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Grenfell Tower Inquiry diary week 62: ‘Did it ever occur to you that this act of collaboration was, in one sense, corrupting?’

Insight04.02.223.00 PM by Peter Apps

The Grenfell Tower Inquiry returned to the work of the National House Building Council (NHBC) this week, with a new shocking revelation about the government’s actions in the immediate aftermath of the fire. Peter Apps reports

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The Grenfell Tower Inquiry returned to the work of the National House Building Council this week, with a new shocking revelation about the government's actions in the immediate aftermath of the fire #UKhousing

This week the Grenfell Tower Inquiry returned to the topic it was examining before Christmas: the role played by the NHBC in the development of what we now call ‘the cladding crisis’.

To recap: the NHBC is the country’s largest building control inspector, which means it provides builders with completion certificates certifying that their project has complied with regulations.

With almost half of the country’s residential projects coming under its eyes, its interpretation of regulations is important and influential in deciding what actually ends up on our buildings.

As we have seen over the past few weeks of evidence, this interpretation appears to have helped ease the passage of combustible materials onto high-rise buildings around the UK.

We will pick up the story in 2013.

‘So it was a slavish following of a piece of paper, really, to put it unkindly?’

Grenfell Inquiry chair Sir Martin Moore-Bick

As the inquiry has previously established, insulation manufacturer Kingspan had been selling its combustible K15 insulation for high-rise projects since 2006.

This was despite guidance requiring the higher standard of ‘limited combustibility’ or that the entire cladding system build up had passed a large-scale test.

Kingspan had passed one such test, but this test used a system with heavy cement-fibre boards. It was selling its insulation for a far wider range of systems and the NHBC had been signing them off. Why?

The answer given by the witnesses this week was that a certificate written by the British Board of Agrément (BBA), a respected third-party certifier of construction products.

This certificate said K15 could be used in accordance with the passage in building guidance which demanded limited combustibility and could also be used in a range of systems providing the builder sought advice from Kingspan as to compliance.

As the inquiry has heard previously, this certificate was deeply flawed and a consequence of “very basic failures of due diligence” on the part of the BBA.

But the NHBC witnesses said they were entitled to rely on it. “I saw no reason to challenge the credibility of a BBA certificate,” said Diane Marshall, operations director at the NHBC.

“But it was incredible on its face, surely, wasn’t it?” asked lead counsel to the inquiry Richard Millett QC.

“No,” replied Ms Marshall. “The standing of a BBA certificate in the industry is well regarded.”

“Even if it says the moon is made of green cheese?” asked Mr Millett.

Surely the instruction to contact Kingspan regarding compliance placed too much power in the hands of the manufacturer?

“If we read this certificate as saying, ‘go and ask the manufacturer whether the product is suitable’, where’s the independence?” asked inquiry chair Sir Martin Moore-Bick.

“I can see how that would be viewed, but that was the view within the industry, that a BBA certificate could be held in that regard,” replied Ms Marshall.

“So it was a slavish following of a piece of paper, really, to put it unkindly?” asked Sir Martin.

“Well, a piece of paper produced by an accredited body that was well recognised,” said Ms Marshall.

But questions about this piece of paper were starting to mount.

‘As we learned more about Kingspan, we learned that their knowledge base was very limited’

John Lewis, a former senior fire engineer at NHBC

In October 2013, facade engineering consultancy Wintech contacted the NHBC to question its approval of K15.

In an email it warned that the product “does not meet the requirements of the building regulations” and should not be used “without… test data to confirm its acceptability”.

This was a problem for the NHBC. They had already accepted the product on hundreds of buildings and their clients expected it to be approved.

Internal emails showed staff members warning of a “a major issue with our customers” and a “barrage of enquiries” if they stopped approving its use.

“Did NHBC continue to accept K15 in order to avoid the barrage of enquiries?” asked Mr Millett.

“No,” said John Lewis, a former senior fire engineer at the organisation. “NHBC… wasn’t afraid of tackling difficult subjects.”

Mr Lewis contacted Kingspan to ask for more details about why its product was acceptable for use on high-rise buildings. But he was not impressed with the response.

“As we learned more about Kingspan, we learned that their knowledge base was very limited,” he said in his witness statement. He learned that the firm only had one successful test and they placed heavy reliance on the BBA certificate.

But in December 2013, the concerns about the certificate had reached the BBA and the firm amended it by removing the reference to contacting Kingspan and the claim that the product could be used in accordance with official guidance.

The NHBC found out about this change in January 2014. It asked Kingspan for further testing to prove the suitability of its product. Kingspan promised to do so.

But the NHBC now needed to decide whether or not to keep accepting products in the meantime.

‘Why not stop, unless it was something to do with trouble with customers?’

Diane Marshall, operations director at the NHBC

The argument of Mr Lewis and Ms Marshall was that they did not need to stop accepting K15 immediately.

