Written evidence submitted by Dr Stuart Hodkinson, School of Geography, University of Leeds and Phil Murphy, Manchester Sustainable Communities [BSB 421]

About the authors

Stuart Hodkinson is Associate Professor of Critical Urban Geography at the University of Leeds. His most recent book is Safe as Houses: Private Greed, Political Negligence and Housing Policy after Grenfell (Manchester University Press, 2019). It charts residents’ experiences of unsafe and unaccountable housing regeneration and refurbishment under the Private Finance Initiative. The book concludes that the only way to end the era of unsafe regeneration and housing provision is to strengthen safety laws, create new enforcement agencies independent of government and industry, and replace privatised provision with a new model of public housing that treats the provision of shelter as ‘a social service’ democratically accountable to residents. For more information, see www.safe-as-houses.org

Phil Murphy is an independent high-rise residential safety expert advising landlords and responsible persons in relation to fire safety management of tall residential buildings. He is a former firefighter and Fire Prevention Officer responsible for enforcement with Greater Manchester Fire and Rescue Authority (1997- 2009). He studied Fire Engineering (Tech IFireE) before entering the private sector where he worked for ten years managing compliance, health and fire safety across national portfolios of large complex buildings as a Complex Building Compliance Manager, and a National Health and Safety Manager for a large PLC with responsibility for the safety of tens of thousands of people in their workplaces. He recently was the principal technical author of MHCLG’s high rise addendum to the HHSRS. Having also been a resident in three separate high rise blocks of flats Phil Murphy has campaigned ceaselessly for improvements in fire safety and fire safety management of tower blocks.

Disclaimer: the views expressed in this document are those of the authors and do not represent the views of any other organisation

Introduction

This is a jointly-authored submission of evidence to the Housing, Communities and Local Government Committee’s Inquiry on Pre-Legislative Scrutiny of the government’s draft Building Safety Bill. It brings together our different expertise on the governance of housing safety, and draws on the views and experiences of approximately 100 representatives of residents groups who attended two workshops in London on 19 and 20 July 2019, and an online discussion forum on 3 September 2020 that we organised to inform residents groups about the government’s proposals for reform following the 2017 Grenfell disaster and gauge their perspectives. These events were part of two ESRC Impact Acceleration projects funded by the University of Leeds in collaboration with a number of housing and resident campaign groups.[1]

Our submission assesses the draft Bill against the government’s stated policy objectives in relation to: accountability; residents' voice; enforcement and sanctions; and the regulatory system. We have included a summary of our points in section 1.

1. How well does the Bill, as drafted, meet the Government's own policy intentions?

The government commissioned Dame Judith Hackitt to carry out the Independent Review of Building Regulations and Fire Safety in July 2017. The terms of reference were: to examine the current regulatory system for all buildings, and to make recommendations for reform with a particular focus on multi-occupancy high-rise residential buildings. Hackitt reported in May 2018, and the government issued its own proposals that largely built on Hackitt in April 2019 that now form the basis of the draft Building Safety Bill.

Overall, we believe that, as proposed, the new regulatory framework for building safety threatens to undermine real change and the Bill risks generating new regulatory failures on top of the existing ones.

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 creation of 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;

●       the creation of a residents panel of resident representatives to advise the Regulator and a direct route to the Regulator that residents can access when their safety concerns are urgent or have not been satisfied through an internal complaints process.

However, there are many aspects of these proposals that either lack sufficient detail, do not go far enough, are not going to work as currently conceived, or represent a significant watering down of the government initial response to Hackitt in 2019.

In summary we believe:

●       The current proposed scope of building types and height is far too narrow and lacks a coherent rationale or evidence base. A threshold of 18 metres or more than 6 storeys does not reflect either the stark reality of potentially tens of thousands of unsafe residential buildings of all heights, or standard fire fighting and rescue capacity using 13.5 metre ladders with respect to buildings of height enveloped in combustible materials and lacking effective compartmentation. There is also a confusing and unjustified decision to exclude a host of residential buildings that are clearly higher-risk including prisons, hospitals, hotels, and care homes. We propose a standard mandatory height of 11 metres and the inclusion of buildings of any height that pose unusual and higher fire safety and structural risks from the outset such as timber-frame built care homes.

●       There have been significant dilutions in proposed enforcement and sanction mechanisms from the original consultation. A major roll-back is the removal of the stipulation that occupation of a new building can only commence once a building certificate has been issued by the Regulator following a review of the Accountable Person’s safety case for that building including how residents will be kept safe in event of a fire. Instead, occupation will now trigger an application for a Building Assurance Certificate. So the incentive to get safety right first time is now watered down to ‘as soon as reasonably practicable’ while finance flows to the developers and building owners. This must be reversed and the original proposal reinstated.

●       There are insufficient mechanisms to ensure residents are listened to and empowered in the safe management of their homes and buildings. This is made clear by the u-turn over Section 38. We find it incredible that the government has decided to repeal rather than bring into force Section 38 of the Building Act 1984 that would allow residents to bring damages claims for death or injury when there has been a breach of building regulations. We are also shocked at the government’s flagrant misrepresentation of consultation responses on this issue, which, it claims, offered “no support” for Section 38 when numerous respondents - including the present authors - submitted in favour.

●       The proposed funding model for the building safety system is grossly unfair. As currently drafted, leaseholders will be left with an unlimited financial liability for building safety works and services. This will likely destroy any prospect of residents being able to sell their homes in the future even once remediated. Meanwhile, the government and freeholders - the building owners and superior landlords - are left relatively untouched. So residents will be bankrupted with potentially disastrous mental health and family life effects to pay for the new system that is supposed to be about keeping them safe. This proposal must be removed and replaced with a government funded solution for the full remediation of all existing unsafe buildings, and a fairer funding system for new builds that sees leaseholders liabilities capped and much greater contributions from developers, freeholders and industry.

●       The continuing failure to bring in stronger building and fire safety regulations is being combined with a clear push back by industry, landlords and fire service chiefs against the Grenfell Inquiry’s Phase 1 recommendations on evacuation through the commissioning of new guidance for fire risk assessors and building managers that is designed to keep the status quo in place and deny residents the right to be able to evacuate unaided from a tower block on fire.

