Reflecting on the systemic failures illustrated by the fire-safety crisis in blocks of flats

It’s clear that what began as a cladding scandal has spread to expose wide-ranging failings in fire safety and construction – these demonstrate that there has been systemic, and catastrophic, regulatory failure. We have:

• ineffective building control inspections and unaccountable inspectors;
• a lack of clarity in building regulations and the guidance in Approved Document B;
• and the much criticised Advice Note 14 that is support to give ‘building owners clear advice on non-aluminium composite material (ACM) cladding systems but has resulted in confusion for many leaseholders across the country’.

Added to this systemic failure, there has been an inadequate and weak response from the government to date, leaving many, probably thousands, of existing buildings unsafe to live in. I have argued that this constitutes a breach of the government’s duty to protect life under Art 2 of the European Convention on Human Rights. There is only one way to fix the ‘cladding problem’ and that is for the government to intervene. One possibility is to follow the route taken in the Australian state of Victoria where financial assistance is made available to building owners and the owner’s rights and remedies are then subrogated to the government. Once the buildings are fixed then the government can go after the developers for compensation.

But I want to briefly turn to other failures, which are even closer to the key concerns of the APPG on Leasehold and Commonhold. Our system of selling homes, and in particular flats, has been shown not to be fit for purpose. On 9^th January 2020, the Law Commission issued the results of a leaseholder survey stating that ‘[a] large number of leaseholders expressed their anger at the situation in which they found themselves, and at the perceived injustices with leasehold’. They report leaseholders as saying that owning a leasehold is ‘highly emotionally distressing, or a source of significant stress of unhappiness’.

The property system does not work well for leaseholders:

• There is no effective legal accountability for selling homes that are not fit to live in – in contrast, e.g., to buying a car that is not roadworthy. There may be structural warranty guarantees, or remedies in private law, but these are all time-limited, and the majority of blocks were already too old once the problem was discovered.
• The only person with the power to make the building safe is the freeholder. But leaseholders, the people living in the blocks, can’t force the freeholder to make the building safe. Local authorities and the Fire and Rescue Services do have various powers, but enforcement by public bodies brings its own problems.
• Many leaseholders and residents have often struggled to obtain basic information about the fire risks for the building that they live in.
• And if leaseholders want to get together with others in their building to consider collective action, this is really difficult. There is no right to obtain contact details for fellow leaseholders – so how can they reach out? This problem is also noted in today’s Law Commission leaseholder survey.
• And, finally, we have a dispute resolution system that is generally stacked against leaseholders.

There can also be problems for freeholders who do want to ‘do the right thing’. This is a particular difficulty for local authority landlords at the moment – to make a building safe they may need to enter individual flats and do works, but there are serious doubts about whether they have the power to do so if the leaseholder objects. The issues have been highlighted by the recent saga involving Wandsworth’s attempt to retrofit sprinklers in 100 high-rise blocks – Wandsworth applied to the First-tier Tribunal for confirmation that they can enter flats and retro-fit sprinklers, passing on the costs. The case was recently struck out by the Tribunal – because, on the wording of the leases, it was wrong to have made a single or blanket decision to retro-fit sprinklers in all of the blocks. The access and charging questions were not addressed.

So we need to be asking some big questions about how we sell and own flats. Should home buyers be given consumer rights? Who should hold the control powers in blocks of flats? Can we create a system in which property is understood as being based on propriety – that those who hold property should exercise the rights and powers that it provides with a sense of decency and rightness?

The Law Commission and the MHCLG are looking at discrete questions that touch on some of these bigger issues, but it’s all rather patchy and we still need a more holistic review of our leasehold system.

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How to cite this blog post (Harvard style) 

Bright, S. (2020). Reflecting on the systemic failures illustrated by the fire-safety crisis in blocks of flats. Available at: https://www.law.ox.ac.uk/housing-after-grenfell/blog/2020/01/reflecting-systemic-failures-illustrated-fire-safety-crisis (Accessed [date])