing before Grenfell

What remediation has been carried out to date?

The clearest data is available in relation to buildings with ACM cladding.

The Government’s June 2022 data release showed that, of the 486 buildings with this cladding, remediation work had started or completed on 454, or 94 per cent. To date, 432 of these buildings have been made safe, with their cladding having been removed, and – in some cases – replaced. The Government releases updated data each month under the title “Building Safety Programme: monthly data release - [month]”

Progress has been swiftest in the social sector – of the 160 buildings with ACM cladding, remediation is fully complete on 107, and cladding has been removed on a further 52.

In the private sector, 136 of the 226 buildings have fully completed remediation. A further 30 await final sign-off of works, and a further 23 have had unsafe cladding removed.

However, a total of 43 buildings still have unsafe ACM systems.

Progress with remediation has been slower than anticipated, primarily due to difficulties in working with private sector building owners. The Government’s initial target for remediating high-rise buildings with ACM cladding was June 2020.

DLUHC does not currently have a target for the remediation of buildings with unsafe non-ACM cladding. The Housing, Communities and Local Government Committee recently recommended that this work be carried out by June 2022.

Which costs have arisen?

Enormous costs have arisen in relation to cladding remediation.

Firstly, the costs of cladding remediation itself – the LGA estimates these at around £2 million per block. We are aware of costs as high as £100,000 per flat.

Secondly, the cost of interim fire safety measures, required by the fire and rescue service in buildings with unsafe cladding pending remediation. These usually involve a switch from asking residents to stay in their flats if there is a fire that does not directly affect them (‘stay put’) to telling them to evacuate in the event of a fire anywhere in the building (‘simultaneous evacuation’).

In 2021, MHCLG estimated that a common interim measure, waking watches, (overnight patrols to evacuate residents in case of fire) can cost between £12,000 and £45,000 per week per building, depending on the number of individuals and hours covered. These estimates show that it is almost always cheaper to install an alarm system than to employ a waking watch. The government has since opened the Waking Watch fund to help building owners meet the costs of alarm systems.

Thirdly, cladding remediation works might uncover further fire safety issues in a building: the National Audit Office has found that cladding inspection has revealed significant flaws in many cases. This has created a second set of remediation costs.

As detailed below, legal liability for these costs is complex, and often falls to individual flat leaseholders. The Government has made funding available to try and reduce the cost of cladding remediation specifically.

Who is liable for remediation costs?

Councils and housing associations can access Government funding to remediate residential buildings over 18m with ACM cladding and to cover costs which would be passed on to leaseholders in relation to the remediation of non-ACM clad-buildings. 

The provision for privately owned buildings is much broader. Legal liability for remediation costs is extremely complex. The Building Safety Act seeks to simplify it and to protect leaseholders as set out below. Qualifying leaseholders do not have to pay for cladding defects. These will either be met by the Government or the developer.

Under the Building Safety Act, building owners and landlords are responsible for making buildings safe and the first port of call to fund any necessary repairs. It is illegal for costs of cladding repairs and those beyond the leaseholder caps for non-cladding defects to be passed to qualifying leaseholders. A new online Leaseholder Protections Checker will help leaseholders understand if they qualify for financial protections under the Building Safety Act. Guidance for leaseholders has been published. More information can be found below.

Buildings over 18m with cladding issues are eligible to apply for the Building Safety Fund. The Fund has reopened for new applications as of 28 July 2022. Residents whose freeholders have yet to apply can write to the freeholder asking why not and reminding them to do so. If their freeholder has applied, then resident should seek information on the status of that application.

The position in relation to non-cladding fire safety remediation costs is more complex. In the first instance the Government hopes developers will pay. If not, it expects freeholders to pay if they have links to the developer or have sufficient resources. If not then the costs will fall to the leaseholder (as long as the Freeholder has pursued warrantee and other legal claims against those responsible) and leaseholder costs will be capped.

The leaseholder protection measures in the Building Safety Act (sections 116 to 125 and Schedule 8) commenced on 28 June 2022. DLUHC tells us it is seeking to spread the cost of decades of malpractice equitably across the system and ensure above all that the most vulnerable leaseholders are protected. It has provided a summary of their effect:

Measures will require that historical safety defects in any building above 11 metres or five storeys owned by the developer who built or refurbished it, or by a landlord associated with that developer, must be fixed by them.

Building owners and non-resident landlords with a net worth of more than £2 million per in-scope building must not pass on any costs relating to historical safety defects to qualifying leaseholders.  

Qualifying leaseholders are those who reside in their own property or have no more than three UK properties in total. The protections will apply to qualifying leaseholders if their property is in a building over 11 metres (or five storeys).

The protections transfer to subsequent buyers when the property is sold.

Qualifying leaseholders will be protected from all cladding remediation costs.  

Qualifying leaseholders whose property is valued at less than £325,000 in Greater London and £175,000 elsewhere in England will also be protected from all costs associated with non-cladding defects and interim measures.

Any contribution that will be required from qualifying leaseholders for non-cladding defects and interim measures (including waking watch costs) will be firmly capped and spread over ten (increased from five) years. This will ensure that the majority of leaseholders will have to pay no more than £10,000 (£15,000 in Greater London) over ten years.

Costs already paid out in the last five years – including interim costs such as waking watch – will count towards the cap, but leaseholders will not be reimbursed for costs already paid. 

The Secretary of State for Levelling Up, Housing and Communities has published a letter to building owners and managing agents setting out their responsibilities under the Building Safety Act. Leaseholder protections under the Act come into force on 28 June 2022, at which point it will become an offence to attempt to pass on costs for relevant work to qualifying leaseholders.

The LGA had previously issued a position statement on leaseholder costs which called on Government to meet the initial cost of remediation work, commit to establishing a residential building safety equivalent to the Flood Re insurance scheme by the end of 2021 and pursue legal redress against those responsible for the building safety crisis and/or commit to a levy on the relevant parts of the industry in the next budget. The LGA remains concerned that:

  • That councils may face costs as a result of owning the freehold of land on which private developers have built
  • That blocks owned by freeholders or where freeholders have insufficient resources to find remediation may end up with no funds for remediation

As part of its efforts to apply pressure on building owners, the Government is supporting local authorities to take enforcement action against the owners of unsafe buildings.

In November 2018, the Government amended the operating guidance on the Housing Health and Safety Rating System, to clarify that local authorities have powers to enforce against the owners of buildings with unsafe cladding under the Housing Act 2004. It has also provided funding for a Joint Inspection Team (JIT), hosted by the LGA, to help local authorities with taking enforcement action on unsafe buildings. While the JIT’s remit was initially limited to buildings with ACM cladding, it has seen been expanded to include non-ACM cladding, and also provides capacity-building training to local authorities.

