our response to the government's high-rise safety proposals

Phil Murphy (@MancCommunities) and I have written our own response to the government's consultation, Building a Safer Future: Proposals for reform of the building safety regulatory system. The consultation ended yesterday (31 July 2019), but I am sure they will accept late responses. If you want to read, share or comment on our response, you can download it here, but we have included some selected highlights below.

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If the government is serious about learning the lessons of the Grenfell Tower disaster of 14 June 2017 and honouring the 72 people killed and the lives of many others destroyed by the fire, then the planning system, building regulations, the building industry and the landlord sector must be completely overhauled to ensure that people’s safety is always put before profit. And there's no doubt that the government’s proposals for reform of the building safety regulatory system make an important step in that direction. We welcome:

• the creation of a new Building Safety Regulator to oversee and enforce the new safety regime with stronger civil and criminal enforcement powers;

• the idea of having named dutyholders – people involved in the design, construction and management of high-rise buildings – who will have clear legal responsibilities at each stage of the building’s life-cycle;

• the requirement for every building to have an accountable person (i.e. the owner, landlord, managing agent) who must register themselves, the building, and a new legally-required building safety manager with the Regulator;

• that occupation can only commence once a building safety certificate has been issued, meaning that a safety case, a resident engagement strategy and a golden thread of building safety information have been deposited and approved by the Regulator; and

• the creation of a direct route to the Regulator that residents can access when their safety concerns are urgent or have not been satisfied through the internal complaints process.

However, there are many aspects of these proposals that either lack sufficient detail, do not go far

enough, or are not going to work as currently conceived. Here are a few of our main concerns.

1. We do not support the government’s proposal for the new regulatory system to only apply

to multi-occupied residential buildings of 18 metres or more.

Height alone is not a sufficiently evidence-based justification for the inclusion or exclusion of buildings from the new regulatory system. It tells us nothing about which residential buildings actually pose a higher risk of casualty or death due to inter alia the type, age, location, design, construction, use, type and number of occupiers, access issues, fire safety measures, building owner / landlord, and local fire and rescue capacity. An example of this is the recent fire (9 June 2019) at Samuel Garside House in Barking involving timber-clad balconies built by Bellway Homes. Fire expert, Sam Webb, told Inside Housing that if the Barking fire had taken place during the night when people were asleep, instead of the afternoon, ‘we would have woken up to a death toll to rival Grenfell’. Again, as at Grenfell, the fire safety issues at Barking were not just about the cladding: a fire risk assessment found several other high-risk faults to the building yet residents who raised safety concerns were told there was nothing to worry about. Yet this 6-storey block was 13.75 metres tall and would have been excluded from the new system. In reality, there will be thousands of existing blocks of flats of any height with potentially serious safety failings. A height of 18 metres is historically linked to the principle of a maximum height for firefighting and rescuing people using portable equipment immediately available on the majority of fire appliances to any side of the outside of a building regardless of road accessibility. Today most fire brigade appliances carry 13.5 metre ladders, which only reach up four storeys, and as Scotland has recently recognised, a safe working height using a 13.5 metre ladder is 11 metres. It is also worth remembering that fire fighters’ training towers only reach four storeys. So an 18 metre height threshold no longer makes sense from either a modern firefighting perspective or from a building safety perspective.

Instead, we believe the new system should initially embrace all buildings where there are higher risks to life from fire because of either (i) the unsafe design, construction, maintenance or management of the building, (ii) the constrained ability of the local fire service to fight a fire and protect residents’ lives, or (iii) the occupiers’ inability to independently escape from a fire. Height should be considered across all three of these conditions and pay regard to current firefighting capacity and the assumption that fire fighters may not be able to access all four sides of a building. This would make 11 metres (about three storeys) the logical height for mandatory inclusion of all residential buildings, and for revising the building regulations to make sprinklers mandatory in new and existing buildings, ensuring a second means of escape, and outlawing all forms of combustible and limited combustible cladding and other materials in the exterior of buildings.

