News, events and consultations
Further details of this year’s conference can be found in the link below:
Members are reminded that the 10% discount on the conference fee is available only to 16th November
Housing Law Update
The speakers will be John Gallagher, Shelter and Marina Sergides, Garden Court Chambers.
Please note that the meeting will take place from 6.30 to 8.30pm and will be at the new venue. The location for this meeting is:
BPP University Law School, 68-70 Red Lion Street, London, WC1R 4NY
On the 4th August 2017, HLPA wrote to Sir Martin Moore-Bick following his invitation for responses re the proposed terms of reference in the Grenfell Tower Inquiry. HLPA proposed that the Inquiry consider more than merely the direct cause of the fire, but the relationship between the tenants and the TMO and RBKC and wider issues concerning the standards of the residents’ accommodation and their entitlement (or lack of) to hold their landlord to account. It asked the Inquiry to “examine the institutional failures, both of Local and Central Government, and to investigate any institutional and political disregard demonstrated towards social tenants which arguably led to this tragedy”. It went on to state that current legislation, regulations and housing standards do not protect the safety and rights of tenants, who are unable to effectively enforce those housing standards. A full copy of HLPA’s proposed terms of reference can be found on HLPA’s website.
Following this consultation process, Sir Martin Moore-Bick wrote to Theresa May on 10th August 2017 setting out his recommended terms of reference. Those were as follows:
(i) to examine the circumstances surrounding the fire at Grenfell Tower on 14 June 2017, including
(a) the immediate cause or causes of the fire and the means by which it spread to the whole of the building;
(b) the design and construction of the building and the decisions relating to its modification, refurbishment and management;
(c) the scope and adequacy of building regulations, fire regulations and other legislation, guidance and industry practice relating to the design, construction, equipping and management of high-rise residential buildings;
(d) whether such regulations, legislation, guidance and industry practice were complied with in the case of Grenfell Tower and the fire safety measures adopted in relation to it;
(e) the arrangements made by the local authority or other responsible bodies for receiving and acting upon information either obtained from local residents or available from other sources (including information derived from fires in other buildings) relating to the risk of fire at Grenfell Tower, and the action taken in response to such information [emphasis added];
(f) the fire prevention and fire safety measures in place at Grenfell Tower on 14 June 2017;
(g) the response of the London Fire Brigade to the fire;
(h) the response of central and local government in the days immediately following the fire;
(ii) to report its findings to the prime minister as soon as possible and to make recommendations.
Theresa May responded to Sir Moore Bick’s letter on 15th August 2017, accepting the recommended terms of reference.
On the 8th September 2017, HLPA applied for core participant status in Grenfell Tower Inquiry and set out how HLPA’s experience and expertise in the issues relevant to (d) and (e) above could assist the Inquiry. HLPA’s request was rejected on the 11th October 2017 for the following reason:
“The applicant may have useful evidence to give to the Inquiry in relation to the ability
of social housing tenants to ensure that landlords adhere to proper standards, but it
does not need to be a core participant in order to do so. It will not itself be affected by
the outcome of the Inquiry and does not have a significant interest in an important
aspect of the matters to which the inquiry relates within the meaning of rule 5(2)(b) of
the Inquiry Rules 2006.”
Beyond Sir Moore Bick’s Public Inquiry
HLPA calls for Theresa May to hold an Inquiry into the wider tenancy issues that will not be considered by this Inquiry but that are, nevertheless, hugely important to understanding the breakdown in the relationship between RBKC and the Grenfell tenants and to the future wellbeing of social and private renting tenants.
The Grenfell Tower Inquiry, though clearly necessary, is simply not what (a) was promised or (b) sufficient to address the real and underlying social and economic problems that exist today.
Sir Moore Bick himself did not consider this Inquiry to be the best place to consider wider tenancy issues but also felt that they needed to be investigated. He made it clear to Theresa May, in his letter of 10th August 2017, that matters relating to social housing generally should be examined. He stated as follows:
“As a result of the consultation it has become clear that many of those who have been affected by the fire and some others feel strongly that the scope of the inquiry should be very broad and should include an examination of social housing policy and all aspects of the relationship between the residents of the Lancaster West Estate on the one hand and the local authority and the tenant management organisation on the other.
Many also feel very strongly that it should examine whether the response of local and central government to the disaster was and continues to be appropriate or adequate and whether arrangements should have been in place for responding to a disaster of this magnitude.
I can well understand why local people consider that these are important questions which require urgent examination.
I share their concerns, but on careful reflection I have come to the conclusion that the inquiry you have asked me to conduct is not the best way of satisfying their wishes for two reasons:
(i) First, there is an obvious need for my inquiry to complete its work as quickly as possible in order to identify defects in the design, construction (including refurbishment) and management of the building that may exist elsewhere and put at risk others who live and work in similar high-rise structures. To give the inquiry terms of reference which would cover all the matters requested by local residents and others would inevitably add significantly to the length of time needed to complete its work.
