Chapter 29: Failures in the system

¶29.1 Our examination of the role played by the government and other bodies that had important parts to play in the testing and certification of construction products enable us to identify a number of respects in which the systems designed to ensure the safety of buildings in general and of high-rise buildings in particular failed to achieve the purposes for which they were established.

The government

¶29.2 As the organisation with primary responsibility for establishing and maintaining a system for the regulation of construction work in the interests of public safety the government should ensure that as far as reasonably possible regulations and guidance keep pace with developments in construction materials and techniques. It should also take reasonable steps to ensure that regulations are enforced and that any guidance it publishes is clear and easily accessible to all those in the industry.

¶29.3 In our view between 1991 and 2017 the government failed to discharge those responsibilities in a number of ways. That was primarily due to its failure to ensure that the department responsible for the Building Regulations and statutory guidance was expected to monitor the performance of the system as a whole (including the effectiveness of building control) and inform itself of developments in the methods and materials being used in the construction industry with a view to ensuring that the regulations and guidance were understood and followed and, where necessary, clarified or amended. We have criticised officials for failing to take steps of that kind, but officials can act only in accordance with the way in which the department is organised. If, as appears to have been the case, the department was not expected to ensure that the regulations were being properly followed, officials cannot be blamed for failing to make enquiries or taking active steps to discover what is going on.

¶29.4 In the period between the fire at Knowsley Heights in 1991 and the fire at Grenfell Tower in 2017 there were numerous opportunities for the department to identify the risks posed by the use of combustible insulation and cladding panels, particularly on high-rise buildings, and take action in relation to them. Of particular significance is the failure by the government to implement the recommendations of the Select Committee in December 1999, or at least keep them under review, and its failure to pay due regard to the striking results of the test in 2001 involving aluminium composite panels with unmodified polyethylene cores.

¶29.5 The report of the Select Committee warned the government in unambiguous terms that it should not take a serious fire in which people were killed before steps were taken to minimise the risks posed by some external cladding systems. Unfortunately, that warning was ignored and although a large-scale system test (which became BS 8414) was introduced as an alternative way of assessing risk, national Class 0, which was based on small-scale testing, was allowed to remain in the statutory guidance as the primary standard for external wall coverings, notwithstanding its clear and well-known limitations. On numerous occasions the department was made aware that national Class 0 was wholly inadequate as a measure of the propensity of composite panels to promote the spread of fire across an external wall but it allowed it to remain in the statutory guidance as an acceptable standard until after the Grenfell Tower fire. As soon as the obvious inadequacy of Class 0 for that purpose was demonstrated by the fire, the Building Regulations and guidance were changed. The need for that change could and should have been identified and acted upon years earlier.

214

¶29.6 The failure of the government following the large-scale test in 2001 of a system incorporating aluminium composite panels with unmodified polyethylene cores to take any steps to ascertain the extent to which panels of that kind were in use or to warn the construction industry about the risks they posed represents a significant failure of the system, as was the department's failure to publish the results of the test.

¶29.7 The review of Approved Document B between 2005 and 2006 provided the department with another opportunity to clarify the guidance on compliance with functional requirement B4(1). Changes were made to paragraph 12.7 of Approved Document B but the choice of language was vague and ill thought out and the changes were slipped in at a late stage in the process with no proper consultation. The failure to follow established procedures appears to have been driven by a desire to achieve a quick solution to a previously unforeseen problem, but an absence of proper consultation and time for thought resulted in an unsatisfactory amendment that was responsible for confusion and uncertainty. Once again, there was a failure of sound policy-making and the systems designed to ensure an effective outcome.

¶29.8 In the period between 2012 and 2017 the department received warnings about the risks posed by polymeric insulation products and aluminium composite cladding products with polyethylene cores. It also became aware of several major cladding fires abroad. They should have alerted it to the dangers posed by those materials and should have led it to investigate the extent to which such materials were being used by the construction industry in this country. The department appears to have proceeded on the assumption that, because a serious high-rise cladding fire had not occurred in this country, the regulatory regime was sufficient to prevent one from occurring. That was a mistaken assumption for which there was no basis.

¶29.9 Despite those warnings, the department failed to amend or clarify the guidance in Approved Document B on the construction of external walls, which, by 2013 at the latest, it knew was unclear and not properly understood by a significant proportion of those engaged in the UK construction industry. By February 2016 it was aware that some in the industry were worried that combustible insulation and ACM PE panels were routinely being used on high-rise buildings in breach of functional requirement B4. The failure to act on that knowledge represented a serious failure on the part of the government to take seriously its responsibility for the safety of those living in such buildings.