2. Does the draft Bill establish an appropriate scope for the new regulatory system?

No. In our view, the draft Bill does not establish an appropriate scope for the new regulatory system of higher-risk buildings. The government’s proposal is for the new regulatory regime to encompass the following:

A building which satisfies the height condition and contains:

a) Two or more dwellings (i.e. house, flat or serviced apartment);

b) Two or more rooms for residential purposes (e.g. supported accommodation), or

c) Student accommodation.

Where:

1) The height condition is that:

a) The floor surface of the building’s top storey is 18 metres or more above ground level (ignoring any storey which is a roof-top plant and machinery area or any storey consisting exclusively of plant and machinery rooms); or

b) the building contains more than 6 storeys (ignoring any storey which is below

ground level).

And

2) “Room for residential purposes” means a room (other than in a dwelling) which is

used by one or more persons to live and sleep but excluding a room in:

a) A residential care home;

b) Secure residential institution (e.g. prison, detention centre);

c) Temporary accommodation (e.g. a hotel, hostel, guest house, hospital, hospice).

In our view, both the height threshold and the types of buildings to be included need to be significantly re-thought and far more detail provided on how existing buildings - which are the buildings that pose the most risk to human life - will be brought into the new system. We take each in turn.

2.1. Height

The Hackitt Review proposed that the new regime should start at 10 storeys or more - approximately 30 metres - for multi-occupancy residential buildings. Hackitt justified this height threshold on two grounds: first, that the most stringent existing fire safety requirements for multi-occupancy residential buildings as laid out in Approved Document B begin at 10 storeys and above; and that rates of fire and fire-related fatalities are statistically much higher for purpose-built residential buildings of 10 or more storeys using data from 2010 to 2017.[2]

The Government’s initial proposals in response to Hackitt set out a two-tier system for high-rise residential buildings: tier one involved planning applications of new or existing buildings of 30 metres or higher; and tier two governed all construction, refurbishment or occupancy of new and existing buildings of 18 metres or higher.

The Draft Bill correctly removes this two-tier system and defines the height threshold as starting at 18 metres or more than 6 storeys. The government’s main justification for an 18 metre cut-off is evidence of higher rates of fire in blocks over 18 metres compared to blocks of any height – 43 fires per 1,000 buildings between 18 metres and 30 metres compared to 9 fires per 1,000 buildings – over September 2012 to September 2018.5

However, in our view, an 18 metre/over 6 storeys height threshold does not make any sense from either a modern firefighting perspective or from a building safety perspective for several interconnected reasons.

First, as is now clear from the life-threatening fire safety defects and other structural problems afflicting thousands of buildings over 18 metres, and potentially tens of thousands of buildings under 18 metres, we cannot base inclusion and exclusion from a building safety system on the point at which the existing regulatory system draws the line when that system has demonstrably failed in such a spectacular way.

Second, and following on from this, a height-only threshold tells us nothing about which buildings actually pose a higher risk of casualty or death. It wrongly assumes that height is the only risk variable. Yes, taller residential buildings are statistically more likely to have fires and related deaths that required fire service attendance than shorter buildings. However, that is primarily because there are more people living in these buildings, increasing the probability of fire as the height increases. A higher probability of having a fire that requires fire service attendance does not necessarily make high-rise buildings higher-risk.

Risk of injury or death from a building fire relates to, inter alia, the building’s type, age, location, accessibility, design, construction, use, and history of repair, maintenance and alterations, the type and number of occupiers, in situ fire safety measures, who the building owner or manager is, and local fire and rescue capacity. When these and other factors are combined, we need to ask the following key questions:

●       are residents safe to remain in their flat or another part of a building on fire?

●       are residents able to safely evacuate unaided from a building on fire?

●       can the fire brigade successfully fight a fire and rescue those at risk from injury or death?

These critical issues certainly depend in part on the building’s height, which we explain below, but they equally depend on: the effectiveness of the building’s compartmentation, whether there is an adequately protected means of escape for all residents, the presence and condition of fire fighting technology such wet and dry risers and evacuation systems, and the fire fighting capacity of the fire brigade. For some or all of these reasons, a building of 3 storeys could easily be more dangerous than a building of 30 storeys.

In deciding where the new regulatory system should draw the line on height, it is useful to understand where the current 18 metre height threshold originates from for more rigorous fire safety requirements to residential and other buildings as set out in Approved Document B to the Building Regulations.

This 18 metre threshold 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, which was enshrined in the 1962 British Standard Code of Practice CP 3. These fire fighting limits are important: once the fire brigade cannot fight a fire and rescue trapped occupiers from outside, it must do so from the inside, and this threatens to undermine residents’ protected means of escape with fire fighters blocking the stairs, propping open doors and causing the stairs and lobbies to become smoke-logged.

Based on that principle, CP 3 set a height of 80 ft. (24.4 metres), which was the maximum distance a fire fighter could reach using two portable ladders strapped to each other with rope. Building above 80 ft. would therefore need to have more restrictive fire safety precautions. Over time, the height threshold was lowered to 18 metres to match the reach capability of wheeled escape ladders. Since at least the Building Regulations 2000, buildings with a storey 18 metres or more above ground level have had to comply with stricter requirements governing the use of combustible materials and and cavity barriers in externals walls, as well as protections for stairs, corridors, and lobbies, and other requirements such as escape lighting and fire fighting equipment.

Yet 18 metres is no longer a tenable threshold for fire-fighting as today most fire brigade appliances only carry 13.5 metre ladders, which reach up just four storeys on average. 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 normally reach four storeys. Fire services do have access to longer ladders such as turntable ladders that can reach to 32 metres, but these usually have to be requested by incident commanders to be brought to the scene of a fire from where they are being stored.

An equally important factor underpinning the historic trajectory of height thresholds has been the requirement stipulated in building codes dating back nationally to CP3 1962 and carried forward in subsequent Building Regulations for a high standard of compartmentation in purpose-built multi-occupancy residential blocks of flats. Compartmentation is the act of subdividing a building into smaller compartments of walls and floors using fire resistant materials in order to control and slow the spread of fire and to create safe, protected means of escape. We use the term “catastrophic compartmentation failure” to refer to incidents of fire in blocks of flats where fire has spread beyond two floors. Once fires get out from one compartment and spread to other floors, both fire fighting and resident evacuation becomes far more challenging.