(ii) Secondly, the inclusion of such broad questions within the scope of the inquiry would raise questions of a social, economic and political nature which in my view are not suitable for a judge-led inquiry.
They are questions which could more appropriately be examined by a different kind of process or body, one which could include persons who have experience of the provision and management of social housing, local government finances and disaster relief planning. It could operate in parallel with the inquiry and would be welcomed by many” [emphasis added].
Theresa May, in her written response on 15th August 2017, acknowledged and accepted Sir Moore Bick’s concern and stated as follows:
“The terms of reference do not address some of the broader social issues that some people have called for the inquiry to consider. I understand your concern about the suitability of considering such broader issues in a judge-led inquiry and the urgent need for the inquiry to complete its work as soon as possible, so that essential lessons can be learnt. This mitigates against very broad terms of reference and I accept your reasons for focusing the inquiry in the way you have.
However, to date, there has been nothing of substance. The Housing Minster, Alok Sharma MP, has conducted a series of listening events which is neither consistent with Sir. Moore-Bick recommendations and nor is it consistent with Theresa May’s written response.
HLPA calls on Theresa May to urgently hold an independent inquiry into the matters set out in HLPA’s letter to Sir Moore Bick on 4th August 2017 and as proposed by Sir Moore Bick himself.
HLPA Grenfell sub-group
31st October 2017
Please see the link below for a list of the issues to be investigated by the Inquiry:
The 2017 HLPA Conference is now open for booking and it will take place at a new venue: The Royal College of Obstetricians and Gynaecologists at 27 Sussex Place, Regent’s Park, London NW1 4RG, on 13th December 2017. The conference is open to members and non-members alike and booking information can be found here: www.profbriefings.co.uk/hlc2017
Visitors are invited to check the site again closer to the event for more details of the format of the conference. A 10% discount on fees is offered to members who register before 18.00 on 16th November.
Grenfell Tower Disaster and Legal Next Steps
The speakers will be Giles Peaker, Anthony Gold Solicitors and Karen Buck MP.
Please note that the meeting will take place from 6.30 to 8.30pm and will be at a new venue. The location for this meeting is:
BPP University Law School, 68-70 Red Lion Street, London, WC1R 4NY
In response to LJ Jackson’s Report on Fixed Costs in Civil Litigation, HLPA has prepared a Statement
HLPAs response to Fixed Costs report (2)
A summary of this Statement is set out below:
HLPA would like to thank Lord Justice Jackson for the time taken to meet with members of HLPAs Executive Committee to address HLPAs concerns about the introduction of fixed costs in housing cases, and for the time taken by both Lord Justice Jackson and his assessors to consider the information and data supplied by HLPA.
Due to the complexity of housing cases and the vital importance of these cases to tenants, many of whom are extremely vulnerable, HLPA does not consider that fixed costs are appropriate for housing cases.
If HLPAs position on this is not accepted and Lord Justice Jackson’s recommendation to implement fixed costs for housing cases are to be implemented, HLPA submits that the following issues need to be considered in deciding how fixed costs should be implemented in housing cases.
Lack of Data in respect of Housing Cases
HLPA is concerned about the lack of data available to Lord Justice Jackson and his assessors in producing their report. HLPA welcomes the recognition in the Report of the complexity of housing disrepair and possession cases and agrees that, if fixed costs are introduced in these cases at the levels proposed, they should be allocated to Band 3 and Band 4.
HLPA has limited resources available to be able to obtain data in respect of the cost of cases. Further, since the reduction in scope of legal aid, the number of housing providers has reduced, and the number of housing providers undertaking disrepair cases has, in particular, reduced considerably. Therefore, the number of firms available to provide such data has reduced.
None of the costs budgets reviewed by Lord Justice Jackson or his assessors related to housing cases.
HLPA notes that the panel of assessors contained no housing lawyers. Whilst there were some judges on the panel, the majority of disrepair cases do not proceed to trial. Therefore, those judges will have only seen a small percentage of the overall number of disrepair claims. Further, the judges did not sit in London courts; the shortage of accommodation and high cost of accommodation in London makes the housing market in London unique. HLPA does not therefore think that any of the assessors had sufficient expertise in housing law to be able to fully assess these cases.
In respect of the proposed allocation of costs at each stage of a case, the levels of costs at each stage do not necessarily correlate with reasonable and proportionate levels of costs incurred at those stages in respect of housing cases. HLPA is particularly concerned about the level of pre-issue costs being proposed. Currently, in some cases, tenants are able to settle proposed disrepair claims without the need to issue a claim. However, this usually involves obtaining and considering an expert report, consideration of detailed disclosure, consideration of quantum and negotiations over works, any necessary decant, compensation and costs. If fixed costs are introduced at their current level, HLPA is concerned that tenants will be discouraged from early settlement, as they will be unable to recover their reasonable costs if the case settles pre-issue.
