Building Safety Bill

Baroness Fox of Buckley Excerpts

Lords Hansard - Part 1 & Report stage
Tuesday 29th March 2022 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will speak to Amendments 36 and 46. I was pleased to hear the noble Lord, Lord Blencathra, be so kind about my previous comments, but then I remembered that it was not him speaking. I thank whoever said something nice about the points that I was making.

I feel slightly awkward because, in some ways, I should be saying that I had a win in Committee, but here I am again. Amendment 36 seeks to insert a clause that would mean that

“an accountable person must take … steps to achieve best financial value”

for leaseholders. It would require the Secretary of State to issue guidance to ensure that this duty is taken seriously. This is to focus the mind on the danger that we have seen throughout this Bill where, in the name of safety in a Bill taking on the grave injustice suffered by leaseholders of having to pay for building safety remediations, sometimes the solution inadvertently creates even more layers of disproportionate, overly cautious and risk-averse regulation and bureaucracy, which result in spiralling and never-ending sets of additional costs for leaseholders.

After Committee, when announcing the changes that the Government were making to the Bill, the Secretary of State, Michael Gove, said that they had listened to leaseholders’ concerns and were

“removing the requirement for a separate building safety charge and scrapping compulsory building safety managers, to help avoid unnecessary costs.”

Brilliant, I thought. When the Minister then told me that there would now be no building safety managers, I must confess that I was delighted. My amendment to abolish the building safety manager role was the first amendment that I had ever tabled and I had had a win. However, before I got the bunting out and allowed myself to indulge in any backslapping, I was brought to a pause by leaseholders, who noted:

“Small gains towards fairness, decency & common sense do not equal an overall ‘win’, the battle is v much ongoing!”


It is important that the Government have listened. A little like the noble Lord, Lord Blencathra, I should say that any caveats that I raise now are not intended to be churlish. However, it is precisely because I accept the assurances of the Minister and Michael Gove that they want to ensure that there are no unintended outcomes from the Bill in terms of avoidable unnecessary costs that I have tabled this amendment, which gives guidance a chance to push home the point that value for money for leaseholders is a very important thing.

This is not just about my fears around what might happen or leaseholders being paranoid. At a sector conference—Leasehold London 2022—Shaun Lundy, a chartered health and safety practitioner and a supporter of building safety managers, reflected on what removing that role would mean. He said that what worries him a bit is that some of the onerous duties are still there so, even if you get rid of the role, it still leaves a void over who will do the work. He worried out loud about the danger of creating “a disproportionate industry” and “another layer of bureaucracy”, especially in relation to the new duty to create safety case reports. He noted that, although some reports he had seen were sensible, others were completely over the top; he gave the example of a 50-page report costing £50,000 but with no tangible benefit. The building safety manager may therefore be dead but, for some, it is “Long live the building safety manager and their duties”. Dame Judith Hackitt’s call soon after Grenfell that it was not good enough to wait for a change in the law and that freeholders had to act has led to something of a panic reaction and has often been taken literally.

Just to give you an example, I will tell you the story of Aviva leaseholder Sarah from the Quadrant in Salford. With no law passed, her managing agent, Contour Property Services, has charged her and her fellow leaseholders for a building safety manager. What is more, it has appointed an additional building safety co-ordinator. In correspondence with the lease-holders, Contour writes of balancing “value for money” against taking

“appropriate measures to meet new safety requirements”.

Then the killer line tells them, almost casually as an afterthought:

“As a result of these appointments, there will be an increase in your service charges.”


There they are, in the small print, for the forthcoming year from April 2022 to March 2023. If you look at the small print in the bill, as I have, the building safety manager is there at £21,249.50. The cost of the part-time safety co-ordinator is £11,702.56 and this is charged to the leaseholders.

This might be blatant but, even if there is no direct mention of the building safety manager, it seems that they are lurking in the shadows, rebadged or slightly in disguise, but ever present none the less. The heavily administrative substance of the duties that they were meant to take part in remains in the Bill. Many of these duties are based on the precautionary principle, sadly interpreted through the prism of zero risk and often disproportionately focused on myriad possible risks rather than clearly defined dangers. In Sarah’s case, one of the listed duties is writing and maintaining the building safety case for the building, which shows that all the potential risks have been considered and mitigated. Never mind the cost of the building safety case itself, who will pay to resolve all the potential risks?

The question is whether the removal of the legal requirement to appoint building safety managers is strong enough to, in effect, stop them being imposed. This amendment asks the Government to note that the genie is out of the bottle, but the Secretary of State has the opportunity to ensure, in guidance, that the sector should not just rush to risk-averse costly solutions because they have once been suggested, but should instead focus on whether costs are proportionate to real risks and ensure that value for money is a barrier to costs just being dumped on leaseholders via service charges or other nefarious routes.

Of course, it is not all about money. We have to consider human costs, too. There is no point in knowing the cost of everything but ignoring the non-monetary value of homes for people, discussed so eloquently in the group beginning with Amendment 1.

Amendment 46 focuses on tightening the ability of freeholders, landlords and managing agents to force entry into leaseholders’ homes. When I raised this in Committee, there was understandable concern. People wanted to say, “What if there is an emergency? You need to be able to enter.” We can all think of such instances. I know that that happened with a burst pipe in a flat above mine, with water pouring into the flat below. You need to be able to get in to turn the water off, but this should be a last resort. This modest amendment simply aims to reinforce that point and to give leaseholders some power in that decision.

