"The Government’s current approach to building safety is unfit for purpose – it has prioritised the liability question, mistakenly believing that by doing so the necessary funding will magically appear"
- Mick Platt - Residential Freehold Association
According to The Residential Freehold Association (RFA) – a trade body representing the UK’s largest professional freeholders, the solutions do not require legislation and can be implemented under the powers provided by the Building Safety Act 2022 (‘the Act’) to the Secretary of State.
The UK Government’s confused policy on building safety – including the Act and its implementation – has failed and is actively slowing down the remediation of unsafe buildings, leaving leaseholders in limbo for longer.
According to a recent report, in the past six years, fewer than 10% of unsafe homes have been remediated and the government has disbursed only £1.5 billion of its pledged £5.1 billion – with an estimated £3 billion also to be recovered from taxation – to remediate unsafe buildings.
Consultation with the industry has been limited and the Government has consistently rebuffed attempts to improve the defective elements of the Act, borne out most recently through its rejection of the polluter pays amendments to the Levelling Up and Regeneration Bill. All of this showcases the need for solutions to be found – urgently.
The problems with the Government’s current building safety regime and the RFA’s proposed solutions are outlined below.
1: Inconsistencies between the Act and the developer remediation contract
The developer remediation contract, also known as the Self Remediation Terms (SRT), only obliges developers to remediate life-critical fire safety defects which leaves intolerable risk to the occupants from the spread of fire.
Meanwhile, the Act places more stringent obligations on building owners, including the management of risk pertaining to the structural integrity of the building. This has left building owners in deadlock with developers, who have had their liabilities carved out under the SRT that they would otherwise be liable for under the Act. Such standoffs are inevitably leading to costly and lengthy litigation to resolve these complex disputes.
All buildings should be remediated to ‘the Rule of One’
Each building owner should expect to receive a building remediated to a standard formulated by the Department for Levelling Up, Housing and Communities (DLUHC), then applied and certified by an independent fire engineer appointed by DLUHC, rather than the developer. Without these changes, many buildings will remain in non-remediated conditions for lengthy periods whilst protracted legal discussions take place.
2: A disproportionate approach to risk
The use of a Fire Risk Appraisal of External Wall construction (FRAEW) means that often little is known about the risks posed by the condition of the internal compartmentation of a building.
Many developers are refusing to check the internal aspects of a building as the SRT doesn’t expressly obligate them to. There is a significant risk that the building safety regime will create a swathe of half-safe buildings with defective internal compartmentation.
Place the same liabilities on developers as under the law
The developer remediation contract should be amended to reflect the liabilities that all developers carry in law, making them expressly obligated to deal with structural remediation.
3: An inconsistent funding and regulatory regime
The Government has provided a means of apportioning liability which ignores the reality of funding remediation works. Unlike the remediation of ACM cladding, which saw funds more readily distributed, there are now multiple funding regimes, all with their own guidance and criteria.
The time to gather funds is now becoming longer than the time to undertake remediation work itself, leaving leaseholders stranded for longer. The irregular patchwork of regulations stemming from the Act has also hindered remediation efforts on the ground and caused confusion. Secondary legislation has its place, but not generally as a means to constantly amend erroneous primary legislation.
Given the fiduciary and personal duties of directors acting for professional freeholders, building safety teams are unnecessarily preoccupied with avoiding the severe penalties of breaching various regulations rather than focusing on remediation projects.
Enforce a cohesive risk-based approach
A standard of acceptability should be developed in order to fund remediation works to a safe standard to prevent remediation efforts from only producing half-safe buildings. Developers should as a minimum be obligated to complete a Type 2 survey of the internal common parts compartmentation, where such a survey reveals any defects, further Type 4 surveys should be completed within the flats.
Mick Platt, Director of the RFA, said: “The Government’s current approach to building safety is unfit for purpose – it has prioritised the liability question, mistakenly believing that by doing so the necessary funding will magically appear.
“The industry shares the objective of making leaseholders’ homes safe as quickly as possible but crucially this requires engagement from the Government to recognise the unavoidable issues surrounding its building safety regime.
“The Government needs to actually work with the industry to ensure that unsafe buildings are remediated as quickly as possible to provide safety and certainty to leaseholders across the country.”