To date, enforcement action has been, or is being taken, against at least 65 buildings with ACM cladding. In addition, the Fire Safety Act 2021 has made it clear that fire and rescue services can take enforcement action in relation to cladding systems – under previous legislation, this had been ambiguous.

However, enforcement against the ‘building owner’ can be highly complex. Under the Housing Act, the building owners is defined as the freeholder, intermediate long leaseholders, and any leaseholders with leases of terms than more than three years remaining.

If the council takes enforcement action under the Housing Act, they will typically serve an Improvement Notice, which requires works to be carried out within a specified timescale. If the person served – the building owner – has not carried out the required remedial work, the council has the power to carry out work itself at the expense of the person served.

In practice, cost recovery is difficult:

  • the freeholder might be difficult to identify
  • the freeholder or intermediate leaseholder might not have assets, and might seek to recover their own costs through the leaseholder service charge
  • the freehold might be jointly owned by flat leaseholders
  • the legal responsibility for maintaining and repairing the internal and external common parts of a building – including the cladding – could lie with third-party or resident-owed management companies and in these cases, the freeholder will have no power to undertake works, and no entitlement to recover costs through the service charge.

In previous tribunal cases, courts have found that the improvement notice should be directed towards the resident-owned management company, which had the powers to carry out remediation works.

One final option is for local authorities to make use of compulsory purchase order powers to take direct ownership of the freeholds of buildings with fire safety defects. However, as of June 2020, no local authority had considered making use of these powers, as the process for obtaining ownership can take over two years.

In summary, enforcement can help to speed up remediation – either by encouraging building owners to carry out works, or by allowing councils to take on responsibility for remediation. However, it will not necessarily prevent costs from being passed onto flat leaseholders.

What has been the impact on leaseholders?

Leaseholders have suffered an extreme emotional and financial impact as a result of cladding issues.

As detailed above, they are often legally liable for the costs of cladding remediation, as well as the cost of interim measures.

In addition, many leaseholders seeking to sell their flats have found that mortgage lenders impost a £0 valuation, leaving them unable to sell. More information on this is in the section on ‘issues with selling flats’.

A recent report by the UK Collaborative Centre for Housing Evidence has found a range of negative impacts on leaseholders’ mental wellbeing, including anxiety, depression, and suicidal feelings. These feelings have been driven by the huge financial impact on leaseholders, as well as fears of dangerous fires breaking out in their homes.

These findings build on a 2020 survey by campaign group UK Cladding Action Group, which found that nine out of 10 residents were reporting worsening mental health.

Leaseholders have been increasingly vocal about these pressures, and in many cases have mounted highly public campaigns through groups such as the UK Cladding Action Group.

What has been the impact on other residents of affected buildings?

Often, affected buildings are occupied by both leaseholders and tenants. Whilst the main legal liabilities fall to leaseholders, tenants have also suffered significantly from fire safety issues.

In many cases, tenants could be experiencing poor mental health, caused by the stress of living in an unsafe building. In some cases, the discovery of fire safety issues has led to buildings being evacuated, with residents decanted to emergency accommodation. This disruption has a significant human cost.

In addition, where buildings are owned by the council, councils have experienced significant financial pressures in meeting the costs of remediation. These costs will typically be met through the Housing Revenue Account, which is subject to numerous other pressures, including planned major works and repairs programmes.

As a result, councils may be making difficult decisions about which capital works to prioritise, leading to delays in repairs and improvements promised to residents.

What is the Government position on leaseholder liability?

In its most recent major announcement on 10 January 2022, the government has reaffirmed that it expects developers and building owners to pay for the costs of remediating all further building safety issues, which it estimates to be £4 billion.

 It has issued the building industry with a deadline of two months to agree to a financial contributions scheme to fund remediation, and has suggested that if this fails, it will seek to impose a solution in law.

This builds on the government’s previous position that developers and building owners have a moral responsibility to remediate issues. Since the Grenfell Tower fire, successive ministers have assured that leaseholders would and should not have to pay for remediation works, and that it was the responsibility of building owners to make buildings safe.

For example, following a tribunal ruling in 2018, which found that leaseholders in two Manchester blocks were legally liable for remediation costs, the Government stated that there was a ‘moral imperative’ for private sector landlords to pay for the removal of cladding.

The then Secretary of State for Housing, Communities and Local Government, Robert Jenrick, stated in July 2020 that “the Government are clear that it is unacceptable for leaseholders to have to worry about the cost of fixing historic fire safety defects in their buildings that they did not cause”.

However, this position has not always been clear. For example, in its pre-legislative scrutiny of the Building Safety Bill in November 2020, the Housing, Communities and Local Government Committee highlighted that the Government’s commitment had shifted to protecting leaseholders from ‘unaffordable’ costs only. This change in emphasis is reflected in the provisions set out in the Bill, as outlined below.

How will leaseholder liability change in the future?

On 10 January 2022, the Secretary of State indicated that leaseholders would be protected from the costs of cladding remediation in the future. He announced in parliament that “no leaseholder living in a building above 11 metres will ever face any costs for fixing dangerous cladding and, working with Members of both Houses, we will pursue statutory protection for leaseholders and nothing will be off the table. As part of that, we will introduce immediate amendments to the Building Safety Bill to extend the right of leaseholders to challenge those who cause defects in premises for up to 30 years retrospectively.”

This position has not always been clear. The draft Building Safety Bill, published on 20 July 2020, had established a building safety charge payable by long leaseholders, to contribute towards the costs of managing building safety which will arise from the new regulatory framework. The draft Bill proposed that this will be separate from the leaseholder service charge.

However, this draft was controversial, and was criticised for permitting leaseholders to be charged for the cost of remediating historical safety defects, which may have pre-dated their occupation, and which may have been in line with regulations at the time that work was completed.

An updated version of the Bill was introduced on 5 July 2021. This removed the obligations on leaseholders to meet historical costs. Instead, it introduced a variable service charge on long-leaseholders in high-rise buildings, which would enable building owners to pass on the ongoing costs of the future building safety regime.

However, landlords were still permitted to recover the historic costs of remediation works from leaseholders, providing they had taken reasonable steps to recover costs through avenues such as insurance or indemnities first.

Finally, amendments to the Building Safety Bill published on 14 February 2022, placed a legal requirement on developers of buildings over 11 metres to pay in full to fix historic building safety issues in their property. For leaseholders in these buildings, this will remove any legal liability for historic costs.

However, where building owners do not have the resources to pay, some leaseholders may still be required to pay up to £10,000 for homes outside London, and £15,000 for homes inside London.

