Moved by Baroness Neville-Rolfe
2: Clause 2, page 2, line 7, at end insert—“( ) Regulations under subsection (1) may not amend the Regulatory Reform (Fire Safety) Order 2005 to apply the Order to domestic premises in buildings under five storeys in height.”Member’s explanatory statementThis is a probing amendment to enable the House to discuss fire safety measures that apply to low-rise domestic buildings, which have a lesser fire risk, and how the powers under Clause 2 may be used to implement Grenfell inquiry recommendations.
My Lords, I am sorry that I was not able to speak at Second Reading. However, I am glad to rise to move Amendment 2, which is probing in nature but very serious. It reflects one of the problems that has arisen from actions taken following the Grenfell tragedy. One consequence of Grenfell is that cladding on many dwellings, especially high-rise flats, will have to be treated and/or removed if their safety is to be assured. Initially, statements by government Ministers implied that cladding on buildings of over 18 metres was in question, but subsequent remarks have implied that buildings of lower height could also be affected. The proposed order, of course, goes beyond cladding. It covers balconies and windows and the entrance doors to individual flats. These are often made of wood, as they have been since virtually the dawn of time, and the advice from consultants and so on is that they need to be replaced or fireproofed under the new regime.
All of this will be a very expensive process. Rough estimates reveal that the cost per dwelling can easily reach tens of thousands of pounds. In many cases, it is not clear from where the money for the changes needed will come. Freeholders, leaseholders and government look on in horror at the implications. As a consequence, a substantial part of the housing market is effectively frozen. Buyers will not purchase unless they can be assured that they will not be caught by these extra costs, or at least until any costs can be reliably quantified. Many people simply cannot move because their dwellings cannot be sold until the impasse is resolved.
The problem is aggravated by the use of the now-infamous external fire wall review form developed by the RICS, no doubt in an effort to be helpful. The perverse effect of this was debated in the other place. There is a shortage of people qualified to undertake such surveys and the delay leads to the collapse of house sales. So the young who want to move somewhere bigger, for example when they have a baby, the old who want to trade down and release capital, and the unemployed who want to move to get work elsewhere, are all frozen. Mortgage providers are unwilling to lend on what are now seen as distressed assets.
This is a nightmare. We, the Conservatives, are the party that believes in home ownership and has made promises on housing, which I stand behind 100%. I do not like to attack the Government, but this problem does not have negotiating ramifications. It is straightforward and domestic. The Government have a clear duty to minimise the problem and map a way forward out of the morass. Indeed, though they were made for the best of reasons, their statements created the problem in the first place.
My Amendment 2 deals with only a small part of the problem but Rome was not built in a day. Reducing the scope of a problem is worth while; we could do that in this Bill with my noble friend the Minister’s agreement. My thought is that the risk posed by cladding and balconies in low-rise buildings is much less than in high-rise ones. To be blunt, it is easier and quicker to get out if there is a fire, and it seems disproportionate to apply such onerous requirements to low-rise buildings. If we can make clear that buildings below a certain height—with fewer than five storeys, say—will not be covered by future requirements for removal or changes to cladding, that part of the market will be unfrozen, which would be a major step forward. I am open as to how this can be achieved, though limiting the height of buildings to which the new rules will apply is one obvious possibility.
I will also speak to Amendments 20 and 21 on an impact assessment. The Home Office produced an impact assessment as part of the consultation on the proposed new fire safety order, but regrettably not for the Bill itself. It does not touch on the troublesome dynamics that I have raised. It covers familiarisation costs for responsible persons, businesses and the public sector, ongoing assessments and audits by competent individuals and some remedial costs, although my impression is that these are underestimated. The impact assessment quotes a total of more than £2 billion, partly because of the huge number of premises involved, but it is striking that, of the 1.7 million premises on the central estimate, 1.596 million are below 11 metres and 87,000 are below 18 metres—hence my proposal.
