Amendment 3

Building Safety Bill - Report – in the House of Lords at 12:15 pm on 29th March 2022.

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Lord Greenhalgh:

Moved by Lord Greenhalgh

3: Clause 4, page 3, line 5, at end insert—“(1A) The assistance and encouragement that must be provided under subsection (1) includes, in particular, assistance and encouragement with a view to facilitating securing the safety of disabled people in or about higher-risk buildings in relation to building safety risks as regards those buildings.”Member’s explanatory statementThis amendment provides that the regulator must in particular provide assistance and encouragement to relevant persons with a view to facilitating their securing the safety of disabled people in or about higher-risk buildings.

Photo of Lord Greenhalgh Lord Greenhalgh The Minister of State, Home Department, Minister of State (Department for Levelling Up, Housing and Communities)

My Lords, I open this group by introducing a set of amendments that respond to many of the issues raised during previous debates on this Bill. I hope that these changes will be welcomed.

I start with a change that I trust will be welcomed across the House: the removal of the building safety manager. Following feedback from leaseholders and persuasive interventions from noble Lords during Committee, we are scrapping the legal requirement to appoint a building safety manager. I thank noble Lords, including the noble Baronesses, Lady Fox of Buckley, Lady Pinnock and Lady Hayman of Ullock, the noble Lord, Lord Thurlow, and my noble friend Lady Neville-Rolfe for their thoughtful contributions on this important matter.

The Government are clear that accountable persons are responsible for ensuring that their buildings are safe and must not pass on unnecessary costs to leaseholders. We must restore common sense on building safety. There are more effective ways of discharging the responsibilities set out in the Bill than recruiting managers on high salaries for individual buildings.

Accountable persons should reflect on their current management arrangements. If they are confident that they deliver safe outcomes, there is no reason for change. We are committed to driving up standards of safety management and maintenance in high-rise buildings and the competence of those who deliver it. In the first instance, this should be done by supporting the development and upskilling of those already managing buildings. The Government will continue to work towards raising professionalism and standards among property agents and are considering the recommendations of the working group of the noble Lord, Lord Best, on regulating the market. We will continue to work with industry on improving best practice.

I turn now to our amendments to the building safety charge. I have listened to the feedback that we have received from stakeholders and in the other place and I thank my noble friend Lord Young of Cookham for raising this matter during Committee on the Bill. I recognise the concerns raised—that the building safety charge as previously envisaged could have created additional bureaucracy for landlords and leaseholders alike—and I have listened to those concerns.

The amendment simplifies how the costs are managed by removing the building safety charge as a separate charging mechanism. We will do this by changing the modifications that we are making to the Landlord and Tenant Act 1985. Building safety costs will now be accounted for as part of the service charge, as my noble friend recommended. The costs will be clearly identifiable and part of a system that is familiar to both landlords and leaseholders, thereby ensuring transparency of the costs. As the building safety charge will be incorporated into the service charge, the legislative protections against forfeiture will already be in place, so I am removing the amendments related to forfeiture that were laid in the other place.

I move on to how we can strengthen the voice of disabled residents. I am particularly grateful to the noble Baroness, Lady Grey-Thompson, for tabling amendments in Committee to highlight this important matter. The Government and the Health and Safety Executive are committed to providing residents with diverse backgrounds and lived experiences—including, in particular, disabled residents—with a strong voice in the new regulatory system. We have therefore brought forward amendments to ensure that the building safety regulator will have to pay particular attention to the safety of disabled people in high-rise residential buildings and engage with them.

Amendment 3 ensures that the building safety regulator must particularly focus on the safety of disabled persons when undertaking its broad Clause 4 functions around safety in higher-risk buildings. Amendments 5 and 6 are consequential amendments. Amendment 9 provides that the building safety regulator must take all reasonable steps to ensure that its residents panel contains representation from individual disabled residents of high-rise residential buildings or groups that represent or support disabled residents. Groups may be represented corporately or by an individual member expected to be sponsored by the organisation. Amendment 12 requires the building safety regulator to report publicly about its engagement with disabled residents of high-rise residential buildings in its wider annual statement on resident engagement. Amendment 14 defines “disabled”, using the widely used definition from the Equality Act 2010.