Grenfell was an extreme example of catastrophic compartmentation failure in which the combustible cladding and insulation combined in disastrous ways with poor quality of workmanship, failures of fire-stopping, and other combustible materials to fatally compromise the building’s original fire-resistant structure, fuelling the spread of fire, heat, smoke, and toxic gases to different flats and escape routes in the building.

While Grenfell has been framed by some as a one-off exceptional event, evidence shows that this is far from the case. There have been at least 18 high-profile fires to residential blocks over the past 34 years. Most involve significant fire spread either on the outside of these buildings via some form of combustible materials or due to catastrophic compartmentation failure within the building, affecting multiple flats on multiple floors, and some with fatal consequences.

Table 1: Residential block fires with external facade and catastrophic compartmentation failures

The government has signalled that part of its justification for an 18 metre threshold is that it  aligns with its ban on combustible materials brought in from 21 December 2018 to outlaw combustible cladding and other materials in external walls on all buildings 18 metres or higher in England that contained one or more dwellings. The ban included institutions (a hospital, home, school or other similar establishment used as overnight accommodation for persons suffering from disabilities or under the age of five years), as well as residential schools, care homes and hospitals, sheltered accommodation, student residences or other institutional accommodation blocks. However, hostels, hotels or boarding houses are excluded, unless they are converted into residential accommodation, such as student housing.

However, as is clear from Table 1, in recent years there have been growing numbers of dangerous facade and structural fires involving catastrophic compartmention failure on residential buildings below the proposed 18 metre / more than 6 storey threshold. The devastating fire (9 June 2019) at Samuel Garside House in Barking involving timber-clad balconies. As a 6-storey block, 13.75 metres tall, the building would therefore have been excluded from the new system. Yet fire expert, Sam Webb, stated 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’.[4] Again, as at Grenfell, the fire safety issues were not just about the cladding as 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.

Following the Barking fire, the government instructed building owners and residents in multi-occupied blocks to remove combustible materials from balconies irrespective of building height as soon as practicable. However, it is currently not known how many buildings this affects and the progress of fire risk assessment and remediation. 

Moving beyond cladding and external facades, there is incontrovertible evidence that catastrophic compartmentation failure is a regular occurrence in multi-occupancy residential accommodation blocks of all heights.

Official Home Office fire incident data clearly shows that between 2010-11 and 2018-19 in England, there were 191 fires in purpose-built flats of four floors or more (around 13.5 metres or higher) that spread to more than 2 floors; 60 of these were in buildings 10 floors or more (30 metres+). In other words, a catastrophic compartmentation failure every 17 days on average - with every third incident affecting a high-rise building. This data almost certainly underestimates the number of compartmention failures as it does not capture toxic smoke and gas spread.

We make this point to illustrate that catastrophic compartmentation failure occurs periodically to buildings beyond the safe working height from a standard fire rescue ladder of 11 metres. Yet these higher-risk buildings will be excluded from the new building safety system if the height threshold remains 18 metres.

The contradictions of the government’s current position were made very clear in its decision to make 11 metres the new height threshold for the mandatory introduction of sprinkler systems across England for new buildings and those subject to relevant refurbishments. In justifying this move from 30 metres to 11 metres, Robert Jenrick, Secretary of State for MHCLG also made the case against 18 metres:

“We saw in the Bolton fire [a student housing block caught fire in November 2019], where the building was 17.6 or 17.8 metres high – just a matter of centimetres away from the 18-metre threshold – that height alone was simply too crude a measure and that building safety needs to be proportionate to the building.”[5]

In reality, there will be thousands of existing blocks of flats of any height with potentially serious safety failings. Nowhere is this clearer than the government’s ‘consolidated guidance’ that replaced all of the advice notes on 20 January 2020 and caused buildings under 18m to require an EWS1 to prove they had safe external wall systems.[6] Some of the blame for these safety faults lies with the current regulatory system. Loopholes in the existing building regulations mean that there will be many blocks whose fire safety measures only conform to the codes when they were built and not the current regime.

More significantly, the vast majority of existing buildings will not have had vital aspects checked by properly qualified fire engineers or safety inspectors since at least April 2006 when the Regulatory Reform (Fire Safety) Order (FSO) 2005 went live. This is because the FSO abolished the fire brigade’s statutory role under various pieces of legislation in performing annual fire safety checks and issuing fire certificates for all non-single occupancy domestic dwelling (with the exception of HMOs) and other public and commercial buildings. Instead, the FSO brought in a self-regulated system in which building owners, landlords or managing agents are under no specific obligation to conduct fire risk assessments in a given time period and can employ their own unregulated fire risk assessors. The Fire Protection Association reported in 2018 that just under two-thirds – 500 – of the 800 fire risk assessors operating in the UK were not registered with accredited bodies.[7]

Fire safety failings have been exacerbated by austerity, with the number of fire safety inspections in tower blocks falling by 25 per cent in the five years up to 2017 following huge cuts to stand-alone fire and rescue authorities.[8] The FSO has also restricted the scope of a fire risk assessment. Pre-2006 legislation provided for fire brigades to have a fire certificate for each building they were responsible for checking that would be more like a booklet full of important information about that building, its fire safety measures and if any major works or alterations had taken place. Each year the fire brigade would compare their version with the building owner’s version to check for any alterations, and they had powers to not only inspect the common parts of a multi-occupancy building but also individual dwellings if they suspected an imminent threat to life potentially existed. The FSO abolished the duty on the building owner to maintain a fire certificate file or notify the fire brigade of any major alterations, and restricted the scope of fire risk assessments to the common parts only.