Complexity and Importance of Housing Disrepair Cases
The Report recognises that clinical negligence claims are often of low financial value, but of huge concern to the individuals on both sides. The Report recommends that a working party forming both claimant and defendant representatives be set up to develop a bespoke process for handling clinical negligence claims up to £25,000.
HLPA submits that housing cases are also often of low financial value, but of huge concern to both landlords and tenants. Housing disrepair claims concern the safety of tenants in their homes. Housing possession claims concern the very roof over a tenant’s head. The importance of these cases cannot be underestimated.
These cases are also highly complex. Housing possession cases often involve complex defences, including technical defences relating to validity of notices served, and substantive defences such as Equality Act, public law or Human Rights Act arguments.
Housing disrepair claims are usually fully defended and so require a tenant to prove liability for the defects, notice of the defects and inconvenience caused. There are no guideline rates of compensation and so housing lawyers are required to analyse comparable case law and assess liability for each defect to determine the appropriate level of compensation.
HLPA submits that a bespoke scheme for housing disrepair and possession cases would be appropriate.
The recommendations are that tracked housing disrepair and possession claims should be allocated to Band 3 of the proposed fixed costs regime. Particularly complex housing disrepair cases should be allocated to Band 4. HLPA recommends that if these proposals are implemented, a clearer distinction as to when cases are to be considered ‘particularly complex’ needs to be made. In light of the contentious nature of many housing cases, HLPA considers that landlords and tenants are unlikely to reach agreement on this without further guidance.
HLPA suggests that any cases where the cost of repairs is £5,000 or more should automatically be considered particularly complex and allocated to Band 4.
Impact of the Legal Aid, Sentencing and Punishment of Offenders Act
The Report highlights the importance of a co-ordinated approach and that any reforms must fit with other civil justice initiatives which are under way.
One such initiative is the government’s review of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”).
LASPO had multiple effects on housing practitioners, affecting them disproportionately in the running of housing disrepair claims. Firstly, legal aid was removed from scope save for cases which present a serious risk to health, and even then legal aid is not available for the associated compensation claim. Legal aid ends when the ‘serious risk’ is removed, even where repairs have not been completed. This means that legal aid is not appropriate for the vast majority of housing disrepair claims post-LASPO and most need to be run under a Conditional Fee Agreement (CFA). Secondly, tenants were prevented from recovering success fees from their opponents post-LASPO, meaning that housing practitioners can only recover small success fees from tenants’ damages. Practitioners are therefore highly reliant on their ability to recover their costs at a reasonable hourly rate.
Since the introduction of LASPO, the number of housing providers has reduced significantly. There are ‘advice deserts’ in many areas of the country, with many vulnerable tenants unable to find a housing lawyer to represent them when they face eviction or have issues of disrepair with their properties.
The full impact of LASPO has not yet been assessed. HLPA is extremely concerned about further changes that could affect the viability of housing lawyers, and therefore access to justice. HLPA submits that the review of LASPO should be concluded with any recommendations fully considered before any further changes are implemented that could affect housing providers.
The value of non-monetary relief
HLPA agrees with the recommendation that if fixed costs are introduced a monetary value must be assigned to non-monetary relief.
HLPA considers that the value of £10,000 for an injunction is reasonable. HLPA is, however, concerned by the suggestion that the court could vary that figure downwards, if the courts could, as per the example provided in the report (at Chapter 5, section 5.4), assign a value with reference to the cost of works.
The cost of works in housing disrepair cases is often fairly low. However, the value to the tenant in getting works of repair completed, leaving them with a disrepair-free home for many years to come, is worth significantly more to the tenant than the cost of those works.
HLPA submits that the figure of £10,000 should be a minimum, with the courts having the power to vary from that figure only in exceptional circumstances, and only upwards.
HLPA is concerned that no recommendation has been made as to how to value possession claims. The value to the tenant in preserving their tenancy and keeping a roof over their heads, is obviously very high. HLPA submits that before fixed costs can be introduced in this area, further consideration as to how to value these claims should be given. If the value assigned to such cases were set too low, HLPA is concerned that this could breach tenants’ rights pursuant to Article 8 ECHR. The value to be assigned to these claims could be considered if a bespoke scheme was developed.
HLPA notes that the proposed new Intermediate Track recommends procedural changes to streamline cases. HLPA submits that if fixed costs are to be introduced in the Fast Track, that similar procedural changes should be considered.
Further, it is HLPA members’ experience that landlords often fail to comply with the pre-action protocol in housing disrepair cases. Specific reference to the costs consequences of failure to comply with the protocol should be made in the protocol and the court should have the power to disapply fixed costs where a landlord fails to engage with the protocol.
HLPA supports the idea of an uplift in costs for ‘beating’ a Part 36 offer. However, in respect of disrepair claims, HLPA notes that the majority of cases settle before trial and so Part 36 is rarely considered.
