Building Safety Bill

Baroness Hayman of Ullock Excerpts

Lords Hansard - Part 2 & Report stage
Tuesday 29th March 2022 Lords Chamber

[Baroness Bloomfield of Hinton Waldrist (Con)]

I must again thank those noble Lords who have participated in this interesting debate. It is a shame it has become a group of two halves, but I will address the points raised in turn.

Turning first to Amendment 15, I thank the noble Baronesses, Lady Hayman of Ullock and Lady Pinnock, for raising this important matter, but as they have surmised, I am afraid the Government will not be able to accept this amendment. The noble Baroness, Lady Pinnock, will know that local authorities are already the statutory provider of building control services to the public under the Building Act 1984. This includes the duty to enforce the Act in their jurisdiction and they retain ultimate responsibility with regard to enforcement action, except where the building safety regulator is the building control authority.

In response to the concerns of the noble Baroness, Lady Pinnock, I can say we are introducing a system of oversight, registration and regulation, driving up standards across both public and private sector building control. The Bill introduces a new professional framework for which individual registration will be based on competence, subject to a code of conduct and sanctions where standards fall short. Registered building control approvers and building control authorities will need to obtain and consider the advice of a registered building inspector before carrying out certain building control functions and use a registered building inspector to undertake certain activities. This greater scrutiny and accountability will provide greater incentive to ensure all buildings, including non-higher-risk buildings, are safe. Our approach is proportionate to risk.

The new regulatory regime set out in the Bill and draft secondary legislation is proportionate to the level of risk potentially found in high-rise residential and other in-scope buildings. The Government have chosen to set the scope of the new more stringent regime at 18 metres or seven storeys, as we are committed to following this risk-based approach. Evidence from Dame Judith Hackitt has shown that, in general, the risk from fire increases with height. Through the Bill, the Fire Safety Act and further fire reform, we are working to protect all residents in buildings, regardless of height. Given these points, I hope your Lordships will agree that this amendment is not required.

Turning to Amendment 254, on sale of goods online, I reassure noble Lords that the Government fully recognise the importance of ensuring product safety, not only in relation to fire risk but also for the wider prevention of harm. As I set out in Grand Committee, existing product safety legislation applies to all products, whether sold online or offline. However, the Government also recognise that the rapid growth of e-commerce, particularly of third-party sales via online marketplaces, presents a significant challenge.

While I sympathise with the intention of the amendment, it represents only a partial response to the wider issue of unsafe products sold online. This illustrates that the Bill is not the best means of addressing the issue. The ongoing product safety review, which is examining the full range of consumer products and the role of online sales, is the more appropriate vehicle for meeting the concerns of the noble Lord, Lord Foster. He mentioned the letter I wrote after Committee to electrical safety firms. As I said, we are planning a consultation on proposals for reform, which will be published not later this year, as previously stated, but later this spring. Once it is published, I will be happy to update the noble Lord and this House to ensure that concerns raised in this debate are fully reflected. I hope I have reassured the noble Lord.

Turning to Amendment 261, again I thank the noble Lord for raising this important matter and recognise his concerns about poor-quality homes. However, I am afraid that the Government will not be able to accept this amendment, as it pre-empts and duplicates work already being undertaken across government. As the noble Lord reminded the House, in 2017, the Government committed in The Clean Growth Strategy to improve as many homes as possible to EPC band C by 2035. Where practical, affordable and cost-effective, we are seeking to bring as many private rental homes as possible in line with EPC band C by 2030. The Government have now consulted on raising the energy performance standard in the domestic private rented sector to EPC band C and will be publishing our response in due course. I hope the noble Lord will take some comfort from this.

In the energy White Paper, we announced our intention to seek primary powers to create a long-term regulatory framework to improve the energy performance of homes, alongside a package of incentives. We have consulted with a wide range of stakeholders and will undertake further consultation on specific policy design before making secondary legislation. In the social housing White Paper, we pledged to review the statutory decent homes standard by 2024, to consider how it can better support decarbonisation and improve the energy efficiency of social homes.

We shall publish a White Paper in the spring to reform the private rented sector. Some £800 million was committed through the 2021 spending review for a social housing decarbonisation fund and, as further evidence of our intent, we also committed in the levelling up White Paper to explore proposals for new minimum standards in the social and private rented sectors. In the Net Zero Strategy, we reiterated our commitment to consulting on phasing in higher minimum performance standards to ensure all homes meet EPC band C by 2035 where practical, cost-effective and affordable. I can assure the noble Lord that the Government will deliver on all our commitments in this space, but I ask that he does not press this amendment.