What funding has been made available for remediation?

Following a significant amount of public pressure, including lobbying from the LGA, the Government has made a total of £5.2 billion available towards the removal and replacement of unsafe cladding on high-rise residential buildings.

In addition, it has announced its intention to require the developers of unsafe buildings to contribute towards a £4 billion fund to meet the costs of all necessary remediation in buildings over 11 metres.

This funding is intended to speed up remediation by avoiding lengthy legal battles over liability, and to protect leaseholders from the cost of remediating buildings.

The first tranche of funding for remediation was announced in May 2018 − £400 million to replace ACM cladding on buildings over 18 metres in the social housing sector.

The Government followed this in May 2019 with £200 million of funding for remediation of ACM cladding on high-rise buildings in the private sector.

The guidance for the fund was published in July 2019 and as of 31 October 2020, 94 building owners had submitted an application for funding, with 43 applications approved. Of the buildings outside the scope of the funding, the freeholders of 87 buildings have committed to covering costs, and a further 21 freeholders have made successful warranty claims. The Government publishes up to date figures on applications to the fund on its website.

In the March 2020 budget, the Government also announced the Building Safety Fund, a £1 billion remediation fund, to support the remediation of unsafe non-ACM cladding in buildings over 18 metres.

On 17 December 2020, the Government announced a £30 million Waking Watch Relief Fund, to open in January and pay for the installation of fire alarm systems in high-rise buildings with cladding. This was intended to remove or reduce the need to costly interim safety measures such as “waking watch”. This fund was extended in September 2021 by a further £5 million to meet demand, and again by £27 million in January 2022. The latest instalment is intended to ensure that fire alarms are installed in all high-risk buildings, to replace waking watch measures.

On 10 February 2021, the government announced further grant funding of £3.5 billion to fully fund the removal of unsafe cladding for leaseholders in all residential buildings 18 metres and over in England. The government intends that the costs of this funding will be recovered from developers through new provisions in the Building Safety Bill, including a levy when developers seek permission to develop certain high-risk buildings in England, and a tax for residential property development.

Finally, in January 2022, the government announced a new expectation that the building industry would meet the remaining costs of remediation on buildings 11 metres and over – estimated to be £4 billion. 

Is remediation funding adequate?

 

The guidance on the Building Safety Act has this to say about protecting leaseholders:

  • Through new leaseholder protection measures, the Act eradicates the idea that leaseholders should be the first port of call to pay for historical safety defects.
  • Building owners will not legally be able to charge qualifying leaseholders (defined under the Act but including those living in their own homes and with no more than three UK properties in total) for any costs in circumstances where a building (in the majority of cases meaning those over five storeys or eleven metres tall) requires cladding to be removed or remediated.
  • Qualifying leaseholders will also have robust protections from the costs associated with non-cladding defects, including interim measures like waking watches.

As of February 2021, the total funding available aligned with the government’s estimates for meeting the full cost of remediating cladding issues on buildings over 18 metres. The latest tranche of funding announced in January 2022 is intended to meet all remaining costs of remediation on unsafe buildings over 11 metres. This funding is intended to cover all remaining remediation works, rather than just cladding remediation. It will also be available to former occupiers who move out and sublet their property.

However, social landlords can only obtain remediation funding in relation to ACM cladding on buildings over 18m, to avoids costs that would otherwise be passed on to leaseholders or to avoid a failure of the HRA. AS a result remediation costs that the Government would meet if they fell on homeowners may end up falling on social tenants through increases in rent.

In addition it is unclear how leaseholders who own the freehold of tehri blocks will be protected and landlords who own more than two properties (including their own home) are not protected.

Non-cladding remediation costs can be passed on top leaseholders in some circumstances – the details of this are still being worked out but we understand landlords will need to pursue warrantee claims and other legal avenues before charging leaseholders and only up to a capped limit including interim costs.

Those leaseholders who have already paid towards the costs of works will not be compensated.

The Levelling Up, Housing and Communities Select Committee inquiry into Building Safety: Remediation and Funding (March 2022) found that:  

 

‘too many leaseholders will fall through the cracks of the Government’s piecemeal measures. Leaseholders are no more to blame for non-cladding defects than they are for faulty cladding on homes they bought in good faith. Buy-to-let landlords are no more to blame than other leaseholders for historic building safety defects, and landing them with potentially unaffordable bills will only slow down or prevent works to make buildings safe.'

The Government has responded to the report.

Issues with selling flats

What is the External Wall Systems 1 survey?

As detailed in the previous section, the Government has issued a series of Advice Notes to building owners, setting out their responsibilities for ensuring that buildings are safe.

Advice Note 14, published in December 2018, required building owners to confirm that there were no combustible materials on the external walls of their properties, or to carry out a large-scale test showing that the materials used complied with building regulations.

Following this Advice Note, increasing numbers of leaseholders seeking to sell or remortgage their flats began to receive £0 valuations from mortgage lenders, pending evidence that the external wall systems on buildings met the required criteria. An increasing number of mortgage applications were rejected, due to lenders’ concerns that high-rise blocks represented poor security, and that occupiers would be liable for remediation costs.

Issues increased after the Government published its consolidated advice note in January 2020, which required all building owners to investigate their external wall systems, irrespective of building height.

The building industry, led by the Royal Institution of Chartered Surveyors (RICS), responded by developing a new, standardised process for conducting investigations into External Wall Systems – the EWS1 survey. This was agreed in December 2019, and aims to provide a consistent way for lenders to assess whether flats meet building safety criteria.

The process involves a fire safety assessment by a suitably qualified professional, which must be commissioned by the building owner. Following the survey, building owners are given an EWS1 certificate, which can be provided by flat owners to prospective lenders. This certificate is valid for five years.

The survey is not a statutory requirement, but a commercial requirement by lenders as a condition of mortgages.

The Greater London Authority has issued advice on best practice in relation to EWS1.

What issues are arising around the EWS1 process?

The implementation of the EWS1 process has been subject to several issues.

  1. Scope

The scope of the EWS1 process was initially unclear. The RICS guidance stated that the process only applies to residential buildings above 18 metres.

However – and particularly since the publication of the Government’s consolidated Advice Note in January 2020 – leaseholders have reported lenders asking for EWS1 forms on smaller blocks.

  1. A shortage of surveyors

The RICS guidance requires EWS1 surveys to be carried out by suitably qualified professionals. There is a shortage of such professionals, with only 291 assessors currently qualified. As detailed in the previous section, it is estimated that there are 90,000 residential buildings over 11 metres in England.