HLPA submits that an uplift for a failure to comply with the pre-action protocol or failure to engage in settlement negotiations would be appropriate, for example, where a tenant makes an offer early in proceedings but a landlord fails to enter into negotiations until trial is approaching.
The Report recognises that some highly complex housing cases should be allocated to the multi-track and, accordingly, not affected by fixed costs.
It is HLPA members’ experience that many higher-value disrepair cases and complex housing disrepair cases, where the trial is likely to last longer than one day, are still allocated to the Fast Track.
Furthermore, unlawful eviction claims, which should be allocated to the multi-track, are often allocated to the Fast Track.
If fixed costs are introduced, guidance should be provided to the courts to ensure that cases are properly allocated. Otherwise, HLPA is concerned that complex cases could be inadvertently caught by the fixed costs regime.
HLPA supports the recommendation of a voluntary extension the Aarhus Rules to all claims for judicial review where legal aid is not available.
As noted above, HLPA considers that housing cases are not suitable for a fixed costs regime. However, if fixed costs are to be introduced, HLPA considers that a bespoke scheme for housing disrepair and possession claims should be developed.
HLPA considers that further consideration is required to determine the ‘value’ of non-monetary claims, in particular as no recommendations have been made in respect of the value of possession claims.
HLPA submits that guidance should be provided to courts to ensure that cases are correctly allocated and consideration should be given to procedural changes to ensure that claims that are subject to fixed costs can be run as cost-effectively as possible. Failure to engage in pre-action protocols or in settlement negotiations should lead to costs consequences.
In any event, HLPA submits that no steps to introduce fixed costs in any housing cases should be commenced before the impact of LASPO has been reviewed.
HLPA has today responded to the Grenfell Tower Inquiry’s call for further representations. The submissions are set out below:
THE GRENFELL TOWER INQUIRY
SUBMISSIONS OF THE HOUSING LAW PRACTITIONERS ASSOCIATION (HLPA)
We welcome the opportunity to make submissions as to the scope of the public inquiry into the fire at Grenfell Tower.
HLPA is an organisation of housing practitioners representing tenants of residential properties and homeless persons established with the following aims:
• To promote, foster and develop equal access to the legal system.
• To promote, foster and develop the rights of homeless persons, tenants and others who receive housing services or are disadvantaged in the provision of housing.
• To foster the role of the legal process in the protection of tenants and other residential occupiers.
• To foster the role of the legal process in the promotion of higher standards of housing construction, improvement and repair, landlord services to tenants and local authority services to public and private sector tenants, homeless persons and others in need of advice and assistance in housing provision.
• To promote and develop expertise in the practice of housing law by education and the exchange of information and knowledge.
HLPA, by use of its broad expertise, has a well established reputation through responses to Government consultations and assisting members of Parliament to develop the law on housing and homelessness in the UK. HLPA regularly responds to consultations on legislation concerning housing policy such as in the Housing and Planning Act 2016, the impact of changes to legal aid in LASPO on housing and tenant’s rights and also has advised and assisted MPs on housing issues and legislation.
In response to the Grenfell Fire members of HLPA have assisted in providing pro bono legal advice to victims and has established a specialist sub-committee to address issues arising out of the tragedy in co-operation with other organisations and its membership. From our experience gained from this and other experience of HLPA members that HLPA is of the view that that there was an inherent disregard for the interests of social tenants and of the poorer communities in the Royal Borough of Kensington and Chelsea. It is our view, however, that this is not unique to this Borough and that is has also flowed from the Housing Policies and political positions taken by successive Governments.
It is one of our key submissions that an overarching aim of this inquiry is to examine institutional failures, both of Local and Central Government, and to investigate any institutional and political disregard demonstrated towards social tenants which arguably led to this tragedy. It is our view on that this is one of the outcomes the victims will expect from this inquiry.
The position of HLPA as to current legislation, regulations and housing standards is that they do not protect the safety and rights of tenants and leaseholds in the public and private sector. Also that such tenants are unable to effectively enforce existing housing standards, such as within the Housing Act 2004, through the courts or by regulators or complaint systems. The private member’s Homes (Fitness for Human Habitation) Bill has been re-introduced to Parliament and HLPA members have been involved in assisting Karen Buck MP in drafting the bill. HLPA supports this as a starting point and invites the inquiry to consider the issues raised by the Bill and to make recommendations such as to requiring it to apply retrospectively to all tenancies. However, it is unlikely this Bill and its predecessor would have assisted Grenfell Residents alone and other legislation on housing and changes to building standards are likely required and tenants must be enabled to effective enforce their rights and housing standards.
On the 29 June 2017 the Prime Minister stated:
“I am determined that there will be justice for all the victims of this terrible tragedy and for their families who have suffered so terribly.