The FSO has created a dangerous regulatory blind spot in preventing fire risks present in commonly used parts to buildings not accessible from common areas but instead from individual flats being inspected. These include the walls and ceilings between flats which act as the main compartment barriers, and full height service risers containing pipes taking bathroom and kitchen waste out of the building or supplying communal heating and ventilation to all flats in a building. Over the years, landlords, contractors and residents will have made alterations to flats - in some cases to all flats - that may have compromised compartmentation. But the FSO does not allow or require anyone to check these areas or indeed more generally inside flats for penetrations through compartment barriers that were added during such a refurbishment (an example being the addition of a new downpipe that runs the full length of the building through every kitchen) without the required fire stopping.

2.2. Type of building

In addition to a height threshold, Hackitt proposed that higher-risk multi-occupancy residential buildings be the primary focus of the new regulatory system but opened the door to other buildings to be included. The government’s consultation sought views on this. The Draft Bill (Clause 19) includes houses, flats and serviced apartments, supported accommodation and student accommodation but excludes residential care homes, secure residential institutions such as prisons and detention centres and temporary accommodation such as hotels, hostels, guest houses, hospitals, and hospices.

We support the building types that have been included but, for many of the same reasons that relate to the height threshold, we do not agree with the proposal to exclude other residential buildings from the new regulatory system.

First, there is no rationale presented for excluding other multi-occupied residential buildings such as care homes, prisons, detention centres, hotels, and hospitals. This suggests an assumption is being made that these buildings are somehow not higher-risk and are much safer for their occupiers in the event of fire. But there is plenty of evidence that this is not true and it is widely recognised in the wider fire safety community that all buildings with a sleeping occupancy carry specific risks related to the fact.

Second, official government data presented in Annex B to its 2019 proposals shows that Prisons are by far the most dangerous places to work and reside with over 5000 fires per 1000 buildings between September 2012 and 2018, of which 1473 fires per 1000 buildings involved deaths or hospitalisation, followed by Hospitals (263 fires per 1000 involving 48 deaths or hospitalisation) and Supported/Sheltered Housing (158 fires per 1000 with 61 deaths or hospitalisations).

Third, residential care homes and hotels are increasingly understood to present serious fire-risks following several high-profile fire disasters (see Table 2).

A London Fire Brigade audit in 2019 found fire safety ‘failures’ in over half of the 177 care homes it visited with one in three premises having ‘inadequate or poorly maintained fire doors’, while there was also ‘widespread’ confusion about fire evacuation strategies. In turn, fire risk assessments (FRAs) were being carried out by people ‘without the proper skills and experience’. Another finding was that roofs were being ‘omitted’ from FRAs, despite roof voids often increasing the ‘spread and severity’ of fires, with LFB ‘so concerned’ that it has written to every care home in London ‘demanding’ that they ‘urgently review’ FRAs, emergency plans and staff training.[9]

Table 2: Devastating fires to care homes and hotels

Fourth, construction defects and fire safety management issues have also engulfed hospitals with self-regulating PFI contracts often implicated.[10]

Fifth, the government’s own combustible ban since December 2018 appears to acknowledge the dangers of the buildings it wants to exclude from the new system as the ban includes care homes and hospitals. Why are these buildings included in the combustibles ban by height but excluded from the new regulatory system by type? If supported accommodation is deemed a higher-risk building to be included in the new system, then we cannot understand why care homes, hospitals and hospices are not given that these are where significant numbers of residents will not be able to self-evacuate in the event of a fire and are more prone to fatal consequences resulting from burn injuries due to age and may be quickly overcome by smoke and poisonous gases.

Proposal for an alternative scope

Instead of 18 metres/6 storeys, our suggested starting point is that 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 fire- fighting 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 multi-occupancy residential buildings where people sleep overnight - there should be no opt-outs. We would also propose that certain higher-risk buildings where residents are unable to self-evacuate are brought in from the outset irrespective of height such as prisons, care homes and hospitals.

Over time, the new regulatory system should extend to all residential buildings. As Hackitt identified, the existing regulatory framework for all buildings and building work needs fundamental reform. Government should not, therefore, create a two-tiered system where some multi-occupied residential buildings above a certain height and their occupiers are subject to a more stringent and transparent regulatory regime, and all other buildings and their occupiers must languish in the present failing system. Instead, the proposed new system should catalyse and inform reforms to the rest of the regulatory framework.

2.3. Existing buildings

We completely agree that the new system should apply to both future and existing buildings and we welcome the proposal that the Accountable Person will have to register existing buildings in occupation and then apply for a Building Assurance Certificate.

However, the draft Bill risks creating a potential two-tier safety compliance system for regulating works to new and existing higher-risk buildings. The original proposals stated that existing buildings undergoing ‘significant major refurbishment’ would be subject to the same Gateway system as for new builds. Yet, the explanatory notes to the draft Bill state that there will be a separate refurbishment process for existing buildings with language to suggest that the regulatory requirements will be different. No rationale for this change has been provided.

We would caution that any kind of refurbishment can render a high-rise building unsafe, even just replacing the front doors to flats or installing a satellite dish. 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. While there will be different safety considerations, they should be treated in the same way in their compliance with building regulations and should be included in the Gateway System.

3. Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety?  Are the sanctions on those who do not meet their responsibilities strong enough?

We believe that overall the new system will be a major improvement upon what currently exists, but the devil is in the detail and at the moment there is very little detail about how the system will actually operate in practice.

3.1. Dutyholders

We support the creation of a dutyholder regime that sets out legal responsibilities on different people and organisations during the life-cycle of a building. We further agree that the duties set out for dutyholders are the right ones. However, we believe the dutyholder regime would be strengthened by adding a named Fire Engineer who would be contracted by either the client or the Regulator at the outset of a development and would stay with the project all the way through to the construction and occupation of the building and be legally responsible for ensuring that from concept, design, plans, construction and occupation the building is fire safe. This is because dutyholders can change during the period that they are responsible for fire safety. It is common for Principal Designers and Contractors and their sub-contractors to be replaced during different phases of the life-cycle or even for some of these roles to be merged. So there is a need for someone with fire engineering expertise to be continuous throughout the design and construction phase.

3.2. Gateways

The proposed Gateway system does offer to create a better way of ensuring fire safety is embedded in the design, construction and refurbishment of high-rise buildings through a more transparent and clearly defined set of stages that will be scrutinised by regulators.