When I headed up the deregulation unit—which we named the better regulation unit under its Labour chairman, the noble Lord, Lord Haskins—we were always worried about getting the detail wrong and imposing huge and needless burdens in response to disasters. This, I fear, is a living example; with the distractions of Covid, this could be a prime example of this deplorable tendency.
Further, we all care about fire safety; that is what this Bill is about. My late father-in-law was a fire officer, including during the Blitz. I am a well- known supporter on these Benches of health and safety; I have campaigned on the problem of faulty Whirlpool tumble dryers and worked with the then BEIS Minister responsible to tackle it. Now we must find an urgent way of coping with the terrible problem of the freezing of part of the housing market because of the Government’s statements. This might even be done through an amendment to this popular Bill.
We must find a way through. In pursuit of that, I have three detailed questions for my noble friend the Minister, broadly suggested to me by the National Residential Landlords Association. First, how do the Government propose that risk assessments for buildings of five storeys or fewer be undertaken? Secondly, do the Government agree that for properties with a lower risk, for example smaller properties in multiple occupation, there is scope for the responsible person to be defined as competent to undertake a fire risk assessment? Thirdly, there have been issues regarding the availability of qualified and appropriately insured fire engineers who are able to undertake safety reviews. What assessment has been made about the need to ensure that there are sufficient trained assessors and that professionals have access to insurance so that they can undertake the necessary assessment without concerns for their personal liability?
I very much look forward to the Minister’s comments and the debate. I beg to move.
My Lords, I am grateful for these probing amendments in the name of the noble Baroness, Lady Neville-Rolfe. I understand her point: they are clearly important and they help our further consideration of the Bill. In particular, her identification of the need for trained assessors seems extremely important; I think that we will deal with that a little later this afternoon.
Amendment 2 relates to low-rise domestic buildings—that is, those of four storeys or fewer. I am not clear why, because they are lower than a high-risk block, they should be deemed a lower risk. Surely we are trying to stop fires breaking out; that is not related directly to the height of a building. Added to that is the fact that, sometimes, building height is quoted at different levels for different purposes. Sometimes it is done on the basis of height; sometimes it is done on the basis of the number of floors. I would appreciate some greater standardisation so that we do not face discussions on 18 metres or 11 metres, the number of floors and so on.
The noble Baroness, Lady Neville-Rolfe, said—this is important—that the Government must map a way forward. I hope that the Minister will bring some clarity on this in his response. As the noble Baroness said, it is terribly important not to get the detail wrong. In our consideration of this amendment—as we know, it is a probing amendment—it would be helpful to consider it as part and parcel of our intention to get the detail much better than it has been in the past.
My Lords, I apologise for not being in the Chamber when my noble friend Lady Neville-Rolfe opened her remarks. I rise to speak in support of Amendment 2 but I will focus my remarks on Amendments 20 and 21 in particular, which deal with the need for impact assessments.
I thank my noble friend Lady Neville-Rolfe for setting out so clearly the rationale behind her amendments. I begin by explaining why this issue is so important to me personally—in short, there but for the grace of God go I. Contrary to the damaging impression given by the Lords Commission’s inept decision to cut the attendance allowance and reduce significantly the eligibility to claim it—just at the time when the Chancellor introduced the furlough scheme to reduce stress—many noble Lords are not millionaires and have given up well-paid jobs to serve their country in your Lordships’ House. I have never earned a huge amount of money, so as a former leaseholder in the shared ownership part of a new-build development, I do not know how I could possibly have coped with the uncertainty, stress and immense costs currently faced by leaseholders.
Amendments 20 and 21 call for impact assessments. Perhaps it might help your Lordships’ House if I shared the findings of an impact assessment that has already been carried out by the residents association of a new-build block—incorporating both low-level blocks of below 18 metres and taller buildings—in Colindale in north London. The findings relate to the mental health impact of the current situation on leaseholders: they are stark and shocking. Nine out of 10 residents reported that their mental health had deteriorated because of the current situation regarding the fire regulations; 100% of residents stated that their biggest concern was about Notting Hill Genesis—their housing association—passing on remediation costs to leaseholders. Fourteen per cent of residents have experienced thoughts of self-harm and 10% have experienced suicidal thoughts.