In addition, there are reports that these surveyors find it difficult to obtain professional indemnity insurance.

This is creating significant delays in obtaining EWS1 surveys.

How has the Government responded to issues with EWS1?

The government has taken steps to limit EWS1 surveys to buildings over 18 metres. In July 2021, it published advice from the independent expert panel on building safety, which stated that EWS1 assessments should not be needed for buildings less than 18 metres. The government stated that it would work to explore ways to develop a more risk-proportionate fire assessment process.

In January 2022, the government followed this by withdrawing the consolidated advice note published in January 2020, citing that it had been “wrongly interpreted”. At the same time, the British Standards Industry published new guidance on assessing risk from cladding systems in a proportionate way.

These measures are intended to limit the number of property purchases where an EWS1 is required by a lender, and the government has encouraged leaseholders to challenge building owners to justify their decision to carry out an EWS1 assessment on a building.

Prior to these steps, the government had stated that the EWS1 survey was a lender requirement, and that they were working with RICS and lenders to address some of the issues. This includes work to develop an online data-sharing portal to facilitate the sharing of information from EWS1 assessments.

On 21 November 2020, the Government announced that it had reached an agreement with RICS, and lender representatives UK Finance and the Building Societies Association, that owners of flats in buildings without cladding would no longer need an EWS1 form to sell or re-mortgage their property.

In an accompanying statistical analysis, the Government estimated that, of the 90,000 buildings greater than 11 metres in height, one third did not have external cladding, and therefore were assumed not to need an EWS1 process. This equates to 431,000 leasehold dwellings, leaving 839,000 flats which will require the certificates. The Government also announced funding to train 2000 more qualified EWS1 assessors.

At the same time, the Government issued a supplementary note to the January 2020 consolidated advice note, stating that professional judgement should be exercised in relation to a building’s safety, and that not all combustible materials will need to be removed from buildings.

Whilst these developments had the potential to limit the scope of the EWS1 process and speed up assessments, they were criticised by UK Finance and the Building Societies Association, who cited concerns that intrusive surveys would be required in order to accurately judge whether a building has cladding. As a result, there were concerns that EWS1 certificates may still be required by lenders for a wider range of buildings.

How can leaseholders obtain an EWS1 survey?

EWS1 surveys involve intrusive inspection of external wall systems. As these form part of the common parts of a building, only freeholders can commission EWS1 survey reports. This can create difficulties, for example where the freeholder is difficult to identify or refuses to conduct the survey.

The Leasehold Knowledge Partnership, which campaigns on behalf of leaseholders, has reported instances of leaseholders paying companies claiming to provide EWS1 surveys on their behalf. Where councillors are aware of these companies, they should be reported to Action Fraud.

Who pays for an EWS1 survey?

EWS1 surveys are not a statutory requirement, but a lender requirement where individual leaseholders wish to sell or remortgage their flats.

This has created difficulties in determining who should bear the costs, which can be as high as £10,000-£50,000 per block.

There are several options available:

  • Leaseholders may be liable for the costs of the survey through their service charge, as the survey is a means for freeholders to demonstrate that their buildings are compliant with government guidance. However, councils with housing stock should consider whether the costs of the survey should be passed onto all leaseholders in instances where only a few leaseholders wish to sell their flats.
  • Charge relevant leaseholders only for the cost of the survey – this may be very difficult for those individual leaseholders.
  • The freeholder could pay for the EWS1 survey and release it to leaseholders on an ad hoc basis, recharging those leaseholders.
  • The freeholder could bear the costs of the EWS1 survey – where the freeholder is a council, however, charging the cost to the Housing Revenue Account could result in a breach of their fiduciary duty.
  • The freeholder could refuse to provide the EWS1 survey.

Will getting an EWS1 survey enable leaseholders to sell their flats?

Not necessarily. There are five possible results from an EWS assessment – A1, A2, A3, B1 and B2.

B1 and B2 ratings apply where combustible materials are clearly present. A B1 rating indicates that no further remediation work is needed. A B2 finding, however, indicates that remedial work will be needed to improve fire safety.

In an August 2020 survey by the Leasehold Knowledge Partnership, 89 per cent of leaseholders surveyed were told that remedial works were required before their mortgage application could progress. 86 per cent of sites had B2 ratings.

As detailed in previous sections, carrying out these works can be extremely costly, with legal liability often falling on flat leaseholders.

What issues are leaseholders experiencing in relation to insurance?

In addition to difficulties in obtaining mortgages, the owners of some blocks have also experienced difficulties in securing buildings insurance. Where insurance is in place, the premiums might have increased significantly.

The government has said that they are engaging with the insurance industry, and on 10 January 2022, the Secretary of State announced that he was asking colleagues to “work with insurers on new industry-led approaches that bring down the premiums facing leaseholders.”

How can leaseholders get more information about their buildings?

On 20 January 2022, the government announced a new leaseholder and resident service. This includes a new portal to allow residents of tower blocks to receive updates on their building’s applications to the Building Safety Fund.

It also announced new guidance on grant funding, which is intended to make it easier for those in shared ownership homes to sublet their properties, and a glossary of terms related to the building safety fund.

Finally, the government has published data on the number of EWS1 forms that have been required on mortgage valuations for flats.

The role of the council in building safety

Councils play a vital role in making sure that buildings in their local areas are safe, and that residents feel safe. The Grenfell Tower disaster – and the many issues which have emerged since the fire – have highlighted these roles. It is now more important than ever that councils play an active part in ensuring that their local places are safe and enjoyable places to live.

Many councils are building owners and landlords – the council may own housing stock, or may lease stock from the private sector, before sub-leasing to individual tenants.

In these cases, councils are subject to duties to keep building safe. The Regulatory Reform (Fire Safety) Order 2005 imposes duties on the ‘responsible person’ to implement appropriate fire safety measures to minimise the risk to life from a fire. This includes a duty to carry out regular fire risk assessments on buildings, and to keep these assessments up to date. The Order is enforced by Fire and Rescue Services.

As registered providers of social housing, council landlords are also regulated by the Regulator for Social Housing in relation to the Consumer Standards, which include duties relating to health and safety.

Local authorities also play a vital role as building safety regulators. For example, where fire and rescue services share a boundary with an upper tier council, the council is the fire and rescue service. This means it has enforcement powers under the Fire Safety Order.

Another important piece of legislation is the Housing Act 2004, which gives local housing authorities powers to enforce against poor housing conditions. It includes a system for assessing housing conditions - the Housing Health and Safety Rating System (HHSRS) - which the local housing authority must use when enforcing standards. Environment Health Officers are the agents who enforce this Act.