Turning to Amendment 262, on staircase regulations, I thank the noble Baronesses for raising this important matter and other noble Lords for contributing to this debate, but I am afraid that the Government will not be able to accept this amendment.

As the noble Baroness, Lady Jolly, mentioned, my noble friend the Minister convened a meeting of the Building Regulations Advisory Committee on 16 March to seek its advice on this matter. I have the response from its chairman here. The Building Regulations Advisory Committee has advised that the Government should carry out a review of the statutory guidance, approved document K, focusing on section K1, which covers staircases. It also advised that it was more appropriate to deal with this issue through the building regulations and associated statutory guidance than in primary legislation. In his letter, Hywel Davies says that BRAC agrees that it is more appropriate to seek to address this problem through building regulations and associated statutory guidance than in primary legislation and recommends a focused review of ADK section 1. Further detail on the potential scope of the review of ADK is set out in annexe 1 of the letter.

The Government have accepted the advice of the Building Regulations Advisory Committee and will now put in motion a review of approved document K, focusing primarily on section K1. This review will run in parallel with the review already under way of approved document M, which looks at accessibility. This review will consult on raising the safety of staircases to that achieved by meeting the British Standard on staircases, BS 5395-1. I reassure noble Lords that this will be done as expeditiously as possible and certainly within the year. I assure the noble Baroness that this review will fully address her intention to consult on improving standards of staircase safety in England. I thank her for raising this important matter and assure her that it is being addressed by government.

Turning to Amendment 264, laid by the noble Baroness, Lady Pinnock, and the noble Lord, Lord Stunell, I thank noble Lords for raising this important matter. As I assured them in Grand Committee, their intentions have been met in the Bill. Clause 10 requires the building safety regulator to establish the industry competence committee, which will oversee and monitor industry’s development of competence frameworks and training, undertake analysis to understand areas for improvement, and work with industry to drive gap-filling. The committee will provide reports of its work to the regulator periodically. The Health and Safety Executive has established an interim industry competence committee, which is developing its plan for supporting industry’s work, including understanding the current competence landscape. Training and certification of competent individuals is not a function of government or the regulator under this Bill. The industry needs to lead the work to improve competence, identify skills and capacity gaps, and provide appropriate training for its members, and has already started this work. The Government continue to monitor industry’s progress and will provide support where necessary.

Clause 152 legislates for the appointment, at least once every five years, of an independent person to carry out a review of the system of regulation for building safety and standards and the system of regulation for construction products. Importantly, the reviewer is not limited and may choose to review connected matters, which could include the built environment industry workforce. When defining “independent”, we have excluded those with a clear conflict of interest, without overreaching and excluding everyone with relevant experience. Given this explanation, I trust that noble Lords will agree that Amendment 264 duplicates many of the existing provisions in the Bill. With those reassurances, I respectfully ask the noble Baroness to withdraw her amendment.

[Baroness Hayman of Ullock (Lab)]

My Lords, I thank the Minister for her detailed response. I was very pleased to hear her response to the amendment on staircase safety from the noble Baroness, Lady Jolly. It is good that the Government are going to review this. I am sure noble Lords will keep the pressure on to make sure that that is done expeditiously.

Coming to my Amendment 15, again, I thank the Minister for her response. I am still concerned about the potential for a two-tier system and potential conflicts of interest, so I ask the Minister whether she could encourage the Government to monitor these issues once this becomes law to ensure that we do not end up with a system that does not work for all people. In the meantime, I beg leave to withdraw my amendment.

Amendment 15 withdrawn.

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[Baroness Neville-Rolfe (Con)]

My Lords, I apologise for a brief Committee-style intervention, given the novel nature of the group of amendments we are looking at. I have two points.

First, I am very grateful for the agreement earlier to the amendment from the noble Lord, Lord Best. I thank my noble friend for that but, as he knows, I am concerned about the position of leaseholders who are also involved in the hard task of managing even a small development as an enfranchised leaseholder. I have a family member with an interest in that area. What happens if a cladding or other building safety issue arises? I know that such leaseholders may face big bills and responsibilities. Amendments 186 to 193 appear to make enfranchised leaseholders of this kind liable even if they have ceased to act or sold out and become previous landlords. Have I understood this correctly? If I have, then it undermines the case for enfranchisement that has been encouraged by successive Governments to get rid of excess service charges.