Why are the residents so concerned? Might it have anything to do with the £411,000 bill—£5,708 per flat—for the waking watch? Unbelievably, the housing association, Notting Hill Genesis, implemented a five-person waking watch, who are on site 24 hours a day, with associated costs, without consultation. Perhaps it has something to do with the £84,000—£1,166 per flat —for an upgraded fire alarm system in line with the change from “stay put” to “get out”, which requires a new L5 wireless fire alarm in every flat. Or maybe it is because a leaseholder cannot get their flat insured or sell their home, and therefore cannot move, for example if they need to because of coronavirus-related unemployment, or indeed the need to move for a new job.
Perhaps the most salient finding of this assessment, which was unspoken, was that the impact is now. This is not in the future tense. This is in the present tense. So the need for an urgent solution to protect residents is also now. On
My Lords, I am keen to ensure, as many noble Lords will be, that the recommendations of the Grenfell inquiry can be implemented speedily. A key element of the amendments tabled by the noble Baroness, Lady Neville-Rolfe, seeks to clarify whether the powers in Clause 2 can be used to introduce regulations via the affirmative procedure. This seems an eminently sensible proposal for a route to be used to act on some of the many recommendations from the Grenfell inquiry when it is published. I hope the Minister will be able to agree that this amendment as a way forward for the Grenfell inquiry is one that the Government are willing to use.
Although the Government have responded to some of the consequences of the Grenfell tragedy, there is much more to be done. Three years is a long time to wait for those directly affected and for those trying to live with the considerable financial and emotional consequences: for instance, those living in modern high-rise blocks in my part of the country in Leeds, who are paying considerable sums each month for a waking watch. I agree with my noble friend Lord Shipley that building height and number of storeys do not, on the face of it, affect fire risk. I hope the Minister will be able to clarify the difference in height or number of storeys when he responds to these questions.
Other amendments later today explore several of the issues in the noble Baroness’s amendments, which demonstrates to me that many of us consider that fire safety risks for existing buildings need to be fully debated. The Government need to come forward with a proposal. I look forward, with hope, to the government response to this interesting amendment.
My Lords, Amendments 2, 20 and 21, all in the name of the noble Baroness, Lady Neville-Rolfe, have enabled us to debate the issues that pertain to low-rise domestic premises under five storeys, and how people are kept safe. Although these buildings are not high-rise, they can still present significant challenges for the residents. We need to make sure that they are safe.
It is a fact that fires often occur on the lower levels of premises. That is obviously quite logical. In most cases, the kitchen and living room, where you have the electrical equipment, are on the ground floor. You usually go upstairs to the bedrooms, where there is less equipment. If fires occur in these smaller blocks of flats—modern blocks, for example, or conversions of large houses—the risk and the issues are still relevant. I remember on a visit to the London Fire Brigade headquarters a couple of years ago, we were given a briefing on the problems of four or five-storey modern blocks, where there had been serious fires, huge damage to property, risk to life and limb and risk of serious injury.
In her amendment, the noble Baroness, Lady Neville-Rolfe, raised the problem of people trapped in properties covered in cladding and other materials about which serious concerns have been raised. They cannot sell their properties and they cannot get a mortgage if they want to buy them. These are very serious problems for those people, and we need a solution. The solution, for me, is that we have to get the material off. One of the problems we have, certainly in more modern properties, is that when properties are built, the builders give guarantees, and insurance policies are taken out based on the quality of construction. We now have the problem—this has been discussed many times before—that guarantees are not being honoured and insurance policies are being disputed and not paid out. That creates a huge problem for people who have bought a property or built a property as an organisation. We must deal with that issue. If you have given out a guarantee or issued insurance, it is unacceptable that you can walk away and say, “Sorry, we’re not paying this out, we’re not going to deal with this”.
