Building Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Monday 28th February 2022 Grand Committee

This removes the need for a mandated building safety manager and in turn the associated service charges for that post and the potential disproportionate safety charges that tenants and leaseholders would or could incur.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, this series of stand part amendments relates to Clauses 80 to 84 and would delete the building safety manager from the Bill. This is my first attempt at tabling amendments so I am nervous about the procedural aspects, but I hope to explain why I have come in on, as it were, this issue in particular. How I came about it is telling in relation to some general concerns that I have about the Bill, specifically Part 4.

Like some of us here, I came to this whole issue based on being a leaseholder and being part of a group of noble Lords who were horrified at the awful impending tragedy of leaseholders being forced to pay crippling remediation costs on the back of the response to the Grenfell tragedy. Many of those egregious injustices are now being addressed—some of them in this Committee.

However, in my speech at Second Reading, I raised a different set of concerns about adopting a zero-risk approach, including that risk aversion is in danger of creating zealotry beyond the bounds of what is reasonable, practical or desirable. If the Bill’s aim becomes to eliminate all risks, that itself has its own risks and creates a new set of victims. For example, if safety is turned into panic, it can lead to an ever-spiralling demand for safety outside the bounds of common sense. This could dangerously destroy confidence in both the construction sector and the high-rise housing market, and could create new layers of bureaucracy that hinder rather than help.

Rather to my surprise, my speech at Second Reading led to a group of leaseholders contacting me to say that they shared some of my concerns. Campaigners from the Tower Hamlets Justice for Leaseholders group and Friends in High Places explained that they understood because they felt that, as Covid has proved, it can be difficult in situations involving safety to agree that less should be done—but sometimes less should be done. This proposal for building safety managers for every block is just one of the concerns that the group has about some of the Bill’s unintended consequences. As the campaigners say, it imposes costly layers of bureaucracy on them while giving sweeping powers to managing agents and freeholders and inflicting yet more pain on leaseholders, with provisions such as building safety managers threatening to turn this into what they call “another EWS1 fiasco”.

All the provisions in Part 4 seem to assume that the problem of residential fire safety is a lack of appropriate people and processes checking for fire risks in every possible instance. However, perhaps the real problem is the competence of the people who are already in place and the enforcement of rules and regulations that already exist, rather than making up lots more or creating new roles. As the leaseholder group notes, writing into law that every building will have to appoint a building safety manager is a duplication of the role of the existing managing agents and building managers, and proceeds from the false assumption that these housing blocks are “like barrels of oil needing almost daily surveillance and supervision to ensure that they don’t burst into flames at any moment.”

The truth is that fires are relatively rare, but they cannot be prevented altogether. The priority of this Bill should be to build in adequate safety systems and then maintain those properly so that residents can evacuate as quickly and easily as possible should fire occur. Instead, these clauses create an unnecessary duplicate role that will—guess what?—yet once more, financially cripple leaseholders.

The Government themselves estimate that the cost of a building safety manager will be £60,000 a year per block. For Lucy, in a block of 33 flats, this will add £1,818 to her annual service charge. For Ruth, in a block of 19 flats, the building safety manager costs would add £3,157 a year to her service charges. It is not clear, either, whether that £60,000 estimate that was on the Government’s website has factored in employers’ national insurance and pension, plus the 20% VAT that an employing company would have to add to the charge. That would bring the cost to £85,000, in which case Lucy’s annual service charges would rise by £2,575 and Ruth’s by £4,473.

It is not clear exactly whether that £60,000 figure still stands, because the fact sheet explaining the building safety manager’s average pay of £60,000 a year was rather quietly removed from the Government’s own website after 5 pm last Wednesday. Luckily, the leaseholders have screenshots, which I have here if anybody would like to look at them. I am hoping that this is a positive sign that the Government are going to scrap the policy—delete the policy just like the web page—or at least water it down by turning it into a function that can be met by existing managing agents and property managers, and not treating it as a separate job.

With the words of the Secretary of State, Michael Gove, ringing in our ears, he has warned that

“too many buildings are declared unsafe”,

and that many of the problems associated with the cladding scandal have been caused not by unsafe buildings but over-zealous inspectors and nefarious players

“seeking to profit from the current crisis”.

We should have those words in the back of our minds when we ask key questions.

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[The Deputy Chairman of Committees (Lord Faulkner of Worcester) (Lab)]

My Lords, I think we are all reassembled. We were listening to the noble Baroness, Lady Fox of Buckley.

[Baroness Fox of Buckley (Non-Afl)]

I know that noble Lords have been waiting with bated breath.