¶29.10 If systems of government are to work well it is necessary that those who are employed to operate them are carefully appointed. It is not clear how Brian Martin was chosen to be the official with day-to-day responsibility for the Building Regulations and Approved Document B, why he was allowed to remain in that position for so long or why he was allowed to wield so much influence over the department's response to developments. His repeated failures to bring to the attention of more senior officials serious risks of which he became aware suggest that he was given a much greater degree of responsibility than was justified without suitable oversight.

215

¶29.11 More senior officials must also take responsibility for what were systemic failures. Anthony Burd, Mr Martin's line manager, was directly involved in the introduction into paragraph 12.7 of the expression "filler material" and appears to have been solely responsible for the further addition at the last minute of the reference to gaskets and sealants. He should have ensured that more senior officials were told about it.

¶29.12 It was a serious weakness in the organisation of the department that Mr Martin was given too much independence in deciding how it should respond to information reaching it from the industry and elsewhere. As his Deputy Director for a significant part of the relevant period, Bob Ledsome must bear some of the responsibility for that because he did not exercise the degree of oversight that matters of such importance required. He could and should have done more to understand the potential risks involved in the use of certain products, particularly when he became aware in late 2015 of various international cladding fires. Given the extent to which matters affecting the safety of people's lives depended on Mr Martin's recognition of a serious danger and the soundness and thoroughness of his decision-making, Mr Ledsome, Mr Burd and later Mr Harral should have exercised a greater degree of supervision over him, if only to ensure that his response to events was appropriate. It was a serious failure of the system to allow an area of activity that directly affected the safety of people's lives to depend on the judgment of one relatively junior official.

¶29.13 The effective working of the system was not enhanced by the privatisation of BRE. In our view its relationship with the department became less beneficial after it was required to operate in a commercial environment. The transition from adviser to contractor meant that it did not regard itself as being under a duty to provide robust and independent advice to the government. Indeed, the department made it clear that it should not volunteer policy advice but should confine itself to providing the services described in its contracts. The flaws in the relationship between BRE and the department were epitomised by the Investigation of Real Fires contracts²¹⁶⁷²¹⁶⁷ See Chapter 8. under which BRE's contribution to discussions was restricted.

¶29.14 Once the relationship between BRE and the department had been put on a purely commercial footing, it was for the department to decide what it wanted BRE to provide. If it did not want BRE to provide policy or any other advice it was free to make that clear. However, for the relationship to work to best advantage it was desirable that the department should have the benefit of BRE's advice and experience. Unfortunately, that did not always occur. BRE's investigation into the Lakanal House fire was curtailed by the department prematurely and at every stage, including the inquests, officials displayed a short-sighted attitude towards learning the wider lessons of the fire. Lessons could and should have been learnt that might have improved the robustness and clarity of the regulatory regime before the refurbishment of Grenfell Tower was carried out.

¶29.15 The department's response to the coroner's recommendations was inadequate. No-one treated them with any sense of urgency; officials did not explain clearly to the Secretary of State the steps that were required to comply with them and at least one junior official appeared to treat the coroner with disdain. There was a lack of clarity about which of them had been accepted and which rejected and there was no system for monitoring or tracking them.

216

¶29.16 The picture of a department struggling under significant pressure was reinforced by the response of ministers and officials to other external bodies. Legitimate concerns repeatedly raised by the All-Party Parliamentary Group on Fire Safety were met with a defensive and dismissive attitude by officials, reflected in the responses of ministers to correspondence. They ought to have considered whether the concerns were well-founded, and if so, what action was required.

¶29.17 In the years that followed the receipt of the coroner's recommendations the government's deregulatory agenda, enthusiastically supported by some junior ministers and the Secretary of State, dominated the department's thinking to such an extent that even matters affecting the safety of life were ignored, delayed or disregarded. Senior officials and ministers alike appeared to be almost completely unaware of the day-to-day effect of those policies on junior officials who were charged with matters of that kind. Mr Ledsome made no attempt to bring to the attention of any more senior official the negative effect on his team of the pressure to deregulate and no senior official or minister appears to have given any real thought to whether it was appropriate that the policy of deregulation should apply to the Building Regulations and statutory guidance.

¶29.18 Building control was a regulatory activity in which the department played no direct role, but senior officials and ministers ought to have ensured that arrangements were in place to monitor the system and ensure that it was working properly. From 2013 onwards there were warnings about systemic failings and risks to public safety that junior officials should have brought to the attention of those in more senior positions, but no formal process for doing so existed.

