The issue of defective RAAC in schools and universities has been widely publicised since the beginning of the academic year in September 2023, but Local Authorities have been aware of the issue for some considerable time. Indeed, since the collapse of a primary school roof in 2018 the Local Government Association has issued a number of safety warnings to its members and the Office of Government Property issued notices in both 2021 and 2022, warning that RAAC could be present in all types of public buildings. So Local Authorities have been surveying their estates, identifying where RAAC is present and managing the associated risks on an on-going basis across their property portfolios.
The range of potentially affected buildings is wide, and goes beyond the schools, universities, hospitals and courts highlighted in recent news coverage. Property consultant Rapleys has stated that where they have been commissioned to survey public buildings estates, they have identified RAAC in 5-10% of the total buildings. Public buildings which have so far been found to contain RAAC include municipal buildings like leisure centres and performing arts venues. For example, a sports centre in Dewsbury has been closed due to the presence of RAAC, and St David’s Hall in Cardiff will be shut until 2025. Cardiff Council has been aware of RAAC in the ceiling of St David’s Hall since 2021, and has now shut the venue in order to replace the roof.
RAAC may also be found in social housing, and a letter from the regulator of social housing dated 7 September 2023 confirmed that RAAC may be present in ‘a small number’ of social housing buildings constructed between the 1950s and 1980s. Housing which was constructed alongside public buildings of this age could also contain RAAC, as dwellings such as those for school caretakers were often built using the same construction methods as their associated public buildings.
Municipal buildings which were constructed between the 1950s and 1990s and then later converted into housing are also at risk. For example, Cherwell District Council identified one such building in Banbury which had been an office block before it was converted into housing. The residents were re-housed in early 2023 after RAAC was found in the roof and remedial works are scheduled to begin this autumn.
Claims could in theory be brought against Local Authorities where buildings were constructed using RAAC under the Defective Premises Act 1972 (DPA) as the limitation period was amended to 30 years by the Building Safety Act 2022 (BSA). However, this means that the oldest claim available would date from 1993, which is right at the end of the period in which RAAC was being used in construction. Additionally, the material has simply come to the end of its lifespan and was not defective at the time it was installed, which makes such claims unlikely to be successful.
Secondly, the BSA allows tenants to make claims against their landlords for the costs associated with remedial works, or to compel their landlords to undertake such works. This applies where there is a ‘building safety risk’, which is defined as ‘a risk to the safety of people in or about the building arising from…structural failure’. RAAC which has come to the end of its lifespan and deteriorated would clearly fall within this definition. However, the DPA applies only to ‘dwellings’ and the BSA only to ‘relevant buildings’ which contain at least ‘two dwellings’. So, this liability will be a consideration only where RAAC is found in housing stock.
Claims may be available to Local Authorities where renovation works have been carried out on public buildings and RAAC should have been identified as being beyond its lifespan at that time. Professional consultants involved in those works may have liability through the contract under which those works were carried out and/or in common law negligence, where a failure to identify and mitigate defective RAAC may be a breach of their duty of care. Proof of that duty of care, of its breach and of the causation and recoverability of the Local Authority’s losses would need careful consideration in order to bring a successful claim. As would the fact that the limitation period for these types of claims is six years, so a claim could only be brought where works have been completed in the recent past. Nonetheless, these claims would not be limited to dwellings, meaning that Local Authorities could consider this as a means of recovering some of the costs of remediating defective RAAC in those public buildings which have been worked on recently.
RAAC has been found to be present in a wide variety of public buildings, and more instances will inevitably be identified as Local Authorities continue to survey their estates. There is some potential claims liability which could impact Local Authorities moving forward and as the full extent of RAAC defects becomes known. Fortunately, however, the issue has come to light without a major public safety disaster, unlike in the cases of flammable cladding and asbestos. So at the moment, the principal consideration for Local Authorities on RAAC is their continuing risk management, rather than legal claims.
Blake Morgan has significant experience of advising public sector bodies in respect of a range of building defects, including RAAC, as well as in all aspects of the procurement of remedial works. Please contact Kate Howell or Edward McMullen in our Construction team.
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