Amendment 13

Fire Safety Bill - Committee – in the House of Lords at 5:45 pm on 29th October 2020.

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Lord Kennedy of Southwark:

Moved by Lord Kennedy of Southwark

13: After Clause 2, insert the following new Clause—“Application of the Fire Safety Order to short-term lettings premises (1) The relevant authority must, by regulations under section 2, amend article 2 of the Regulatory Reform (Fire Safety) Order 2005 (SI 2005/1541) (interpretation) as follows.(2) In the definition of “domestic premises”, after “one such dwelling);” insert—“but does not include any premises let to persons for gain as holiday or short-term accommodation during the occupancy of the premises by such persons.””Member’s explanatory statementThe amendment will clarify that the Regulatory Reform (Fire Safety) Order 2005 applies to holiday lets.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, Amendment 13 in my name sets out to highlight what may be a gap in the protection afforded by the fire safety order. The fire safety order does not apply to domestic premises, other than bedsit properties or houses in multiple occupation, so hitherto the protection afforded by the order did not extend to houses in respect of residential blocks. It effectively stopped at the flat’s front door. The order applied only to the common parts and the planning and arrangements for escape through those common parts of the building.

It appears to be the position of the Government—and I stand to be corrected if I am wrong—that they have always assumed that where someone lets their property for a period of time through Airbnb or some other website, which they otherwise use as their residence, or do so for part of the year, then during the time that the flat is let through Airbnb or some similar organisation, the flat is subject to the protections of the order. However, I doubt that this can be a correct interpretation of the order as it currently stands: domestic premises are defined in the order as all those premises, and parts of premises, occupied as a private dwelling which are not used in common by the occupants of more than one such dwelling.

If a person lets out his private dwelling for part of a year, or just a room in that private dwelling, it is difficult to see why or how the premises ceases to be a private dwelling; with a room let out through Airbnb it certainly does not mean that that room or the whole premises are being used in common by the occupants of more than one dwelling. If we look at the terms of service provided by Airbnb, there is talk of “guests” and the statement:

“You understand that a confirmed booking of an Accommodation (“Accommodation Booking”) is a limited licence granted to you by the Host to enter, occupy and use the Accommodation for the duration of your stay, during which time the Host (only where and to the extent permitted by law) retains the right to re-enter the accommodation according to the agreement with the Host.”

Having guests in your private dwelling where you retain the right to re-enter is not a typical situation that the law treats as your property ceasing to be a private dwelling because you have let it out.

The government guidance is confusing in respect of the letting of rooms in dwellings. Letting Rooms in Your Home: A Guide for Resident Landlords identifies that properties classed as bedsits or shared accommodation—HMOs—must be licensed and comply with various regulations, including the fire safety order. However, it goes on to state that

“if the property is a House in Multiple Occupation fire safety could be an important consideration … But as for any other home, it is generally a good idea to ensure that the occupier ‘knows their way round’ the house, to help prevention and escape from fire. Smoke alarms are strongly advised: ideally one should be fitted on each floor of the property. It is also highly recommended to keep at least a fire blanket in the kitchen; and depending whether, for example, several people are likely to be cooking and/or smoking, having a fire extinguisher could be a sensible precaution.”

If Airbnb and the like automatically create a type of rented accommodation that takes premises from being domestic premises occupied as a private dwelling and makes them subject to the fire safety order, one would expect the guidance to say that—but of course it does not. Article 26 of the fire safety order states:

“Every enforcing authority must enforce the provisions of this Order … in relation to premises for which it is the enforcing authority”.

Enforcement of the order involves an assessment by the fire authority of what in its patch comes under the fire safety order, as well as some kind of inspection regime. Some fire authorities in centres may attract many tourists—such as central London or any other big city—for whom there are plenty of flats that are offered through Airbnb or similar sites. The remainder of the time, they are used as private dwellings. It must be a matter of serious doubt whether the fire authority has the capacity to handle all these properties, or even know how many such properties are out there; it is even more doubtful that the owner of such a property has been advised or read the guidance that spells out that the premises may be suddenly subject to the fire safety order while they are being used for guests through Airbnb or a similar site.

Freedom of information inquiries have revealed that no fire authority has ever done a risk assessment on an Airbnb property and that authorities are unaware of how many there are in their areas. If the Government are correct that the order does not require this amendment to bring Airbnb properties within the protection of the order, no harm will be done by spelling it out in the way that this amendment does. The Bill provides a reminder of an issue for the Government: people renting premises temporarily should be protected by the appropriate fire prevention measures being in place for the property. It should have been assessed and the information should have been properly conveyed to them by their host; this should be an obligation under law. At the moment, the law is silent in that respect, which is the point of this amendment.

