Fire Safety Bill

Lord Mendelsohn Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Tuesday 17th November 2020 Lords Chamber

[Lord Mendelsohn (Lab) [V]]

My Lords, I first associate myself with the excellent speech of my noble friend Lord Kennedy, who put the case extremely well. Perhaps it would be helpful if I provided some of the legal underpinnings of why this is an issue that requires plugging. In that regard, I would also like to offer my deepest thanks to the distinguished leading counsel, Richard Matthews, who has provided us with a lot of excellent legal advice on the underpinnings of this. When I spoke about him in the last session, I may well have done him a disservice by talking only about his skills in fire and health and safety matters and underplaying his overall exceptional status as a well-regarded QC in all matters of regulation and criminal defence relating to businesses. His advice has been extremely helpful and I hope that the Government have had time to reflect on what it means and the implications of it.

Case law, frankly, is clear about the Government’s assumption that a private dwelling ceases to be one under a short-term let and that, therefore, this is covered by the fire safety order. The Government have made a number of statements on this in the House and have published guidance, Do You Have Paying Guests?, in this regard. In Do You Have Paying Guests? the Government’s position is expressed: when anyone pays to stay in your property, other than to live there as a permanent home, the property is not a premises occupied as a private dwelling.

Such guidance is not capable of establishing, as a matter of law, that whenever anyone pays to stay in a property, other than to live there as a permanent home, the property is not a premises occupied by someone as a private dwelling. Furthermore, such guidance is not capable of creating a duty in law extending the operation of the articles of the fire safety order to all such premises where anyone pays to stay in this way; nor is it capable of amending the definition of “domestic premises” in the fire safety order to incorporate the definition of what apparently makes premises temporarily no longer domestic premises.

This point is strongly embedded in existing case law. Looking at, in particular, the elements related to definitions of “private dwelling”, “occupation” and “occupier”, it would be worth making noble Lords aware that case law, in the case of private dwelling, is recent and relevant. There have been a number of landmark cases, including Caradon District Council v Paton, which had some very emphatic judgments expressed by Lord Justice Latham and Lord Justice Clarke. In relation to the occupation and occupier elements, the Court of Appeal judgment by Lord Justice Lewison in Cornerstone Telecommunications Infra- structure Ltd v Compton Beauchamp Estates Ltd in 2019 is of course highly relevant.

What these case law examples identify is that the following considerations come from those points. First, particularly in regard to land and property, occupation can be simultaneous with another occupier and does not require either a continuing or exclusive physical presence. While a contract is not wholly determinative, the fact that a licence to occupy is limited and preserves extensive power of re-entry for the host, coupled with the temporary limitations of the licence, means that the host, particularly if, at other times, they are in occupation of the premises as a private residence, continues to be in legal occupation of the premises as a private dwelling during the period of the limited licence of the guest.

Therefore, of course, this, along with other considerations that come from those case law examples, demonstrates that there is a clear gap in the law. Whatever the intention of the Government to ensure that such short-term lets come under the fire safety order, in law, specifically definitionally and under case law, they do not; that obligation is simply not there. So this amendment plugs that gap, and I hope that the Government are highly sympathetic to it and more than willing to consider how they may integrate this into the Bill.

Finally, another matter raised previously, which is not part of this amendment but does not fit neatly into this Bill, is that there should be some consideration of other elements that are missing in law, which again seem to be omissions due to the nature of the short-term letting business. One of those relates to smoke and carbon monoxide detectors, which fall under the Smoke and Carbon Monoxide Alarm (England) Regulations 2015. These specifically talk about the objective that landlords in the private rented sector in England should ensure that a smoke alarm is installed on every storey of a rented dwelling when it is occupied under a tenancy and that a carbon monoxide alarm is equipped in any room that contains a solid, fuel-burning combustion appliance. They also require landlords to ensure that such alarms are in proper working order at the start of a new tenancy.

