Mike Amesbury
Main Page: Mike Amesbury (Independent - Runcorn and Helsby)Building Safety Bill (Second sitting)
Mike Amesbury Excerpts(3 years, 3 months ago)
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Daisy Cooper
Q
Dr Steedman: My immediate reaction is that I think the Bill is proportionate, but there is a lot more work to do, and we look forward to working with the Department and industry on the supporting regulations and statutory guidance. They really ought to come along together—that would be very useful—but in so far as we are seeing the approach today, it is proportionate, and I welcome that. I do not think that it goes too far.
Peter Caplehorn: I absolutely support Scott in his analysis, which is exactly right. I add that it is important that industry sees that the Government are moving the agenda forward. I can point to several programmes in the past—nothing to do with building safety, of course—where the Government have announced a programme, industry has invested heavily, and then the programme has faltered. I think that is a shame. Many people with a memory of those circumstances will now see the Bill laid out in the way that it is, with all the elements to it.
Again, I reiterate that I do not think it is disproportionate; I think it sets the scene extremely well, and we can all see how we can work from it going forward. In fact, many people have already taken that up, but it is important that this is now a key moment, so that all the energy and effort from industry really get pushed forward. That is crucial.
Mike Amesbury (Weaver Vale) (Lab)
Q
Dr Steedman: There are some points that I think are missing. The regulator role is complex. I think we need a new regulator. In the work that we have done recently on competence standards, it is very clear that there needs to be a regulator. I think that the Health and Safety Executive is the right place to put the Building Safety Regulator. However, this goes beyond a regulator role; it turns into an enforcer role. Part of the complexity of this subject is the risk of creating a two-tier structure where you have structures that are in scope and structures that are out of scope, and a regulator that is regulator and enforcer for some buildings but just an ordinary regulator for other buildings.
I appreciate that building control is supporting this, but on the relationship between the Department and the regulator, in its role as regulator and enforcer for the buildings in scope and ordinary regulator for the buildings not in scope, and where determination will lie if someone is disputing the regulator’s role as an enforcer, that kind of complexity will not help the industry. It needs to happen and we need to work it out, which will take time, but the role as specified is extremely important and well defined, and I think it is being taken up very earnestly. The people involved are extremely excellent. Peter Baker is a well-respected individual, and I think we are in good hands with him.
Peter Caplehorn: Again, I support entirely what Scott has just said. To contextualise this a little, one of the issues that has been upon us for at least the last 20 years is the lack of oversight and sanction that Dame Judith Hackitt pointed out clearly in her review, to such an extent that I think the generality of customer practice across the industry was that regulation can be treated with a certain degree of lip service—that we do not really need to focus on the essence of a lot of regulation, simply because nobody will pick up on it and there will be no real sanction.
This is a key turning point in where we need to go, because the industry needs to recapture a respect for regulation and for compliance. The regulatory situation that is mapped out in the Bill starts to address that, but I share the concerns that Scott has expressed over the complexity. We have to start somewhere. To me, there is a bigger question here about how we reform the whole industry and the mechanisms that come into play. At the moment, that is set out in terms of a definition of higher-risk buildings, with different implications for other buildings. We have to look forward to the prospect of a regime that would be the same in addressing all buildings. That would start to simplify some of the current complexity, but we have to start somewhere.
The Chair
Dr Steedman, do you want to come back in before I bring in the next question?
Dr Steedman: Mike asked other questions about the Bill itself and improvements or missing pieces, so I do not know whether you want me to take that now, Chair.
The Chair
Fantastic. David, could you introduce yourself, please? [Interruption.] We have no sound from David at the moment. [Interruption.] Are your headphones connected to your audio device? That is as much technical information as I can give. [Interruption.] We have lost David at this point. If you can hear me, David, can you make sure that your headphones are selected on the device you are trying to broadcast from? Hopefully, you will rejoin us shortly.
There are a number of questions we want to ask this panel. With four people on the panel, I am keen to ensure that we get cracking, as we only have until 3.30 pm for this session and then I will have to bring it to an end. If it is all right with colleagues, we will crack on, even though we are currently missing one of our witnesses. Mike Amesbury will kick off the questions and others can follow.
The Chair
David, you are back—hooray! It is lovely to see you. Can we check your audio?
Councillor Renard: Can you hear me?
