Building Safety Bill (Twelfth sitting)

Ian Byrne Excerpts

Tuesday 19th October 2021 Public Bill Committees

[Eddie Hughes]

Clause 95 places three clear obligations on residents aged 16 years or over and on owners of residential units in high-rise buildings in relation to keeping their homes and buildings safe.

The first of those obligations requires all residents, irrespective of tenure, to not act or behave in a way that creates a significant risk of fire or structural failure in their building. Secondly, the clause requires residents and owners of residential units to refrain from interfering with safety items that form part of the common parts. By interfering, we mean damaging or removing the safety item or hindering its function without a reasonable excuse for doing so. Thirdly, residents will have to provide the accountable person with relevant information if it is reasonably required by the accountable person to fulfil their safety duties. We believe those obligations to be proportionate and reasonable.

Turning to clause 96, residents have an important part to play in keeping their building safe, and we know that the majority of people who live in high-rise buildings take their safety responsibilities seriously. As part of the new regulatory regime, our aim is to make sure that sufficient requirements, incentives and powers are in place to prevent and put right risks that are posed by behaviours that residents might engage in. The aim is for accountable persons to work with residents in the first instance, but with the ability to escalate issues to the county court where required. This will help to ensure the appropriate and effective assessment and management of building safety risks for all residents in high-rise buildings.

A contravention notice issued by the accountable person and served on a resident is a means to notify that resident of a breach of their obligations and give them the information they need to put it right. The notice will be issued only where it appears that a contravention has occurred. Where the breach involves interference with a safety item, a sum to either repair or replace that item—not exceeding a reasonable amount—may be requested from the resident.

We believe that to be a fair and proportionate approach, as the majority of residents will want to keep their home and building safe and will not interfere with safety items provided to help them do so. Getting this right is particularly important: it underpins the system of accountability for the accountable person responsible for mitigating fire and structural safety risks, as it provides a proportionate means to discharge their duties in relation to individual dwellings.

[Ian Byrne (Liverpool, West Derby) (Lab)]

It is an honour to serve under your chairship, Mrs Miller.

If an accountable person is potentially utilising their position to bully a resident, what recourse does that resident have to challenge the notice, which may end up in eviction? What safeguards are in place for the resident? I find it concerning that this seems to be an awful lot of power. We have talked about imbalances of power on the Housing, Communities and Local Government Committee. My worry is that this is a further imbalance of power, so what recourse will residents have to challenge a notice that is served by the accountable person?

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[Eddie Hughes]

Clause 98 places a statutory duty on the Building Safety Regulator to enforce the provisions of part 4. As per the clauses we have already discussed, part 4 is concerned with occupied buildings. Among other things, it defines a building safety risk and it defines and places duties on the accountable person in relation to risks in their building, including duties regarding resident engagement.

Alongside clause 4, part 4 also makes it clear that the Building Safety Regulator will be the responsible regulator for the higher-risk building regime during occupation. The reason for placing the duty to enforce breaches of that regime in the Bill is, I hope, self-explanatory. It cements the position in law of the new Building Safety Regulator.

Clause 99 introduces a power for the Building Safety Regulator to ensure compliance with the new regime where a higher-risk building is occupied, through the use of compliance notices. The new regime imposes a range of new requirements for the management of higher-risk buildings, particularly on the new position of the accountable person. The accountable person has a significant role in ensuring that residents are kept informed with important building safety information and, most importantly, kept safe in their homes.

These compliance notices will provide the Building Safety Regulator with effective tools to enforce the relevant part 4 requirements where contraventions have occurred or are likely to occur, and will be available as urgent action notices with shorter deadlines where people in or around a building are at risk of imminent danger, where immediate action is required.

The use of compliance notices will also afford accountable persons the opportunity for correction before formal prosecution action. Nevertheless, the possibility of a custodial sentence upon conviction for breaching a compliance notice is designed to incentivise the accountable person to comply with their requirements and will further support the Building Safety Regulator to ensure that duties under part 4 of the Bill are being met.

The provision complements clause 37, which makes provision for the use of compliance and stop notices during the design and construction of a building, although there is no provision for stop notices in clause 99. Together, the clauses ensure building control authorities will have consistent enforcement tools available to them during the entire lifecycle of a building.

The compliance and enforcement measures in the Bill are appropriately tough. It is not enough that there is an accountable person for a building; the new regulator must be certain that the accountable person is carrying out their duties and responsibilities as they should, in line with the regime. The design of the new regime and the related requirements in part 4 of the Bill are only part of how we are making buildings safer. The most perfect regime could be created, but without oversight and enforcement, it would completely fail to function.

Clause 100 allows the Secretary of State to make regulations where necessary to ensure that compliance notices issued to accountable persons are as effective as possible. Examples of matters that the Secretary of State can make regulations about include the form and content of notices, or the amendment or withdrawal of notices. The provision allows for amendments where different regulatory bodies may need to be informed of compliance notices, where the period for compliance may need to be extended or where any other change is deemed necessary.

