Pre-legislative scrutiny of the Building Safety Bill Contents

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4Occupation

Accountable person

Background

133.The provisions in Part 4 of the draft Bill extend the dutyholder regime into the occupation phase of higher-risk buildings through the introduction of “accountable persons”, who will be the dutyholders in occupation. Under clause 73, the accountable person is required to take “all reasonable steps” to prevent a “major incident” arising from a building safety risk. Under clause 74, the accountable person must prepare a report (a safety case report) on the building safety risks in their building.

Identifying the accountable person

134.Clause 61 defines “accountable person”, by reference to a possessory legal title to, or repairing obligation in respect of, any part of the common parts of a building. As defined, the accountable person may be an individual, partnership or corporate body. It is clear, as subsection (6) acknowledges, that in some higher-risk buildings there will be more than one “accountable person”. This rests awkwardly with the duties imposed throughout Part 4 on “the accountable person”, and the emphasis Dame Judith placed, in her report, on having “a clear, identifiable dutyholder” (though she also acknowledged the possibility of multiple dutyholders).177 Responsibility for repair of common parts will often be divorced from ownership of those parts, particularly in the case of leases in blocks in which there is a management company, a third party responsible under the lease for repairs. The Government takes a power, by subsection (6) to modify how Part 4 applies when there is more than one accountable person. But there are no draft regulations, so it is impossible to assess how this will work in practice. Working Group 8 told us that “additional guidance will still be required to ensure a clear AP arises in complex ownership structures”.178

135.Sarah Albon of the HSE explained that the provision for there to be more than one accountable person is merely a reflection of existing legal complexity.179 We were told nonetheless that it could contradict the recommendation in the Hackitt report for a whole-building approach to building safety. For Victoria Moffett, from the NHF, the point of “greatest concern” was how to deliver such an approach with more than one accountable person and hold them to account “on areas where they are not directly responsible”. She said: “I do not think that has been entirely worked through yet.”180 Martin Boyd, chair of the Leasehold Knowledge Partnership, agreed that on complex sites with multiple accountable persons the “idea that you have one person sitting above that who is entirely responsible is rather difficult.”181

136.We are concerned at the lack of detail in the draft Bill, or any draft regulations, identifying how the accountable person regime will operate in the case of multiple and complex ownership structures and repairing obligations, particularly where there are multiple accountable persons. This is another aspect which is crucial to the operation of the scheme of the draft Bill yet remains unworked. It will need to be scrutinised closely when the Bill is introduced.

137.We recommend that the Bill provide for a general duty to co-operate on accountable persons in respect of buildings for which there are multiple accountable persons and that the Government publish statutory guidance alongside the Bill setting out the sorts of behaviours that would be expected under such a duty.

Relationship between accountable person and responsible person (Fire Safety Order)

138.We heard significant concern about the tension between the draft Bill and the Regulatory Reform (Fire Safety) Order 2005, which provides for premises to have a responsible person. The responsible person182 under the Order will not always be the same as the accountable person under the draft Bill but will doubtless sometimes coincide. The Order applies to a wider range of premises, but in a residential block only to the common parts. The responsible person is placed under a variety of duties in relation to fire risk, many of which are more detailed than under the draft Bill. Unlike the draft Bill, the Order deals only with fire risk and does not expressly provide for the recovery of the responsible person’s costs.

139.To facilitate a whole-building approach to building safety, as recommended by the Hackitt report, clause 102 places a duty to co-operate on accountable persons and responsible persons. Despite this, some of the evidence still expressed concern about the relationship and possible overlap of responsibilities. Nottinghamshire Fire and Rescue felt that “the proposed definition of accountable person requires a more defined definition as currently this appears to overlap with … the responsible person”.183 Working Group 8, whilst welcoming the alignment with the Fire Safety Order, thought it would not “fully negate the potential for gaps, especially in mixed use and other complex ownership structures”.184 The London Fire Brigade acknowledged the provisions in clause 102 but remained concerned about the existence of two overlapping regimes and recommended a mechanism for appointing a lead dutyholder. It also observed, as did the National Housing Federation, that the provisions were at odds with the intent of the Order and the Hackitt review to simplify fire safety legislation.185

140.We are concerned about how the relationship between accountable persons and responsible persons will work in practice and are disappointed the Government have not taken the opportunity to rationalise all aspects of building safety—at least as regards fire risk—within a single, consistent, piece of legislation.

