Part 3: To enforce or not? Local authorities and cladding removal

To recap, at the end of November 2018 the government issued an addendum to the operating guidance on the Housing, Health and Safety Rating System (HHSRS, discussed here) to provide more specific advice in relation to cladding. Although many commentators referred to this as giving local authorities ‘new powers’ to require cladding to be replaced, these are powers that they already had and the addendum is to supplement the main Operating Guidance by focussing specifically on the assessment of cladding and assessing the common parts of the building, including the exterior. Given the seeming different responses by local authorities to their powers (discussed below) it is useful to explain the status of the guidance. Under section 9(2) Housing Act 2004, a ‘local housing authority must have regard to any guidance’ (my emphasis). The addendum has now been supplemented by the addition of a worked example, added on 5th March 2019.

This worked example provides guidance and illustrates how the addendum to the HHSRS operating guidance can be used for a high-rise building with unsafe ACM cladding. It takes the example of a 16-storey block built in 1975 that had external ACM cladding put on in 2009 but has no sprinkler system, and no common alarm system. The HHSRS is a risk assessment system, in which risks are evaluated on the basis of the ‘likelihood, over the next twelve months, of an occurrence that could result in harm to a member of the vulnerable age’ and the ‘range of potential outcomes from such an occurrence’. Calculating scores under the HHSRS is a highly complex task, conducted by specialists. The worked example gives likelihood a relatively high score – on the basis that there has been no invasive testing to test how the building would actually contain fire spread, e.g. compartmentation. As a fire reaching the cladding is likely to spread and, on the scenario facts, there are no fire doors leading to the common parts, this creates a risk to vulnerable age persons of extreme harm. The overall rating given is ‘C’, which means that it is a Category 1 hazard, and the local authority has a duty to take enforcement action.

An earlier Tribunal decision illustrates that external cladding can create a Category 1 hazard, and also that the enforcement powers existed before the addendum was issued. In June 2018, an improvement notice was served in relation to the Hamptons, Gillingham Marina on the basis that there was a Category 1 hazard (this categorisation was not challenged). An appeal was brought against this notice; hence, the Tribunal report provides an opportunity to find out a little more about it. The property has, according to a local press report, 24 apartments described by the Tribunal as a ‘prestigious development … overlooking the River Medway’ and a nine-storey tower. At the Tribunal hearing, the only issue unresolved between the parties was over the length of time that should be given for completing the remedial work; the applicant argued that they needed more time to ‘take into account the ability to acquire funding for the works’. The Tribunal disagreed, stating ‘that finance is not a factor in an Improvement Notice. … [W]hether or not a landlord can afford to carry out the works is not a relevant factor’. There is also mention of a hope that funding would be met by a claim on the NHBC (perhaps this is now one of the claims that the NHBC has agreed to settle?).

The other point of interest from the Gillingham case is that the improvement notice appears to have been served, presumably without challenge, on an RTM company, something that Martin Rodger QC had thought was not possible in Hastings BC v Braear Developments Ltd [2015] UKUT 0145 (LC) (see earlier blogpost).

More recently, Tower Hamlets have been preparing to serve an improvement notice in relation to Victoria Wharf, an apartment block with 87 flats. Although there around 40 private blocks in Tower Hamlets with confirmed unsafe cladding, this block was considered to be the highest priority. Since November 2017, a 24/7 waking watch has been employed in those parts of the development over 18m tall. Residents understand that the cladding needs replacing, and decking may also need to be changed. According to one resident, the Council consider that they need to act in case something were to happen, but the Council cannot advise on how the remedial work can be paid for. The Housing Scrutiny Sub-Committee meeting on 20 November 2018 noted ‘ongoing concern about some private freehold owners passing cladding remediation costs onto leasehold owners, we [Tower Hamlets] continue to lobby MHCLG on this issue’. Since the Council met with leaseholders in January 2019, there has been real concern amongst leaseholders about how this will be paid for; the management company have said that they cannot offer long-term financial help and leaseholders are worried about possible bankruptcy.

