2Response to the consultation
58.On 6 June 2019, the Government published a consultation into its proposals for reform of the building safety regulatory system.57 The consultation sought views on the Government’s proposals for a new building and fire safety regulatory system, including: the scope of the new regulatory regime, the role of dutyholders in the system, proposals to give residents a stronger voice, regulatory structures to strengthen oversight, and a new regime of enforcement and sanctions. This chapter addresses each of these areas in turn, drawing on the evidence we heard during our evidence session on 8 July and in written submissions.
Scope of the regime
59.The Government’s consultation sets out the proposed scope of the new building safety regulatory regime:
[ … ] the regime should cover all multi-occupied residential buildings of 18 metres (approximately 6 storeys) and above. We propose to apply the reforms at the design and construction stage to new builds and, as appropriate, to major refurbishments. We propose to apply the reforms at the occupation stage both to new builds and to existing buildings (after a suitable transition period).58
The Government said it was their intention that, “over time, additional buildings–for example where vulnerable people sleep–may be brought into scope on the basis of further work to understand risk profiles that apply to different categories of buildings.”59 Further, the Home Office is also consulting on whether these reforms should be applied to higher risk workplaces under the Fire Safety Order.60
60.Our witnesses told us that the Government should not establish the scope of its regime on the basis of height. Lord Porter, representing the Local Government Association, told us height was not the only relevant factor:
The height is a bit of a red herring, really. It is the complexity of the building and the complexity of the needs of the people who live in the building. A five-storey building full of elderly, infirm people is probably more of a health risk than a seven-storey building full of relatively fit young people. A building with two fire escapes is a lot better than one with one fire escape. The height is missing the point; it needs to be the complexity of that building. Overall safety factors should be taken into account, not just an arbitrary height.61
61.Adrian Dobson, from the RIBA, agreed. He told us that “the risk to people in buildings is not just about height”, but that risk was a combination of factors, including whether a building is where people sleep, or where there are people with limited mobility.62 Richard Silva, from Long Harbour, described the possibility of a “risk matrix for each building to understand exactly what the right solution is”.63
62.However, Dr Nigel Glen, representing ARMA, told us that one of the risks of widening the scope of the regime would be the capacity of the industry and regulator to accommodate that.64
63.Lord Porter also called for greater consistency with regard to the scope of the regulatory regime. He noted that, in the third chapter of the consultation, the Government describes the new gateway points that must be met before permission will be granted for the next stage of development; Gateway One—before planning permission is granted—applies to buildings over 30 metres in height, whereas the second and third Gateways—before construction begins and before occupation begins—applies to buildings over 18 metres in height.65 Lord Porter recommended that, were the Government to go ahead with a scope for the new regime based on height, there should be greater consistency between these gateways.
64.We also asked our witnesses about what might be learned from the June 2019 fire in Barking, east London, particularly with regard to the proposed scope of the new regulatory regime.66 It was noted by Adel Chaoui, representing Grenfell United, that the 18 metre threshold for the combustible cladding ban—and the proposed scope of the new regulatory system—”made no difference to Barking.”67 Roy Wilsher, representing the National Fire Chiefs Council also described the scope of the combustible cladding ban as “inadequate”, and called for it to be extended to all buildings where there are vulnerable people, such as hospitals and care homes.68
65.The scope of the new regulatory system should not be determined by height alone. Instead, the new regime should apply to all buildings where there are vulnerable people, while other determinants of risk should also be taken into consideration. While a more complex risk matrix might lack the clarity of a simple height threshold, restricting vital safety measures to buildings above 18 metres in height is inadequate.
66.We acknowledge that the Government intends, over time, to bring more buildings within the scope of the regime. We also heard concerns around the capacity of the industry and regulator to accommodate a wide scope from the very beginning. However, as we have noted earlier in this report, the pace of change in the sector has already been far too slow, and the Government should be ambitious with the scope of the new regime from the outset, setting out timescales to bring different types of buildings within scope.
Dutyholders
67.Chapter Three of the consultation describes the Government’s proposals for dutyholders to be involved in the design, construction and ongoing management of buildings within scope.69 During the design and construction phase, there would be five dutyholder roles: client, principal designer, principal contractor, designer and contractor. During the occupation phase, the Government proposes the introduction of a new ‘accountable person’, who would be legally responsible for ensuring that building fire and structural safety risks are reduced, and who must also name a ‘building safety manager’, responsible for carrying out the day to day functions of ensuring that the building is safely managed.
