07 December 2023

Since the Grenfell Fire in June 2017, the UK and Scottish Governments have introduced a number of reforms in relation to external wall cladding and fire safety. On 1 November 2023, the Scottish Government published its latest proposals, in the form of the Housing (Cladding Remediation) Scotland Bill.

The bill aims to “reduce the risk to life from unsafe cladding on people’s homes” in three main ways: (1) granting new powers to assess cladding systems and arrange for remedial works; (2) establishing a Cladding Assurance Register; and (3) setting up a Responsible Developers Scheme.

Assessments and Remedial Works 

Under the proposals set out in the Bill, the Scottish Ministers will be empowered to arrange a “Single-Building Assessment” in relation to residential flatted buildings which (i) stand at 11 metres or more; (ii) were constructed or subsequently underwent development between 11 June 1922 and 1 June 2022; and (iii) have an external wall cladding system.

The Bill provides that the public can be ordered to supply relevant information reasonably required for the carrying out the Single-Building Assessment.  It will be a criminal offence to fail to do so, or to provide false or misleading information.

The Single Building Assessment will result in a report detailing (a) whether the cladding has created or exacerbated a risk to life and, if so, (b) what work is needed to eliminate or mitigate that risk.

Where it is identified that works are required, Ministers will be empowered to order evacuation (if that is deemed necessary on safety grounds) and arrange for works to be carried out.

The Cladding Assurance Register

The Bill also provides for the creation of a register of buildings which have successfully gone through the above assessment/remediation process.  The idea behind the Register is to provide comfort for various stakeholders of buildings which may be affected by cladding safety issues – e.g. owners, occupiers, purchasers and lenders.

Where the Single-Building Assessment did not identify any work as being needed, the building is to be entered into the register at that point.  Where the Assessment identified necessary works, the building is to be entered into the register once those works have been completed.

The Cladding Assurance Register is to record (i) the date of the assessment, (ii) the outcome of the assessment and (iii) where the assessment identified necessary works to address risk to life, the date on which the Scottish Ministers were satisfied the works have been completed.

The Responsible Developers Scheme

Under these proposals, the Scottish Ministers will be empowered to create a Responsible Developers Scheme. The Bill leaves much of the detail on membership and operation of the scheme to be developed in later regulations.  However, some noteworthy provisions in the Bill include:

• Membership of the Scheme may be made contingent on developers making financial contributions towards the costs of Single-Building Assessments and remedial works;
• Non-members may be prohibited from carrying out development work.

The goal is clear – to make the construction industry contribute towards assessing and remediating dangerous cladding.

Next Steps

The Bill is at an early stage in is progress towards becoming law.  It currently sits with the Local Government, Housing and Planning Committee. The Committee sought to gain an insight into the public’s views through a consultation which closed 8 December 2023.  The Committee is due to report on the Bill by 15 March 2024.

It remains to be seen whether and in what ways the Bill might be amended before it is passed into law.  However, the terms of the Bill as published provide a clear indication of Scottish Government’s plans for the identification and remediation of cladding safety issues, and for making the construction industry bear some of the cost.

Michael Collins, Senior Associate and Solicitor Advocate: mco@bto.co.uk / 0141 221 8012

Kate Ross, Trainee Solicitor: kro@bto.co.uk / 0141 221 8012