141.In the short term, we recommend that the Government publish statutory guidance alongside the Bill outlining how it expects accountable persons and responsible persons to co-operate in practice. In the long term, we recommend that the Government review the operation of the two regimes with a view to rationalising and simplifying the legislation.

Residents as accountable persons

142.We heard repeated concerns about the application of the accountable person regime to buildings with ownership structures involving more than just freeholder and lessee, particular those managed by residential management or right-to-manage companies, or owned by commonhold companies. FirstPort, the property management company, told us that many of directors of these residential management companies (usually residents) “will lack the time, resource and expertise to carry out the role”, and that a survey of RMCs in its portfolio had found that many would “be reluctant to stay in post and adopt such onerous personal liabilities should they find that the RMC is designated the accountable person.”186

143.The same concern was echoed by the ARMA, which thought it likely that the “over emphasis on penalising the accountable person, which appears to be prevalent currently, will discourage leaseholders from volunteering to be directors”, a view echoed in relation to commonhold.187 As a partial remedy, it recommended that the Bill explicitly permit RMCs to appoint professional directors (currently many leases forbid the appointment of non-residents to serve as directors of RMCs) to assume the responsibilities of the accountable person, though it acknowledged that this would result in considerable extra costs.188

144.Even where lay directors are willing to assume the responsibilities of the accountable person, there remained concern that they would lack the time and expertise to understand and discharge them properly. To mitigate this problem, ARMA suggested that the building safety manager, who will be technically more competent than the accountable person, be given a duty, either in the Bill or secondary legislation, to check that the accountable person is aware of their responsibilities and to inform them of those responsibilities if they are not.189 This seems both sensible and easily done.

145.We believe that the Bill could easily mitigate the problem of some accountable persons lacking the time or expertise to understand their responsibilities adequately through the inclusion of a duty on the building safety manager to make accountable persons aware of their responsibilities under the Bill.

146.We recommend that the Bill place a duty on the building safety manager to inform the accountable person of their responsibilities under the Bill.

Duty to prevent a major incident (clause 73)

147.Giles Peaker told us that clause 73, which requires the accountable person to “take all reasonable steps” to prevent a major incident, lacked sufficient clarity. As he pointed out, clause 73(7) defines “major incident” as “an incident resulting in … a significant number of deaths, or … serious injury”. He said that without a more precise definition it would not be sufficiently clear when the accountable person’s duty in this clause wold be engaged.190 The Specialist Engineering Contractors Group feared that the definition of “major incident” set too high a threshold.191 The London Fire Brigade, too, thought the definition too vague.192 We note that the accountable person commits an offence if they breach this duty and it actually places one or more people at significant risk of death or serious injury.193

148.We think that the duty on the accountable person to take all reasonable steps to prevent a major incident lacks clarity and that without statutory guidance, especially on the meaning of “all reasonable steps”, the provisions will likely be a source of uncertainty and concern for those assuming the role of accountable person. We are also persuaded that the definition of “major incident” sets too high a threshold.

149.We recommend that the Government publish with the Bill statutory guidance describing the kind of actions that accountable persons will have to take to comply with their duty to “take all reasonable steps” to avoid a “major incident”. We also recommend that the definition of “major incident” be amended to include incidents that might reasonably foreseeably cause death or serious injury.

The safety case report (clause 74)

150.Under clause 74, the accountable person will be required to prepare a safety case report for their building containing their assessment of the building safety risks in their building and the detail of any steps taken under the duty in clause 73 to prevent a major incident. According to Peter Baker, director of building safety and construction at the HSE, the safety case report will be critical to the management of high-risk buildings, not just a “regulatory hurdle”.194 There was some concern, however, that it could be a particularly onerous responsibility and that people needed more detail about precisely what information would be required. Victoria Moffett again:

The building safety case, in particular, represents a significant amount of work. It is a perfect example of one of the things the Government could provide some interim direction on, such as what a safety case might look like, so that we can direct our resource to making those exist until the legislation passes, with the knowledge that the work we have been doing so far is accurate.