68.We heard concerns that the Government’s proposals could lead to higher costs for leaseholders. Dr Nigel Glen told us that requiring all high-rise residential buildings to have building safety managers could be expensive:
It will be expensive for leaseholders, I believe. That is a concern, but we just have to be upfront about that. These people are not going to be cheap. Every building needs a named individual who is available. That will fall fair and square on the leaseholders as part of the service charge, which could be an issue. That is probably what will happen.70
69.Several witnesses expressed concerns that the roles of ‘accountable person’ and ‘building safety manager’ during the occupation phase would be too onerous and most people would be unwilling to take it on. Lord Porter asked:
Does anybody here fancy being one? Does anybody fancy taking on that responsibility? [ … ] That is the real risk with it: that it becomes such an onerous position to take on that nobody actually does it for real. It becomes a charade. It is the same as how you can get directors of companies who are not necessarily of director-quality material.71
This is particularly relevant in the context of the Government’s ambition—and this Committee’s call—for more multi-occupancy residential buildings to be held in commonhold. Dr Nigel Glen told us that this proposal would be “absolutely counter to that” ambition, because “ it is a very rare person who would be prepared to put their name down as an amateur unpaid director on a commonhold board, [Resident Management Company] board or [Right To Manage] board and potentially end up in prison.”72
70.The Government has proposed that the accountable person would, in most cases, be the relevant building owner, but could also be a management company, such as those with responsibility under the lease for collecting and discharging service charges or a right to manage company.73 However, Dr Nigel Glen warned that managing agents would not want to take on this role:
If managing agents are made the accountable person, it will be very damaging to the industry. As you mentioned, the profitability just is not in there to cover yourself for insurance. The average profit is probably about £10 per year per unit, which is risible; 5.5% is the average return on equity. That is a problem.74
71.Richard Silva, however, suggested that people would be willing to undertake these roles, so long as they had sufficient control:
You need to be able to control what people do inside their own flats, which is controversial. If there is a concern that there is inappropriate fire safety behaviour behind the front door of somebody’s unit, how are we going to deal with that? That is a much more complicated point.75
72.Other witnesses were supportive of the principle of a single dutyholder during the occupation phase. For example, Roy Wilsher told us that, from the perspective of fire and rescue authorities, “it would certainly help us to enforce regulations if we knew who to go to.”76
73.The Government is right to propose a new dutyholder regime with individually-held responsibilities across the whole life-cycle of a building. However, there are several challenges that will need to be overcome, particularly around the significant levels of personal risk likely to be associated with being an Accountable Person and Building Safety Manager during the occupation phase of a building, particularly as professional freeholders may decide to exit the UK market following the Government’s announcement that future ground rents will have no monetary value. Making these roles attractive to qualified individuals will be vital. It will also be important to ensure that any costs associated with these new roles, which are likely to be passed on to leaseholders, are not excessive.
74.We believe that the Government’s definition for an accountable person is too wide and potentially poses a risk to the viability of many management companies. The Government should clarify that it is the building owner, the freeholder, who should always be the accountable person. Where a freehold has a complex ownership structure, the accountable person should be a board member of the freehold company.