The key question is why building safety managers are needed at all, when the vast majority of leasehold developments have managing agents in place and leaseholders have to pay a management fee for their services. Surely splitting the function would risk disputes between property managers and building safety managers about what is and is not a safety issue and who is in control when remediation works have a safety element. These buildings, which people live in, already have fire risk assessments carried out by specialist firms—even if one problem is that they are not shared with leaseholders, which can mean that defects can be kept hidden and necessary repairs delayed. But still, what will the building safety manager actually do?

To find out—I do not know whether the Minister has seen this—I watched a recording of a closed-door meeting of sector professionals trying to pin down the role. It was full of flip charts, pie charts and Venn diagrams, and I was utterly confused by the end. It seemed to me to be a jack of all trades and master of none, but it needed the authority of a professional expert. It was reminiscent of a scene from David Brent’s “The Office”.

These are compulsory jobs but they are not mandated to a minimum standard. Qualifications for the role have not been established, no training programmes are in place and, as I say, even the professionals themselves do not seem to know what that training would consist of. If this post is made mandatory, as proposed by these clauses, the qualified few will surely be able to write their own salary cheques. No wonder that leaseholder campaigning groups are talking about “jobs for the boys”. Even if that is a bit cynical, we must ask who will judge their performance or hold them to account. Leaseholders—who will pay for them and who are best placed to judge those overseeing the block they live in, due to day-to-day interactions—now say that, as always, they will have no say at all.

Safer homes will come not from employing someone to march around a block of flats, trying to find issues to justify their existence and quite a hefty salary. This is a version of the waking watch debacle, replacing hi-vis jacket patrols walking around buildings looking for sparks with a suited and booted manager with an iPad finding risks, faults and unnecessary fire safety work. If they do not find any problems, what is the point of their job?

I finish with that question. What is the point of the job? I hope the Minister agrees that there is no point.

[Lord Thurlow (CB)]

I support the very interesting comments of the noble Baroness, Lady Fox—most interestingly, it is immensely refreshing to listen to an amendment that is driven not only by cost savings for leaseholders but by common sense. In many cases, the sub-contracting of services on multi-let buildings is appointed through external managing agents, who apply a levy; they will charge, let us say, 10% on the fee for the work being done. In the £60,000 example, another £6,000 goes on to the tenants’ bills at the end of the year.

I simply support this proposal. It will be a difficult one for the Minister, but common sense is short in the Bill because of the layers of bureaucracy. This will save money for tenants.

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[Baroness Fox of Buckley (Non-Afl)]

Perhaps I should combine my question so that the Minister will not have to stand up twice. Saying that safety comes first and calling somebody a building safety manager does not mean that a building safety manager is going to make a building any safer. I do not think that it is entirely fair to suggest that those of us who are querying some of these things do not care about safety. We would not be sitting in this Committee, I assume, if we did not.

I want it clarified because I liked the Minister’s points about a common-sense approach to safety day by day and about eyes and ears. That all sounds sensible and in some ways I understand that point, but I am confused because it is not clear how many days someone will be there being the eyes and ears. The Minister read out that the competent person will have skills, knowledge and experience, but skills, knowledge and experience of what? It is still not clear. The idea of a volunteer, as described by the noble Baroness, Lady Neville-Rolfe, keeping an eye on things—items being broken or the fire door being replaced by B&Q—is slightly different from how it was discussed by the professionals when they were talking about what kind of person would be a building safety manager. They kept saying that they must be competent and experienced with some skills in fire engineering and personnel management because they will have to go around to tell people off. I think that in the end this is a job creation scheme that will not add to the safety of the building, as do many leaseholders, and they are on the receiving end of it.

[Baroness Scott of Bybrook (Con)]

I find it quite simple really, but then I am a simple person. The accountable officer is the accountable officer responsible for that building or many other buildings in the case of organisations that might have more than one building. They then ask a building safety manager to be there on a much more daily basis and to report back to them on issues within the building that might reflect on its fire or structural safety. Therefore, the skills, knowledge and experience required by such an officer are experience of fire and structural safety in high-rise buildings. We cannot expect the top level to be there day in, day out going around those buildings. How much will be required by each building will depend on that building, I suggest.

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[The Lord Bishop of St Albans]

My Lords, I rise to speak to Amendment 50A in my name and those of the noble Lords, Lord Blencathra and Lord Young of Cookham. Let me say how much I support the sentiments and intentions of the noble Lord, Lord Blencathra, who has done us a real service.

