Are RAAC remediation claims coming – and who foots the bill?


Mark Manning is a partner and Sian Barrett is a senior associate at law firm Ashfords

Following the RAAC scandal last year, many expected a mass influx of claims to hit the industry, potentially causing huge headaches for contractors. To much surprise, this hasn’t been the case. Why? And are they on the horizon?

“A hurdle for claims for any alleged breach of contract or professional negligence will be statutory limitations”

It is important to note the impact of RAAC, or reinforced autoclaved aerated concrete, on schools affected by the closure of buildings where the now lifetime-expired building material has been found. 

When RAAC made headline news in August, just days before the start of the new school term, serious concerns were raised by the Department for Education and the potential safety risks prevented many pupils from returning to school. By 27 November, RAAC had been identified in 231 educational settings, rising to 234 this month. Affected schools had to find immediate solutions to teach children online, in nearby buildings, and in temporary structures such as marquees and portable classrooms. Some are calling for automatic inflation of exam marks of up to 10 per cent and coursework extensions to reflect the disruption to pupils’ learning. 

But why have we not seen more claims arising from RAAC to date? Where RAAC has been identified as a building defect and expensive remedial work has been recommended, who should foot the bill? And to what extent are contractors liable where they have been involved in installing RAAC?

Complexity

RAAC defects may be caused by various factors, either independently or in combination, so assigning responsibility and cost is a complex process. Responsibility will always hinge on the cause of the defect and the contractual matrix.

The culpable parties may include architects, developers, contractors and potentially surveyors, who may have installed, specified or even missed identifying the presence of RAAC in recent alterations to the school buildings.

Limitation issues

A hurdle for claims for any alleged breach of contract or professional negligence will be statutory limitations for bringing claims. Where a RAAC defect has been established, and potentially culpable third parties are identified (and are still in existence or maintain residual professional indemnity insurance for run-off claims post-cessation of trading), such limitation periods will need to be carefully considered.

The Limitation Act 1980 requires a potential claimant to bring a claim within six years, where a contract is signed ‘under hand’, or 12 years, where a contract is executed as a deed. The limitation date is usually calculated by reference to practical completion. Given that RAAC was generally limited to use in public buildings constructed between the 1950s and 1990s, contractual limitation periods are likely to have long since expired.

The Building Safety Act 2022 has thrown a lifeline to leaseholders and owners of residential buildings by extending the limitation periods under the Defective Premises Act 1972 (DPA) to 30 years retrospectively, but those with an interest in non-residential buildings, such as schools, are not able to utilise the DPA to seek redress, as that legislation only extends to the provision of dwellings.

For negligence claims, the ordinary limitation period is six years, with a further three-year period (subject to a 15-year-long stop) available in limited circumstances. Although the date on which the limitation period starts can be difficult to work out, given the length of time that has passed, the limitation period for bringing a claim in negligence is also likely to have long since expired.

Recent repair/alteration works

If there has been recent repair or alteration work to the school, the contractor carrying out the repair, or the consultants involved in the design or surveying works, may have assumed responsibility for the RAAC, or for the structural integrity of the building. In this case, it might be possible for schools to bring a claim, depending on when the repair works were carried out. This may be a saving grace for schools looking to recover the cost of expensive remedial work.

Claims by pupils

It is unlikely that any claim could successfully be brought by pupils or parents for educational disruption. They have no contractual rights that can be enforced against the parties involved in the construction, and the limitation period for any duty of care owed in negligence may have long since expired.

Similarly, any claim for ‘loss of chance’ for failing to obtain expected grades due to the disruption would also fall down due to the fundamental legal issues of causation, quantification of loss and remoteness of damage.  

Conclusion

To date, anecdotal evidence is that RAAC has not given rise to as many claims as the construction industry first feared, likely for the reasons above. The focus at the moment remains on investigating and effectively procuring, pricing and implementing remedial schemes or temporary remedial schemes in the short term.



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