151.The Institute of Workplace and Facilities Management agreed that “change will be enabled and effected” only when the industry knows what the safety case report will look like and emphasised the importance of appropriate transition times, especially for complex legacy buildings, as did the British Property Federation.195 We agree that the preparation of safety case reports could be a heavy obligation on accountable persons, although we were somewhat reassured by the evidence on this point from Sarah Albon, chief executive of the HSE, in which she indicated that the regulator would expect the reports to be compiled in tranches and prioritised according to a combination of risk factors, including the vulnerability of residents, the construction materials and building height.196

152.We agree that the safety case report is one of the most onerous responsibilities on the accountable person and that in order to prepare for implementation the industry will need to know what the safety case report will look like and what information it must contain. We therefore recommend that the Government publish guidance alongside the Bill outlining what information safety case reports will be required to contain.

Building Safety Manager

Role of the building safety manager

153.Clause 67 requires the accountable person to appoint a building safety manager for their building. As set out in the Bill, their principal duties will be to manage the building in accordance with the safety case report and to provide prescribed information to the regulator in accordance with the mandatory reporting requirements established in clause 78. According to the explanatory notes, the building safety manager could be an individual or an organisation. As we heard in evidence, the Bill, in establishing the role of building safety manager, creates an entirely new profession.197

154.We share the enthusiasm and ambition we heard for the principle of the building safety manager. Richard Silva, executive director of Long Harbour, told us that, with an appropriate focus on vocational training and academic excellence, it could be an aspirational role.198 Dame Judith Hackitt agreed:

There is quite an array of people who could aspire to those roles if we describe them appropriately, in a way that talks about what they are there to achieve rather than talking about the negatives that might be associated and asking, “Who would want to do this job?” Actually, I think there are quite a few people out there who would want to do this job because it is important and we should talk about that more.199

Competence framework

155.Despite this, however, we heard concerns about the role of the building safety manager that went to the heart of the new building safety regime. The most serious were around publication of the competence framework and the availability of competent persons to fill the role. Sir Ken Knight, from the Building Safety Independent Expert Advisory Panel, described the role as “pivotal” and said that “to get people in the time period between now and enactment of the role of the building safety regulator” the industry needed to know “what competencies are required and, undoubtedly, what training and assurance those people need to take up those roles.200 G15 said that “greater visibility of the competencies” would be “essential” if building owners were “to ensure their employees are trained, competent and adequately supported.”201 The National Housing Federation said it would be impossible to “assess demand versus existing supply for personnel with the requisite skills, knowledge and experience until competence requirements are clarified”.202

156.We accept the argument that without sight of the competence framework the industry cannot begin to plan properly for the new regime. We note, however, as did much of the evidence, that the Department established an expert panel, known as Working Group 8, to develop the competence framework for building safety managers and that that this group published its final report, Safer people, safer homes: Building Safety Management, near the end of our inquiry, on 5 October.203 The Government has not yet indicated, however, whether it intends to adopt its proposals.

157.There was support for the policy intention, set out in the explanatory notes, that the building safety manager could be an organisation as well as an individual.204 Victoria Moffett, from the National Housing Federation, said the “idea that those skills might exist in one person seems like quite a tall order, so we have been pleased to see that the Bill would permit a building safety manager to be an organisational role”.205 Others were concerned, however, that most accountable persons, even where they were management companies, would not have the necessary resources to perform this function themselves. Dr Nigel Glen, CEO of the ARMA, told us that whilst some of the larger managing agents would be able to develop in-house BMS capability, most would have to contract it in. On the availability of competent persons, he said: “That is a point of great concern. You introduce legislation that requires us to employ people who do not exist, so what do we do?”206

158.We agree that the role of building safety manager and the supply of adequately skilled individuals to fill the role will be critical to the success of the new building safety regime for higher-risk buildings. We also agree that without sight of the competence framework the industry cannot begin to recruit and train individuals to fill the role and that unless the Government publishes the competence framework soon the implementation of these provisions will be seriously impeded.

