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Grenfell Tower Inquiry diary week 66: ‘Was there a cover up?’

Insight04.03.225.00 PM by Peter Apps and Grainne Cuffe

The latest evidence from the Grenfell Tower Inquiry tracked the government’s failure to act on fire safety warnings right up until the months before the fire. Peter Apps and Grainne Cuffe report

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The latest evidence from the Grenfell Tower Inquiry tracked the government’s failure to act on fire safety warnings right up until the months before the fire. Peter Apps and Grainne Cuffe report #UKhousing

This week the Grenfell Tower Inquiry continued to hear from former civil servants, with Anthony Burd and Bob Ledsome taking the stand.

Both were previously senior figures in the government division responsible for building regulations and both were grilled on why more was not done to clearly outlaw dangerous cladding in the years before the Grenfell Tower fire.

The week gave us the first look at the evidence covering a crucial period for the inquiry: the years following the recommendation of a coroner in March 2013 that fire safety rules be reviewed.

Our review begins in the year 2001, with more evidence surrounding the mock cladding tests carried out by the Building Research Establishment (BRE).

‘Given the fact that not publishing it was unusual, was there a cover-up?’

This week’s evidence once again began with discussion of a testing programme on a variety of cladding systems in the early 2000s.

To set the background: the government had agreed to introduce a new large-scale cladding test designed by the BRE, which was running a series of mock tests to establish an appropriate pass/fail criteria.

The programme resulted in tests of 14 systems between May and November 2001. The inquiry has focused on one of these tests carried out on 18 July 2001, which contained the same type of aluminium composite material (ACM) cladding that was later installed on Grenfell Tower.

The 2001 test failed disastrously. It exceeded the set failure criteria just three minutes into the 30-minute test, spread 20-metre-high flames after five minutes and was halted to protect the safety of those present 45 seconds later.

“Would you agree that this [the ACM test] is a catastrophic escalation of the fire?” asked Richard Millett QC, lead counsel to the inquiry.

“It was a very fierce, fast fire,” replied Mr Burd.

“Were you left in any doubt at all at this time that the use of aluminium rainscreen panels with a polyethylene core when used at height, presented a serious risk to life?” asked Mr Millett.

“I’m trying to recall what I considered at that time,” replied Mr Burd. “I envisage I would have thought that it was quite timely and correct that the learnings from this would feed in to set the ultimate pass-fail criteria for these sorts of products.”

The cladding panel used on the test had a ‘Class 0’ rating, meaning it complied with the minimum standards in official guidance, Approved Document B. Surely, this should have been a major concern for the government?

Mr Burd’s argument was that although the panels were compliant with the Class 0 standard in the guidance, they still should not have been used on buildings.

This is because they would not comply with the overriding responsibility that the walls of buildings should “adequately resist” the spread of flame, which is imposed by legislation.

He also pointed to a general warning in Approved Document B that even if materials met the basic standards, they still may present a danger.

Inquiry chair Sir Martin Moore-Bick, inquiry chair pressed Mr Burd on this point. The guidance set out a “step-by-step” guide for builders which culminated in telling them to use a Class 0 panel.

“As I understand it, your evidence is that that is all overridden by the warning… that there may be problems if you use combustible materials?” Sir Martin asked.

“Yes, sir,” replied Mr Burd.

“Did it ever occur to you that there might be people reading [the guidance] who would not get that message?” asked Sir Martin.

“I suppose there is always that potential risk,” replied Mr Burd. “I can only speak of a time when I was working in building control and then I became a regulator, is that we were always taught to read all of the approved document.”

But this argument felt terribly circular: the evidence that the panels posed such a serious risk came from the testing. And the testing was never released. So how would builders have known?

Mr Burd accepted that in the normal course of business test results like this, paid for with public money, would be made public.

“Given the fact that not publishing it was unusual, was there a cover-up?” asked Mr Millett.

“No sir,” replied Mr Burd.

“You see, some people looking at this might put to you the fact that the reason why there was a cover-up was because… the government might know that releasing these results would immediately trigger a cladding crisis,” said Mr Millett.

“I can see why people might think that but, from my perspective, there was no such cover-up,” replied Mr Burd.

‘Was this a question of balancing public safety on the one hand and market choice on the other?’

We learned last week that, even notwithstanding these tests, the Class 0 standard should have been dropped in the early 2000s at any event in favour of new tests being developed in Europe.