I hope the Minister can tell the House what discussions he and his department are going to have with the insurance industry and the people who give construction guarantees. That is what we have to get right. If you guarantee that these properties have been built properly, I would assume that proper due diligence has been done and you have ensured that they have indeed been built properly, and if there are problems, you should pay out. We need to get these things sorted.
Amendments 20 and 21 would require that proper consultation take place, and ask the Secretary of State and the relevant Welsh Minister to report back to Parliament and the Senedd Cymru respectively. That is very sensible. A theme running through today’s debates is that consultation is really important to get these things right.
I thank the noble Baroness for tabling these amendments. She has raised an important issue and I hope the noble Lord, Lord Parkinson, will respond to the questions asked.
I thank my noble friend Lady Neville-Rolfe for raising these important issues and facilitating this useful debate. I thank all noble Lords who have taken part in it.
On Amendment 2, regarding the exclusion of low-rise buildings from the fire safety order, the order places duties on the responsible person to protect those lawfully on the premises from the risk of fire. These duties include carrying out and maintaining an up-to-date fire risk assessment that is specific to their premises, and ensuring that they have taken suitable and sufficient measures to mitigate the potential risk of fire. That is a continuous process whereby emerging fire risks need to be kept under review as part of the fire risk assessment process. These duties apply to buildings within scope of the order. That includes all premises apart from those that are expressly excluded; domestic premises are one such category. The Bill clarifies that the fire safety order applies to the structure, external walls and flat entrance doors in multi-occupied residential buildings.
While I understand the intention behind my noble friend’s amendment, I am afraid I do not think it has quite the effect she intends. Domestic premises are already excluded from the scope of the order, so an amendment ensuring that they be excluded is not necessary. The buildings within which such premises sit are not excluded, in order to ensure that people living in such buildings have the protection they need to keep them safe. To exclude a category of buildings such as those less than five storeys high would remove that necessary protection.
Furthermore, it would be wrong to assume that the height of a building is the key determinant in its risk of fire, as has been noted. Certainly, it is a factor, but the potential risk is determined by many other factors that are nuanced and unique to each building. In that respect, I would like to refer to some of the fires we have witnessed since the tragic events at Grenfell Tower. In July 2018 a fire started on an external balcony on the third floor of the Orwell Building in West Hampstead, a six-storey block of flats. In September last year a fire destroyed a four-storey timber-framed block of flats in Worcester Park. Just a few months later, a fire spread via the high-pressure laminate coating on The Cube, a student accommodation block in Bolton. Mercifully, none of these fires resulted in casualties or fatalities, but clearly, they present lessons that need to be learned.
I am happy to put on record that the Government have no intention of excluding multi-occupied residential buildings of any height, including those that are low-rise, from the scope of the fire safety order. We will deliver on our commitment to strengthen the order as a proportionate legislative response to the risks of fire in high-rise residential buildings. However, we must also ensure that we do not discount the potential risk of fires in low-rise buildings. We must ensure that the responsible person continues to take a thorough approach when conducting their fire risk assessment.
Our fire safety consultation included proposals for implementing the legislative recommendations made by the Grenfell Tower inquiry’s phase one report. Most of these recommendations concerned creating prescriptive new duties for those responsible for high-rise residential buildings, and in some instances, we have actually gone further than the inquiry’s recommendations. For example, we proposed in our consultation that responsible persons should provide information to their local fire and rescue services on the level of risk in the design and materials of the external wall structure and mitigating steps they have taken, which goes further than the inquiry recommended.
Noble Lords will be aware that the Government published the draft building safety Bill on
I should also draw attention to the Building Safety Fund, through which the Government have made £1 billion available to fund the removal of unsafe non-aluminium composite material cladding. That is in addition to the £600 million we have already made available to ensure the remediation of unsafe ACM cladding. In developing the fund, the Government considered the view of experts, including Dame Judith Hackitt, who support its focus on buildings of 18 metres and above. Those experts recommended that we focus further public funding on remediating unsafe non-ACM cladding from high-rise residential buildings. Higher-rise buildings are the least likely to be evacuated safely in the event of a fire spreading via external cladding. There will be a small degree of flexibility in the fund to allow it to cover buildings that have been built just under the 18-metre threshold and which have similar fire safety strategies to those taller than 18 metres.