In November 2018, the Government amended the operating guidance on the HHSRS to clarify that local authorities have powers to enforce against the owners of buildings with unsafe cladding under the Housing Act.

The Building Safety Act

This Act, introduced following the Grenfell Tower disaster, will introduce sweeping changes to the building safety regulations. Its aim is to ‘put in place new and enhanced regulatory regimes for building safety and construction products, and ensure residents have a stronger voice in the system.’ It received Royal Assent in April 2022 and should start to be implemented by 2023.

The new regulations will apply to new or substantially refurbished residential buildings over 18 metres in height, with a gradual roll-out to other residential buildings.

Responsibility for the safety of these buildings will lie with the new role of duty-holder during the construction stage, and accountable person during occupation. The Accountable Person will also have to listen to and respond to residents’ concerns, ensuring that they have access to safety information about their building, and to a robust complaints process.

The Accountable Person will typically be the building owners – they will be legally liable for the safety of their buildings. Where the building owner is a company, any director, manager or other similar officer will be liable alongside the company itself.

In the council context, this means that many elected members, council managers, and officers working for arms-length management organisations, will need to know how to handle the council’s responsibilities and understand their liabilities.

The Act will also introduce a new Building Safety Regulator, which will be responsible for overseeing the safety of all buildings, directly regulating the safety of higher-risk buildings, and improving the competence of all those involved in the construction and management of higher-risk buildings. This regulator will sit within the Health and Safety Executive, but the regulator will be able to request that local authorities support its work – for example, by providing staff or sharing information – and it will have the power to direct them to do so.

Local authority planners, building control, environmental health officers, health and safety professionals, and fire authorities, will all be required to contribute to the Regulator’s work.

For the first time, local authorities, including individual senior managers, will be criminally responsible and legally liable for the safety of higher-risk buildings. Failures or poor performance by local authority regulators, such as building control, could be referred to the regulator for interventions. Building control teams will also have to regularly demonstrate ongoing competence, performance, and standards.

In practice, many councils will be taking a broader approach to building safety, going beyond the scope of the Act and considering residents’ safety in all of their buildings.

The Fire Safety Act 2021

In parallel with the Building Safety Act, the Government has also introduced the Fire Safety Act. This received royal assent in April 2021, and amends the Fire Safety Order 2005 to place a legal requirement on building owners to inspect cladding, balconies, windows, and fire doors in blocks of flats. All existing residential buildings will be covered by the new regulations.

This makes it clear that fire and rescue services can take enforcement action in relation to cladding systems – under previous legislation, this had been ambiguous.

The role of the ward councillor

As a ward member, you are a vital link between your community including residents and partner agencies – and your council. You help to deliver services and support locally, and contribute to the quality of life for your constituents, including how safe they feel in their homes.

As a ward member, you are a vital link between your community - including residents and partner agencies – and your council. You help to deliver services and support locally, and contribute to the quality of life for your constituents, including how safe they feel in their homes.

There are many practical ways for you to fulfil this role:

  • You can assess whether there is general satisfaction with the council’s work on building safety (and that of its partner agencies) and whether local people believe they are receiving a quality response.
  • You can speak with confidence on behalf of your communities when building safety issues affecting them are debated, or decisions need to be taken.
  • You can promote partnership working between public, private and third sector organisations on building safety. You can also promote action by individual residents in response to recognised community needs.
  • You can support community calls for action and promote self-help by residents’ groups, by understanding their aims, aspirations, views, and tactics.
  • You can champion the work of community groups which are acting in residents’ interests and reduce conflict between residents and the council.
  • You can encourage your scrutiny committee to investigate significant building safety concerns which may not be priorities of the council cabinets or committees with responsibility for building safety.

The Lyons inquiry into local government, which reported in 2007, identified four roles for members – all of which can be applied to the frontline role of ward members around building safety:

  • engager − working with local groups to understand preferences and influence decisions
  • advocate − speaking up for your local community and challenging political and managerial decisions
  • mediator − reconciling different views in the area and explaining hard decisions that have to be made by the council
  • political entrepreneur − supporting and generating social networks, engaging people in civic and public life, promoting community action to solve problems.

Top tips - how can ward councillors help residents affected by building safety issues?

This section sets out some ideas for how you, as a ward member, can support residents who are concerned about building safety issues. It primarily deals with issues relating to leaseholder service charges, and the EWS1 survey process.

It is not a comprehensive list, and throughout the section there are prompts and exercises to support you to apply these ideas to your local context.

1. Understand your local context

You might be approached by many residents about cladding-related issues. Understanding your local context can be helpful to contextualise residents’ concerns and identify potential solutions:

  • How many buildings in your local area are over 18 metres, or 11 metres?
  • How many of these buildings have some form of cladding on them?
  • Are any potentially affected buildings owned by the council, or are there any buildings where the council acting as an intermediary leaseholder between the freeholder and residents?
  • How many are owned by housing associations, and by private organisations? Are there any organisations which own a lot of local buildings? What relationship does the council have with these organisations?
  • What steps has your council taken so far to remediate or survey its own stock?

2. Ask the right questions to find a resolution

Residents might approach you with concerns about the safety of their building. Leaseholders might have additional concerns about their service charge liabilities, and – if they are trying to sell or remortgage their flat – about obtaining an EWS1 certificate.

As a ward member, you play a role in directly advocating for residents to their landlords. You also play an important role in influencing your council’s response to building safety issues.

To do this, and to effectively support individual residents, it’s important to work with them to understand the facts of their particular case:

  • Who is the landlord?
  • Who is responsible for managing the building, ie the landlord, or a management company?
  • Which building do they live in?
  • How old is this building?
  • How tall is it?
  • How many leaseholders live in the building?
  • How has remediation work on that block progressed?
  • Has the building owner applied for government remediation funding? If so, where does the project sit in the application process?
  • Are any interim measures in place in the building? Which options have been explored for reducing the cost of these interim measures?

This is important information which you can use to provide advice or influence the relevant building owner.  With the resident’s consent, you could also pass the information onto the members of your council who are responsible for housing stock and housing regulation.

3. Support leaseholders to reduce their costs

One of the main concerns for leaseholders in relation to building safety issues is the financial impact of remediation costs, as leaseholders may be legally liable for them.

On the 20 January 2022, the Government announced its intention that no leaseholder living in a building above 11 metres will face any costs for fixing dangerous cladding, and has given the building industry a two-month deadline to find a funding solution.

Pending this solution, some other options exist for reducing the financial burden on leaseholders – you should work through these with residents on a case-by-case basis.

It’s important, however, to remember that many of these options are outside the council’s control and could take years to come to fruition.