Secondly, a strong case has been made for the non-government amendments in this group. I too have received many worrying letters from leaseholders. Do we have a feel for the cost, especially the net cost, of these Back-Bench amendments we are debating? I feel this is a matter that will be of concern in the other place, given current fiscal pressures, and might therefore determine what is eventually agreed in this important and urgent Bill.

[Baroness Hayman of Ullock (Lab)]

My Lords, this has been a very interesting debate so far. In the interests of time, I will just speak to the two amendments I have in this group, and then I will be very interested to hear the Minister’s response to the broader debate and issues that have been raised, that were clearly also debated in Committee.

Amendment 231 is about a registered social landlord not being able to

“use the income from rents or service charges to rectify defects relating to external wall systems or compartmentations where those defects result from the construction of the property or the installation of the external wall systems.”

The amendment would prevent local authorities using rental income or service charges to pay to remediate dangerous cladding or other fire safety defects. The aim is to give social housing tenants the same protection as leaseholders. While we support the Government’s efforts to protect leaseholders from the cost of remediation, the arrangements currently being considered by Ministers will mean that the cost of remediating social housing blocks falls on housing associations and council housing revenue accounts.

In the case of council housing, the main sources of income within the HRA are from tenants, in the form of rent and service charges. If the cost of fixing council housing falls on the HRA, then either rents, service charges, or potentially both, will need to increase, or maintenance improvement of social housing as well as new social housing delivery will need to be cut back. That is our concern. We clearly support the protection of leaseholders, but the protection of home owners who will eventually make a profit from the sale of their property, cannot and must not come at the expense of social housing tenants. Our proposal would prevent that outcome and instead require the Government to protect tenants such as leaseholders by requiring the industry to pay, with the taxpayer as a fallback provider of funds in recognition of any failings that created this crisis in the first place.

We discussed my Amendment 22 in Committee. It states:

“The regulations must exempt any relevant application made by or on behalf of a registered social landlord for the provision of social housing as defined under section 68 of the Housing and Regeneration Act 2008.”


The purpose behind this is to make social housing providers exempt from the additional financial burden of the Government’s proposed levy in order to prevent council tenants effectively subsidising the failures of private developers. Clause 57 of the Building Safety Bill gives the Secretary of State powers to impose a new building safety levy in England. This will contribute to government costs for remediating historical building safety defects and will apply to developers making application to the building safety regulator for building control approval. This is the new gateway 2 system, which will be introduced in building regulations.

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[Lord Greenhalgh (Con)]

My Lords, in practical terms, we have a £5.1 billion fund, of which we have committed the first stage of £1 billion. We have an additional £4.1 billion for buildings over 18 metres and an additional £4 billion for cladding remediation, yet we are asking industry to fix its own buildings. That gives us the ability to focus on the few buildings my noble friend is talking about, because we have got the developers that built these buildings to go on and fix them in a proportionate way and we do not have to use the core of money that we already have. Noble Lords can test the opinion of the House, but that is a practical way of dealing with the problems—focusing the current funds on those few buildings where that scenario applies.

[Baroness Hayman of Ullock (Lab)]

Before the Minister sits down, I thank him very much for his response to my Amendment 22. Could he just clarify something, so that I am completely clear on it? Was he saying that the Government will exempt social housing from the levy and that an SI will be brought in? If I am correct in my understanding, I would be grateful for a meeting to discuss the detail of what he proposes will happen.

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Tabled by

[Baroness Hayman of Ullock]

22: Clause 57, page 80, line 10, at end insert—
“(4A) The regulations must exempt any relevant application made by or on behalf of a registered social landlord for the provision of social housing as defined under section 68 of the Housing and Regeneration Act 2008.”

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[Baroness Hayman of Ullock (Lab)]

I am very happy to accept the Minister’s assurance on this if we can have a meeting to follow up.

Amendment 22 not moved.

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[Baroness Neville-Rolfe (Con)]

My Lords, there are many amendments in this group, and I have concerns about the open-ended financial implications while it remains unclear who is responsible for a perpetrator who cannot be found, or who is beyond the reach of the law—thus the importance of the review that the Minister has, I believe, agreed to bring forward much sooner than five years’ hence, although, without my amendment, he would need another Bill if we have to make changes, which seems inevitable.

