On Monday 23 March, the UK Government introduced stricter measures to combat the spread of Covid-19. These included an effective lockdown on travel for work which is not "essential", meaning that it is a task that cannot be done from home. These measures have had a significant impact on industries whose workers are not able to work at home and may impact maintenance contractors' staff currently engaged in providing reactive and planned maintenance services for housing providers' residents.
Registered providers and local authorities have been reviewing their obligations as landlords and duty holders to carry out maintenance and repairs and seeking clarity from UK Government on works which are essential and non-essential. Health and safety compliance works, such as those relating to gas and electrical safety, and fire safety are being prioritised with planned maintenance, voids, grounds maintenance and cleaning being put on hold.
The Health & Safety Executive advice on compliance works such as landlords' annual gas safety checks is that these should continue as usual, taking advantage of the statutory flexibility that allows two months for their completion. The HSE's only concession to the question of illness or self-isolation is its advice to document fully all attempts made to gain access. Landlords are therefore trying to manage their ability to grant access for essential works when residents are self-isolating and/ or refusing entry alongside supporting their service providers who are struggling to meet their contractual obligations due to staff illness and shortages of materials.
The current message from the UK Government on repairs and maintenance works is:
- no works should be carried out by a tradesperson who has Covid-19 symptoms, however mild;
- works carried out in people's homes may continue provided that tradespeople follow Public Health England guidelines, including maintaining a two metre distance from any household occupants; and
- no works should be carried out in any household which is isolating or where an individual is being shielded (such as the over 70s and those with underlying health conditions), unless it is to remedy a direct risk to safety of the household and where the tradesperson is willing to carry out the works.
So how can housing providers continue to keep residents safe and provide critical services?
The first step for housing providers is to engage with their key contractors and service providers to understand their ability to continue to deliver critical services. This includes in-house teams who are delivering the repairs and maintenance direct to residents. If contractors and service providers are requesting extensions of time and additional costs under existing contracts due to the impact of the Government's public health measures, housing providers need to understand their rights and obligations under the specific terms of those contracts and seek legal advice where necessary.
Term maintenance contracts usually include clear procedures that clients and contractors may take in order to manage delays and agree additional time for completion. Some forms deal with the risk of gaining access to the site, although often protocols for access and liaison with residents are covered in the supporting technical brief and specifications. We have provided a brief summary of the industry forms most often used on housing asset management programmes below:
ACA Standard Form of Contract for Term Partnering (TPC 2005) and Term Alliance Contract (TAC-1)
- The TPC 2005 and TAC-1 provides for partnering/ alliance team members to work together to identify, minimise and share risks by a risk register (if used) and risk management activities and use of the Core Group to resolve to review the progress of the programme.
- Any partnering/ alliance team member must give early warning of any matter adversely affecting or threatening the programme or its own performance or another member and submit proposals for avoiding or remedying such matter.
- In the event of a matter arising which is beyond the reasonable control of the service provider which adversely affects the time for completion, the service provider must immediately notify the client representative/ alliance manager with cost information and detailed proposals for minimising the delay.
- All extensions of time are assessed by the client representative/ alliance manager on a fair and reasonable basis.
- Subject to whether the standard forms have been amended, the service provider may be entitled to claim payment of site overheads as a result of the delay but not additional profit or central office overheads.
- Access to site is covered as an additional amendment in the Term Partnering Agreement/ Term Alliance Agreement and will often cross refer to detailed protocols set out in the Term Brief.
ACA Standard Form of Contract for Project Partnering (PPC 2000)
- Like the TPC 2005 and TAC-1, the PPC 2000 provides for partnering team members to work together to identify, minimise and share risks by a risk register (if used) and risk management activities. Unless otherwise agreed, once the project has started on site, the constructor is responsible for managing all risks and must minimise any delays or increased costs to the project.
- Any partnering team member must give early warning of any matter adversely affecting or threatening the project or its own performance and submit proposals for avoiding or remedying such matter.
- In the event of a delay caused by a defined list of events, the constructor must give notice to the client representative as soon as it becomes aware of the delay event and provide evidence and cost information and detailed proposals for overcoming such events and minimising their adverse effects on the cost, time for completion and quality of the project.
- Applications for an extension of time are considered by the client representative on a fair and reasonable basis. Depending on the delay event, the client representative may also agree fair and reasonable additional payments to the constructor, but these are limited to site-based overheads.
- Under clauses 26.6 and 26.7 the constructor may give notice to the client representative that it is impossible to proceed with or complete the project despite the partnering team having used their best endeavours to overcome or avoid the consequences. The client representative must convene a meeting of the core group to recommend action with may include suspension of the project.
- The constructor takes possession of the site subject to such constraints on possession and/or access as specified in the commencement agreement and project timetable.
JCT Measured Term Contract 2016 (MTC)
- Under the MTC, the contractor must give notice to the contract administrator of any matter which is causing or likely to cause a delay in completion and must use its best endeavours to carry out completion by the completion date.
- If the contractor is unable to complete an order by reasons beyond his control, the contract administrator must fix a later date for completion as may be fair and reasonable.
- Access to the site is covered under clause 3.4 and if the contractor cannot gain access due to failure by the occupier to provide access it is entitled to claim for the delay costs assessed and valued as daywork.
NHF Terms and Conditions 2011
- Like the PPC and TPC/TAC 1, either party must give early warning of any matter they become aware of which could lead to either party being unable to comply with its obligations to any extent that is material and the client representative shall arrange a risk reduction meeting to consider the impact of the notified matter.
- Extension of time events are split between unpaid and paid events with unpaid events including delay in obtaining access to a property where the service provider has complied with its obligations under the contract in relation to securing access. Paid events relate to client default events.
- In all circumstances the service provider must take all reasonable steps to mitigate the effect of any circumstances and follow the notice procedures to notify the client representative within 2 business days of the event occurring and providing details regarding impact on costs, orders and defects.
- Force majeure is defined in the NHF form with related consequences of suspension and termination.
Immediate Action for Housing Providers
- Understand your statutory duties as landlord in respect of essential and non-essential maintenance works.
- Engage as soon as possible with your key contractors and service providers to understand how they can continue to deliver the essential service to residents.
- Check the terms of your asset management contracts and supporting technical briefs, seeking legal advice where necessary.