I repeat and emphasise the point that in people’s homes there will be a single staircase to get out of the building. Have people been told what the arrangements are to get to the corridors? We need to look at this carefully. Many homes are being used on a temporary basis effectively as hotels or a place to stay. What work has been done by the company or the owner to ensure that the guests are properly aware of the risks and how to get out of a building safely? I do not believe that we are there yet; this raises an important issue. I hope that the noble Lord, Lord Parkinson, can see the point that I am trying to make and that he will address it when he responds to the debate. I beg to move.

Photo of Lord Mendelsohn Lord Mendelsohn Labour 6:00 pm, 29th October 2020

My Lords, I am grateful to the noble Lord, Lord Kennedy, for proposing this amendment and for giving us an opportunity to raise a serious if unintended deficiency in what fire safety law covers through the 2005 fire safety order. Far too often, attention is drawn to these matters only when they have terrible consequences, when it is essentially too late. I give great credit to the noble Lord, Lord Kennedy, for raising the issue in a timely fashion. To the best of my knowledge, it would be in time to save lives rather than deal with the consequences.

I am keen that the Minister should reflect very carefully on the excellent speech made by my noble friend Lord Kennedy, and that, if he cannot provide a comprehensive assurance from the Dispatch Box, he should tell the House that the matter will be taken back to the department and full consideration given to it. I hope that the Government will either accept this amendment or introduce their own amendment.

Identifying the cause of the absence of any agency doing any oversight investigation, regulation or consideration of online rental accommodation led to a clear view from the relevant agencies that they were not required to do so. In investigating why the amendment was so necessary, and why I am so keen to support it, the answer became evident in the compelling legal opinion written by the outstanding leading counsel Richard Matthews QC, who is rightly acknowledged in all independent legal guides as not just in the top band of legal silks on health and safety, but by some as the very best legal mind in the country on those matters. He has not just been counsel for the Health and Safety Executive but has acted for the Crown in many fire-related prosecutions.

I say this just to emphasise the strength and merits of the legal arguments that my noble friend Lord Kennedy presented, and the fact that the Minister needs to ensure that his legal talking points have the right level of force and expertise to provide assurance to the House.

Richard Matthews’ opinion is that the fire safety order does not apply to domestic premises except those specifically defined in the order. The crucial question with regard to short-let holiday, business or other accommodation available through a variety of online or digital accommodation services—commonly known as Airbnb-type accommodation —is whether it falls within scope or ceases to be a domestic premises.

Mr Matthews’ advice could not be clearer. He states:

“I am firmly of the opinion that a house or flat that is let on the specific terms of the licence through Airbnb or similar accommodation for a short period of time does not necessarily by operation of the law thereby cease to be a domestic premises occupied as a private dwelling. Furthermore, I am very firmly of the opinion that a room or space in a house or flat that is let on the specific terms of the licence through Airbnb for a short period of time, whether the remainder continues to be occupied by the host as a residence, does not thereby cease to be a domestic premises occupied as a private dwelling, nor that it thereby becomes premises used in common by the occupants of more than one such dwelling. In addition, I am further of the opinion that both the Government’s written parliamentary response and its Do you have paying guests? guide are both inaccurate in this regard, and an apparent assertion that whenever anyone pays to stay in a property other than to live there as a permanent home, then the property is not a domestic premises occupied by someone, not necessarily a paying guest, as a private dwelling, is wrong as a matter of law.

Nothing demonstrates that his interpretation of the law is incorrect, which explains the fact that there has been no enforcement.

There is a clear, though unintended, gap, and it should be plugged as soon as possible. The onus must be on Airbnb hosts, and similar types of host, to have made the assessment or, where necessary, sought professional advice, to protect their paying guests. In addition, fire authorities should have some knowledge of where these properties are, or at least consider whether there is a need for inspection if a particular block or premises is being used within these terms. I strongly support the correction of the anomaly in the Bill that the amendment provides, to clarify the roles and responsibilities of temporary landlords in respect of fire prevention measures in their properties.

Finally, there is one other significant matter, which Mr Matthews’ extensive legal research and experience also uncovered, that should be addressed. It is that the 2015 smoke and carbon monoxide alarm regulations, which were brought into force at a time when the service provided by Airbnb and other such companies was well established and well known, for Airbnb premises to be within the ambit of the smoke and carbon monoxide regulations by reason solely of a licence obtained by Airbnb, such a licence would have to amount to a tenancy granting the right to occupy the premises as the guest’s only or main residence. An Airbnb will not have the effect of putting premises outside the ambit of the smoke and carbon monoxide regulations within that protection. I would be grateful for the Minister’s assurance that this too—which is surely another unintended lacuna—will be remedied, as well as the one addressed by the main amendment.

