Building Safety: Determination as to Liability for Costs of a Waking Watch

Following the implementation of fire safety measures in a residential building, the Upper Tribunal considers whether the First-tier Tribunal was right to conclude that costs of such measures were not recoverable by the landlord from leaseholders through the service charge.

The background

A recent Upper Tribunal decision considered an appeal by the landlord of a 9-storey residential building against a decision by the First-tier Tribunal that a significant proportion of the costs of a “waking watch” implemented at the building was not recoverable from long leaseholders.

Following an incident of damage to the building’s fire alarm panel, a number of fire safety concerns were identified at the building by a fire officer, including compartmentation measures and queries over the construction materials used for external cladding. A 24-hour waking watch was implemented.

The fire alarm panel was fixed after 7 days but the waking watch continued, albeit at a reduced level, until remediation works were agreed and made to the building’s compartmentation. The external façade was not found to contain any combustible material, and no works to this were required to be undertaken.

In total, the costs of the waking watch implemented from the point of the fire officer’s visit to the completion of the compartmentation works amounted to around £58,000.

A fire risk assessment had been undertaken shortly before completion of conversion works at the building from office use to residential. It was recommended at the time that this risk assessment was reviewed where there were significant changes at the building, or otherwise at least every 12 months. The landlord later acquired the freehold but a review of the fire risk assessment was not undertaken.

The leaseholders were notified of the costs of the waking watch and applied to the FTT for a determination as to their reasonableness.

The leaseholders argued that, had a risk assessment been undertaken earlier, the defects would have been identified and the external façade determined safe sooner to therefore avoid the need for a waking watch. The FTT agreed, finding that the leaseholders were only responsible for the costs of the waking watch during the 7-day period that the fire alarm panel was being repaired, amounting to £5,859. The landlord appealed.

The decision

The Upper Tribunal upheld the FTT’s decision.

The landlord’s appeal focused on a number of issues, notably that the FTT had applied the wrong test by asking why the waking watch costs needed to be incurred, and not whether it was reasonable for the landlord to incur the waking watch.

The UT considered whether the costs incurred for the waking watch were reasonable in the context of the specific facts of the case, finding that the defects could have been uncovered earlier had a fire risk assessment been undertaken. The landlord was therefore responsible for the waking watch costs incurred after the fire alarm panel had been repaired up to the point that the fire officer was satisfied and the waking watch ceased. The FTT had been entitled to reach its judgement.

Advice and action for landlords

Following this decision, it is recommended that landlords and managing agents ensure systems and procedures are in place for regular, timely fire risk assessment reviews in order to ensure compliance with the Fire Safety Order and to protect the safety of occupiers.

This decision supports earlier judgments that waking watch costs are recoverable from leaseholders through the service charge, but that these costs may be reduced where landlords have not observed their statutory or other obligations such that costs may be deemed ‘unreasonable’.

A further practical point arises in that the external façade of the building was not found to present a fire risk. It is recommended that landlords and managing agents of residential blocks assess whether a building’s construction materials present such a risk as early as possible, helping to prevent later delays or implementation of measures which may be unnecessary.