Building Safety Bill

Baroness Fox of Buckley Excerpts

Committee stage
Wednesday 2nd March 2022 Grand Committee

Moved by

[Baroness Fox of Buckley]

115A: Clause 129, page 133, line 23, at end insert—
“(2A) In article 6 (application to premises), in paragraph (1B)(b) after “balconies” insert “, but only insofar as any such balconies pose a material risk of the spread of fire, flame or smoke”.”Member’s explanatory statement
Amends the Fire Safety Order to make clear that only balconies which pose a material risk of the spread of fire are included as part of the external wall. This would avoid balconies being remediated unnecessarily.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I was already feeling inadequate enough, but my inability to come up with a Latin phrase or joke on this particularly peculiar amendment of mine is nerve-racking. Clause 129 makes further amendments to the fire safety order and focuses partly on the risk of balconies. My Amendment 115A suggests tightening up the wording so that balconies should be considered a risk only if and where they can be shown to materially contribute to the spread of fire, flame or smoke.

I think this amendment is needed because I am concerned about unnecessary building safety work. I am not sure if this amendment is the right way to resolve the problem, but leaseholders who I have spoken to see emerging a widespread focus on alleged non-cladding defects, such as balconies. This can be a driver to carrying out unnecessary fire safety work, for which leaseholders must pay, with no existing government funding to help. We are all familiar with the “#claddingscandal”, but I want to avoid a scandal, or at least an injustice, emerging that is not to do with cladding. That is what this amendment probes.

Broadly, we now have a situation in which a block of flats can have a fire risk assessment that effectively determines that the building is sound but, because some notionally flammable material has been used, for example in the balconies, there are problems with valuations associated with EWS1 and a pre-emptive, rather than necessary, remediation approach. Leaseholders are then encouraged to think of their blocks with these balconies as unsafe and to believe that remediation work is necessary—and the costs will inevitably be charged to them as a fait accompli. This could be driven quite cynically by freeholders using building safety to do upgrades or carry out what otherwise would or should be regular maintenance, at leaseholders’ expense. To be less cynical and assume far more good faith, or at least to understand the pressures on freeholders and owners, I am worried that one of the unintended consequences of this Bill would be to drive up fears among owners, assessors, accountable persons and so on, under the weight of legal and insurance liability, that they would be blamed for any fires that occur, in any circumstances. As such, blame avoidance could mean stretching assessments of what is considered unsafe beyond credibility or credulity.

This seems to be partly the explanation to the rather panicky response to any building materials that can catch fire. At the moment, this is expressing itself as the almost default assumption that balconies with timber as a component are dangerous and should be replaced. This is in spite it being well documented that timber can outperform steel in a fire, depending on how it chars. An example of where this can lead is a block of flats in Castletown in Dorset. Leaseholders were shocked, at the start of the year, to receive a letter telling them that the timber-decked balconies of the 204 flats in their block had to be replaced by aluminium balconies, as some may be unsafe. Guess what? Leaseholders must meet the cost of this work estimated, on average, at £10,000 a flat.

In addition to that horrifying financial prospect, the Atlantic House Leaseholders Association raised some other issues pertinent to the Committee debates so far. For example, there was no consultation at all with the leaseholders on this decision about the balconies. Leaseholders are a tad suspicious that the contract for the work to replace the balconies was awarded to the block owner’s subsidiary company. The plan that was just announced, but not consulted on, is to carry out the installation inside people’s flats, instead of putting up scaffolding, regardless of the major inconvenience and intrusion this will cause in leaseholders’ homes. The other day I talked about whether you can call it your home if people can just come in, in the name of safety. This is really going to affect people’s home lives.

Also, if there is wear and tear on the timber decking on the balconies in question, it should actually have been the building owner’s responsibility to maintain them and keep them up to standard. Yet, despite them having failed to do so, leaseholders are now being forced to pay for the changes to the balconies, under the auspices of building safety and the threat of fire risk.

I am concerned about a climate in which there is a danger of failing to weigh up risks and assess matters objectively and proportionally. Sometimes, in the name of safety—I think that this was true in that instance in Dorset—leaseholders’ lives are being made a misery, and they are being made to pay a lot of money for remediations that do not necessarily mean that they are safer.

I do not know if noble Lords saw the story in the Manchester Evening News about social housing tenants in Salford suffering freezing conditions for months, since cladding came off their blocks. Having lobbied to get their concerns heard, they were recently sent a letter by Pendleton Together, which manages the nine council blocks, offering

“top tips for keeping warm”.

These included: “dress in layers”, wear “a hat and gloves”, keep “active” and consume “warming food and … drinks” —I thought that these might be handy in this Room, which has been rather chilly. This is another top tip:

“don’t drink alcohol to keep warm as it can give you a false feeling of warmth when you’re actually cold”.