The application for planning permission is the most appropriate mechanism for ensuring developers consider fire and structural risks before they finalise the design of their building. It would enable the planning authority, the public and the fire service to scrutinise these issues at the earliest possible stage in a proposed development before full building design takes place. It is vital that a development is not given planning permission without these issues being properly scrutinised. Planning permission immediately increases the value of the land and development in question, so making this windfall harder to gain would act as a powerful incentive on the landowner to ensure fire safety is adhered to. It is also important that the general public can find out that a building is being proposal with materials still deemed unsafe on fire and toxicity grounds even if they are not unlawful and make their voices heard on that matter.

We fully support the proposal for a ‘hard stop’ where construction cannot begin without permission to proceed from the Regulator. No building or refurbishment should begin until the Regulator is satisfied it will be built safely and safely built. As the resulting delays to construction will cost money and disrupt the development pipeline, this should also incentivise the client to properly manage safety considerations in the design process.

We fully agree that the Regulator should be able to require work carried out without approval to be pulled down or removed during inspections to check building regulations compliance. This is not just an important deterrent and penalty for non-compliance; it is also key to ensuring a safe building. The potential cost and delays of this will concentrate the minds of the client and contractor to do the things right the first time.

We fully agree that the Regulator should be able to prohibit building work from progressing unless non-compliant work is first remedied. This is the only way of ensuring that the reasons for non-compliance can be established and an improvement plan is put in place so that it does not happen again. Allowing work to carry on whilst investigating could be allowing more non-compliant work.

3.3. The Accountable Person, the Building Registration system  and the Safety Case

We support the creation of an accountable person in law for fire and structural safety of every individual building who must apply for a Building Assurance Certificate and evidence continuing compliance with its core conditions of fire safety management.

However, we are deeply concerned that the government has watered down its previous proposals for ensuring new building safety before occupation.

The original proposal was that the accountable person must apply to register the new building, provide a satisfactory safety case and meet additional requirements (if necessary) before a building certificate could be issued and the occupation of a new building could commence. This made complete sense from a regulatory compliance and accountability perspective: at the point prior to a building being declared ready for occupation, the client’s financial stake in the development is arguably most at risk. So making them accountable for fire safety at this point with the threat of not being able to use or sell the building represents an important sanction. Furthermore, the government had also proposed that it would be an offence for the accountable person to allow a building to be occupied before they have been granted a registration for that building. Registration would mean that the dutyholder has satisfied the Regulator’s conditions on fire and structural safety in occupation. Ignoring this process could put lives at risk and the absence of a criminal sanction for doing so would empower the owner / landlord to disregard the law.

Regrettably, both these requirements and thus sanctions have been quietly removed from the Draft Bill. Instead, the Accountable Person is now only required to have registered with the Regulator and applied for a building assurance certificate before occupation can begin. Occupation will then trigger the requirement for the Accountable Person to start the fire risk assessment and safety case process. It will now only be an offence to allow occupation before having registered with the Regulator.

This watering down of the original proposals appears to have been done in order to allow the partial occupation of a new building or development so that finance can flow to the developer. In our view, a building’s fitness for occupation can only be judged when it is finalised and there are so many aspects of a building as a system that need to be assessed before it can be declared safe. Why take the risk if resident safety is to be at the heart of the system?

We agree that a safety case should be subject to scrutiny by the Regulator before a building assurance certificate is issued 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, we are concerned that there is no mention in the draft Bill of how often and with reference to what guidance the safety case will be produced and updated by the Accountable Person and reviewed by the Regulator.

In our view:

●       It is vital that the safety case review is not a desk-based sign-off of paperwork but involves 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 be ultimately signed off by the building insurer who will have a vested interest in properly checking for compliance with laws and regulations.

●       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, as well as before and after authorised alterations.

While we support the system applying to existing buildings already in occupation, it is very unclear how retrospective the new system will be. There is no definition or suggested timeframe for a ‘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. But this requires more thought about how historic / existing building regulations will apply to this system. Will the Regulator be seeking compliance with the regulations in force at the time of the planning application / full design plans or new regulations brought in at a later date? We are concerned that the language here is very slippery – the focus is on new buildings yet to have even been put through the planning system when the real and present danger is the existing built stock.

In our view:

●       the Regulator should require existing buildings to be brought up to the latest regulations where physically possible

●       given that existing buildings that have undergone refurbishment pose as much risk – if not more – as new buildings, there must be a much stronger expectation built in to this part of the system that the accountable person must demonstrate an acceptable safety case to the Regulator as soon as practicably possible involving a type 4 fire risk assessment as part of a broader safety regime that requires improving fire safety rather than simply not making it worse, when altered or refurbished.

3.4. The Golden Thread

We fully support the proposal that a golden thread of accurate and up-to-date information about the design, construction and ongoing maintenance of residential buildings operate through the whole lifecycle of a building.

The key dataset for all buildings in scope should be made open, publicly available and free to access. It is vital that current and future residents can easily find and scrutinise key safety information about the building they live or will live in. Withholding this information blights the lives of thousands of residents today that simply want to know how safe the building that their families will sleep in is. Whether this information will be available for non-residents to access is not discussed in the proposals. Nor is there any mention of whether the building register will be open access.

Given that residents will be able to access key information about their building, which would then make that information ‘public’, it seems entirely reasonable that an online searchable version of the register is available free to access. The ability to find out who is registering buildings and who their safety managers are is really important for accountability and transparency in the new system.

3.5. Enforcement

We welcome much of the proposed new enforcement powers for the Regulator and sanctions for failure to comply with building regulations. However:

●       while extending the limits to ten years for bringing criminal prosecutions or making enforcement orders for the correction of non-compliant work is a step forward, we do not believe there should be any time limits at all. The Golden Thread of information and the requirements for legal dutyholders to declare their work is compliant with regulations is going to make it much easier to establish culpability long into the future. Those making this self- declaration need to know they will be liable if caught 10, 20 or 30 years down the road.

●       We are very disappointed that the proposal for bringing into force Section 38 of the Building Act 1984 has been dropped and that this will now be repealed. Section 38 would have provided 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.

