Webinars

metroSTOR Webinar 20.04.23

Behaviour Change for Communal Recycling

Nigel Deacon

I think we should make a start. So welcome again for those who’ve joined in the last 30 seconds or so, great to see so many interested to learn more about behaviour change for communal recycling, the latest in our series of webinars on increasing recycling from difficult areas, especially things like blocks of flats. And I’m delighted to welcome Livvy today to take us through his programme on behaviour change for communal recycling.

And again for those who’ve only just joined, if you would be so kind as to pop a few details in the chat, who you are, where you’re from, what sort of particular areas of recycling that you’d like to tackle, particular challenges, and we can try and pick those up as we go through. There will be a couple of, three points in fact, where we can stop for discussion and debate through the presentation, so look forward to engaging with as many as possible. So with that, Livvy, over to you. Thank you very much.

Livvy Drake

What I’m going to do is build on the session that you had a few weeks ago with Re London around their project around social housing and how they addressed recycling. So I’m going to be using examples that they shared, I’m going to be using examples from other littering and other behaviour change campaigns around communal recycling, but it is going to be much more also around the theory. So how do those things fit into the theory, and then how could you apply that theory for where you’re working? So what I suggest for you, is that you have a behaviour that you’re looking to address, and you keep that in mind when we do the interactive bits and you think, how could this apply to what you’re doing?

And we will have some short sessions and it might be that you just type in the chat, it may be that a couple of people can come off mic, but we’re thinking about solutions-focused. So rather than saying, Oh well that’s not going to work, it’s more like, how might we, and what is relevant? So it won’t be that you adopt all of the things I suggest, it’s just that you think what could work, and what could you trial?

So who am I to be here chatting to you today? So my name is Livvy Drake. My background was in event management and I was having a great time working on big events. I was working in Australia and I went to this event and saw a full solar eclipse and I thought, Wow, Mother Nature’s insane and so powerful, what am I doing with all this energy to support her? So I came back to the UK and did some more not-so-fun corporate events. But then I thought, Right, I need to get into something that’s going to drive change. So I started my sustainability career in events and worked on festivals and a range of different events looking at where to drive change, and a lot of it was around waste reduction and I’m engaging people with recycling.

At the same time I was like, well, why stop at sustainable events? I really care about food waste. So I’ve worked on food waste projects and also plastics. So I’ve worked with an organisation called City to Sea, who look at tackling single use plastics at source. So I now do a lot of training work with organisations on looking at ways to drive change and providing consultancy support. So I’ve worked on a number of different projects that have been around waste, looking at reduction, looking at community engagement and looking at recycling. So my approach to behaviour change is based on behavioural science and it’s brought together lots of different models to first of all get really specific on the behaviour that we’re looking to address.

So recycling on the street and recycling in a house are two completely different behaviours. Recycling in a flat, recycling in a house, as you know, are completely different behaviours. So we need to understand that. We also need to get specific on the audience, because different audiences have different motivators and barriers. We then need to understand what’s driving those existing behaviours.

So this is where we carry out research to understand, is it the infrastructure? Is it people looking for the easy option? Will everyone around them think so, the social expectations, and we’ll cover off some of these today. And then I want to look at what structural changes we can make, because this is one of the easier ways to drive change. If the infrastructure is there, then that often can lead to it. Then we want to look at, how does it become socially acceptable for that group that we’re engaging with, and how do we communicate positively? Because positive communication, as you’ll see later on, is more impactful than the negative, or kind of doom and gloom and scary things. So let’s get into some of the principles.

So the first one is the knowledge action gap, and this is a really key point to make, and this is that people think, and very often environmentalists who I work with a lot, that the issue is people don’t know, and if they know, then they’ll take action. So this is known as the information deficit model, but this is not correct. Lots of people know that the behaviours they do aren’t very good for them, but they still do them. Anyone who’s a smoker on and off, smoking is not very good for you, people still do it. People know that, you know, flying isn’t great for the environment, but they still do it. So knowing is not enough to change behaviours.

And in terms of recycling, in a study in Northern Ireland, they found that 63% of people said that they knowingly put plastic in the general waste bin. But they also found that knowledge did play a part in plastic recycling because of the complexity. So people didn’t understand what they should put in which place. So there is an element when knowledge, we need to reduce the complexity so people can actually do things. This ties in very neatly with cognitive influences, our brain. So how does our brain impact how we approach things and what our behaviours are? So the reality is that thinking is actually very energy intensive, and the brain uses a lot of energy to make decisions to process complexity like plastics recycling, to make change.

This is known as our system 2 part of the brain, which is very slow, deliberate and logical. So we use this for problem solving. When we’re tired, we don’t use it very much and we find this is what we actually end up having to use if we actually want to navigate recycling. And our brain doesn’t really want to use this energy intensive part as much as possible, so often it will, you know, it will just not bother.
So this is what’s called our system 1 brain. So in order to save energy, it tries to limit the amount of system 2 and use as much as possible of system 1, which is fast, instinctive and emotional. So instead it uses memories to decide what to do. So what did I do the last time I threw something in the bin? What did I do the last time I went to the bin? So did I just check something? You know, if I had loads of big bits of cardboard, did I just put it by the side? With emotions we use, what’s going to make us feel good? That’s what I’m going to do. And our brain is always looking for the shortcuts, and the easy option in plastic recycling.

So there was this research done and they found that people said that, I have to infer, if I have to check locally for recycling information because it doesn’t actually say, when I have individual resources depleted like I am tired, I am more likely not going to bother. So I think actually this quote is definitely written by the researcher. But the idea is that when people are tired, if it’s difficult, they’re less likely to do it. How do we address this? How do we make it easy for people to bother? Well, icons. So our brain processes visual information 60,000 times faster than text. So in a study where students were doing tests, if the text, the results, the information was given in images, there was an 89% better test result. So just by seeing a visual cue, we perform better. So these are some examples of bins with icons, on the bottom right was from an airport where they’ve actually put a Walkers crisp packet, and you know, actually the items that people are holding in their hands. So the visual cue is really, really, really visual to what people have in their hands.

We also want our messages to be salient, which means that they stand out. And this is because our brains are drawn to things that are moving, out of place, so bright and unexpected things, and presenting things in a way that we don’t expect. So feet on the floor has led to people going to bins, colourful bin vinyl as used here by hubbub in Bournemouth led to increased use of these big 1100L bins just by putting a colourful sign on it. And then Bristol based Feed My Face campaign achieved a 10% reduction in food waste just by asking people to put the face and make a face on their compost caddy. And they also put a big bright sign around the bins, although this was criticised by people around because it said Slim My Waste, so there was a bit around, kind of body positive issue, so maybe not that bit, but just putting some icons on a bin. And again, another example from Bristol, colourful bins. So they’ve just made these bins stand out and they’ve made them more salient.

The other thing we want to be able to overcome is uncertainty. So this is something that humans don’t enjoy. So if we don’t know what’s going to happen next or what the right thing is to do, it’s uncomfortable for our brain, and in those instances we prefer to do nothing, so we’ll stay with the status quo and carry on doing what is safe. And again, sadly, plastic recycling falls under this category. So another quote: Being faced with uncertainty for some does not result in information seeking behaviour. Rather, it causes frustration resulting in the plastic product ending up in general waste. So this adds weight to the importance of visual, unambiguous cues about the recycling of plastic packaging to remove the barriers in the form of frustration. So again, If it’s not easy, I won’t bother. That was the name of the study and everything kind of pushes to that.

So habits, we know that many of our actions are just habits, and these are things that we’re doing habitually so we don’t have to use all that energy. Steve Jobs wore the same outfit every day to save decision fatigue. So what this means is that we’re not actually conscious with a lot of our actions. And in a survey, a third of Brits eat the same lunch every day, and many waste behaviours are very habitual and often unconscious.

So how do we build new habits? Well, habit discontinuity theory says that we need to break a habit to become conscious of our actions. So for example, being asked if we want to pay 5p for a plastic bag at the beginning of this made people consciously go, Do I want to do that? No, I’ll carry these things. Having the chute blocked in a flat suddenly makes people conscious that they can’t do that action anymore. We also need to do something one thing at a time because if we do lots of behaviours all at once, our brain can’t automate them, which is what it’s trying to do. And that automation can take between 21 days and a year, just depending on how regularly we’re automating something. So this is where focus challenges can help us to embed things. So say things like plastic free July, or people, you know, having a focused activity on an estate where we’re all doing the particular thing, so that everyone’s kind of doing it at the same time. And rewards and feedback and a sense of achievement because that helps our brains feel good. And then we have a positive association with the habit and I talk about how we can achieve that later.

But what prevents the brain from building new habits? Well, here’s a word of warning: tiredness. If we’re tired and overworked, our brain reverts to the habits that are easy to do because it’s less energy-intensive. Head space, so in order to learn new behaviours, we need space to comprehend things and downtime to process them. And it’s been shown in studies that money worries will inhibit cognitive functions. So someone who is worrying about how they’re going to pay their bills struggles to concentrate on other things. So again, something to consider, depending on where you’re working. And again, what we’re making is easy is really important.

So effort versus benefits. Why do we think that bananas get eaten before oranges in a fruit bowl at events? Anyone, idea, quickly come off of mic and suggest it?

Is it easier to peel?

Exactly. Exactly. So this plays into the idea of, the principle of least effort and friction. So the principle of least effort tells us that friction points make it harder for us to do a behaviour, so we’re less likely to do it. And when we think about recycling, this can include bin sets in different locations, having to lift the bin lids, wide apertures that anything can go in, make it easier for us to just chuck everything into the recycling and contaminate it. Hard to read messages, no container for food waste. But we can also use this in our favour, so we can increase the challenge or the friction to slow down the undesirable behaviour, e.g. closing the general chutes which ReLondon did in their project. Making the compost bin apertures smaller on a bin also was something they did because then people can’t chuck a big bag in it.

Fitting in with this idea of effort and friction is that perceived effort. So, this accounts for two thirds of how hard something is, and it’s mainly in our head. So if we think, Oh, it’s 10:00 at night, oh, I’ve got to walk to find the recycling bin, but I know the general waste is at the bottom of the stairs, sorting waste like, Oh, that’s going to be hard work, it’s a bit messy. And time is a signal of how difficult something is. So the longer it takes, the harder we believe it is. So if we think about cooking from scratch versus a ready meal, which doesn’t involve washing up, we can see which seems easier. We can also make things sound difficult with the words we use. So things like `have to’, `must’ and `should’ are perceived to be toxic words in behavioural science, whereas we’ve got these feel good words, like `easy’ and `quick’. Obviously if something isn’t quick, then we can’t really use it. The other thing our brain is looking for is benefit. So often, people are looking for a benefit to the individual, so what’s in it for me? And if there’s no perceived benefit, some people can be less likely to take action. You know, altruism for the environment isn’t enough for everyone. But benefits don’t have to be financial. And this is where social recognition can be really powerful. So this can be in, maybe more in an office environment, badges, praising emails, office prizes, awards ceremonies. Maybe in a social housing environment, it is just acknowledging the block of flats that has done really well with some posters or some emails if those could be sent. A benefit could be removing the risk of rats, and focusing on an area being more desirable. And the way that we want to get this recognition is through feedback loops. So this is where we provide information where we reinforce the actions, the benefits, and we negate the effort. So people are like, Oh, well, it was worth doing it because I have a feel good factor, or I know it’s been helping the community or I know everyone else is taking action.

So in the Waste, It’s Mine, It’s Yours project, which worked in about 22 social housing projects, they included newsletters, they sent articles in to national papers, and then they shared those with residents. So they knew that their actions were being shared publicly, and they had a thermometer showing how people were getting on with recycling. And they showed images of local people taking action. So when we think about overcoming these barriers, particularly in the brain, we need to be thinking like our target audience. And a behavioural scientist, Dan Ariely says that we must assume people have low motivation, low patience, hate doing anything, and are trying to complete a task as quickly as possible. So in other words, we need to remove the friction from a behaviour, and design a path of least resistance.

