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Four and a half years ago, the UK’s cladding scandal was exposed in tragic circumstances. Four and a half years on, thousands of people across the country are still living with the consequences of these substandard and sometimes unlawful building practices, effectively trapped in unsafe homes and without access to recourse.

Initially, it appeared Scotland had escaped the worst of the crisis. The use of aluminium composite material (ACM) cladding, which had been implicated in the Grenfell Tower fire, has been banned in Scotland since 2005, and the Scottish Government took the view the risk was low. While Westminster slowly but surely began to take the steps required to make affected homes safe, the Scottish Government, lulled into complacency by the early focus on ACM cladding, dallied.

The UK Ministry of Housing, Communities and Local Government Advice Note 14 provided a rude awakening, laying bare the sheer extent of the crisis. The problems, it seemed, extended far beyond just ACM cladding; a range of other potentially flammable claddings were identified, and the view was taken that cladding alone was not the only risk factor, but rather the entire external wall structure should be considered.

The impact of the Advice Note was significant. Almost overnight, high-rise flats across the country became, in effect, worthless. Mortgage lenders concluded that without a clear certification that a building was not affected by the cladding scandal, known as an EWS1, they would not provide mortgages for homes in such buildings. And while Advice Note 14 was ostensibly applicable only to England, the policies of these mortgage lenders were applied without prejudice throughout the UK. Although the Advice Note was withdrawn at the beginning of this year, the damage had already been done.

The practical result? Thousands of people trapped living in homes deemed unsafe, unable to sell and on the line for remedial bills which could cost in the tens of thousands despite these issues being no fault of their own.

While some government support has been made available by Westminster, this is limited in scope and often difficult to access. The support was initially only available for buildings taller than 18 metres, though this was later lowered to 11. Furthermore, due to England’s system of leaseholding, the people living in the affected buildings are often unable to access the support directly. Perhaps as a result, only a fraction of the promised remediation funds have actually been provided. While Scotland’s property law system avoids some of these issues, they give rise to their own problems, caused in part by companies relying on frameworks designed for England. Meanwhile, Holyrood continues to delay rolling out remediation payments from the funds it has been allocated, and refuses to guarantee retroactive payments where repairs are urgent.

Westminster, it seems, at least recognised the insufficiency of the available government remediation support in England. On January 10th, the Housing Secretary Michael Gove announced plans to retroactively extend the time bar for leaseholders to sue developers of defective buildings from 6 years to 30. This is undoubtably a significant step, finally allowing the residents of these unsafe homes to take back some level of control. Rather than being forced to wait for government support that may never come, leaseholders are now able to litigate directly to make building developers, the people responsible for the problems in the first place, pay the costs.

It is an elegant solution. The civil courts by their very nature have a long tradition of being utilised to provide recourse in the face of wrongs, and have the experience and tools necessary to get things done efficiently. Although litigation has a perhaps deserved reputation for being slow, it nevertheless moves with a speed unimaginable to the glacial machinery of government, thereby allowing repairs to be carried out sooner; this not only gives certainty, but potentially saves lives.

With this being such a clearly beneficial change in the law, one might expect the Scottish Government to be jumping to follow suit. Unfortunately, as with so many aspects of their response to the cladding scandal, the Scottish Government is once again lagging behind. This inaction becomes even more concerning when it is considered that Scotland’s prescriptive period, the time allowed to seek recourse in the courts, was a year shorter than in England even prior to the latest changes. Affected Scots are therefore in a position where not only are their government continuing to kick the can down the road on direct assistance, but they are all but unable to seek recourse themselves in the courts.

It is said big problems require big solutions, but it is often the small changes which have the biggest impact. While Westminster is taking steps to allow people in England a way to make their homes safe, it seems the Scottish Government is leaving those affected here hung out to dry. Big promises of government remediation schemes at some time down the line sound flashy but make little difference to those trapped in unsafe homes in the meantime. But a solution exists. By extending the prescriptive period in Scotland to match, or indeed even exceed, that in England, the Scottish Government can empower those people who for the past four and a half years have been left powerless, and give them back some control over their own lives. Let these people seek the recourse they deserve, and let the courts do what they were designed to. It only takes one small change, and it would make one large difference.

For four and a half years, people across the country have been living with the consequences of the cladding scandal. Four and a half years on, it’s past time the Scottish Government take some real, tangible action to allow these people to access the recourse they need and deserve.

Blog by Ben McKinlay

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