2. We believe the new system should go beyond blocks of flats to encompass the following types of buildings:

• prisons, detention centres and other secure premises,

• hospitals or health care institutions where patients stay overnight, supported/sheltered housing

• educational buildings, boarding schools and halls of residence

• care homes

• hotels

• shopping centres

• churches / old buildings

3. We agree that the new system should apply to existing buildings and impose new regulations and stricter oversight when buildings are being refurbished but we are extremely concerned about the lack of specific details for the government's proposed 'transitional' period and what it means by only including buildings subject to 'major refurbishment.

No definition is offered as to what ‘significant’ or ‘major’ refurbishment means and no process is set out for deciding what this means in practice. It is very unclear how retrospective the new system will be. There is no definition or suggested timeframe for the ‘transitional period’. It is worth highlighting that thousands of social housing blocks will have had extensive works under the Decent Homes programme (2000-2010) and successor investment projects. In other words, there are potentially thousands of other Grenfell Towers in our midst. It is therefore vital that the new system covers existing buildings as soon as possible and in the most practicable way possible. It has been suggested by MHCLG in one of the consultation events that this would mean works that require residents to be decanted. We would not support this narrow definition. In reality any kind of refurbishment can render a high-rise building unsafe, even just replacing the front doors to flats or installing a satellite dish, without residents needing to move out. Tower blocks that in the future have sprinklers fitted – hardly a significant or major refurbishment – are potentially undergoing work that might compromise the compartmentation of flats and floors.

4. We support the proposal for a building owner / landlord to submit a safety case for scrutiny by the Regulator before a building safety certificate is issued (and before occupation is permitted) and we welcome the proposal that this will cover ALL areas of the building as this is vital for ensuring a building is safe for residents.

However, it is vital that the safety case review is not simply be a desk-based sign-off of paperwork. It must also involve physical inspection including hot smoke tests (see: https://youtu.be/Lt_mxMR69-c) with the results placed in the public domain for scrutiny by residents, landlords, and elected representatives. The safety case should also be ultimately signed off by the building insurer who will have a vested interest in properly checking for compliance with laws and regulations. It must also be made clear that the accountable person and building safety manager should not be reviewing the safety of their building every 5 years – there should be an annual fire risk assessment conducted by the properly qualified chartered fire engineers working for the fire service or an equivalent body as used to happen prior to the Fire Safety Order 2005, and this should include inspecting inside some of the flats and features only accessible from inside dwellings such as compartment barrier walls and service risers. We would also suggest that the building safety certificate goes further than summarising the conditions of its issuance and contains a quantitative rating of how fire safe the building is according to the Regulator and what measures would need to be taken for it to have a maximum rating. This would increase the accountability of fire safety in the building and enable residents to identify the improvements needed and who to lobby for them.

5. Tenants and leaseholders should not have to pay for the costs of crucial safety works to rectify problems caused by poor or unlawful design, construction, maintenance and management that are discovered once the new Regulatory system kicks in.

Clearly, the existence of fire safety failings requiring urgent remediation at the occupation stage of a building would mean that the regulatory system at some point in the past had failed. Given how difficult it is for those buying a flat in a high-rise building to fully inspect the passive and active fire safety features before purchasing, and the lack of accurate information about construction materials (e.g. cladding), the idea that remediation costs should fall on them is absurd. Instead, the costs of these failings should be ultimately borne by the relevant legal dutyholder(s) (and their contractors) in the new regime.

6. We agree that whistle-blowers should be empowered and rewarded to come forward but the proposals only refer to workers - residents also need to be protected.

Residents must be empowered to speak out and report their concerns and their evidence of safety failings without fear of retribution, whether bullying, harassment, revenge eviction and threats of legal action prosecution. Residents should also be formally empowered to film, photograph and audio-record where they are documenting safety concerns or suspected breaches. Any attempt to intimidate or prevent that evidence-gathering should be subject to enforcement by the Regulator. Residents need to be told in clear and unequivocal terms that the law is on their side when reporting and evidencing their safety concerns.

7. We welcome the suite of civil and criminal offences and sanctions proposed for those found to be non-compliant with the regulations and the possibility of being able to sue those responsible for damages (death or serious injury).