4. Will the Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building's safety?

At the moment, we are unable to answer this question due to the paucity of information provided about the proposed mechanisms in the Draft Bill. We certainly found much to commend the broad thrust of the government’s 2019 proposals aimed at giving residents more power and voice in the regulatory system.

In particular, we agree in principle with the approach proposed for the culture of openness and exemptions to the openness of building information to residents. However, we are concerned that the existence of exemptions will open to abuse by the Accountable Person when seeking to hide information from residents and others that could embarrass or bring their reputation into disrepute.

In our view:

●       there must be a presumption that all information in the golden thread should be accessible on request throughout the life-cycle of the building. Residents trust in the building and landlord sectors is at an all-time low. Creating barriers to information about our homes will worsen this situation. The best way of preventing this is to require that the Golden Thread be produced from the outset to be publicly accessible and only the Regulator will be able to redact information on request by the relevant dutyholder. Publicly accessible information should also be written in an accessible way so that any highly technical information and intellectual property that might end up being redacted would still be summarised with a clear explanation of why it has been redacted.

Also missing from the draft Bill and accompanying explanatory notes is the role that democratic resident-led organisations will play in this system. Residents are being treated in these proposals as individuals, but many blocks and communities will have Tenants and Residents Associations of one kind or another. Will they be resourced to play a role here in the resident engagement strategy? How will a resident engagement strategy be developed with residents prior to occupation in new buildings? How will new residents to existing buildings be able to input into the existing strategy?

In our view:

●       Existing tenants and leaseholder associations must be engaged and resourced to play a full role in the resident engagement strategy.

●       The NHF 'Together with Tenants' scheme and MHCLG 'early adopters' are not independent or very reflective of tenants generally since they are both schemes designed by landlords, involving only landlords' preferred tenants.

We do not think there should be a new requirement on residents to co-operate with the accountable person (and the building safety manager) to allow them to fulfil their duties in the new regime. In England, tenants enjoy what is called “the covenant for quiet enjoyment”, which means they’re entitled to live in a property without interference from their landlord, letting agent or anyone acting on their behalf. In normal circumstances, landlords can only access the property by providing reasonable notice and receiving permission to enter. However, tenants are required under the terms of their tenancy agreement or lease to provide information on works carried out to their property and provide reasonable access to the landlord to inspect and carry out necessary works (such as fitting fire alarms) or undertaking fire and structural safety-related maintenance. In an emergency landlords can enter the property immediately. If tenants refuse to give reasonable access, landlords can apply for a court order to be allowed to enter, or serve the tenant with notice of eviction. We are worried that any new legal requirement to cooperate with the landlord on safety issues will simply give the landlord more powers and grounds to bully, intimidate, harass or evict tenants, or the freeholder more power to cancel a lease on forfeiture grounds.

In our view:

●       If a new legal requirement for residents to co-operate with the accountable person and/or building safety manager is to be introduced, new safeguards will be needed to protect residents’ rights.

●       We propose that the Regulator should oversee the use of any legal process so that residents could appeal against any decisions and actions and ultimately seek a Judicial Review against the regulator with residents granted an automatic qualification for legal aid.

It is vital that residents can go direct to a Regulator whose statutory role is to protect life – this would almost certainly have prevented the Grenfell disaster given how residents were unable to get redress for their concerns from what would have been the Accountable Person and Building Safety Manager. However, there are currently no detailed proposals of how residents will be able to contact the Regulator.

In our view:

●       the systems adopted for both internal complaints and escalation to the Regulator need to be hosted, maintained and monitored by the Regulator and integrated with the Golden Thread for each building. This would enable residents to directly report a fire / structural safety concern via a website, a mobile app, telephone, or text message, triggering a regulated process of investigation with mandatory timescales and stages. It should not be residents’ responsibility to decide how serious their fire safety concerns are. They should simply be able to report them via this reporting system and be able to follow their complaint on the system, and enable others to monitor it on their behalf. That reporting system should be hosted and run by the Regulator; the Building Safety Manager would have access to that system for their building(s) and be the first responder (unless it has been directly escalated) as per the internal complaints procedure (which should be the same for all buildings). If the resident then reports dissatisfaction with the response, it will automatically go to the Regulator for consideration. If it is an urgent fire safety concern as defined here, the resident should be able to ring an emergency number of the Regulator similar to a gas leak, a water leak, an electro-hazard or a 999 incident. Residents should also be formally empowered under the Resident Engagement Strategy 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 regardless of whether they are a tenant, leaseholder, sub-lesee, flat-sharer, or any other tenure.

●       Residents should be given the same protections as whistle-blowers so they are empowered to speak out and report their concerns and their evidence of safety failings without fear of retribution. Residents must also be protected from bullying, harassment, revenge eviction and threats of legal action prosecution when they report contractors and the accountable person to the Regulator.

Finally, 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?

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.

5. Is the Government right to propose a new Building Safety Charge? Does the bill introduce sufficient protections to ensure that leaseholders do not face excessive charges and that their funds are properly managed? How should the new Building Safety Regulator be funded?

No, the government is completely wrong to propose a Building Safety Charge on leaseholders. Costs of compliance with the new regulatory system should be borne as follows:

For existing buildings

●       the government should take full responsibility for the regulatory failures of the past and fund all remediation works to make the buildings safe. It is up to the government to recover funds for the taxpayer by raising taxes on speculative development and property investment. Leaseholders should be reimbursed for remediation, insurance and waking watch costs incurred since Grenfell. Once buildings are deemed compliant, leaseholders should be expected to contribute to major works bills and service charges but as part of a new and fairer system of commonhold.

●       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, building materials and component manufacturers, 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.

For new buildings:

●       planning and construction compliance should be paid for by the developer, while the costs of compliance by the Accountable Person for buildings in occupation should be largely their responsibility with a capped amount recoverable from leaseholders.

●       However, 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 by the safety case review process. 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. They are being made to pay for the mistakes of others.