I thank those noble Lords who made important points about resident engagement in Committee, particularly the right reverend Prelate the Bishop of St Albans. We have listened carefully to them and are making appropriate amendments to the Bill. The Bill puts residents at the heart of the building safety regime and gives them a clear voice in building safety matters. These amendments take this even further and oblige the principal accountable person to consult residents at prescribed times on the residents’ engagement strategy. This means that residents have the opportunity to comment on the form of the strategy and that those responsible for the safety of the building must listen to such comments.

To avoid any doubt, we have also made it clear that the principal accountable person will be obliged to act in accordance with the strategy. This means that residents and the building safety regulator will be able to hold principal accountable persons to account for their commitments made in the residents’ engagement strategy.

I thank the noble Lord, Lord Best, and my noble friend Lady Neville-Rolfe for raising the important matter of resident management companies assuming accountable person duties under the new regime. I have sought to address this issue through collaboration with the noble Lord and will accept his technical, non-government Amendment 86 to my Amendment 85. This will ensure that all resident management companies that are an accountable person have the option to appoint a professional director to support them with their Part 4 building safety duties.

These amendments give a power to the Secretary of State to set out in regulations the detail of provision that will be implied into articles of association of resident management companies to enable this. They imply terms into leases so that costs of the appointment can be recoverable as a service charge under the lease. The amendments apply retrospectively. Through secondary legislation, we will apply leaseholder consultation requirements to protect leaseholders from paying unnecessarily large sums as a result of appointing a professional director and ensure that, where professional directors are appointed, they can also be easily removed when required.

Amendment 263 provides that, where a paid professional director is appointed to support building safety, all unpaid directors of the resident management company will be relieved of their personal criminal liability under Part 4. Resident management companies will continue to be liable for any contraventions that may occur, maintaining the principles embodied throughout the Bill of clear responsibilities and accountability. All the elements of this amendment enable resident management companies to remain in control and responsible for their buildings, while enabling them to obtain the professional support that they may need to meet the duties of our new building safety regime.

I am grateful to noble Lords and the Delegated Powers and Regulatory Reform Committee for their careful scrutiny of the delegated power in Clause 12. Noble Lords will be aware that we have responded to the committee’s report in detail. The provision in Clause 12 to repeal statutory committees was included in the Bill on the expert advice of the Health and Safety Executive that this power is needed to enable the committee structure to adapt and improve over time. I understand that the House has concerns that this power might be used by Ministers for other reasons.

I am grateful to the chair of the Levelling Up, Housing and Communities Committee in another place for suggesting a potential safeguard, which the Government propose to accept, through Amendments 10 and 11. These amendments ensure that the power to repeal provision for a statutory committee may be used only following a proposal by the building safety regulator. A statutory committee could not be repealed merely on the initiative of Ministers. Proposals for regulations would come to Ministers only after the regulator had consulted on them and regulations under this clause would continue to be subject to the affirmative procedure.

I hope that the House will welcome these changes and additional safeguards and that it will support these amendments.

Photo of Baroness Pitkeathley Baroness Pitkeathley Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the noble Baroness, Lady Brinton, is taking part remotely. I invite her to speak.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health)

My Lords, I declare my interests as a vice-president of the Local Government Association, as vice-chair of the All-Party Parliamentary Group on Fire Safety and Rescue and as a disabled person. The noble Baroness, Lady Grey-Thompson, is unable to be in her place this morning as she is attending the memorial service for the Duke of Edinburgh in her role as chair of the Duke of Edinburgh’s Award scheme.

In Committee, the noble Baroness, Lady Grey-Thompson, and I both spoke of our experience of the use of personal emergency evacuation plans, or PEEPs—good practice, and less good practice. I will not repeat that today but one thing is clear: the responsibility for getting safely out of a building should not be on the shoulders of a disabled resident alone. That is why I have laid Amendments 13, 20 and 35, and I thank the noble Baronesses, Lady Grey-Thompson and Lady Hayman of Ullock, for signing them. The amendments set out a clear link between the duties under the Equality Act 2010 for those providing services for disabled people—in this case, housing and safety in buildings.