At present, despite limited rights for leaseholders, which have become increasingly clear since building safety issues came into the public realm, landlords have been under an implied obligation—as the ideal—to give the tenant or leaseholder “quiet enjoyment” of the property and they should not interfere with that. If you read the literature around building safety, you will discover an increasing clamour to challenge the idea that leaseholders have any rights to stop entry into their homes, presenting leaseholders as obstacles to safety.

For example, in the Safer People, Safer Homes: Building Safety Management report of a couple of years ago, there are complaints of

“Leasehold … units … purchased by their owners, who are not culturally accustomed to the notion that the owner … has any jurisdiction over their home.”

The landlords complain that access for owners and their agents is just too difficult. Extraordinarily and insultingly, the assumption is that, behind leaseholders’ front doors, they all behaving as fire hazards, irresponsibly ignorant of risks. Leaseholders are painted as ill-informed problems:

“Most will have no comprehension as to fire (or other safety) principles and their place in the matter.”


The report demands:

“Timely intervention on a statutory basis is needed to enable prompt access”


in order to

“monitor or assess risk and condition.”

My concern is that all these checks, monitoring and assessment will mean demands for entry beyond any reasonable bounds of common sense. Leaseholders themselves are anxious that the Government press home that this is not encouraged, and that the Government ask key questions of landlords.

Amendments 46 and 47 would restrict the power to enter people’s homes unless it was essential and would make it clear that the court must be satisfied that it was necessary to grant entry only in extreme circumstances, not just because an accountable person had sent a notice demanding entry for building safety purposes so vaguely defined that they could include anything from the overuse of scented candles to fridge inspections. I am just waiting for smoking in one’s home to become a listed fire risk, although I do not want to give that idea to the Government.

I make a final plea that leaseholders’ property rights are not just to be shooed away and a final reminder—one that I will return to later—that we should avoid pushing a narrative that assumes that all blocks of flats are inherently dangerous and at high risk of fires, creating a climate of fear that then justifies the surveillance and monitoring of leaseholders in their homes and the reorganisation of everyone’s lives around hypersafety and zero risk at great cost, both financially and in the human sense of civil liberties and privacy rights, to those homeowners who are unfortunate enough to be leaseholders as well.

[Lord Best (CB)]

My Lords, I shall say a few words on behalf of my noble friend Lady Grey-Thompson in respect of Amendments 13, 20 and 35, to which her name is attached. As the noble Baroness, Lady Brinton, explained, my noble friend sends her apologies; she is attending the thanksgiving service for His Royal Highness the Duke of Edinburgh in her capacity as chair of the wonderful Duke of Edinburgh’s Award scheme. I think we all agree that that event should take priority.

She wanted her thanks to the Minister and his officials to be recorded for the new amendment, which will require the regulator to report regularly on engagement with residents who are disabled. She has greatly welcomed constructive talks outside the Chamber and is keen to keep working with the Minister on personal emergency evacuation plans to meet the needs of people with disabilities so that they have correct and useful information and can feel safe where they live.

Amendment 86 in this group is in my name and that of the noble Baroness, Lady Neville-Rolfe. I will also comment on government Amendments 73, 85 and 263. In Committee, I raised the issue of leaseholders managing their own blocks of flats who would be given onerous new responsibilities for safety issues by this Bill. These new duties and liabilities could deter many from acting as the voluntary unpaid directors of their resident management companies and right-to-manage companies. These self-managed blocks depend on their volunteer directors to give up their time—and, indeed, risk falling out with their neighbours since not all their decisions will be popular with everyone—but who wants to risk a criminal prosecution and a criminal record for failing to carry out all the correct safety actions required of an accountable person by the Bill? Recruiting and retaining volunteers to be directors of resident-run companies is already difficult yet there is widespread agreement that more, not less, leaseholder control should be strongly encouraged.

The Minister has recognised the issue and brought forward government Amendment 73 to enable lease-holder-controlled companies to take on board a paid expert building safety director to provide this service to the company if, and only if, the leaseholders wish to delegate the job. Amendment 85 means that the cost of engaging that professional as the person responsible for building safety can be included in the service charges for all residents. These government amendments are very welcome; I thank the Minister very much for listening to the arguments and acting accordingly.

However, the Institute of Residential Property Management and the Association of Residential Managing Agents—they are now becoming a single entity, to be known as the Property Institute—noticed one obstacle to the Government’s otherwise excellent solution: quite a few resident-controlled companies prohibit the appointment of any director who is not themselves a leaseholder in the block. My amendment would address that point and enable an external expert safety director to be appointed in such circumstances, with necessary protections on costs and the ability to get rid of the building safety director if the arrangement does not work out.

--- Later in debate ---

I now turn to Amendment 264A tabled by my noble friend Lady Neville-Rolfe. Unfortunately, the Government again cannot accept this amendment, which would require a review of the impact of the Act. I reassure my noble friend that a review is already required by Clause 152, which provides that the Secretary of State must—

[Baroness Fox of Buckley (Non-Afl)]

That amendment has been degrouped; we are coming to it later, where I have a similar amendment. The Minister might want to wait until then.

[Lord Greenhalgh (Con)]

I am addressing my noble friend Lady Neville-Rolfe’s amendment; we will come specifically to group 6 from the noble Baroness, Lady Fox, in due course.

[Baroness Fox of Buckley (Non-Afl)]

It is just that it has been degrouped to be with my amendment on the review. I was just explaining.