Cladding and Fire Safety for Flat Buyers: EWS1, Building Safety Act, and Your Rights

The EWS1 Form: What It Is and When You Need It

The External Wall System (EWS1) form was introduced in December 2019 as a way for fire safety professionals to assess and certify the external wall system of residential buildings. Mortgage lenders began requiring EWS1 forms before lending on flats in buildings above a certain height, though requirements have varied between lenders and over time.

An EWS1 form can have one of four outcomes. Option A1 means no combustible materials in the external wall — no further action needed. Option A2 means combustible materials are present but in limited quantities that do not pose a risk — no remediation needed. Option B1 means there is a fire risk but a satisfactory mitigation strategy is in place (such as a waking watch or fire alarm upgrade). Option B2 means there is an unacceptable fire risk requiring remediation — this is the outcome that makes a building effectively unmortgageable until the work is done.

Since January 2023, the Royal Institution of Chartered Surveyors (RICS) guidance states that EWS1 forms should not be required for buildings below 11 metres (roughly 4 storeys). Most major lenders now follow this guidance, but some still request EWS1 forms for lower buildings in certain circumstances. If you are buying in a building of any height, ask whether an EWS1 form exists and what the outcome was.

The Building Safety Act 2022

The Building Safety Act 2022 is the most significant change to building safety law in a generation. It established the Building Safety Regulator (within the Health and Safety Executive), created a new regulatory regime for higher-risk buildings (generally those over 18 metres or 7 storeys with at least 2 residential units), and extended the limitation period for bringing claims for defective building work from 6 years to 30 years (retrospectively for buildings completed after June 1992).

For leaseholders, the Act introduced critical protections through the leaseholder cost protection provisions. Qualifying leaseholders in buildings over 11 metres with a relevant defect (which includes cladding and other fire safety issues) are protected from the costs of remediation, provided they meet the ownership criteria. The costs are instead allocated to developers, building owners, and — through the government's Building Safety Fund and developer remediation contracts — the parties responsible for creating the defects.

The definition of 'qualifying leaseholder' is complex. Broadly, if you owned the flat on 14 February 2022 and it was your primary residence (or you owned no more than three UK residential properties in total), you are a qualifying leaseholder. If you buy after that date, you inherit the qualifying status of the previous owner. Non-qualifying leaseholders (typically corporate landlords or those with large property portfolios) may face capped or uncapped remediation contributions.

Remediation: Who Pays and How Long It Takes

The government has committed £5.1 billion through the Building Safety Fund (renamed the Cladding Safety Scheme) to remediate unsafe cladding on buildings over 11 metres. Developers have also signed legally binding contracts (the Developer Remediation Contract) committing to fix life-critical fire safety issues in buildings they developed. Major developers including Barratt, Persimmon, Taylor Wimpey, and others have signed these contracts.

For buildings under 11 metres, the government's position is that the risk is lower and the existing provisions (fire alarms, escape routes) are generally adequate. However, some buildings under 11 metres do have fire safety defects, and remediation for these is less well funded. The Responsible Actors Scheme requires developers who sign up to fix buildings over 11 metres, but there is no equivalent blanket scheme for smaller buildings.

Remediation timelines vary enormously. Some buildings have been waiting since 2017 for assessment, let alone remediation. Government targets aim to have all buildings assessed and remediation underway by 2029, but progress has been slower than planned. When buying a flat in an affected building, ask specifically for the remediation timeline, the funding source (government fund, developer, or freeholder), and whether a managing agent or project manager has been appointed to oversee the work.

What to Check Before Buying a Flat

Before making an offer on any flat, particularly in a building above 4 storeys, investigate the fire safety position. Ask the estate agent or seller directly: has an EWS1 assessment been done? What was the rating? Is there any ongoing or planned remediation work? Has a Building Safety Case been prepared (required for higher-risk buildings)?

Your solicitor should raise fire safety enquiries as part of conveyancing. Specific questions should include: whether the building has any known fire safety defects, whether any remediation notices have been served, whether any EWS1 or fire risk assessment has been carried out, and whether any service charge contributions toward fire safety work are planned or anticipated. Ask for copies of any EWS1 forms, fire risk assessments, and correspondence with the Building Safety Regulator.

Check whether your mortgage lender has specific requirements for the building. Some lenders maintain internal lists of buildings they will and will not lend on. A mortgage agreement in principle does not guarantee a mortgage offer — the lender's surveyor may identify fire safety concerns that result in a declined valuation.

• ▸EWS1 form: Request a copy and check the rating — A1 or A2 is clear; B1 requires understanding the mitigation; B2 means remediation is needed
• ▸Fire risk assessment: A recent FRA should be available for any building with common areas — ask for a copy
• ▸Remediation status: If work is needed, understand the timeline, funding source, and who is managing the project
• ▸Service charge budget: Check for any fire safety-related charges or planned expenditure in the service charge accounts
• ▸Lender position: Confirm your specific lender will lend on the specific building — do not assume

Leaseholder Protections and Your Rights

The Building Safety Act 2022 gives qualifying leaseholders significant protections. You cannot be charged for the remediation of relevant defects (cladding and other external wall issues) in most circumstances. Service charge demands for fire safety remediation that attempt to pass costs to qualifying leaseholders can be challenged and are likely unenforceable.

If you are a qualifying leaseholder and your freeholder or managing agent is attempting to charge you for remediation, seek legal advice immediately. The Leasehold Advisory Service (LEASE) provides free initial advice, and specialist solicitors can advise on your rights under the Act. You can also report non-compliance to the Building Safety Regulator.

Interim safety measures — such as waking watches (24/7 fire patrols costing £10,000 to £40,000 per month for a building) — are being replaced in most cases by common fire alarm systems, which are far cheaper. The government's Waking Watch Replacement Fund has helped fund alarm installations. If your building still has a waking watch, ask why it has not been replaced with an alarm system and who is bearing the cost.

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