  • If the building is over 18 metres, has the landlord applied for any of the government’s building safety funding? If so, where does the project sit in the application process? This can be checked on the government’s leaseholder and resident portal
  • Is the leaseholder likely to be liable for remediation costs? LEASE is a government-funded service which can provide free initial advice on leasehold law.
  • The Government has encouraged flat leaseholders to seek legal action against building developers. Where a building is less than six years old and has cladding or building defects, leaseholders may be able to take action under the Defective Premises Act. Where buildings are less than 10 years old, residents may also be able to claim against their building warranty scheme. Has the resident asked their landlord why they think the residents should not be able to take an action? Has the resident sought legal advice?
  • Has the council explored enforcement action against the building owner? If so, how will it recover its costs?
  • Has the building owner applied to the Waking Watch Relief fund?

4. Support leaseholders to obtain an EWS1 certificate

As detailed in this briefing, many leaseholders seeking to sell or remortgage their flats are finding that lenders have imposed a £0 valuation, pending a satisfactory EWS1 certificate. In this situation, leaseholders will be very keen to obtain a survey.

In July 2021, the government supported new advice from its Independent Expert Panel on building safety, which stated that EWS1 assessments were unlikely to be needed on buildings below 18 metres. In January 2022, the government encouraged leaseholders whose building owners had decided to carry out an EWS1 assessment to challenge their building owners to justify their decision.

It’s important to understand that EWS1 certificates are not a legal requirement on building owners, but a commercial requirement by lenders on individual leaseholders. If a certificate isn’t currently available, you should work with the landlord (who may be your council) to ensure that information from that building’s Fire Risk Assessment is available to residents.

It’s also important to understand that leaseholders can’t directly commission an EWS1 survey – as it’s an intrusive survey of the common parts of the building, only the freeholder or block management company (if applicable) has the right to start the EWS1 process.

The Leasehold Knowledge Partnership, which campaigns on behalf of leaseholders, has reported instances of leaseholders paying companies claiming to provide EWS1 surveys on their behalf. Where councillors are aware of these companies, they should be reported to Action Fraud.

Finally, you should remember that in most cases, EWS1 surveys have found defects in buildings which require further remediation work. It's important to manage leaseholders’ expectations about what the survey will achieve, and to remind them that they may be liable for the costs of any work subsequently needed.

To help the leaseholder obtain an EWS1 certificate, you can ask the following questions:

  • Who is the landlord?
  • How tall is the building?
  • Does it appear to have cladding on it, or balconies?
  • Has any remediation work been carried out to date?
  • How many leaseholders live in the block?
  • How many of them need an EWS1 certificate, and why?

Depending on the answers, some potential responses are outlined below.

  1. Your council is the freeholder

If your council owns the building, it might be responsible for carrying out an EWS1 survey. You should ask relevant members and officers whether they have an agreed policy for carrying out surveys and recharging residents.

It might be the case that the council has a policy of providing these certificates – you should find out:

  • which blocks are covered by the policy – e.g. only blocks over 18 metres, or only blocks which have some form of cladding
  • how the council is covering the cost of these surveys – it might be recharging all leaseholders through the service charge, recharging only the leaseholders who have requested the survey, or paying for the survey itself.

As outlined in this briefing, there are many difficulties in finding a surveyor, and in deciding a ‘fair’ way to pay for the EWS1 survey. If, for example, the council is only recharging leaseholders who have requested a survey, you might find that the costs are a very high barrier for residents.

It might also be the case that your council has decided not to provide EWS1 surveys. For example, it might have already prioritised remediation work on the basis of risk and might not want this prioritisation to be disrupted by the results of the EWS1 survey.

Where getting a survey is impossible or impractical, you should work with residents, local partner organisations, and your council colleagues to try and find a resolution. This might involve gathering enough information from your residents to convince the council to change its EWS1 policy. It might also involve lobbying for wider changes to the EWS1 process. We’ve given more information on this in later sections.

2. Your council is an intermediate leaseholder between the freeholder and residents

In some cases, the council might be acting as ‘head leaseholder’, whereby it leases part or all of a building from the freeholder, and sub-lets individual dwellings to tenants or leaseholders.

Again, as freeholders (or the block management company) are responsible for the common parts of a building, the council may not have the legal right to commission an EWS1 survey. However, some councils have reported cases where the freeholder has asked the council to commission the survey on its behalf. This will be a decision for the council.

3. The building is not owned by the council

The landlord could be a housing association or private company. In these cases, it’s important to find out who the landlord is, and which building is in question.

You should also find out how many leaseholders are in the building, how many need an EWS1 certificate, and whether any remediation work has already been carried out. This will help you to make a case to the relevant landlord to obtain an EWS1 certificate.

Note that in some cases, actual management of the building might have been delegated by the freeholder to a management company. Where the residents have exercised their Right to Manage, this company could be owned by all or some of the residents. You should find out more about how the building is owned and managed to ensure that you’re involving the right parties.

Again, it’s important to manage leaseholders’ expectations – either because the freeholder might refuse to provide a certificate, or because the survey could uncover costly defects.

5. Engage with your constituents proactively

Engaging with communities is a vital part of supporting residents to feel safe in their homes. Doing so can help them, and you, to shape effective solutions to addressing local building safety issues.

If your council is a landlord, it will have a residents’ engagement strategy, and the need for consultation and communications on building safety may have been integrated into this. It may also have a separate communications plan for building safety issues.

You will be on the front line of working with residents who are concerned about building safety. As a community leader, you are best placed to understand the challenges they are facing, and by working closely with communities and a variety of local organisations, you can help to decide how best to respond to any building safety issues.

The particular strengths and knowledge that you bring to the engagement process are:

  • an understanding of your ward – the demographics, the key concerns, and the way that building safety work programmes are currently being delivered
  • the representation of local voices – you are a channel of communication the between the communities you serve and the council, representing the views of others and speaking up for the unheard
  • communicating and influencing skills – you can help to ensure that the views of local people are taken into account when decisions are made by the council or outside bodies, or when building safety issues are reported in the media.

Consider the following questions to help you plan your engagement with your communities:

  • If your council is a landlord, does its residents’ engagement strategy include points on consultation, engagement and communications on building safety issues?
  • Does your council have a separate communications plan for building safety issues?
  • Do these plans include actions for ward members? If so, how are you currently delivering these? If not, how could ward members become a stronger part of the council’s building safety communications plan?
  • Are there any estates or blocks where residents have been particularly affected by cladding issues? Do these blocks have residents’ groups or associations? What arrangements are in place, or could be in place, for ward members to engage and consult with these groups?
  • Which local forums have been set up by the council or local residents to discuss building safety concerns? How can you ensure you engage with these?
  • How do you generally access and consult your ward on local issues of concern? How could you introduce a discussion on building safety to these meetings?
  • Have there been any recent consultations with residents on building safety issues? What channels exist for you to consult your constituents, eg surveys or community newsletter feedback.