Because short-term lets fall outside this definition, there is no obligation to ensure either that there are such smoke and carbon monoxide alarms or that they are working. To verify this, during the course of the week I went on to a site and found adverts for short-term lets of a number of properties that ordinarily should, even for building regulations or insurance purposes, have such things, which were explicit in saying that they did not have these devices. Therefore, it is very clear that in operating the law this is a clear error. This is not what the intention was, but this is another definitional problem. I do hope that the Government will be forthcoming in looking to clear up these clear gaps.

[Lord Tope (LD)]

I am very grateful to the noble Lord, Lord Kennedy, for raising this issue today, and to the noble Lord, Lord Mendelsohn, for explaining it so fully and clearly. We have come a very long way in a fairly short time from the days when it was thought to be a good idea for people going on holiday for, say, a month to let out their home for a month to help cover the costs of the holiday, and everybody was happy. I recall lively debates in your Lordships’ House during the Deregulation Bill, as it then was, when we did away with the requirement for planning permission to be granted if a home in London was to be let for more than 90 days. That was thought to be one of the regulations that should be done away with, and so it was.

Although this may have happened anyway and is not a consequence of that, there has been an explosion—perhaps I should not use that word, but that is the way it has been—in the number of properties being let, initially primarily in central London, then increasingly spreading to the suburbs of London and now, for some time, throughout the United Kingdom, particularly in areas of high visitor attraction. Properties that are no longer, frankly, people’s homes, are let; probably most of these properties are not lived in by anybody who could conceivably be called an owner-occupier, as the people living in them change, often quite literally night by night.

If you talk to the Covent Garden Community Association, for instance, they will give you some considerable horror stories of the sorts of things that go on in that particular part of central London. We see whole blocks of flats where there is not a single resident—or, worse, there is a single resident surrounded by people who change on an almost nightly, and certainly weekly, basis. So it is a considerable issue, far wider than the very important one raised by the noble Lords, Lord Kennedy and Lord Mendelsohn, and I am grateful to them for spotting this particular loophole, if it is a loophole—this gap in the legislation.

We need to recognise that, for better or for worse—probably for better and for worse—it is no longer simply a question of people letting their home while they are away for a temporary period. This is now big business, and there seems to be a significant and important gap in the legislation. I hope the Government will, if not agreeing to this particular amendment, certainly recognise that this is a very important issue throughout the country, that it needs to be dealt with very urgently, and that this is an opportunity to do so.

Fire Safety Bill

Lord Mendelsohn Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Thursday 29th October 2020 Lords Chamber

I repeat and emphasise the point that in people’s homes there will be a single staircase to get out of the building. Have people been told what the arrangements are to get to the corridors? We need to look at this carefully. Many homes are being used on a temporary basis effectively as hotels or a place to stay. What work has been done by the company or the owner to ensure that the guests are properly aware of the risks and how to get out of a building safely? I do not believe that we are there yet; this raises an important issue. I hope that the noble Lord, Lord Parkinson, can see the point that I am trying to make and that he will address it when he responds to the debate. I beg to move.

[Lord Mendelsohn (Lab)[V]]

My Lords, I am grateful to the noble Lord, Lord Kennedy, for proposing this amendment and for giving us an opportunity to raise a serious if unintended deficiency in what fire safety law covers through the 2005 fire safety order. Far too often, attention is drawn to these matters only when they have terrible consequences, when it is essentially too late. I give great credit to the noble Lord, Lord Kennedy, for raising the issue in a timely fashion. To the best of my knowledge, it would be in time to save lives rather than deal with the consequences.

I am keen that the Minister should reflect very carefully on the excellent speech made by my noble friend Lord Kennedy, and that, if he cannot provide a comprehensive assurance from the Dispatch Box, he should tell the House that the matter will be taken back to the department and full consideration given to it. I hope that the Government will either accept this amendment or introduce their own amendment.