So what I’m going to invite you to do just for a couple of minutes, is to have a think about where and how you could remove efforts or friction, or increase it, for recycling in the area that you’re considering? Or how could you create a feedback loop in the space that you’re working in? And again, if you’re not working anywhere specific, maybe there’s a behaviour that you’ve got, a bugbear, you think, well, how could the local council, the social housing block, the business, the whatever, where could you activate one of these? And if you want to put some things in the chats, that will be great. And if one person or one or two people would just like to come off mute and share something succinctly, it would be great to hear from you. I can see lots of people sharing things in here. So anyone have any thoughts on how they might do this themselves? Where you could remove some friction or provide a feedback loop.

Michael Hutton

My name is Mike, I’m from Manchester City Council. I think in terms of removing effort or friction, it’s just about ease of physical infrastructure, isn’t it? It’s about, certainly in my line of work where I deal with social housing, it’s about making things as easy as possible, and as close as possible, to the problematic blocks that we’ve had in the past. We found just by having things like what you mentioned earlier, ease of walking to, having good signage, making sure that residents are aware that this is in place. You know, it takes a lot of work to go through it. But we’ve had some significant results in really problematic areas just from having physical infrastructure in place, the difference has been immense.

Livvy Drake

Perfect. And that leaves, does anyone else have anything to share or shall I carry on? Because my next section is all on infrastructure. So, Michael, great introduction there.

Larry Wolfe

My name’s Larry Wolfe and I’m working with Sandwell Council on looking at improving recycling in high rise flats, and taking on board some of the issues that have been identified in the research in ReLondon in terms of best practice, and looking at and introduced a number of reverse lidded bins, but also that’s backed up with a robust campaign providing lots of information about how to use the facilities. So it’s basically releasing the overall improvement and the cognitive effort on behalf of individuals, but also in terms of feedback loops, performance and how the community is doing. And that makes an overall shift from looking at individual social, psychological constructs from an internal basis into external aspects which are social norms, and to see where the research tends to be going now, I was reading Tristan…

Livvy Drake

I’m going to talk about social norms later…

Larry Wolfe

Tristan Sharp’s paper is a good one to read on this. Yeah.

Livvy Drake

I’ve seen you shared it, so thank you. And I realise I didn’t share the agenda, which is Cognitive, Infrastructure, Social Norms and Communication. So that’s what we’re going to cover. Larry, how have you done that, those feedback loops? So it would be interesting to hear. So what have you done as part of an overall trial in terms of the feedback loops?

Larry Wolfe

We did a series of door-knocking. So the trial looks at what was the best configuration for household recycling, for the flats, for the trial area. And so we looked at a different combination of collections and switches.

Livvy Drake

So you go door-knocking to tell people how well they’ve got on?

Larry Wolfe

We do door-knocking, see what they say, what they think of the existing system and prior to the trial, sort of baseline analysis, look at what the overall tonnage is, waste composition, and we have a surgery midway, collection of those tonnages we’ve just gathered in the last bits of information now, after an eight week period of literally gathering data from the field, prototypes that we’re testing, and then we will use that in terms of feedback to residents, in terms of how things are performed and what we are going to do. So we tried a number of interventions…

Livvy Drake

I’m going to stop you there, Larry, just because of the time, so thank you. So we’re going to move on now, if anyone else has got any thoughts or ideas, please do pop it in the chat or anything you’ve already done, because obviously this is great for peer to peer learning.

So moving on to infrastructure, which is obviously a key aspect to reducing the friction. So in terms of infrastructure, we know that in household recycling, rather than social housing, the access to kerbside recycling, so black bins and recycling things have significantly increased recycling because it’s made it really easy. In a research in Australia, they found that 16.4% of food waste went into a compost compost caddy and 3.2% in compost bins at the end of the garden. So we know again, it’s making it really easy having something that gets taken away and dealt with. And this comes into something called choice architecture. So choice architecture describes how the decisions we make are affected by the layout, the sequencing, so what comes first, and the range of choices that are available. So people will choose the easiest option or the most familiar, which is status quo bias. So people will do the thing that they know because it’s safe. So what we ideally want to do is make the default option to recycle or to use a bin instead of littering. So how do we do that? We need to set things up to make them as easy as possible.

We know that choice architecture for communal waste, recycling and waste segregation is very challenging and we know that. So this is interesting, often there’s limited recycling bins in proximity. There’s limited space to store recycling in a flat, so that makes it harder for people to kind of, you know, store things up and have separate bins for their recycling. The condition of communal waste areas and bins can actually be unattractive for people. And often the areas are inaccessible and there may be no provision of kitchen containers or liners to put things in, people can have difficulty opening doors and lifting unhygienic bins. So in the Waste, It’s mine, It’s yours and the ReLondon project they made a number of infrastructure changes. So co-locating the bins, reducing the apertures on recycling and compost. So this is friction for people to put things in. Providing compost caddies, compost bins, providing internal storage for residents, improving bin storage areas and cleaning them, and improving accessibility for people with physical challenges, as well as setting up the collection of additional materials such as food waste, small WEEE, textiles and batteries.

Now thinking about the on-street location, there’s been work done by Hubbub on cigarette bins and they carried out research and they found that cigarette littering outside pubs was often worse because the bins were not close by or appealing to use. So they developed these ballot bins which asked people to vote with their butts on something non-litter-related like football. So who’s going to win the World Cup? And these have led to between 40 and 73% increases in cigarette usage. And they’ve done this also for recycling and other things. So, you know, getting people to use this for littering has also been done. And other research, this was carried out in Lambeth, found that people may stub their butt on the bin, but due to bad bin design may still litter it. So in the pilot in Lambeth they changed signage and recommended that the bin tops were cleaned and rearranged so actually it was easier for people to do it, so you can see here it says Ash it and Trash it, rather than people stubbing it on the other part of the bin.

So, where can you change the layout or sequencing of the infrastructure on your projects? And if someone who hasn’t already done it, Mike has already said they’ve taken a lot of this and Larry’s talked about that. So anyone who hasn’t spoken or hasn’t done anything, got any ideas of where they might change the infrastructure? Now you can either type in the chat or you can come off mute, or we’ll move on to social actions. Is anyone thinking that this might be a good idea, that they’re going to look at the infrastructure as a first port of call for their projects?

Ronnie Davies

Can I just speak a second? Ronnie from First Choice Homes in Oldham, we’ve got quite a lot of issues with the Sixties-type buildings like the flats and the high rise and what have you. We have attended some of the high rise, but we find it very hard to get people who are in the flats to recycle, and that’s why we’re looking into some of the London projects with the recycling baskets in the flats, where you could encourage, possibly, they only have to go down once or twice a week, rather than all the time, they’ve got to travel with one milk bottle. We’ve got to try and make it a little bit easier, like you said, with the friction and pushback, I like that kind of idea. We just gotta make it as simple as, with as little friction as possible, I like that idea.

Livvy Drake

Lovely, thanks, Ronnie, that’s really helpful. So I’m going to carry on now and talk about the social influences. As Larry pointed out, this is where research is going and this is, well, there’s lots of research done on it. And this for me is, sort of, the core of the three things to consider. So the social influences and the power of social norms. So in research carried out around recycling behaviours in Exeter, they found that recycling behaviour was influenced mainly by the psychological acceptance of the norm to recycle through the visual cues of kerbside bins. So what does this mean? So it means seeing other people putting their recycling bins out is social proof that others are doing it. Obviously this is more challenging in a communal recycling context where people can’t see whether anyone else has been filling up the bins. But they can visually see people, you know, littering or dumping things.

So what are these social norms? Well, these are the rules that prescribe what people should and should not do given their social surroundings. So we’ve got injunctive norms. This is what society in general disapproves or approves of. So littering probably fits in there. Then you’ve got descriptive norms. So this is what others around us do. So in our community, in the street, in the workplace, the pub, the football match and the focus, the focus theory of normative conduct says that, to adopt a novel, pro-environmental behaviour such as composting, individuals should perceive it both as socially approved of, so this is the injunctive norm, so everyone else is doing it, and widely practised, so a descriptive norm. So they want to know that other people around them are actually doing it. So what we need to do is make the invisible, visible.

So what are, talking about littering, how does this play out? Well, research has shown that 18 to 34 year olds are the heaviest litterers, and for them it’s a symbol of rebelling from society’s rules, so those injunctive norms, and then it’s part of fitting in with their peers and social circles, so the descriptive norms. And so what we need to do is think, okay, well, how do we reinforce that actually other people who are like them aren’t littering? But the challenge is, there is lots of social proof of littering. So seeing the visual cues suggests it’s socially acceptable. And there have been studies that have found that when there’s lots of litter on the ground, it tells people that it’s acceptable to litter, and there’s what’s known as a waste tipping point. And it’s been found that if there’s only one or two pieces of litter, less people are likely to litter. But when it goes to three or more pieces, littering increases, and they’ve tried this, they’ve done set up studies in different locations with different types of people, and it always tends to be the case. And I’ll give you another example in a minute. And if we look here at the runners, you know, most runners when they run in their park, when they’re carrying their water bottle, when they’re training, don’t drop their plastic bottle in the park, do they? But when they go into the run, they all drop their litter. And you can say and they can say, well, it’s because of the speed and the time and blah, blah. But that’s a key example of where it’s perceived to be socially acceptable to do that.

So in order to prevent the waste tipping point, we need to try and limit the amount of waste being seen on the floor. And in terms of social housing, ReLondon worked on having regular collections and estate staff removing the large cardboard, so you stop this tipping point. And with the festival I’ve worked with, Shambala, they have their litter picking crew out at night, keeping the festival tidy because they don’t want that litter tipping point to happen.

So how do we activate pro-waste behaviours and pro-waste reduction or using a bin behaviours? In experiments where people’s littering actions were monitored, what they did was they set up a scenario where real people had notes put on their car, some flyer, and then they changed the conditions around to see what happened. So people were less likely to litter if the leaflet was about not littering or recycling. So again, those injunctive norms. People were less likely to drop litter in a clean environment even if they saw someone else littering, but were more likely to litter in an already-littered place. So that was a social proof of what was socially acceptable in that environment. They were least likely to litter in a littered or clean environment if they saw someone else picking up litter. So this is the social proof. So creating in these environments, modelling, or seeing other people doing the desirable behaviour, is key to help to change what is the accepted descriptive norm, and so what’s socially acceptable.

And in order to do that, or in order to communicate, we need to think about who are those messengers that matter and relate to people, and they will depend on the behaviour and the audience. So in some scenarios authority figures are really trusted. So it could be experts like dentists in adverts about cleaning your teeth, managers in certain work scenarios. For many people, supermarkets and brands will really inform what they do and don’t do, and this has been specifically the case around things like the plastic bags, that people look to the supermarkets to cue what was acceptable for them. And then we’ve got the relatable messengers, so people who look like us or are relatable to us. So this could be our family, it could be influencers, it could be our friends. And in the trust pilots, every year there is a survey done on trust and they find that generally, if you look here, we can see people in my local community, 62% are trusted nearly as much as national health authorities. So this is obviously around our pandemic times, but people are much more trusted and they’re kind of up there with the CEO. And if you’re working in an organisation, co-workers are trusted as much nearly as scientists. So people that we relate to are really important. So for your projects, it’s thinking, who are those relatable messengers that you can activate? And I’m sorry if you’re a council, you might not be the right messengers for recycling messages for it to cut through.

