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Do I need an EWS1?

These type of questions crop up time and again in the cladding social media groups:


"My building is below 18m, is EWS1 legally required?"

"My building is getting an EWS1 even though we don't need one, can we challenge?"

"We have a small bit of cladding, do we need an EWS1"?

"I am buying a flat that doesn't require an EWS1, is this wise?"


These questions highlight the confusion that the EWS1 process has created and how it has obscured the other reasons that mandate invasive inspections and remedial works. This post provides some clarity.

Most people become aware of the EWS1 Form when they attempt to sell or purchase a new flat. And that highlights the main purpose of the EWS1 Form - it is a mortgage lender's tool only for valuation purposes. It essentially tells mortgage lenders (not in these words) that:


a) this new buyer could become liable for huge contributions towards remedial works, and

b) the asset backing the mortgage could be devalued by the blight and is at risk of being lost.


That's all. The EWS1 Form is not a legal requirement, nor is it a Fire Risk Assessment. It was developed by the Royal Institute of Chartered Surveyors (RICS) and it is a simple tick on a form - you can see a form and its criteria here. The Government has even been keen to distance itself from the EWS1 Form. However, as things stand, you are quite stuffed for mortgage purposes without one.


EWS1 is not the only reason or even the main driver for inspecting external wall systems. So what is?


The surveys and remedial works we are seeing are actually driven by the requirement for regular Fire Risk Assessment of common parts, which is a legal requirement of the Regulatory Reform (Fire Safety) Order 2005. Your building would (or should) have regularly done this anyway - for example fire doors get damaged by wear and tear, certain systems can degrade and require maintenance, and residents and staff create new hazards by blocking exits, storing flammable materials in the wrong places etc. So why weren't our external walls being risk assessed 16 years ago? Prior to the Grenfell Tower tragedy, there was a grey area around whether the external walls, and the front doors to flats fell under the definition of common parts, as highlighted by the Hackitt Review.


For the last 18 months or so, the Government's compliance-based January 2020 Consolidated Advice Note ("Advice for Building Owners of Multi-storey, Multi-occupied Residential Buildings") and the supplementary November 2020 Advice Note has been a driver for external walls checks as well as internal compartmentation checks being carried out. If you read this guidance, you may recognise many of your problems and woes. The prospect of a slice of the Building Safety Fund provided incentive to apply the guidance in the form of intrusive surveys and risk assessments prior to it becoming a definite legal requirement. The January 2020 Advice Note also applies to buildings under 18m (see clause 1.9). Clause 2.8 goes on to state: "Building owners or their appointed competent professional advisors(s) should check that the external wall systems on their buildings meet an acceptable standard of safety and do not contribute to the external spread of fire, irrespective of building height. Balconies, and risks arising from their construction materials, geometry and use, must also be considered."


The recently passed Fire Safety Act 2021 has brought clarity to the previous grey area around common parts. It is a really simple piece of legislation that amends the Regulatory Reform (Fire Safety) Order 2005 by confirming that external walls and flat front doors should be considered as 'common parts' when undertaking Fire Risk Assessments. The Fire Safety Act 2021 received Royal Assent on 29th April 2021, although there is no date set yet for when it actually legally comes into force, but it has cleared all parliamentary hurdles. It is likely to come into force to coincide with the publication of a supplementary risk-based Code of Practice guidance document, in the form of a Publicly Available Specification (PAS 9980) - see the draft version here. This PAS is due to be published in September 2021 to support a consistent risk assessment methodology. The risk-based approach is intended to provide a more pragmatic approach with existing buildings, and could help avoid some of the more dramatic remediation proposals that have been recommended thus far by fire engineers with onerous professional indemnity insurance terms. The PAS will apply to all multi-storey purpose-built blocks of flats of any height, and not just over 18m, which would be consistent with the legislation it is intended to support. The Fire Safety Act 2021 has therefore essentially now made it law to inspect risk posed by external walls and manage that risk in accordance with the PAS, irrespective of mortgage lenders' concerns, risk appetites or EWS1 scope.


The legislation (with supplementary specification guidance) going forwards, and Government guidance (advice notes) previously, are therefore the main driver of inspections, surveys, risk assessments and remedial works, not the RICS EWS1 criteria, although this is unlikely to be any consolation to mortgage prisoners.


If the building falls outside the arbitrary EWS1 criteria, or you find a mortgage lender with a risk appetite who is willing to lend on their own basis, it doesn't necessarily mean the building is free from fire risks; and a poor unsuspecting new buyer could still find themselves financially liable to mitigate fire risks identified by a Fire Risk Assessment despite purchasing in a building that falls outside the EWS1 criteria.


*UPDATE (23/07/2021)* on July 21st, Robert Jenrick announced in Parliament that the government recommends EWS1 should not be requested for under 18m buildings, and the January 2020 Consolidated Advice Note will shortly be withdrawn. The EWS1 point may be another smoke and mirrors tactic, because the EWS1 was never a legal requirement anyway, and the article above explains other reasons, including new legislation, why surveys and fire risk assessments take place. If mortgage lenders stop asking for EWS1s, it may potentially unlock sales, but it doesn't remove the recent legal requirement clarified by the Fire Safety Act 2021 that fire risk assessments must include external walls. The removal of the Consolidated Advice Note is no surprise, as the intention was always to replace that with PAS9980, which would supplement the Fire Safety Act 2021. The consulted draft version of PAS9980 clearly states it applies to all multi-storey purpose built blocks, and not just over 18m. It would take a very brave person to categorically state a building has tolerable risk purely on the basis of height, without any inspection or application of risk based analysis.


I do not have a crystal ball, but I predict the misery isn't over for under 18m. Mortgage lenders' appetite to risk may change and sales may unlock, but my worry remains that the new buyer could unwittingly find themselves liable for the cost of mitigating fire risks. MHCLG are not stating under 18m require no works, but have suggested that work could be limited to fitting alarms or sprinklers rather than costlier cladding replacement. These measures still cost money. And the question is...how do buildings know that such measures are required without undertaking fire risk assessment? Which brings us back to the requirements of the Fire Safety Act 2021. Essentially, survey and inspection will still be required, the results just won't be put onto a standard form that banks ask for. And without the EWS1 form, will conveyancers just ask for copies of the fire risk assessments instead? The genie is out of the bottle. The next few months will be interesting.

 

If you have discovered fire safety issues with your external walls, Clad To Help provides strategic advice from a leaseholder, RMC Director, Chartered Engineer and Project Management Expert who has led his own apartment block through the highly complex Building Safety Fund process. For support which protects leaseholders and offers cost and time saving strategies, please contact Scott@cladtohelp.co.uk to arrange an initial chat.


This blog post is purely for informational purposes. This information is provided in good faith and we assume no responsibility or liability for any errors or omissions in the content. Under no circumstances will Clad To Help Ltd be held responsible or liable in any way for any claims, damages, losses, expenses, costs or liabilities whatsoever resulting or arising directly or indirectly from the use of or reliance on the information or arising from your inability to use or access the information. Full Copyright Notice available at www.cladtohelp.co.uk. All rights reserved.

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