Grenfell: a tale of systemic failures

The Grenfell Tower Inquiry yesterday published its final report into the causes of the Grenfell Tower fire disaster. It must not be forgotten that the Grenfell Tower fire was and remains an intensely personal tragedy for all those who lived in and around the tower, and above all, for the families and friends of those who died.

Significantly, the report acknowledges that it is not possible to identify any single cause of the tragedy, with many different acts and omissions combining to bring about the Grenfell Tower fire. It also found that the PE ACM cladding panels were the “principal reason” for the rapid fire spread.

The findings

The report identifies a collective failure, over decades, by central government and other bodies in positions of responsibility in the construction industry to look into the danger of incorporating combustible materials into the external walls of Higher Risk Buildings (HRBs) and to act on information available to them.

It found a number of failures which can be grouped into (i) failures by successive governments to properly identify the risks posed by the use of combustible cladding panels and insulation, particularly in relation to high rise buildings, (ii) actions of construction product suppliers which resulted in unsafe products being used on HRBs and (iii) the failure of various industry bodies to act competently, robustly and professionally, and being too focussed on acting as a commercial organisations.

The report is also critical of the Tenant Management Organisation and the Royal Borough of Kensington and Chelsea for having a persistent indifference to fire safety, particularly the safety of vulnerable people, and for their management of the refurbishment of Grenfell Tower, together with those companies who were involved in the refurbishment.

The report is notable for the language it uses in describing the failures, in particular the report states:

1. In 1991 the government was warned of the risk of a serious fire that would kill people, yet over the next 25 years it failed to:

• Act on recommendations that BS8414 tests should be used instead of Class 0 classifications;
• Address the risks of the use of PE-Core ACM panels, which were found to be the principal reason of the fire spread;
• Revise statutory guidance in relation to the suitability of external wall panels despite evidence to the contrary; and
• Clarify Approved Document B despite knowing it was unclear and not properly understood by people working in the industry.

2. There was “systematic dishonesty” on the part of those who made and sold the rainscreen cladding panels and insulation products.

3. Much of the work carried out by the Building Research Establishment in relation to testing the fire safety of external walls was marred by unprofessional conduct, inadequate practices, a lack of effective oversight, poor reporting, and a lack of scientific rigour resulting in the false impression that regulations and guidance were working effectively.

4. The British Board of Agrément (BBA) procedures were neither wholly independent nor rigorously applied. Significantly, the BBA failed to manage the conflict between the need to act as a commercial organisation in order to attract and retain customers and the need to exercise a high degree of independence in its investigations.

5. The Local Authority Building Control failed to take basic steps to ensure that the certificates it issued were technically accurate.

6. The National House Building Council failed to ensure that its building control function remained essentially regulatory and free of commercial pressures, specifically, it was unwilling to upset its own customers and the wider construction industry.

Recommendations

The Report outlines several critical next steps for the construction industry to address systemic failures, prioritise safety, and ensure a holistic and coherent approach to construction industry regulation to prevent future tragedies:

1. Independent regulatory body: Establish a single independent body to oversee all aspects of construction regulation, reporting to a single Secretary of State for cohesive oversight to address the current fragmentation of responsibility for regulating and managing fire safety.

2. Building control reform: An independent panel should review the role of private sector approved inspectors and consider centralising building control functions under a national authority.

3. Licensing and competence: Introduce licensing for contractors working on higher-risk buildings and make it a legal requirement that any application for building control approval for the construction or refurbishment of a higher-risk building (Gateway 2) be supported by a personal undertaking from a director or senior manager of the principal contractor to take all reasonable care to ensure that on completion and handover the building is as safe as is required by the Building Regulations. Ensure fire engineers hold formal qualifications and are registered with a professional body.

4. Education and training: Improve the education and training of architects and fire engineers and promote continuing professional development in fire engineering principles for construction professionals and fire services.

5. Testing and certification: The construction regulator should be responsible for assessing the conformity of construction products with the requirements of legislation, statutory guidance and industry standards and issuing certificates as appropriate and ensure transparent testing and certification processes, with all test results included in certificates and a publicly available library of test data to support designers and regulators.

6. Client responsibilities: Reaffirms the existing requirement that clients commissioning building work have to provide a Building Regulations compliance statement with building control approval applications.

7. Government oversight: Consolidate fire safety responsibilities into one government department under a single Secretary of State and appoint a Chief Construction Adviser for expert industry advice.

What next?

The report is a damming indictment of actors within and outside the construction industry. There will be immense pressure on the industry and government to act on the contents of the report. Indeed, in his statement to the House of Commons yesterday, Keir Starmer made it clear that government will take steps to stop companies found by the Inquiry to have been part of the failings from being awarded government contracts and government is considering legislating to speed up the remediation of unsafe buildings. It is not immediately clear how this will work in practice, but ramping up of the Responsible Actors Scheme is one option.

It remains to be seen which recommendations the government will implement, when and how. However, it seems very likely that there will be further changes to legislation and the connected regulatory regime aimed at rectifying the issues uncovered by the report, which will undoubtedly increase the complexities, time and cost of building HRBs which the industry is already grappling with.

Simon Tolson is a senior partner at Fenwick Elliott, Ben Smith is a senior associate