So what about giving to receive? So ReLondon replaced and deep cleaned many of their bin sets and in this way they’re setting out their commitment to the community. And this fits with a couple of concepts, one being reciprocity. So we want to pay back what we receive from others. So that idea of giving to receiving does actually work psychologically. And the concept of organisational support theory, so perceived organisational support increases people’s commitment to an organisation and support for their initiatives. And this is particularly in a work environment where people, if they know that the organisation cares about them, then they’re more likely to get on board with doing things. But we know from the Waste, It’s Mine, It’s Yours campaign project, that actually the work that was done in those environments increased community pride. And what they did was a lot of community engagement workshops and resident-led initiatives. So the residents said what they wanted and they helped lead on them. And these interventions stimulated behaviour changes, including recycling rates up by up to 50%, waste reduction, so up to 0.4 kilos per flat, and a sense of community, as well as reduced littering. Many people stated that they felt a greater pride in their local area, and if there’s greater pride then less people are likely to litter, etc. etc.

We also know that the social influences come from our perception of whether we’re being watched. So we behave differently if we think we’re being watched because we care what people think about us and how they perceive us. And in the presence of images of eyes, people are more likely to pay for their drinks via an honesty box, donate to a charity bucket, recycle appropriately, and they’re less likely to steal, litter, and we also know that the images of graffiti babies on shop shutters have reduced graffiti. And this plays into the concept, it’s known as the broken glass principle. So if glass is already broken, people, it’s called the broken window principle I think, so if more windows are broken, people will carry on breaking them. But with the baby’s eyes, there’s a perception that, you know, people don’t want to deface a baby, the eyes, people are being watched. And you can see at the bottom right, there’s a line saying, you are being watched. And this was used in a communications campaign, which I’ll talk about more in a moment. And again, just by having a sign saying you were being watched, this reduced littering in Looe in Cornwall.

So how can we model behaviours and normalise recycling behaviours in our communal situation? So can, from anything that I’ve shared there, could you think of something that you might consider adopting like eyes, like focusing on individuals, other individuals or modelling and social norming behaviours? Any thoughts of how you might approach this? Thanks. So anyone think they might start putting eyes on their buildings? Is that possible? Okay. Well, I’m going to carry on because I know Nigel wants to say a couple of words at the end.

So finally I’m going to talk about communications, and how we can bring all of these concepts that I shared into your communications. So first of all, these norms that I talked about, So describing what others do will reduce littering. So this sign says nine out of ten people use a bin. This reduced littering in Looe in Cornwall. Focusing on the undesirable behaviour, what do you think happens if we say one out of ten people litter? Do more people litter or less people litter? Come off mic If anyone’s got a comment, Do we think it will increase?

More people will litter because it looks like there’s only one person doing a demonstration.

So yes, this is saying one out of ten people litter, but just by saying one out of ten people litter, this increased littering, because we’re talking about the undesirable behaviour. So in Bournemouth they had lots of projects going on at the same time and one of them, they had the colourful bins by Hubbub. Then another one they had this campaign which said Sort your **it out. littering, **it looks ugly. They had some drones and they were monitoring littering and where these signs were, often there was more litter in those areas, whereas the nice colourful bins reduced littering. Describing what to do is also a way of reducing littering. So it just says this is what the behaviour we want people to do, and this increased bin usage in Looe and Cornwall. Equally, Thank you for taking your rubbish home, reduced verge littering in Dorset, and this was from the monitoring, they had less complaints from 84 down to 7. So how do you communicate when people aren’t really doing that great, and it’s like, well, you’re only incrementally kind of improving? Well, we focus on what they have achieved, not what they haven’t. So we don’t start saying, Oh, well, these people are better than you. We say, You recycle 25% more than you did last week, versus, You recycle 10% less than other communities. So we also want to use clear and concrete communication and things that people relate to, like, you know, don’t talk about tonnes or metric something, or kind of something, some council talk, talk about bags of rubbish, you know, numbers of plastic bottles, something that has a visual cue.

We also know that actions drive beliefs, and neuroscientist Kris De Meyer says, rather than giving people a menu of actions, give them a cooking lesson. What does this mean? What this means is exactly what re London did. They gave people a tea bag as part of their communications with the premise that people would then use it and compost it afterwards. So we let people experience the action, and this could be through an open day. It could be, you know, buddying-up systems, it could be lots of ways, because what happens is that once we start doing something, we then start becoming aligned with those actions. Like, you know, hey, I’m a cyclist. I’m going to, you know, do particular types of things. Cyclists do this, I do that. So we become the thing that we start to do.

So I know I’ve covered a lot of things in this short time, but what I am going to give to you as a passing comment, is the EAST principle. Now this comes from the behavioural insights team, and you’ll get all these slides with all this content on it. So easy, how do we make things easy for people so we can kind of, our communications, we’re talking about easy language. So the positive, how do we make things attractive to people? So we want to make things, talk about the benefits, we want to make things colourful. We want to make it socially relevant, so we talk about how many people in this block of flats are using their bins. And we do it timely, so we communicate at the moment that they need to know about this behaviour, so we have got the stickers about composting on the general waste bin where someone’s about to put their compost, so we’re doing things in a way that’s relevant.

And I’m not sure we’re going to have time for questions, but I know that Nigel said, If you pop things in the chat and it hasn’t been answered, we can respond to you separately or we can send out the answers to the questions. And I’m just going to pass over to Nigel now just to say a few words.

Nigel Deacon

Thank you, Livvy, that’s fantastic and I find it incredibly interesting, a lot of the things that we perhaps learned the hard way, the things that we’ve worked out and the hard way, the way to do things, we find, Hey, there is actually some science behind that. So really interesting. And just to reinforce maybe what you’re saying about infrastructure and the opportunities to reduce effort, the things that you do want to happen and increase the friction around the things that you don’t want to happen. I think most of these you’ve covered already decommissioning chutes, making the refuse and the recycling equally accessible, so having them co-located, making it really easy for people to interact with the facilities so they haven’t got to open up doors, go inside a dark bin room, they haven’t got to lift lids. Having clear consistent messaging, using colours and symbols rather than text and actually using the way that the facilities are designed, with larger openings for refuse, smaller openings for recycling, to actually persuade people to go the direction you want them to.

What I can see, I think, is that there’s a lot more opportunity for us to actually move into the messaging space. So getting those signs at high level, as close to eye level as possible, making them much more prominent, having the bins coloured, having it so that you can see them if you’re approaching from a different direction. There’s so many things that we can do, I think, working with you, and we’re going to be building a toolkit, picking up a lot of these points to make it much easier for all councils and social landlords, etc, to implement these things in their own estates and properties. So that’s it for me, Livvy, thank you.

Livvy Drake

Okay, lovely. So you will get these, I’ll stop sharing now because we have got probably 5 minutes for questions or comments. Anybody else that would like to jump in and say anything? Any questions, queries? Anyone who hasn’t spoken yet, first of all.

Larry Wolfe

I have spoken before, but just taking the example of the norms, injunctive and descriptive, and the younger sort of demographic on littering, I think, does it morph into more like a collective and a sociological construct driving the behaviour, where the individuals become a group and to detract from this, the type of normal in that group, depending how strong is, you get into what is known as groupthink and challenging that groupthink? So it’s very difficult, in changing that norm, and you can apply this to almost everything, if you bring into the environment, say something which is relatable and positive to that group, then I guess you run the risk of, does it actually improve the overall behaviour or be perceived as a gimmick? So there’s those sorts of things to take into consideration. So bringing in celebrities, which people think are cool, can sort of be a double edged sword. So yeah, I just want to throw that one in.

Livvy Drake

Yeah, thank you for that, Larry. And I think there’s something also about thinking where you can have the most impact. And do you want to work with a very hard-to-reach group or do you want to work with a majority where you can drive change and present what is the social norm? So yeah, it’s thinking about, is someone, you know, at that age, 16-18, you know, is putting a lot of resources there going to really be the best use of time and energy when you can work on keeping the environment, you know, cleaner or working with more people. So and yeah, celebrities are actually shown not to really work with young people, because they don’t believe they’re like them. So it’s generally influencers or people like them, and certainly in scenarios, and my example would come from festivals, and this is not exactly politically correct, but in kind of rock festivals in Germany, they’ve had young, attractive females going around doing the litter picking and suddenly groups of men who were surrounded by piles of beer cans are very, very amenable and very keen to help.

And another example from festivals. So Shambala, we did something called, on the campsites again, and we did target the hard to reach, so the young people who are there to have a very good time with their mates, and surround their kind of campsite with all their litter, was we would go and say, okay, there’s a team and they go, Right, okay, we’re going to do a one minute clear up in this area. So anyone who participates, you’ll get a limited edition exclusive, it was a Shambala medallion type thing, it was a little wood thing. And they actually, and so and it would just take one person to get started, and that one person then will be celebrated. And so that’s kind of what you need, that one person in the group to change the norm. So, but with the types of scenarios were working on it might not be practical.

Stacy Townend

I can just just interject there, sorry, Stacy from Kirklees Council, we have a video where we show, we used to show to schoolchildren about a trip around our recycling plant and our waste to energy plant, and years gone by it was always a puppet that we used for that scenario. But recently we changed that and we actually had a young schoolgirl that we redid the video in, and that was more well-received by the schools when we showed that in our schools educational program, because the children then saw a peer of their own age going around the recycling plant and saying, you know, we don’t put, you know, potatoes and food waste in this green recycling bin, we don’t want greasy pizza boxes in there and nappies and things like that. And the schools have actually got better feedback from that video using a child. I mean, this child is really good, to be fair, she’s really brilliant on eco stuff and she’s really keen and everything, so she was a good focal point because it’s a peer of their own age bracket, the children will actually listen to her more than when we stand at the front of the school and talk about recycling. Show them the video, they’re like, they ask more questions about that than they will to us directly if we were just talking to them. So it’s curating that audience that we need to do, and we’re learning that slowly as we go along now that we need to change some of those attitudes that way. Thank you.

Livvy Drake

I can’t see you because I’ve missed so many people. What was your name again?

Stacy Townend

It’s Stacey Townend of Kirklees Council.

Livvy Drake

Brilliant. That’s such a great example. So, yeah, thank you. And there’s, I mean, again, research has shown that people, and there’s a series, an American series about taking action for the environment and where they saw famous people doing an action day that didn’t move them, but where they saw everyday people, you know, changing their lifestyles, that was really much more empowering and much more believable and then motivating. So people said they’re more likely to take action, or they did take action, from seeing people like them doing it. So yeah, we kind of think of gimmicks and, you know, celebrities, but no, we want to see people like us.

So that is time. I don’t know, any other last comments or are we going to let everyone finish for lunch and get back to their work? If you do have any questions that haven’t been answered, please pop them in the chat and you’ll have my contact details as well. And do please also connect on LinkedIn and everything else so we can carry on these discussions. I’m always sharing content around behaviour change, quite often about waste. I look in bins a lot like probably all of you do, take photographs of bad bins, good bins and things and despair at others. So yes, and it was lovely to have your participation.

