What’s all the RAAC-et about?

Concerns around Reinforced Autoclaved Aerated Concrete (“RAAC”) have become increasingly widespread since the Department for Education recently issued new guidance on the material’s management in the context of school buildings. As a result of the guidance, schools across the UK known to contain RAAC have closed, and alternative venues have been sought to commence the new school term.

Problems associated with RAAC are not however exclusive to the public sector. RAAC was commonly used for the construction of roof decks, walls, and floor reconstructions across a broad spectrum of properties in post-war Britain from the 1950’s to the 1990’s, and has been identified in other publicly accessed properties.

What is RAAC and why is it a problem now?

RAAC is a lightweight and porous concrete that is reinforced with metal. It is a cheaper alternative to standard concrete, quicker to produce and easier to install. However, RAAC’s high porosity and permeability means that it is also more susceptible to corrosion of its steel reinforcement. It also has a lower compressive strength than traditional reinforced concrete.

With a life span of 30 years (as assessed by the Building Research Establishment (BRE)), the last known RAAC produced in the UK is now beyond its design life expectancy. Exposure to moisture over the years, particularly in the context of the UK’s increasingly wet climate, will mean that RAAC is more at risk to deterioration and failure. The Health and Safety Executive has warned that RAAC may “collapse with little or no notice.” 

It should be noted that the concerns surrounding RAAC are linked to its durability and structural performance only. There is no evidence to suggest that RAAC poses any other health risk.

Health and Safety

Health and Safety at Work Act 1974

All employers owe duties under the Health and Safety at Work Act 1974 (“HSWA”) to ensure, so far as is reasonably practicable, the health, safety and welfare at work of their employees and those not in their employment but who may be affected by their undertaking.

In respect of premises made available as a place of work, each person who has, to any extent, control of the premises is obligated to take such measures as is reasonable for a person in their position to take to ensure, as far as is reasonably practicable, the premises are safe and without risks to health of non-employees.

A person is defined as having control where under a contract or tenancy an obligation exists on a party in relation to the maintenance or repair of any premises. It is therefore essential to consider the terms of any contract or lease in respect of repair and maintenance obligations to establish which entities in the leaseholder chain may have control of the premises for the purposes of the HSWA.

A breach of statutory health and safety obligations can lead to a prosecution, with a conviction resulting in a fine and/or imprisonment.

Landlord and Tenant

Repair and maintenance clauses

Even where landlords are confident that their tenants are under repairing (or other) obligations in respect of the parts of premises where RAAC is present, the position may not be clear cut and the landlord can be at risk. For example, landlords with sufficient knowledge of the risk and with rights of action under their leases (e.g., where the lease allows the landlord to enter the premises to remedy a tenant’s breach at the tenant’s cost) may be at risk of liability under the HSWA and/or the Defective Premises Act 1972 (“DPA”) if they do not take the necessary steps in the circumstances they are presented with (e.g., a tenant’s failure to repair or take any action).

Defective Premises Act 1972

In addition to the health and safety considerations set out above, building owners and occupiers should assess related property law exposure in relation to buildings where RAAC is present. Both landlords and tenants may have repairing obligations or other lease covenants that place the onus on them to act. Both groups are at risk of liability under the DPA if they fail to act when required.

Disrepair

Tenants may well dispute liability under their leases with arguments ranging from the RAAC not being in disrepair to exclusions of liability for inherent defects.

Civil Liability

Personal injury

A collapse of RAAC panels could result in personal injury or death and ultimately civil liability.

The breach of a relevant statutory duty, or a negligent failure to take reasonable steps to avoid foreseeable injury, may result in a claim by anyone able to demonstrate a connection between that breach and their injury.

Statutory duty

Any occupier, which means any person or body with control over a premises (which could be more than one person concurrently and relate to part of all of the building), owes a duty of care towards visitors to those premises under the Occupiers’ Liability Act 1957. The duty relates to dangers arising from the state of the premises or to things done or omitted to be done to those premises. It is to take “such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe” when visiting the premises.

