On Wednesday this week, the public inquiry into the Grenfell Tower disaster (the “Inquiry”) released its final report (the “Report”). The Inquiry finds a huge number of the entities involved in the Grenfell Tower refurbishment, including the construction parties, product manufacturers, accreditation bodies, and Government departments, failed adequately to ensure fire safety standards were upheld. The Report is particularly critical of the ACM manufacturer and the project architect.
The Inquiry recommends wholescale updates to the regulation of the construction industry, including the introduction of a new “Construction Regulator”, and proposes an urgent review of Approved Document B (“ADB”), which the Inquiry found to be inadequate and unhelpful.
This Law-Now provides a high-level overview of the Inquiry’s key findings and recommendations.
The construction parties – criticism and recommendations for change
It was determined that none of the construction parties properly understood their contractual and statutory fire safety obligations.
Clients: those commissioning work are required to better understand their obligations as provided for under the Building Regulations (“BR”).
The Inquiry recommends: no further action – the requirement under the Building Safety Act 2022 for a BR compliance statement approved by the client is sufficient.
Contractors: these entities need to become more technically competent, take a more active role in ensuring fire safety requirements are met, and ensure the responsibilities of each contractor are clearly defined. The Grenfell Tower contractor was found to have assumed that “someone else was responsible for matters affecting fire safety”.
The Inquiry recommends: a new licensing system (operated by the new Construction Regulator) for those working on Higher-Risk Buildings (the definition of which, under the Building Safety Act, has been recommended for urgent review). In addition, the Gateway 2/Building Control Application should be accompanied by a personal undertaking from a “Senior Manager” (from the Principal Contractor) that the Higher-Risk Building is safe as required by the BR.
Architects: the architect was found to have fallen below the required standard of care in the selection of insulation and rainscreen panels, in addition to failing properly to check subcontractor’s designs or confirm the fire strategy was completed.
The Inquiry recommends: a statement from a “Senior Manager” (from the Principal Designer) be including in the Gateway 2/Building Control Application, confirming that reasonable steps have been taken to ensure safe building designs.
Fire engineer: was insufficiently qualified, lacked the requisite technical expertise to determine whether fire safety had been achieved, and failed to produce a final fire strategy.
The Inquiry recommends: the profession should be formally recognised and its function dictated by statute. In addition, an independent body should be established to regulate the profession. It is also recommended that an authoritative statement defining the knowledge and skills expected of the fire engineer be produced.
Fire risk assessors: the competency of those undertaking fire risk assessments is criticised.
The Inquiry recommends: a government established mandatory accreditation certifying competency be implemented.
Building Control inspector: the Building Control inspector was seen as primarily a source of assistance, as opposed to an impartial compliance body. The conflict of interest in approved inspectors having a commercial interest in acquiring customers was noted.
The Inquiry recommends: change the role of the Building Control inspector to an independent and national authority.
Legislation and guidance – criticism and recommendations for change
The system for regulating high-rise residential building works was deemed to be “seriously defective”. Over time it had become “too complex and fragmented” with involvement from too many Government departments[1].
To further compound the issues, the primary statutory guidance (i.e. ADB) was poorly worded, susceptible to misinterpretation by those responsible for design work, and failed to provide appropriate instructions to practitioners as to how to design a safe building.
The industry erroneously took the ADB guidance as conformation of compliance with the BR. This coupled with a regulatory failure from the Government – specifically a failure to make changes to regulations that were urgently required, resulted in an unworkable regulatory regime.
The Inquiry recommends: an urgent review of ADB with “fresh minds” (including from those of the academic community) and reviewing/ revising the BR and associated regimes with a focus on safety considerations.
The Government
The Government ignored recommendations relevant to fire safety in the 25 years preceding the Grenfell fire, and was criticised heavily for its failure to act on:
- numerous warnings about the risks of ACM panels and polymeric insulation;
- coroner recommendations to urgently review ADB after the Lakanal House fire; and
- calls from the fire sector to regulate fire risk assessors.
The Inquiry recommends: the appointment of a Chief Construction Advisor to “provide advice on all matters affecting the construction industry” including monitoring BR work, in addition to creating a new Construction Regulator – a single body responsible for regulating the construction industry.
Testing and accreditation
Testing regime: The current large scale test methods (including BS 8414) and the BR 135 classification are not fit for purpose (significantly a BR 135 compliant system could still allow non-compliant spread of fire), and in any event, are not a proper substitute for a robust fire engineered analysis.
Certification of test data: Product marketing material was heavily criticised for insinuating compliance (where there was no evidence the relevant requirements were met), while those who sold the panels “engaged in [a] deliberate and sustained [strategy] to manipulate the testing process, misrepresent test data and mislead the market”. On top of this, accreditation bodies were found wanting, with the Inquiry concluding that the Building Research Establishment had been “complicit” in these misrepresentations for certain products and that the dishonest strategies of those selling the panels had succeeded in large measure due to the ”incompetence” of the British Board of Agrément.
Vulnerable residents
Phase 1 recommended the preparation of Personal Emergency Evacuation Plans (PEEPs) for all vulnerable residents be completed and placed in the information box. The LGA guide currently states individual evacuation plans were unrealistic, the Inquiry however concluded responsible persons should collect sufficient information about vulnerable occupants to ensure appropriate measures be taken to assist their escape in a fire.
The Inquiry recommends: the LGA guide and Phase 1 recommendation be reconsidered.
Key takeaways
At present, we do not know which recommendations, if any, the Government will take on board. In his recent statement following the publishing of the Report, Keir Starmer promised that the Government will respond to the recommendations within 6 months. The Prime Minster did however confirm that those contractors named in the Report will be barred from being awarded government contracts.
The Government has also said that steps will be taken to speed up the remediation process of those buildings with unsafe cladding, and that steps will be taken against those building owners that are not remediating. However, with the Inquiry recommending better educated and technically competent construction professionals, and with a shortage of competent fire engineers, it is unclear whether the industry has the capacity to achieve this.
Investigations into potential prosecutions by the Metropolitan Police have the Government’s full support, although the timeline for completion of such criminal investigations could be 12- 18 months.
For the time being clients should ensure they allocate additional budget and time resource to ensuring fire safety matters are properly considered, and for the professional qualifications of all parties involved in design, construction, product selection and fire safety to be properly interrogated and appraised.
References: Grenfell Tower Inquiry phase 2 report, published on 4 September 2024.
[1] functions relating to fire safety are exercised by the MHCLG, the Home Office, and the Department for Business and Trade.
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