However, we do not expect that government funding to be the only means of remediating high-rise residential buildings with unsafe cladding systems. We expect a significant proportion of the remediation of unsafe non-ACM cladding on these buildings to be funded by those responsible for the original work, as the noble Lord, Lord Kennedy of Southwark, alluded to, through warranties or by building owners who are able to pay for remediation without passing on costs to leaseholders.
My noble friends Lady Neville-Rolfe and Lord Shinkwin raised powerful concerns about the impact that EWS1 forms are having on people selling their homes and those looking to buy homes. The Government share their concerns and are working with the industry to address this matter. The EWS1 form is not a governmental or regulatory requirement, nor is it a building safety certificate. It was developed as the industry’s preferred solution to support the valuation process for high-rise buildings above 18 metres, and that is all it was ever intended for. Not all lenders require an EWS1 form but the Government are aware that other lenders are requesting such forms for lower-rise properties too. We do not support that blanket approach and are working with lenders to encourage a more proportionate approach and to reduce demands for them.
We are also working with professional bodies to see how we can increase capacity to carry out assessments where they are genuinely needed. In future, the building assurance certificate—provided for in the building safety Bill, not this Bill—and/or an up-to-date fire risk assessment following the clarification in this Bill should provide the reassurance that lenders are looking for in the EWS1 form.
I turn to my noble friend’s Amendments 20 and 21, concerning an impact assessment. The Government have published an impact assessment for this Bill; it can be found on the pages of the parliamentary website relating to the Bill, but if my noble friend would find it useful, I would be happy to share that directly with her. We worked closely with the National Fire Chiefs Council, the Ministry of Housing, Communities and Local Government and other interested parties in preparing that assessment. We have also published an impact assessment for the fire safety order consultation and will conduct a final impact assessment before laying secondary legislation to bring about any changes to the order.
Government analysts used the most accurate data and assumptions available to them at the time to assess the potential impacts of the Fire Safety Bill. While I understand my noble friend’s desire to undertake further assessment, government analysts are already committed to a final impact assessment for the regulations before laying them before your Lordships’ House and the other place. Each of these assessments is informed by further engagement with those directly affected, and improved data and assumptions.
I turn to the aspect of the amendment which seeks for the Government to produce an impact assessment if changes are made to the fire safety order with regard to the premises to which it applies in future. The Bill already creates a duty on the Government to consult relevant parties should changes need to be made to the fire safety order relating to the premises to which it applies—that is in Clause 2(5). As part of this consultation —indeed, as part of the policy-making process—there is an expectation on the Government to carry out an impact assessment. Therefore, we do not think that it would be practical or necessary for that to be enshrined in law.
Finally, I turn to the aspect of the amendment that would require Welsh Ministers to produce an impact assessment under these circumstances. Although the Welsh Government and the Senedd fully support the Bill—indeed, they approved it unanimously—fire safety is, as noble Lords know, a devolved matter. It is possible for Parliament to legislate for Wales on a devolved matter only if the Senedd Cymru consents. It would also be inappropriate for your Lordships’ House to seek to instruct Welsh Ministers on how to exercise their functions. That is properly a matter for the Senedd.
My noble friend asked me three questions. I have alluded to some already and we will touch on others in later amendments. However, on the three points that she raised, all buildings should be assessed when this Bill becomes, as we hope, an Act of Parliament. We are proposing the use of a risk operating model developed by the sector to target the buildings that should be prioritised. Height is not the only factor in that model; it looks at a range of risks.
On her second question, the task and finish group recommended a risk-based prioritisation of buildings, which generally means that high-rise buildings will be the first up, but low rise is not always low risk, as the recent fires to which I have alluded prove. The responsible person can undertake the risk assessment if they have the skills and competence, but for complex buildings they should seek professional advice.