Amendment 13 would put into law that a statement must have been laid by the regulator that they have engaged with their residents in relation to the accountable person’s duty to avoid disability discrimination. Amendment 20 would amend Section 31 of the Equality Act by adding a specific reference to a person exercising functions in relation to public housing. Amendment 35 would create a duty on the accountable person to include developing PEEPs for people with a disability in order to avoid disability discrimination.

I believe that the amendments are necessary because I want to see clarification that Part 3 of the Equality Act 2010 applies to social landlords and that, as a result of Part 3, there is an anticipatory duty on social landlords to prepare PEEPs for disabled residents. There is a limited time for the relevant government body to prepare statutory guidance and a code of practice in relation to this.

I thank the Minister for his amendments, starting with Amendment 3, which talks about the “assistance and encouragement” that must be provided. Unfortunately, that is a long way from the current requirement for the responsible people in offices and other public buildings, including hotels, to make formal arrangements that ensure that a disabled person can leave a building that is dangerous whether due to suspected fire, chemical escape—such as at the Olympic Park swimming pool last week—or anything else that puts people at risk. The other amendments tabled by the Minister, and indeed his letter to signatories of my amendments that arrived at 10 am this morning, for which I thank him, talk about the government consultation, but the Government have been consulting on this specific matter since the early days of the Grenfell inquiry.

Why do we believe that there needs to be stronger reference to the Equality Act and to PEEPs? Week 68 of the Grenfell Tower inquiry took substantial evidence from witnesses in relation to the provision of communication and engagement with disabled residents and how they were—or were not—able to leave Grenfell Tower safely. They were not. Over 40% of disabled residents died in the fire, a far higher percentage than any other category of resident. There were no PEEPs. Not only was there no guidance but, as I will refer to, any arrangements for disabled people were actively discouraged by the government adviser and government officials.

Inside Housing has reported on week 68 of the Grenfell Tower inquiry last week, saying:

“Government-endorsed guidance in use at the time said the provision of such plans was ‘usually unrealistic’, and staff at the Kensington and Chelsea Tenant Management Organisation … which managed the tower, previously cited this guidance in explaining why they did not provide any.”

As I said in Committee, Colin Todd of CS Todd & Associates, the consultants who wrote the guidance document for the Government, said:

“The consensus opinion of the project group was that it should be acknowledged in the guide that PEEPs were impracticable.”

However, the inquiry heard that Louise Upton, the former head of the fire safety policy team at DCLG, thought it was not a

“deliberate decision to exclude representatives” of the disabled community.

The inquiry notes that the failure to provide escape plans resulted from that guidance being used by the KCTMO, but the Chief Fire Officers Association had raised concerns and warned that to

“ignore and eliminate advice on disabled access and evacuation is a fundamental error of the document” and it

“is recommended that it must be included”.

Elspeth Grant, a fire safety consultant with TripleAconsult, wrote to Sir Merrick Cockell, then chair of the LGA and leader of the Royal Borough of Kensington and Chelsea Council, when the guidance was published to say that it was unlawful and discriminated against disabled people, calling for it to be withdrawn

“before this guidance leads to an unnecessary tragedy because plans were not in force”.

Just yesterday at the inquiry, Brian Martin, another official, said that the Government ignored the warnings about PEEPs for disabled people as they were “too expensive” to put into practice. The first phase of the inquiry recommended the provision of PEEPs for residents of high-rise blocks, but that is not what we are seeing now. Instead, the Government are still consulting.

In an email enclosing a letter that arrived this morning, the Minister said that the mandating of PEEPs via the Building Safety Bill “is not the answer” and that his approach using the EEIS has now been shared with the National Fire Chiefs Council, which is

“supportive of this way forward”.

However, the letter from the National Fire Chiefs Council that he attached reads somewhat differently. Yes, the fire chiefs are happy to be part of any consultation, as they should be, but their letter goes on to say:

“We would like to take this opportunity to highlight the benefits, within the independent research and any further consultation, of engaging with relevant stakeholders in informing any further work on PEEPs. Such stakeholders are far reaching, and we suggest they should include the EHRC, disability representative groups, leaseholder representative groups and representatives from the Grenfell community groups.”

They do not say that mandating PEEPs is not the answer. They say that the Government need to listen to key stakeholders, who must be involved in the discussions.

