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Grenfell Tower Inquiry diary week 80: ‘The evidence points to wilful blindness and complacency towards safety’

Insight24.06.222.00 PM by Peter Apps

As the inquiry moves into its final stages, lawyers for the key players gave statements about the evidence surrounding central government. Peter Apps reports

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As the inquiry moves into its final stages, lawyers for the key players gave statements about the evidence surrounding central government. Peter Apps reports #UKhousing

This week, the Grenfell Tower Inquiry heard closing statements from lawyers representing various interested parties which related to the evidence about the actions of central government.

As is now common, the first statements came from those representing the bereaved and survivors, with a number of other parties following over two days, rounded off by the government’s lawyer.

Here is a recap of some of the key themes.

‘Ministers would have the panel believe officials laboured of their own volition under this fatal misapprehension’

At the heart of this module is the evidence surrounding how much the British state knew about the risk of cladding fires before Grenfell and whether it did enough through its regulatory role to minimise the risk of a disaster.

Lawyers for the community were adamant that the answer is not just that the government did not do enough, but that it chose not to, despite knowledge of the risks, because it put more of a priority on deregulation, housebuilding and energy efficiency.

Stephanie Barwise QC (pictured above), appearing for one group of bereaved and survivors, said: “The evidence points to wilful blindness and complacency towards safety, which was subjugated to the more pressing and politically appealing housing and deregulatory agendas.”

She said that the government’s more limited admission that an under-pressure team within an under-resourced department accidentally missed several chances to act was “fundamentally misleading”.

In particular, Ms Barwise called on the panel to reject the evidence of some ministers – notably former communities secretary Eric Pickles – that deregulatory policies were never supposed to apply to building safety regulations.

“Ministers would have the panel believe officials laboured of their own volition under this fatal misapprehension, but that is not credible and the evidence suggests otherwise,” she said.

Ms Barwise also dismissed the idea that a key official – Brian Martin – represented “a single point of failure” in the government. This was how Mr Martin was described by former permanent secretary Melanie Dawes, and a phrase he adopted himself in a statement at the end of his evidence.

“The truth of the matter is that he was put and kept in that position to execute the department’s deregulatory strategy and, indeed, promoted even after Grenfell,” Ms Barwise said, adding that his admitted desire to protect the interests of what he called “UK plc” had “secured his primacy in the building regulations division”.

When Jason Beer QC, representing the Department for Levelling Up, Housing and Communities, appeared on Wednesday, he said there were four factors behind the department’s failure to appreciate the need for change: the lack of a formal oversight role, a reliance on industry, financial constraints and deregulatory policy.

“The department would suggest that these elements combined led to a situation where officials felt unable to escalate concerns when they arose,” he said, agreeing that Mr Martin was not “a single point of failure”.

He said deregulation “played a part in underpinning a culture in the department where officials felt unable properly to escalate warnings when they were raised”, but that the primary problem was “an under-appreciation of the risks”.

Overall, the position Mr Beer set out was similar to his opening statement: that the government’s failure was an oversight and that it failed “to understand how and whether the regulatory system was working in practice or how it was being enforced”. “In this regard, the department failed to exercise sufficient oversight of a system that it owned as the sponsoring government department,” he said.

This framing places the blame more with those in building control roles who, the department said, “were not applying their minds, or not competently applying their minds” to the question of building safety.

Mr Beer was keen to emphasise that the department’s role was “decentralised” and it had no “superintendent” role of building control officers (both in local government and private contractors) who were tasked “to monitor and enforce compliance”.

So the government’s statement effectively admits responsibility for not overseeing the failures of others, while simultaneously emphasising that doing so was not its job.

‘A desire to allow the construction industry sufficient latitude to rapidly build housing’

What then of the specific government failures? You can read some our summaries of the evidence here, here and here.

A key question in this module has been the ‘Class 0’ standard for cladding, which was only removed from official guidance in 2019 (two years after Grenfell) despite clear warnings of its danger stretching back to 1991.