We support the proposal for bringing into force Section 38 of the Building Act 1984 which provides a private right of action where a breach of a duty imposed by the building regulations causes death or injury to any person. This would make it much easier for tenants to sue for breaches in building regulations. Section 38 would have allowed for tenants to bring damages claims for death or injury when there has been an alleged breach of building regulations rather than going through the more difficult process of proving negligence on the part of developers or those in charge of ensuring compliance with the building regulations. The law would also help make clear to anyone potentially responsible for regulatory breaches that they are less protected against legal action from tenants – thus persuading them to be more rigorous in following the regulations – and would make legal claims easier for victims and survivors of any such failures.

However, what is clearly missing from the proposals regarding residents is compensation. The reality is that residents in existing or refurbished buildings may have had their lives taken over by these issues. Loss of earnings and job, health deterioration, stress, devastation to family life. The current legal system makes it very difficult for residents to get compensation for these injustices. Many will look at this new system and wonder where will the financial penalties levied actually go? It is reasonable that the Dutyholders compensate residents for non-compliance as a matter of course. We propose, therefore, that the new regulatory regime must be able to impose fines on duty holders and award compensation to residents. This will not only incentivise duty holders to comply, it will also incentivise residents to report issues to the Regulator that could save lives.

8. We are concerned that apart from the proposal that accountable persons will have to pay to register their buildings, there is no detail on how the estimated £425 million annual cost (assumed 18m+ buildings) of setting up, running and complying with the new regulatory regime will be met.

90% of these annual are expected to fall onto social owners, private owners/leaseholders and developers/industry. The remaining 10% falling to the building safety Regulator. Existing buildings will cost around £3,000-£4,000 per building per year to comply. Unless the current lack of government subsidy for social housing and the crisis of local authority finance is reversed, it is impossible to see how councils and other social landlords will be able to comply with the new system without either raising rents and service charges, and / or demolishing stock and /or and selling off stock and land. We are already seeing demolition planned for some tower blocks following post-Grenfell inspections. The best way of financing the new system is through a combination of government funding (tax and borrowing) and the compulsory licensing of all developers, contractors, and owners. A windfall tax on the excess profits of the building industry and landowners should also be considered alongside a new land value tax system to fund the new regulatory regime. Social housing providers must be given adequate funding to comply with the new system and there must be a properly resourced safety training scheme for residents and how to engage with the new system.

9. A stronger inspection and enforcement system will only be as good as the building regulations it is policing. Sadly, as Grenfell revealed, those regulations and their accompanying guidance were not and are still not fit for purpose and must be reformed to make our homes safe. The following is a list of urgent reforms that are needed:

Banning combustible and toxic materials

Following Grenfell, there has been huge public pressure on the government to outlaw combustible and toxic materials in the external walls of high-rise buildings. The government has responded far too slowly on this but eventually, from 21 December 2018, building regulations were changed to ban the use of combustible materials in the external walls of new residential buildings, hospitals, residential care premises, dormitories in boarding schools and student accommodation, as long as all of these are over 18 metres. While we welcome these changes, they do not go far enough. We need a total ban (with retrospective application) on all combustible and limited combustible cladding and other flammable and toxic materials being used in any parts of a building where they would not adequately prevent fire, smoke and toxic gas from spreading through all multi-occupied buildings over 11 metres high or where the main occupiers are unable to independently escape from a fire. We also need a total future ban on all combustible and limited combustible materials being used in cladding and any parts of all buildings where they would not adequately prevent fire, smoke and gas from spreading.

The need for sprinklers

Sprinklers are probably the most effective available method of retrospectively improving fire safety in older blocks of flats and would have undoubtedly saved lives in Grenfell Tower: as the Chief Fire Officers Association (CFOA) has stated, sprinklers have almost eliminated fire deaths and have massively reduced damage to health and property by controlling a fire after five minutes, and reducing smoke density and toxicity. Yet sprinklers are still only required in new residential buildings over 30 metres in height. In contrast, since 2005, in Scotland sprinklers have had to be fitted to any new building above 18 metres and in Wales all new or refurbished residential buildings have had to have them. The law in England must therefore urgently change to ensure that sprinkler systems are mandatory in all new and existing residential care homes, purpose-built residential apartment blocks, single-family homes converted into flats (‘houses in multiple occupation’ – HMOs), and all housing featuring open-plan layouts that provide insufficient compartmentation to prevent the spread of fire and smoke.

