The building safety scandal: 90 per cent of affected flats are still unsafe

In the six years following the horrific events at Grenfell, it has become evident that there has been a decades-long systemic failure of the UK’s building safety regime, something Michael Gove, Secretary of State for Levelling Up, Housing and Communities (DLUHC) has now, belatedly, acknowledged.

In the aftermath of the tragedy, hundreds of buildings were identified as being wrapped in the same deadly cladding as on Grenfell Tower; then, as the years have passed, more and more people have discovered their homes are unsafe with remedial costs running into the tens of thousands of pounds per flat. Pandora’s Box was opened and the true extent of the crisis – impacting eight per cent of people (4.2 million) in England – was revealed. Despite this crisis being caused by the combined failures of the government, building control regulators, developers, contractors, and manufacturers (to name but a few), it was innocent leaseholders who were left facing eye-watering bills – some even larger than the value of the home itself – to rectify the fire safety defects and leaving them unable to sell their homes.

Financial stress was compounded by the emotional toll of being effectively forced to live inside flammable buildings, resulting in a well-documented mental health crisis. The vast majority of us are still trapped now.

In response, thousands gathered to express solidarity with the Grenfell bereaved, families and survivors and fight for change; leaseholders protested outside Parliament and developer sales offices; media outlets launched campaigns alongside leaseholders to end the building safety scandal; impassioned speeches were delivered by MPs and Peers; promises were made by government ministers and Prime Ministers; funding was pledged by the Department of Levelling Up, Housing and Communities (DLUHC); and developers were pressured to sign contracts, to pay to rectify the building safety defects.

Make our homes safe at the pace we need and deserve
Against this backdrop of seemingly overwhelming political and public support and pledges of funding, the answer to the question, ‘what progress has been made?’, may be surprising, at least to the general public. In the past six years, fewer than 10 per cent of unsafe homes have been remediated and the government has disbursed only £1.5 billion of its pledged £5.1 billion – with an estimated £3 billion also to be recovered from taxation – to remediate unsafe buildings. The government has refused to publish even an indicative timeline of how long it will take to fix all unsafe buildings, leaving the vast majority of leaseholders in a costly and anxious limbo.

As with the root causes of the crisis itself, the reasons for the glacial pace of building remediation are complex. Put simply, Michael Gove’s attempt to deliver a comprehensive solution to end this crisis is too complicated.

One of the most significant factors is the shortcomings of the developer remediation contracts. It is clear that the developers have strong communication channels with the government, as evidenced by their having access to meet with the Chancellor – an opportunity repeatedly denied to building safety campaigners – and in the watered-down language of the developer contracts.

As reported in The Sunday Times, the developer contracts were altered in the late stages to allow developers to leave dangerous cladding on blocks and only fix “life-critical” safety defects in clear contrast with the much broader “building safety defect” in the Building Safety Act. Astonishingly, this loophole appears to enable developers to appoint their own, supposedly independent, fire experts and requires them to fix only the defects that those experts cite. The potential for conflicts of interest is clear – developers have always focused, and will continue to focus, on their profits over our safety.

This means that even buildings expected to be ‘fixed’ under the contract are unlikely to be assessed as such by lenders and insurers. Indeed, we have repeatedly highlighted that developers are not employing a consistent approach, and that this is all being conducted with little apparent oversight by the government.

Officials from the DLUHC have repeatedly told us that it recognises our concerns and that there will be mechanisms in place to hold the developers to account; however, these supposed mechanisms are still unknown, and the department’s grip of this crisis appears weaker by the day.

Further complicating matters is that leaseholders are still battling to obtain clear information from their freeholders and managing agents. As but one example of many, a St George (Berkeley Group) 400-plus home development in east London was found to have Trespa non-FR grade cladding on its buildings, as well as other fire safety defects. Two years after their initial application, residents were told that the development had proceeded to the second stage of the Building Safety Fund (BSF) grant application process; however, six months after this seemingly positive step forward, they were told that St George would be appointing their own fire expert to carry out a PAS9980 survey and determine what remedial works (if any) would be undertaken.