159.The Government must announce before the Bill is published whether it intends to adopt the competency framework for the role of building safety manager proposed in the report from Working Group 8. If it does not, it must publish with the Bill the full details of the framework it does intend to adopt.

Accreditation and registration

160.We heard strong support for industry-led qualification and accreditation schemes for prospective building safety managers and for a central register of competent people, held either by the regulator or an industry body, to give accountable persons and the regulator confidence in a person’s ability to undertake the role.207 We were told that accreditation would be essential to training and upskilling professionals in the sector and that it should be done to common standards. In that regard, we heard helpful evidence from the BSI about the built environment competence standards it was developing in consultation with the sector.208 Some of the evidence expressed support for the adoption of these standards.

161.There was as much support for a central register, which ARMA said would be a “single source of truth” giving accountable persons, residents and the public greater confidence in the competence of building safety managers,209 although there was some disagreement about who should hold it. Working Group 8 said it could be held by industry representatives, professional bodies or the regulator, but the Institute of Workplace and Facilities Management thought it should be industry-led. Either way, Working Group 8 urged that it be given a statutory footing, either in legislation or in statutory guidance.210

162.We think that a national system of accreditation and registration for building safety managers will be critical if stakeholders, particularly accountable persons, are to have confidence in the competence of persons undertaking that role, and that any accreditation should be done to agreed common standards.

163.We recommend that the Government provide, either in legislation or in statutory guidance, for a national system of accreditation to agreed common standards and for a central register of building safety managers.

Access to professional indemnity insurance (building safety manager)

164.As with dutyholders in design and construction, we heard particular concern that building safety managers could find it difficult to access professional indemnity insurance. The British Property Federation told us that “a significant concern for a variety of stakeholders” was “the ability of new role holders to obtain professional indemnity insurance for their new roles” and that “the breadth of the responsibilities of Building Safety Managers may make it difficult for them to obtain viable PI.”211 Graham Watts, from the CIC, said he was “particularly concerned about the building safety manager role” as there was “no product for that at the moment with which we can make sure that these roles are insured”.212 The Institute of Facilities and Workplace Management told us there were “concerns around the potential lack of future BSMs linked to the issue of professional indemnity” and that given “the duties and responsibilities linked to the BSM role, liability for the role is going to have to be paid for.”213

165.We believe that access to professional indemnity insurance during the occupation phase is a problem mainly likely to affect building safety managers, rather than accountable persons. In most cases, freehold owners and management companies will have no choice about becoming an accountable person; it will be a result of their position set by property law. Directors of a leasehold management company could be liable (under clause 114) if they consent to or connive in an offence, or their negligence causes the offence, which might deter leaseholders from volunteering as directors of a residential management company,214 but there are often legal barriers to insuring against criminal liability (which would also render any deterrent effect nugatory), so it is not clear that professional indemnity insurance would help. Building safety managers, on the other hand, might face (at the very least) contractual liability to the accountable person appointing them.

166.We agree that building safety managers could well struggle to access professional indemnity insurance and that the Government must work with the industry to facilitate the design of appropriate products. We also think that early sight of the competence framework and precise responsibilities of building safety managers could help to alleviate concern in the industry and facilitate the development of appropriate insurance products.

167.We recommend that the Government work with the insurance industry to facilitate the development of appropriate professional indemnity insurance products for building safety managers. In particular, we again recommend that the Government publish the competence framework and the precise responsibilities of the building safety manager.

Sanctions regime for accountable persons and building safety managers

168.The Bill establishes a sanctions regime for accountable persons and building safety managers and makes the regulator responsible for enforcement through the issuing of compliance notices. Under clause 91, an accountable person or building safety manager who, without reasonable excuse, breaches a compliance notice is liable to a fine and/or up to two years’ imprisonment. By clause 94, if an accountable person fails without reasonable excuse to comply with a requirement215 under Part 4 and this places one or more people at significant risk of death or serious injury, they commit an offence attracting the same range of sentence.