Nigel Deacon

Thank you, Livvy. Yes, hugely insightful. We really appreciate that, and we will be sharing the recording and transcript and also working on a toolkit together to share with everyone. Thank you so much, everybody, for joining. Thank you. Have a great day.

metroSTOR Webinar Transcript
A Legal Perspective on E-mobility, The Fire Safety Act and The Building Safety Act
16.03.23
Guest Speakers: Mark London, Mark Foxcroft and Yaasica Hamilton-Haye
from Devonshires LLP
Nigel Deacon
So welcome, everyone; thank you for joining the webinar that we set up today between metroSTOR and Devonshires
kindly assisting, looking at a legal perspective on E-Mobility, The Building Safety Act and The Fire Safety Act. So, I’m
joined today by Mark London, Mark Foxcroft and Yaasica Hamilton-Haye of Devonshires. So, thanks for joining us and
great to see so many on the call. I was just going to start with a quick overview on the fire risk from lithium-ion batteries
commonly used today in e-mobility devices such as e-bikes, e-scooters, hoverboards, mobility scooters. Of course,
they’re fitted to nearly everything we use now from mobile phones and batteries to domestic devices, because they’re
so good at what they do. High power and small size, small weight, but what’s becoming increasingly evident over the
last year or two is that lithium-ion batteries are susceptible to damage, overheating, overcharging, and when this occurs,
you can get some pretty serious outcomes in terms of toxic gas release, fire and explosion, a process called thermal
runaway.
So why does this happen? It can be as a result of poor-quality products; the sale of these products are not carefully
controlled in the UK, and it could be impacts in normal use. If you can picture an e-scooter crashing on and off kerbs,
physical damage can cause that. I think one of the most common is replacing batteries or chargers with a non-standard
components. Many incidents have occurred where people have actually built their own e-bikes or scooters, so I think,
don’t just assume that it’s something that only applies to poor quality products, it’s something that can occur as they
degrade over time. So certainly something that we need to be aware of.
What actually happens during a thermal runaway event? You generally get a popping noise as the end caps come off the
cells and gas starts to discharge. Now, that is a vapor cloud. It looks like smoke, but it’s some nasty stuff, if inhaled or it
comes in contact with your skin it will kill you. Yeah, you keep away from that if you see smoke coming from a battery,
that’s for sure. Now, if it ignites quickly, you’ll get a fierce fire. If it doesn’t ignite straight away and those gases will build
up and you likely get an explosion, and you’ll see that in a minute, it is a pretty serious event. This one was set up as a
re-enactment of an incident. You’ve got the toxic cloud and then you’ve got an explosion, which is typical of the size of
battery fitted to say, a mobility scooter or an e-bike. Now, this is more showing the actual duration, that number there,
17 seconds from the gas cloud discharge to that explosion. Again, that is typical. You really don’t have much time to get
out of the property if a thermal runaway is occurring.
How many incidents? Not easy to get data on this, but it’s been a big increase over the last year or two. The stats from
London Fire Brigade, It was 32 in 2020 and 102 in 2021 and significantly higher than this in 2022. There’s been quite a
few deaths globally. There’s been three fatalities in the UK rising from e-mobility fires. Now I’ve used this graphic, yes,
it’s from New York City, but it’s a good graphic and it shows almost this exponential increase in incidents. I think this is
certainly not something that we can ignore.
So, in terms of methods of reducing risk, can we ban e-mobility devices? Well, yeah, we could do. The Transport for
London, they’ve banned them from the tube lines. But if you picture this within a residential environment, you could be
stopping people with restricted mobility from getting around. You could be stopping people from getting to work. So, I
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think the genie is out of the bottle. I don’t really think that this is an option to ban them altogether, but we can find ways
of reducing those risks. There’s a lot more we can do, I think, to make users aware of those risks. There are provisions for
maybe registering who’s got one and making sure they’re regularly checked even. That’s got disadvantages, of course.
Then I think it’s important that we consider provision of external charging lockers. But we’re going to look now at legal
obligations and the tools that you can use in order to discharge them. So, over to the team from Devonshires, thank you.
Mark London
Great. Thank you, Nigel. Good morning, everyone. Welcome to this somewhat niche subject, which is the risk posed
by the use and storage of lithium-ion batteries in predominantly residential properties and just to reiterate a couple
of points that Nigel has made, we have become involved as solicitors in a number of cases. One, unfortunately, where
there has been a death involving lithium-ion battery fires. And I cannot stress enough the fact that this is becoming an
increasingly widespread issue and it is only going to get worse, it seems to me. Nigel referred you to some interesting
information from the New York Fire Brigade. And the New York Fire Brigade have been extremely proactive in the last
couple of years, lobbying federal governments in the US side to introduce legislation to effectively ban the use of these
devices within residential buildings, or at the very least to ensure that the products available in terms of batteries and
charging equipment pass certain federal tests for safety.
Now in the UK it is becoming an increasingly significant problem as we use more and more of these devices every year.
One walks down a high street and you will inevitably pass a retail outlet selling electric scooters, electric bikes, different
unicycles, you name it. All of these devices require lithium-ion batteries, and they have all been manufactured to various
states of quality. Some are extremely well manufactured, using exceptionally well-engineered pieces of equipment,
others less so. And it’s the fact that these are largely unregulated in the UK that is causing us one of the major issues
that we are encountering with these fires starting in residential properties and indeed in other parts of buildings. So,
what we’re going to look at today is, is what the law requires us to do and how we go about assessing and dealing with
the risk posed by devices that use lithium-ion batteries and in particular e-mobility devices.
I mean, as Nigel said, we have them on our mobile phones, etc., but the risks in relation to those are minor compared
to those in mobility devices, we’re going to look at fire safety law generally and the obligations that imposes on us to
assess risks in buildings. Now, as most of you will be aware, the obligation to assess risk only applies generally to the
non-domestic parts of otherwise domestic premises. The law generally has no business going into people’s individual
domestic premises and risk assessing what they do. So how do we deal with that, given that most people who own
these devices are going to be charging them within their own homes? We’ll have a look and see what the NFCC
guidance says about lithium-ion mobility devices and their recommendations.
Of course, the NFCC guidance is not the law, but it’s probably the most helpful piece of guidance out there. And in the
absence of any specific law or regulation governing these devices, it’s the best we’ve got for the time being. And I’m
going to talk about building safety and in particular The Building Safety Act. And the Building Safety Act imposes new
obligations on residents to deal with their properties safely in relation to fire and structural safety. And I’m going to talk
about how that can be useful. I’m also going to talk about the obligations of the principal accountable person and the
accountable persons in relation to buildings over 80 meters of height. And precisely how do these people assess the
risk of lithium-ion battery devices? And then Mark is going to come in. Mark is a specialist property lawyer, so he deals
with leaseholder issues and estate management issues all the time. So, this really is a burning issue, excuse the pun, that
Mark is having to deal with at the moment. So he’s going to talk to you about how landlords can mitigate the risk posed
by these devices.
So, let’s set the groundwork in terms of the legislative framework. So, I’ve taken you through a few bullet points there.
We now have two regimes, essentially one regime set up by the home Office and the other by the Department of
DLUHC, as we as we as we call it. And in respect of the Home Office, we have The Regulatory Reform Fire Safety Order,
which you will hopefully be familiar with. We have The Fire Safety Act that became law in 2021. We have the new fire
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safety regulations that, of course, became law in January of this year. And on the other side of the equation, which I’m
going to talk about, we have the Building Regulations, so we have the CDM regs and we have the Building Safety Act and
all of the myriad of different bits of regulation that flow from there. So, in circumstances where the law doesn’t actually
have anything specific to say about lithium-ion battery risks and mobility device risks, we have to, in a sense, look at the
existing legal framework and try and work out where within that framework we have the obligation to assess the risk of
these devices and possibly do something about them.
I’m going to make the point right off the bat, and I know Mark is going to make the point as well, that our very clear
advice to people who are listening to this seminar is that in so far as you don’t already, you should certainly take steps
within your leases and other estate management arrangements to not so much to ban the use of these things because
obviously some people absolutely require the use of mobility devices to get around, it’s an essential part of their lives.
It’s a property regulator’s duty to know what’s in the building and to provide facilities, if possible, to allow people to
safely store and charge their devices where that does not create a fire risk for the rest of the building. And one of the
other issues that we have to bear in mind here as well is that we live in an age where we are constantly having to deal
with buildings that are not being constructed strictly in accordance with the functional requirements of the Building
Regulations. I don’t think I’m going to be offending anybody when I say that it’s quite rare to come across a multi
occupancy building where all the fire stopping is as it should be and all the compartmentalization is precisely as it should
be in accordance with Part B of the Building Regulations. So the risk, of course, of these devices and the possibility that
they may end up causing a fire is one that we really do have to think about when we’re managing and risk assessing
and managing the risks in these buildings. So, without further ado, I’m going to hand over to Yaasica, who’s going to talk
about fire safety law and the things that we have to think about. She’s also going to talk about the NFCC guidance.
Yaasica Hamilton-Haye
Thanks, Mark. So, yes, I’m going to be talking about the Regulatory Reform Fire Safety Order first, which is a bit of a
mouthful so I’ll just refer to it as the Order. So as Mark said, it was originally designed for non-domestic premises and
that was to provide minimum fire safety standards for those. However, communal areas of residential buildings with
multiple homes, so for example common parts, were also covered by the Order. And historically, and to note, the
enforcing authority is the fire and rescue service and they have the power to issue enforcement notices and prohibition
notices. And prosecutions for breach of the Order can be brought by the courts and very large fines can be issued.
So, under the order, who is the Responsible Person? So, in relation to a workplace, it’s the Employer to the extent the
workplace is under their control. But if it’s not a workplace and it’s a residential building, then the RP is any person who
has control of that premises. So as Owner, Occupier or otherwise, for the purpose of carrying on a trade or business or
undertaking. And so, it’s important to remember that there can be multiple Responsible Persons for the same building.
For example, the Freeholder and the management company can both be RPs in terms of their Responsible Person’s
duties on the Order. So there’s a number of articles I’ve found in the legislation, I’ve just picked out some of the most
pertinent ones for this presentation. So, Article 8 is the duty to provide general fire precautions, and that’s sort of a
catch-all clause that will, if you are caught under the Order or breach of the Order that is usually Article 8 that is raised
because it’s a duty to take general precautions to ensure the premises are safe for employees and other relevant
persons, so for example, residents.
Article 9 requires that RPs make a suitable and sufficient assessment of the risks for the purpose of identifying general
fire precautions again needed to comply with the Order. So, it is important that fire risk assessments of the buildings
suitably assess all fire risks and the carried out by competent assessor. With regards to Article 11 that requires the RP
to make and give effect to fire safety arrangements, and that is to ensure the effective planning, monitoring and review
of the preventative and protective fire safety measures. And then finally, Article 14 requires the RP to ensure that
emergency exit routes and the exits themselves are clear at all times. So, concerns with the existing legislation were
raised by Dame Judith Hackett in her review, Building a Safer Future, following the Grenfell Tower tragedy. In particular,
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there was an issue with the definition of common parts. It was not sufficient because it only applied to areas such as
common corridors, staircases, etc. and it didn’t include any aspect of fire safety within flats or on the outside of the
building, such as cladding and cavity barriers. And given the vast amount of buildings that had defective external wall
systems which had been seemingly undetected, as Mark said, buildings that were not in accordance with the functional
requirements of the building regulations, there were clearly needs to be some further reform.
So, it followed then that the Fire Safety Act was introduced. So, the Fire Safety Act gained Royal Assent in April 2021
and then the Fire Safety Regulations recently came into force on 23rd January 2023. So previously, as mentioned, fire
risk assessments only assessed the risk within the common parts of the buildings. But now you need to consider more
areas. So firstly, you have to consider the structure and the external walls of the building, including cladding, balconies
and windows, along with the common parts. And secondly, you have to assess all doors between the domestic premises
and the common parts, including entrance doors to individual flats which open out onto common parts, which again
were not previously included. So, the expansion then of the Order has created a huge new undertaking for building
owners and other RPs to manage. I know that many of you will have already factored those changes into your fire risk
assessments.
With regards to the regulations, again, these bring in a number of recommendations from the Grenfell Inquiry Phase