I, too, do not want to die over the details of this amendment. I hope that this will stimulate a really vigorous debate so that we can all work together on how we get these sorts of commitments in the Bill. I and others on my Benches want to work with the Government and others to achieve this. If someone else can turn up with much better solutions, that is great.

Throughout the cladding and fire safety crisis, we have heard many stories of landlords imposing outrageous and sometimes astronomical building safety charges on leaseholders and tenants. Often this has been done by managing agents acting on behalf of the freeholder. Leaseholders and tenants have reported a complete lack of accountability and transparency throughout this process and have been unable to challenge or even scrutinise the charges imposed on them.

Of course, this is only one aspect of the fire safety crisis, but one that has been somewhat overlooked when the primary focus has rightly been on ensuring a fair remediation settlement. However, the fire safety crisis has exposed the utterly powerless position that many leaseholders find themselves in, sometimes subject to the whims of freeholders with very few avenues of recourse, unless they raise considerable amounts of money and try to challenge things in the courts, which is very often way beyond the financial ability of many leaseholders, even if they wish to do it.

Amendment 50A would strengthen the right of leaseholders and tenants to consult with, and scrutinise decisions made by, the landlord on matters relating to building safety and would require the landlord to set up a recognised tenants’ association for the purpose of consultation.

The leasehold system in tall buildings has been placed under serious stress in the post-Grenfell years. Future home owners may have looked at the existing crisis and been turned off the prospect of owning a leasehold property. Others, facing far fewer choices, have simply—fatefully—walked into purchasing a leaseholder property unaware of the realities of the leasehold system, only to be later consumed with regret and extortionate charges. We need to make the leasehold system fairer and more attractive, not just for those who are thinking about buying a leasehold now, but for those existing leaseholders who feel powerless in the face of their managing agent and freeholder.

Ideally, leaseholder associations would also be able to scrutinise and consult on insurance commissions, along with other service charges not related to building safety. The amendment would begin to reorientate the relationship between the freeholder and leaseholder, which, as it currently stands, is skewed too far in favour of the freeholder. This is not an anti-freeholder amendment. Many freeholders will manage their property in a responsible manner. There are, however, just too many instances—and quite high-profile ones—of freeholders acting in an appalling manner. For example, the Yianis Group, the freeholder of the West India Quay development, spent over £74,000 in a legal action to block the residents from forming a recognised residents’ association. This was after leaseholders issued proceedings against the freeholder over expensive energy bills—something not covered by this amendment, of course, but worth mentioning—in which they were vindicated after the court revealed that they had been overcharged by 26% on their utility bills.

This is the same freeholder which, when challenged by the residents at a different development at Canary Riverside, lost a ruling brought forward by the residents and was forced to replace the managing agent. The court ruled that the freeholder failed to maintain the estate and did not adequately prove expenses and service charges. As the Times reported, it even charged a 100% mark-up on repairs to leaky windows to a repair company. At the time of reporting, the freeholder then attempted to chip away at the court-imposed manager’s power, costing the leaseholders £1 million in legal fees over 22 proceedings. The freeholder’s intentions here speak for themselves.

Stronger provisions than those listed in Amendment 50A would be welcome, as these powers would relate only to building safety matters. However, the amendment would go some way to breaking the power of any unscrupulous freeholders who view their leaseholders as cash cows. The amendment is not for those honest, conscientious freeholders who retain good relations with their leaseholders and managing agents, but for those such as the Yianis Group, in respect of whom one leaseholder said they were made to feel at the mercy of their landlord.

I hope the Minister will look seriously at measures to strengthen leaseholder representation when dealing with freeholders. The scope of the Bill limits what we can do at the moment, but a verbal assurance that the Government are committed to reforming this imbalance of power would be most welcome.

In the meantime, I hope that the Government will consider these proposals carefully—limited though they may be—as a stopgap to help end some of the egregious abuses that leaseholders and tenants may face from their freeholder. I hope that this will be a contribution. I look forward to hearing what the Minister says in his summing up.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I shall speak to Amendments 52A to 52C, 54A, 54B, 55B and 55C, which relate to Clauses 97 to 99. I also support the amendments in the name of the noble Lord, Lord Blencathra, and his comments, as well as those of the right reverend Prelate the Bishop of St Albans. It is in that spirit that I make these observations.