The Chair
That is fantastic. I will now hand over to Mike, who will ask the first question.
Mike Amesbury
Q
The Chair
Who would like to kick off with that? Kate, go for it, and then I will bring in David.
Kate Henderson: We absolutely welcome the introduction of a fit-for-purpose regulatory system on building safety. This Bill is a really important starting point in ensuring that we have a safety system that protects residents.
One thing that the Bill does not attempt to address is the funding for remediation. Within the Bill, there are some financial protections for leaseholders in terms of extended liabilities. That is welcome, in that it assumes that developers are liable for poor workmanship, but it does not necessarily solve the problem for leaseholders. That is because leaseholders may still be facing building safety costs. They would have to pay for legal advice to go through this process, with no guarantee of outcome. We would suggest, as we have suggested throughout, that the Government provide the upfront cost for all remediation work, and that that is then recouped down the line from those responsible. We think that is missing from the Bill.
In terms of the new Building Safety Regulator and its role, as the Bill comes through we would like to see detail on transition. There is going to be a huge amount of change. While we welcome the regulation coming in, it needs to be risk based, as does funding. At the moment, it is very welcome to have the building safety fund, but it is based on tenure and on access for leaseholders in buildings over a certain height. It is not based on risk. We would like to see this based on risk and, similarly, as the regulation comes in, for that to be based on risk, and for us to have transition arrangements in place, prioritising the highest risk buildings.
My third point, before I stop and let others come in, is about access. There are provisions in the Bill for access to properties. We know from our members that they engage with their residents in many different ways around building safety checks, communication and access. The majority of the time, where a check needs to take place, access is provided by the residents through this dialogue. But there are circumstances in which access is difficult to attain, perhaps because the resident has multiple vulnerabilities, is concerned and does not want to allow access, perhaps because they are refusing or perhaps because the building is leasehold and the resident is not there.
We absolutely believe that residents should have the right to privacy, a quiet life and quiet enjoyment of their property, but we want to see good provisions for right to access, and at the moment the way the Bill is structured, in terms of going through the courts, gives us some concern. At best, it could take two months, but at worst we know from members at the moment that securing access can take up to a year. We absolutely want to be fully compliant as this comes in, but right to access is an area that we would like the Bill to pay some further attention to.
The Chair
I was going to say that we had ended our questions, but Mike, please, come in.
Mike Amesbury
Q
Kate Henderson: Thank you for highlighting the campaign, which is specifically around damp, mould and disrepair in homes. There have been some really unacceptable examples, which are being put right. It is absolutely incumbent on anyone, whether they are a social landlord or a private landlord, to ensure that residents have safe and secure homes.
On that and specifically on damp and mould—I know that is not what this Bill is about—context is important in terms of there being a consistent improvement in the quality of homes. Around 5% of housing association properties have some kind of damp or mould. It is higher in the private rented sector, but is still not good enough and we are working on it. Two per cent. is structural—that is a separate conversation about regeneration—and 3% is about things like condensation. Again, it is never the resident’s fault, but there is more we can do to support that.
In addition to the question of the physical buildings, that investigation perhaps raises the issue of how residents are treated and rights to redress, transparency and accountability. There is some welcome provision here about communication, with resident engagement as part of the Building Safety Bill, but the consumer regulation that will come through the Social Housing White Paper is the really important place for ensuring that we get the right regulatory framework. It is interlinked with this regulatory framework, but it will also come through the regulator of social housing with new consumer regulation. On that front, there is an absolute commitment from us about being open, accountable and transparent, and wanting to have a really strong and positive relationship with residents in the social housing sector.
The Chair
Q
Councillor Renard: I have a quick comment on the last point. When it comes to building safety and other issues, local councils with responsibility for housing, housing stock and tenants have been very quick to respond to the needs of those tenants, as a general rule. Obviously, there may be some examples of where that has not been the case, but by and large local authorities have been very positive and proactive in responding to the building safety issues. I wanted to put that on the record.
Daisy Cooper
Q
Liam Spender: You are quite right that the situation is worsening by the day. People are facing existential questions—do they carry on with their property or not? They are facing unpalatable choices. I think one of the ways that the Bill makes things worse is in relation to works that are required to remove building safety risks, an example of which could be cladding. The Bill makes clear that they are all recoverable through the ordinary service charge mechanism, so it removes any doubt that leaseholders have to pay for other people’s misdeeds and mistakes.
