Who is responsible for fixing buildings with dangerous cladding and how can the Government make them pay? This is the issue the Government has been struggling to get to grips with for over four years now, since the Grenfell Tower disaster in June 2017.
It’s fair to say that of all the affected groups leaseholders have borne the brunt of the pain. Leasehold clauses in affected buildings often stipulate that it’s the leaseholder who is financially responsible for any remediation work, but expecting leaseholders to easily hand over the often five figure sums required for remediation is hopelessly unrealistic and this has meant, in lieu of anyone else coming up with the money, progress on removing dangerous cladding has been painfully slow.
So, is it the builders who should be responsible? In many cases they were simply doing what was legal at the time, and even if you could prove they were using illegal materials, a number of the firms involved have long since been wound-up, making legal action a challenge.
What about the developers then? Again assuming your building wasn’t developed by a holding company in the British Virgin Islands, and is actually traceable, getting them to admit responsibility for the behaviour of their contractors is almost impossible.
How about the owners of the building? Shouldn’t the people who own the freehold of a building pay for fixing it? What often isn’t reported is that many professional freeholders are playing their part in supporting leaseholders, funding a number of services in the interim and trying to seek a resolution despite often having as much responsibility for a building’s defects as its residents.
Yet it’s clear leaseholders can’t foot this bill by themselves and the longer this situation continues the greater the financial, emotional and physical burden will be. Of course, one way to resolve the issue would be for the Government (and the taxpayer) to foot the bill. So far the Government has promised what it describes as a ‘generous’ package of £5bn in grants as well as a levy on developers worth £2bn for certain types of buildings. But for leaseholder groups, this commitment doesn’t go anywhere near far enough towards solving a problem that is estimated to cost up to £15bn to fix.
Cross-party attempts by sympathetic Parliamentarians to secure protections for leaseholders, through amendments to the Fire Safety Bill (FSB), which received Royal Assent in May, were strongly rebuffed by the Government. At the time, Policing Minister Kit Malthouse insisted that the FSB was not the right place for such an amendment, which would be better served by the forthcoming Building Safety Bill (BSB). Many campaigners and their allies on the Tory back benches will therefore have been waiting with anticipation for the publication of the BSB this week as an opportunity to review exactly what the Government plans to do to help leaseholders.
However, when the Bill was published on Monday, many were disappointed to see the Government’s flagship policy to support leaseholders consisted of an extension to the time period available to bring legal action against those responsible for a building’s defects, from 6 to 15 years after the building was constructed. Whilst no doubt a very useful development for many, others were quick to argue that pursuing legal action is a time consuming and costly process for already financially stretched leaseholders, with no guarantee of victory. And, with the complex Bill unlikely to come into force until 2023 at the earliest, the extension may be of little use to residents of a large proportion of the affected buildings.
Conservative backbenchers Stephen McPartland and Royston Smith, who led attempts to secure an amendment protecting leaseholders to the FSB have already spoken out against the contents of the BSB. McPartland described the Bill as “another sticking plaster instead of a solution” and called on the Government to “step in to help leaseholders, provide a real safety net and fund making our buildings safe.” But, speaking at the LGA conference this week, one of the architects of the Bill Lord Greenhalgh made a familiar argument when he told an audience that the Building Safety Bill “cannot resolve” the issue of leaseholder costs completely.
It now looks very unlikely that the contents of the Bill and the way the Government has sold it will have any impact in reassuring campaigners and allies that there is light at the end of the tunnel. We can expect a long battle to secure amendments as the Bill makes its way through Parliament and more and more Conservative backbenchers siding with leaseholders on what is an incredibly emotive issue. This a crisis that has been four years in the making and it looks to be far from over.