Residents’ voice
75.The Government says that it intends “to empower residents within a new building safety system with residents at its heart.”77 It makes proposals around the proactive provision of information to residents, including the measures in place to mitigate potential fire risks.78 Residents should be engaged with through developing and implementing a Resident Engagement Strategy, which would include a management summary setting out how the accountable person will deliver resident involvement and participation in their buildings, and an engagement plan for residents setting out how the strategy will work in practice.79 The Government says it is considering whether there should be a requirement for residents to cooperate with the accountable person to keep the building safe.80 Further, the accountable person should implement an internal complaints process, with residents able to escalate concerns to the building safety regulator if they feel these are not being dealt with appropriately.81
76.Edward Daffarn told us that Grenfell United had identified improving tenants’ voice as one of the two most important elements of their campaign to fundamentally change how people who live in social housing are treated:
The reason they are the most important to us is that they were where we were fundamentally let down [ … ] It was not as if we were not highlighting the kind of abuse we were experiencing. We were highlighting it and we were ignored. The idea that those same agencies, the same dog, the same kennel, can respond to what we were saying is not acceptable to us [ … ] We are asking for tenants’ voice, so residents who live in social housing are listened to.82
77.Mr Daffarn explained that many social housing residents were still not having their voices heard by those responsible for the management of their buildings. He told us that many residents found the most effective way to have their voices heard was through social media, and that this was not good enough:
The truth of it is that, at the moment, if you live in social housing and you have a complaint about where you live, whether it is mould or health and safety, the primary way you get this complaint addressed is by getting a mobile phone, taking a photograph, uploading it on to Twitter and hoping you can embarrass your housing provider enough that it does something about it. That is not good enough post-Grenfell.83
He called for new mechanisms through which tenants’ voices could be heard, such as elected representatives, tenants’ unions or residents’ unions, with the broad principle that “it needs to be something that comes from the bottom up, rather than top down.”84
78.We heard that the Government’s proposals would make a difference to how residents are listened to. Victoria Moffett, representing the National Housing Federation (NHF), told us the proposals would change how housing associations manage buildings.85 She said there were several examples of housing associations which are reviewing how they provide fire safety information and escalate concerns within their organisations. Dr Nigel Glen told us that ARMA was proposing to run a trial of the Government’s proposals, and noted how technology would play an important part in this process.86
79.The Government is absolutely right to prioritise measures to strengthen the voices of residents concerning building and fire safety. This is one of the most important lessons from the Grenfell Tower fire; that residents must be listened to, their concerns need to be taken seriously, and mechanisms should be in place so residents can escalate their concerns if they do not feel these are being adequately addressed.
80.Residents’ voice is an issue, of course, that goes beyond fire safety and must form a central part of the next Government’s social housing reforms. It is unacceptable that some residents continue to feel that the only way to get their landlords to take their concerns seriously is to seek to embarrass them through social media. We are concerned by the lack of progress around the Social Housing Green Paper since its publication in August last year, and call on the Government to set out a clear timetable for action.
Oversight mechanisms
81.The fifth chapter of the Government’s consultation sets out several proposals concerning the oversight of the building safety and wider regulatory regime.87 The Government proposes the establishment of a single building safety regulator, which would have responsibility for oversight of the new regulatory regime for buildings in scope; setting standards; advising Government on changes to the scope of that regime; and oversight of work to drive increased competence of professions and trades working on buildings across the whole of the built environment.88 The consultation also proposes a new Industry Committee, strengthened oversight and regulation of construction products, and an independent periodic review of the building regulation system.
82.The proposal for a single building safety regulator is particularly noteworthy because it differs to Dame Judith Hackitt’s recommendation for a Joint Competent Authority and a separate Overarching Competence Body. The Government argues that the formation of a single body in an already complex landscape of national and local regulators will avoid the introduction of further complexity into the system.89
83.Roy Wilsher told us that the National Fire Chiefs Council had no objections to the proposals and would want to be involved in the new regulator, recommending that the body have the power to set standards and perhaps be able to inspect or audit people and deal with dispute resolution.90 Adrian Dobson told us that the RIBA also welcomed the clarity that a national regulator would bring to the system:
When Dame Judith’s first report came out, there was a great deal of vagueness, because at the time she was not able to say whether it would be done regionally, nationally or locally. A single regulator that has responsibility for the overall regulations as well as the system is probably to be welcomed. It is not unusual in industries where you bring in regulation to have that single regulator.91
84.On the Government’s proposal for an independent periodic review of the building regulation system, Mr Wilsher supported the five-year time frame that had been proposed.92 Dr Jonathan Evans recommended that the public should be involved in the process of reviewing the regulations:
[ … ] we talked a lot earlier on about residents having a say when things go wrong in their properties and so on, but, equally, there is not enough representation of the public when it comes to creating the regulations in the first place. There is no accountability. Over the last 20 years, from Garnock and Lakanal coroners and so on, we have seen the anonymous body that comes up with our regulations practically ignore these changes that have been recommended by people like yourselves. There should be some representation of the public when it comes to creating regulations so they can actually force changes.93
85.We agree with the Government’s proposal to establish a single national building safety regulator, as it is sensible to seek to limit complexity within the system. However, clarification is required as to how the national regulator will operate at the local level. It will be important to ensure that local authorities and fire and rescue authorities continue to play a central role in the new regulatory system, and their influence in local decision making is not diminished.