The immediate priority is to establish the facts of what happened at Grenfell Tower in order to take the necessary action to prevent a similar tragedy from happening again. But beyond that immediate focus it is also important that all the wider lessons from both this catastrophe, and the inspections of other buildings around the country that followed it, are identified and learnt.
We must get to the truth about what happened. No stone will be left unturned by this Inquiry, but I have also been clear that we cannot wait for ages to learn the immediate lessons and so I expect the Chair will want to produce an interim report as early as possible.”
By reference to this statement and to the aims stated for the inquiry in the consultation document HLPA set out below proposed terms of reference for the Grenfell Tower Inquiry. In so doing we note and endorse the stated aims of the inquiry “…to ascertain the causes of the tragedy, and ensure that the appropriate lessons are learnt…” and that the Inquiry will need to “…examine all relevant circumstances leading up to and surrounding the fire at Grenfell Tower, its spread to the whole of the building and its effect on residents” and that it will be necessary to look “…beyond the design, construction and modification of the building itself.” Given the inquiry team does not consider these aims to be “exhaustive” our understanding of the latter aim means that the inquiry will consider the legislative framework and its effective enforcement regulating building standards and safety of residential accommodation occupied by tenants especially high density social housing and the decision making, including political decisions, of central and local government concerning finance, safety and provision of safe and suitable housing in the UK.
It is therefore HLPA’s understanding that the terms of reference are to be very broad and wide ranging.
It is our view that hearing the voices, experiences and views of the residents of the Grenfell Tower and residents of the surrounding estate is key to success of this Inquiry. Further, that to facilitate this tenants, tenants’ groups, leaseholders, residents and victims must be enabled to ask questions of those involved in decision making, rescue and disaster recovery efforts.
HLPA is well-placed to comment on the legal framework and rights of tenants and other occupiers of Grenfell Tower. HLPA believes an examination of those rights and safeguards should be one of the core objectives of the Inquiry to ensure that such a tragedy can never happen again.
HLPA’s submissions on the questions posed in the consultation paper.
1. What do you think the inquiry should cover and evidence to obtain?
The refurbishment of Grenfell Tower
(a) The reasons why the refurbishment works were carried out on the Tower and the decision making and consultation underlying it?
(b) How was the occupancy of Grenfell Tower monitored such that how would the local authority and/or the arms-length management organisation monitor and identify the residents of Grenfell Tower and the surrounding housing at the time of the fire: how many were tenants of the local authority, owner occupiers, tenants of owners, persons sub-letting, persons residing without permission?
(c) Which contractors were chosen and why? What was the bidding process and the criteria? Was this lawful, adequate and effective?
(d) The extent of the refurbishments works and materials specified and how these were approved at the outset and the end of the works? Was this lawful, adequate and effective?
(e) How were building materials, in particular the cladding used, tested and deemed safe? Was this lawful, adequate and effective?
(f) Were the right materials used and were the works and materials used safe and lawful and effective?
(g) Were there any issues or changes which adversely affected access or fire safety and rescue at the building, for example narrowing of access or the building of an academy? Was this lawful and how were these concerns effectively, and adequately addressed
(h) What was the involvement of the health and safety executive and fire service in approval of the refurbishment, materials and contractors used? What was the process and documentation? Was this lawful, adequate and effective?
(i) How was it proven to insurers and mortgage lenders that these material and works were necessary, safe and the right material and contractors were used? Did this have to be proven to these bodies and what if anything was the mechanism of documentation and approval? Was this process lawful, adequate and effective?
(j) On the consultation with the tenants were their concerns taken on board as to issues of fire safety and other issues as to the construction, refurbishment and other safety issues? This would include among many other matters the cladding, the windows, gas supply, any changes to access to the building and fire safety and fire suppression equipment? Was the process lawful, adequate, fair and effective?
(k) Was there any consultation and effective inspection (1) by surveyors and experts; (2) fire services? Who deemed the building safe? Was the work done lawfully and in accordance with required specifications and how was this monitored and approved?
(l) What was the involvement and respective roles of the local authority and the arms-length tenancy management organisation in the management and enforcement of this process?
(m) Were there representations and complaints made by the tenants and leaseholders in the building and were there issues related to funding and service charges? What was the response of the local authority and/or arms-length tenancy management organisation to these concerns were they listened to and/or acted on in an effective, lawful, fair and adequate manner?
(n) Were any of the tenants able to seek any effective legal redress for their concerns as to works being carried out and any safety issues? Were there any causes of action available which could be funded by the Legal Aid Agency? What were the sources of problems encountered here was it lack of effective legal remedy, funding or other availability of other resources?
Decisions, responsibility and monitoring
(o) As to the decision making on the refurbishment, works and complaints were there limits imposed by central government or legislation limiting the action of local government? Was there any financial constraint put on the works and refurbishment by the local authority? Was the work under or over budget? What were the political decision made on the works and how they were monitored?
