Improving fire safety under housing legislation
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Administrator
The Grenfell Tower fire has provided a tragic reminder of how fire safety has been overlooked in housing law over the years. Giles Peaker, Justin Bates and Karen Buck MP propose some straightforward legislative reforms.
Mixed-tenure blocks pose particular difficulties. If the landlord wishes to install a sprinkler system, it will need powers under the lease to enter and make improvements even against the wishes of the leaseholders.
This is not a piece about the tragic events at Grenfell Tower themselves. We do not know yet what caused that fire, nor how or why it spread with such speed and ferocity. We do not even know the number or names of all those who died.
But what we do know, as highlighted by events before and after the horrific fire, is that fire safety law – as an aspect of housing and landlord/tenant law – has been badly neglected for many years. In this article, we suggest a few possible reforms, both immediate and longer-term, that would (collectively and individually) serve to improve the position of occupiers. Our focus is on housing law. Any reform of building regulations, or fire safety responsibilities, is beyond the scope of this article.
Defective Premises Act 1972
The Defective Premises Act (DPA) 1972 is, sadly, unlikely to provide any protection for occupiers. Where a landlord is contractually obliged to maintain or repair premises, it must take such care as is reasonable in all the circumstances to ensure that anyone who is likely to be affected by defects in the premises is, in fact, reasonably safe from personal injury or from damage to property caused by a ‘relevant defect’, ie, a defect in the state of the premises arising, or continuing, because the landlord has failed to carry out its duty to repair (DPA 1972 s4).
The problem is that, by framing this duty by reference to an existing duty to repair, a situation can arise whereby a property is objectively dangerous but not out of repair. For example, in Alker v Collingwood Housing Association [2007] EWCA Civ 343; [2007] HLR 29, the DPA 1972 was of no assistance when a tenant suffered severe injuries to her hand as a result of falling and putting her arm through a glass window in a door. The glass window was objectively dangerous – it was not, for example, safety glass or otherwise treated so as to prevent it shattering into sharp pieces – but it was not in disrepair prior to her fall. The result was that she had no claim under the DPA 1972.
Likewise, and even more strikingly, in Dodd v Raebarn Estates and others [2017] EWCA Civ 439, the DPA 1972 provided no remedy where a man fell from an internal staircase and died. Following internal remodelling works, the internal staircase had been constructed without a handrail and, while that was (again) objectively dangerous, the absence of something that had not originally been present could not be said to be disrepair which engaged the DPA 1972.
In the context of a tower block that was built without (for example) sprinklers or fire doors, this means the absence of such matters cannot be considered to be a relevant defect for the purposes of the DPA 1972, no matter how dangerous or hazardous the building may now be. We suggest that it would not be particularly difficult – or burdensome – to amend the 1972 legislation to provide that a defect is a ‘relevant defect’ either because it results from disrepair for which the landlord is responsible or because the state of the building is so dangerous as to pose a real risk for the health and safety of any lawful occupier or visitor.
Building Act 1984
Remarkably, there is no general civil liability owed by builders to either freehold owners or other occupiers for breaches of the building regulations. In practice, landlords that commission such works will often – if not invariably – make it a condition of the contract that the works must conform to the standards specified in the building regulations, so that any failure to comply can sound in damages. But the position is much more difficult for occupiers. They are most unlikely to be able to sue on the contract between their landlord and the builders. While it is conceivable that an occupier might have a negligence claim, the evidential bar is likely to be far too high to make this a realistic remedy (even if such a claim could attract sufficient funding – which would have to be by conditional fee agreement as legal aid would not currently be available).
There is, however, legislation already on the statute book that could – if brought into force – provide a partial answer.1With thanks to Andrew Arden QC for bringing this point to our attention. Building Act 1984 s38 provides that a person who suffers death or injury as a result of a breach of the building regulations has a civil claim against the contractor. Regulations will provide for exceptions and defences. This provision came into force on 1 December 1984, but only for the purposes of allowing regulations to be made. There is no good reason for such regulations not to be made now.