The Euroclass regime, which graded the fire performance of products on an alphabetic scale from ‘A1’ (the best) to ‘E’ (the worst), was being adopted around the bloc and the UK, as a member state, was supposed to harmonise its own guidance with the rest of the continent.

To do this, the first decision was which European standard should replace Class 0. This was not straightforward: the tests were totally different and could not simply be overlaid onto each other.

In the end, the government selected ‘B’. But while generally tougher than ‘Class 0’, this was a grading which would still permit the use of some combustible materials. Choosing to go one notch higher (A2) would have outlawed anything combustible.

But a report prepared for the government in May 2000 warned that A2 would “severely restrict market choice”.

“Is it right that if you said that class 0 should be equivalent to Euroclass A2, that would have been likely to have met with serious resistance from the industry?” asked Mr Millett.

“Potentially, yes,” replied Mr Burd (pictured above).

“I mean, was this a question, standing back a little bit from this, of balancing public safety on the one hand and market choice on the other?” asked Mr Millett.

Mr Burd said it was “felt that B was a good level of performance and… would sit more naturally with class 0”. He added that A2 was seen as “too demanding”.

The next question was when to make the switch from Class 0 to Euroclass B.

According to notes of meetings attended by Mr Burd in the early 2000s, a transition phase should have started in 2002, where both standards were applied. Then all new products should have been expected to meet the Euroclass B standard, with Class 0 eventually withdrawn.

This never happened. Instead, we stayed in an indefinite transition period until 2018 – a year after Grenfell – with both standards in the guidance. Why? Again, it appears industry pressure was a factor.

The issue was that some materials which could obtain Class 0 (such as foil faced insulation products) would score a C or D when tested under the Euroclass system.

The inquiry saw a letter from January 2002 sent by lobbyists for the combustible insulation sector which warned the Euroclass system could see “previously acceptable safe products… prevented from continuing in their application”. “I think you will agree this should not happen,” the letter concluded.

“Did you not see this letter as an example of industry trying to cling on to class 0, despite what you now knew of its proven unreliability?” asked Mr Millett.

“In relation to the first part of your question, in terms of wanting to cling on to the national approach, yes, I agree,” replied Mr Burd.

‘Why do it that way?’

Despite the failure to alter the guidance in the early 2000s, the relevant passages in Approved Document B did change in 2006.

The driver was a fire at a building called the Edge in Salford in 2005. The walls of this buildings were made of metal panels held together with polystyrene. The polystyrene was highly combustible and had resulted in the fire spreading from the second floor to the the top of the 19-storey building in less than 10 minutes.

The tower had recently been completed and was only partially occupied at the time of the blaze, but a report from the BRE said the fire service had “grave concerns” for the safety residents had the building been fully occupied.

Pertinently, these panels had a Class 0 rating and were therefore used in compliance with Approved Document B.

On 18 January 2005, another senior civil servant, Brian Martin, emailed to say that the “guidance is in need of clarification”. “This appears to be as a result of changes in construction practice whereby the intent of the original guidance has been circumvented,” he wrote.

He attached a potential new wording which said that insulation products and “any other material” used in an external wall should meet the standard of “limited combustibility”.

Limited combustibility is tougher than Class 0 and Mr Martin’s proposed wording would have banned combustible cladding outright.

But this was not what happened. In his email, Mr Martin said the wording still needed “some work” as in its current form it would have “prohibited timber-framed buildings”.

A redraft of Approved Document B was then written, consulted on and published in 2006.

Ultimately, the paragraph Mr Martin had identified as in need of a redraft was amended to say that “any insulation product, filler material… etc” should meet the standard of limited combustibility.

The provenance of the word ‘filler’ appears to have come from a consultation response submitted by large building control firm the National House Building Council (NHBC). But it was never formally consulted on.

Asked why further questions were not asked about its precise meaning, Mr Burd said there was not time.

But the meaning of these words was not clear and has caused an enormous amount of debate since the fire.

The government is insistent that the words “filler material” should have covered the core of an ACM panel.

But this has been disputed by many, including some of the expert witnesses engaged by the inquiry, who have argued that ‘filler’ had a much narrower meaning and that the continuing presence of the ‘Class 0’ standard in guidance meant lower standards applied to external cladding panels.

“Why do it that way? Why not say, ‘all composite rainscreen panels must be composed throughout of materials of limited combustibility’? That would have solved it,” asked Mr Millett (pictured above).

“In hindsight, sat here, I can see how it looks that way, yes,” replied Mr Burd.