¶29.19 The effectiveness of the Building Regulations division was undermined by a failure to include among its responsibilities monitoring the effectiveness of the Building Regulations and statutory guidance and the development of new methods of construction and the use of new materials and by a lack of sufficient resources to enable it to identify and record risks to public safety arising from the use of unsuitable materials. Nor did it have sufficient resources to ensure that the guidance in Approved Document B was kept up to date and fit for its purpose. The division was not afforded the priority it deserved and was not given the resources and expertise it needed to carry out the demands on it.

¶29.20 There were serious and longstanding failings of leadership at the highest levels. Senior officials should have taken a closer interest in the working of a small, but important, part of the department that was responsible for significant matters affecting the safety of people's lives. The fact that the Building Regulations division was not expected to monitor the way in which the regulations and guidance were understood and applied created a dangerous situation, given the low levels of competence in the construction industry, the introduction of new construction materials, such as polymeric insulation and ACM panels with combustible cores, and the extent to which many in the industry regarded Approved Document B as prescribing the circumstances in which combustible materials could be used in the construction of external walls without regard to the functional requirements. Most importantly, there was a failure to create a climate in which concerns reaching the department about matters affecting the safety of life were expected to be raised with more senior officials and frank advice given.

¶29.21 In conclusion, we have come to the view that over a period of many years the department failed to recognise the importance of the Building Regulations and the accompanying statutory guidance as a system of regulation whose purpose was to ensure public safety, including the safety of those who live and work in high-rise buildings. For that reason it failed to put in place arrangements to ensure that the working of the system was properly monitored and that steps were taken as and when necessary to ensure that it remained capable of achieving its purposes. Those were systemic failings of a kind for which ministers and the senior officials responsible for the organisation of the department must take responsibility. Despite the warning from the Select Committee in 1999 that action needed to be taken on the use of combustible materials in the construction of external walls, inertia combined in later years with a drive to avoid regulation made it likely that only a major fire in a high-rise building leading to a large number of casualties would prompt it to take the necessary action. The government must take responsibility for the systemic failures that played a significant part in enabling the Grenfell Tower fire to occur.

217

¶29.22 Regrettably, there was a similar failure on the part of the government to ensure that the provisions of the Fire Safety Order relating to the carrying out of fire risk assessments were capable of being implemented as effectively as the nature of the activity required. The problem lay in the competence of those who held themselves out as capable of carrying out such assessments, particularly in relation to high-risk buildings, and the government's apparent determination not to respond to repeated calls for the regulation of the industry. The need for regulation to ensure the competence of those practising as fire risk assessors was drawn to the department's attention by the Chief Fire and Rescue Adviser in 2009 and over the following years calls came from various quarters for the industry to be regulated.

¶29.23 When the matter next came before the relevant minister (then Brandon Lewis MP) in 2013, reluctance to introduce new regulations appears to have trumped the need to put the industry on a sound footing. The determination to pursue a solution based on the creation of voluntary schemes of accreditation of a kind that had not previously proved effective resulted in stalemate. Unfortunately, the government failed to pay proper attention to the voice of the fire sector whose various bodies were largely in agreement about what was needed. That may have reflected the degree of importance ministers attached to fire risk assessments, but whatever the reason, its refusal to act was in our view a serious error and a failure of the system designed to keep people safe from the effects of fire.

¶29.24 Much the same can be said of the department's response to requests for clarification of the Fire Safety Order. As early as 2012 the London Fire Commissioner asked the minister (again, Brandon Lewis MP) to provide guidance on the meaning of the expression "[parts] used in common". His call for clarification was echoed by the coroner at the Lakanal House inquests but once again, the policy of deregulation appears to have stood in the way of amending the Order to provide the necessary clarity. Despite a further request for clarification from the London Fire Commissioner, the government shelved the matter and no action was taken until the passing of the Fire Safety Act 2021, some years after the Grenfell Tower fire.

The Building Research Establishment

¶29.25 BRE held a trusted position within the construction industry and more widely. Having begun life as a government agency it was privatised in 1997, after which it was engaged to advise the department from time to time on a broad range of matters relating to fire safety under contracts for research, investigations, reports and experimental work. Senior staff, including Dr Debbie Smith and Dr Sarah Colwell, were members of a range of committees working on fire safety standards at both European and national level, sometimes acting on behalf of the government. BRE was responsible for managing public consultations on, and drafting amendments to, Approved Document B and for advising working groups formed by the department on the introduction of new classifications such as Euroclass standards in 2002. Informally, BRE staff corresponded with the department, principally Mr Martin, on inquiries relating to fire safety received both by the department and by BRE itself. Their correspondence covered a range of matters, including the interpretation of parts of Approved Document B and international cladding fires.