169.We heard relatively little criticism of the sanctions regime for accountable persons and building safety managers, though Swish Residents’ Association thought the proposed penalties “wholly inadequate” and that they failed “to send the right message.”216 The LGA, whilst welcoming the sanctions, noted that they only applied to higher-risk buildings and recommended that a similar regime somehow be extended to all buildings.217 Martin Boyd drew a distinction between the construction industry, where most problems are to be found, and the occupation phase, for which there is “no clear evidence of defective behaviour”. Consequently, he wondered why the sanctions regime in occupation was as severe as that for design and construction.218

170.The only other concern we heard touching on the sanctions regime was about lack of clarity around the respective responsibilities and liabilities of accountable persons and building safety managers. Submissions from the insurance industry, in particular, told us that the lack of detail in the Bill risked causing confusion. Others, including the Institute of Workplace and Facilities Management and Working Group 8, agreed about the potential confusion and told us that whilst the explanatory notes were clear that the building safety manager would assume responsibility for the day-to-day management of building safety risks, the Bill itself was less precise.219

171.We agree that the lack of clarity in the Bill around the respective responsibilities, and therefore liabilities, of the accountable person and building safety manager could cause confusion and concern, especially where non-compliance could result in criminal sanction.

172.We recommend that the Government publish statutory guidance alongside the Bill outlining the respective responsibilities of accountable persons and building safety managers.

Residents

Resident engagement

173.The Hackitt report found that many residents did not feel consulted on changes to their building that could affect its safety and concluded that “the more that residents are informed about the fire safety strategy for the building, the better they will be able to play an active and informed role in helping to ensure that it remains safe, and the more they will in turn feel safe in their homes.”220

174.In recognition of these findings, the draft Bill contains provisions to facilitate resident engagement, principally through the requirement on the accountable person, under clause 82, to prepare a resident engagement strategy and to give each resident a copy with a view to promoting their engagement in building safety decisions. Clause 60 defines a “resident” of a dwelling in a higher-risk building as “a person who lawfully resides there”, though subsection (5)(b) provides that the Secretary of State may amend the definition in regulations. Under clause 82(6), the duty to give a copy of the strategy to a resident does not apply “if the accountable person is not aware of the resident and has taken all reasonable steps to make themselves aware of residents of the building.”

175.Some evidence criticised the definition of resident. Working Group 8 argued that it should “cover all ‘occupiers’ beyond those classed as resident”221 and Victoria Moffett was worried that the definition of resident would exclude people renting out a property from the provisions on engagement with the accountable person.222 On the first concern, the Bill, as noted, defines “resident” as “a person who lawfully resides there”. While this may be a natural definition of “resident”, we do wonder whether it might leave room for argument as the scope of “higher-risk building” expands. Working Group 8 did not elaborate on its criticism but we would welcome an explanation from the Government as to why “residence” was chosen over “occupation”. On the second concern, the relevant provisions all specify that not only residents but “owners of flats” should be the subject of engagement. For example, clause 82, on the residents’ engagement strategy, places a duty on the accountable person to promote the participation of “relevant persons” in the “making of building safety decisions. Subsection (8) then defines relevant person as “residents” and “owners of flats”. It seems clear to us, therefore, that the Bill explicitly includes owners within the resident engagement provisions.

176.We heard concern that accountable persons would be unable to identify all the residents in their building. Martin Boyd called it “utterly, utterly impossible”.223 Victoria Moffett agreed it would be very difficult.224 This gives rise to two concerns. The first is whether the Bill places too onerous a duty on the accountable person to identify residents in their building. On this point, we are satisfied that it does not, since, as noted, clause 82(6) provides that they need only take all reasonable steps to identify residents. The second concern is whether such a limited responsibility will encourage the engagement of hard-to-reach residents. The IRPM told us that the duty to engage residents in decision making would likely be too great for many accountable persons, especially where they are directors of RMCs, and that in practice it would probably not get done. The LKP, which criticised the “arrogance” of what it called this “top-down approach”, suggested that the Bill require a residents group to be formed in every building and that such groups be required to represent every subgroup of resident within that building.225

177.We are concerned that resident engagement provisions could be too onerous a responsibility on accountable persons and that in many cases it would be done inadequately or not at all. We also agree that the Bill establishes a top-down model of engagement and that the formation of resident groups could both empower residents and lighten the responsibility on accountable persons.