Attached to the letter that the Minister circulated is an unidentified PDF; I think that it comes from the department but I cannot see that. It highlights the “substantial difficulties” of mandating PEEPs in high-rise buildings—those of practicality, proportionality and safety. The very fact that government guidance believes that providing safe egress for disabled people is too difficult and too expensive is what led to the appalling 2011 guidance. Not mandating responsibility for the safety of disabled people to the accountable or responsible officers for the building will continue to put disabled people in high-rise blocks at risk.

It is only when a fire alarm goes off that a disabled person, stuck in a building and waiting for help to leave safely, begins to understand how vital PEEPs are. Let me say this again: 40% of the disabled residents in Grenfell Tower died because there were no systems in place via PEEPs to get them out safely. If the Government will not support disabled people living in high-rise buildings by ensuring that those responsible for the building must have plans to help them leave, the only alternative is for the Government to provide housing for them that is safe.

I am grateful to the Minister because, in the last hour, his office has proposed a meeting for tomorrow. I thank him for that but, if progress is not made at that meeting, I plan to bring back amendments at Third Reading. This is truly a matter of life and death.

Photo of Lord Blencathra Lord Blencathra Conservative 12:30 pm, 29th March 2022

I rise to comment on the disabled amendments that the Government have laid, including the one that was just moved. I will also comment briefly on Amendments 46 and 47, which have not yet been spoken to by the noble Baroness, Lady Fox of Buckley, and speak to Amendments 39 and 40 on behalf of the right reverend Prelate the Bishop of St Albans, since he is unable to be with us at this time of the morning.

I commend the Government for listening to my noble friend Lady Grey-Thompson in Committee and on all the amendments that they have brought forward today. Having been bored on the train when I was heading up north last week, I counted on the Order Paper more than 220 government amendments and 50 proposed new clauses. That is an extraordinary achievement and shows the extent to which my noble friend the Minister has been listening, as well as what he has been able to drive forward—principally because the Secretary of State, my right honourable friend Michael Gove, gets it and understands what needs to be done. So, although my noble friends and I may move a few amendments today, and perhaps force them to a vote, I do not want the Minister to think that we are being churlish. We appreciate the huge distance that the Government have travelled; we just think that there may be one or two more gaps that we need to fill.

I would be grateful if the Minister could reassure me as to why the disabled amendments that we have just heard noble Lords speak to may not be necessary or why there may still be an essential gap there. I thought that the government amendments were adequate but I am keen to hear his explanation.

I will speak briefly to Amendments 46 and 47 in the name of the noble Baroness, Lady Fox. In Committee, I tried to make the point that the burdens on leaseholders are much heavier than those on building safety managers and others, who seem to have unlimited rights to impose fines and penalties and invade homes to check on things without good reason. I am keen to hear what the noble Baroness has to say about her amendments, which state that such persons should be able to access leasehold flats only when it is essential to do so.

My main purpose this morning is to speak to Amendments 39 and 40 in the name of the right reverend Prelate the Bishop of St Albans, which I was pleased to sign up to as second fiddle. The good news is that I shall not need to make my own speech and bore the House. The bad news is that my speaking on behalf of a right reverend Prelate may do irreparable damage to the Church of England, so I hope that does not occur. He says:

“First off, I would like to express gratitude to the Minister for tabling his Amendment 38 and the overall listening approach he has taken to the concerns of the House throughout the passage of this Bill. I hope that this is at least some indication on the Government’s part that they are still working through the imperfections of this Bill, and that they might respond with amendments at Third Reading in response to problems noble Lords and Baronesses” have raised and will raise today. He continues:

“I will be frank and say that although I am pleased the Government did respond to the concerns I raised at Committee stage by tabling Amendment 38, the content of it is admittedly limited. The reality is that the principal accountable person could take representations from or hold consultations with the relevant tenants or leaseholders on matters” relating to building safety

“without necessarily integrating their concerns into the Residents Engagement Strategy. It appears entirely discretionary on the accountable person as to what enters into this strategy. In fact, because Amendment 38 also requires the accountable person to act in accordance with the strategy” that, from conversations he has had with others,

“would seem to imply that a failure to act in accordance with the strategy could be flagged up to the Building Safety Regulator. The question then is simple: why would an accountable person commit to include something in an engagement strategy that could later be used against them?”

