As this year comes to a close, Scotland’s housing minister Paul McLennan has given some indications of what to expect next year in respect of cladding remediation.

The first key point to note is that on 6 January 2025, all provisions of the Housing (Cladding Remediation)(Scotland) Act 2024, not already in force, will into effect. The lynchpin of this legislation is around the Single Building Assessment (SBA) which sets out the basis upon which the cladding on buildings will be assessed.

Mr McLennan has confirmed that the Scottish Government will publish a full set of standards on 6 January. This will provide the clarity for which the industry has been waiting.  
One point of concern from the sector is what should happen where surveys have been undertaken but don’t comply with the standards soon to be published. The Scottish Government’s position is that all existing assessments will require to be reviewed by competent fire risk assessors to ensure it complies with the methodology and standards set out in the SBA.  The reason for this is to maintain the integrity of the Cladding Assurance Register.

In terms of how long an SBA is valid for, fire assessors undertaking the assessments should set out timeframes for each recommendation. If those timeframes lapse, then the government have indicated that a further assessment may be required. However, it appears that consideration may be given to the factual position and those factors are taken into account such as a lack of materials etc. It will be interesting to see how this will work in practice and it may slow down SBAs being undertaken when remediation work is being undertaken on other buildings.

In terms of whether there are sufficient fire engineers to undertake this work, Mr McLennan was confident that there were. The Scottish Government has confirmed that it has 12 suppliers on its framework to undertake the work.

Other key points to note:

Developer remediation contract

In respect of the developer remediation contract, the Scottish Government has confirmed that it is making good progress and has been negotiating the contract with the nine developers who signed the Accord. The Scottish Government has advised that it is seeking to mirror the outline liability as set out in the English contracts insofar as possible.

The benefit from a developer perspective is that they will have similar liabilities both north and south of the border. However, that doesn’t change the fact that the legislative background is very different. Whether this approach will be accepted by non-Accord developers remains to be seen.

Accelerating progress?

Whilst the UK Government has published their Remediation Acceleration Plan with timescales for remediating buildings over 18 metres, Mr McLennan has confirmed that at the moment, no dates have been set by the Scottish Government.

However, in order to increase the pace, the Holyrood Government is planning on introducing two new schemes. The first one will involve an open call for buildings potentially affected by unsafe cladding, where there is no developer or the developer is unwilling to undertake remediation, to bring this to the Scottish Government’s attention. The Scottish Government will then consider whether they will form part of its assessment and remediation programme. The second scheme will be complementary to the first scheme. From its own schedule of buildings, the Scottish Government will work with local authorities and fire service to identify buildings which should be prioritised due to an elevated risk as a result of the cladding.

SME position

Both SMEs and MSPs have, throughout discussions on this issue, flagged concerns as to how these measures will affect SMEs. Mr McLennan has confirmed that the Scottish Government does not want to put businesses out of action.

It was confirmed that, at this point in time, the Scottish Government is not asking developers who do not have an operating profit in specified years (albeit there was no mention of which years!) of over £10m to formally sign the remediation contract. The Scottish Government’s rationale for this is that the fundamental purpose of the remediation contract is for developers to accept 100% liability for the cladding remediation.

For present purposes, the Holyrood Government is following the English approach. Given the profit levels, it is not clear how many developers in Scotland will be required to sign the remediation contract.

Responsible developers scheme

There was no reference made to this scheme or when draft legislation would be available. Given that this secondary legislation is where the “teeth” will be for developers to undertake remediation work, we anticipate that there will be an update on this at the start of the year.

• Caroline Maciver is a partner and building safety specialist at law firm CMS