one report. So now RPs must now provide the fire and rescue service with up-to-date information concerning the
status and location of that fire safety equipment. And you must also ensure that the fire and rescue service are able to
easily identify where they are in the building, and importantly, where residents are located. So that might mean clear
fluorescent floor numbers and door numbers as well. And the Grenfell report highlighted that fire safety information
should be provided to residents in the form that they can reasonably expect be expected to understand. So that could
mean translating it into other languages. But what the regulations say is the Responsible Persons need to ensure that
residents are provided with fire safety instructions, which sets out how they should respond to a fire and include a
reminder of the building’s evacuation strategy.
So, turning now to the National Fire Chiefs Council guidance. So, they are the official voice of the UK Fire and Rescue
Service and the NFCC provides guidance and advice in relation to fire safety issues. So, for example, they’ve recently
released guidance on the implementing of evacuation strategies, the use of waking watch, so on and so forth. So, in
May 2018, the NFCC published their mobility scooter guidance for residential buildings. So, this covered a range of
relevant factors for responsible persons to consider, so as to assist in developing proportionate and risk-based policies to
essentially try to prevent injuries and reduce risk to all relevant persons in the event of a fire. So, with regards to storage,
responsible persons should ensure that there is a policy in place so that tenants can store and charge their scooters
safely. They should conduct a thorough risk assessment of the storage of scooters so that residents are not put to undue
risk, and a record should be kept of all mobility scooters stored within the building, and that tenants should first request
permission to store their mobility scooter, and I can completely appreciate the difficulty that building owners and
landlords may face putting that into practice. Residents also should be aware that mobility scooters should not be stored
on escape routes outside or anywhere unsecured. With regards to charging, the NFCC advised that responsible persons
implement a maintenance and testing regime to ensure that charging facilities are actually fit for purpose. And again,
scooter users should ensure that they comply with manufacturer’s instructions on use and charging.
Moving on then to e-Scooters and e-bikes, the NFCC published some guidance in January 2022, and they also said with
these they should avoid storing or charging them on escape routes or in communal areas of multiple occupied buildings.
Again, users need to follow manufacturer’s instructions when charging that device. And importantly, batteries should
not be charged at night or left charging after fully charged, sockets should not be overloaded, and most importantly,
batteries should not be charged near combustible or flammable materials. So, the London Fire Brigade have also
published some guidance in relation to e-scooters and e-bikes. It’s similar to the NFCC guidance and LFB have confirmed
that the majority of e-scooter and e-bike fires happened in homes and that are often caused when charging the
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batteries, and so they’re advising that users of these vehicles try to reduce the risk of overheating. Again, they reiterate
the advice that manufacturer’s instructions need to be followed. Never leave the vehicle charging unattended or while
people are sleeping and charge some way away from escape routes and exits. So that guidance is very much aligned
with the NFCC guidance. As Nigel mentioned, the LFB attended over 100 fires involving these devices in 2021. No doubt
that increased in 2022, and that’s just one of many enforcing authorities in the country that attended those fires. So
given the growing number of the E-Scooter fires in the news, we do anticipate further guidance will be issued in due
course. I’m now going to pass back to Mark London who’ll be discussing the Building Safety law in a bit further detail
today.
Mark London
I’ve given you quite a few quite a few slides, but I’m not I’m not going to take you through every single one because
a lot of them are really by way of background. But I want to focus on three things, really. The first is the general duty
that a building owner has in relation to Health and Safety law. Now we’ve done lots of seminars, no doubt a lot of you
attending today have come to those seminars and read articles we’ve published about the various bits of regulation
that have been passed and legislation to be passed in the last couple of years and the specific duties that those impose.
But there is one overriding duty that we all have as registered providers of social housing, as building managers, or as
building owners. And that is the duty set out in the Health and Safety at Work Act 1974. And it’s this, it is the duty of
every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, the persons
not in his employment, i.e. residents and those visiting properties that we are in who may be affected, are not thereby
exposed to risks to their health or safety. So that is an obligation that overrides absolutely everything that we do, and
it’s often one that’s forgotten in the mix when one is talking about the RO or the Fire Safety Act or indeed any fire safety
regulations, but actually, this is the obligation that is the cornerstone of Health and Safety law and is the cornerstone
of our obligations to our residents. And I can tell you now that if anything were to happen in a property that you own,
where there was some degree of culpability on the part of the building owner, you’re unlikely to be prosecuted under
the RFO. If so, the chances are that you will be prosecuted under this section of the Health and Safety at Work Act, and
the reason that the section is often used is because it creates what lawyers call a reverse burden of proof. If somebody
charges me with an offence under the section, it is for me to demonstrate that I have taken all reasonable, practicable
steps to mitigate, reduce, or otherwise eradicate the risk that has exposed residents to a risk to their health and safety.
So when we talk about risk assessments and of course, one of the things that we have to do in order to comply with
the section is to carry out risk assessments, as Yaasica has said, we have to carry out risk assessments under the RRO,
we have to carry out risk assessments, as we’ll come on to see in relation to the specific obligations under the Building
Safety Act.
But how do we practically carry out those risk assessments in relation to e-mobility devices? It’s very easy to do so in
circumstances where residents are storing perhaps or leaving their mobility devices in the common parts. Well, in those
circumstances you can identify the risk straightaway because that forms part of the requirement for carrying out a
suitable and sufficient risk assessment for the purposes of the regulatory reform order. It is far more difficult to assess
risk and to therefore do anything about it when the e-mobility devices are being stored in residential properties and are
being charged. And when Yaasica took us through the various things that the NFCC and the London Fire Brigade say we
ought not to be doing, while I’m sure most of you, like me, struggle with some of that, because I know perfectly well
that the vast majority of people are going to charge their devices at night. I might put my like my iPad before I go to bed
so in the morning it’s there, it’s charged. I’ll do the same thing for my phone. I’ll do the same thing for other devices in
my in my house. Why wouldn’t I do that for the e-mobility devices? We all live in an age where everything is electric and
so it’s quite common to see socket points with three or four or five or six plugs in them. And so therefore, although the
NFCC guidance is entirely right and practical and sensible, the chances are that the vast majority of people who own
these devices are going to do what most people do, which is they’re going to plug them in whenever it’s convenient to
do so, and the chances are that it’s going to be in the evening and they’re not necessarily going to concern themselves
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with where the device is being charged. They may, for example, charge some in the kitchen, they may charge them
elsewhere. No one is going to be sitting down with their e-mobility device, thumbing through the NFCC guidance and
say to themselves, this is what I’m going to do. So, the risk is there. And as I say, the risk is far easier to deal with when
you can see it. So any competent fire risk assessor carrying out a fire risk assessment for the purposes of the regulatory
reform order, who identifies the storage of e-mobility devices within the common parts will inevitably say that gives
rise to a risk and they will inevitably say as part of their recommendation in respect of that fire risk assessment that
something needs to be done to ensure that those devices are safely stored and safely charged.
Now, as I say, what do we do about the storage of these devices in domestic premises? That’s where the vast majority of
fires start. That, unfortunately, is where the majority of people die when these fires do cause fatalities. And the answer
to that is not easy, because the law doesn’t like us going into people’s houses and checking on what they’re doing. But
we do have some interesting new developments in the law, which I’m going to I’m going to talk about. So I’ve included
a number of slides on the Accountable Person and the Principal Accountable Person. So, these are new duty holders.
This is not the law yet, but it’s going to become the law later in the year for buildings over 18 meters in height or seven
stories. And what I’m going to do is I’m going to take you straight to the duties that these new duty-holders have. So, if
you are a building owner and you have responsibility for either parts of the common parts or the external wall system,
you’re either going to be an Accountable Person or Principal Accountable Person. And if you’re unsure about which
of these things you are, then you need to speak to your advisers because it’s very, very important that if you own or
manage a tall building you’ve identified whether you are an Accountable Person or a Principal Accountable Person.
Now the duties of the Accountable Persons and Principal Accountable Persons are where all of this comes into play
because as we’ve discussed, the duties under the Regulatory Reform Order, although on one level a fire risk assessor
might say in their fire risk assessments, I’m aware that some residents are using and charging e-mobility devices within
their homes, there isn’t a great deal other than what Mark is going to talk about that building owners can do about
that because the Regulatory Reform Order doesn’t provide the building owners with the power to go into an individual
domestic premises and remove that e-mobility device or to inspect it. And we have a slightly similar position with the
duties of the Accountable Person and the Principal Accountable Person that apply in buildings over 80 meters on height.
Fundamentally, the Accountable Person and the Principal Accountable Person have to assess risk and in particular a
building safety risk, which is a risk of fire or structural collapse. And both of them have obligations to prevent a building
safety risk from materializing or mitigating its effects should it arise. Now, the way in which the language of the Building
Safety Act is framed is it doesn’t limit it to individual domestic premises, it doesn’t limit it to just the common parts.
It talks about the building as a whole, and therefore it’s going to be incumbent on Accountable Persons and Principal
Accountable Persons when exercising their duties under the Building Safety Act to take into account the sort of risks that
are posed by e-mobility devices.
Now, as I say, it’s much, much easier to take that risk into account for example, where you have a designated storage
area for these devices, and that may be part of the building, it may be a separate building, they may be stored in
underground car parking, all of these things that are easy to see can be properly risk assessed, but it’s going to be
incumbent on the Accountable Person and the Principal Accountable person to think about e-mobility devices, and the
very significant risks that arise from their storage and charging in domestic premises. Now how you deal with that risk
will ultimately be a matter for the fire risk assessor, but Mark and I have discussed this many a time and we think it’s
going to be inevitable that you’re going to have to ban the storage and charging in individual domestic premises save
where it’s a life safety device or it’s a device that needs to be used, such as a mobility device, where someone is disabled
or otherwise unable to get about without the use of one of these devices. But even there, the strictures that will apply
to the storage and charging of those devices will have to be very clearly set out. So, they will have to be the subject of
regular inspections and they will have to be the subject of these other things as well. So just to let you know that, you
know, you’re going to have to think about this stuff if you’re an Accountable Person or a Principal Accountable Person.
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And there’s one other thing I want to mention as well in relation to the Building Safety Act, and that is the duty that is
placed on residents now, not to do or bring into their properties, anything that might give rise to a building safety risk.
And that is a fundamentally new duty that is placed on residents. The idea being that residents are in this together
with the Accountable Person and the Principal Accountable Person, we all have a role to play in understanding the risks
that exist on the building and how we can go about mitigating those. So it is going to become incumbent upon building
owners, it seems to me, to make very clear to residents what they can and can’t do within their properties when it
comes to these devices, whether you ban them in your leases or ban them generally or whether you only permit
them subject to certain circumstances, such as a commitment from residents to ensure that they use the devices in
accordance with the NFCC guidance or other appropriate guidance, that is going to have to be something that you that
you consider. So that leads me on to the legal tools available to landlords Mark, so I’m going to hand over to you.
Mark Foxcroft
Yeah. Thanks, Mark. And I’ve been asked to look at the more practical side of what we can do in these buildings to,
as Mark says, either ban or severely regulate the use of these mobility devices and you’ll notice on the slide that I’ve
said legal tools available to landlords, and I’ve done that intentionally because it is the landlord who has the most
tools available to them to regulate or prohibit people in a certain way. And that’s because they are in contract with the
residents through their tenancy or lease, and there will be certain covenants within the lease, the tenancy, about the
residents’ behaviour. But it’s important to note that you have to realise what hat you’ve got on. Whilst the landlord
may also be the Responsible Person under the 2005 order, or they may be the Accountable Person or the Principal
Accountable Person under the Building Safety Act, they may not be. And so you have to figure out, as Mark says, or
speak to your adviser about what hat you have got on, or how many hats you’ve got, on in a building, because really
