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Cladding Remediation Bill

13 December 2023

What does the new Housing (Cladding Remediation) (Scotland) Act 2024 look like and who will it impact?

The Bill proposes an Act of the Scottish Parliament to confer on the Scottish Ministers powers:

  • to identify external wall cladding systems on residential buildings that create or exacerbate risks to human life and to address those risks;
  • to establish a register to record that a building’s cladding has been assessed and that remediation works have been completed;
  • to enable one or more schemes to be established to require persons in the building industry to contribute towards assessing and remediating dangerous cladding; and
  • for connected purposes.

The short title of the Act will be the Housing (Cladding Remediation)(Scotland) Act 2024.

Cladding Assurance Register

  • The Bill proposes the introduction of the cladding assurance register (S1). This is a register of buildings that is to be maintained. An entry for a building is to be created in the register once a single-building assessment has been carried out or once work has been carried out.
  • It is an offense to provide false or misleading information for the register (S2).

Powers to Assess and Address Danger - Scottish Ministers’ Powers

  • Scottish Ministers have the power to assess danger, including:
    • to arrange single-building assessment (with consent of the premises’ owner before the end of the 7 day notice period) (S3); and
    • to require any person to supply information for the assessment and register (S4).
  • Scottish Ministers have the power to address danger, including:
    • to arrange remediation work identified in single-building assessment report (S6);
    • to arrange urgent remediation work (S7); and
    • to evacuate the occupants of a premises (S8).
  • Appeal (against remediation work)
    • The owner of premises may appeal to the sheriff against the Scottish Ministers’ decision to make that arrangement (S10).
  • It is an offence:
    • to fail to comply with requirement to supply information under S4 (S5); and
    • to occupy evacuated premises when forbidden to do so (S9).

Powers to Assess and Address Danger - Carrying Out Assessments and Work

  • S11 grants authority for persons carrying out single-building assessment or work.
  • A warrant can be granted authorising use of force to effect entry (S12).
  • It is an offence:
    • to obstruct assessment or work (S13); and
    • to fail to assist with assessment or work (S14).

Powers to Assess and Address Danger - Notices

  • Scottish Ministers have the power to require information to give / enable them to give notice (S15).
  • When giving notice where the recipient’s address is unknown (and despite having made reasonable inquiries one cannot ascertain that person’s proper address), a written notice is taken to have been given if the notice is displayed on or near the premises (S16).
  • Deemed receipt of notice is to be taken to have been received 48 hours after it is sent (S17).

Individual Culpability Where Organisation Commits an Offence (S18)

  • Applies where the commission of the offence involves consent or connivance on the part of a responsible individual or is attributable to neglect on the part of a responsible individual.
  • Responsible individual depends on the type of business the organisation:
    • Company in S1 of Companies Act: Director, manager, secretary or other similar officer, or, where the company’s affairs are managed by its members
    • LLP: Member
    • Other partnership: Partner
    • Other body or association: individual who is concerned in the management or control of its affairs
  • Nothing in Part 1 or 2 of the Bill makes the Crown criminally liable.
  • However, the Court of Session may declare unlawful any act or omission for which the court would be criminally liable.

Responsible Developers scheme (S20)

  • Purpose is to secure that persons in the building industry address or contribute towards the cost of addressing risks to human life created or exacerbated by the external wall cladding systems or buildings that are wholly or partially residential.
  • Regulations establishing a scheme are to include a provision about:
    • who is eligible to become a member of a responsible developers scheme;
    • the conditions of becoming and remaining a remember;
    • loss of membership; and
    • the consequences of a person who is eligible not being a member.

Eligibility for Membership (S21)

  • Regulations must make being eligible for membership of a scheme depend on a person being a developer and having a connection to a building of a kind described by the regulations that has problematic cladding.
  • ‘Developer’ means a person carrying on, for business purposes, activities connected with the construction of building.
  • ‘Problematic cladding’ means an external wall cladding system in relation to which a single-building assessment report states that the cladding system creates of exacerbates a risk to human life and work is needed to eliminate or mitigate that risk.

Conditions of Membership (S22)

  • Conditions of becoming and remaining a member of a scheme may include conditions relating to:
    • Carrying out single-building assessments and the carrying out of work identified as needed in a single-building assessment report;
    • Making financial contributions towards meeting costs associated with carrying out of work identified as needed in a single-building assessment report;
    • The provision of information to the Scottish Ministers or any other person;
    • Abiding by the terms of an agreement.

Consequences of Not Being a Member (S24)

  • Regulations will provide that a list of persons who are eligible to be members of the scheme but are not.
  • Regulations may:
    • prohibit the person from carrying out any development or development of a king described in the regulations;
    • Prevent a building warrant from being granted, or amended on application by the person;
    • Require a verifier to reject any completion certificate submitted by the person.
  • Maximum penalties that may be provided for in respect of the above are; on summary conviction, a fine not exceeding £50,000 or on conviction on indictment, a fine.

Meanings & Definitions (Part 5)

  • Single-building assessment:
    • Means an assessment that relates to a building that:
      • Is a flatted building as defined in S16(4) of the LR (S) Act 2012;
      • Contains at least one flat that is used as a dwelling;
      • Has an external wall cladding system;
      • Stands 11m or more above ground; and
      • Has been constructed or undergone development between 1 June 1992 and 1 June 2022.
    • Assesses and culminates in a report on any risk to human life that is directly or indirectly created or exacerbated by the building’s external wall cladding system and what work is needed to eliminate or mitigate any risk of that kind which is identified.

Contact our team of specialists for more information on this topic.

Authors: Anne Kelly and Lauren Crilley 

Further Reading