Projects that had started before December 2013 were covered by the prior BBA certificate. Those which started from January 2014 onwards would not complete for some time. This left a gap for Kingspan to produce further testing which would justify the product’s use.

“Was the fact that refusing K15 might cause ‘a major issue’, or a ‘barrage of enquiries’... a factor in the decision − your decision − to continue to accept K15 on tall buildings, at least in the meantime?” Mr Millett asked Ms Marshall.

“No. At the end of the day, we want to achieve compliant buildings,” she said.

“Yes, but here was a real risk that buildings that you were approving weren’t. So why not stop, unless it was something to do with trouble with customers?” asked Mr Millett.

“No, the customer angle had no consideration, it was about compliance with whatever route was available,” Ms Marshall replied.

‘Did it ever occur to you that this act of collaboration was, in one sense, corrupting’

Lead counsel to the inquiry Richard Millett QC

While it was waiting for Kingspan to provide further testing evidence, the NHBC also led a group of building control professionals represented by the Building Control Alliance (BCA) to try and find a solution to the problem.

This resulted in the publication in July 2014 of ‘Technical Guidance Note 18’. This offered three ways for a cladding system to comply with the building regulations.

The builder could either use materials of limited combustibility, test their proposed build-up in a large-scale test, or submit a desktop study from an accredited test house affirming that if a product was tested it would comply.

This last route has been deeply controversial since Grenfell. This week’s witnesses insisted official guidance allowed existing test data to be used to infer whether or not an untested system should pass.

But should this have been applied to the complex area of combustible facades, where small changes can make a big difference?

Mr Millett pointed to passages in the rules on testing which said the results were only relevant to the specific system tested.

“Do you accept that these paragraphs are completely inconsistent with the existence of [desktop studies for cladding systems]?” he asked Mr Lewis.

“If we had implemented [the guidance] rigidly as per what you’re saying here, then nothing would have been allowed to be built because there were only four [successful] tests and that would have been all the construction industry could build on high-rise buildings,” he said.

He accepted that an alternative would simply have been not to use combustible materials.

Mr Lewis also accepted that the firm ultimately wanted to find a solution because it wanted to “collaborate” with rather than “hold up the industry”.

“Building control as a profession had wanted to move on from the days of, you know, being very rigid to a point where it was collaborative,” said Mr Lewis.

“Did it ever occur to you that this act of collaboration was, in one sense, corrupting, because it would undermine the ruthless and fearless independence of the regulator?” said Mr Millett.

“Well, I think we probably knew that, but, you know… I can’t give any more reasons, really. That was the thinking of the industry at the time,” replied Mr Lewis.

‘By this point, you now had strong suspicions that Kingspan were concealing failed test reports’

As 2014 wore on, Kingspan were unable to provide the portfolio of tests the NHBC had been hoping for.

And concern about the suitability of the product was not going away. In fact, the issue had reached the ears of a senior government official: Brian Martin.

Mr Martin, who was responsible for the building regulation guidance covering fire safety, wrote to the NHBC with what he described as a “friendly warning”.

“Allegedly − several buildings have been erected where PIR [polyisocyanurate] insulation has been used in cladding panels well over 18m in height. Apparently people are under the impression that PIR is a material of limited combustibility (which it isn’t),” he wrote. “Again, allegedly, many of these buildings are blocks of flats.”

The NHBC responded, setting out the situation with K15. It added: “There is no reason to suspect that buildings which have been built with Kingspan K15 are at risk at this time, it is just the fact that the testing carried out to date does not bear this out.”

But what basis did the NHBC have for asserting this?

“Given that, I think, hundreds of buildings that had used K15 above 18m had not used it in the one, sole, single specified tested construction which the BBA certificate spelt out, how could you possibly say that there was no reason to suspect risk?” Mr Millett asked Ms Marshall.

“Again, on the basis of a valid BBA certificate,” said Ms Marshall.

In autumn 2014, in an email to a friend at another building control firm, Mr Lewis described the product as “an accident waiting to happen”.

“Did your colleagues at NHBC share the view… that it’s all an accident waiting to happen?” asked Mr Millett.

“I believe they − everyone at NHBC – knew that this was not a good situation,” said Mr Lewis.

He would add in another email in summer 2015 that he had heard of a test Kingspan carried out with a cladding manufacturer using solid aluminium panels that failed in 15 minutes, with flames going over the top of the test rig.

He said Kingspan had never mentioned this test to NHBC and had threatened the cladding manufacturer with legal action if they ever mentioned it.

“Do we get from that, Mr Lewis, that by this point, early August 2015, you yourself now had strong suspicions that Kingspan were concealing failed test reports?” asked Mr Millett.

“Yes,” replied Mr Lewis.

This was particularly concerning because the NHBC was still signing off K15. In January 2014, it had written to Kingspan threatening to withdraw its approval of the product for high rises.

But the manufacturer responded with a threat of legal action and the NHBC backed down. Instead, it said it would only accept it with the support of a desktop study. But this position was to be further watered down.

