Building Safety Bill

Supplementary written evidence submitted by Justin Bates, Barrister at Landmark Chambers and Editor of the Encyclopaedia of Housing Law (BSB27)

Building Safety Bill - follow up question

Last week, Rachel Hopkins MP asked me a question about the duty to co-operate between the "accountable person" (under the Building Safety Bill ("BSB")) and the "responsible person" (under the Regulatory Reform (Fire Safety) Order 2005 (see Q77). Daisy Cooper MP then returned to that issue (see Q79) and I promised to think about it a bit more and send a further written response. Please may I trouble you to pass this email (which contains my response) to the Committee

Clause 118

1. Before we come to clause 118, we need to set the scene. Presently, under the Regulatory Reform (Fire Safety) Order 2005, we have the concept of the "responsible person", i.e. the person responsible for fire safety compliance under the terms of the 2005 Order. This Bill introduces a new, but similar, concept of the "accountable person" who is responsible for discharging the new building safety duties.

2. Clause 118 is aimed at two scenarios

(a) where there are two or more "accountable persons" (this is likely to arise in buildings where there are headleases or where there are leaseholder-owned companies discharging residential management functions – in those cases then the freeholder will be an accountable person and the head leaseholder / leaseholder company might also be an accountant person); and/or,

(b) where the accountable person is not the same as the responsible person.

3. In those circumstances, everyone has a duty to co-operate with each other. That duty is imposed by clause 118.

4. Rachel Hopkins MP asked whether this will work or not. Daisy Cooper MP then asked about what happens where the two parties are diametrically opposed.

5. On reflection, I think both MPs were right to raise this as a more of a problem (or, at least, a potential problem) then I had initially thought.

6. I suspect the most problematic scenario is where the accountable person and responsible person think (in good faith) that different works are required in order for each of them to comply with their regulatory obligations, e.g. the fire brigade require "X" to be done in order to comply with the 2005 Order, but the regulator under the BSB thinks that only ½ of X needs to be done (or that "Y" needs to be done). In that scenario, a duty to co-operate is going to break down. Neither the responsible person nor the accountable person can agree to less than what their regulatory has specified.

7. There are two possible ways to address that. First would be for the Secretary of State to have power to issue guidance on the issue (e.g. that the person adopting the more thorough scheme of works should prevail). The second (and I think preferable route) is for the Secretary of State to create some dispute mechanism service. That could be by giving a court or tribunal power to decide between the two positions or by providing for there to be a reference to the Secretary of State to make a decision in each case (in practice the Secretary of State would likely appoint a panel of independent third parties to advise her on the decision – think of disputes between local authorities about which one owes social care duties to a transient individual, for example).

8. As things stand, a duty to cooperate is fine but it needs a dispute resolution mechanism for those cases where people are in disagreement.

9. I don’t know how common these disputes are likely to be (in large part because we just don’t know enough yet about the nuts and bolts of regulation under the BSB) but it would be foolish to think that no dispute will ever arise.

10. There is a further problem to consider. How is the duty to co-operate to be enforced? The scenario above envisages a situation where two parties are disagreeing in good faith. What happens if there is a bad faith disagreement or if one party just refuses to engage with the other? Is it intended that clause 118 could be enforced by an injunction? If so, the Bill does not say that. If there is no enforcement mechanism then what is the point of the duty to co-operate? The answer to this problem is probably tied to the second option in paragraph 7. If a court/tribunal is to be given power to decide between two conflicting positions then why not give it a general enforcement role as well. Certainly that’s easier to administer than giving the enforcement role to the Secretary of State.

11. So, to return to the questions posed by the two MPs, I have come round to the view that, whilst there is a value to a duty to co-operate, it isn’t enough by itself. Something needs to be added so as to provide for a third party to decide between conflicting positions and to enforce the duty in the face of non-compliance.

With best wishes

Justin

13 September 2021