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The EWS1 Conundrum

Following what appeared to be some token and limited consultation at the end of 2019 the EWS1 form snuck into our property world, and in the last few months has risen to the surface in developments nearing PC. RICS, the Building Society Association and UK Finance brought this new form in to “deliver assurance for lenders, valuers, residents, buyers and sellers” around the external wall cladding systems in both existing and new buildings. With this has come several challenges that the industry is still trying to unravel.

Key issues

  • Whilst the form was initially targeted at tall buildings (defined as over 18m in height) there is also a nod to ‘buildings with specific concerns’ requiring evaluation, regardless of height. More commonly now lenders and funders are looking for EWS1 forms on all multi-tenancy buildings.
  • RICS moved swiftly to update their Minimum Terms wording (clause 4.3) to exclude liability to surveyors where the valuation is wrong purely as a consequence of reliance on an EWS1. This would seem a fair and reasonable exemption due to the expertise required in completing the EWS1, and also act as a deterrent for rogue agents signing forms that they are simply not qualified to do so.
  • For those who do qualify as ‘suitably qualified professionals’ and as such an EWS1 signatory, they owe the recipient/beneficiary of the Form a common law duty of care to ensure it is completed accurately. Naturally to complete the form there will be a reliance on information provided by others, likely in the form of as built drawings and information, but is liability then shared with regards to the accuracy of this information between all parties involved? Does relying purely on as built information constitute negligence? In existing buildings what level of investigatory works is sufficient? The form gives no comfort around these key questions.
  • In a ‘normal’ reliance letter or compliance certificate scenario, these are linked to capped liabilities and an indirect and consequential loss exclusion defined within the related appointment. The EWS1 has no direct link to any appointments, and as such is the liability therefore uncapped? As yet to our knowledge no clear direction has been provided on this.

Trigon Response

With the EWS1 form focussed on existing buildings, its integration into the new build and refurbishment sectors should be straightforward when proactively addressed. At Trigon we have developed a 3 point action plan which has been implemented across all our schemes to navigate this evolving issue:

1. Competency & Collaboration

  • Integration of all parties involved in the EWS1 into our SKET assessment process that actively tracks PII levels, policy wording and policy terms alongside key competencies.
  • Proactively supporting our supply chain partners through early instigation of their policy renewal processes where possible.

2. EWS Action Plan (EWSAP)

  • Developed at project inception to establish an efficient route to providing a robustly and competently completed form;
    – Integration with our already established CDM and fire safety management systems to record decisions taken throughout the process
    – Ensuring early engagement with the relevant parties including the EWS1 certifier with ongoing active involvement from inception to handover and beyond
    – Documenting outputs required from all parties at each stage to demonstrate compliance
    – Define supporting information and responsibilities to be appended to the final EWS1 form
    – Establish a procurement strategy allocating responsibilities throughout the development with focus on fire safety, efficiency and specific development risks

3. Validation & Compliance

  • Focus on inclusion of robust details through all design stages to minimise the risk of deviances and defects during the construction phase
  • Plan and implement QA plan and inspection gateways throughout the design and construction phases with responsibilities and outputs clearly defined

The residual issue remains around insurance and the premium this attracts; logic would suggest insurers need to assess projects on an individual basis. On new build and refurbishment projects with correct implementation of current legislation is complimented by executed warranties and certification, by default the EWS1 is surely underwritten. This initiative certainly feels like another step away from the traditional ‘Approved Inspector’ approach to building and fire safety, one which we are all aware of, tracking with interest, and deep down know is probably right.