A lesson in learning the wrong lesson?

Some of the post-Grenfell legislation seems to be counter-productive

[Photo source: the blowup on Unsplash]

The fire at Grenfell Tower in 2017 was a tragedy which we all hope is never repeated. The Government is trying to turn that hope into a reality through its Building Safety Act 2022.

One of the unbearably awful features to emerge from the Grenfell experience was that residents had warned the building’s managers of the fire risk and, it is said, the residents were ignored. So, amongst many, many new requirements for residential buildings more than six storeys high, the Building Safety Act imposes a duty on the landlord to listen to their residents on safety matters.

And, recognising the importance of avoiding the next potential disaster, rather than just trying to prevent a repeat of the last one, the Act doesn’t let landlords sit and wait for their tenants to report problems. The legislation requires landlords to initiate dialogue with residents to encourage a discussion. So far, so good.

But then someone in Government got carried away. Over at DLUHC (pronounced “D-Luck”, I believe, the Department for Levelling Up, Housing and Communities), they decided it wouldn’t be enough to tell residents that “it’s good to talk” about building safety and how to get in touch. They enacted a requirement for landlords to have a “residents’ engagement strategy”. I use quotation marks because that is the name used in the legislation, but any landlord who follows the detailed regulations will arrive at a result that is not very strategic at all. Or very readable. Or likely to deliver the intended results.

The example strategies I have seen go on for five or more pages – I’ve even seen one that is 15 pages! – which is counterproductive because the Act requires landlords to consult residents on the strategy. How many residents are going to read all that?

After the initial consultation when the strategy is first published, repeat consultations must take place at least every two years and sooner if the strategy is altered. Or if the building is significantly altered. That last requirement might be easier for the lay person to comprehend if the strategy for engagement were somehow related to the design of the building, but it isn’t.

Putting the law into practice

The apartment block I live in is owned by the residents. I am on the company’s board and it fell to me to write our strategy. I started out with a real hope that I could make it interesting. But how do you create an interesting read out of something with twenty-odd regulatory requirements governing the content, including the following:

• Information about the aspects of decisions that the landlord will consult on. (We are talking about safety issues that haven’t arisen yet, but landlords have to decide in advance which aspects of those decisions – not “which decisions”, but which “aspects” of those decisions – they will consult on.)  

• A specific promise to consult residents about the time of day the landlord will carry out works that might cause a nuisance, but only if the works enhance safety. (Works that cause a similar level of nuisance without enhancing safety don’t need to have their timing consulted on.)

• What arrangements the landlord has for taking the responses into account. (“By having a meeting with colleagues to discuss them”? The regulations are talking about responses we haven't received to consultations we haven't yet issued about works that don’t yet need to be done.)

• How the landlord will measure the appropriateness of the methods they have used to promote responsiveness. (Run that one by me again. Is the answer “by counting the number of replies”?)

• How landlords will comply with GDPR. (This is a really odd one. The safety regulator says this should be included, but it isn’t actually in the legislation and appears to be outside this regulator’s powers to police.)

And the strategy document is just the start. Any resident who might be tempted to read it will first have to find it amongst the morass of other information from the landlord that the law now requires residents to be inundated with, including a summary risk evaluation for the building (how is that not going to cause anxiety?), the location of the fire doors (there’s a heck of a lot of those in a modern apartment block), the fire escapes, the smoke control equipment, where it’s held and how to use it, what to do in the event of a fire (Residents, please, please, please read that one!), contact details for the building safety regulator (maybe read that later) and the  landlord’s process for handling building safety complaints (yes, landlords now have to create a complaints handling process, as well.)

There is another set of unnecessarily complicated regulations for what the complaints handling procedure must cover. I particularly like the fact that one paragraph of those regulations says a “complaint may be rejected for consideration under the system if it consists of a complaint which has already been determined” (no s**t, Sherlock). But, two paragraphs later, the regulations say there must be a procedure “for reconsidering [the outcome of a complaint] where the complainant requests reconsideration.”¹ I am enough of a pedant to be able to realise that these two paragraphs are not a contradiction of each other, but there are thousands of resident-owned blocks whose owners shouldn’t have to try to work out stuff like this. The government could easily provide a template for landlords to help them get started, but it hasn’t.²

Another of the items that landlords have to provide residents with is a list of all the information that they have to provide residents with. I think that just means a contents page, although there’s nothing to say it must go at the front of the pack where it would be useful.

But D-Luck didn’t stop there. The department for crossing its fingers and hoping that these regulations will serve a useful purpose has decided that landlords must also include information about the information that will be provided to residents. No, I didn’t mistype that. Landlords really do have to provide information about the information that will be provided. And no, the listing of the information that I mentioned above doesn’t cover this because the “information about the information” must be included in the engagement strategy, which is a separate requirement from the “list of the information”.

Where does this leave residents?

The money that landlords spend pulling all this information together and then distributing it to residents is normally recovered from tenants through service charges. The information I have seen suggests that landlords may incur fees measured in thousands of pounds, or even tens of thousands, gathering all the information they will need to collect for residents and the regulator (which goes further than the descriptions I have given above).

Money spent on making buildings safer is usually money well-spent. But expenditure on the requirements described in this article is not expenditure directly on safety measures. The measures will, at best, have an indirect effect on safety through the dialogue that they stimulate. At worst, the chances of having a life-saving dialogue will be drowned out by a deluge of information that deters residents from starting a meaningful conversation.

There is separate landlord and tenant legislation that attempts to protect tenants from inefficient or unscrupulous landlords who might try to impose excessive charges. So there is an inherent tension between the new requirements to incur costs relating to an extraordinary volume of safety information and older requirements not to overspend.  

One has to hope and pray that there will never be another fire like Grenfell. But if there is, what are the chances that a subsequent public enquiry will call for residents not to be swamped with information they can’t be expected to handle?  

If any readers of this article are associated with a resident-owned apartment block and would like to explore whether the draft of the engagement strategy and other information for my own block might help you to get started with drafting something for your block, please get in touch.

1. Neither of those paragraphs has its own link. But you can find them if you follow this link and scroll up to sub-paragraphs (14) and (16).

2. The government has provided so-called guidance on the complaints procedure, but it really isn’t helpful. For example, it says that the procedure must “describe how and when issues can be taken” to the regulator, but the guidance doesn’t spell out what those occasions are. I found four different instances in the regulations, but the guidance only seems to address one of them.