86.The Government is also right to recommend the implementation of an independent periodic review of the building regulation system. The Government should ensure, however, that residents’ representatives are included in any review of the building regulations, to ensure that the views the public are suitably reflected in any future regulatory regime.
Strengthened enforcement and sanctions
87.The Government’s consultation puts forward proposals to improve compliance and strengthen enforcement and sanctions within the new system, noting the Independent Review’s conclusion that there had in the past been inadequate enforcement by regulators and limited deterrence against non-compliance.94 The Government described a three-step process to having “a tougher building safety regulatory framework” and “credible and effective enforcement and sanction powers.”95
88.Roy Wilsher expressed his view that sanctions should be tough.96 Dr Jonathan Evans agreed, noting that people’s lives were at stake, but he cautioned against sanctioning people for failures that were outside of their control.97 More generally, he criticised the Independent Review for failing to address the causes of low levels of competence in parts of the industry, and suggested that a greater focus should be placed on reforms to encourage higher-calibre individuals into the sector.98 He noted, for example, concerns around diversity and the gender pay gap, and suggested that addressing some of these issues could also help to attract more competent individuals into the industry.
89.The Government is right to establish a tough building safety regulatory framework with effective enforcement and sanction powers. However, the Government should also reflect on the causes of low levels of competence and support the industry in addressing issues that could help to attract higher-calibre individuals into the sector.
Funding implications of the Government’s proposals
90.The Government estimates that the total aggregate cost for the policy proposals put forward in its consultation to be between £312 million and £570 million per year.99 The benefits of the building safety programme were estimated to be £190 million to £380 million per year.
91.Both the LGA and the NHF called on the Government to ensure that sufficient funding will be made available for the implementation of the new regime. In a recent press release, the NHF said, “The Government needs to ensure the implementation of the new system is fully funded so that housing associations can ensure existing residents are safe in their homes, and continue their other essential work to tackle the housing crisis.”100 Similarly, Lord Porter warned:
We have not seen all the costs that are likely to be necessary to implement it in the way the Government want, but the risks of it not being sufficient are great, because generally, when central Government regulate local government, we get a lot of wish list and not a lot of cash. If you are not prepared to pay for it, do not clear your conscience by wishing that we did it. The Treasury has to be prepared to write the cheque for whatever is necessary. If the Government are going to be serious about it, it is not going to be a cheap solution.101
92.Similarly, Roy Wilsher warned that fire and rescue authorities would need additional funding to meet the new responsibilities set out in the consultation, particularly prior to Gateway One:
[ … ] we are concerned about some of the resource implications. We have been subject to austerity, the same as everyone else, but we have not had any protection over 10 years. We have lost 40% of our inspecting officers in 10 years. We are playing catch-up on the current regulations, let alone the new responsibilities that will come. The Home Office recognises that and we are in discussions about how we might resource that in the future.102
93.The proposals that the Government has put forward are likely to be expensive to implement, particularly for councils and fire and rescue authorities. The Government must ensure that new burdens funding is made available where it expects public bodies to take on new responsibilities.
57 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019
58 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, para 34
59 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, page 13
60 The Regulatory Reform (Fire Safety) Order 2005: call for evidence, Home Office, 6 June 2019
66 Barking fire: Blaze destroys 20 flats in east London, BBC News, 9 June 2019
69 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, Chapter Three
73 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, paras 160–1
77 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, page 16
78 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, para 253
79 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, para 263
80 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, para 278
81 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, para 283
87 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, Chapter Five
88 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, para 310
89 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, para 310
94 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, page 17
95 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, page 17
99 Building a safer future: proposals for reform of the building safety regulatory system, Ministry of Housing, Communities and Local Government, 6 June 2019, Annex A: Analytical Overview, para 2
100 National Housing Federation responds to the Government consultation on building safety, National Housing Federation, 6 June 2019
Published: 18 July 2019