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New Year, New Approach to Cladding Crisis - new guidance on fire assessments
This week saw the Housing Minister, Michael Gove, announce a raft of measures designed to resolve the cladding crisis that has engulfed the government since Grenfell Tower burned down on the night of 14 June 2017. His proposals include -
Scrapping the widely-criticised loan scheme mooted by his predecessor for leaseholders living in blocks of flats between 11 and 18 metres with dangerous cladding
Setting up a dedicated team to pursue and expose companies responsible for the cladding crisis and force them to shoulder the burden of making buildings safe, with commercial consequences for those who refuse
New statutory protections for leaseholders within the Building Safety Bill
An assumption that there is no risk to life in medium- and low-rise buildings unless there is clear evidence of the contrary
New guidance for those carrying out fire assessments, and
Far greater use of fire safety measures such as sprinklers and alarms with an additional £27 million funding to install fire alarms in all high-risk buildings.
There is a lot to consider so in this article we will concentrate on the new guidance on fire assessments which has just been published and the position of the Royal Institute of Chartered Surveyors (‘RICS’) in relation to EWS1s.
Government guidance finally withdrawn
The government has been keen to deflect attention away from its own delay in withdrawing the generally discredited Consolidated Advice Note January 2020 (‘CAN’). Issued in January 2020, the government advised building owners and managers to carry out assessments on all residential blocks of flats, irrespective of height, to determine the presence of dangerous cladding and remediate where necessary.
In one fell swoop, the government increased the number of buildings requiring an EWS1 from about 10,000 to 100,000. The RICS amended its EWS1 advice to valuers in line with CAN and lenders followed suit, creating huge problems for those trying to sell flats in lower height blocks. Public funding was allocated for the highest buildings but the Treasury baulked at providing comprehensive funding for all blocks with cladding so the government commissioned an independent review which reported last July that there is no systemic risk of fire in low- and medium-rise blocks.
The previous housing minister urged lenders to change their lending criteria and the RICS to amend its EWS1 guidance but took no action himself to withdraw CAN. Michael Gove eventually grasped the need for government to lead by example, not exhortation and CAN was finally withdrawn on 10 January 2022 amidst claims that it has been 'wrongly interpreted’ by the industry and ‘used to justify disproportionate assessments’.
RICS EWS1 review
Government ministers have been highly critical of the RICS’s decision last month not to amend its guidance to valuers to use EWS1 forms for buildings below 18 metres. The RICS spent five months consulting its members, lenders and conveyancers and concluded that its approach was proportionate in the light of known and evidenced safety risks. It found that 66% of EWS1 forms on buildings between 11 and 18 metres indicate that the buildings require remediation.
This week, with CAN consigned to the archives at last, the RICS promised to review its decision but says that fire safety issues should not be swept under the carpet by avoiding inspections. Whilst deeply sympathising with leaseholders who are trapped in flats they cannot sell through no fault of their own, and facing cladding remediation bills they cannot afford –
‘[the RICS] does not want the problem to be moved from one unsuspecting purchaser to another.’
New guidance for fire risk assessments: PAS 9980
To be fair to the government, fire safety issues relating to external walls are highly complex and work has been going on behind the scenes on detailed guidance for fire assessors. This takes the form of a new Code of Practice: PAS 9980:2022 which has just been published by the British Standards Institution.
The Code promotes a proportionate approach to fire assessments of external wall construction and cladding in all existing multi-storey, multi occupied residential buildings (described as a fire risk appraisal of external walls or ‘FRAEW’). It is a technical document, setting out a methodology for use by fire engineers and other competent building professionals undertaking fire risk appraisals. Where it is obvious that the walls do not pose a risk of fire spread, such as buildings of traditional brick and masonry construction, the Code says that there may be no need for a PAS 9980 assessment.
The Code applies to all multi-storey, multi occupied residential buildings irrespective of height, including student accommodation, sheltered and other specialized housing and buildings converted into flats, where the evacuation strategy will be similar in nature to a purpose-built block of flats.
The purpose of a FRAEW is to assess the risk to occupants from a fire spreading over or within the external walls of the building, and decide whether, in the specific circumstances of the building, remediation or other mitigating measures are necessary. The Code is intended to aid decision‑making by focusing on those buildings where the risk is less clear-cut and where more in‑depth assessment might be needed.
A building’s risk level is assessed on a scale of ‘low’ to ‘high’ risk by asking the following questions -
1. Is external fire spread likely to be within normal expectations based on the methodology in this PAS and taking into account the consequence of such fire spread? If yes, then the fire risk posed by the external wall is considered sufficiently low not to warrant any action and the building is assessed as ‘low’ risk.
2. If external fire spread is likely to be more rapid than normally expected, is the likely rate of spread clearly unacceptable in terms of life safety based on the methodology in this PAS, taking into account the consequences? If yes, the fire risk is ‘high’ and action is necessary. However, it does not follow that the only course of action is to remove and replace the combustible elements of the external wall construction. It might be necessary and appropriate to first conduct a more in‑depth level of technical assessment.
Where neither 1 nor 2 can be answered in the affirmative, the risk sits somewhere in between ‘high’ and ‘low’ and is classified as ‘medium’.
The Code states that it is not intended for lay people and there are statements within its 193 pages which would concern many leaseholders. For example, it says that -
‘normal expectations of tolerable external fire spread are that people will be able to escape or be rescued by the fire and rescue service before being harmed’.
The Code anticipates that, given the limitations in the current state of knowledge and ability to predict fire behaviour, many assessments will need to assume a higher risk than would otherwise be the case which could lead to -
‘a recommendation to tolerate, for a period of time, the assumed heightened risk from external fire spread’.
Asking leaseholders to tolerate a heightened risk of fire, albeit an assumed one, is a hard sell. At the same time, directing fire assessors to assume a heightened risk is at odds with the government’s professed new proportionate approach of assuming no risk to life in medium and low-rise buildings unless there is clear evidence of the contrary. The Code acknowledges that –
‘Determination of absolute levels of safety is simply not possible’.
This unpalatable truth may be something that leaseholders have to learn to live with but it’s a far cry from the government’s promise post-Grenfell to ensure that ‘residents in high-rise blocks ….. will feel safe now and in the future’.
Fire Safety Order
In the past, the external wall construction of blocks of flats was not routinely included in the fire risk assessments required under the Regulatory Reform (Fire Safety) Order 2005 (‘FSO’). The Fire Safety Act has now established that external walls fall within the scope of the FSO and when the amended requirements come into force, the Code will apply to responsible persons carrying out new fire assessments under the Order.
Will the new guidance unlock the market?
The RICS is facing huge pressure from government to change its stance on EWS1s and publicly it has welcomed Mr Gove’s announcements. However, it is a professional body whose members have a duty of care towards buyers and lenders. The new Code explicitly states that it is not intended as an alternative to the EWS1 form although it suggests that the RICS may want to consider using it.
In time, as more FRAEWs are issued under the amended FSO, EWS1s may simply become irrelevant. In the meantime, if an EWS1 certificate is not provided, there is nothing to stop buyers or lenders asking for alternative evidence about a building’s external wall safety and the new guidance, like CAN before it, applies to all multi-storey, multi occupied residential building irrespective of height, although lower-rise buildings are more likely to have a low-risk rating.
It does not take a crystal ball to anticipate that potential flat purchasers will be asking for a copy of a building’s FRAEW as part of their due diligence. A low risk assessment will be reassuring but a medium- or high-risk rating with no remedial action recommendation beyond tolerating a heightened risk may prove unacceptable to many buyers.
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