In addition to these points, there are now many regional and national-level campaign groups which have been set up by leaseholders and other residents, which focus on concerns about cladding and unsaleable flats.

You might wish to engage with these groups, both to understand concerns at a regional or national level, and to feed in the experiences of your own local community.

6. Empower residents

You should also ensure that your residents are aware of any local or regional groups, so that they can engage directly – this could help to empower local residents and build ‘social capital’ in your community by:

  • acting as an important source of information
  • providing peer support to residents in stressful circumstances
  • providing a means for residents to engage in collective action, which could influence change at the national level.

It’s important that residents in a block or estate – whether they are tenants or leaseholders – are encouraged to work together. While the different groups are experiencing slightly different concerns, all residents will be concerned about the safety of their block, and may be able to influence their landlord more effectively when working as a collective.

Regional and national campaign and support groups

UKCAG: ukcladdingactiongroup@gmail.com
BrumLAG: wearebrumlag@gmail.com
Leeds Cladding Scandal: leedscladdingscandal@hotmail.com
Liverpool Cladiatiors: liverpoolcladiators@gmail.com
Manchester Cladiators: manchester.cladiators@gmail.com
SouthamptonCAG: sotoncladding@outlook.com
London Cladding Action Group: https://twitter.com/LondonCAG
Leasehold Knowledge Partnership – a campaign group which supports leaseholders on cladding issues as well as broader leasehold issues: https://www.leaseholdknowledge.com
LEASE (The Leasehold Advisory Service) – a government-funded agency which provides free initial advice on leasehold law: https://www.lease-advice.org/

CLADDAG – Leaseholder Disability Action Group -  https://claddag.org/

As well as practical support, these groups can also provide emotional support. Many residents are experiencing worsening mental health as a result of building safety issues, and the subsequent financial concerns.

Where appropriate, you might wish to signpost residents to organisations which can provide mental health support.

Some mental health support organisations

Rethink Mental Illness: https://www.rethink.org/help-in-your-area/support-groups/
Mental Health Foundation: http://www.mentalhealth.org.uk/
Mind: http://www.mind.org.uk/
Samaritans: http://www.samaritans.org/
SANE: http://www.sane.org.uk/supportforum
Turn2Me

7. Influence your council

As ward members, you are a vital link between the council and your community, and you can help to make sure that residents’ voices are taken into account when your council makes decisions.

Consider the following questions to help you plan your engagement with the council:

  • Which committee or portfolio member is responsible for housing management in your council? What about housing regulation?
  • Who are the senior officers in charge of building safety (housing management or housing regulation) in your council?
  • What arrangements are in place for ward members to feed information into these structures, or to these individuals?
  • How can you reflect feedback, ideas, or evidence from your ward to decision-makers in your council?
  • How can you be involved in influencing and setting the building safety priorities for your ward?
  • What arrangements are in place for you to receive building safety information relevant to your ward from council officers or portfolio holders?
  • How do you find out about what’s worked in other local areas experiencing similar issues?

 

You might also decide that you would like to contribute to the scrutiny of building safety delivery in your council. Councils’ scrutiny committees gather evidence on issues affecting local people and can influence the policies and decisions made by the council and other organisations involved in delivering public services.

They can help to:

  • improve what the council does by focusing on the outcomes and outputs of its building safety work programme
  • improve how the council operates by reviewing its strategies, objectives, and service delivery
  • hold decision makers to account and assess whether the council is making a difference to residents’ safety
  • review performance management arrangements to ensure that they are robust and effective
  • review policy development to ensure that the council is focused on issues of greatest local concern.

Ward members can contribute effectively to this scrutiny process given their role as community leaders and can challenge to make sure that the council is responding to the building safety issues raised by communities.

It’s important to consider whether an issue can be resolved informally by working with decision-makers before referring the matter onto a scrutiny committee.

8. Influence wider policy and practice

As set out in this briefing, many of the building safety issues affecting residents are national issues, which may have their roots in government policy or regulations. It’s therefore important to work with a wide range of partners to help local voices feed into the national decision-making process.

You will have important insights from your engagement with your community or council, which could help you to demonstrate the scale of the issues to decision-makers, or to highlight the negative impact on local people:

Consider the following points:

  • How can you help to evidence the impact of cladding issues on local residents?
  • What links do you have with organisations that are lobbying the government on building safety issues, e.g. the LGA, the National Housing Federation, Local Authority Building Control
  • How can you engage with your local MP to ensure that residents’ concerns are raised in parliament? How can you work with your MP to directly influence local landlords to carry out remediation work or an EWS1 certificate?
  • How is your council lobbying government on building safety issues, and how can you feed into this lobbying work, eg responses to parliamentary select committees

Annex 1 - building safety – timeline of key events

14 June 2017 – Fire at Grenfell tower

18 June 2017 – DCLG Permanent secretary writes to social landlords to ask them to identify which of the buildings they own might have Aluminium Composite Cladding

11 August 2017 – DCLG Secretary of State writes to local authorities to ask them to collect data on all local buildings with ACM cladding

July 2019 – Government publishes the results of its tests on a wider range of cladding systems, showing that a wider range of systems are potentially unsafe

October 2018 – Government bans the use of combustible materials of any part of the outside of buildings over 18 metres

November 2018 – the government publishes an addendum to the Housing Health and Safety Rating System Operating Guidance, to provide guidance to local regulators on how to assess risk in high-risk residential buildings with unsafe cladding

December 2018 – Government publishes Advice Note 14, requiring building owners to confirm that there were no combustible materials on the external walls of their properties. Mortgage providers begin to require assurances about the safety of external wall systems as a condition of approving mortgage applications.

May 2019 – the government announces £200 million of funding for buildings over 18 metres in the private sector to remediate ACM cladding. This funding is available on the condition that building owners have pursued warranty and insurance claims and appropriate legal action.

December 2019 – the building industry agrees the EWS1 (External Wall systems) process, which is intended to establish an industry-wide mortgage valuation process where buildings could have combustible materials on their external walls. This is intended to unstick the property market and is not a statutory requirement.

January 2020 – the government extends the ban on the use of combustible materials to buildings above 11 metres

January 2020 – government publishes a consolidated advice note, stating that the external walls of residential buildings should not assist the spread of fire, irrespective of height. Mortgage providers begin to require an EWS1 survey for a wider range of buildings as a condition of approving mortgage applications.

