EWS1 below 18m and the Building Safety Bill

Opening a debate on the Second Reading of the government’s Building Safety Bill yesterday, the Housing Secretary Robert Jenrick published a written statement and said he had received expert advice on the risk to buildings in the UK, and the need for EWS1 for buildings below 18m.

'The key finding of the experts’ advice is clear: we cannot and should not presume systemic risk of fire in blocks of flats’…. ‘the expert advice includes five significant recommendations to correct the disproportionate reaction that we have seen in some parts of the market. First, EWS1 forms should not be a requirement on buildings of less than 18 metres.'

Robert Jenrick, Secretary of State for Housing - link to Hansard

EWS1 Forms in Context

EWS1 forms were introduced by the Royal Institution of Chartered Surveyors (RICS) in December 2019 to provide a framework for surveyors to confirm to valuers and lenders that an external wall system has been assessed by a suitable expert.

The EWS1 form states that it is not a ‘life safety certificate’ and it should not be taken as confirmation that remedial works relating to fire safety other than related to the wall make up are not required in other parts of the building.

In making the statement yesterday, the Housing Secretary appears to have lost sight of the role that EWS1 forms play within the various pieces of existing and emerging legislation & guidance on the safety of external wall systems.

The EWS1 form is intended to confirm to lenders and valuers whether the value of a building is affected by the need for remedial works to the external wall materials.

Building Safety v Valuation

The Building Safety bill, which was the subject of yesterday's debate, establishes the requirement that each high-rise building in the country will have an 'accountable person' who will be responsible for ensuring statutory duties introduced in the bill are met.

One of the accountable person’s duties is to appoint a 'building safety manager'. The building safety manager will oversee up to 10 buildings, and it will be their role to assist in the management and oversight of the blocks they are responsible for to ensure they meet obligations.

This will include the requirement to undertake a fire risk appraisal and assessment (FRAA) of the external wall construction of existing buildings to the standard set out in the draft British Standard PAS9980 ‘Fire risk appraisal and assessment of external wall construction and cladding of existing blocks of flats – Code of practice’.

PAS9980 recognises that an FRAA is not within the competence of the typical fire risk assessor and will require assessment by a specialist. Fire risk assessors are expected to be judicious in the recommendations for an FRAA by a specialist. Specialist assessment should not be required where the external wall can be readily confirmed as being of traditional masonry construction for instance.

The draft standard goes on to clarify that :

‘For avoidance of doubt, it is not suggested that, even in the case of a building of a type that would normally be regarded as low risk (e.g a four storey block of flats of traditional masonry construction) the fire risk assessor will ignore….visually obvious material deficiencies or design features (e.g excessive amounts of timber used for…balconies’

British Standard PAS9980

To ensure the safety of a building, a specialist FRAA should be undertaken if a building has obvious material or design deficiencies irrespective of height.

Enforcement and tougher sanctions

The new regime envisioned by the Building Safety Bill is meant to be stringent, and it comes with tough sanctions for those who break the rules.

Directors or managers of companies responsible for the safety of high-rise residential buildings will be personally liable for failings, with new criminal offences for the most egregious cases carrying the potential for two-year prison sentences.

Fire Risk Assessments & EWS1 below 18m In Practice

The 'accountable person' and the 'building safety' manager will have a statutory obligation to undertake a FRAA of a building irrespective of height if there are concerns with the materials or design of the external wall system.

Failure to undertake such assessments could leave them personally liable for failings and risk criminal conviction.

Following the completion of such an assessment a building will either be safe with the various fire safety measures that are in place (alarms, extinguishers, sprinkler systems etc) or require remediation in order to be made safe. This could involve the replacement of materials and design features of concern, such as cladding or timber used in balconies.

Should remediation be required, the cost will not be covered by the Building Safety Fund, which only applies to buildings greater than 17.7m in height (18m +/- 30cm tolerance). Leaseholders may be able to recoup the cost of remediation from the original developer, but this will be subject to legal action and is unlikely to provide a short term solution.

The 'accountable person' and the 'building safety manager' will also have a duty to consult with residents of a block, which would include the disclosure of the requirement for potentially costly remediation works to a building.

Leaseholders in turn will have an obligation to divulge such costs to their lender when remortgaging or to a potential buyer when selling a property.

The Housing Minister’s statement that EWS1 forms will not be required on buildings below 18m might seem a welcome change but as stated by the Housing Minister yesterday :

‘The hon. Lady seems to misunderstand what an EWS1 form is. An EWS1 form is a product of the lenders and the Royal Institute of Chartered Surveyors. It is not the law and neither is it a product created by the Government.’

Robert Jenrick, Secretary of State for Housing - link to Hansard

Conclusion

This practice is no proponent of the EWS1 form, but there will continue to be a requirement for lenders and valuers to know whether the value of a building is affected by fire safety remediation works. This could apply to buildings belwo 18m, or of any height, irrespective of the Housing Minister’s statement.

Since the publication of the original EWS1 form in December 2019, this practice has reported on hundreds of blocks containing thousands of individual flats. Some of these buildings were obviously of traditional construction and unlikely to support combustion.

In such instances we were able to undertake a short and cost effective site visit to confirm that the value of the property was not affected by fire safety mitigation costs. If positive confirmation of value such as this is not to be communicated by an EWS1 form, then what will replace it?

(This article is the opinion of Anstey Horne only. It is not legal advice and no reliance should be made on it)