Fire safety: Are you covered?

“I’m sure we all remember where we were when we first heard of the Grenfell fire disaster.” These were the words of the chairman at a talk I was giving recently. The phase 1 report issued on 30 October graphically sets out the terrible events of that night. 

While the approved documents are guidance only and the mandatory obligations are contained in the Building Regulations, the industry still appears regularly to conflate the two

While that document is focused on investigating the course of events, the construction industry must be bracing itself for a damning second report. The first report makes for uncomfortable reading for the industry, even allowing for the limits on it. For instance, some suggested issues (gas, electricity and so on) have already been discounted as not playing a significant role and there have been “fewer significant conflicts of evidence than might have been expected”. In particular, the phase 1 report identifies the qualities of the cladding and the insulation and records “the principal reason why the flames spread so rapidly […] was the presence of ” ACM panels, as well as noting the impact of melting and dripping burning polyethylene.

One of the features of the debate since Grenfell has been the relationship between the industry, the Building Regulations and the associated “approved documents”. While the approved documents are guidance only and the mandatory obligations are contained in the Building Regulations, the industry still appears regularly to conflate the two. A quick review of industry websites for various product types unconnected with fire shows organisations frequently referring to compliance with the Building Regulations by reference solely to the approved documents. As the first report sets out (in section 5.6), the obligation is to meet the functional requirements of the Building Regulations.

The main contractor risks finding out that parties in the supply chain are not insured for all or any of the constituent elements of the claim

Indeed, statute law makes clear that the Building Regulations are the mandatory requirement and following an approved document regime only gives rise to a rebuttable presumption of compliance in favour of the performing party. Our experience to date at Blake Morgan is that despite looking at issues across many tens of sites, few (if any) parties have been able to allege, much less show, that they followed Approved Document B (ADB). Therefore, in practice not only does the industry appear to rely and continue to over-rely on ADB but, in practice, few can really show real compliance with the detail of ADB relevant to the issue at hand.

This over-reliance on ADB is then made worse by the way in which work is often procured. Frequently, works have been procured in such a way as to split different elements of ADB between different subcontractors. This is problematic because decisions made in respect of one element of ADB can have a substantial impact on what is perceived as acceptable on another element of ADB, or indeed whether the ADB route can even be used at all.

Worryingly, having procured the works in this way, a number of main contractors appear willing to admit openly that they do not know if the work complies and that they are wholly reliant on their supply chain, not just for purported compliance, but for the detail of the system in fact installed. They do not therefore know whether or not the works are compliant and simply say that is a matter for their subcontractors to prove. I make no comment as to whether that is at all adequate or satisfactory. It is, however, a difficult position to adopt if responsibilities under ADB have themselves been subdivided between different supply chain members.

There is an over-reliance in passing risks down the supply chain, or the supply chain being insured for that. Not only are there financial limits in insurance and the types of cover now available severely restricted, but for some while there has been a practice by insurers of restricting the insured’s liability to that owed under common law by the subcontractor or consultant or only to breaches of the obligation of reasonable skill and care. That insurance cover will, of course, be very different from the obligations owed under either specific bespoke drafting or contained in the statutory obligation duties owed under the standard forms of contract to meet the Building Regulations. So, while there may be a perception by the main contractor that the obligations and the risk have been passed down the chain, the true position can be very different. The main contractor risks finding out that parties in the supply chain are not insured for all or any of the constituent elements of the claim and responsibility will in fact rest with the main contractor.

James Bessey is a partner in Blake Morgan