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?
Pre-fire
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?
Consultation
(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?
Post fire
(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.
Timescales
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
And
Chair of HLPA
Simon J. Marciniak, Miles and Partners solicitors
Vice Chair
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:
http://www.legislation.gov.uk/uksi/2017/745/pdfs/uksi_20170745_en.pdf