In the recent King’s Speech, the government committed to “bring forward a Bill to speed up remediation for people living in homes with unsafe cladding”.
The public and political discontent with the current state of play is clear and unsurprising. Nine years after the Grenfell Tower tragedy, the government acknowledges that there are still too many buildings with unsafe cladding, endangering lives and leaving homes unsellable.
The government says The Remediation Bill delivers on manifesto commitments to address the issue and ensure those responsible contribute their fair share. However, given the ongoing pressures facing the construction industry, including challenges around the resources and responsiveness of the Building Safety Regulator, it remains to be seen how far the proposals will make a practical difference.
In this article, we summarise what we know so far about the Remediation Bill and explore how the resulting legislation might work in practice.
At the time of writing, the updated draft text of the bill is yet to be published. There is only so much we can gauge from the high level details revealed in the King’s Speech, but the headline points are as follows:
At present, no claims against product manufacturers linked to the cladding crisis have reached the courts. While the Building Safety Act 2022 introduced new rights to pursue product manufacturers, particularly under sections 147 and 148, in practice these claims are more limited in scope and can be more complex to establish than those applying to developers.
The Remediation Bill is intended to bridge that gap by broadening the basis for liability beyond the current restrictive tests and reducing the evidential burden of proving detailed product defect and causation. It's also expected to bring manufacturers more directly within the statutory remediation framework, thereby making it easier to recover remediation costs from them.
We're therefore told that the bill will “make construction product manufacturers pay towards fixing the problem they caused, by fixing long-standing gaps in the law and ending years of inaction. For the first time developers, contractors and others who have paid to make buildings safe will be able to properly pursue manufacturers, rather than being blocked by technical legal barriers.” This will be welcome news to developers.
The bill will introduce a new legal duty to remediate, compelling those responsible for affected buildings to identify, assess and fix fire safety defects without delay. Multiple references are made in the full text of the King’s Speech to a need for severe sanctions for non-compliance. We can surely expect such sanctions to include criminal prosecution for the most serious cases.
The government plans to introduce a remediation ‘backstop,’ whereby a third party such as Homes England can step in to implement remediation work itself if those responsible for the affected building do not meet the ‘backstop’ deadline. Again, tough sanctions will apply to ensure the responsible party pays for the work resulting from the step-in. Perhaps most notably, a 'potential' sanction the government is looking at is forced sale of the responsible party’s interest in the property, presumably with the proceeds from that sale being used to cover the step-in works.
It remains to be seen what the final ‘backstop’ timeframes will be. The latest indication we have is the 2025 Remediation Acceleration Plan, which set targets of the end of 2029 and the end of 2031 for buildings over 18m in height and buildings between 11-18m in height respectively.
On a more technical level, the bill will mandate how external wall assessments are carried out, to ensure a nationally consistent approach to remediation work. It will also introduce an 11-18m register to identify all remaining buildings requiring remediation work. This is a notable departure from the existing legal position, which only requires high-rise residential buildings, not medium-rise buildings, to be logged on a central register before people can live there.
The government’s clear and express recommitment to cladding remediation will no doubt be welcomed in principle by all those involved in the design, construction and management of residential buildings.
However, this commitment to “tackle those blocking remediation” sits alongside a complex set of challenges currently facing the construction industry, including those arising from the government’s own Building Safety Regulator, which is responsible for approving ‘Gateway’ applications for high-rise residential building work.
Just at the end of last year, a cross-party House of Lords committee warned the government that the Building Safety Regulator approval processes were causing “unacceptable” delays. Persistent issues around resourcing, responsiveness and clarity of guidance, has resulted in the average processing time for Gateway 2 approvals reaching nine months; a stark contrast to the statutory target of 12 weeks.
The practical reality is that a construction industry hamstrung by regulatory delays and wider economic pressures may well struggle to expedite the remaining pipeline of cladding remediation work, regardless of the statutory framework and associated sanctions backing the government’s target timeframes. Whilst the spirit and intent behind the bill is undoubtedly well-intentioned, pertinent questions remain around whether the government is trying to run before its regulator can walk.
If you require advice on any of the issues raised in this article, please contact our construction team.
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