If I were cold, I might still have a drink.

More seriously, I am glad to see that Salford council, which should, in general, be commended for its aspirational housing policies—I am not particularly having a go at it—has apologised for what has happened in its area and for the patronising and condescending message of the letter. But I was using it to illustrate that measures designed to keep people safe from fire can lead to home owners suffering freezing cold, for example, in the middle of an energy price crisis. Unfortunately, fire safety can trump common sense.

I will take noble Lords back to balconies and the Atlantic House block in Dorset that I was talking about. There is a similar perverse outcome in relation to balconies there allegedly being made safer, because, ironically, the decision to replace timber decking with aluminium might make them less safe. Luckily, the chair of the leaseholders’ association is a retired engineer from the construction industry, so he spotted that the use of aluminium might not be a safe option at all. Aluminium can be corroded by salty sea air—the block is near the sea—unless it is anodised. The truth is that those leaseholders might well be safer, and not facing a £10,000 bill each, if the balconies with timber decking remained.

My amendment is narrow and might seem a bit specific or even trivialising, but it is an attempt to probe whether the Government will consider adopting a broader cost-benefit analysis approach specifically to balconies to avoid more EWS1-type problems. It is also an attempt to encourage the Government to be wary of the zero-risk approach of a one-sided and overly precautionary culture of fear, with which the Hackitt review is imbued; there are lots of good things in it, but there are also a lot of things that I do not want to just endorse. Many of the leaseholder campaigners whom I have talked to say exactly the same: they warn that we should talk more to leaseholders, who of course want to be safe but do not want safety to lead to them having to pay for expensive and unnecessary remediation work, on balconies in this instance, when it is just not needed. I beg to move.

[The Earl of Lytton (CB)]

My Lords, I think the noble Baroness, Lady Fox, has done a considerable service, because she has highlighted quite a number of things. You might say balconies represent important facets in terms of building safety. The question of balconies may have been triggered by a fire—it may have been in Australia—caused by a discarded cigarette end on a timber-deck balcony. The circumstances, of course, of timber in high summer in New South Wales or wherever may be significantly difficult from in a typical English summer. I grant you that—and, of course, timber does not retain significant degrees of combustibility throughout the season, typically, in this country. I can certainly testify to disposable barbeques being a far more potent source of fire in such circumstances.

--- Later in debate ---

[Lord Greenhalgh (Con)]

I have tricked the noble Lord, Lord Khan—I am responding to this one. First, we have not gone around counting every balcony in the country. Given that there are 7,500 medium-rise buildings and about 12,500 high-rises, we have other things to do with our time.

I met the devolved Administrations of Wales and Scotland today; we need to know roughly how many buildings require remediation and then do it as quickly and effectively as possible. There is some way of knowing that with high-rises, and through surveys we have a pretty good grip on the number of buildings where remediation may be required—it is actually very few—as well as mitigation. Increasingly, we want to see more innovation so that we can avoid costly remediation wherever possible.

The noble Baroness, Lady Fox of Buckley, is very clever. I have been trying to distil amendments in up to three words—I have got it down to two on one occasion—and it would be easy to say that this is the “balcony” amendment, but I do not think it is. It is the “proportionality” amendment. It is fair to say that this was addressed when, on 10 January, my right honourable friend the Secretary of State set out some building safety reset principles. He said:

“We … need to ensure that we take a proportionate approach in building assessments overall … too many buildings … are declared unsafe, and … too many … have been seeking to profit from the current crisis.”—[Official Report, Commons, 10/1/21; col. 283.]


The noble Baroness was very eloquent in giving examples of precisely that—where, essentially, an industry is fuelled by trying to profit at the expense of leaseholders, very often, who do not have the shoulders to bear the costs being charged to them. That is why we are putting a number of protections for leaseholders in this Bill, for both cladding and non-cladding costs, which we have discussed in other groups, and the very strong principle that the polluter must pay wherever possible, as we discussed in an earlier group today.

The Government have taken three measures with regard to proportionality. It is important to reflect on them, because they are easily forgotten as we debate things. None is in this Bill; I will turn later to some things that are. First, we withdrew the consolidated advice note of January 2020; that was seen as a driver of decisions to remediate without thought on too many occasions, when it was not necessarily the right way to go. Secondly, after withdrawing the advice note, the publicly available specification was introduced, produced by the British Standards Institution; it will enable fire engineers and other experts to have a consistent and auditable assessment of risk—basically, grading whether something is high, medium or low—of the external wall systems, which sometimes include balconies and sometimes do not. That is an important tool to have to be able to start having sensible risk-based assessment of external wall systems.