218

¶29.26 BRE was widely recognised both nationally and internationally as a leader in fire safety. For many years before the fire at Grenfell Tower it was the only organisation in the UK capable of carrying out large-scale testing in accordance with BS 8414. BRE developed that test and published all three versions of BR 135, which set out the criteria against which data from tests carried out in accordance with BS 8414 should be assessed.

¶29.27 However, as our findings in earlier chapters demonstrate, much of the work carried out by BRE was marred by unprofessional conduct, inadequate practices, a lack of effective oversight, poor reporting and a lack of scientific rigour. In some cases we saw evidence of a desire to accommodate existing customers at the expense of maintaining the rigour of its processes. Despite its close association with the department over a long period of time and the opportunities that association provided for the informal exchange of views, BRE appears to have been reluctant to alert the department to developments of potential importance in the construction industry of which it became aware.

Testing in accordance with BS 8414

¶29.28 There were weaknesses in the way BRE carried out tests in accordance with BS 8414. It did not identify carefully the materials delivered to the burn hall for individual tests, it did not ensure that they corresponded to the drawings of the system to be tested and did not ensure that the rig as constructed and tested accurately reflected the drawings that had been provided. The periodic checks that Dr Smith told us BRE staff were expected to make on systems under construction were vague and did not contain any clear direction in relation to frequency, timing or purpose. She told us that BRE staff in the burn hall were not trained to understand architectural drawings,²¹⁶⁸²¹⁶⁸ Smith {Day237/167:17-25}. so it is difficult to see why BRE required drawings to be provided or why its staff were expected to check systems under construction against them. Mr Clark, who managed the BRE burn hall between 2005 and 2015 and was responsible for compiling BRE's standards and procedures for testing in accordance with BS 8414 in 2013,²¹⁶⁹²¹⁶⁹ {BRE00005769/295-305}; Clark {Day95/60:20-21}. told us that he thought the drawings submitted by test sponsors were not intended to represent the system tested but the system as it was intended to be constructed as part of a building.²¹⁷⁰²¹⁷⁰ Clark {Day97/72:14-18}. He also told us that drawings had sometimes not been provided until after the test had taken place,²¹⁷¹²¹⁷¹ Clark {BRE00005768/9} page 9, paragraph 41. as happened with the second test carried out for Celotex in May 2014. In that case Mr Clark prepared a draft report using drawings from the previous test in February 2014.²¹⁷²²¹⁷² Clark {Day96/81:3-13}. As a result of those defects in the system, reports of tests did not always correctly describe the system tested.

¶29.29 BRE took the position, repeated in all test reports, that the configuration of the system to be tested was entirely a matter for the sponsor of the test, but that did not prevent it from carrying out proper checks to ensure that the system tested matched the description in the test reports and that the components were correctly identified and accurately recorded. We see no reason why BRE could not have kept comprehensive records of all materials delivered to the burn hall for every test, examined the drawings in advance and decided at what stage of construction checks should be made by BRE staff. Since the description of the system tested was fundamental to any subsequent report, close monitoring of the system in the course of construction was essential to ensure that the report was accurate. Nothing in BS EN ISO EIC 17025 prevented BRE from doing that. The absence of such arrangements represented a serious failure in its systems.

219

¶29.30 Shortcomings of that kind enabled Celotex to manipulate the testing process by introducing materials other than those described in the report. Moreover, although BRE was aware that commercial organisations were liable to manipulate their relationship with it to gain commercial advantage,²¹⁷³²¹⁷³ {BRE00014770/6}; {BRE00041887/12}; Smith {Day235/67:8-24}; {Day236/155:18}-{Day236/156:23}; {Day238/44:21-23}. it did not take adequate steps to ensure that those of its employees who came into direct contact with clients in the course of carrying out tests understood the need to maintain their distance and avoid undue familiarity. As a result, its employees were liable to be drawn into relationships with customers that undermined the independence, objectivity and rigour of their work.

¶29.31 In 2004 Dr Colwell discussed testing with Kingspan in a way that went some way beyond providing general information about the process and amounted to giving advice on the best way to satisfy the criteria in BR 135.²¹⁷⁴²¹⁷⁴ {KIN00021657} ninth and twelfth paragraphs; {BRE00047572/1}; Meredith {Day75/20:14}-{Day75/21:1}; Heath {Day78/204:17-22}; {Day78/207:9-12}; {Day78/208:18}-{Day78/209:7}; Meredith {Day75/130:23-25}. See Chapter 22. In December 2007, BRE staff offered unofficial comments and observations to Kingspan about the performance of K15 following the disastrous result of a test on a system of which it had formed part.²¹⁷⁵²¹⁷⁵ {KIN00008847/3}; Meredith {Day75/160:3-13}. See Chapter 22. In keeping with Kingspan's strongly expressed wishes,²¹⁷⁶²¹⁷⁶ {KIN00003693/1} BRE agreed to say no more in its report than that the system as a whole had not met the criteria in BR 135, despite having commented privately to Kingspan that the insulation had been fully involved and had continued to burn even after the flame source had been extinguished.