Photo of Baroness Pinnock Baroness Pinnock Liberal Democrat Lords Spokesperson (Communities and Local Government)

My Lords, the phrase “unintended consequences” comes to mind in Amendment 13. This short amendment seeks to ensure that there is clarity in connection with short holiday lets that use either part or the whole of a building, and it is one that we support. I am no legal expert, but the issues just raised by the noble Lord, Lord Mendelsohn, must be considered and a definitive answer provided by the Government.

I thank the noble Lord, Lord Kennedy, for seeing that there is an omission in the Bill and a possible unintended consequence, and for tabling the amendment so that we can have this discussion. I hope the Minister is able to respond positively.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

I thank the noble Lord, Lord Kennedy, for raising the important issue of the treatment of short-term accommodation and holiday lettings under the fire safety order, and I am grateful to all noble Lords who have taken part in this brief but important debate. The noble Lord is absolutely right to draw attention to the constantly changing models and companies through which people might rent out their accommodation, particularly in this year of staycations when, I am sure, people have been staying in many more domestic properties in the UK.

As the noble Lord noted, domestic premises are expressly excluded from falling within the fire safety order. Article 2 of the order provides a definition of domestic premises which states that, to be considered as such, it must be occupied as a private dwelling. That is the key bit: the fire safety order applies at any time when the property is being leased or rented because it is not being occupied as a private dwelling. In effect, the property becomes a non-domestic premise when rented out and falls within the scope of the safety order. That is the Government’s view of the legal position. Under the fire safety order, owners of these types of premises have a duty as the responsible persons to undertake a fire risk assessment and put in place fire precautions that are adequate and appropriate to manage the risk of fire, and the fire and rescue services are the enforcing authorities for the order in such accommodation.

Anyone who provides accommodation for paying guests can also find helpful information on the GOV.UK website, which the noble Lords, Lord Kennedy and Lord Mendelsohn, mentioned. The noble Lord mentioned by name the Do You Have Paying Guests? guidance, which is for people who are responsible for small and short-term accommodation. I can tell noble Lords that the guidance has recently been updated and that the new version will be called Making Your Sleeping Premises Safe from Fire, which will be a short guide for sleeping premises, small businesses and small blocks of flats. That is the part of the tranche 2 FSO guidance review, which will be published alongside the laying of secondary legislation. I hope that when the noble Lord sees that, it will assuage some of his concerns.

We do not agree with the legal position of Mr Matthews that the noble Lord, Lord Mendelsohn, read out; if a property is rented out through Airbnb and so on then it falls within the scope of the fire safety order. I hope that reassures the noble Lord that the fire safety order already applies in the scenario that he outlines in his amendment, and that he will therefore be content to withdraw it. We will certainly be happy to continue discussing this point as we approach Report.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I have had no requests to speak after the Minister, so I call the noble Lord, Lord Kennedy.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing)

My Lords, I thank everyone who has spoken in this short debate. The Minister has confirmed that the Government’s view is that the fire safety order applies when the property is used for a paying guest. The question that therefore arises is: does the person providing the property know the obligation that they have created for themselves? Do the sites that let these properties out for them understand that? Do they know their responsibilities? Have they made adequate provision to ensure that when the property is being let, it is safe? Are people aware of the ways in and out of the property, what the fire precautions are and so on?

There is another point here. How does a fire authority know that all these properties in its area are being let and used, and how can they do inspections? Just think how many properties must be let in London. How will the London fire brigade or the local authority ever know which properties they are? How can they ever do any inspections? How can anyone ever be responsible? If no one is responsible, either the order is wrong or we have not created the conditions for the order to be effective.

Those are really serious issues, so I hope the Minister will look at them between now and Report. It is not just an anomaly; it is potentially a disaster waiting to happen, and we need to do much more than we are now. At this stage, I am happy to withdraw the amendment, but I will bring it back on Report. I beg leave to withdraw the amendment.

Amendment 13 withdrawn.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords) 6:15 pm, 29th October 2020

My Lords, we now come the group beginning with Amendment 14. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. Anyone wishing to press this, or any other amendment in the group, to a Division should make that clear in the debate. This amendment was to be moved by the noble Lord, Lord Porter of Spalding, but he is not able to join us today, so I call the noble Lord, Lord Kennedy of Southwark.