[Baroness Fox of Buckley (Non-Afl)]

I have one query on that. I thank the noble Lord for his response, but on the recommendation of high, medium and low risk, everything I have read on this suggests that with high or low risk we know where we are, but medium risk says, “There is some risk, but don’t worry, you don’t need remediation”. The point made in everything I have read is: who will go along with that? If you say that there is medium risk—this is where risk aversion comes in—there is concern that the assessors do not have the expertise, as has been referred to, and may say, “There is medium risk, but can I go home and sleep at night, because I am not quite sure what that means? There might be a risk.” That is where blame avoidance comes in. This comes back to the assessors; I do not think that will solve it.

[Lord Greenhalgh (Con)]

I did not say that it would. The noble Baroness intervened too early; that is the problem with interventions. No one was saying that any single thing—

[Baroness Fox of Buckley (Non-Afl)]

I was just trying to clarify something—that is good.

[Lord Greenhalgh (Con)]

The noble Baroness raises the issue of balconies. I am talking about a system that looks at the external wall system. We then have the Fire Safety Act, which we took through this House. I have all the scars to prove that it was not an easy matter to get that three-clause Bill past a number of the people here today. We got it on the statute book, however, and it will commence shortly with a building prioritisation tool.

The noble Lord, Lord Stunell, spoke very eloquently on fire risk assessments. They will look at the risk in the round, going beyond external wall systems and including balconies, the external walls, the flat entrance doors and whether they are fire doors, et cetera. Fire risk assessors will have to look in the round, consider whether there are enough ways to exit the building and come up with a series of action steps, which will often be very small, that can make a building safer. It is right that we make sure that those risk assessments are done by competent professionals. They need to be kept up to date. They will come up with a series of actions that can be taken. Not all of those will require huge expense, but they will make the building that little bit safer.

I think noble Lords need to see this as a package. In answer to questions raised, the proportionality agenda does not have a silver bullet as an answer, but there are a number of things that the Government are encouraging that will lead to a more proportionate approach. PAS 9980 refers to materials on a balcony that may be combustible, such as timber decking, which may be relevant even if the construction of the balcony itself includes materials that present minimal or no risk. The current position, with the inclusion of balconies in the fire safety order and the professional guidance in PAS 9980, is all about encouraging that proportionate approach.

The competence of fire risk professionals is a relevant factor and ensuring that is a major objective of the Bill. We are bringing about greater professionalism in the sector through Clause 129, with a requirement that anyone appointed to undertake a fire risk assessment must be competent. That stipulation is in the Bill, in answer to the noble Lord, Lord Stunell. A lot of this is not happening in the Bill, but there are clauses which aim to drive competence, which directly answers questions raised in this debate. That is what we have to look to, rather than necessarily seeing this specific Bill as the answer in isolation. We must look at the measures the Government are taking in the round.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I thank all noble Lords who have spoken. My heart was in my mouth when the noble Earl, Lord Lytton, spoke, because I thought, “He knows what he’s talking about and I’m not sure I do”, so I was glad that he recognised something in what I said on the professional point about materials and so on. I am not an expert but I know lots of people who work in this area.

My concern is that there are blocks of flats all around London whose residents are being told that the balconies have to be remediated, but they have passed their fire risk assessments. This is basically coming from freeholders acting in a precautionary fashion, as in the Dorset example I used. They have said, “We think some of these balconies are unsafe. We’re going to take them down and you have to pay.” They are using safety as the basis but they should have maintained the balconies. There is great concern about the balcony question but I have been caught out by the Minister, because this was really an attempt to talk about proportionality. That is what I really wanted to do. Although I keep hearing about balcony scandals, that was my main focus.

We want to keep people safe all the time, but the right reverend Prelate the Bishop of St Albans made the important point that safety has a cost. Carrying on from our Committee meeting the other day, I was talking about a cost-benefit analysis and always thinking about balancing. If you want 100% safety, you would never leave the house. We also need a sense of proportionality towards fire, which is still very rare. People are not dying of fires in their thousands, in this country. I want to get the right balance.

The noble Lord, Lord Stunell, made a very important point, on which I have been trying to get balance. As a leaseholder, I have tried to speak on behalf of leaseholders a little, because I thought I could make a valid contribution. I am not suggesting that every time a leaseholder says something, we all have to believe it. Leaseholders are not experts, and their fears and concerns should not make the decision, but sometimes it is worth asking them what they know or think and part of the Bill suggests that. The objective point about competence is key. I am suggesting that, because of blame avoidance, fear of litigation and measures being brought in by the Bill, people will always take the most risk-averse decision. That could be at the expense of leaseholders and will not necessarily improve safety.

I shall withdraw my amendment, but I hope it has contributed to a broad discussion to which we can return on Report to make sure that the Bill does not create more problems than intended.

Amendment 115A withdrawn.