The final illustration is Northpoint building in Bromley, built in the early 2000s by Alfred McAlpine Partnership Housing (with Taylor Wimpy as the successor), and a private company, Citistead Ltd, is the freeholder. This is the only building in that Borough with flammable ACM cladding. Both Taylor Wimpy and the freeholder have stated they have no intention to pay for remedial works. According to leaseholder discussions with the Council, the Council’s position is that the Housing Act and addendum to the HHSRS does not provide a clear pathway to the remediation of flammable cladding in private buildings. (The Bromley Council’s Renewal,  Recreation and Housing Policy Development and Scrutiny Committee, has a ‘restricted’ item on ‘private sector tall buildings’, which may relate but no information is available from publicly available committee minutes.) No HHSRS assessment has yet been undertaken.

According to the resident-owned management company, the Council takes the view that as fires which cause significant harm are rare, this may not result in Northpoint receiving a Category 1 rating. Further, similar to earlier views that were rumoured to be coming from some local authorities, Bromley takes the position that even if there is a Category 1 hazard, the cladding may not need to be removed if there are other mitigating factors. At Northpoint there is a common alarm system, a simultaneous evacuation strategy and waking watch (at an annual cost of £220,000). Therefore, a hazard awareness notice may be issued rather than an improvement notice. A hazard awareness notice (s. 28 Housing Act 2004) does have to specify remedial action appropriate to take, ‘if any’, but has been referred to by commentators as more like a warning or pre-improvement notice, and unlike the improvement notice route the local authority cannot step in as enforcer if this action is not taken. As the Enforcement Guidance makes clear, the hazard awareness notice does not have to be registered as a local land charge, there is no follow-up to determine whether the advice has been acted upon (para 5.42), and it may be appropriate to use where the owner has agreed to do the work and the authority is confident the work will be done in reasonable time (para 5.43). Under s. 5(4) Housing Act 2004, if more than two courses of action are available in response to a Category 1 hazard, the authority ‘must take the course of action which they consider to be the most appropriate’. The idea that a local authority may consider a hazard awareness notice appropriate is concerning, sitting very uneasily with the positive obligations under Article 2 (the right to life) under the European Convention of Human Rights (discussed here). It could leave leaseholders trapped in buildings with unsafe cladding, worried for personal safety and unable to sell flats that have severely dropped in value. Some leaseholders at Northpoint are already struggling to pay the service charge, inflated by the waking watch costs. Although the addendum to the operating guidance notes that interim fire-safety measures which temporarily mitigate risks can influence enforcement action, the context is that it might mean that more time can be given for remedial works. It is clear from the National Fire Chiefs Council Guidance (para 4.3) that these interim measures leave significant risk and they should only be temporary measures pending removal and replacement of the cladding. The addendum also states that removal of all ACM cladding and replacement with a safe material ‘remains the most appropriate remediation solution’ and that the ideal situation would be ‘that no element of the cladding is combustible and that compartmentation within the cladding matches the building compartmentation’. Under s. 11(5) of the Housing Act 2004 itself the remedial action required to be taken must, as a minimum, be such as to ensure that the hazard ceases to be a category 1 hazard.

Photo by Pat Kay on Unsplash

The key linkage between each of these 3 situations – one with an improvement notice served on an RTM, one where improvement notices appear about to be served, and one where the local authority appears minded not to require the cladding to be replaced – is money. In each situation there is no solution as to how this is going to be paid for. Leaseholders are, unsurprisingly, worried. At Northpoint, leaseholders are themselves taking shifts on the waking watch to try to contain the service charges. If notices are served, who is going to forward fund the works? And, notwithstanding the government’s repeated position that leaseholders should not have to pay, what is to stop the costs being passed on? It is not possible to see a way forward to making these buildings safe without Government funding in some form becoming available.

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How to cite this blog post (Harvard style) 

Bright, S. (2019). Part 3: To enforce or not? Local authorities and cladding removal. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2019/03/enforce-or-not-local-authorities-and-cladding-removal (Accessed [date]).