Even this, however, would not solve all the problems. In particular, one would need to wait for the damage to actually occur before any claim could be brought. But at least such a remedy might provide some route for obtaining compensation for those killed or injured as a result of sub-standard work.
Leaseholders
The reality of many (if not most) local authority/housing association blocks is that they will be mixed tenure, ie, some flats will be held by long leaseholders. These mixed-tenure blocks pose particular difficulties. It is relatively unusual for such blocks to have been constructed with integrated sprinkler systems. This means that, if the landlord wishes to install such a system, it will need powers under the lease to enter and make improvements even against the wishes of the leaseholders. It is also likely to want to have a concomitant power to recover these costs by way of a service charge. Whether a lease gives this particular power to a landlord or not is a matter of pure chance, depending entirely on what was in the model lease used by the landlord at the time of the grant.
Likewise, there is no general rule that the front door of a flat belongs to the landlord or the leaseholder. This matters since, if the landlord wanted to ensure that all doors were fire doors, it could not simply remove an existing door if it belonged to the leaseholder.
Part of the solution to this problem could be provided by amending the Regulatory Reform (Fire Safety) Order 2005 SI No 1541, which often fails to recognise the position of leaseholders in blocks of flats. If the 2005 Order required landlords to fit sprinklers or install fire doors in all flats, regardless of the tenure of the occupier, then it seems to us that that would provide a powerful basis for forcing such works on leaseholders, even against their wishes. That would not necessarily deal with the thorny question of payment (ie, whether the costs of such works could be recovered by way of a service charge), but it would at least provide a basis for ensuring that fire safety works could be done.
On a more ambitious note, Housing Act (HA) 1985 Sch 6 already provides for certain terms to be implied into all right to buy leases. Parliament might usefully consider whether to add to this list (so that future leases do not have these problems) or even whether to introduce new terms on a retrospective basis.
Homes (Fitness for Human Habitation) Bill
Karen Buck MP’s 2015/16 private members’ bill would have amended the Landlord and Tenant Act (LTA) 1985 so as to ensure ss8 and 10 applied to all tenancies in England, social and private, inserting an implied term that the let property was fit for habitation and adding category 1 hazards under the Housing Health and Safety Rating System (HHSRS) to the list of fitness issues at s10.
Fire risk would potentially be a category 1 hazard and, as such, a breach of the implied term upon which the tenant could take action, including potentially a claim for the rectification of the risk. However, as originally drafted, it is likely that the implied term would only have applied to the demised property. It is arguable that this would not extend to issues elsewhere in the building, or in communal parts.
A revised amendment to s8 to parallel the effect of s11(1A) in extending the implied term to all parts of the building in which the landlord has an interest would enable a tenant, or tenants, to take action on category 1 fire risks in the layout or fabric of the building as a whole.
Under the HA 2004, local housing authorities are solely responsible for inspection and enforcement in relation to HHSRS category 1 and category 2 hazards. Tenants are unable to take any action unless there is disrepair or a relevant tenancy term. The lacuna in the HA 2004 regime is that local housing authorities are unable to enforce against themselves. As singular legal entities, they cannot serve notice on themselves, let alone prosecute themselves. This leaves housing authority tenants without even the potential recourse of the local authority taking enforcement steps to have a hazard rectified. In the absence of a major reform of the HA 2004 and HHSRS regime, a revised amendment to LTA 1985 ss8 and 10 would give housing authority tenants a means to force rectification of serious fire risks.
While the original bill was talked out, and proposed amendments in the same terms to the Housing and Planning Bill (as it was) were not passed, it may well be that a revised form of the bill could be raised again and, in the changed circumstances, receive a different parliamentary response.
Conclusion
The ramifications of the Grenfell Tower fire will be widespread and the calls for reform are loud. We would suggest that these relatively simple reforms would go some way towards aiding fire safety, simplifying liability for breaches of regulations and enabling tenants to take action where there is a serious risk.
 
1     With thanks to Andrew Arden QC for bringing this point to our attention. »

About the author(s)

Description: Giles Peaker
Giles Peaker is a partner in the housing team at Anthony Gold. He is the founder and editor of the Nearly Legal housing law website. Giles was the...
Description: Justin Bates - author
Justin Bates is a barrister and member of Landmark Chambers.
Description: Karen Buck
Karen Buck is MP for Westminster North.