One of the pleasures of the current lockdown (apart from not having to stick one's nose near someone's armpit on the London Underground) has been the freedom to listen to Radio 4 while working from home. If, like me, you have been regularly tuning in at 5pm to listen to the PM programme you will have heard Evan Davis and Carolyn Quinn reporting on the latest revelations from the Grenfell Inquiry and the subsequent and ongoing crisis faced by thousands of flat owners in buildings (above and below 18m in height) covered in varying degrees of flammable cladding.

Yesterday, more than 3 and half years since the tragic events of 14 June 2017, Robert Jenrick MP, the housing secretary, announced a 5-point plan, "which will provide reassurance to homeowners and confidence to the housing market". In summary:

  1. There is to be £3.5bn of additional government funding for the removal of cladding on buildings above 18 metres (6 storeys) and over;
  2. For those buildings between 11m and 18m (4 to 6 storeys), there is to be a long-term loan scheme, with repayments capped at £50 per month for any leaseholder. This is designed to "pay for cladding removal – where it is needed – through a long-term, low interest, government-backed financing arrangement";
  3. A new developer levy, at Gateway 2 of the new Building Safety regime to be "targeted and apply when developers seek permission to develop certain high-rise buildings in England". The 'Gateway' scheme was another response to the Grenfell tragedy with Gateway 2 intended to be a so-called 'hard stop' to any construction starting unless the regulator is satisfied that, amongst other things, the design complies with the Building Regulations;
  4. A new residential development tax estimated to raise £2bn over 10 years, albeit this is to be subject to consultation, i.e. watch this space; and
  5. There is a committee which is to work towards a state-backed indemnity scheme for professionals unable to obtain PI insurance for completing the EWS1 forms. This (the External Wall Fire Review (or EWS)) form was another post-Grenfell response in December 2019 but has, in the past, been subject to criticism not least because those surveyors wishing to undertake this work cannot get PI cover.

Reaction to this latest announcement?

One could say the reaction has been less favourable than HM Government would have liked. While one cannot count the Guardian newspaper as a committed fan of this Tory government, there has also been a lukewarm response from a number of industry figures.  Like so many headline grabbing announcements, on so many important issues, there is a lot of detail to be filled-in and, as they say, 'time will tell'.

But why don't the flat-owners just sue someone?

This is one question the erstwhile PM presenters have asked when reporting on the cladding crisis. Well, in very simple terms the legal playing field can be summarised as follows:

  1.  Under English law (which covers our Welsh friends too), a builder does not owe any duty of care to the ultimate consumer for negligently specified, installed or certified construction, e.g. in a D&B contract specifying and installing flammable cladding;
  2.  Very few, if any, flat-owners have a direct contractual link to the builder and/or professional team and/or cladding sub-contractor because they will generally buy from the developer (frequently an SPV with few assets);
  3.  The Defective Premises Act 1972 covers dwellings, but has a fixed six-year limitation period from the completion of construction. While a possible route of redress, it is likely that many of the developments covered in 'unsafe' cladding will be more than 6 years old;
  4.  The building developer is not obliged to provide any third-party insurance policy, such as the NHBC scheme (others do exist).  And even if one is provided, it might not cover the complete removal and replacement of the external cladding. Such policies are also generally limited in time, e.g. to 10 years from completion; and
  5.  Long leases will frequently place the liability for repairs (original construction defects and annual maintenance repairs) on the flat-owners. This last point explains the many reports about flat-owners facing substantial service charge bills.

Conclusion

The proverbial jury is out on whether this 5-point plan will help to resolve the cladding crises. In the meantime, those affected by it will continue to be subject of reports on Radio 4 (other news outlets do exist) and English law will continue to limit the rights of redress.