March 2020 – government announced the Building Safety Fund, £1 billion of funding to remediate non-ACM cladding on residential buildings over 18 metres. This funding is available to the private sector, but social landlords must demonstrate that they are unable to pay to access the funding.

June 2020 – a National Audit Office report records the Ministry of Housing, Communities and Local Government as knowing “only in a minority of cases would it be financially justifiable for building owners to bring legal action to recover money.”

20 July 2020 – the draft Building Safety Bill is published. The Bill as drafted would permit leaseholders to be charged for the cost of remediating historical safety deficiencies via a new service charge. These clauses are controversial.

October 2020 – MHCLG publishes research on the costs of waking watches

17 December 2020 – the government announces £30 million of funding under the Waking Watch Relief fund, to enable building owners to install fire alarms in buildings over 18 metres with unsafe cladding. This is open to all eligible private and social sector buildings.

10 February 2021 – the Department of Levelling Up, Housing, and Communities announces:

  •  further grant funding of £3.5 billion to fully fund the removal of unsafe cladding for leaseholders in all residential buildings 18 metres and over in England. Social landlords must demonstrate that they are unable to pay for works in order to access the funding. The government also announces a long-term loan scheme for leaseholders in blocks of between 11 and 18 metres requiring cladding remediation work.

29 April 2021 – Fire Safety Act 2021 receives royal assent. This makes it clear that fire and rescue services can take enforcement action in relation to cladding systems

21 July 2021 – the government publishes an Independent Expert Statement on Building Safety in medium and lower rise blocks of flats, which states that EWS1 forms should not be a requirement on buildings below 18 metres. The government states that it will explore ways to ensure that fire risk assessments are carried out in a risk-proportionate manner

21 July 2021 – the Building Safety Bill undergoes its second reading. This amends the clauses in the original draft, which had stated that leaseholders could be required to meet the historical costs of remediation. Instead, it introduces a variable service charge to cover to ongoing costs of the future building safety regime.

September 2021 – the government extends the Waking Watch Relief Fund by £5 million to meet demand

10 January 2022 – the government announces its new plan for “making those responsible pay”. This includes:

  • confirmation that the long-term loan scheme announced on 10 February 2021 will not be taken forward
  • A new expectation that the building industry will meet the remaining costs of remediation on buildings 11 metres or over – estimated to be £4 billion. The industry is given two months to agree to a financial contributions scheme to fund this plan, failing which the government will impose a solution in law
  • New amendments to the Building Safety Bill to extend the right of leaseholders to challenge those who cause defects in premises for up to 30 years retrospectively
  • A new leaseholder and resident portal
  • An additional £27 million to fund the installation of fire alarms in buildings in England with a waking watch. This is available regardless of building height.

The government also withdraws the consolidated advice note published in January 2020, citing that it has been wrongly interpreted.

14 February 2022 – the government announces details of its proposals to make the building industry meet the remaining costs of remediation. It states that it will apply its new building safety levy to more developments, with higher rates for building owners which do not participate in finding a solution.

28 April 2022 – the Building Safety Act receives Royal Assent.

28 June 2022 – leaseholder protections come into law.

28 July 2022 – the Building Safety Fund reopens, with buildings over 18m with cladding eligible to apply.

Annex 2 - the changing scope of the remediation programme

Work  initially focused on buildings over 18 metres with ACM cladding. Shortly after the Grenfell fire, the Government wrote to local authorities and other social landlords to ask them to identify whether social sector buildings were clad in this material. It also began a programme of testing on ACM cladding, to determine its combustibility in combination with different types of insulation. Most combinations failed this testing.

Later that year, councils were asked to begin a data collection exercise to identify all high-rise residential buildings in the private sector with ACM cladding.

The Government is now working with local authority regulators, industry bodies and building owners to ensure that buildings identified as having unsafe ACM cladding are remediated. It publishes a monthly summary of progress.

In light of concerns about other types of potentially dangerous cladding, the Government announced in 2017 that it would expand its testing programme to a wider range of materials. The results of these tests were published in July 2019.

In October 2018, the Government banned the use of combustible materials on any part of the outside of buildings that are over 18 metres. It followed this with an Advice Note, Advice note 14, in December 2018, requiring building owners to confirm that there were no combustible materials on the external walls of their properties.

These steps collectively expanded the scope of remediation work to buildings above 18 metres with all types of combustible cladding systems. The scope was expanded further in January 2020, when the government announced that the threshold for the ban on combustible materials would be lowered to 11 metres. At the same time, it published a document consolidating all of its previous advice notes. This document stated that ‘External walls of residential buildings should not assist the spread of fire, irrespective of height. It is important therefore to understand both the materials used in the external wall consultation and whether the entire system has been designed, installed, and maintained appropriately. This is applicable to building owners of buildings irrespective of height’.

This advice note had serious implications for leaseholders in a wide range of buildings, who began to experience delays in buying and selling properties, and significant increases in remediation costs. More detail on this is given in the below sections.

As a result of these unintended consequences, the Government further amended its position in July 2021, stating that assessments of buildings’ external wall systems should be limited to buildings over 18 metres in height.

Further information

Local Government Association: briefing on the Building Safety Bill, report stage; Lords committee stage (most recent)

Local Government Association: position statement on leaseholder costs

Building Safety Fund Leaseholder and Resident Service

Building Safety Fund: a step by step guide for leaseholders and residents

Building Safety Fund: leaseholder and resident service glossary

EWS1 (or equivalent) lender data on mortgage valuations for flats: April to September 2021, United Kingdom

Greater London Authority, EWS1 Best Practice Guidance - Guidance for landlords on leaseholder requests for EWS1 forms

House of Commons Library: Building Safety Bill research briefing

House of Commons Library: Leasehold high-rise flats – who pays for fire safety work?

Building Safety Programme Monthly Data Release, England: 31 December 2021

Housing, Communities and Local Government Committee, Pre-legislative scrutiny of the Building Safety Bill

Housing, Communities and Local Government Committee: Cladding – progress of remediation

Public Accounts Committee, Progress in remediating dangerous cladding

Leasehold Knowledge Partnership – Cladding scandal archives

Building Safety Programme: Waking watch costs

Building Safety Programme: estimates of EWS1 requirements on residential buildings in England

Inside Housing, Timeline: the three years since Grenfell

Inside Housing, Fact check: how many people live in buildings with dangerous cladding?

Inside Housing, the Paper Trail: the Failure of Building Regulations

National Audit Office: Investigation into remediating dangerous cladding on high-rise buildings

University of Oxford Law Faculty, Building Owners and the cladding problem