(p) Was there any evidence of institutional disregard of the tenants and leaseholders voices as to the works carried out, the manner in which the works were carried out and safety issues?
(q) If there were failures in respect of any of the above issues could life have been saved? Were fundamental rights breached? What were the key defects in decision making? What were the failures? Does the present law and/or regulations provide adequate and fair protection? How could the law and its enforcement be improved?
(r) The immediate response of the local authority and fire authority to fire. Did the local authority have an adequate and effective emergency plan? Was this activated effectively? Did the local authority effectively involve other local authorities and agencies including Central Government and did Central Government act quickly and effectively? For example, did the local authority have a plan under the Civil Contingencies Act 2004 and are the statutory duties engaged or adequate for such emergencies? Was the fire rescue hampered by the layout and design of the estate and building and was it hampered by the lack of sprinklers or safety equipment on the building? Was the fire rescue hampered by lack of or inadequate equipment for the fire brigades? Was the fire safety advice to tenants appropriate? Could the fire be fought effectively? Could more lives have been saved?
(s) The adequacy of the response of the local authority to provision of temporary accommodation and support to those affected? Were residents from the Grenfell Tower and the surrounding accommodation treated differently?
(t) Was there adequate and sufficient advice and support provided in the immediate aftermath of the fire?
(u) What was the sequence of events after the fire and how did Local and Central Government and other support agencies respond? Was this adequate and did it meet the victim’s needs?
(v) The adequacy and effectiveness of the steps taken immediately following the fire, to protect the needs of residents who wished to be provided with accommodation in the local area.
(w) The adequacy of the steps being taken to ensure that the tenant’s rights under their previous tenancy are preserved in terms of future accommodation provided.
(x) The adequacy of steps being taken to ensure that leaseholders are fully compensated financially and/or with like for like accommodation.
(y) The adequacy of social support and medical services.
(z) The adequacy of advice services and their funding
(aa) The adequacy of the response of central government
(bb) The adequacy of information provided
(cc) The adequacy and role of the police and the criminal investigation.
Establishment of the direct causes of the fire and its rapid spread
(dd) A detailed examination of the direct cause(s) of the fire, namely how, where, and when the fire first started and whether it was avoidable; and what steps, if any, were taken by the occupant to put it out, alert residents, contact the emergency services etc.
(ee) The extent to which any failure to comply with existing statutory and non-statutory regulations, when managing or conducting general maintenance work on Grenfell Tower and the immediate surrounding buildings, contributed to the direct cause(s) of the fire, and the extent to which any failure to comply with existing statutory and non-statutory regulations, when managing or conducting general maintenance work on Grenfell Tower and the immediate surrounding buildings, caused or contributed to the rapid spread of the fire with particular regard to:
a. Building Regulations
b. Health and Safety Regulations
c. To the extent not covered by a. or b., Fire Regulations
d. Local Authority obligations towards residents
(ff) Was this legislation effectively enforced by the local authority or other agencies?
(gg) A detailed examination of the cause and circumstances that led to the rapid spread of the fire, with particular regard to:
a. The impact of any decisions made in respect of choice of building materials used in any recent external and internal renovations and/or post-renovation maintenance work to the building;
b. The impact of the method of building inspections carried out during and after external and internal renovations and/or post-renovation maintenance work to the building, including the independence and accountability of such inspections;
c. The impact of any decisions made concerning fire risk assessments and the availability of sprinklers or other fire defence equipment including smoke alarms, fire doors etc.
d. The impact of any failure to comply with existing statutory and non-statutory regulations and / or obligations, when carrying out external and internal renovations and/or post-renovation maintenance work to the building.
(hh) The extent to which the cladding and/or insulation breached existing statutory and non-statutory requirements, with particular regard to:
a. Its use on a high rise building
b. The adequacy of any tests (whether actual or desktop) carried out on the cladding before its use on Grenfell Tower
c. The suggestion that the cladding contained cyanide compounds.
(ii) Was there any other material or building design used which was of concern especially around the windows and gas fixtures which could have led to the cause and rapid spread of the fire.
(jj) The extent, if any, to which changes in the regulatory framework governing building and fire safety have resulted in a lowering of fire safety standards and caused or contributed to the rapid spread of the fire.
(kk) Is this legislation adequate and compliant, for example, with the protections afforded under the Human Rights Act 1998, namely Article 2, 3, 8 and 14? Can the present legislation provide the tenant or other body an effective remedy for non-compliance in the absence of compliance by Local Authorities, their management agents and their contractors.
The legal context including reaction to previous fires, housing standards and enforcement
Response to findings of previous inquests and inquiries
(ll) In the response to a report of the 28 March 2013 Lakanal House fire in 2009 Sir Eric Pickles wrote in 2013 that among other issues there would be a review of building regulations with a new document produced in 2016/2017. The ministers responsible for this were Brandon Lewis MP than Gavin Barwell (now Chief of Staff to the Prime Minister). There appears to have been no or little progress on this and other safety reforms including the required retrofitting of sprinkler systems? Has the Government’s response been adequate and what progress if any has been made and was this a contributory factor to the fire? Generally why is the Government so slow in response to coroner’s reports and recommendations.