¶29.32 Despite his denials, we have found that Mr Clark advised Celotex on more than one occasion on ways in which it could improve its system for a second test after a failed test in February 2014. We have also found that he was aware of the inclusion of additional magnesium oxide boards during the second Celotex test that were not referred to in the test report or the classification report. We also saw for ourselves a recording of Mr Clark engaging in discussions with Mr Meredith during the test of a system incorporating Kingspan K15 in March 2014 in the course of which he gave advice on the performance of the system and how to argue about what the results showed.²¹⁷⁷²¹⁷⁷ {BRE00035418}.

¶29.33 The unprofessional behaviour of some of BRE's staff was in part the result of a failure to provide them with adequate training in the performance of their responsibilities. We have been critical of Mr Clark for advising Celotex on ways in which it might improve its system following the test in February 2014, for failing to draw attention to the use by Celotex of magnesium oxide boards in the system tested in May 2014 and for giving advice to Kingspan during the test conducted for it in March 2014. However, he had received no training from BRE of any kind on what was required by way of independence and impartiality,²¹⁷⁸²¹⁷⁸ Clark {Day97/88:23}-{Day97/89:3}. nor had he had any discussion at any time with any of his managers about what might constitute impermissible advice and consultancy services.²¹⁷⁹²¹⁷⁹ Clark {Day97/89:19}-{Day97/90:2}. There was no mandatory training²¹⁸⁰²¹⁸⁰ Smith {Day237/153:11-16}. or centralised record of training within BRE and its staff were responsible for their own training records.²¹⁸¹²¹⁸¹ Smith {Day237/154:19-25}. Quite simply, Mr Clark did not know where to draw the line and he crossed it on various occasions. The failure to provide training of that kind represents a failure to establish proper management systems.

220

Commercial interests

¶29.34 When invited to a meeting of the CWCT's Fire Group in July 2014 to discuss fire and facades, including the use of combustible insulation on high-rise residential buildings, Dr Smith's alarm at what she saw as a potential threat to BRE's pre-eminent position as an adviser on such matters betrayed a desire to put BRE's status in the industry and commercial position ahead of considerations of public safety.²¹⁸²²¹⁸² {BRE00047459/1}; Smith {Day237/59:2-8}; Smith {Day237/61:25}-{Day237/62:8}; Smith {Day237/62:24}-{Day237/63:6}. See Chapter 11.

Investigation of Real Fires project

¶29.35 We recognise that BRE's fire investigations for the department were constrained by limited resources and time and also by the restrictive terms of its contracts, particularly after 2012. Nonetheless, the investigations it carried out for the department were characterised by a lack of analysis and were at best superficial.²¹⁸³²¹⁸³ See Chapter 8. Most reports revealed very little that would enable one to discern patterns or trends or even understand what had caused or contributed to any particular fire. The reports repeatedly confirmed the overall effectiveness of the regulations and guidance without any proper basis for that conclusion. As a result they gave false comfort to the department for many years and served only to increase the danger that important matters would be missed. BRE's reports into the major fires at Knowsley Heights (1991), Garnock Court (1999) and The Edge (2005) and its preliminary report into the fire at Lakanal House (2009) were far from comprehensive and in each case failed to identify or assess important contributory factors. Most significantly, although each of those fires was often referred to as providing important lessons for the future, no one at BRE was able to describe what those lessons actually were.

Relationship with the government

¶29.36 The status of BRE, its origins and historical links with the department, as well as the fact that for many years Brian Martin, while employed by BRE, had been seconded to the department might reasonably have been expected to foster a relationship under which BRE would alert the department to significant developments in matters affecting the safety of life that might call for amendments to the Building Regulations or statutory guidance. However, the relationship did not work in that way, to the detriment of the department and the public at large. Although BRE recognised from as early as 1991 following the fire at Knowsley Heights that small-scale testing, in particular of the kind that provided the basis for national Class 0, was inadequate to enable a proper assessment to be made of the reaction of external cladding systems to fire, we found nothing to indicate that BRE had drawn that to the department's attention, formally or informally.

¶29.37 Similarly, following its large-scale test of a system incorporating aluminium composite panels with polyethylene cores in 2001 under contract cc1924, BRE failed to draw the department's attention in clear terms, either in its report or informally, to the way in which the material had behaved and the dangers it presented, particularly if used on high-rise buildings. The department did not have access to its own scientific advice on matters affecting fire safety, as we think BRE must have been aware, and so depended to a significant extent on information of the kind that BRE was able to provide. The failure of that relationship represented a significant gap in the arrangements intended to protect the safety of the public.