We are already seeing the consequences with cladding, so imagine what it will be like with the next thing that comes down the road. You have seen the stories in the newspaper and on “Newsnight” last week that people are already facing six-figure bills, some people have committed suicide and others are declaring bankruptcy. There is a pall hanging over these people and it is a blight on the housing market, which the Bill does nothing to address. I will let Giles add more colour to that answer.
Giles Grover: Again, everything is a long story. A lot of us have been trapped since very soon after the events at Grenfell when buildings were assessed for ACM, and everything has just snowballed and got a lot worse. Every so often, there are incremental positive steps in terms of funding, but you have to fight tooth and nail for those. As Liam said, and as you said in your question, Daisy, it is families, first-time buyers, pensioners—people from all walks of life who just wanted to fulfil that very British dream of being a homeowner or a flat leaseholder; a leaseholder is not necessarily a homeowner. Just the other day, someone told me that because she is so worried and because there is no detail about the loan scheme, she has accepted an offer that is £35,000—it will not pay off the mortgage—on an under-18m building just to be able to move out. She has a little child as well. That is just in Manchester, but it is happening across the country.
As Liam said, there have been suicides, for a mixture of reasons as well, but people just feel helpless. We are currently trapped. You start off being financially trapped, and everyone focuses on the finances. But then, especially during the pandemic, for a year and a half you are sat in your flat looking at the walls and not able to sleep at night from thinking, “What happens if there is a fire?”
This is people in buildings of all heights and all tenures, with defects of all types. As much as it started as a cladding scandal—we are called End Our Cladding Scandal—it has become a building safety crisis. It is not just cladding; it may be balconies, internal compartmentation or lack of fire protection for steelwork. With all these issues, once they are identified and once you have a proper fire risk assessment—a type 4 intrusive one—you start uncovering the lack of regulations, the lack of oversight and the poor development practice, but we are still being made to pay for it. We are still the ones on the hook for it, despite it being none of our fault. It is an absolute disgrace, and it is unfathomable that it is still happening. Government have done something, but not enough to solve this issue once and for all, to provide that certainty to leaseholders and the housing market, and to help us move on with our lives.
Mike Amesbury
Q
Liam Spender: No. The same builders that have put up buildings with the horrific array of defects that we are seeing are still perfectly entitled to draw on the Help to Buy scheme and the recently announced subsidies for affordable housing. There has been no accountability or payment from the polluter. All that has been offered, which is not in the Bill, is the residential property developer tax, which we do not know the details of. But it is wholly inadequate that it will recover only 13% of the estimated £15 billion cost. The bulk of the cost of the current crisis and/or future crises is being dumped on leaseholders, which is what this Bill does.
Giles Grover: I agree with Liam. It is not holding them to account at all. The latest figures are approaching £15 billion, and developments have made £2 billion since the catastrophic events at Grenfell. Government have supported them through the Help to Buy scheme and through instantly having a stamp duty land tax relief, and there is a mortgage guarantee scheme for first-time buyers that is open to everyone. The figure that always bothers me more than anything is the amount of money that the Exchequer loses every year—billions of pounds—to the zero rating of VAT on construction.
A lot of those things have laudable aims, but do they actually help the supply side? They do not; they are all about demand. Government are happy to praise the economic effects—the jobs, the flow of taxpayer money—and it certainly pans out to support the construction industry. The collective state of industry failure is affecting hundreds of thousands, if not millions, of people. It has taken two and a half years of kicking and screaming to get a bit of money out the Government every so often. Every year there is a little bit more. They keep telling us, “We’re not going to give you any more; we aren’t going to help you out”, but then we get further. There will be a point next year, hopefully, when the Government will say, “Here’s a little bit more”, but everything is a little bit here and little bit there. We are not being helped.
Why are we being forced into a planning tax loan scheme? Why are the Government not forcing the developers to pay that? The simple point goes back to: it was never our fault, it was never anything we did. The regulations are terrible, weak and inadequate. A lot of people knew that for years; the Government were advised of that for years. Builders were allowed to do whatever they wanted and to cut corners. Dame Judith Hackitt says there is a race to the bottom, focusing on profits over safety. But now, we are the ones on the hook to make that right. I do not get how that is at all fair. We need more funding from Government, we probably need more funding from the developers, and we need more funding from the product manufacturers as well. Leaseholders should finally be protected.