A year later, residents still have no further information as to when St George’s fire expert will conduct this assessment. Nearly four years have passed since a fire assessment engineer found flammable cladding, yet residents still have no information as to when (or even if) their homes will be made safe. This sorry tale is being repeated across the country because the department has seemingly allowed the developers to wrest control of this process.

Developer contracts are relevant to only approximately 15 per cent of buildings; buildings which are 11+ metres high and without a sufficiently profitable developer are still reliant on current and pending grant funding schemes, which have their own gaps and delays. It has long been apparent that the Building Safety Fund is unfit for purpose, with few lessons having been learned from the woeful manner in which the ACM Fund (the fund designed for the removal of the Grenfell-type aluminium composite cladding) had reviewed applications and disbursed funds.

While we are hopeful that the forthcoming Cladding Safety Scheme appears to have taken on board some of the serious issues with previous funding schemes – with changes to improve pace, the end-to-end service, data and the information to leaseholders and residents – the proof will be when the scheme formally opens, and it is required to deal with applications on a scale that far outstrips those under the current schemes.

Comprehensive risk assessment standards
A further issue is that there is no available standard for the consistent assessment and remediation
of internal defects. As it stands, the scope of government grant funding has been focused on cladding systems only, with no apparent consideration given to the range of non-cladding safety defects that also must be remediated before a building can be said to be safe. Non-cladding defects are often part of a single programme of works; whether balcony works, means of escape remediation, issues with combustible insulation, a lack of cavity barriers, or failure of structural steel fire protection. The government has known about these issues for years, yet no action has been taken to ensure full funding is in place to resolve these defects at no cost to leaseholders. Buildings cannot be made half safe.

An illogical qualifying criterion has also been imposed with regard to height, barring buildings under 11 metres from the leaseholder protections and the developer remediation schemes. Instead, we are told that these buildings will be considered on a case-by-case basis – with no clues given as to the circumstances under which funding will be given to remediate defects. The focus has been on not spooking the decimated flat market further, rather than ensuring all homes are safe. And we have heard this tired line of there being “no systemic risk” below an arbitrary height before; only now we now see this line lowered to 11 metres.

“Proportionality” may help avoid needlessly excessive work, but the focus must be on the safety of residents first and foremost and high-risk buildings of all heights must be made safe. Without a comprehensive solution, which addresses buildings of all heights and all defects, this crisis will only be kicked down the road and the first rung of the housing ladder will remain destroyed.

Sadly, it is all too clear that fires don’t respect height limits, as was shown by the fire in the Berkeley-built Richmond House in south west London, in which all four floors and the roof were engulfed in flames within 11 minutes. This point-blank refusal to fund remediation of sub-11 metre buildings also appears to be at odds with the government’s recent consultation on Approved Document B, which acknowledged that building risk is not determined solely by height and that the risk of property damage from “low frequency, high consequence” incidents should be mitigated against in buildings of all heights.

All leaseholders are 100 per cent innocent and must be protected
Pressure from HM Treasury has led to an arbitrary line being drawn over who the government has chosen to protect and who it deems to be “non-qualifying”. Too many ordinary people have been cruelly ruled out of help and have been left to fend for themselves.

Rishi Sunak, when he was Chancellor, referred to leaseholders in a derogatory manner as “the regular sources of funding” and the government has made it clear that those leaseholders who it has assumed have “substantial means” will pay for remediation of safety defects. However, all leaseholders are blameless, regardless of their means, and this was acknowledged by Michael Gove in January 2022.