On my noble friend’s third question, one reason for the risk-based prioritisation is that we are mindful that, as she notes, there are not enough fire engineers, and we want them to focus on higher-risk buildings. The Government are working with the industry in a number of ways and have a number of workstreams in train that are actively seeking to address these issues. For instance, we have been working with the fire risk assessment sector to develop a clear plan to increase its capacity and capability. In addition, we are funding the British Standards Institution to develop technical guidance to support professionals to make an assessment of the fire risk posed by external wall systems. This guidance will support the industry to increase the skills of more professionals to take on this work and improve the quality and consistency of the assessments.
I hope I have reassured my noble friend that the Government will ensure that suitable and appropriate fire safety measures are in place for low-rise buildings. I also hope that I have reassured her of our position regarding impact assessments and why we consider these amendments unnecessary. If I have, I hope that she will see fit to withdraw her amendment.
I have received a request from the noble Lord, Lord Kennedy of Southwark, to speak after the Minister.
My Lords, warranties, guarantees and insurance should, in many cases, be the way forward in resolving these problems, but, sadly, some construction companies, warranty providers and insurance companies are seeking to get out of their obligation to provide what people have paid for. That is not acceptable, and I hope that the noble Lord can tell the Committee what he is going to do about it. At a minimum, he should say that he will get the Association of British Insurers and warranty providers in and make it clear to them that, if they are providing insurance and guarantees for buildings that have been constructed, the Government expect them to face up to their obligations in providing the things that people have paid for, and that walking away is unacceptable.
My Lords, first, I thank all noble Lords who have participated in this debate, and I am especially grateful to my noble friend Lord Shinkwin for his very moving example. I also express my thanks to the noble Lord, Lord Kennedy, and the noble Baroness, Lady Pinnock, for their support.
The Minister has confirmed that discussions are ongoing on insurance, warranties and other issues, which are important, but I point out that those relate largely to the future rather than the past. We have a past problem in this area—I describe it as “frozen”—which is obviously the reason for my probing amendment.
This afternoon, there has been a recognition that there is a problem here. Perhaps I could go backwards, thanking the Minister for his answers. I particularly thank him for his answers on the impact assessment, which were very satisfactory. On the website, you come up first with the impact assessment for the fire safety order, but that is the main impact assessment anyway. I was quoting extensively from it and I think that he will find it very useful, but it shows the volume of premises that we are talking about—those under 18 metres or 11 metres—so we have a problem.
The Government are rightly focusing a lot of attention on high-rise flats. The money that has been made available —I think that well over £1 billion was mentioned—is obviously welcome, and that has been focused on trying to get the cladding sorted as far as possible, because it is a great area of tragedy. However, the point about Committee is that you need to look at the detail of the regulations and make sure that you do not cause problems in other areas. Obviously, fires tend to start at the bottom of buildings—I very much understand that—but I think that you need to look at the risk, and my questions were specifically linked to that. It is a case of trying to make the system as sensible as possible so that, for example, responsible officers can, in appropriate circumstances, carry out risk assessments. At the moment, that does not seem to be happening. It seems that they are not doing it because they are worried and are trying to get in a consultant, and that leads to the “frozen” problem that I described.
I would be very happy to talk further about some of those points and the workstreams that the Government are looking at. I felt that the Minister was saying, “We are going to be very fierce on fire safety and I care about fire safety”, but if a lot of people suffer perverse effects as a result, you have to think about how you are going to help them too, and how you are going to deal with that.
That is why I was slightly disappointed in the response to the amendment. It is only a probing amendment, so the fact that it does not quite work is not surprising. I am not an expert in this area. However, I am an expert in trying to balance consumer and business interests to get sensible regulation through this Chamber by looking at the detail. I would be very happy to help in any way I can to try to make sure that we solve some of these difficulties, either through later amendments or by coming up with something particular here. I emphasise that this issue is urgent; it is not something that can be left for another year.
Amendment 2 withdrawn.