APPG on Legal Aid – 25.10.2017

Grenfell Tower: Fire and Safety issues in social housing

Minutes of the meeting of the All Party Parliamentary Group (APPG) on Legal Aid, Wednesday 25 October 2017

Speakers: Giles Peaker (Partner, Anthony Gold), Justin Bates (Barrister, Arden Chambers), and Andrew Patterson (representing the Government’s review of building regulations and fire safety)

Parliamentarians: Karen Buck MP (Chair), Lord Jeremy Beecham, Alex Chalk MP, Emma Dent Coad MP, Andy Slaughter MP

Other attendees were present from stakeholder groups, representative bodies and practitioner sectors.

Introductions: Karen Buck welcomed the attendees, introducing the meeting as a discussion of the aftermath of the Grenfell tower tragedy which resulted in the review of housing blocks across the nation to ensure the safety of both developed and future housing blocks. The Chair introduced the first speaker, Giles Peaker from Anthony Gold Solicitors.

Giles Peaker: Mr Peaker introduced himself and started by saying that while there had been suggestions that the lack of legal aid had prevented Grenfell tenants from having their concerns heard, the reality was that there was a black hole in the means of redress available to tenants over property conditions and safety issues. There was no legal means for the tenants to make the landlord, or management organisation act on their concerns.

Mr Peaker outlined that section 11 of the Landlord and Tenant Act 1985 is only of use for tenants where something is out of repair. Something about the building could be highly dangerous but no actually out of repair. In addition, while S.79 & 80 of the Environmental Protection Act covered Statutory Nuisance, Mr Peaker clarified that this only applies to premises where the statutory nuisance in question is prejudicial to the health of the tenant. It does not apply to communal parts of the building or the building as a whole. Furthermore, statutory nuisance under this legislation is only actionable through private prosecution in the Magistrates courts, where the claimant must meet the criminal test for culpability but with no legal aid available to help.

The Housing Health and Safety Rating System under Housing Act 2004 does cover safety issues and property conditions where these present a risk to the well being of tenants. However, only local authorities are able to enforce these standards. The amount of action taken by local authorities is very variable, with most doing little. Moreover, this is not helpful for council tenants as local authorities are unable to enforce against themselves. Technically, local authorities may take action against Housing Associations, but generally prefer to resolve these issues amicably. Safety in a local authority owned property is therefore entirely at the whim of the Local Authority.

The good news is that Karen Buck MP’s Private Members Bill, which will have its second reading on 19th January 2018 should allow tenants to take action on property conditions and safety risks in relation to the whole building (and not just individual premises) and will be in place and enforceable with every new tenancy (though unfortunately not retroactive). Legal Aid would be available for action to remove a serious risk to health, though not for a claim for damages.

Justin Bates: Mr Bates introduced himself and said that he would be speaking about works done to address fire and safety issues and how these works are funded. There are two limbs to consider to this:

1) The sorts of works being commissioned and the problems faced by local authorities, housing associations and private landlords in commissioning them; and

2) The costs to the local authorities, housing associations, private landlords and leaseholders. 

Why are landlords undertaking these works?

 Some may be undertaking it for safety reasons
 Some insurance companies are making it a term of their insurance policies
 Most insurance policies will only cover damage to the building itself and not any personal injury or negligence claims

There are likely to be three kinds of work:

1) Retrofit sprinklers: This is most likely for social landlords with older blocks of flats but is not yet a legal requirement. A major issue lies in getting access to individual flats. This should be easier for weekly/ monthly tenants, though in practice injunctions are often necessary. It is more difficult in relation to long lease tenants (and those with a Right to Buy) as the landlord does not usually have a right to enter the premises and make changes. Leaseholders are unlikely to want to give access.

2) Fire Doors: There are two types of doors to consider: (a) Fire doors in the common parts of the building – these belong to the landlord so there shouldn’t be any problems changing them; and (b) The front doors on long lets. These doors may belong to the leaseholder, or the landlord. If the former, it is very difficult to force the leaseholder to change the door to a fire door. If the landlord owns the door, it can be changed but the recovery of costs may be problematic. There is no nationwide rule which complicates matters.

3) Cladding: Legally this is the least problematic of the three types of work. Cladding is on the exterior of the building and so inconceivable that it is owned by anyone but the landlord. The issues here are that removal and replacement is hugely expensive owing to the need for scaffolding.

Funding: Local authorities would face difficulties in funding these works given that most had 20-30 year housing revenue account plans which had little scope for additional works of this nature. Authorities would likely be lobbying the government to raise the HRA borrowing cap.

The service charge demands for leaseholders (whether private, local authority or housing association) would likely be considerable – bills of £50,000 per flat could easily become the norm. There would likely be complicated and expensive litigation over what could be recovered under the terms of the leases. Mr Bates drew parallels with the financial difficulties that leaseholders faced after the Decent Homes works.

Emma Dent Coad: Ms Dent Coad discussed the difficult months which have passed since the Grenfell Tragedy and those that are still to come. She talked about her experiences on the board of the Kensington and Chelsea Tenant Management Organisation 2008- 2012, which was told by the Fire Department that some changes had to be made to the tower blocks but chose not to make the changes. This decision has had the devastating consequences as there was a fatal fire in that tower block. The Fire Department have served a notice to the Tenant Management Organisation and a large fine has been paid because of the negligence.

Ms Dent Coad discussed life for the Grenfell Tower survivors and added that they were struggling to access the legal aid that they are entitled to and that significant language and cultural barriers are part of the problem. Ms Dent Coad concluded by emphasising that the Housing Bill is desperately required, and is need of good construction and quality, to make the effect that is expected and deserved.

Andrew Pattison: Mr Pattison briefly touched on the Government’s independent review of building regulations and safety that has been commissioned by the Secretary of State and is being led by Dame Judith Hackitt. This has been put in place as a result of the Grenfell Tower and the call for evidence has just been completed. The panel aim to have produced their interim report by Christmas 2017, with the final report being published in spring 2018.

Questions: Andy Slaughter MP (Hammersmith) – expressed his concern as to whether the BRE standard of testing is adequate. Mr Pattison, in response stated that he would take these concerns to
review panel and provided Mr Slaughter with an email address as a point of contact.

Poppy from Shelter asked Mr Pattison- “Could you imagine that the panel would make recommendations around funding for the issues that Justin had outlined, not only in terms of protecting tenants which need the work done but the tenants who’s work will not be protected because there works will be delayed, and as some are seen as unnecessary. Will the review make a recommendation to the secretary of state about lifting the cap on local authority funds?” Mr Pattison replied that it would be less likely in terms of the content of the review as it is about how people work within the system and not how the system itself operates.

Ms Buck closed the meeting by thanking all of the Speakers and urging the attendees and assembled Parliamentarians to give the Private Members Bill their full support in the coming months.

YLAL would like to thank Amina Gaddah for preparing this report of the APPG meeting.