Common law duty

Employers owe their employees and those affected by their undertaking a duty of care under the HSWA and, under the Workplace (Health, Safety and Welfare) Regulations 1992 (“WHSWR”), a specific duty to ensure that work premises under their control are properly maintained. However, neither breach of the HSWA nor breach of the WHSWR (or indeed any other health and safety regulation unless the regulation itself specifically provides for it) can give rise to civil liability for personal injury. A claimant must prove negligence, a breach of the common-law duty of care, to succeed. A failure to comply with health and safety regulations may nevertheless by relied upon as evidence of negligence.

Employers owe employees a common-law duty to take reasonable care for their health and safety at work, which includes taking all reasonably practicable steps to ensure the workplace is safe and free from defects liable to cause injury.

Whether an occupier of premises, an employer in charge of a workplace or a landlord with repair and maintenance obligations, the duty is broadly the same: to take reasonable care for those who may be affected by risks associated with the premises.

A failure to take reasonable steps so as to identify necessary repairs, RAAC or no RAAC, is likely to be considered negligent and/or the breach of a relevant statutory duty.

Professional indemnity

From a professional indemnity perspective, it is thought that RAAC will have relatively little impact. The material was falling out of use by the early 1990’s and as such, limitation will rule out claims relating to the original design, specification, and construction of the material.

It is conceivable that “duty to warn” claims might arise on, say, a refurbishment scheme but, where an owner/developer belatedly becomes aware that a property has RAAC, that developer has much the same problem of rectification as was present before the refurbishment commenced. In those circumstances, while there might be a claim for the “extra over” costs of dealing with RAAC out of sequence (or separately), the essential costs to rectify the property were always sat with the developer; the developer has always been stuck with the problem and the cost of rectification. The failure to warn has just deferred the need to grasp the nettle.

It is conceivable, too, that claims will be made against surveyors for failing to warn of the (possible) presence of RAAC as part of pre-purchase surveys. Such claims might be seen as somewhat contrived given that RAAC is most often covered up by other materials and could only be ascertained by way of an intrusive survey. In any event, however, it is likely that RAAC will appear as a standard exclusion in surveyors’ terms and conditions in the not-too-distant future.

Practical Considerations

In light of the potential for liability as set out above, the following practical steps and considerations may assist in managing the risk from the RAAC panels and future liability:

• Identifying responsible entities - landlords and tenants should review their leases carefully to establish, who in the first instance is required to take action, what action and in what circumstances. Landlords, tenants and employers may all have an obligation and must all ensure they carefully examine their options and circumstances before deciding on the most suitable course of action. Positive action, however, is almost certainly required where the presence of RAAC is known and a risk has been identified.
   
• Building survey - if you suspect that your building may contain RAAC, a building survey should be carried out as soon as possible to identify whether RAAC exists. The building should be surveyed by a suitably qualified and competent surveyor or a chartered structural engineer.
   
• Risk assessment - if RAAC panels are discovered, a risk assessment should be undertaken to identify any immediate reasonable measures that should be put in place to mitigate the risk of RAAC, so far as reasonably practicable to the health and safety of individuals. Short term immediate control measures may include closing off access to the areas of the building considered to be unsafe or other measures as identified by a competent expert.
   
• Remediation plan - a long-term remediation plan will need to be put in place and subsequently implemented to minimise the risks posed by RAAC panels within the building. Planning of remediation works and their cost will vary from building to building, and will depend on the size of the building, the location, and the implementation of temporary works.
   
• Cost recovery - in cases where landlords have the primary lease obligation to act and will want to recover the costs of doing so via a service charge, the service charge provisions will need careful review. Consideration will need to be given to any carve outs that exist which may enable tenants to avoid contributing towards the costs.
   
• Sales/purchases - RAAC issues reinforce the recommendation for a purchaser to carry out proper technical due diligence, which includes undertaking full building surveys to assess where RAAC may be present. Purchasers will also need to ensure that the appropriate enquiries of sellers are raised and any health and safety information (e.g., a seller’s health and safety file) is properly reviewed.

Finally, an accurate record of all actions, correspondence and other relevant documentation should be retained to demonstrate that all reasonable steps have been taken.

Given the publicity that issues associated with RAAC has now garnered, and the significant steps taken in relation to schools, it will now be very difficult for anyone to say that they could not reasonably have known of the risk. Now is the time for those with responsibility for building maintenance to ensure they know whether their premises contain RAAC and to take reasonable steps to assess the risk of collapse, seeking professional advice as necessary. It may be time to rebuild the roof while the sun is shining.