‘Hundreds of blocks have been identified as at risk, and work on the vast majority of these has not yet started, in some cases because of disputes over who should pay.
‘In this context, the decision on 13 March of the First Tier Tribunal (Property Chamber) in the Citiscape case is critical. The central issue in the case was the question of who should be responsible for paying for the removal and replacement of cladding found to be unsafe after Grenfell –the leaseholders who owned the individual flats, or the owner of the building, Proxima GR Properties?
‘If it was an inherent defect, Proxima GR would have to pay, while if the removal and replacement was part of the ongoing maintenance of the building, then the owners of the individual flats were responsible. The tribunal found that the cladding constituted maintenance, finding that the costs fell on the leaseholders, who now have to find the money to pay the estimated £2.4m bill.
‘It is hard not to feel sympathy for the leaseholders who could not have known that the exterior of the building they bought a flat in would subsequently be found to be unsafe, and that they would have to pay to make it good. The ground has shifted underneath them in a way which it would have been virtually impossible for them to predict.
‘Whether they can make a claim to cover their costs or not, each is now stuck with an initial bill of £31,300 to ensure their flats are safe again.
‘How many others are in a similar position? In January, the Ministry of Housing, Communities and Local Government announced they had identified 312 buildings with cladding similar to Grenfell across the UK, with 299 which are ‘unlikely to meet current Building Regulations guidance and therefore present fire hazards on buildings over 18m’.
‘The likelihood is that there are therefore a significant number of leasehold households across the UK who are affected and may have to foot the costs of dealing with the failures in regulation which caused so many deaths at Grenfell Tower, although whether each individual household will need to pay will depend on the terms of their lease.
‘And cladding is just the start of it. Other major and minor works to ensure fire safety in these blocks, or other blocks, might be required. An example is Lakanal House, where it was not only the exterior of the building which contributed to the deaths of six people. Internal modifications to the building which occurred when it was refurbished meant that the essential fire safety feature of compartmentation was breached (meaning fire could spread swiftly from flats to common areas or other flats). Putting right breaches in compartmentation could also cost leaseholders.
‘Similarly, as the Shelter report Health and Safety at Home by Helen Carr, Dave Cowan, Edward Burtonshaw-Gunn and myself highlighted, the safety of doors in blocks of flats is critical (and the regulation of that safety is astonishingly poor). Worryingly, some respondents to our consultation highlighted concerns with their doors. This concern is only increased by recent findings that some fire doors in Grenfell Tower were not as fire resistant as they were required to be. Non-fire resistant doors can also constitute a breach of compartmentation, and as such, the issue clearly needs urgent investigation and rectification, but who should pay?
‘A critical perspective on this might well point to Government policies over the past 40 years to promote home ownership, from Right to Buy to shared ownership schemes to Help to Buy, and suggest that as individuals have taken on the risk of property ownership, they ought to bear the costs of it. Crudely put, if you accept the possible benefits of governmental support for private ownership, you ought to take the hit when it goes wrong.
‘Except that this isn’t how it goes when deregulating and liberalising policies go wrong – witness the bailout of the banks. And in this instance, it should not be how it goes.
‘Interestingly, the situation faced by this group of leaseholders is similar to that faced by Right to Buy purchasers who had bought defective premises in the 1980s. In these instances, concerned to protect the policy, the Government provided particular legislative assistance.
‘A key difference between those properties and the current situation is that those properties were deemed to have a defect by virtue of their design and construction, while the decision of the tribunal rejects the contention that the removal and replacement of cladding is a design and construction issue.
‘However, the similarity between the cases is clear – it was the state’s regulation which failed, and meant the state was faced with a fundamental challenge to the policy of home ownership, which it resolved by shifting responsibility away from home owners. They should do the same in this case, not simply for cladding, but for all costs associated with making homes safe as a result of the failure of regulation exposed by the deaths at Grenfell Tower.’
Dr Ed Kirton-Darling is a Lecturer in Law at Kent Law School, University of Kent. His research interests include the law relating to inquests and inquiries, and housing/homelessness law. He is writing in more detail on some of these issues including Right to Buy, the fire at Lakanal House and fire safety regulation in blocks of flats, in his chapter ‘Safe and Sound: Precariousness, Compartmentation and Death at Home’ in the upcoming book Law and the Precarious Home: Socio-Legal Perspectives on the Home in Insecure Times