221

The quality of BRE's work

¶29.38 BRE was engaged regularly by the department to carry out research and provide reports, but the quality of the work it produced was in many cases poor. For example, reports produced under the cc1924 project conflated Class 0 and limited combustibility when describing the regulatory requirements and guidance.²¹⁸⁴²¹⁸⁴ {BRE00001353/14} first paragraph; See Chapter 10. That was a fundamental error that was repeated by BRE when reporting on the fire at Lakanal House²¹⁸⁵²¹⁸⁵ {BRE00005881/14} fourth paragraph. See Chapter 9. and in the work done for the department by the BRE on external fire spread in 2015.²¹⁸⁶²¹⁸⁶ {CLG00019445/3} fifth paragraph; Crowder {Day230/160:22}-{Day230/162:21}. See Chapter 10. That particular piece of work, which involved experimental testing and a background research paper, was seriously inadequate. It was deeply flawed in almost every respect, lacked any scientific value and purported to draw positive conclusions about the effectiveness of the regulations and guidance that could not sensibly have been reached on the basis of the work that had been carried out.²¹⁸⁷²¹⁸⁷ Chapter 10.

Certification bodies

¶29.39 Our investigations also uncovered serious weaknesses in two important certification bodies, the British Board of Agrément (BBA) and Local Authority Building Control (LABC).

The British Board of Agrément

¶29.40 As an organisation claiming to be one of the leading certification bodies the British Board of Agrément should have ensured that its procedures for investigating the claims made by manufacturers for their products were by nature both wholly independent and rigorous and that they were followed with equal independence and rigour. In fact, however, as our investigation of the circumstances surrounding the issue of its certificates in respect of Reynobond and Kingspan K15 have shown, there were failings of a kind which undermined their value and rendered them misleading. Moreover, we have no reason to think that the shortcomings we discovered in those certificates and the way in which they had been issued were confined to those particular cases.

¶29.41 In the case of the BBA the root of the problem lay in the conflict between the need to act as a commercial organisation, and therefore to attract customers in order to generate profits, and the need to maintain a high degree of independence and rigorous investigation in order to satisfy those who might be considering using the products in question that the contents of their certificates could safely be relied on. The BBA failed to manage effectively the conflict between the commercial and (for want of a better word) regulatory aspects of its operations in the two cases we investigated and, because that conflict was inherent in its operations, we think it likely that it failed to manage it appropriately in other cases too.

¶29.42 The BBA's scrutiny of the evidence relating to the fire performance of Reynobond was superficial. Although some within the BBA knew that the performance in a fire of a product of that kind might be affected by its configuration and method of fixing, the BBA failed to ask for any test evidence relating to the product when used in cassette form. It also failed to obtain any evidence to support the claim that the version of the product with an unmodified polyethylene core had satisfied the requirements of Class 0. Despite those important omissions, it issued a certificate for Reynobond which stated that the panels "could be regarded as having a Class 0 surface" and failed to draw any distinction between the way in which different methods of fixing affected the way in which it reacted to fire.

222

¶29.43 The lack of rigour in the BBA's investigations was also exemplified by its approach to the certification of Kingspan's K15 in October 2008. No aspect of the product's manufacture, testing or fire performance was assessed by the BBA before it issued the certificate. It did not obtain any test data relating to K15 before it issued a certificate that contained a statement that the product had been classified as national Class 0, since none existed. In July 2013 the BBA issued a revised certificate stating that K15 met the requirements of paragraph 12.7 of Approved Document B, although it ought to have known that that claim was false because K15, as a phenolic product, was not a material of limited combustibility. It is clear that for some years no-one at the BBA had any real expertise in assessing the fire performance of materials or understood the need for it. Until 2016, any recourse to outside expert bodies (such as BRE) was haphazard at best.²¹⁸⁸²¹⁸⁸ Amoroso {Day106/17:19}-{Day106/18:8}; Albon {Day109/92:18-23}; {Day109/110:7}-{Day109/111:22}; Gregorian {Day105/25:12}-{Day105/27:2}; {Day105/157:19}-{Day105/160:4}.

¶29.44 Until December 2013, when it issued its third certificate for K15, the BBA effectively allowed the contents of the certificates relating to the fire performance of K15 to be dictated by Kingspan itself, accepting the text it put forward without checking its accuracy. At the suggestion of Kingspan, the first and second versions of the certificate advised designers to consult Kingspan if they were considering its use on buildings over 18 metres in height. That was a singularly foolish thing to include, as should have been obvious, because it effectively allowed Kingspan to approve the use of the product itself and bypass the certificate as independent verification of the product's compliance with the guidance in Approved Document B.

