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Who pays for Grenfell-style cladding? The government plan

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Various UK government ministers have insisted that those living in flats with flammable Grenfell-style cladding should not have to pay for it to be stripped from their blocks and replaced. The latest view was given by Dominic Raab, Minister of State for Housing and Planning, who told a CIH Housing conference that “leaseholders should not pay those costs. And the private sector should not be let off the hook.”

The legal stituation as it stands is that cost of recladding will very much fall on leaseholders (the people who have bought their flats), as suggested by the Citiscape case (judgment here – not binding but indicative of where we are). So does the Government have a plan? Apparently it does, and Raab’s comments give clues to what it is. In broad terms, this seems to be it:

• The main thrust of the plan will be for those leaseholders who have bought their flats from local authorities or through housing association schemes (such as right to acquire or shared ownership). As the law stands, one would expect the LAs and housing associations to get the recladding done and bill the leaseholders for their share. (Note that other tenants may be in those flats who would never have faced such costs.) Instead:

• The Government will dip into its affordable housing budget and will use it to fund 50% (according to rumours) of the costs of recladding for leaseholders in the above categories. The implication of Raab’s words at the conference is that the local authorities and housing associations will fund the rest of the cost on behalf of leaseholders (as well as the full cost for the rest of their flats in the blocks ie those with tenants rather than leaseholders).

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‘Inaccurate and misleading’: Judge rejects Legal Aid Agency’s attack on eviction advice service

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A High Court judge has delivered a devastating crtitique of the UK Legal Aid Agency over its moves to change the way people facing eviction or repossession of their homes receive legal help. A crucial part of his argument for the change was based on a claim that was “both inaccurate and misleading” – or, as will be seen (and thankfully this blogpost can be less circumspect in its language), what is commonly known as “untrue”. The LAA had claimed two lawyers organisations backed the changes. In fact they had not been asked for their view.

The arguments of the Ministry of Justice and the Legal Aid Agency used to justify the change were “based on assumption or conjecture or, at most, ‘anecdotal’ evidence from a handful of un-named providers [of the legal services]”, said Mrs Justice Andrews, hearing a judicial review application brought by the Law Centres Network (pdf) in the High Court.

The matter at issue was the Housing Possession Court Duty (HPCD) schemes that seek to ensure on-the-day legal advice and representation for people in court facing repossession and eviction. They are largely funded by legal aid to the tune of £3.6m a year – 0.2% of the legal aid total – and in many cases not-for-profit organisations, including local law centres, have the contracts to do the work.

Around 2014 the Legal Aid Agency suggested the schemes should be subject to price competition for the first time and re-tendered in a more consolidated form – ie a reduced number of schemes covering wider areas rather than focused on local courts. (At around this time there were were 117 HPCD schemes covering 167 courts; this was to be reduced to less than 50).

The argument was that some providers had withdrawn from offering schemes for economic reasons and  the change would promote “sustainability” (that weasel word meaning anything and nothing). But Andrews found no evidence for either contention. Read the rest of this entry

How Labour opened hostilities against the Windrush generation

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“Gloria Fletcher wouldn’t have lost her job as a consequence of anything a Labour government did.” How wrong Labour MP Jack Dromey was when he made this confident statement on Radio 4’s Westminster Hour (at 38 mins) about one of the victims of the Windrush scandal. He was seeking to distinguish his party from the UK Conservative government that put in place the “hostile environment” against immigrants — with appalling effects on the Windrush generation in particular.

But it looks as if Dromey was wrong when he claimed that Gloria Fletcher, sacked after 36 years’ working in the same job in Britain, would never have fallen foul of Labour immigration policy. In fact she seems to have been the victim to Labour’s own legislation, passed as far back as 2006, to institute a “hostile environment” in order to drive out illegal immigrants from employment.

Labour’s 2006 Immigration, Asylum and Nationality Act at Section 15 says:

(1) It is contrary to this section to employ an adult subject to immigration  control if [broadly, s/he is an immigrant without leave to remain].

(3) An employer is excused from paying a penalty [for employing such a person] if he shows that he complied with any prescribed requirements in relation to the employment.

It turns out that, to avoid a penalty of up to £10,000 for, even unknowingly, employing a person without a legal right to be in Britain, the employer must have checked his/her documentation — a passport, for example, or any other relevant immigration document. This is what Mrs Fletcher had to show her new employer (after her firm was taken over). And since she had been in the country perfectly legally for 50 years without needing a passport or other document to stay, she could not produce the required proof.