One issue that the building safety and cladding crisis has shone a light on is just how iniquitous residential leasehold tenure really is. The system of leasehold may dress itself up as home ownership. When I bought my flat 25 years ago, which was the first time I had ever bought anything or got a mortgage, I thought of myself, very proudly, as a home owner—it was part of my growing up—but I now think that it was a bit of a mis-sell, as I am nothing of the sort. As Rabina Khan, a Liberal Democrat councillor in Tower Hamlets, puts it—she has been very insightful on all these issues—in effect:

“Leaseholders are tenants when it comes to rights, but owners when it comes to paying any bills. Yet they have no control over the contractor, costs or scope of any works. They must pay up pretty much whatever is demanded by the freeholder landlord and their agent.”


Under Part 4 of the Bill and the clauses that I am referring to, building owners are given sweeping new rights in relation to entry to and surveillance of leaseholders’ homes in the name of safety and fire prevention, even being able to force entry if the leaseholder does not admit entry to their own homes by a set time. Leaseholders who I have spoken to are concerned that these Part 4 provisions could be used to threaten and harass leaseholders, are overly intrusive without affecting fire safety in any real way, and, more broadly, feed into a dangerous atmosphere —which we are familiar with from the Covid period and lockdowns—of dispensing with civil liberties and privacy too easily under the auspices of safety.

My amendments to Clauses 97 to 99 come as package. They seek to tighten up the drafting to ensure proportionate actions that do not leave leaseholders open to either false accusations or blame for safety issues, so that it does not become yet another vehicle for forcing leaseholders to pay ever more money, and they would respect the rights of leaseholders as home owners.

Clause 97 places a duty on every occupant of a high-risk building not to interfere with safety features. The focus here is making it clear that residents have a duty not to affect the safety of the building. My amendment to Clause 97 makes it clear that this duty is breached only where there is material interference. This change would, for example, avoid someone being found in breach of the duty if they accidentally broke the glass in a dry-riser door or accidentally broke a hinge on a fire door because the current drafting would treat them not as accidents but as breaches of duty in the same way as someone deliberately disabling a fire alarm.

Clause 98 allows an accountable person to send a notice, possibly demanding money, if the accountable person knows or, importantly, just suspects that there has been a breach of this new residents’ duty. Again, this section has no materiality threshold, so it can be triggered by any breach that the accountable person feels like enforcing. As it stands, it is far too subjective. It is blatantly open to malicious misuse or just a promiscuous and ever-growing risk-averse blame culture targeting leaseholders as culprits. The amendment I have put forward tightens the clause up to focus on material breaches that the accountable person can evidence—a key point.

Clause 99 is on the power of entry. The current drafting allows the accountable person to demand access for any reason, including mere suspicion of a breach of duty. This demand for access can be given with as little as 48 hours’ notice. If access is not given in that timeframe, the accountable person can then obtain a court order, possibly without a notice to the person affected. This makes what should be a last resort possibly a new normal, and, I argue, a new draconian normal.

The amendment I have proposed to Clause 99 would require that the new building safety regulator issues a code of practice on how exactly this power is to be used after consulting a tenants panel. That is not a perfect solution, but at least the onus would be on the accountable person to comply with the code of practice when making requests for access to people’s homes.

As has already been mentioned by a number of speakers, I am not trying to paint a picture of dastardly freeholders, building owners or managing agents gleefully harassing leaseholders or threatening to kick their doors down, but for me one of the inevitable consequences of a disproportionate zero-risk attitude to building safety with an ever-growing proliferation of demands and duties placed on the accountable person, requiring that they check, check and check again, means that we end up where the Secretary of State, Michael Gove. warns us not to end up. In another context he has warned of the dangerous overzealousness of inspections, unnecessary surveys and precautionary, just-in-case assessments.

All this fuels the notion that not only is every flat a fire hazard but that every owner of a flat is a fire hazard too. As soon as safety measures become a disproportionate fear, they can lead to perverse outcomes. In June 2020, before the Public Bill Committee, L&Q, one of the biggest social landlords, responsible for 95,000 homes, including leaseholders and shared ownership properties, complained about the difficulties of accessing the front doors of leaseholders, implying that leaseholders who refuse to go along with its neverending fire safety upgrades might be putting lives at risk. Its spokesperson said:

“With tenants, we might be able to go to court and get injunctions and get injunctions to gain access to a home, but with leases, that challenge becomes even more difficult.”


That was said as a matter of regret.

This attitude means that these provisions presume that leaseholders cannot be trusted. I think they imply a certain contempt that treats leaseholders as ignorant or stupid or both, as though, if left alone, away from the wise and sensible landlord or his or her appointed overseer, they might set up a barbeque in the living room, rewire their own flats even though they are not electricians, be like children irresponsibly playing with matches or wilfully destroy safety equipment, as the noble Lord, Lord Blencathra, mentioned.