¶29.45 We accept that in the case of Arconic and Kingspan the BBA was the victim of dishonest behaviour on the part of unscrupulous manufacturers, but if it had maintained robust processes that could not have happened.

¶29.46 In these different ways the BBA demonstrated an inappropriate desire to please its customers and in order to do so accepted forms of wording proposed by them for inclusion in certificates that were wrong and misleading. It failed to recognise that the way in which Arconic described the product deliberately blurred the distinction between the form in which the product left the factory and the two forms in which it would inevitably be used. Moreover, despite imposing on customers terms of contract that required them to provide information when called upon to do so, the BBA failed to enforce them and allowed Arconic to ignore them without any sanction.²¹⁸⁹²¹⁸⁹ Chapter 21. In our view all those failures reflected an ingrained willingness to cultivate customers, certainly those of any commercial value, rather than insist on high standards and compliance with a contract that was intended to maintain them. The first two certificates issued by the BBA in relation to K15 lent substantial support to Kingspan's efforts to create a market for combustible insulation material for use on high-rise buildings.

223

Local Authority Building Control

¶29.47 Over a period of some years the LABC's certificates relating to Kingspan K15 and Celotex RS5000 contained misleading statements about the fire performance and suitability of both products for use in the external walls of buildings over 18 metres in height. They also misrepresented the nature of the BS 8414 test and classification in accordance with BR 135.

¶29.48 The LABC had received, and effectively ignored, several warnings from various organisations and individuals about the contents of the certificates it had issued for K15. In the case of K15 and RS5000, it failed to scrutinise properly the claims made for the products by the manufacturers; instead, it adopted uncritically the language they suggested. In short, it was willing to accommodate the customer at the expense of those who relied on the certificates.

¶29.49 Drafts were prepared for the certificate relating to RS5000 without sight of important documents. For much of the time those involved in producing the draft certificates did not understand the nature or purpose of the BS 8414 test or classification by reference to the criteria in BR 135. Nor did they understand the difference between a material with a Class 0 surface and a material of limited combustibility, which was an important distinction for the purposes of Approved Document B. As a result, they were under the misapprehension that if an external wall system containing a particular material or product satisfied the criteria in BR 135 when tested in accordance with BS 8414, that material or product was suitable for use in the external walls of buildings over 18 metres in height generally.²¹⁹⁰²¹⁹⁰ Ewing {Day218/165:23-25}-{Day218/166:1-7}.

¶29.50 Although the LABC was not a testing house and did not ultimately determine whether a product could be used safely on any particular development, and although local authority building control officers were not obliged to accept its certificates, it remains the case that one of the main purposes of an LABC certificate was to enable the product or system in question to gain approval from building control easily and quickly. As a body that issued certificates, the LABC was necessarily aware that its certificates were relied on by manufacturers to demonstrate that their products complied with the Building Regulations²¹⁹¹²¹⁹¹ Brennan {LABC0020135/12} page 12, paragraph 21.3; Turner {Day216/23:16-20}. and by building control officers to satisfy themselves that they were suitable for the use to which it was proposed to put them. It should therefore have been aware that it was of the utmost importance that its processes were robust and the technical contents of its certificates accurate.

¶29.51 Like the BBA, the LABC was the victim of dishonest behaviour on the part of unscrupulous manufacturers. Kingspan and Celotex outmanoeuvred and took advantage of the LABC throughout the process of certification. Each of them set out to mislead those who were responsible for assessing the claims made in respect of their products. Like the BBA, however, the LABC should have been aware of the risk that manufacturers eager to obtain certificates for their products might be tempted to present them in an unduly favourable light, if not worse, but it did little to ensure that its processes were sufficiently rigorous to avoid its being misled, so far as that was possible.

¶29.52 The LABC was vulnerable to deception because its processes were not rigorous enough and those who were responsible for the process of certification, including those who carried out the peer review, did not take them as seriously as was required. The task of producing the initial assessment should not have been given to building control officers who did not have the degree of knowledge and experience required to make an informed assessment of the product in question. It should have been given to someone who, at the very least, was capable of understanding the properties of the product and the nature of any tests to which the certificate was expected to refer. Its procedures should have ensured that appropriate test evidence existed to support the use of the products described in its certificates.