(mm) The Lakanal House fire inquest is not the only inquest to address fire safety issues within high density housing. It is our view that this inquiry process ought to involve a review and audit of coroner’s inquests decisions and prevention of future death reports on fires in blocks of social housing and health and safety concerns for tenants and whether there has been a lawful, adequate and effective response from Central Government to these events and recommendations.
(nn) Did the housing policies of Central Government and previous Governments contribute to this disaster and does poor enforcement of poor housing standards in social and private sector increase the risk of future fires and disasters?
Housing standards in other countries and jurisdictions
(oo) Can the Inquiry learn anything on housing and building standards and regulations from other countries with similarly buildings for example, USA, Australia, other countries in Europe such as Germany and France? How do they compare to standards in the UK and if standards differ why do they differ and what have other countries experienced such fire and safety problems with high density housing?
(pp) For example, from the Scottish Select Committee Inquiry on cladding used in Irvine, Ayrshire on 11th June 1999 its findings such as:
“The adequacy of the regulations pertaining to their use
19. Notwithstanding what we have said in paragraph 18 above [in the report], we do not believe that it should take a serious fire in which many people are killed before all reasonable steps are taken towards minimising the risks. The evidence we have received strongly suggests that the small-scale tests which are currently used to determine the fire safety of external cladding systems are not fully effective in evaluating their performance in a ‘live’ fire situation. As a more appropriate test for external cladding systems now exists, we see no reason why it should not be used”
In this context for the Inquiry to consider the adequacy and effectiveness of the testing requirements suggested from this earlier report and the Scottish regulations . It is also an issue for the Inquiry as to how Central Government can justify such a different regulatory regimes in the UK?
Possible issues to consider from this
(qq) Does the present revived private members bill on fitness for habitation go far enough? Should it be applied retrospectively to all tenancies? Is the current legislative, regulatory and enforcement regime adequate and effective? What can be done to improve this and enforcement tenants’ rights?
(rr) How can the issue of institutional disregard of tenants’ rights be addressed and how can their housing standards and human right be effectively enforced? How have legal aid reforms affected this?
(ss) How can tenants be empowered to give effect to their rights?
Witnesses and evidence
(tt) It would be useful to seek expert evidence from those who act on behalf of tenants and leaseholders of both public and private sector accommodation to provide evidence and to the adequacy of present housing standards and the effectiveness of enforcement mechanisms including the availability of public funding to enforce such terms this should include challenges to:
(a) Repairs, disrepairs and standards
(b) Allocation of social housing and suitability of housing
(c) Effectiveness of existing legislation
(d) Effectiveness and availability of funding post LASPO, both legal aid and CFA.
(e) Impact of permission at risk on judicial review challenges to enforcement of housing standards
In particular, the inquiry should consider:
(a) Building Regulations including enforcement
(b) Fire Safety Law including enforcement
(c) Defective Premises Act 1972
(d) Building Act 1984 and in particular s38 which 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. [This section has never been brought into force]
(e) Leaseholder/RTB owner issues including the Regulatory Reform (Fire Safety) Order 2005 SI No 1541, service charges, and Housing Act 1985 Sch 6 which provides for certain terms to be implied into all right to buy leases.
(f) The bringing into law of the Homes (Fitness for Human Habitation etc) Bill.
2. What should the Inquiry deal with in its interim report? What should be left for the main report, so the interim report can be published quickly?
(a) We believe that the interim report should be largely a technical report and investigate the immediate causes of the fire, and the response of the various agencies involved, so as to make urgent recommendations for the immediate safety of other high-rise buildings. It would be assisted by the publication of a report on the testing carried out by the panel headed by Sir Ken Knight
The immediate issues to be investigated and reported on are:
• The immediate cause of the fire;
• Was the cladding used lawful and were there any other changes or modifications to the building which led to the cause and rapid spread such as the windows?
• Why the fire was not contained but was able to spread so rapidly?;
• Whether the works carried out prior to the fire were compliant with Building Regulations;
• Did any change or modification of the building on refurbishment inhibit fire rescue efforts?
• What escape routes were in place and whether one staircase was a sufficient means of escape;
• Whether internal fire safety measures, such as the installation of sprinklers, would have assisted;
• What fire safety instructions were given to the residents and why they were not adequate;
• How many buildings are presently affected and what steps should be taken to render them safe immediately?
• What is testing is still required and is the testing programme effective?
• Should there be urgent legislation requiring higher fire safety standards? In particular whether the Homes (Fitness for Human Habitation etc) Bill currently before Parliament as a private member’s bill should be pushed through and applied retrospectively to all tenancies?