He told the inquiry that the government did intend to permit the use of some combustible materials, even after this new wording was adopted and that “filler material” was not intended as a catch-all to ban everything combustible. These admissions may prove difficult for forthcoming government witnesses, given claims made about the application of the guidance since the Grenfell Tower fire.

‘I suggest we need to be very careful here… we don’t want to start any hares running’

In 2009, a fire tore through a high-rise building called Lakanal House (pictured above) in south London and killed six people including three children.

We have already heard a nascent investigation by the BRE for the government was “shut down” just weeks after the blaze.

But the BRE then began investigating for the Metropolitan Police. In December 2009, Sir Ken Knight, a senior advisor to the government, emailed Mr Burd and Mr Martin to notify them that tests on the panels installed on the outside of Lakanal showed they were “demonstrated to propagate flame”.

The belief at the time was that they had “enhanced the vertical spread of fire from the flat of origin and may have contributed to the downward fire spread”.

Mr Burd responded to this email by writing: “I suggest we need to be very careful here… we don’t want to start any hares running.”

What did he mean by this? “I think it was just saying we need to do it properly, but we just need to have the full gamut of the evidence,” he said.

The email chain then continued with Mr Martin writing: ”Honestly. I leave you alone for 5 minutes!

“I’m not convinced about this. The pictures of… Lakanal House don’t suggest to me that the spandrels were particularly significant. It ’s nothing like Irvine [where a substantial fire had occurred in 1999].”

Less than a minute later, Mr Burd replied: “Which is why we just go for a general fire safety message − not focussed on elevations [external walls]. I promise that I do listen to you.”

Mr Burd claimed that all he meant by this was that a general fire safety message was more appropriate until the full information had been obtained.

‘Is there anything else we could scrap or amend… like insurance to replace building control?’

Shortly after this exchange, the May 2010 general election brought the Conservative and Liberal Democrat coalition to power.

This resulted in a tough line on regulation, as the government sought to cut ‘red tape’ to boost the ailing UK economy.

In September 2010, Mr Burd attended a meeting where he was told the strategy meant “regulation must be a last resort and the cost benefit analysis must stack up”.

“Did you at any time yourself consider how these policy constraints might affect how you were able to carry out your role?” asked Mr Millett.

Mr Burd said it did. “I had five technical members of staff by the time I left in 2013, and so what we found ourselves was spending an inordinate amount of time looking at how we could deregulate… which meant we couldn’t necessarily focus on the job at hand,” he said.

We got a glimpse of how far this new approach affected thinking with a document prepared for junior Liberal Democrat Andrew Stunell (pictured above) in May 2012.

The minister was preparing for a meeting with the government’s deregulation tsar Oliver Letwin and officials floated the idea of scrapping building control entirely and relying instead on private insurance.

The push against deregulation was crystalised with a new ‘one in, one out’ rule which was imposed in 2011. This meant a cost assessment had to be made of any proposed new regulation and an equivalent amount of cost stripped out by removing existing rules.

This was toughened to ‘one in, two out’ in January 2013 and ‘one in, three out’ in 2016.

Approved Document B, despite only having the status of guidance, was covered by this new rule.

Mr Burd said rules affecting housebuilding were particularly impacted as the government was keen to reduce “cost burdens” on house builders. “So there was an effective moratorium controlling what further regulations you could bring forward,” he said.

And this regulatory drive was about to smash directly into concerns about fire safety. Because in March 2013, a lengthy coroners inquest into the six deaths at Lakanal House concluded.

The coroner wrote to then-communities secretary Eric Pickles calling Approved Document B “a most difficult document to use” and recommending a review, with particular regard to the issue of external fire spread.

Mr Pickles responded in May 2013 promising a new version of the document by 2016-17. But how could this be delivered under the limitations of the new desire to limit regulation?

‘I regret that perhaps we should have given it more attention and we didn’t’

A year after Mr Pickles’ (pictured above) letter, Mr Martin, who was in charge of building regulations at the time, wrote in an email that the promise to produce a new version of the approved document was “not an absolute commitment”.

Bob Ledsome, the deputy direction of building regulations between 2011 and 2018, said he “did not know why” Mr Martin would have said that, because “there was a commitment” from the secretary of state.

The inquiry saw Mr Martin said in his witness statement that as an election was due in 2015, “another government would be in power and would not be bound by the commitments of a previous administration”.

Mr Ledsome said he could understand the reasoning, but added: “It would have been unlikely that a new government would have said, ‘oh, we’re going to completely ignore this recommendation and do something completely different’.”