●       Instead, the costs of these failings should be ultimately borne by the relevant legal dutyholder (and their contractors) in the new regime. The main dutyholders should all contribute to a remediation fund (like a tenancy deposit) that could be 10% of the total design and build price and would be deposited with the Regulator for 10 years from which the initial costs of any remediation works could be financed. Ultimate liability would be decided by the Regulator and the non-guilty parties would be reimbursed by the entity found guilty. If a building owner / landlord is found responsible for costs, this should not result in increased rents and service charges for residents.

6. Does the Bill present an opportunity to address other building safety issues, such as requirements for sprinkler systems?

The draft Bill certainly does present an opportunity to address other building safety issues. However, there is very little sign that the government is preparing to introduce such measures. This is a real problem because the new regulatory system is primarily a system of enforcement and we must urgently strengthen the regulations and standards themselves or it will be a huge missed opportunity. The following is a list of urgent reforms that are needed:

6.1. 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. The changes to regulations include combustible materials in window spandrel panels and infill panels, and also apply to balconies – again, in buildings over 18 metres. While we welcome these changes, they do not go far enough, leaving hundreds and potentially thousands of existing high-rise and low-rise blocks of flats, hospitals and schools with combustible materials in the external walls.

We therefore 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.

6.2. 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.

We welcome the government’s decision to change the law so that sprinklers will now be required in new residential buildings over 11 metres in height instead of 30 metres. However, this is not retrospective. 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.

6.3. 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 without a number of additional features such as fire detection systems and sprinklers, designed to provide early warning the in turn provides longer evacuation times, and early suppression that delay and inhibit fire growth, again providing crucial minutes in which to evacuate and to give firefighters time to arrive to a less dangerous firefighting environment. 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 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.

6.4. A new fire risk assessment (FRA) regime

The FRA is the last layer of protection for residents. The criticality of it in larger residential buildings cannot be overstated. A most crucial aspect of FRAs is the completion of the action plan inside it. Enabling scrutiny of FRA and action plans through some simple online training for residents and publishing the FRA documents accessibly, would be highly empowering for residents and build some self-improvement into the system. Landlords procuring FRA providers should stipulate that they expect a 'plain English' approach to FRAs. This would benefit the landlord, their staff, their caretakers, their subcontractors and their residents without any great inconvenience to providers. It would also provide an important uplift in high rise fire safety literacy amongst all of those groups of people mentioned, when reading it. Type 4 FRAs carried out periodically are the only means we have to check if a building is suited for anything but simultaneous evacuation when there's a fire. Any other type only checks part of the building and a none-intrusive FRA would not inspect things like compartmentation and full height risers, sufficiently.

The law should change to require the release of all past and current FRAs and accompanying action plans.

FRA assessors should be licensed by the Regulator and trained to not only recognise the complexities of the fire engineered approach to tall and complex buildings, alongside recognition of specific occupancy factors such as the number of vulnerable people, older people, younger people, people with activity limitations, people receiving varying levels of care indicative of their state of help, disabled people and ability to self-evacuate, particularly those located above 11 metres and thus not accessible using windows and external means such as ladders.

6.5. 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. Approved Document B regards stay put as the default evacuation strategy “based on the principle that a fire is contained in the flat of origin and common escape routes are maintained relatively free from smoke and heat. It allows occupants, some of whom may require assistance to escape in the event of a fire, in other flats that are not affected to remain”.9 In contrast, Approved Document B states that all non-residential buildings, as well as hospitals, care homes, and other institutional settings where people sleep on the premises, a vertical or horizontal evacuation is the default evacuation strategy.

The principle of stay put originated in the 1960s, principally through the publication of the first national building codes for high-rise construction - 1962 British Standard Code of Practice CP 3. It rested on the simple idea that effective compartmentation should contain fire and smoke within the flat of origin adequately and for long enough to enable residents in other flats to either remain in their own flat, somewhere safe in the building or to safely evacuate.

“Owing to the high degree of compartmentation... the occupants should be safe if they remain where they are. Nevertheless, the possibility that individuals may seek to leave the building cannot be overlooked and provision should therefore be made for the occupant of any dwelling to do so by his [sic] own unaided efforts, using adequately protected escape routes within the building without outside assistance.”[11]             

Contrary to what many commentators are assuming, the strategy in those guides was to give residents a choice to stay put or get out by protecting the stairs for use by evacuating residents at any time, including during a fire.

What is critical to understand about this approach is that it rested on crucial assumptions about the integrity of fire resistance in post-war high-rise blocks made from reinforced concrete and local fire-fighting capacity. The most important of these are:

●       that the compartmentation is sound and has not subsequently been breached by building works

●       that there is only one fire in one compartment at any one time or fire-fighting becomes extremely difficult 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 automatic ventilation systems are similarly designed with a capacity to work on only one floor effectively

●       that the fire crew can arrive quickly and quickly get water onto the fire

●       that the dry riser is not faulty

●       that no vehicle is parked on a fire hydrant outside the building preventing the removal of the hydrant lid to get water into the building

●       that there is no leak in the water main nearby, reducing the water pressure below necessary levels

●       that there will be no physical obstacles to getting access to the outside and inside of the building

●       that lifts designed to be overridden by fire-fighters are working to that effect

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.

In the years prior to Grenfell — particularly since the mid-2000s — many of the facts on the ground that once made those assumptions logical and reliable began to change in a deregulated environment. These include:

●       the industrial scale of combustible cladding and other highly toxic synthetic materials, shoddy design and construction work, poor maintenance management

●       the sheer quantity of plastics being used inside our homes: 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

●       the gradual slowing of response times by the fire service: 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 fact that 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.

●       the privatisation of the water industry had led to growing problems of water pressure with companies accused of deliberately reducing water pressure to cut down leakages from water mains – this was allegedly a factor on the night of the Grenfell Tower fire.

In other words, we are now on the very edge of the limits of stay put. The ‘breathing space’, or redundancy, available in the event of fires in high rise blocks for which stay put was originally designed has now gone and there are so many factors in fire-fighting that could go wrong taking us over the edge – blocked access to a site, parking on a hydrant, faulty wet and dry risers, faulty lifts, defective appliances and equipment, and smoke-logging of an only escape route.

Against this background, as we set out in section 2 of this submission, we should be frankly petrified at the evidence in official fire incident data of high frequency of fires in flats that affect multiple floors, a strong indicator of catastrophic compartmentation failure. Over the last 8 years this has happened on average every three weeks in blocks over four storeys.