it is the landlord who has the tools available to them to regulate this behaviour. So, if the landlord is not the RP or the
AP, they need to work closely with those entities to ensure that there is married-up, cohesive approach to the safety of
building.
And the other point I want to pick up from what Mark said is, because we don’t have an explicit legislative framework
that deals with the regulation of these e-mobility devices at the moment, really, we have to use the tools we’ve got
already. And the good news is that from a landlords perspective, there are such tools because it is not entirely novel that
there are issues around the safety of items that present a fire safety risk that people have been using in their premises
or in communal parts of buildings, we’ve dealt with this before with barbecues on balconies, or people storing gas
canisters, or people storing things in communal areas. So, when we’re looking at it from the landlord’s perspective it’s a
case of kind of readjusting our focus and making sure that we’re working closely with the other entities involved in the
building safety. So, as I said there, really the tools that are going to be available are going to depend on three things, the
nature of the landlord, the nature of the residents and the nature of the building, in very broad terms.
So, I wanted to start by dealing with the nature of the landlord. And as I’ve said, there are different tools that will
be available depending on the nature of the landlord. So firstly, where the landlord is a Registered Provider, they
have additional statutory tools available to them to regulate such behaviour, than if the landlord is not a Registered
Provider. Now, that’s not to say that these are necessarily mutually exclusive. What I’m saying is that a landlord who is
a Registered Provider of social housing will have additional tools available to them. It doesn’t mean they don’t have the
same tools as the non-RP landlord. And so those of us who work with Registered Providers, who work for Registered
Providers, you may be familiar with Section one of the Anti-Social Behaviour Crime and Policing Act 2014. And that is
was I wanted to pick up on because this gives a landlord who is a Registered Provider or certain other categories of
landlord, the power to apply for an injunction specifically to regulate what is defined as anti-social behaviour. And we’ll
have a look at what we mean by anti-social behaviour in a minute, but these orders can be very wide. If you establish to
the court that anti-social behaviour is being engaged in, and that it is just and inconvenient to make an order, you can
get an injunction with very wide terms, as long as those terms are what is necessary to prohibit that behaviour from
carrying on or from starting. And so I’ve just laid out section one there just to give us a flavour that, you see the bits I’ve
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highlighted in bold, there’s two conditions. And as I say, firstly that the respondent has engaged or threatens to engage
in anti-social behaviour. And secondly, the court is satisfied that it is convenient and just to grant an injunction.
So, what do we mean by anti-social behaviour? Well, that term is defined in section two of the Act, but it varies
depending on who is making the application, and of particular relevance to Registered providers of social housing is
section 2.1b and c there. So, if we’re thinking about the context of a landlord who is a Registered Provider, anti-social
behaviour in that context means that they have engaged in conduct which is capable of causing nuisance or annoyance,
which of course is very wide, or, particularly relevant to what we’re discussing today, conduct capable of causing
housing-related nuisance or annoyance. And housing-related is then further defined as being directly or indirectly
related to the housing management functions of a housing provider. Now I’ve picked up on that because that is how
you would bring behaviour whereby a resident is storing a mobility scooter in communal areas or is storing it within
their premises having been warned not to, this is how you would bring it within the ambit of the act, in my view, is
by saying that this is housing-related anti-social behaviour, this is nuisance or conduct which is causing nuisance or
annoyance, or is potentially going to cause nuisance or annoyance. So, if you went to the court and said, look, this
person has continued to do this, continues to charge in the communal areas, we‘ve told them not to, we’ve told them
not to store them in the premises, we have policies and procedures which specifically prohibit that kind of behaviour,
and this tenant, this leaseholder, keeps doing this. Then you think you would be able to construct that and then that
you pull yourself within section one. So as I said there, if you go to court, you’re an RP, and when I say RP I mean
registered provider not responsible person, too many RPs unfortunately, if the landlord can persuade the court that
the charging or storing of mobility devices is anti-social behaviour as defined in the Act and that in the circumstance it
is just and inconvenient to make an order, then you’re likely to get an injunction against the offender. And as I say, that
injunction can be very wide, so it can remain in force for the duration of the lease, the duration of the tenancy, and it
can be an absolute blanket prohibition on this person using the interior of the premises to charge these devices, to store
these devices and say in the communal areas. And the other point I want to pick up on is that can also potentially be
obtained against non-residents. So, if you’ve got somebody’s partner or boyfriend or girlfriend that keeps visiting and
parking their scooter in or outside the flat in the corridor, charging it when visiting somebody, you could actually get
the injunction against that specific person because they’re interfering with your housing management functions as a
provider.
So, Section one, it seems to me, is a very useful pre-existing tool which can be manipulated, as it were, to address this
issue of the mobility devices. But what happens if you are not a Registered Provider? That is, the 2014 act provides a
statutory power for the court to make an order in those circumstances which are described. So, what happens when
you don’t have that ability because you’re not a Registered Provider but you’re still a landlord with a multi-occupancy
building? Well, the good news is that that’s obviously not the end of the road. You can still potentially seek an injunction,
but it won’t be under the Act. Instead, what you’re applying for is what we call as lawyers, an order for specific orders
whereby you would be saying to the courts, look, the terms of this individual’s tenancy, terms of this individual’s lease
require them to do certain things or not do certain things, they are doing those things and I want you to make an order
compelling them not to do those things. So, it is basically getting the court to enforce the terms of the contract. And in
this sense, the contract is the tenancy or the lease. So obviously each tenancy in its lease must be considered on its own
terms, they will vary, but that being said, we will often find again and again, this same or very similar terms are included
within tenancies and leases, and I think there’s a number of them which would be able to assist landlords in these
circumstances.
So yeah, as I said, that’s summarizing what I said before, the tenancy agreement or the lease is a form of contract, it
will contain contractual obligations on behalf of each party, in that notice covenants and the tenants covenants will
vary from agreement to agreement, in our experience in leases as being for a longer term, and as that’s possibly a
more significant proprietary interest, will usually have more onerous covenants than those on behalf of a tenant in a
tenancy agreement. But that is by no means to say that they are not still going to be useful covenants which can be
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relied upon by a landlord in seeking an injunction. So, as I say, caveated by saying you have to check the terms of the
individual agreements, but, very common covenants that we would be very surprised if they weren’t included within a
tenancy or a lease, would be a covenant not to cause nuisance, and we’ve already thought about how this behaviour
can be a nuisance in terms looking at Section one of the ASB Act, there may be a covenant not doing anything which
may invalidate or increase the insurance premium paid by the building, by the landlord. And there may be a kind of
sweeping-up covenant that require that the residents comply with reasonable regulations put in place by the landlord,
and that’s something I’m going to come back to later. And also, very often you’ll actually find a specific covenant not to
store flammable material in the property. If you’ve got that kind of covenant, then you’re halfway there, because all you
have to do is persuade the court that somebody is storing material and showing them that these lithium-ion batteries
are flammable material and that they have done it again and again, despite you telling them not to. Then you can see
how a court is going to want to assist the landlord, and by extension, the other parties who are responsible for the
safety in ensuring that building is safe. So, you’d think that the court is going to be predisposed to assist the landlord
where you’ve got somebody who continues to engage in this in this dangerous behaviour.
So, to summarize, slightly different test to Section one, but if you are non-RP landlord, if you are an RP landlord, you
would also have ability you also have the additional potential of going down section one of the ASB Act. But if you just
have a breach of covenant, you would have to convince the court that the charging and storing e-mobility devices is
a breach of one of more covenants, the tenant, the sale or lease, and that it is equitable to make an order because
injunctions are an equitable remedy. And what we mean by that is that just because you show that there is a breach
does not necessarily mean the court’s going to give you an injunction. You have to also show that in the circumstances
it’s right, it’s equitable, it’s just for that order to be made. And in order to do that, you would obviously have to show
that there had been a kind of pattern of behaviour, I would suggest, by the individual in continuing to engage in the
behaviour you’re trying to stop. And the final point, I just want to point out that different to the ASB Act, you cannot
take these against non-residents in this way because obviously it has to be a part of the contract because you are asking
the court to specifically perform a term of that contract. But again, tenancy lease terms are almost invariably drafted
that they will make the tenant or leaseholder responsible for others’ behaviour who live in the property or visit the
property. So, your route of redress would be against the individual resident, but you would be able to take action against
a connected person that continues to engage in that behaviour.
So the next thing I wanted to talk about is about escalation. And this kind of feeds back into what Mark was saying, and
Yaasica was saying, about the NFCC guidance, about policies and procedures. So, as I say, before awarding an injunction,
the Court would expect the landlord to have evidence of the steps the landlord has tried to take to compel the resident
to stop the offending behaviour. And this is likely going to include evidence of multiple letters, visits to the property,
informing the resident of the issue what is required to avoid further action being taken. And really, I think the key point
is to have evidence to show that the Landlord has a policy in place dealing with such scenarios, and that that policy
has been publicized to residents and followed by the landlord. And again, lots of landlords do already have fire safety
policies and policies about storage of items in communal areas of buildings. I just think these would need to be relooked at, specifically look through the lens of the mobility device issue, because as we say with the guidance from the
NFCC, the guidance for the London Fire Brigade, that’s already talking about policies and procedures. So we fully expect
landlords in conjunction with RPs, by which I mean Responsible Persons and potentially Accountable Persons if they’re
not also those roles already, to have really clear, well publicized policies or regulations about the use of these issues, if
not outright banning these items being used.
So, injunctions, in my view, are going to remain the most expeditious and cost-effective way to deal with issues arising
out of the storage and charging of the mobility devices. However, that isn’t a panacea, it is not going to be a one size
fits all, because there may also be other eventualities which arise. And the first one, where there is a case where there
is an urgent need to address the issues, where it has been identified that say there is a particularly prevalent use, or we
know that there is a particular type of device which represents a greater risk than some of the other to maybe some of
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the manufacturing issues. The landlord or the risk assessor says this needs to be dealt with now. We don’t have time to
send letters, you don’t have time to engage with the residents, we don’t have time to go to court to get an injunction.
So, you need to deal with this now, what do we do in those circumstances? And secondly, what happens if you go down
the injunction route, but the behaviour continues, so it is a persistent ongoing problem. So, dealing with the urgency
points first, and in these circumstances, if it’s being stored in the communal areas, I must stress that point, if the issue
is about communal areas and the landlord can take steps to remove the offending item from the communal areas of
the building. So, as I say, if you’re in that situation, but your risk assessment says I’ve just seen that particular brand of
scooter and we know that they are basically a time bomb. You need to get that out of there sharpish. Then it’s a risk
balance scenario and they will say, well, okay, we think the risk of fire is so great that we are going to take that out of the
building and basically the problem with doing that is that in doing so, you’re committing what is known as the tort of
unlawful interference with goods, and you become what’s known as a bailiff in possession of the goods. Now, these are
legal terms and just say you’re trespassing on somebody else’s stuff or taking somebody’s goods without their consent.
They’ve left it in the communal area charging and they come out of it is gone because you take it away. So, where you
do that without consent then you then can potentially be liable to the owner of the goods. Now obviously these items
are not cheap. I know that they are more prevalent than they once were, but they still can be of significant value when
we’re talking about e-bikes and e-scooters. So, a landlord might say, well, I don’t want to put myself on the hook for the
potential cost of this item if I remove it from the building and take it somewhere else. So, it’s, as I say, that balancing act
between the risk posed by that item and the risk the landlord opens himself up to by interfering with those goods. Now
the best way to deal with that, although not a perfect way, but the best way is to serve what we call a tort notice, which
is basically a notice which can be served pursuant to what’s referred to as the Torting (interference with Goods) Act
1977 and basically what this notice does is it says to the owner, we are interfering with your goods because of X reason,