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Citiscape: Tribunal says leaseholders must pay for cladding

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Note: Since this case Barratt, the builders, has agreed to pay for the cladding and firewatch.

The property tribunal considering who should pay for possibly unsafe cladding on a pair of London tower blocks, Citiscape, has delivered a blow to the leaseholders who own the individual flats. It has confirmed they must pay huge bills for replacement cladding after the Grenfell Tower tragedy highlighted dangers.

Leaseholders in the Croydon, South London, blocks had argued that the cladding – presumably perfectly legal when it went up – should now be treated as defective owing to post-Grenfell changes in regulation. They argued the freeholder, Proxima GR Properties, ultimately owned by the Tchenguiz family trust of property tycoon Vincent Tchenguiz, should pay. Or else the managing agent, FirstPort, should pay and then find who the money is due from: freeholder or developer or insurer or cladding manufacturer or possibly even the Government.

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Citiscape cladding case at the Property Tribunal: report

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Note: The Tribunal has now [March 2018] ruled against the leaseholders; report here.

The first battle in the tortuous struggle over who pays what for post-Grenfell tower block cladding has shown how complex this issue is going to be – but also offered some clues as to how the battle lines will be drawn up. One of the leaseholders of the Citiscape blocks in Croydon, south London, made a compelling submission to the Property Tribunal in London to explain why leaseholders should not have to pay for replacing allegedly dangerous cladding.

New government regulations require blocks to be stripped of cladding of the sort assumed to have been the cause of the Grenfell Tower fire tragedy in Kensington, west London, last year.

The issue of who pays will come down, not to who has the most money – freeholders or leaseholders – nor to the “moral case” according to Sajid Javid, Secretary of State for Housing (that “the tab should be picked up by the freeholders of those properties”). It will come down to interpretation of the leases between freeholders, who own the land (and hence are paid annual ground rents), and leaseholders who have bought flats in the blocks up and down the country (and hence have to pay the annual service charges for work on the buildings and administration).

The flats are bought on leasehold which means they revert back to the freeholder after a term of years – in the Citiscape case 999 years in total (they were built in 2004). This period is deemed “almost freehold” (ie almost as if the leaseholders owned outright), and that fact may have a bearing on the eventual outcome of the case. Note also that not all leases are the same, so the Citiscape case may give clues for other cases (of which there are likely to be many) but won’t be a precedent.

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The Karen Buck Bill: Has the Government got developers off the hook?

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Has the UK Government done a devious deal to protect its favoured business interests among property developers and construction firms from a post-Grenfell crackdown on dangerous homes? Suspicious minds might think so.

After some years of prevarication and filibustering by the Tories, the Government has agreed to back a Private Member’s Bill from Labour MP Karen Buck requiring homes to be “fit for human habitation”. With one proviso: a single simple clause that would do most to help people living in potential Grenfell Towers – catastrophically dangerous homes – has been removed.

In its original form the Buck bill included a provision that would have had a huge and positive benefit: simply to bring into effect a piece of legislation that is already on the statute books and has been sitting there for more than 30 years.

If it were implemented by the Government,  Section 38 of the Building Act 1984 would make it much easier for tenants to sue for breaches in building regulations – the very issue that (it is alleged by some) may have led to the disaster at Grenfell Tower with 71 people killed by the fire.

The Government seems to have headed off Karen Buck’s calls for reform by backing her bill but with the clause that would have implemented Section 38 excluded. That 1984 legislation will remain uselessly in limbo.

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Grenfell Tower: was the cladding really banned material?

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Note: The Government is now (May 2018) saying it will look at banning Grenfell-style cladding, though the Hackitt report made no such recommendation.

So, was London’s Grenfell Tower, scene of a horrific fire that killed dozens of people, covered in “banned” flammable cladding?   The  answer – worryingly – is probably no. And if that is the case, it exposes the shocking flaws in Britain’s regulatory system for high-rise developments.

The Department of Communities in initially answering this question – before any tests were made on the actual material – said this: “Cladding using a composite aluminium panel with a polyethylene core would be non-compliant with current Building Regulations guidance. This material should not be used as cladding on buildings over 18m in height.”

But this is not the case. Such cladding – described officially as “material of low combustibility” (MOLC) is lawful and recommended above 18 metres, as is the more fire-resistant cladding described officially as “non-combustible”. Composite aluminium panels with a polyethylene core may well meet the standard as MOLC. So, as long as the suppliers didn’t do some sort of substitution with inferior stuff, such panels are lawful. Read the rest of this entry

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