One of the most significant compartmentation failures took place at the 2009 Lakanal House fire in Southwark that killed six people. Just as at Grenfell, combustible cladding, dangerous refurbishment work, the absence of sprinklers, and poor fire risk management by the local authority landlord were all present. Crucially, so too was the advice of the LFB during the fire to stay put that contributed to the fatalities; those who survived did so by self-evacuating. Lakanal exposed the reality that building alterations and mis-management had rendered stay put ineffective and that there was no strategy in place by the local authority landlord to evacuate the building in the event of a compartmentation failure.

Remarkably, the response to Lakanal by government, national fire chiefs, and the landlord sector — both social and private — was to almost pretend it had not happened. DCLG as it was then commissioned “new definitive legal guidance” on managing fire safety in purpose-built blocks of flats in England. The resulting guidance was published in 2011 by Local Government Association, written by private fire safety consultants, C.S Todd and Associates Ltd, in consultation with the Chief Fire Officers Association and a range of mostly landlord representative bodies (including the National Federation of ALMOs, the National Housing Federation, the Chartered Institute of Housing, the (now dissolved) Tenants Services Authority, the National Landlords Association, and the Residential Landlords Association), many of whom purporting to represent residents’ views without consulting any living in high-rise buildings.

The LGA guide made no reference to the Lakanal House disaster, downplayed the risks of fires and need for evacuations in high-rise buildings, dismissed the need for central fire alarms and sprinkler systems, and insisted that stay put was in fact “an evacuation strategy” that should always be the default approach with residents expected to remain in their homes unless directed to leave by the fire and rescue service. The ethos of this ‘fire safety’ guide can be summed in the following extract:

Some enforcing authorities and fire risk assessors have been adopting a precautionary approach whereby, unless it can be proven that the standard of construction is adequate for ‘stay put’, the assumption should be that it is not. As a consequence, simultaneous evacuation has sometimes been adopted, and fire alarm systems fitted retrospectively, in blocks of flats designed to support a ‘stay put’ strategy.

This is considered unduly pessimistic... [and] is not justified by experience or statistical evidence from fires in blocks of flats... [or] the principles of fire risk assessment... Accordingly, proposals of fire risk assessors, and requirements of enforcing authorities, based on a precautionary approach (eg abandonment of a ‘stay put’ policy simply because of difficulties in verifying compartmentation), should be questioned (p.28).

The significance of the 2011 LGA guide cannot be understated. The 192 page document asserted itself as the high-rise fire safety bible for landlords, fire risk assessors, and enforcement officers in fire and rescue authorities — including the LFB — offering the definitive interpretation of best practice fire risk assessment and the legal requirements for ensuring fire safety on housing providers and enforcing authorities.

The LGA guide contributed significantly toward the entrenchment of ‘stay put’ as the only evacuation strategy pursued by building owners, landlords, their fire risk assessors, and by the fire and rescue authorities who were instructed to follow its advice. It is the principal reason why, in 2017, Grenfell Tower, like virtually every high-rise building across the country, had a ‘stay put’ policy in the event of a fire.

Yet, ‘stay put’ is not an evacuation strategy. We are in no doubt that if there had been a genuine and functional ‘evacuation strategy’ in place on the night of 14 June 2017 intended to get people safely outside of the building, every single person who died would have instead reached fresh air.

In our view, stay put 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 Grenfell public inquiry has recognised the problems with stay put in the context of widespread fire safety issues in purpose-built residential blocks and made two highly significant and welcome recommendations in this regard:

●       first that the government should “develop national guidelines for carrying out partial or total evacuations of high-rise residential buildings” including procedures for evacuating disabled and older people; and

●       second, that the owner and manager of every high-rise residential building should be “required by law to prepare personal emergency evacuation plans (PEEPs) for all residents whose ability to self-evacuate may be compromised”.

These recommendations are no doubt contributing to the widespread changes being rolled out in firefighter high-rise incident training across the country with a focus on prioritising the protection of the stairs. Such an approach is not new as Kent Fire and Rescue Service have been using portable fans and smoke curtains to do it successfully for the past ten years.

However, we are deeply concerned that, just as with the Lakanal House disaster, there appears to be a major effort by the landlord lobby to resist the public inquiry’s recommendations on the need to develop evacuation strategies.

A new Code of Practice (CoP) is currently being prepared at the behest of the housing sector through the British Standards Institute (BSI) by C.S. Todd and Associates Ltd — the authors of the 2011 LGA Guide — that will apply to all fire risk assessors and enforcing authorities like the fire and rescue service, every time they assess residential high-rise buildings. The new CoP is being put together by a small, shadowy group of landlords, fire engineers, and Chief Fire Officers without any accountability or scrutiny. Its contents suggest that the intention of the landlord sector is to cling on to stay put as the default evacuation strategy.

Specifically, in response to the public inquiry’s positive recommendations, the draft COP stated that it is not “normally practicable” for a building owner or landlord to make special arrangements for evacuation of disabled residents in the event of fire and that it is “wholly unrealistic” to expect the housing provider to prepare and update Personal Emergency Evacuation Plans for such residents in the event that the fire brigade deems their evacuation to be necessary.

By  using the official stamp of approval from the British Standards Institute which acts as the main authority on regulatory good practice, and ratified already by the National Fire Chiefs Council (NFCC)[12], this COP will enable building owners and landlords to completely circumnavigate the public inquiry’s recommendations, saving themselves a lot of money in the process.

In our view:

●       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 alarms11 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.

Conclusion

If we are to truly learn the lessons of the Grenfell disaster and honour the 72 people killed and all those whose lives have been destroyed by the fire, then the planning system, building regulations, and fire safety regulations must be completely overhauled to ensure that people’s safety is always put before profit. We had high hopes that the Building Safety Bill would bring about the systemic change needed to make this happen. As currently drafted, it would create an elaborate enforcement system of weak regulations, provide no new protections for some of the most at-risk buildings and residents, and, instead of giving new legal powers to residents, impose an enormous financial burden on them instead.

September 2020