Asked about the time scale of finishing the review of Approved Document B, which aimed for 2016-17, Mr Millett asked if Mr Ledsome had “allowed yourself to be overwhelmed and distracted by the complexity and the size of the task” and “lost sight of the fact that what the coroner wanted was a response which went to life safety”.

Mr Ledsome said: “I do not accept that we lost sight of life safety. I do accept that we should have thought is there an option to do something sooner?

“Yes, I accept that and I regret that perhaps we should have given it more attention and we didn’t.”

He added that had the department developed a new version of the guidance, it would have been caught by the ‘one in, two out’ process.

He also said there was a view that applying for an exemption from the rule was “not a fight worth having”.

“Was your pessimism that you described earlier in not even applying [for an exemption] grounded in the assumption that the cost−benefit principle would always trump any consideration of life safety?” asked Mr Millett.

“Well, it certainly would have made the case for change more difficult to achieve,” replied Mr Ledsome.

‘Our correspondence with the APPG is appalling: delayed, partial and looks chaotic’

In 2015, the promised review of Approved Document B was folded into a wider review of building regulations without the Lakanal coroner being updated.

This was despite Mr Pickles having effectively promised the coroner it would be undertaken individually.

Mr Ledsome (pictured above) said in his witness statement that the reason for this was because “we wanted to present the minister an overall picture of work on the building regulations, rather than make submissions in a more piecemeal fashion”.

He said it was a “collective” view, though he was ultimately responsible for the decision.

Mr Millett said: “Do you accept that locating the review of Approved Document B within a wider review of building regulations would slow the process down, perhaps by some years?”

“I accept that was a risk,” Mr Ledsome said, but he added that the division was expecting some elements of the wider review to finish earlier than others.

Mr Millett asked if the presence of that risk might “undermine” the promise made to the coroner.

“I think that it could certainly have challenged the ability to meet that commitment,” Mr Ledsome said. He accepted the coroner was never informed of the change.

The risk of not acting does not appear to have been lost on the officials responsible. In an email sent on September 25 2015 from Richard Harral, head of technical policy, building regulations and standards, to Mr Ledsome and Mr Martin listed “Eric Pickles’ commitments following Lakanal House inquest” among several issues to be considered.

Under the subheading “what happens if we don’t” column, it said “significant reputational damage if further fire deaths occur and DCLG [Department for Communities and Local Government] has not acted”.

Mr Ledsome said it was an “internal document”, but added: “I don’t know why we referred to significant reputational damage alone”.

The inquiry heard that then- housing minister James Wharton asked officials if the review could be sped up in October 2015, following correspondence with the All-Party Parliamentary Group (APPG), but was told it was a “complex” process that could not be shortened.

It also emerged that a focus on Brexit meant that new housing minister Gavin Barwell was not briefed on the promise to review regulations when he took over responsibility in summer 2016.

“It appears there was a complete lack of urgency within your directorate of getting on with this project, notwithstanding the promise that had been made by the secretary of state [to the coroner],” said Mr Millett.

“I don’t accept that, we had been working very hard in difficult circumstances with other conflicting priorities,” Mr Ledsome said.

All of this had occurred despite the APPG on Fire Safety and Rescue pressing the government for several years before Grenfell on what it was doing to review Approved Document B, with a particular focus on the need to retrofit sprinklers and introduce tougher standards on external fire spread.

Previously obtained by Inside Housing, the letters from the APPG, chaired by the late David Amess, showed the group wrote to the department 21 times between 2014 and 2017, specifically warning in September 2015 of “a major fire tragedy with loss of life… in a purpose-built block of flats” if more was not done.

But often these letters went without reply and offers of meetings were not taken up. “Do you agree that your department pursued a strategy of deflection and delay, always kicking the can down the road and taking advantage of the turnover of ministers?” asked Mr Millett.

“I do not accept that,” said Mr Ledsome.

The inquiry heard that days after the fire, then-director general of decentralisation and growth Simon Ridley reviewed the department’s engagement with the APPG,

He said: “Our correspondence with the APPG is appalling: delayed, partial and looks chaotic.”

He said the responses make it “look like we have done all but nothing in the first two and a half years”. He added that the “lack of urgency or reason for the delay is striking”.

Asked if he accepted Mr Ridley’s criticism, Mr Ledsome said: “I’ve already accepted that perhaps in some instances we should have offered the minister to make a more substantive response above and beyond the points that were put in the letters.”

The inquiry will hear more from Mr Ledsome next week, as well as Mr Harral and government advisor Sir Ken Knight.

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