However, the right reverend Prelate says:

“I do not want to hastily dismiss what the Government are trying to do here as the foundations contained” within the amendment require only

“an ever so slight tweaking to better ensure that the accountable person acts in accordance with a strategy that actually reflects the views of residents, rather than the current vague requirement to just ‘take any representations … on the consultation into account when next reviewing the strategy’”.

Personally, I think that he has made a very good point there. He continues:

“Amendment 39 would mildly alter Amendment 38 to ensure that the accountable person takes any representations made on the consultation into account” and then changes

“‘the strategy to reflect the balance of representations made’. This remains imperfect but it does at least in part remove the discretionary basis for deciding the content of the strategy by adding a protection to ensure that the strategy reflects” that balance. He then says:

“Even with this change, the accountable person will hold immense discretionary power since it is … incumbent on them to interpret the balance of representations made” so that the accountable person still has the whip hand.

“However, it would alter the relationship when formulating the strategy from the accountable person as its absolute sovereign to the accountable person as the interpreter of the general will. The accountable person will ultimately be the individual who determines the content that enters into the residents engagement strategy. Amendment 39 provides just an inch of breathing room to better guarantee that it does reflect the views of tenants and residents”.

Amendment 40, says the right reverend Prelate,

“admittedly is far more wide ranging and acts as a direct extension” of his previous amendment in Committee,

“which would have mandated recognised residents associations for the purpose of consultations on building safety issues. I did recognise the Government’s discomfort at the prospect of mandating anything, particularly where there exists an amicable relationship between the freeholder and the leaseholders or tenants. For this reason, I have tried to create a conditional avenue by which a freeholder must set up a residents association. The condition being that as part of consultations on the residents engagement strategy, the accountable person must consult with residents on whether to create a recognised tenants association, and create one, for the purpose of consultations on building safety decisions, where it turns out there is a simple majority demand from residents” to so have one. He continues:

“I believe a conditional requirement for recognised residents’ associations would help mitigate some of the abuses that do exist within the system. In Committee, I referenced the case of a freeholder who charged residents a 100% markup on window repairs and also spent £74,000 in a court battle to prevent residents from forming a recognised tenants’ association. I cannot speculate on how many other leaseholders have suffered similar abuses at the hands of their freeholder. However, I know the Minister is as appalled by these abuses as I am.”

I share that point of view. He continues:

“The Government do recognise the need to reform the leasehold system”— something we all look forward to in, we hope, the next Queen’s Speech on 10 May.

“For this reason, I do not want to press the Government on Amendment 40 other than to ask the Minister to look seriously at how recognised tenants’ associations can be more widely promoted and more easily set up, as well as perhaps to expand their remit to encompass matters relating to building safety issues so that there is actual accountability and scrutiny when it comes to the charges they incur.

However, I would still impress to the Government the need to strengthen Amendment 38 so that there are greater safeguards to guarantee that residents’ engagement strategies better reflect the views of residents. I believe Amendment 39 presents a sensible compromise to solve this problem. The authority to decide on what is contained within the residents’ engagement strategy remains with the accountable person but in a manner that is more conducive to capturing the balance of residents’ views.

Finally, I would just like to note a few other amendments in this group. I welcome the sentiment of Amendment 36 within this group and the duty it places on the accountable person to achieve best value. I welcome the Government’s decision to remove the building safety manager”—

I think we all welcome that—

“and I would congratulate the noble Baroness, Lady Fox, on making the strong case for its removal in Committee. Of course, some of the costs previously contained within the building safety manager will naturally be rebadged and passed on, it is inevitable. Nevertheless, since it is now discretionary on the accountable

I would also quickly offer my support to Amendments 13, 20, and 35, and the protections they afford to those living with disabilities, which I welcome.”

It has been a privilege to deliver this speech on behalf of the right reverend Prelate. I say to my noble friend that this was not Blencathra talking; I was speaking from a much higher authority today and expect him to pay particular attention to Amendment 39.

Photo of Lord Young of Cookham Lord Young of Cookham Conservative

My Lords, I will intervene very briefly to welcome the Government’s amendments, particularly Amendment 100, which removes Schedule 8 and abolishes the building safety charges as separate charges. As my noble friend the Minister mentioned in his opening remarks, I spoke to an amendment in Committee which did exactly that, pointing out the extra costs and potential confusion that two separate charges could result in. I recommended that the building safety charge be incorporated into the service charge but shown separately. I welcome this simplification, as will leaseholders. I am grateful to my noble friend for listening and responding.

