EWS1 Forms - are they still required and if so, for how much longer?

• United Kingdom

• Construction and engineering

04-07-2022

In the aftermath of the Grenfell Tower tragedy, RICS introduced the External Wall System 1 (EWS1) form to report to lenders on the presence, or absence, of combustible materials on the external façade of multi-storey residential buildings. With widespread regulatory reform and legislative updates regarding fire safety, there has been debate on whether EWS1 forms are still required. As this article shows, EWS1 forms perform a separate commercial purpose and their continued use is expected.

How is fire risk assessed?

EWS1 forms do not assess fire risk.  This is done via fire risk assessments, which are required in England and Wales under the Regulatory Reform Fire Safety Order 2005 (FSO).  The FSO applies to workplaces and the communal parts of residential properties (i.e. those parts that are or could be used by the occupants of more than one dwelling), but not to private dwellings.

Under the FSO there was no mention whether the external walls and flat entrance doors of a multi-occupied residential building should be included in the fire risk assessment. This ambiguity was highlighted as a faliure in the public inquiries following Grenfell.

In response to this, the Fire Safety Act 2021 (FSA) was introduced in England and Wales to clarify that the FSO applies to the structure, external walls (including balconies, doors and windows) and flat entrance doors in multi-occupied residential buildings, with two or more domestic premises.  The FSA requires a “responsible person” in such buildings to update their fire risk assessment to include this revised scope within the inspection.

Sections 1, 2 and 3 of the FSA commenced in Wales on 1 October 2021, but these provisions will not be enacted in England until 23 January 2023 when the Fire Safety (England) Regulations 2022 comes into force.  Until these provisions are enacted it is prudent to be cautious about the scope and reliability of current fire risk assessments.

What is the continued risk of combustible cladding?

In December 2018, the Government banned the use of combustible cladding and insulation in high rise (i.e. 18 m metres or over) blocks of flats, hospitals, residential care premises and student accommodation.  This was done by amending the Building Regulations[1] and updating Approved Document B (Fire Safety).  On 1 June 2022, new regulations were introduced[2] which further ban the use of combustible materials in hotels, hostels and boarding houses.  These new regulations will come into effect in England from 1 December 2022.

This legislative reform means that new build properties caught by the revised regulations will not have combustible cladding. However there is a huge legacy issue, whereby it was estimated in 2019 that 1700 buildings in England would fail fire risk assessments, if conducted under the new regime, due to the presence of combustible cladding.

Interim solutions

The scale of the problem presented after the Grenfell inquries initiated funding solutions through the Government’s ACM remediation programme and Building Safety Fund, and widespread legal reform under the Building Safety Act 2022 to facilitate remediation works.  In December 2019 RICS introduced EWS1 forms so that it was able to confirm to mortgage lenders whether remediation works were required to external wall systems in high rise buildings and to give an estimate of the costs involved.

The Government also brought out advice notes for building owners on what measures should be taken to ensure that existing buildings that have external cladding are safe.  These were brought together in what became known as the “Consolidated Advice Note” in January 2020.

On 10 January 2022, the Government withdrew its Consolidated Advice Note, as it claimed that it gave rise to disproportionate risk assessments.  In its place the Publicly Available Specification (PAS) 9980 was introduced by the British Standard Institition (BSI) to provide new guidance on how to assess fire risks within a multi-storey, multi-occupied residential building.

Fire risk assessments vs EWS1 forms

Fire risk assessments are technical documents that cover a wide range of fire protection precautions.  The Government notes that these are not normally appropriate to use as an indication of the level of risk of fire at a building to inform lending decisions or to provide assurances to valuers, residents, buyers, or sellers. The BSI has stated that, “PAS 9980 is not intended as an alternative to the EWS1 form, which is for valuation purposes and administered by RICS.”

Government advice does not require the use of an EWS1 form, which is largely driven by mortgage lenders and their valuers.  However, the Government has criticised the “over-use” of EWS1 forms.  RICS had intended them to be used for buildings over 18m in height or where there were “specific concerns” about a property.  The reference to “specific concerns” was interpreted widely by lenders, who frequently requested them as a matter of routine.  Due to the shortage of suitably qualified professionals able to provide the EWS1 forms this created problems and delay for nearly 450,000 flat owners in being able to sell, move or re-mortgage their homes.

In response to this, on 8 March 2021 RICS updated their guidance notes to clarify the circumstances in which an EWS1 form should be requested.  This guidance came into effect from 5 April 2021. On 16 March 2022 the RICS issued a further notice that, despite the Government’s withdrawal of the Consolidated Advice Note, RICS’s guidance remains valid.

When is an EWS1 form required?

An EWS1 form can only be procured and issued in favour of the owner of the entire building (rather than an individual apartment owner). Sellers of individual apartments will need to persuade the building owner to procure an EWS1 form.  The EWS1 form is personal to the owner and cannot be relied upon or transferred to others.

Under the current RICS guidance, an EWS1 should not be required where a valuer or lender has been able to establish that a building over 18 metres has a valid building control certificate in accordance with Building Regulations post December 2018, which banned the use of combustible materials as cladding and insulation.

Where that is not the case, RICS guidance suggests the following criteria:

• for buildings over six storeys, an EWS1 form should be required where:

• there is cladding or curtain wall glazing on the building, or

• there are balconies which stack vertically above each other and either both the balustrades and decking are constructed with combustible materials (e.g. timber) or the decking is constructed with combustible materials and the balconies are directly linked by combustible material

• for buildings of five or six storeys, an EWS1 form should be required where:

• there is a significant amount of cladding on the building (for the purpose of the guidance, approximately one quarter of the whole elevation estimated from what is visible standing at ground level is a significant amount), or

• there are aluminium composite material (ACM), metal composite material (MCM) or high pressure laminate (HPL) panels on the building, or

• there are balconies which stack vertically above each other and either both the balustrades and decking are constructed with combustible materials (e.g. timber), or the decking is constructed with combustible materials and the balconies are directly linked by combustible materials

• for buildings of four storeys or fewer, an EWS1 form should be required only where there are ACM, MCM or HPL panels on the building.

What does the future hold for EWS1 forms?

It is likely that the use of EWS1 forms will decline over time, as they will become redundant as more fire safety assessments are carried out in accordance with FSA (to address those matters previously overlooked in the FSO) and as new built high rise buildings are constructed in accordance with the updated Building Regulations.  However, as the FSA only comes into force in England from 23 January 2023, and remediation work to existing high rise developments is expected under the Building Safety Act 2022, it is clear that there will be a long lead in time for these changes to come into effect. 

RICS guidance makes it clear that their advice is subject to the specific requirements of lenders.  It is up to a lender to determine what is a necessary pre-condition to the drawdown of funds.  The guidance from RICS is there to inform lenders of the level of risk, but whether an EWS1 form is required for a particular transaction is a commercial decision for the lender.  With building safety being such a high profile issue it is likely to remain on the agenda when considering funding requirements for some time to come.  Therefore, although the regulatory landscape on building safety is changing dramatically, EWS1 forms still serve an important commercial function in certain circumstances.  It will take some considerable time for the remediation works and regulatory regime to catch up before EWS1 forms become obsolete.

[1]                 Building (Amendment) Regulations 2018 (SI 2018/1230)

[2]                 Building etc (Amendment) (England) Regulations 2022 (SI 2022/603)