Part of the argument here is that in 2006, the official guidance in Approved Document B was amended to state that ‘filler materials’ were required to meet a higher standard called ‘limited combustibility’.

This has prompted an enormous, five-year long and unresolved argument about what this meant and whether, critically, it covered the combustible core of an aluminium composite material (ACM) panel such as that used on Grenfell Tower.

The ACM used on Grenfell was sold with a certificate saying it was Class 0, meaning that if this was the standard required by government guidance, there is a clear line of responsibility for its use.

What complicates matters is that the guidance is not the only rule builders should have in mind. They also need to consider their statutory responsibility to ensure the walls “adequately resist the spread of flame”.

Mr Beer’s (pictured above) case was that in the event of any ambiguity, builders should have erred on the side of caution and not used ACM.

“The department would reiterate that a competent professional faced with the decision as to whether to use, for example, an ACM PE [polyethylene] panel, should have, in the face of any ambiguity, been referring themselves back to the functional requirement,” he said.

He said the government rejected the suggestion that its public interpretation of the word filler after Grenfell was “an ex post facto rationalisation” or “a political lie” aimed at reducing its responsibility for the fire.

He cited the fact that witnesses from the Building Research Establishment (BRE) had agreed that the measures banned the use of ACM and insisted there had been “no collusion” in their evidence.

Lawyers for the survivors were more damning. Ms Barwise said a culture of dependency on the guidance had grown up in the industry, which resulted in people simply following its provisions.

She said the retention of the Class 0 standard “permits ACM panels, even though that is clearly in conflict with the functional requirement” and that the government had not considered “how the functional requirement was to be achieved effectively” under its guidance.

She said standards were not properly tightened due to “the realisation of a burgeoning cladding crisis” and “a desire to allow the construction industry sufficient latitude to rapidly build housing”.

Mr Beer did accept a failure by the government to respond to the coroner’s recommendations after the Lakanal House fire, saying that deregulatory policies meant “officials felt” unable properly to escalate warnings.

For her part, Ms Barwise said the department “completely ignored all the coroner’s recommendations” following Lakanal and deliberately deferred the review of guidance, despite each minister in role from then until Grenfell being “aware of the dangers” of doing so.

She also said a long delay releasing important reports needed to start the review of Approved Document B “is yet further proof the department was enslaved to its deregulatory agenda in disregard of safety”.

‘The frailty of this house of cards was an ideal prop to facilitate industry capture’

What about the other core participants?

Survivors’ lawyers had some stinging criticism of the BRE, whose witnesses wrote reviews of several key fires, assisted with reviews of Approved Document B and were involved in discussions about the response to a critical warning about the use of ACM in 2014.

You can read some of the evidence from the BRE’s witnesses here and here.

“The role of BRE as advisor on Approved Document B revisions and investigator of fires make it complicit in government’s actions,” said Ms Barwise. “BRE protest that it is not a regulator. We have never said it is, but its code of conduct requires it to hold paramount the health and safety of others. In this fundamental purpose, it failed.”

She described the BRE’s research as “misleading and therefore dangerous” and said its “flaccid” recommendations to the department “were unscientific and did not communicate the sense of urgency or importance”.

Sam Stein QC (pictured above), for another group of survivors, bluntly called for Dr Sarah Colwell, director of fire suppression at the BRE, along with Mr Martin to be sacked.

“Both individuals, through indolence or professional ineptitude, missed clear opportunities to change the system of regulation, which would have prevented the tragedy at Grenfell Tower,” Mr Stein said.

Mr Stein emphasised the BRE’s privatisation in 1997 and the “client relationship” with the government that emerged as a result.

Samantha Leek QC, appearing on behalf of the BRE, insisted that some of this criticism was a result of a misunderstanding of the BRE’s role.

“It is not correct that BRE’s role was to advise government on Approved Document B,” she said. “Each of those misapprehensions suggests that BRE has a role in the regulatory system akin to the department or a government-appointed regulator. It does not.”