The flexibility the new regulations afford will allow the Building Safety Regulator to issue compliance notices that directly respond to the contemporary needs of the industry. The requirement on the Building Safety Regulator to inform relevant bodies where compliance notices have been issued will be important in ensuring that buildings of concern are on the radar of the relevant authorities. That will align regulatory action across those bodies to avoid the overlap of enforcement action and ensure that each regulatory body is taking appropriate action within its jurisdiction to enforce compliance.

Moving on to clause 101, more than four years ago the Grenfell Tower fire made clear to all of us the consequences that can occur when building safety requirements are not complied with. We have discussed in respect of previous clauses in this part why the Bill creates the new position of the accountable person to deliver safety for residents and others in and around higher-risk buildings. We have also discussed the various duties that this part of the Bill imposes on accountable persons and the provisions of the previous couple of clauses for enforcing those duties by means of compliance notices.

This clause underpins the new regulatory regime for occupied higher-risk buildings, reflecting the potential gravity and consequences of not adhering to the part 4 duties. It makes it abundantly clear that, where any of the duties are breached and have the potential to cause death or serious injury to those in or around the building, the Building Safety Regulator will not have to go through the compliance notice process but will be able to prosecute an accountable person straightaway.

That is in line with the enforcement principles that we set out in our consultation document in 2019 and in the Health and Safety Executive’s published enforcement principles—[Interruption.] I give way to the hon. Member for Liverpool, West Derby.

[Ian Byrne]

I have a simple question: what would have happened to who, if that was applied to Grenfell? That is the first part of the question. The second part is whether a two-year sentence is sufficient if we look at the context of Grenfell.

[Eddie Hughes]

There are two things I would say. First, I do not think it would be appropriate for me to comment regarding Grenfell, not least because, as somebody who listens to the BBC podcast every week to follow the proceedings, we are still a long way from the conclusion and completely understanding what went wrong and what the consequences of that were to be. It would be inappropriate for me to comment—[Interruption.] If the hon. Gentleman will let me answer his second point before he comes back with a third, that would be very helpful.

Regarding compliance with these notices, the total purpose of the Bill is to intervene at the earliest possible opportunity. I fully appreciate that the hon. Gentleman would say, because of the parallels he is drawing with Grenfell Tower, that two years does not seem an appropriate sentence, but, given that we are talking about intervening before things have gone wrong—somebody identifying a problem, seeing that an accountable person has not addressed it appropriately and therefore taking action at that point—I think two years is an appropriate sentence.

[The Chair]

Just for clarification, if people wish to intervene on the Minister, it is for the Minister and not the Chair to agree to that intervention. I take it from the Minister’s sedentary position that he was giving way to Ian Byrne.

[Ian Byrne]

Thank you, Chair, for your patience in bringing us through this process, because some of us are new to this.

[The Chair]

No problem at all.

[Eddie Hughes]

Me too.

[Ian Byrne]

I am not specifically asking about Grenfell per se, but an example like Grenfell that could happen again. That is what I am trying to draw out: is two years sufficient, and would the legislation target the people who would potentially be responsible for another Grenfell?

[Eddie Hughes]

The entire purpose of the clause, as I say, is to avoid our ever ending up in a position where we have another Grenfell. Therefore, the idea that the accountable person now completely understands their responsibility, and that that is set out in legislation, is increasing in and of itself the focus on safety within the sector. We are seeking to prevent any occurrences by focusing minds and ensuring that even in this new, stricter regime, if people are still prepared to be reckless and ignore the legislation, a custodial sentence can, and hopefully in certain circumstances will, follow. I completely understand the point that the hon. Gentleman makes.

That is in line with the enforcement principles that we set out in our 2019 consultation document, and in the Health and Safety Executive’s published enforcement principles. Those documents set out that minor infringements will normally attract informal action, which will be escalated as necessary. More serious breaches will probably attract more formal action, such as compliance notices. The most serious breaches envisaged by the clause will normally attract immediate prosecution. An offence can carry a maximum penalty of an unlimited fine and/or 12 months’ imprisonment if tried in a magistrates court, and an unlimited fine and/or two years’ imprisonment if tried in a Crown court. Either court may also issue a level 1 fine of £200 for each day the default continues after conviction.

The measures will help to ensure compliance with our new regime, and they reflect our strong stance on breaches and enforcement.

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[Eddie Hughes]

The vast majority of accountable persons will meet their new duties under the more stringent building safety regime, but a small number may still fail to comply. The clause establishes the procedural steps that the Building Safety Regulator must take to put a failing building into special measures.

The Building Safety Regulator must notify persons of its intention to apply to the first-tier tribunal for the appointment of a special measures manager who will carry out functions in place of the accountable person. The clause details the persons who should be notified and sets out the information that needs to be provided, which must include the rationale for the special measures proposal. The persons who must be notified include every resident of the building over 16 years old, the fire and rescue authority for the area, and every accountable person for the building, among a number of others.