Identifying the cause of the absence of any agency doing any oversight investigation, regulation or consideration of online rental accommodation led to a clear view from the relevant agencies that they were not required to do so. In investigating why the amendment was so necessary, and why I am so keen to support it, the answer became evident in the compelling legal opinion written by the outstanding leading counsel Richard Matthews QC, who is rightly acknowledged in all independent legal guides as not just in the top band of legal silks on health and safety, but by some as the very best legal mind in the country on those matters. He has not just been counsel for the Health and Safety Executive but has acted for the Crown in many fire-related prosecutions.

I say this just to emphasise the strength and merits of the legal arguments that my noble friend Lord Kennedy presented, and the fact that the Minister needs to ensure that his legal talking points have the right level of force and expertise to provide assurance to the House.

Richard Matthews’ opinion is that the fire safety order does not apply to domestic premises except those specifically defined in the order. The crucial question with regard to short-let holiday, business or other accommodation available through a variety of online or digital accommodation services—commonly known as Airbnb-type accommodation —is whether it falls within scope or ceases to be a domestic premises.

Mr Matthews’ advice could not be clearer. He states:

“I am firmly of the opinion that a house or flat that is let on the specific terms of the licence through Airbnb or similar accommodation for a short period of time does not necessarily by operation of the law thereby cease to be a domestic premises occupied as a private dwelling. Furthermore, I am very firmly of the opinion that a room or space in a house or flat that is let on the specific terms of the licence through Airbnb for a short period of time, whether the remainder continues to be occupied by the host as a residence, does not thereby cease to be a domestic premises occupied as a private dwelling, nor that it thereby becomes premises used in common by the occupants of more than one such dwelling. In addition, I am further of the opinion that both the Government’s written parliamentary response and its Do you have paying guests? guide are both inaccurate in this regard, and an apparent assertion that whenever anyone pays to stay in a property other than to live there as a permanent home, then the property is not a domestic premises occupied by someone, not necessarily a paying guest, as a private dwelling, is wrong as a matter of law.


Nothing demonstrates that his interpretation of the law is incorrect, which explains the fact that there has been no enforcement.

There is a clear, though unintended, gap, and it should be plugged as soon as possible. The onus must be on Airbnb hosts, and similar types of host, to have made the assessment or, where necessary, sought professional advice, to protect their paying guests. In addition, fire authorities should have some knowledge of where these properties are, or at least consider whether there is a need for inspection if a particular block or premises is being used within these terms. I strongly support the correction of the anomaly in the Bill that the amendment provides, to clarify the roles and responsibilities of temporary landlords in respect of fire prevention measures in their properties.

Finally, there is one other significant matter, which Mr Matthews’ extensive legal research and experience also uncovered, that should be addressed. It is that the 2015 smoke and carbon monoxide alarm regulations, which were brought into force at a time when the service provided by Airbnb and other such companies was well established and well known, for Airbnb premises to be within the ambit of the smoke and carbon monoxide regulations by reason solely of a licence obtained by Airbnb, such a licence would have to amount to a tenancy granting the right to occupy the premises as the guest’s only or main residence. An Airbnb will not have the effect of putting premises outside the ambit of the smoke and carbon monoxide regulations within that protection. I would be grateful for the Minister’s assurance that this too—which is surely another unintended lacuna—will be remedied, as well as the one addressed by the main amendment.

[Baroness Pinnock (LD) [V]]

My Lords, the phrase “unintended consequences” comes to mind in Amendment 13. This short amendment seeks to ensure that there is clarity in connection with short holiday lets that use either part or the whole of a building, and it is one that we support. I am no legal expert, but the issues just raised by the noble Lord, Lord Mendelsohn, must be considered and a definitive answer provided by the Government.

I thank the noble Lord, Lord Kennedy, for seeing that there is an omission in the Bill and a possible unintended consequence, and for tabling the amendment so that we can have this discussion. I hope the Minister is able to respond positively.