She said the BRE’s role was limited to testing and research. “Participants in the inquiry who believe that it was BRE’s role instead of or in parallel with the department to uncover or address those regulatory failures do not understand the role of BRE,” she added.

The community’s lawyers were also critical of the United Kingdom Accreditation Service (UKAS), which was responsible for accrediting the testing work carried out by the BRE.

Ms Barwise said: “UKAS’ failure to witness BRE testing for some seven years between 2008 and 2016 shows a disregard only consistent with not wishing to find problems.

“UKAS emerges as an ineffectual organisation, too willing to assume competence in the bodies it oversaw, and so focused on pleasing them at the expense of public safety that it will not even report fraud.

“The frailty of this house of cards was an ideal prop to facilitate industry capture of an inadequately robust regulatory regime.”

Jonathan Glasson QC, representing UKAS, responded by mostly outlining changes UKAS has made to its processes. He added: “Notwithstanding its acknowledgement that there are lessons to be learned, UKAS does not accept that it is fair to say that the evidence suggests that as an organisation it is not fit for purpose.

“Assessments are necessarily a sampling exercise and it cannot guarantee to find all areas of non-conformity.”

‘Both the LABC and NHBC, private companies, gave false reassurances as to public safety’

There was also criticism for two bodies involved in the process of signing buildings off as compliant: the National House Building Council (NHBC) and Local Authority Building Control (LABC).

We covered the evidence around LABC here, and NHBC here and here.

A major issue with NHBC – which had no involvement in signing off Grenfell Tower – was its general attitude to the use of combustible materials on high-rise buildings.

Despite hearing concerns about the widespread-use of Kingspan K15, and raising several points of concern itself, NHBC never stopped accepting the product for jobs on high rises.

The community’s lawyers said this was because it was concerned about its own position, having already signed off hundreds of blocks with the material and concerned about pushback from its builder clients if it rejected the popular product.

“NHBC’s behaviour demonstrates its total unsuitability as a putative regulator,” said Ms Barwise. “Its acceptance of non-compliant K15 drove it to interpret the regulations and Approved Document B perversely.”

The organisation also controversially published industry guidance in July 2016, which appeared to give approval to the use of ACM and combustible insulation in rainscreen cladding systems.

“[The guidance] permitted the use of the very products used at Grenfell without the need for a test or even a desktop [study],” said Ms Barwise. “While the note itself was not causative of Grenfell, being published after the completion of the refurbishment, it evidences the degree to which industry sought to manipulate and circumvent the regulation.”

LABC meanwhile published certificates for use by their members – building control inspectors at local authorities – which incorrectly implied the both Kingspan and Celotex insulation could legitimately be used on high rises.

Mr Stein described the performance of both organisations as “abject”. “Both the LABC and NHBC, private companies, gave false reassurances as to public safety,” he said.

“The system must be reformed so that the discharge of regulatory functions concerning public safety is put back into the hands of entities that are protected from and not subject to any competing forces such as the desire to make money.

“Further, attention should be paid to the market dominance of organisations such as the NHBC which, because of their market share, hold an inordinate amount of power in shaping safety standards.”

He called for a new “Grenfell standard” in terms of fire safety, which considers what is a basic level of safety, but then adds “a wide margin on top to account for industry crime, builders’ and designers’ ignorance and incompetence and expert error”.

Responses from the NHBC and LABC came on Wednesday. Dominic Adamson QC (pictured above), acting on behalf of LABC, rejected the suggestion that the organisation had acted in any way that could be considered corrupt or dishonest.

He said that the confusion around the meaning of Class 0 and the concept of limited combustibility had nothing to do with LABC.

“The confusion was manipulated by unscrupulous players within the construction industry, such as Kingspan, and the evidence in module six has conclusively demonstrated that successive governments implemented and thereafter maintained a competitive building control regime within a non-prescriptive framework of legislation without sufficient control, oversight,” he said.

He accepted that some of its certificates were “deficient”, but added: “LABC realises that it was manipulated by manufacturers who preyed on industry-wide confusion to obtain LABC certification. It naively believed that applicants acted in good faith.”

