RAAC – Responsibilities in the UK

After the headlines, what should owners and occupiers do next?

Why should I read this?

The widespread discovery of failing reinforced autoclaved aerated concrete (“RAAC”) has significant implications for both owners and occupiers of UK buildings.  Now that the risks associated with RAAC are well known it is imperative that those with statutory or contractual responsibilities for the repair, condition and safety of buildings take steps to identify and deal with the risk, and consider how best to fund those works.

What should I do?

• inspect and risk assess – RAAC was used as a building material, predominantly in municipal buildings, between the 1950s and the 1990’s. It is regarded as having a lifespan of only around 30 years meaning that generally most RAAC will now be regarded as life expired. Whilst the fact that it is approaching or beyond its expected lifespan does not of itself mean that it is dangerous, there is clearly a significant risk that it might be so failing as to be dangerous. Additionally, its collapse might give rise to risks such as asbestos disturbance.  Be sure that your inspection regime is up to scratch
• consider your statutory obligations – whether through legislation on health and safety at work, defective premises or occupiers liability – there are some responsibilities that can’t be delegated to others
• review your contractual position – whether the owner, occupier or third party is responsible for the safety, repair and condition of affected property.  This is likely to require legal analysis of the ownership and occupational documentation

What else do I need to know about responsibilities for RAAC?

Whilst each instance will need consideration of its own facts, it is unlikely that the use of RAAC will of itself constitute a inherent defect – in most cases it is simply the timely failing of a life-limited material, which (other than it being more at risk for water ingress) was not fully known or understood at the time of specification. This means that replacement of unsafe RAAC could potentially fall within the tenant’s repairing obligations under a repairing obligation within a lease, or that landlords are able to pass on the cost of such repairs as part of a service charge.

Even in instances where the use of RAAC might be considered as an inherent defect, any possible claims against the developer or contractor are likely to be time-barred by now. One possible exception to this is where the building was constructed within the last 30 years (which would be towards the end of when RAAC was being used) and which, when constructed, consisted of one or more dwellings. In those circumstances it might be possible to consider a claim under the Defective Premises Act 1972, although given the 30 year limitation period, any such potential claims would need to be considered quickly. 

There could be an area of potential liability for other construction professionals such as surveyors or building managers who have carried out surveys more recently (perhaps on the re-development of a building) and not identified any structural issues. However, any such claim will be dependent on the scope of the survey (and the caveats therein) and limitation is still likely to be an issue, particularly if the building is not a dwelling.

To emphasise however, the priority is to firstly identify any potential RAAC material and make sure it is in a safe condition.  The safety regulator, HSE, will have little time for any delays caused by looking at liability and will expect the problem to be addressed first, and the associated costs considered second.

For more information about RAAC, contact one of the team below: