Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023
(1 year, 9 months ago)
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Baroness Scott of Bybrook
That the Grand Committee do consider the Higher-Risk Buildings (Key Building Information etc.) (England) Regulations 2023.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Scott of Bybrook) (Con)
My Lords, the regulations set out the high-level information to be provided to the Building Safety Regulator and clarify the parts of a building for which individual accountable persons are responsible. These regulations are part of the new regime for building safety created by the Building Safety Act 2022.
I will start by providing some context and background to these important regulations. After the Grenfell Tower tragedy, the Government appointed Dame Judith Hackitt to conduct an expert review of the building safety regime. Her review recommended a new approach to managing fire and structural safety risks in higher-risk buildings. She advised that there should be clear accountability and responsibility for building safety in these buildings. Her report also set out that the body which enforces the new regulatory regime will need accurate and up-to-date information about those higher-risk buildings. The Government accepted Dame Judith’s recommendations and brought forward the Building Safety Act, which received Royal Assent in April 2022.
The regulations are split into two parts. The first part, in line with Dame Judith’s recommendations, establishes the key building information that must be provided to the Building Safety Regulator by the principal accountable person. This information will support the regulator’s initial triage of the potential risk factors in existing higher-risk buildings. This will allow the regulator to determine the order in which buildings should be required to apply for a building assessment certificate.
Under the new system, principal accountable persons responsible for existing buildings will be required to register with the Building Safety Regulator from April this year, before applying for a building assessment certificate at a later point. Building assessment certificate applications will enable the Building Safety Regulator to review the wider risk management and safety arrangements in place for those buildings. The key building information will also be used by the Building Safety Regulator to analyse trends and risks in higher-risk buildings. In addition, if any issue emerges in higher-risk buildings, the regulator will be able to use the key building information to identify similar buildings, systems or features and contact the relevant accountable persons.
It is important that the key building information is provided to the Building Safety Regulator at an early stage, so that it can use the information to prioritise which buildings should be required to apply for a building assessment certificate first. The regulations require that the principal accountable person must provide key building information to the regulator within 28 days of applying to register their higher-risk building or buildings.
The Government are today laying regulations which set out the registration requirements in more detail. The principal accountable person must also promptly notify the Building Safety Regulator of any subsequent changes to the key building information. The regulations set out what information must be included as part of that. This includes information about the current uses of the higher-risk building and whether its principal use has ever changed. It also includes information about the structural design of the building, the number of storeys and staircases, the pitch of the roof, the energy supply, any energy storage and whether the building has a structural connection to any other building. The key building information also includes information about the materials used in certain parts of the building: the external walls, the external wall insulation, the roof and any fixtures attached to the external walls or roof. Information will also have to be provided about the type of evacuation strategy for the building, such as “stay put” or “simultaneous evacuation”, and about certain fire and smoke control equipment within the building.
All this information is pivotal in helping the Building Safety Regulator to exercise its day-to-day functions and duties, understand typical features and trends in buildings and identify safety concerns. Guidance will make clear exactly what information is required to meet this legal obligation, and it must be submitted in electronic form. The Building Safety Regulator will issue a direction setting out the precise format for that.
Another of Dame Judith Hackitt’s recommendations was for a clear model of risk ownership for a whole building, which would be required to achieve the effective management of building safety. However, building ownership and land law is complex; some tall buildings will have multiple entities involved in their ownership, with varying degrees of responsibility for the building’s safety. That is why Section 72 of the Building Safety Act makes it clear who is responsible for the fire and structural safety in a higher-risk building: the accountable person.
Baroness Brinton (LD)
My Lords, I declare my interests as a vice-president of the Local Government Association and a vice-chair of the All-Party Parliamentary Fire Safety and Rescue Group. I also had a previous role for a decade, some years ago, as bursar of two Cambridge colleges. My questions for the Minister today are about the practical delivery of these regulations and how they will work.
The definitions in the regulations appear reassuring, but I want to ask how the systems between the accountable person, or AP, and the principal accountable person, or PAP, will work. What and where are the levels of signing off on buildings? This returns to an issue I raised three weeks ago, on 21 February, when we looked at the regulations setting out the definition of a high-rise building in Grand Committee. If there are 13,000 existing high-risk, high-rise buildings and the sections of the regulations are under prescribed key building information in two of these regulations, and are covered in Regulations 4 to 24, can the Minister confirm that the size of the directorate, and the level of qualified staff with the regulator, will be able to respond knowledgably to this deluge of information that the APs or PAPs will have to provide?
In the Commons, when asked about resource for the regulator, the Minister said:
“Of course we want to make sure that the regulator is properly resourced in order to fulfil its vital functions and, again, I will follow up with further information in writing.”—[Official Report, Commons, Sixth Delegated Legislation Committee, 22/2/23; col. 6.]
Given that that was three weeks ago and the deadline for starting to provide that information is moving pretty rapidly forwards for developers, leaseholders and commonholders, it is particularly important that the Secretary of State has set those deadlines. I do not disagree with them, by the way; it is vital that this is tackled. When will that information be available, because it is really important to make it work in practice?
Secondly, how does the key information in these regulations relate to the information that will still need to be sent to building control in local authorities to ensure that the building, remediation or adaptation processes are happening correctly? While there will be some overlap of information, it will not all be the same, and nor should it be. This is particularly relevant to Dame Judith’s wanting to ensure that running all the way through is that golden thread of key common information. I cannot see anywhere in these regulations what local authorities will get, either through building control or, at an earlier stage, planning applications. If an interested member of the public—perhaps not even a leaseholder but a tenant—were trying to find out if the work had been carried out appropriately, would they be able to do so? Would the information held by the regulator, supplied by the AP and PAP, also be replicated locally? Can the Minister confirm that that information will be held by local authorities, because it is vital?
Paragraph 7.3 of the Explanatory Memorandum says,
“the Regulator can carry out an initial triage of the potential risk levels in the existing 13,000 higher-risk residential buildings. The Regulator will require building assessment certificate applications as a priority for the buildings where, based on the information provided and other sources of intelligence from other regulators, the Regulator assesses the building’s potential for a building safety risk materialising to be higher than others.”
My question to the Minister on this point goes back to the timescale to get that information from what amounts to a standing start.
I will not go on to what I will say later on the Statement that is coming before your Lordships’ House, but I think that we are coming to a real crunch time of deadlines, to which we are rightly committed, for individuals who may be an AP or a PAP but are not the individuals responsible for the remediation or adaptations required. If there is a delay by the people who are or should be doing or identifying that remediation, the AP would be the person responsible—including criminally—if things are not provided. I am grateful to the Minister for setting out how she saw some of that working; my concern is whether all the different parties understand that. Do tenants, leaseholders and management agents, who may or may not be APs, all understand where those boundaries lie? Will the regulator in particular have resources available for this urgent and essential triage to be carried out?
I am also grateful to the Minister for her reference to fire safety; as she knows, it is something in which I am particularly interested. If the detail is not available to commonhold owners and APs, how does holding that set of information work? Will building control have sight of it, or will it be under the fire safety order and therefore fire services will have it? I am not even going near PEEPs today, or whatever they will be called in future, but I am raising these issues because I am concerned that people who live in these high-risk, high- rise buildings are still extremely concerned.
These Benches think that these regulations are a step forward. We hope that that golden thread that Dame Judith asked for is evident to everybody who needs to take part in this process and that those who are not responsible for delivering the change, but may have some regulatory responsibilities, do not end up paying the price should developers not do the job that they are required to do.
Baroness Wilcox of Newport (Lab)
My Lords, I note my membership of the LGA as a vice-president, which is noted in my details. I thank the Minister for her introduction to this statutory instrument.
We understand that these regulations have two key purposes. They specify what information must be provided to the Building Safety Regulator on higher-risk buildings and which parts of a building certain individuals are responsible for. We believe that this is part of the implementation of the Hackitt review of building safety, which recommended a new regulatory regime to improve accountability after the dangerous and destructive mistakes of the past, notwithstanding the tragedy at Grenfell which is still unresolved in so many areas after such a long time.
Labour welcomes these regulations and sees the instrument as uncontroversial, but we would like the Minister to offer greater clarity on the new building safety regime, especially for those with new responsibilities. I pose the following questions to the Minister; if an answer cannot be produced at this time, I would welcome a written response in due course. Given that the related consultation was in summer 2022, has the department engaged with relevant groups since then? Are the Government monitoring the new building safety requirements being introduced by the Mayor of London, such as for all planning applications for new buildings above 30 metres, which must now have second staircases before going to the Greater London Authority for final sign-off?
These fire safety measures have been brought in with immediate effect in London. This follows the Government’s launch of a consultation in December last year on requiring developers to include second staircases in blocks above 30 metres, which I believe is around 10 storeys high. This move has long been called for by the RIBA despite not being a recommendation in the Hackitt review, so is this monitoring taking place and will the Government extend these measures elsewhere? Furthermore, will the Minister update the Committee on the implementation of the Higher-Risk Buildings (Descriptions and Supplementary Provisions) Regulations 2023, laid in Parliament on 19 December 2022, which define higher-risk buildings?
My final question is about timescales and the mandatory information that duty holders will be required to provide to the new regulator, which must be submitted within 28 days of an application to register. The Government have announced that the registration of existing buildings is expected to begin next month. What will they do if there is non-compliance? Is there a plan in the department to tackle these organisations and companies? We need to know what the penalties will be and how these regulations will be enforced by the Government.
Baroness Scott of Bybrook (Con)
I thank both noble Lords for their input. I thank the noble Baroness, Lady Brinton, in particular because I know that this issue, especially PEEPs, is a huge passion of hers. When she last caught me in the corridor, I went back and started to chase, but huge pressure is being put on the Home Office—as she knows, this is a Home Office issue. We will get an answer; I will make sure that I keep niggling away because this is important. For me, although quite a lot of this legislation is going well, this is the one thing that seems to be holding us back, as something that came out of the inquiry’s first report. We will keep working on it.
The noble Baroness brought up a number of things. I was scribbling away; I will have to go through Hansard and will write if I have missed anything. One of the first issues was about funding. The Building Safety Regulator will work with local regulator partners, including building control and fire and rescue, to deliver the new regime; obviously, it cannot do it on its own. It is important that they are not in silos and work together. We are working particularly closely with the Building Safety Regulator to ensure that the skills capacity and training are in place for it to deliver these programmes. That means quite a lot of recruitment because, as has rightly been said, this is a lot of work.
On 9 March, the Government gave £42 million grant funding to support the recruitment and training of building control and fire inspectors working with the Building Safety Regulator. The Government absolutely understand that this cannot be done for nothing; if we want more and better regulators and inspectors, we need to recruit and train them. That will cost money, and the Government are putting money in for that to be performed effectively. That was the first point.
Baroness Brinton (LD)
I thank the noble Baroness. I was asking for something slightly different. I am sorry; it is complex and I was not clear. It is really important that the information that the regulator has to hold is the same information, even if there is more information at building control and fire service level. I should have said, and probably did not, that it could be something like Companies House, where details of accounts and so on are available, including to the public; that is why I asked about the public. That is the golden thread; that is the core information, although there may be other information. Is that how it is envisaged?
Baroness Scott of Bybrook (Con)
I am not aware that that is how it is envisaged. I have not had any conversations about how the regulator will work with local authorities, but it is an interesting concept. I will take it back and find out for the noble Baroness how that golden thread is being joined up.