Kate Osborne (Jarrow) (Lab)
Q
Liam Spender: I think the whole responsible person regime has not been properly thought out. You cannot see, as parliamentarians, the full detail—that is being developed behind closed doors with industry. You are being asked to put this through without seeing how that very important relationship will work. The fundamental issue with the accountable person and building safety manager is that you would expect to find that regime in a petrochemical refinery, not in a residential building. It is totally unsuited to what needs to be done, massively over engineered, and the cost of it will fall on residents. The Government need to go back to the drawing board and come up with a much more tightly defined set of duties for these people, in order to avoid a situation where we end up with the advice notes, on steroids—which is a real risk.
Giles Grover: I would echo those comments. The difficulty is, again, that the legislation and the guidance are still not really there to help us understand how it will work. There are potentially moral hazards between the roles of those accountable persons—the building safety managers—in terms of how they will coalesce. There might be different accountable persons, or responsible persons, depending on the building. It still feels like there is no effective control. I do not think anybody wants to be an accountable person right now; the competencies required are a pretty wide skill set, and I fear that they will not be able to get insurance. I think we need a lot more work on how the accountable person will interact with the responsible person.
The Chair
Giles, do you want to add anything to that?
Giles Peaker: I think that is right. In some ways, the Bill is actually inviting more litigation through the extension of limitation. To be honest, that is probably the one thing that will not happen, for reasons we will probably get on to—or it might happen, but to a very small degree. I have no doubt that there will be considerable tribunal activity over the new requirements in clause 124, from a leaseholder perspective. The advice to developers might be quite expensive, but it will be very short and sweet: “Limit your liability in any way you can”. SPVs will be the way they do that.
Mike Amesbury
Q
Giles Peaker: The extension of limitation is a start. The problem with suing developers and builders has always been twofold; limitation is one, because problems usually do not manifest themselves within the first six years. The other problem is finding somebody worth suing, and that is the big problem. I get a lot of inquiries about potential new build cases. Most of them are out of time, but most of them also do not have anybody they can actually sue, because developers have liquidated or wound up. One thing that could be considered—although it is difficult and goes against some fundamental tenets of English company law—is to allow tracing profits, to make parent companies liable for special purpose vehicles. That would be one way to cut out the simple “take the profits and run” approach. Justin suggested properly enabling the suing of building control; that is currently off the table, but it might improve the attention to detail, although the professional insurers are already going bust.
Justin Bates: Again, if you are feeling adventurous, you could make directors liable for the acts of their companies—make them personally liable for any building defects. That is not as radical as it sounds—you did that to directors of rogue landlord companies in the Housing Act 2004 and the Housing and Planning Act 2016. I appreciate that every company director hearing this is having a wince and every company lawyer is pulling their hair out, but you have done it twice in relation to rogue landlords, so it is not that big a stretch to go to rogue developers.
There is a danger in asking litigation lawyers for policy advice because every problem that I see involves suing people. That is what I do for a living, so take everything I am about to say with a large pinch of salt. Fundamentally, Parliament has to decide what is the nature of the current building safety crisis that it is dealing with. Is it one that requires a collective response or an individual response in individual buildings? The Bill is about individual buildings. If you are lucky enough to be a leaseholder or freeholder who benefits from the Defective Premises Act 1972 extension and you can find someone worth suing, there is some good stuff for you in here. I personally think that would be, at most, 15% of affected buildings at the moment, and you have got the June 2020 National Audit Office report if you want to see MHCLG’s response to that. It thinks that even that would be a higher figure.
Likewise in clause 120 and the restrictions on when you can pass service charges on. There will be some buildings that benefit from that, but it is all happenstance. You are not solving the collective problem. You are creating some remedies for some buildings. If you think this is a collective problem, the only way is for some collective body to take control of it, such as central Government, to fund works, at least up-front—that would be one solution—and then recoup.
You could have a scheme, which I understand is a variant of what is in Australia, whereby central Government fund works on affected properties but a condition of the funding is that it requires all affected parties to assign their rights to central Government, who then get round to suing when they feel like it, because central Government do not really care if their litigation takes five years to work through. Central Government will still be here in five years’ time, whereas individual leaseholders do not have five years to wait for cases to pan out. There is lots you could do if you want to adopt a more collective approach, but you need to be clear that this is a very individualistic response here. That will help some people, but probably not many.