we’ve taking it out of the building it’s going to be somewhere else. And so, you can see how the service of that notice,
assists the landlord in protecting themselves to a certain degree, from any allegations of interference with damaged
goods. So, the notice has to be served on the owner of the goods ideally. But again, if we’re taking the communal areas,
we may not be able to identify the individual who actually owns it because it’s just being left in a commercial area. So,
if that’s the circumstance and we’d say put the notice in a prominent area, notice board, went above where the scooter
was being stored, etc., and once you serve that notice in principle, it allows you to interfere with the goods by removing
them.
However, that’s not the end of the matter because just serving the notice doesn’t give you carte blanche to basically
dispose of those goods. Really, what you’re supposed to do is store those goods somewhere else and then tell the
owner of the goods where they can find them, who to contact, how they can get them back. Or in a long-term scenario,
you’re entitled to sell the goods and then deduct your storage and sale cost. You should keep the sale proceeds on trust
for six years, so you can see it’s very convoluted. So again, in those circumstances the landlord has to weigh up the
potential value of the goods when they’re deciding whether to just store, sell, dispose of those goods once they remove
them. But obviously, in the circumstance we’re talking about, we’re just talking about a quick fix. We’ve identified it’s
something which is dangerous or poses a significant risk of fire, we want out of our building, so we serve the notice, we
remove it to one of these secure storage units, for example, and then we tell the owner where they need to come to get
the goods and therefore the risk has been mitigated. The person gets their goods back and you can have a full and frank
discussion about doing it again in the future.
But as I say, that only relates to community areas because if it’s being stored within the premises itself, then that person
has a right to quiet, to enjoy it. But the landlord can’t just enter carte blanche. But what the landlord does have is, is a
contractual implied, a contractual right to access to inspect. So you can go in there and see what’s going on, but you
can’t really go in there and start taking goods out without the permission of the court. So, in those circumstances, then
I would suggest you need to look at what’s called an urgent or an ex parte injunction, which basically allows you to go to
court without telling the individual you’re applying for an injunction against. You’re going and you’re saying to the court,
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this is so high risk that we need to take immediate action. And so, we would like the order compelling us to allow it to
force access the premises and remove something. We’ll make good any damage, etc. we need to just get that behaviour,
that item, out of the property. Now, you’re only going to get that if you got a very clear evidential trail showing why
there is such an urgency. But again, this goes back to the point about having a clear, robust policy, because if you can
point to the fact that you’ve got a policy and the tenant knows about the policy and they have been riding roughshod
over it, for want of a better expression, the court is already going to be halfway there in terms of saying, well, actually
this is not coming completely out of the clear blue sky, they know what they should be doing and they’re not doing it.
And the last point I just put at the bottom is you also just want to check the tenancy in these terms specifically,
because sometimes they will say that any items left in a communal area are to be treated as abandoned and in those
circumstances you could kind of serve the tort notice, start the tort notice process, because you can say well the
tenancy says, you leave it behind, you don’t claim it, it’s been abandoned, that’s what’s happened and that’s why we’ve
removed the offending item. And the last point I wanted to pick up on was the other point I mentioned, which is what
happens if you do get the injunction, or you do engage with the resident and the behaviour just keeps coming and
coming and coming. Well, firstly, you could look to enforce in breach of injunction, now if you breach the injunction,
that’s the offence of contempt of court, but the sanctions for that are a fine or term of imprisonment. So you could
send the person’s prison for a short period or you fine them and yes, that may be punitive and it may stop them doing
it in the future, but it doesn’t obviously help you with the immediate issue if they are continuing to store the item while
you’re going through that process. The other long term remedy that you can use is that injunctions or non-compliance
with injunctions can be used as a springboard to seek repossession of the property. So if this person is a repeat offender
and you just do not think that this behaviour is going to stop, then you could potentially look to seek possession of the
property by the courts. But as I said, it would only really be viable in a most serious case of repeated non-compliance,
and it is a long-term process. It’s not about identifying the immediate issue, resolving the issue by stopping the
behaviour or removing the items from premises.
And the very last thing I want it to do is just to pick up on what Mark was saying. And so, as I say, you as a landlord,
you may also have your Accountable Person, Principal Accountable Person hat if the building is a high risk building
under the Building Safety Act. And what that Act does is it puts some duties on the residents, so any resident or owner
of the property so remember it’s not just the owner, the tenancy holder or the leaseholder. Anybody in the property
who’s over the age of 16 must not act in a way which creates a significant risk of building safety risk materializing. And
obviously, if you’re saying, well, look, I’ve identified that they’re doing this behaviour, they’re charging those items and
charging those items is a significant risk. Then the Accountable Person concerned can issue what’s called a contravention
notice, which requires them to stop acting in that way. So basically the Accountable Person says, no, you can’t do that
anymore. And if they don’t do that, you could apply to court for an order in similar terms to an injunction. So if you’re an
Accountable Person or if you are an independent landlord who is also an AP, it just gives you another route to potentially
addressing the behaviour in those higher risk buildings.
And very lastly, as I said, what the Act also does is it gives the Accountable Person the right to access the premises in
order to allow them to inspect and ensure that a building safety risk is not materialized. So again, you will have that as a
landlord, a right of access for inspection. But if you are an independent AP you won’t have that and if you’re an AP and a
landlord this just gives you another tool to allow you to get inside the premises and, actually see what’s happening.
Mark London
Thank you, Mark. So as you can hopefully see from that sort of trawl through the rights and everything else, there are
ways that we can deal with the risks that are posed by the storage and charging of mobility devices. So, Nigel, this is your
last slide, I believe. So, I’m going to let you deal with the slide.
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Nigel Deacon
Yeah. Thank you. I think we’ve probably covered most of these during your presentations, and they’ve been extremely
enlightening from my point of view. So I don’t think we need to elaborate on these. How do you want to deal with the
Q&A?
Mark London
Well, I think we will run through the questions. We’ve had quite a few of them. So if we can go for Q&A and we’ll run
through them. So we have a one from Steve Galloway as a certified fire risk assessor sitting on the fire working group
on the use and charging of lithium batteries, I’m coming into contact with block management providers and developers
who are providing electric bikes and scooters where car parking is not appropriate. The brigade currently do not have
any clear policy on what is and is not acceptable, and as such, without clear codes of practice, it is difficult to get people
to do the right thing.
Well, that’s a very interesting observation, Steve. And I think ultimately insofar as the building managers or owners are
allowing people to charge these devices in a way that exposes the building to a risk. So, let’s say, for example, they’ve
charged them in a shed. It’s attached to the to the wall or an underground carpark. Then I think ultimately in so far as
you as a fire risk assessor, believe that as a risk, as it’s in the common parts, then it is incumbent upon you, I think, to
point that risk out and ask and suggest that the building owner or manager does something in order to mitigate that risk
and one of the ways that mitigating that risk is to identify somewhere where it is safe to store and charge these devices
or to ban them altogether, there are a number of number of different options.
Mark Foxcroft
I think that’s right, I think there has to be a married-up approach between the all the entities who are involved in the
building’s safety to ensure that there is a clear approach. If there is an absolute ban on the use of these because they
can’t be safe because of the nature of the building or the nature of the estate then that’s just the facts. So, if there
has to be an outright ban because the risk is too great to use them, then that’s the position that has to be taken. But
there needs to be a married-up approach between the Responsible Person, the building manager, any managing agent,
any other entity involved, they need to ensure that they sign up to a married-up approach and that should then be
communicated to the residents coherently, that’s the key thing.
Mark London
Right. Thank you. Question from Cheryl Robinson. Does the new fire regulations override the lease terms? Councils
operate with some old leases. We have recently revised our lease, but this doesn’t help us retrospectively.
Mark Foxcroft
I would say the short answer is no. The contract is the contract in so far as the terms goes. So, what the parties have
agreed whenever that may have been, 1985 or whatever, that is what the obligations of that individual tenant or
leaseholder are. But as I say, it seems to me unlikely that there will be no lease covenants which are of assistance.
So, if it is about nuisance, that will be a nuisance covenant. If there is a lease, a clause in the lease which requires the
leaseholders to comply with reasonable regulations that the landlord puts in place, then that gives you, the landlord, the
ability to put such regulations in place for the management of these devices. And what the fire safety regulations do is
puts a level of statutory regulation over the existing statutory regime, which, as Yaasica was saying, is dealt with by the
Responsible Person of the Fire Safety Order. So it’s the Responsible Person who has the obligation under the fire safety
regulations, whereas it’s the landlord under the lease. Now, they may be one and the same, but that’s why I’m saying
you have to be clear about which hat you’ve got on, because if you’ve got your Responsible Person hat on, all your
powers and duties come through that has got to go to fire safety or your landlord hat on all the covenants and the rest
of it goes through the leasehold hierarchy. Now you may be able to use the leasehold hierarchy to impose the regulatory
requirements, but you still have to do it by the gateway of the lease. So that’s where it can get confusing.
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Mark London
Yeah, I mean, I think the point is that in all of these cases where you’re dealing with an issue with e-mobility devices, it is
very, important you understand where you sit. Are you a lessee? Are you the lessor? Are you the building manager? Are
you the Responsible Person or are you one of a number of these different duty-holders? Because each of them, as we
have seen, gives you different rights and different powers.
A very interesting question here. Could we or are we likely to get an injunction that applies across all residents and
leaseholders of 900 plus blocks of flats in a single Borough if we could provide evidence that hundreds of residents
across the housing stock are systematically ignoring advice not to store charge e-vehicles in properties and communal
areas, broadly similar tenancies across all 20,000 properties?
Well, that is a question.
Mark Foxcroft
The difficulty with that is let’s say you’ve got tenant A who may be as good as gold, who’s read the policy, who does
what they’re told, there is no breach. In order to get an injunction, you have to show that there has been a breach of
covenant. If you’re going to get an injunction under Section one of the act, if you’re a provider, you have to show that
there’s been anti-social behaviour, so the innocent tenant cannot have an injunction made against them. And what you
do instead, I think is putting a blanket policy in place which very clearly lays out what they’re supposed to do. And then
as soon as any of the tenants or leaseholders breach that policy, you then have the springboard to go forward and get
an injunction. I think you could potentially get multiple injunctions in one application, as it were, if you have evidence
that each of those leaseholders/tenants is breaching the policy or breaching the covenant, but I don’t think you’ll be
able to get a blanket injunction against everyone because not everybody will have engaged in that behaviour.
Mark London
Yeah, that’s right. Next question, how do you deal with residents leaving baby prams under the stairs and blocks of flats
without a lift? The pram owner living on the upper floor, some will tender a medical list from the GP that they’re unable
to lift the baby pram to their flat, hence leaving the pram downstairs.
Well, it seems to me that if there is a cogent reason for storing a pram in those circumstances, then that might be okay,
but it clearly gives rise to a risk and a fire risk assessor is always going to say to you in those circumstances that pram
shouldn’t be stored there. So, whether or not you tolerate it is going to come down to a question of how big the actual
risk is, if the pram is being stored in such a way that it obstructs use of a fire door or anything of that nature, then clearly
it’s not going to be acceptable in any circumstances. If it’s a relatively discreet location that doesn’t interfere with people
getting out of the building in the event of a fire, or having access to a stairway or a fire escape, or that doesn’t interfere
with any passive fire protection system, then it might be okay. But ultimately, it’s going to come down to the opinion
of the fire risk assessor. If the fire risk assessment tells you that the storage of the pram under the stairs creates a fire
safety risk, then you will have to deal with that. And unfortunately, a letter from a GP, in my view, will not justify the
continued presence of that device under the stairs.
Mark Foxcroft
This is something that landlords of high rise buildings have been wrestling with since time immemorial. And as I said
earlier, this e-mobility device issue is basically the newest facet of that. And over the years we drafted policies for
clients where they say, well, it’s zero tolerance, nothing in the communal areas and nothing in the riser cupboards,
nothing blocking any escape way. We would just serve our tort notice and we’ll get it out of there. Then we’ve had
policies whereby you have a low, medium risk, so a pram may be considered to be low risk whereas a barbecue might