There was a query about paragraph 7.3 on the timescale of information. I do not have 7.3 here with me so I do not have the answer to that; I will have to write. On communications, of course communications are important, particularly to the almost silent people—the residents, agents and people who will talk to residents. For me, it is important that the department does some of that communicating about how the new regime will work. I am sure that we will because we have done an awful lot on the ombudsman service and such things. The new regulator has various roles and responsibilities and I would hope that the department will do this. I will probably get told off for saying that but, as a Minister, I think it very important that the people most affected—the residents—understand how that is going to work. I do not have anything else here but I will look again to make sure that there is nothing further.
I move on to the questions from the noble Baroness, Lady Wilcox, and thank her for her support. Indeed, I thank both noble Baronesses for their support for these regulations; they are important. The noble Baroness, Lady Wilcox, wanted to know how the regime is being phased in. The Building Safety Regulator was established in shadow form within the Health and Safety Executive in January 2020. The statutory functions of the Building Safety Regulator are being phased in and are planned to be fully established by April 2024.
The Building Safety Regulator is already working and engaging with residents, building owners, the industry and professionals about how the regime will operate, so by the time we get to next April everybody should understand—this comes back to the communications issue—how the system works, and it should be up and running very quickly.
There was a question on how these regulations relate to information required as part of building control under local authorities. We have answered that, I think, but I will write on it because I do not think even the officials know. We will work on that one.
Regulations will be laid around October that will make clear what information will be in that golden thread during building control and later held by accountable persons in occupation. There will be further regulations this autumn that I think will probably answer some of the questions, if not all of them, but I will make sure that we answer the questions and let the Committee know what those regulations will include. They are a bit further along the line. We talked about the timeline for the scheme and I think it is important.
The noble Baroness, Lady Wilcox, asked what happens if someone does not register their building. The regulator will undertake further investigations and cross-check against information held by government to identify any high-risk buildings that have not been registered. Where a resident has concerns that their building does not appear to be on the public register, there will be mechanisms for that resident to report that directly to the regulator, so it can investigate. So there will be two ways: there will be cross-checking by the regulator and also it is important that anybody who checks up and sees that their building is not on the register can get in touch with the regulator as soon as possible.
Baroness Wilcox of Newport (Lab)
I thank the Minister for that answer but, on the point that the resident can inform the regulator, I would like the Minister and the department to be mindful of consequences for that resident. We hear dreadful stories these days of difficult landlords and so on. I would like my concern about that noted and the department to look carefully at it, because it is very difficult for individual tenants to report in that way.
Baroness Scott of Bybrook (Con)
We know that. Perhaps the type of landlord who does not register might be the type who could cause trouble. However, there is surely a way in which someone can remain anonymous with the regulator when checking. The regulator will pursue principal accountable persons who fail to come forward with information when it wants them to provide the information it requires. From October 2023, the regulator will be able to take enforcement action against principal accountable persons who fail to register their occupied higher-risk buildings. If found guilty, the penalty could be an unlimited fine or up to two years’ imprisonment. The noble Baroness might remember that, when the Bill went through, they were considered quite high tariffs.
I was asked how the regulator will make sure that all principal accountable persons come forward as well as fill in the forms. Over the next few months, the regulator will be leading a communications campaign and will be engaging with the sector with targeted messages to ensure that principal accountable persons are aware of the requirement for them to register their building and to come forward as that accountable person.
Lastly, the scope regulations, which were laid just before Christmas on 19 December, will come into force on 6 April. I perhaps have not answered all noble Lords’ questions because I was scribbling them down very fast, but I will look through Hansard and we will answer any that I have not answered.
Again, I thank the noble Baronesses for supporting the principle behind these regulations. They clarify the parts of a building for which individual accountable persons are responsible and set out the high-level information that must be provided to the Building Safety Regulator. Together, these measures support the Building Safety Regulator in creating a new, proportionate building safety regime that protects the safety of residents in higher-risk buildings.