Matthew Butt QC, acting on behalf of NHBC, said the organisation refutes any suggestion that it took a lax approach to fire safety.

He described allegations that NHBC’s attempts to address the use of K15 were driven by a desire to hide past errors or were commercially motivated as “an ex post facto rationalisation given to the inquiry”.

Mr Butt said: “The evidence is that between 2013 and 2014, it was primarily NHBC staff challenging Kingspan, requesting test evidence and ultimately driving the industry away from reliance upon certificates, which is now known as an error and based upon deception by manufacturers.”

‘It is now clear beyond any doubt that the nature and speed of the spread of the Grenfell Tower fire was caused by Arconic’s ACM cladding’

Finally, this week the inquiry also heard submissions from product manufacturers Arconic (which made the cladding panels used Grenfell Tower) and Kingspan (which made a small amount of the combustible insulation).

Kingspan’s statement drew attention to the expert evidence of Professor Luke Bisby, who estimated the contribution of the insulation to the fire at between 2% and 10%, with the spread of fire primarily a result of the ACM.

This contribution came from its thermal properties rather than its combustibility, with a system combining ACM with non-combustible insulation resulting in a similarly devastating fire.

“It is now clear beyond any doubt that the nature and speed of the spread of the Grenfell Tower fire was caused by the presence of Arconic’s Reynobond PE-cored ACM cladding,” said Tim Green QC (pictured above), who appeared for Kingspan.

He added: “It is the capacity of insulation to retain heat which is relevant in cladding fires involving PE-cored ACM and not whether that insulation is combustible or non-combustible.”

Professor Bisby did stress that his analysis did not consider the contribution of toxic smoke – an issue that will be considered by another expert, Dr David Purser, next week.

Survivors’ lawyers, however, remained critical of Kingspan’s actions. Ms Barwise said the firm’s behaviour was “seminally causative of the UK market’s willingness to use combustible materials at height” as a result of their “misleading marketing” and efforts to “educate” the market about use of its product.

Mr Green called this claim “without merit”, saying Kingspan had never “promoted the use of combustible materials generally”.

As for Arconic, Stephen Hockman QC argued there were “many other causes at least equal to the ACM panels used in the cladding system on Grenfell”, including the failure to introduce suitable barriers around the windows.

He added: “What happened at Grenfell was truly a storm in which the ACM panels were but one component of the maelstrom.”

He said there was “ample evidence that ACM was in regular use for many years before the fire” in the UK and that this was “facilitated by the then-applicable regulatory regime”.

Regarding the regulations, Mr Hockman said: “It seems to us very clear that there was, in fact, simply no requirement in relation to the rainscreen to be of limited combustibility and, indeed, the approach of your own counsel has been that the regime permitted the choice of a material by reference to its surface alone, rather than its core.”

“If this was an approach which could have been taken in good faith by a UK supplier, then that must have been all the more true in the case of a non-UK supplier,” he said.

The inquiry continues.

Grenfell Tower Inquiry week 80: headlines

The Grenfell Tower Inquiry's headquarters in Paddington (picture: SWNS)

Government admits failing to provide oversight of ‘inadequate’ and ‘poorly operated’ regulatory system

The government has admitted that it failed to put in place or provide sufficient oversight of a regulatory system that could have prevented the Grenfell Tower fire.

Government rejection of evacuation plans ‘strikes at heart’ of purpose of Grenfell Inquiry, lawyers say

The government’s rejection of the Grenfell Tower Inquiry’s recommendation that plans should be made for the evacuation of disabled people in high rises “strikes at the heart” of the inquiry’s purpose, lawyers for the community have said.

Government ‘enslaved to deregulation and wilfully blind to safety concerns’ in year before Grenfell, lawyers for community say

The government was “enslaved to a deregulatory agenda” and adopted “wilful blindness and complacency towards safety” resulting in more than 13 missed opportunities to tighten a critical fire safety standard in the years before the Grenfell Tower fire, lawyers for bereaved and survivors have said.

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