224

¶29.53 The LABC accepted that in the case of Kingspan K15 and Celotex RS5000 the approval scheme had, at least at first, failed in all respects.²¹⁹²²¹⁹² {LABC0019740/4} paragraph 11. We agree but would go further. The LABC failed to scrutinise rigorously the information provided by Kingspan or Celotex at any stage and initial errors were repeated in later certificates. The fact that the original assessments were carried out by LABC member authorities rather than by the LABC itself does not excuse the absence of proper reviews, robust second checks or, in the case of K15, the failure to respond to warnings given by reputable organisations about the inaccurate terms of a previous certificate.

¶29.54 In the final analysis, there was a complete failure on the part of the LABC over a number of years to take basic steps to ensure that the certificates it issued for K15 and RS5000 were technically accurate. We have not examined its certification of any other products and therefore cannot tell whether those were exceptions to an otherwise satisfactory process, but having seen evidence of the system in operation, we think that unlikely. We are therefore concerned by the serious deficiencies in the operation of the certification scheme that have come to light in the course of our investigations. The way in which the Type Approval and Registered Details schemes were operated in the two cases we have examined rendered them incapable of providing the construction industry, including local authority building control departments, with the objective and reliable information they required.

United Kingdom Accreditation Service

¶29.55 The role of UKAS was to assess organisations providing testing and certification services. It accredited both the BBA and BRE for many years before the Grenfell Tower fire. However, as we have concluded in Chapter 28, it did not always follow its own policies and its assessment processes were lacking in rigour and comprehensiveness. Even when failings were identified they were not properly explored and opportunities to improve were not always taken. The assessment process relied too much on the candour and co-operation of the bodies it was assessing and too much was left to trust. UKAS should have taken a more searching, even sceptical, attitude to the bodies it accredited. The powers it had to address concerns were surprisingly limited, with no powers of enforcement; the most it could do to address unsatisfactory conduct was suspend or withdraw accreditation. That was an unsatisfactory state of affairs.

The National House Building Council

¶29.56 In this chapter we have sought to identify shortcomings that had a wider significance because of their systemic nature. NHBC, whose involvement in the approval of Kingspan K15 and the publication of guidance to the construction industry on the construction of the external walls of high-rise buildings we have described in Chapter 26, played no direct part in the refurbishment of Grenfell Tower. However, as an organisation employing a large number of Approved Inspectors through whom it provided building control services to a large part of the housing market, it was very influential. It also wielded considerable influence on the housebuilding industry through its membership of the Building Control Alliance and its publication of guidance notes. It was therefore well-placed to ensure that the requirements of the Building Regulations and Approved Document B were known about and acted upon.

225

¶29.57 As we have observed elsewhere, building control is essentially a regulatory function exercised in the public interest free of commercial pressure. However, as we have described in Chapter 26, there were repeated occasions on which NHBC failed to demonstrate sufficient independence and showed itself willing to accommodate the wishes of Kingspan for commercial reasons. It also showed itself unwilling to upset its own customers and the wider construction industry by revealing the scale of the problem caused by the use of combustible insulation in the external walls of high-rise buildings and the likelihood that they did therefore not comply with the Building Regulations. Those failures struck at the heart of the system of building control. The incentive to act in that way had been created by the introduction of Approved Inspectors, who were able to operate as commercial providers of building control services. In our view there is an irreconcilable tension between the requirements of regulation and the pressures of commerce that prevents a system of that kind from effectively serving the public interest.

An overall view

¶29.58 In this chapter we have sought to look beyond the individual shortcomings to identify failings of a more systemic nature in various organisations responsible in one way or another for protecting public safety. Each of them had a part to play in a larger system that was intended to achieve that end. Unfortunately, that system lacked the degree of integration required to ensure that it operated as effectively as it should. The government made the regulations and provided the guidance but was not actively involved in monitoring their effectiveness or developments in the construction industry. BRE and other similar organisations provided information and advice to the government, but only as and when it asked for it. Certification bodies provided assurance to the market that products had certain properties and were suitable for use in certain ways but were subject to conflicting interests which in some cases they failed to manage properly. Building control was meant to exercise an important regulatory function, but local authority building control departments did not have adequate resources and the competence of their employees was variable. Moreover, following the introduction of approved inspectors, building control was exposed to the conflict between commercial interests and the regulatory function. The government did not see it as part of its function to oversee its activities in a way that would ensure that the system was discharging its intended purpose of protecting the public.

¶29.59 In our view, there was a lack of effective co-ordination between what were in substance different aspects of a single system, the purpose of which was to ensure that the built environment was safe for those who lived and worked in it and for those who might be affected by it as visitors or just passers-by. That is a task that only the government can undertake. The department responsible for making the Building Regulations and publishing guidance should also be responsible for ensuring that there is effective monitoring of the working of the system as a whole. Only if there is a greater degree of integration of the different parts of the system will the public obtain the benefits that the system as a whole is intended to provide.