Selaine Saxby (North Devon) (Con)
Q
Justin Bates: If the Bill works in the way it is envisaged, you should at the end of the construction stage of the building be able to go to one place and have all the documents relevant to that building. You should have the plans, the design and so on. One problem that you have seen coming out of the Grenfell inquiry, for example, is that no one had all of the plans for the building. Firefighters went in and discovered there were two floors that did not exist on the plan that they had. If this works, this will be better for pulling together a centralised and collective set of records, which will help. That is the obvious one that I can think of, comparing it with a problem that we know exists. Can you think of any others?
Giles Peaker: There will be more accountability via the accountable person, certainly from the point at which the building is occupied. I am not clear how far that accountability will transfer back to the people actually responsible for the problems, if there are problems. The basic idea of having a person accountable for the building’s safety is in itself a good idea, but the complexities that follow on are immense. I am not sure that the issue of establishing who is the accountable person, particularly in properties where there might be multiple people who would be candidates or would fall under the list of who would be an accountable person, has been adequately solved.
How can I put it? I am fine on the principle; I am less certain about the practice, particularly as we are still waiting for statutory instruments—quite a lot of them—on how the accountability will be seen through. A lot of it will be down to the approach taken by the regulator. As we have seen with the regulator of social housing and so on, that can be quite a variable approach.
Mike Amesbury
Q
Giles Peaker: We have been wracking our brains about this one. I know the clause that you are referring to. We are not entirely sure why it is there. I think it is probably just to avoid there actually then being a human rights challenge to BSA on whatever relatively spurious basis. I cannot see a valid human rights challenge, and certainly not in terms of the removal of the six-year limitation. A limitation defence is not a property for the purposes of article 1 of protocol 1; they could not pull an article 1 complaint.
I do not think that there are any article 6 issues, because limitation does not stop you being liable; it just stops you being sued. You are still responsible for the problems. If the period for which you can be sued is extended, where is the article 6 problem? You will still get your fair trial in court. After wrestling with it, I cannot see one.
Justin Bates: What has almost certainly happened is that because we are designing for legislation with retrospective effect, the draftsman of this has realised that retrospective law is something that does flag up human rights concerns. You can do it—your Parliament is sovereign; you can do whatever you want—but it does flag up human rights concerns. Rather than having a fight about whether there is a human rights defence or not, the draftsman has said, “If anyone ever manages to succeed in one, this will be the outcome”.
These words could be hostage to fortune, but I suspect that it is a clause that will not go very far because you would see more litigation about whether the defence was available at all. This assumes that the defence is available, and it has decided what the outcome will be. I can understand why it has been put in there, because if it is not in there and a developer brings a human rights defence and wins, what happens is that the developer is still liable in damages, but a declaration of incompatibility is made, and you then have to deal with your incompatible legislation. I can see why the possibility of that has been headed off at the beginning, but I do not think it will go anywhere. I know that Giles takes a slightly different view.
Giles Peaker: I do take a slightly different view. I have a horrible feeling that that clause will invite people to try, which would inevitably mean at least three to five years of litigation on that issue, but we will see.
Daisy Cooper
Q
My question, to follow up on Rachel’s point, is this. Based on what is currently published in this Bill, are you able to ascertain whether or not there is a situation in which the two roles that Rachel mentioned—the responsible and accountable people—might be diametrically opposed in what they are legally obliged to do, or are you simply of the view that not enough has been published to ascertain that?
Justin Bates: At the moment, I would lean towards the latter. I do not think the planning analogy is a good one, because this is not like two elected bodies, each with their own political concerns, fighting over where the houses should be; it is between two supposedly neutral public authorities. I see the co-operation duty as closer to the duties that exist under the Housing Act 2004, whereby local authorities and fire brigades have to work together when they are doing certain kinds of inspection.
I am not for a second pretending that you do not get areas of conflict. In pure housing law disputes between district councils and county councils about homeless children, you get enormous fights—a very common fight is about whether it concerns housing or social services—so I am not saying that there are no fights to be had. As far as I am aware, that problem does not come up under the Housing Act. That is probably the closest analogy. Can I think about it and send something in afterwards if I think of any particular problems?