The Building Safety Regulator must make it clear how a person can make comments and observations about the special measures proposal. That ensures that those who may be affected are consulted and can make representations. Requiring that the rationale for the special measures proposal is contained within the notification gives the residents and those other interested parties clarity on why the notification is being issued.

The Building Safety Regulator must comply with the procedural requirements of clause 102 before making an application for a special measures order. Once the decision is made to make an application to the tribunal, a final notice needs to be given to those persons, detailing the rationale for that decision. The proposed terms of the special measures order must be included in the final notification if the Building Safety Regulator decides to apply to put the building into special measures. Clause 102 enables the Secretary of State to make regulations about the form of notices and the way in which they need to be given. It establishes a key procedural aspect of special measures, and is necessary so that affected parties have the opportunity to make comment and provide representations about the management of their building

The clause builds on that, giving the first-tier tribunal the necessary powers to make a special measures order. Special measures is a last resort intervention. In the majority of circumstances the Building Safety Regulator will be able to take other enforcement measures to direct compliance with the new regime. However, where that fails, the Building Safety Regulator may need to step in and appoint a special measures manager to take over the fire and structural safety management of the building to ensure safety for the residents. The clause sets out the grounds that the tribunal must have agreed to be met when making an order: there must have been a serious failure, or a failure on two or more occasions by the accountable person to comply with a duty or duties under part 4 of the Bill. Those are the same grounds that the Building Safety Regulator must consider when making its application to the tribunal.

The order will set out the functions of the special measures manager, which will have been proposed by the Building Safety Regulator in its application for the order. This will effectively “switch off” the fire and structural safety obligations in part 4 of the Bill of the recalcitrant accountable person. The clause ensures that the tribunal can bestow receivership functions on the special measures manager, allowing them to collect the building safety charge directly from leaseholders, so that the manager can fund the functions that they have been tasked with undertaking.

A special measures order can make provisions covering any matter relating to the special measures manager’s exercise of their functions, and any incidental or ancillary matter. That will be vital to ensure that the special measures manager can carry out their role. The special measures order continues in force until it is discharged. I will speak about the discharging of an order in more detail later.

An example of when a special measures order might be necessary is if an accountable person repeatedly fails to meet the statutory obligations under part 4 of the Bill. Yet if, after using the compliance and enforcement tools at its disposal, the Building Safety Regulator is still of the opinion that the safety of residents is at risk, they apply to the first-tier tribunal for an order to appoint a special measures manager. The special measures order would detail the identity of the special measures manager, the scheme and terms of management, including the specific functions that the special measures manager would be undertaking to make sure that obligations under part 4 of the Bill are met. In making such an order, the first-tier tribunal specifies that the special measures manager has the functions of a receiver of the building safety charge to pay for their own renumeration and functions in relation to undertaking their safety obligations. This clause provides for a hugely important failsafe for when the safety of residents is at risk.

Clause 104 supplements clause 103 in that it sets out further detail about special measures orders. It ensures that a special measures manager takes over the functions of the accountable person for the building as provided for under part 4 of the Bill. However, there are some exceptions to this in order to allow the accountable person to retain the right of appeal, or to make an application, to the first-tier tribunal. Furthermore, once the building is put into special measures, any requirements of a previously issued compliance notice are cancelled. But enforcement action can be continued by the Building Safety Regulator. Once a special measures order is made, the role of the building safety manager ceases and any appointment ends. A special measures manager is solely responsible for managing the fire and structural safety of the building until the order is discharged by the tribunal. My apologies; I thought that I had got to the end of this group of clauses, but I certainly have not.

Clause 105 enables the special measures manager to take over relevant fire and structural safety contracts that may be in place for the building, effectively stepping into the shoes of the accountable person. That ensures that the special measures manager can carry out their functions as set out in the order. The circumstances that led to the appointment of a special measures manager are likely to be so dire that any competent manager would want to replace contractors. There may also be the outstanding provision of works and services, or a breach of contract by a supplier of shoddy workmanship. The clause gives the special measures manager the legal remit to pursue those types of actions under contract.

In pursuing such claims the special measures manager may be liable to pay damages incurred for the actions of the accountable person or building safety manager prior to their appointment. If that happens, those persons will be liable to reimburse the special measures manager. That type of provision is common in receivership, where one party has to step in to take over the management arrangements to help a failing company, and it is necessary here to ensure that the special measures manager can carry out their job effectively. As with other such clauses pertaining to the remit of the special measures manager, our aim is to give them the requisite and necessary ability to effectively carry out their role. In such cases as the example relating to shoddy workmanship and replacement contractors, the special measures manager needs the remit to be able to take a hands-on approach in those issues.

[Ian Byrne]

Where would the special measures managers come from?

[Eddie Hughes]

The functions that will be performed by the special measures manager will be the same or similar to those of an accountable person. As we have discussed on previous clauses, an accountable person could be a single person or an organisation, as in the case of a council or a housing association, so it would depend on the circumstances pertaining to the building in question. It might be that that person is simply an individual who has the competence and experience to discharge the role, or it might be that an organisation is brought in and the competences and experience are spread across several people.