In order to qualify for protection from uncapped remediation costs, a leaseholder can be either an owner or joint owner of up to three properties. If they have even a minority share in a property, such as may arise from a parent helping a child with a downpayment, a leaseholder is considered to own that property fully and if they have an interest in four or more properties, will be excluded from any protection from costs to fix defects on any flat except their main home. The arbitrary approach is further highlighted when one considers that an individual who owns four properties, valued at £150,000 each (totalling £600,000) will receive no protection from uncapped remediation costs yet an individual owning a flat valued at £999,999 is eligible for full protection. Further, even if a leaseholder is qualifying or owns just a single home, if a property is valued over £1,000,000, that leaseholder is required to pay the first £50,000 of the remediation bill.

If we look to another recent corporate scandal as a means of comparison, Volkswagen alone set aside US$18.3 billion over the emissions scandal – at no point were payouts assessed on the assumed financial means of the individual buying the car. Why are blameless leaseholders any different than blameless car buyers?

Perhaps nothing makes the government’s division of deserving and undeserving leaseholders more jarring than listening to the testimonies of the rogue cladding and insulation manufacturers at the Grenfell Tower Inquiry. Kingspan employees, for example, acknowledged and laughed that the fire safety marketing materials were “all lies” and based on a fire test report for a previous product. Similarly, emails from Arconic employees were read out and showed how the firm’s employees endorsed selling its flammable cladding “even if we know [it] has a bad behaviour when exposed to fire”. Imagine the corporate fallout if a car manufacturer knowingly fitted faulty brakes and lied about air bags being installed. In no other sector of our economy would innocent consumers be expected to pay to fix safety defects, so why is this deemed to be a fair approach when it comes to our homes – the most substantial and personal purchase most of us will ever make? It seems unfathomable that consumers are given more protection when buying a kettle.

The result of these crude distinctions among leaseholders has further stalled the progress of remediation. We are also aware that, during the passage of the Building Safety Bill through Parliament in 2022, DLUHC had been forewarned of such a negative impact by RICS (Royal Institution of Chartered Surveyors), who advised that it would create significant “difficulties in a block where several such (non-qualifying) leaseholders who may not be able to afford their share of remediation, stalling or slowing down any remediation works”, and warned of “quite horrifically high costs” faced by such leaseholders.

A consistent, joined-up approach
In June 2021, we wrote to then Prime Minister Boris Johnson asking for a building safety delivery group to be established, comprising stakeholders from all industries alongside leaseholder representation. This would have driven a consistent, joined-up approach to deliver an end to this crisis, instead of the ‘siloed’ approach the government has taken. Disappointingly, the current approach remains disjointed and ever more complex as all parties continue to mitigate their own liabilities and ensure that leaseholders bear the consequences of inconsistent views on acceptable building safety standards. Lenders, insurers, fire engineers and surveyors disagree with the government’s interpretation of risk, and this only adds to the uncertainty we all face.

To add further layers of complexity, the Fire Safety (England) 2022 regulations are now in force under the stewardship of the Home Office, and we are seeing large bills land for fire door checks with replacement charges misrepresented as being solely due to poor maintenance (often by the very party that is now billing us) rather than defects. The Health and Safety Executive’s Building Safety Regulator is over halfway through its tight registration window for high-rise buildings with innocent leaseholders hearing uncertain costs of compliance, estimated to run into tens of thousands of pounds, that we will be forced to pay. The same industries that failed to assure our safety in the past are now finding new ways to charge us for the fact that our homes are unsafe; again, they profit at our expense.

After more than four years of campaigning, we recognise that progress takes time – it is often incremental and too slow, with changes taking too long to filter through to the people suffering on the ground. Our campaign will remain steadfast in our focus on ensuring all leaseholders are protected for as long as it takes – as we said in our recent letter to Mr Gove: “If this government continues to refuse to protect us and ensure buildings are made safe quickly, we will keep fighting until we have one that understands fairness and what ‘doing the right thing’ actually means.”

Lucy Brown is an affected leaseholder and a supporter of the End Our Cladding Scandal campaign.

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