Ending stay put as the default and only evacuation strategy

The stay put system is at the heart of England’s building regulations for blocks of flats in occupation. Stay put rests on crucial assumptions about the building’s design and management, its occupiers and the local fire-fighting capacity. These include: that the compartmentalisation of a building is good enough to prevent the spread of fire and smoke until firefighters have safely extinguished a fire; that there is only one fire in one compartmentation at any one time as the dry riser in a high-rise buildings will only have the capacity to feed the water to fight one fire at a time; and that the fire crew can arrive quickly and quickly get water onto the fire. The sanctity of stay put explains why sprinklers and audible communal fire alarms to warn residents that there is a fire in the building and they should evacuate are also not mandatory in high-rise flats. However, many of the facts on the ground that once made those assumptions logical and reliable have changed. We are seeing growing numbers of fires that have affected multiple flats on multiple floors, and some with fatal consequences indicating catastrophic compartmentation failure. The government’s own fire data clearly illustrate that the failure of compartmentalisation is far more frequent: over the last 8 years it has happened on average every three weeks in blocks over four storeys. 20 years ago it used to take 15 minutes for a fire to engulf an average living room, but due to the amount of plastic and other combustible materials in our homes, it now takes 5 minutes. 20 years ago it took 10 minutes on average from the 999 call being made to fire fighters being at the front door of the flat in question with a hose full of water – it is now 25 minutes because of 25% reduction in fire fighters, closures of nearby fire stations and changes to firefighting procedures. The front doors of flats by law only have to have a minimum of 30 minutes resistance to fire and smoke – and we now know that there are major concerns as to the reliability of the fire doors that have been fitted over the past decade. The cuts to council’s housing departments and the growing commercial pressures and for-profit motives of the wider housing sector mean that in general there is poor to no management of blocks of flats to prevent parking on fire hydrants, to check that dry risers are working, and that combustible materials or physical obstacles to escape routes are not being left. In other words, we are now on the very edge of the limits of stay put and it can no longer be relied on as the default and only evacuation strategy. Should a fire spread to other compartments or another fire is started in the building, the fire brigade will not be able to safely fight the fire with people staying put or be able to safely evacuate them. If residents at Barking had not self-evacuated, it is likely that many would have died. Indeed, residents no longer have any faith in the stay put guidance and will self-evacuate the moment a fire is detected.

The law needs to change to replace ‘stay put’ as the default evacuation policy in residential blocks of flats with the legal requirement for every multi-occupancy residential building to have its own suitable evacuation strategy should stay put fail that takes into account how to support residents who cannot self-evacuate. Evacuation strategies are a logical back stop that might be used rarely, but might also save dozens if not hundreds of lives in the event of unexpected fire growth, or other unforeseen circumstances. The accountable person (owner or landlord) must be required to install fire detection and audible alarm systems in both individual flats and communal areas. Multi-sensory technology will reduce false alarms and provide very useful operational information to improve the safety of firefighters, such as where the fire is (spreading), where the smoke is and where it is flowing to, all critical to protect the means of escape. Landlords should also be required to have fire drills with residents. Residential landlords in Singapore are required to have 10% participation in an annual evacuation practice, it is reasonably explained to participants that they're encouraged to act as fire wardens in the event of an evacuation so as to bring confidence, calmness and order to the process.

Second means of escape

In residential high rise where there is a single means of escape stairs it is quite clearly the most important room in the building and firefighting operational procedures should protect it, at all costs. We are the only country with building codes that permit high rise residential blocks to have single means of escape. This issue lies at the very core of many of the conflicts between it being a means of escape for occupants and a means of access (and place of work) for firefighters. We note that from October 2019 they will be outlawed under Scotland's new regulations. It is high time we followed the logical approach adopted globally and settled for no less than two stairs. All new buildings over 11 metres in height should have a second staircase as a means of escape, and be retrofitted wherever possible.