‘It was a dangerous mistake on the part of the NHBC designed to go back to business as usual and at the expense of life safety’

New guidance published by the NHBC and handed out at a conference in 2016

In July 2016, the NHBC hosted a conference on tall building facades. Placed on the chair of each delegate was a new guidance document.

This document had been written by Mr Lewis and it outlined “common wall assemblies”, which the NHBC would accept without even asking for a desktop study.

It listed Kingspan K15 as an acceptable insulation material, as well as Celotex RS5000. For the exterior cladding, one of the options was aluminium composite material (ACM), providing it had a ‘Class B’ certificate.

This combination is precisely what was used on Grenfell Tower during the refurbishment.

Although the NHBC had no role in signing off the tower, and this guidance was not consulted by the local authority surveyor who did, it still appears to be startling evidence of the permissive attitude taken by building control at the time.

Mr Lewis explained that the guide was based on the large number of desktop studies NHBC had seen to this point. “We took the view that, you know, all we’re going to get on every building hereon is the same report saying the same thing,” he said.

He accepted that the guide was essentially “inference based on underlying assessments, which are themselves inferences from underlying data”.

He said the process of approving desktop studies for every individual project had become “very time consuming” and there was a “desire to move to a more business as usual footing”.

One major issue with the document was its apparent acceptance of ACM: the violently combustible cladding panel which had been linked to several huge fires worldwide.

Mr Lewis and Ms Marshall said the intention was not to accept the most dangerous type of ACM, which has a 100% polyethylene (PE) core, but only the less combustible version where it is diluted with non-combustible materials.

However, the guidance did not say this explicitly. Instead it appeared to say either type could be used, provided it had a Class B certificate.

“I thought that that was then clearly going to exclude all the 100% PE−cored ACM materials which, as far as we knew, would achieve nowhere near a Class B,” said Mr Lewis.

But he accepted he had not done any research to confirm this. Had he done, he may have learned that the panels used on Grenfell Tower were being sold with a certificate which claimed they met precisely this classification.

“Let me suggest to you that… [this note] was a dangerous mistake on the part of the NHBC designed to go back to business as usual and at the expense of life safety. What do you say to that?” asked Mr Millett.

“I have to agree, it shouldn’t have been written. We shouldn’t have done it,” replied Mr Lewis.

Asked the same question, Ms Marshall said she did not agree. “I think the knowledge at the time allowed us to produce the guidance note for our customers based on the evidence that we had,” she said.

‘Did you consider it appropriate that a government official was approaching you with a pre-prepared script in support of government after the Grenfell Tower fire?’

Brian Martin’s email to Diane Marshall two days after the fire

Finally, this week the inquiry delivered a shocking new revelation about the government’s actions in the immediate aftermath of the fire.

On 16 June 2017, two days after the blaze, Mr Martin emailed Ms Marshall about an article which had run in The Times suggesting building guidance permitted the use of the cladding used on Grenfell Tower.

Mr Martin had been asked to rebut this and wanted Ms Marshall to help. “I’ve also been asked if an independent expert would be willing to say this (or something similar) in public? Can you consider the attached and let me know please,” he wrote in an email.

He attached a script which explained the government’s line on why the guidance in fact banned the use of the material.

“Did you consider it appropriate that a government official was approaching you with a pre-prepared script in support of government after the Grenfell Tower fire?” asked Mr Millett.

“I think it was unusual,” replied Ms Marshall.

“But did you think it was appropriate?” asked Mr Millett

“I don’t know if I considered it at the time,” she replied.

She ultimately suggested Mr Martin should approach the BCA for a “more independent” view.

Was her reluctance to engage due to the NHBC’s own guidance document which apparently allowed the use of ACM? Ms Marshall insisted it was not.

The inquiry continues, with evidence from the UK Accreditation Service continuing next week.

Grenfell Tower Inquiry – week 62 headlines

Government sought ‘independent experts’ to help rebut critical media reports two days after Grenfell fire

Government officials sought “independent experts” willing to follow a “pre-prepared script’ defending their official guidance from media criticism two days after the Grenfell Tower fire, new emails released by the inquiry reveal.

NHBC ‘should not have written’ dangerous cladding guidance former fire engineer accepts

The UK’s largest building control inspector should not have written “dangerous” guidance which endorsed the use of combustible cladding products, its former senior fire engineer said.

NHBC suspected Kingspan was ‘concealing failed fire tests’ before Grenfell

A senior fire engineer at the UK’s largest building control inspector had “strong suspicions” that large insulation manufacturer Kingspan was “concealing” failed fire test reports, but continued to accept the use of their product on high-rise buildings.

NHBC fire engineer accepts ‘corrupting’ influence of desire to collaborate with industry

A former surveyor at the National House Building Council has accepted that a desire to “collaborate” with industry over its use of combustible insulation was a “corrupting” influence for a firm required to enforce fire safety regulations.

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