considered to be higher risk because there’ll be a different approach depending on the individual item. it’s really about
risk tolerance, as Mark said, you know, it is a job for the landlord, together with the Accountable Person, together with
the Responsible Person, together with the fire risk assessor to find the particular profile of that building, assessing what
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is appropriate, put in a policy which is appropriate in those circumstances. Yeah. The problem with allowing one person
with a pram because they’ve got a specific need for is that, everybody’s going to say, well, why can’t I have a pram or a
bike or a scooter? And it becomes very administratively burdensome to apply that detail to policy. And that’s why people
tend to go back to having a zero-tolerance approach. So, it’s difficult, but it depends on the risk profile of the building.
Mark London
Yeah, the risk profile not only of the building, but where it’s located and what is being stored. Another really interesting
question. We have concerns about breaching Equalities Act, public sector equalities duties, etc. If we remove mobility
scooters, our plan is a grace period where owners of mobility scooters have the opportunity to find storage with our
help or replace the device with a smaller version that fits inside their property. However, if neither options are used or
work for the resident we fear removing the scooter could constitute discrimination against a disabled person.
Well, that’s a very interesting question. I kind of touched on that when I mentioned in my piece that we have to be
a little bit careful because these devices are, in fact, life enhancing devices for a number of people. My children, for
example, who might have an electric scooter, they don’t need the electric scooter, they can do without it. But then
someone who requires a mobility device to lead their life, to get about, they clearly need it. This is one of those
questions that always arises, which is balancing rights and balancing, trying to find some kind of easy way through,
because on the one hand, you have the rights of other people in that building who have a right to live in a safe building,
which doesn’t have an obvious fire risk within it. But on the other hand, you have people who have rights to get about
and to use these devices in order to enable them to live a full life. So I’d be interested in Mark’s view on this, but it
seems to me that, it’s, there is no straightforward answer to this. I’m afraid that’s probably very boorish lawyerly
thing to say, but there isn’t really an answer to this because it’s going to come down to whether or not, you know,
you’re imposing something on the resident that is unreasonable, or whether what you are asking the resident to do is
something reasonable and proportionate.
Mark Foxcroft
Yeah. I mean that is probably a webinar session in itself and we would probably come out of it with exactly that answer
having gone through the various duties and the rest of it, that it’s about balancing competing duties and competing
interests. I mean, you know, in relation to discrimination, the Equality Act, if you can show that the behaviour that is
being engaged in, is a proportionate means of achieving a legitimate aim, which is lawyer-speak for, the end justifies the
means, then the behaviour which may been discriminatory would no longer be discriminatory. So, if you could show
that there was a genuine significant risk of fire, then you could say that is proportionate. And we’re trying to keep the
building safe so banning the use of these scooters, as it were, is proportionate. But that is going to depend on the very
specific facts involved in the relation to the building, in relation to the residents and their particular needs. So, it is a
really good point, but as Mark says, there is no hard and fast answer to that, each case is going to have to be taken on its
own individual facts.
Mark London
Thank you, Mark. And another question from Steve. Do you feel that the considerations of risk and the risk assessment
relating to the storage charging of these devices should only be done by a third-party fire risk assessors? Currently, this
is not mandatory and is only really being done inside the TPC providers.
Well, I mean, it seems to me that in order to carry out a fire risk assessment, you have to be a suitably qualified person
to do it. And although the Government are more than happy for non-professional fire risk assessors or fire engineers
to carry out risk assessments of fire doors under the new fire safety regulations, it seems to me that anyone who’s
carrying out the fire risk assessment for the purposes of the Regulatory Reform Order in relation to common parts or in
relation to the external wall system has to be properly qualified. And of course one can be qualified through a number
of different ways, either through experience or through actual qualification. So, while there isn’t a mandatory set of
qualifications or experience that you have to have, my view would be that you shouldn’t be allowing anyone to fire risk
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assess your building unless they are suitably and sufficiently qualified to do so.
Yaasica Hamilton-Haye
And I would also add to that fire risk assessments often happen once a year, once every two years. So, there is still a
management issue. So, your risk assessment might go in and actually everything is clear. But then a few months down
the line, residents start storing in the hallway. So, if you do have neighbourhood officers, for example, then you could
encourage them to, when they’re monitoring the buildings, to actually check that those escape routes are still clear,
check whether there’s anything being stored in those routes and then report back and then follow the usual processes
in getting those cleared.
Mark London
A good question here from Rosie. Can I ask if tort notices are used by local authorities managing communal areas, or if
there is something else that we should use? I’m getting conflicting information. We currently use tort notices.
Mark Foxcroft
Yeah, and this is a good question. I thought this might come up. I can’t remember the other piece of legislation, but
there is another piece of legislation which specifically relates to local authorities, and I don’t think it means that you’re
precluded from using the tort (Interference of Goods) Act 1957 that exists. But it is worth noting that there is that
additional layer of legislation and apologies that I don’t know it off the top of my head.
Mark London
I think it is the local government miscellaneous provisions Act 1982.
Mark Foxcroft
That’s it! I would have said 1989, so yes. So, I’m aware of that, but I can’t give you a comprehensive answer because it’s
some time since I looked at it, but I remember having dealt with it historically, my instinct is that local authorities can
use both. But I can’t give you a comprehensive answer.
Mark London
Another question for you Mark, they’re coming in left, right and centre here. What powers are available to registered
providers to manage ASB, which is anti-social behaviour in residential settings with excluded license agreements?
Mark Foxcroft
Well, I mean, I think if we’re talking about excluded license agreements, what we mean by that is that they are excluded
from the provisions of the Protection from Eviction Act 1977. And so when we use these basically licenses, we’re
talking about licenses being provided in hostel accommodation on a short term basis, to meet homelessness duties or
things like that. So I mean, if you are an RP, you still have the ability to use the Anti-social Behaviour Act, in so far as it is
interfering with your housing management functions, you are allowed to use the Act to manage behaviour. The other
point is, if somebody is genuinely excluded, sorry that license is genuinely excluded, then what that means is that you
don’t have to go through due process of law in order to remove somebody from the property or to take possession.
So don’t have to get a court order. You can merely serve with a notice to quit and then change the locks when they are
away from the property. Now we wouldn’t necessarily advise you do that, but it is worth you knowing that you have
that ability to manage behaviour. And what you need to look at is the license terms themselves and if the license terms
themselves say that in the circumstance of somebody acting in an anti-social manner and they are significantly serious
that the licensor can immediately terminate the license without having to give a notice period of serving notice. Then
you should be aware of that because in the most serious instance, you can rely on that to maybe take possession back.
However, in the context of what we’re discussing today, I would suggest that the use of these, charging of these devices
in communal areas or within the licensed premises itself is unlikely to get to that threshold. So, what you should be
doing in those circumstances is engaging with the licensee, informing them of their duty not to not to do this and if they
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continue to do it, serve a 28-day notice, as is commonly the case on the license terms or go down the injunction under
the ASB Act.
Mark London
Thank you, Mark. A really good question from Neil Smith. How can you possibly ban charging in an individual dwelling?
Surely education is the key or the landlord can mitigate the risk through the use of sprinklers, for instance? Well, just,
I’ll hand over to Mark in a second, Neil, but just dealing with that, I mean, having been into properties that have been
gutted literally as a result of lithium-ion battery fires, I’m not entirely convinced, and Nigel will probably know the
answer to this better than I, that a domestic sprinkler system is actually going to make much difference. It may well slow
down the fire, but it’s unlikely to extinguish it. The question how can you possibly ban charging in individual dwellings?
Well, you can if you if you make it an express term of your lease or license, the charging and storage of e-mobility
devices is against the terms of the lease. Then you can effectively ban it; you can possibly try and fit it within one of the
exclusions in the lease that Mark talked about.
Mark Foxcroft
Yeah, I think that’s right. I think for new leases it is not problematic at all. I mean, to me it’s akin to a covenants and
leases we see very commonly for them not to have or use barbecues on balconies or not to store propane canisters,
and we see those covenants and leases, and lease is a contract, privity of contract, each party agrees to the terms, if the
landlord puts it in terms saying you can’t charge a mobility scooter within this premises, if the person doesn’t like that
then they don’t buy the premises, they don’t enter into the tenancy. It is potentially more problematic where the lease
is already up and running, tenancies will be up and running, and those terms are set unless both parties agree to change
them, the landlord can’t unilaterally change them. So, in those circumstances, you’re going to have to rely on covenants,
so you’d have to say this behaviour is a nuisance, or if you’ve got one of those useful clauses which says the landlord
can impose reasonable regulations about the management of the building and the leaseholder agrees to comply with
those regulations whenever they are introduced, then you can then introduce regulations which say we’re not allowing
the charging of these devices in premises. That’s a regulation, you have to comply with the regulations of lease and the
leaseholder might push back, but again, my view is that the courts are going to be predisposed to assist landlords in
regulating the use of these devices once the risk is made clear to the court. So again, you have to have evidence to show
that these items do pose a risk. But I’m saying that if you showed a judge some of those videos that Nigel showed us at
the beginning of the talk, that’s pretty persuasive evidence of the role of these devices I suggest.
Mark London
Yeah absolutely. And we also have to bear in mind that there is no right to own and store any mobility device. It’s not
a human right. Therefore, in circumstances where, as Mark has said, you wish to ban it under a new lease and you’re
perfectly entitled to do so. Well, we’ll have one more question, I think, and what we will do, because we’ve had so many
questions, what we will do is that where we have not addressed the question this morning, we’ll address it and what
we’ll do is we will circulate to all the attendees with answers to the questions.
And this is from Elizabeth Chan, very good question. Have you had many cases where the court has been willing to make
an injunction under the ASB CPA 2014, and readily accepted the charging of the scooter risk is an ASB? Have you found
that the court requires some form of expert assessment re the risk and the specific property of the charging the scooter
or do they just accept reference to NFCC guidance in the landlords fire risk assessment?
Mark Foxcroft
Yeah, I mean, in our experience, no, you don’t need expert evidence, I would suggest that you do need persuasive
evidence that the person is doing the thing that you’re complaining about and that the thing that you’re complaining
about is an issue. As I say, that brings you back right at the beginning of my section, I was talking about trying to get this
within the definition of housing-related conduct. And I did one relatively recently, an injunction, it wasn’t specifically
about these devices, but it was about somebody having reed screening around their balcony, which is even less
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offensive, you would suggest, than actually having one of these devices in the premises, and they wanted to put up this
bamboo reed screening for privacy, and the landlord said that we have a zero tolerance approach on flammable material
being stored on balcony, and there was lots of back and forth but the outcome was that we were able to persuade
the court that because they had been told about it repeatedly and not done anything about it, they were engaging
in housing-related conduct which fell within the definition of ASB under the 2014 Act. And therefore, the judge was
persuaded it was equitable to make an injunction requiring the person to take that screening down and keep it down.
And to me, the situation is directly analogous to what we’re talking about here. As long as you can show that you get
within the definition of ASB, then I think you’re going to be 85% right there.
Mark London
Okay, well, I think we’ll draw it to an end, everyone. Thank you so much for attending this seminar. I suspect we probably
raised more questions than we’ve answered, but it’s a fascinating area, and of course, as these devices become more
popular and more frequent, the risk rises in proportion to that. And as I hope we’ve demonstrated today, it’s not
something that we can ignore, we have to think about it and we have to identify how we’re going to manage it in the
buildings that we own or manage. So, Nigel, any final comments from you?
Nigel Deacon
Yeah. Thank you, Mark, a big thank you to yourself, Mark and Yaasica for assisting with the presentation and those
answers, I think that has been massively helpful and I really appreciate your assistance and willingness to, you know,
provide additional answers and responses going forward. Thanks, everybody, for attending and we’ll keep in touch and
provide details of further events. Thank you.
Mark London
Lovely. Well, thank you very much, everyone. I have a lovely rest of your Thursday and hopefully we’ll see you all very
shortly. Goodbye.
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