There have been many powerful speeches, not least from the right reverend Prelate the Bishop of St Albans. I will not repeat what has been said. I have, however, given my support to Amendment 123, and I would like to take the opportunity to commend my noble friend Lord Naseby who in Committee highlighted the unfairness of excluding buy-to-let premises from the safeguards in the Bill for reasons we have heard. The Government have acknowledged that he was right.

However, I agree with my noble friend Lord Young of Cookham that it is difficult to limit this arbitrarily to the ownership of two extra UK properties. I would prefer his formula of four properties, or some other, fairer system. He and others have worked so hard to get the various provisions of the Bill right. For example, he said that we may not have capped the liability of enfranchised leaseholders—which he and I have worked on together—as we had been led to believe in Committee.

I look forward to my noble friend the Minister’s reply on the rationale and an answer to all the good points that have been raised, particularly on enfranchised leaseholders and how we do buy-to-let fairly.

[Baroness Hayman of Ullock (Lab)]

My Lords, this has been an extremely important debate in which we have covered some of the critical issues still outstanding in the Bill. I thank the Minister for the introduction to the amendments. Many of them are good, but we believe there are still problems that need to be sorted out.

I will be brief. I thank the noble Earl, Lord Lytton, for his introduction to Amendment 115. If he decides to divide the House, he will have our support on that amendment.

I turn to my Amendment 155. It is really important that we take account of the principle that has been referred to by other noble Lords: there should be no cost to people who have done nothing wrong. It is not the fault of leaseholders that they have been left with these huge costs. We believe it is desperately unfair to force them to pay a penny, which is why my amendment has the word “zero” in it. As mentioned by the noble Baroness, Lady Pinnock, we must not forget the strain on the mental health of leaseholders. They need clear and proper support, and they are relying on your Lordships to do the right thing by them. To me, this is a moral question. Should leaseholders pay costs that, for many, will still be huge despite the caps proposed by the Government? They are blameless; they should pay nothing.

I thank the noble Lord, Lord Marks, and the noble and learned Lord, Lord Hope of Craighead, for clearly laying out the legal position. It has been important for me to hear that from them, and the detail that they have provided, having had discussions with the Government on their concerns about the ECHR. I also thank the noble Lords, Lord Young of Cookham and Lord Blencathra, and the noble Baroness, Lady Pinnock, for their support.

I confirm that I intend to divide the House on Amendment 155. If it fails to pass, I will be happy to support the noble Lords, Lord Blencathra and Lord Young, on Amendment 158.

[Lord Greenhalgh (Con)]

My Lords, I spoke to the government amendments as I hoped it would assist the House to have the Government’s views. With the permission of the House, I will now speak again in reply to the points raised by noble Lords on the non-government amendments that they have tabled.

Amendments 155 to 160 and Amendments 162 to 163 deal with leaseholder contribution caps. I thank noble Lords for their contributions and constructive approach, but I am afraid that the Government will not be able to accept these amendments. It is important to bear in mind that leaseholder contributions apply only in certain circumstances, and even then, only when a series of other steps have been exhausted. The caps do not apply at all in relation to cladding defects, nor do they apply where the value of the flat is less than £175,000 outside Greater London and £325,000 inside.

The caps only apply where the building owner or landlord is not linked to the developer and cannot afford to pay in full, where the developer cannot be made to fix their own building, and where the building owners have exhausted all reasonable steps to recover costs from third parties. Leaseholder contributions will only apply where there is no clear developer or wealthy landlord to meet the costs in full, and the party responsible for defective work cannot be identified. The Government consider that this will occur only in a minority of circumstances.

Where there is no party that clearly should pay in full—and only then—our approach spreads the costs fairly and equitably across those with an interest in the building and ensures above all that the most vulnerable leaseholders are protected. The Government’s latest amendments go even further in protecting leaseholders. Where the freeholder or landlord is not at fault and cannot pay to meet the costs, we need to ensure a proportionate approach that takes into account the interests of all parties. That is why our approach spreads the costs equitably among all relevant parties with an interest in the building.

The amendments tabled by the noble Baronesses, Lady Hayman and Lady Pinnock, and—

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Moved by

[Baroness Hayman of Ullock]

155: Schedule 9, page 227, line 14, leave out from “is” to end of line 17 and insert “zero”
Member’s explanatory statement
This amendment would reduce the maximum amount leaseholders could be liable to pay for fire remediation work to zero.