Alan Draper, Managing Director of Common Ground Estate & Property Management, looks at the government’s attempt to legislate more stringent health and safety measures.
Grenfell was a truly horrible event and precipitated the expansion of the Fire safety Order 2005 via the Fire Safety Act 2021.
As an active managing agent at the time of the Grenfell fire, I can only describe the experience immediately after as “government bombardment”. It seemed like every agency that thought it might have some sort of legal obligation towards fire safety was now bombarding managing agents with information; It was extremely difficult trying to sort out the wheat from the chaff and actually determine the true risk of fire within the Common Ground portfolio.
Internally, we reviewed every single fire safety review we’d had done and attempted to determine if any of our sites were genuinely at a level of fire risk that could be deemed unacceptable. At that time, we deemed only one site that fell into that category due to a clear lack of fire-stopping within communal areas and the flats themselves. It still took some seven years and an MP’s intervention before we were able to rectify these issues due to apathy of the building insurers and original developer.
The initial Government response was to attempt to legislate and they initially though that, as with all things leasehold, they could dump the costs on leaseholders. The subsequent backlash from leaseholders meant the Government had to approach the original building developers to help subsidise the costs and this all took time.
The Government eventually settled on implementing much more stringent health and safety measures on buildings above 18 metres in height. The fire safety Act 2022 is fairly clear on what has to be done if your building is 18 metres or higher. For buildings between 11-18 metres, there are certain additional actions now required such as checks of flat front doors and fire doors in communal areas. For buildings under 11 metres, there is very little guidance as to what is good practice versus what is a legal requirement.
Fire-safety assessments – appropriate or practical?
Given the enormity of the Grenfell disaster, the subsequent publicity and enquiry, our experience with fire safety assessments post-Grenfell is that every possible action that could be taken to mitigate fire risk is included in the reports with no thought about what is realistic, achievable and proportionate or to use Government legal parlance what is “appropriate” or “reasonably practicable”.
Many freeholders/RMC’s/RTM’s/managing agents have felt duty-bound to attempt to implement everything suggested in their post-Grenfell HSFRA’s with little appetite for carrying the liability of a fire-incident in their building.
Much of this stems from fear but also extremely poorly drafted legislation which offers little in the way of clear guidance and is massively open to interpretation. No doubt case law will follow to guide us, but this won’t happen quickly; In the meantime, the Government appears to have left the residential leasehold management industry to figure it out, but following Grenfell, not many want to raise their head above the parapet.
This has left the residential leasehold management sector paralysed with respect to guiding leaseholders on reasonable and appropriate arrangements for fire safety.
Compliance with regulation could have saved lives
The scale of the Grenfell disaster was, in my opinion, largely down to failings with command and control. Incredibly, a period of one hour and seventeen minutes elapsed between the emergency services being aware of fire penetrating the flats and the “stay put” advice being revoked. Indeed, the stairs (the sole means of escape) were found to be compliant with the legislation of the day and had the capacity to allow residents sufficient time and opportunity to escape the fire.
A whole building catching fire in the way that the Grenfell tower did is an unprecedented event but compliance with the regulations of the day would have saved many more lives.
I agree with the legislative changes that have occurred relating to buildings above 18 metres. Unfortunately, for buildings below 18 metres, the legislation is far too vague and the culture of fear that has permeated the entire fire safety industry means that fire risk assessors are making recommendations that are simply not achievable or proportionate to the risk.
I have concluded that all the Government has now achieved is poorly drafted legislation that does nothing to guide but everything to create fear, confusion and uncertainty”
How Common Ground can help you
Common Ground we will work to the following principles:
- Where compliance actions can be 100% controlled by Common Ground, we will implement these (e.g record keeping, communication)
- We will look at each building below 18 metres in isolation and determine what can be done in relation to the service charge budgets in place and what is VIABLE in terms of increasing these budgets. Section 19 of the LLTA 1985 requires “reasonableness of service charge expenditure” so, in theory, over-egging the fire safety could be construed as “unreasonable”
- We will attempt to determine actual risk rather than fall into the trap of spending leaseholder funds to alleviate fear. We will use a data-based approach. i.e. we will implement fire safety recommendations based on the statistical risk of fire starting with the highest risk factors (leaseholders setting fire to their own flat) and working towards the lowest
- We will assess each building we manage based on its individual characteristics and try to define a framework for each building we manage as to what is “reasonable and appropriate” and with reference to Section 19 of the landlord and tenants act 1985.
No action is not an option
I have interpreted the wording of clause 34, Part 4 in Guidance to Legislation as “You’re damned if you do and damned if you don’t”. In other words, no action is not an option and a “wait and see” approach could be as dangerous, if not more, than affirmative action. We will work with you to make sure your block is a safe as it can be and conforms to the appropriate legislation.