• Any other urgent changes to regulations or building standards.
It is our submission that the remainder of the inquiry should develop these issues and consider the wider range of issues we identify above so as to comply with its objectives as identified by the Prime Minster and Sir Martin Moore – Bick. The ambit of this inquiry must include wider social and policy issues concerning the provision of quality and safe social housing and private sector housing to tenants who tend to be economically disadvantaged, poor, disabled and left without a voice in society
We would hope that core participants to the inquiry can be identified, and can receive public funding for representation. We would suggest that the minimum core participants would be:
• Any Residents Groups of Grenfell Tower and those in surrounding block affected existing at the time of the fire;
• The subsequent support groups providing assistance on the ground since the fire including the North Kensington Law Centre and CAB;
• The emergency services;
• Individual residents who might not be represented collectively.
• Organisations with expertise in assisting and representing tenants.
That the inquiry will take evidence at least from experts in fire safety, building construction, environmental health, housing standards law and finance of social housing.
Witnesses from organisations which represent and enforce tenants’ and leaseholders’ rights in public and private sector.
Evidence from other jurisdictions as to fire safety and building codes especially in high rise high density social housing.
We would recommend that the legal team assisting the inquiry be expanded to include an expert lawyer in social housing and tenant’s rights. At present those assisting the inquiry are of a commercial and construction, criminal law, public law and inquiry expertise. It is our view that the inquiry would be assisted by an addition of additional expertise.
We would recommend that in addition to the Inquiry being assisted by a technical panel it would assist the inquiry to have a panel of non-legal advisers as in the Stephen Lawrence Inquiry given the social and social policy issues which will necessarily be investigated.
The inquiry needs to be diligent and robust in its finding of fact and making representations with a clear commitment from Central and Local Government together with other agencies to act effectively, quickly and robustly on the recommendations.
We would expect the interim inquiry and report to be complete within 3 – 4 months with recommendations as to urgent legislation which may be required.
We would expect the main Inquiry to be complete and report within 1`2 – 18 months.
3. Contact details
We would like to be contacted via
Tim Baldwin, Garden Court Chambers, 57 – 60 Lincoln’s Inn Fields, London WC2A 3LJ.
Tel: 0207 993 7600
Arantxa Gaba, Kensington CAB, 2 Acklam Road
London W10 5QZ
Tel: 020 8962 3485
On behalf of HLPA
Signed by HLPA Grenfell Inquiry subcommittee
Tim Baldwin, Garden Court Chambers
Sophie Bell, Hodge Jones & Allen Solicitors
Andrew Brookes, Anthony Gold Solicitors
Caroline Brosnan, Russell Cooke Solicitors
William Ford, Osbornes Solicitors
Arantxa Gaba, North Kensington CAB,
Amy Just, Arden Chambers
Marina Sergides, Garden Court Chambers
Chair of HLPA
Simon J. Marciniak, Miles and Partners solicitors
Tessa Buchanan, Garden Court Chambers.
4 August 2017
Legal Aid Changes
Following representations made to the Ministry of Justice in conjunction with the Immigration Law Practitioners’ Association and the Law Society, amendments have been made to the Civil Legal Aid (Financial Resources and Payment for Services)(Amendment) Regulations 2017 to allow payments made to Grenfell Tower Victims to be disregarded from the public funding means calculation. The link to the legislation can be found here:
“The Grenfell Tower fire was a traumatic and devastating event, the consequences of which will affect local communities for years to come.
Aside from the anguish and loss being felt by residents and victims, there is deep anger that their safety concerns were ignored in the months and years before this disaster.
The Grenfell fire has shone a light on both central and local government’s increasingly dismissive attitude towards social accommodation tenants and their needs.
HLPA welcomes the announcement of a Public Inquiry. HLPA believes the scope of the inquiry must be sufficiently broad to allow an examination of whether there is a culture of disregard for social tenants permeating through government.
In particular, HLPA notes the following in respect of Grenfell:
· The victims of this fire were mainly social sector tenants and poor;
· The victims had, for some time, been complaining about the adequacy of their accommodation and, specifically, about the safety of it. These concerns appear to have been ignored;
· The attack on legal aid has had a real impact on access to justice. The residents of Grenfell Tower were unable to secure expert legal assistance to further their concerns;
More broadly, HLPA notes:
· The failure in local government to apply and/or enforce regulations relating to safety and habitation – whether in social or private accommodation;
· The urgent need to overhaul the primary and secondary legislation relating to the standard of accommodation, whether private or social, in order to provide residents with remedies that are meaningful and enforceable
HLPA’s objective since its creation has been to promote, foster and develop the rights of homeless persons, tenants and others who receive housing services or who are disadvantaged in the provision of housing. HLPA remains committed to fulfilling this objective to meet the needs of those affected by the disaster in the months and years ahead ”.
HLPA Executive Committee