178.We recommend that the Government consider facilitating, possibly in the Bill itself, the formation of resident groups in every higher-risk building and that these groups be required to include representatives of every type of resident in the building.

Access to dwellings

179.Access to dwellings was a “key concern” for London Councils. It told us that the BSM and accountable person would “not be able to holistically manage a building without robust powers to enter, inspect, and enforce action where appropriate” and that although this was addressed for “immediate safety concerns”, the ability to manage the safety of an entire building required “powers to enter and install fire safety improvements across all of a block’s homes”.

180.London Councils referred to a recent case in the High Court in which the Council was held not to have a right to access a leaseholder’s property to make fire safety improvements.226 This was a case concerned with the specific terms of a shared ownership lease, and it was held there was no general right to enter to avoid the risk of death or personal injury.

181.Clause 87 provides the courts with power to order a resident (regardless of tenure) to give access to “facilitate the performance by the accountable person” of their duties under clauses 72 (assessment of risks) or 73 (all reasonable steps to prevent a major incident or reduce severity). We do not see that the clause is restricted to “immediate safety concerns”: any reasonable step to prevent a major incident or reduce its severity would be covered and it seems unlikely the courts would stand in the way of any fire safety improvements in this regard.

182.Cambridge City Council told us experience suggested the practicalities of obtaining access even by serving a notice “may be difficult”.227 We understand that the power to order a resident to give access is likely to fall short of allowing the use of force, that County Courts often struggle with this question when landlords apply for injunctions for access to inspect gas installations.228 If a resident failed to comply with an order under clause 87 we understand enforcement would be by applying for their committal and possible imprisonment. The rights of residents to respect for their homes under Article 8 of the European Convention of Human Rights would clearly be engaged, and the Government would have to consider whether the use of force was a proportionate means of pursuing a legitimate aim.

183.We think the power in clause 87 to order residents to give access is wide enough to cover the risks within the scope of Part 4, and the duties of an accountable person under clauses 72 and 73.

184.We would encourage the Government to consider making it clear on the face of the Bill whether the power in clause 87 includes authorising the use of force but express no view on the conclusion to be reached.

Electrical safety in occupation

185.We received several submissions expressing concern about the lack of specific reference in the draft Bill to electrical safety. Organisations such as Electrical Safety First and Certsure argued that the accountable person should be given a specific duty to ensure the safety of electrical installations in their building.229 We do not see how this could sensibly be done other than by amending the definition of “building safety risk” in clause 16 to explicitly cover electrical failure, but as we note in paragraph 70 we think that electrical failure is already implied in the current definition and therefore that the accountable person already has duty to prevent a major incident arising from electrical failure. As recognised in clause 86, responsibility more generally for ensuring the safety of electrical items in private dwellings lies principally with residents, though subsection (2) rightly gives the accountable person the power to enforce that duty where necessary. We think it would place too great a responsibility on the accountable person were the Bill to provide for any further explicit duty in this regard.

186.We also heard that the Bill was an opportunity to address electrical safety in higher-risk buildings more generally. In particular, some, such as ECA, Electrical Safety First and Certsure, argued for mandatory five-yearly electrical safety checks in all high-risk residential buildings, perhaps through the extension of the Electrical Safety Standards in the Private Rented Sector (England) Regulations 2020. We think this is a sensible suggestion.

187.We agree that electrical safety should be an integral part of the building safety system and that the Bill is an opportunity to require regular electrical safety checks in higher-risk buildings. We are clear, however, that no further specific duties should be placed on the accountable person with regard to electrical appliances, as their existing duties are already extremely onerous, although they should be required through the engagement strategy provisions to inform residents of their duties under clause 86 and to provide guidance to facilitate their compliance with those duties.

188.We recommend that the Government include supplementary provisions in the Bill for mandating regular electrical safety checks in higher-risk buildings.