I will very briefly support Amendments 39 and 40 in the name of the right reverend Prelate the Bishop of St Albans, and so ably spoken to by my noble friend Lord Blencathra, who may find himself invited to deputise at pulpits in and around St Albans as a result of his performance. If there is no provision in the Bill to ensure that residents have a collective voice, the accountable person—normally the landlord—will have a huge interest in ensuring that residents are not organised and enabled to resist any costs that the landlord wishes to impose on them. The current government proposal just says that the accountable person should design an engagement strategy, whereas the amendments rightly go further, requiring a tenants’ association to be set up where that is what the majority want.

The amendment goes entirely with the grain of successive Governments’ policy to even up the terms of trade between leaseholders and tenants on the one hand and landlords on the other. I hope that the Minister can look benevolently on these proposals and perhaps at a later stage consider strengthening them further in the direction proposed by my noble friend.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 12:45 pm, 29th March 2022

My Lords, I will speak to Amendments 36 and 46. I was pleased to hear the noble Lord, Lord Blencathra, be so kind about my previous comments, but then I remembered that it was not him speaking. I thank whoever said something nice about the points that I was making.

I feel slightly awkward because, in some ways, I should be saying that I had a win in Committee, but here I am again. Amendment 36 seeks to insert a clause that would mean that

“an accountable person must take … steps to achieve best financial value” for leaseholders. It would require the Secretary of State to issue guidance to ensure that this duty is taken seriously. This is to focus the mind on the danger that we have seen throughout this Bill where, in the name of safety in a Bill taking on the grave injustice suffered by leaseholders of having to pay for building safety remediations, sometimes the solution inadvertently creates even more layers of disproportionate, overly cautious and risk-averse regulation and bureaucracy, which result in spiralling and never-ending sets of additional costs for leaseholders.

After Committee, when announcing the changes that the Government were making to the Bill, the Secretary of State, Michael Gove, said that they had listened to leaseholders’ concerns and were

“removing the requirement for a separate building safety charge and scrapping compulsory building safety managers, to help avoid unnecessary costs.”

Brilliant, I thought. When the Minister then told me that there would now be no building safety managers, I must confess that I was delighted. My amendment to abolish the building safety manager role was the first amendment that I had ever tabled and I had had a win. However, before I got the bunting out and allowed myself to indulge in any backslapping, I was brought to a pause by leaseholders, who noted:

“Small gains towards fairness, decency & common sense do not equal an overall ‘win’, the battle is v much ongoing!”

It is important that the Government have listened. A little like the noble Lord, Lord Blencathra, I should say that any caveats that I raise now are not intended to be churlish. However, it is precisely because I accept the assurances of the Minister and Michael Gove that they want to ensure that there are no unintended outcomes from the Bill in terms of avoidable unnecessary costs that I have tabled this amendment, which gives guidance a chance to push home the point that value for money for leaseholders is a very important thing.

This is not just about my fears around what might happen or leaseholders being paranoid. At a sector conference—Leasehold London 2022—Shaun Lundy, a chartered health and safety practitioner and a supporter of building safety managers, reflected on what removing that role would mean. He said that what worries him a bit is that some of the onerous duties are still there so, even if you get rid of the role, it still leaves a void over who will do the work. He worried out loud about the danger of creating “a disproportionate industry” and “another layer of bureaucracy”, especially in relation to the new duty to create safety case reports. He noted that, although some reports he had seen were sensible, others were completely over the top; he gave the example of a 50-page report costing £50,000 but with no tangible benefit. The building safety manager may therefore be dead but, for some, it is “Long live the building safety manager and their duties”. Dame Judith Hackitt’s call soon after Grenfell that it was not good enough to wait for a change in the law and that freeholders had to act has led to something of a panic reaction and has often been taken literally.

Just to give you an example, I will tell you the story of Aviva leaseholder Sarah from the Quadrant in Salford. With no law passed, her managing agent, Contour Property Services, has charged her and her fellow leaseholders for a building safety manager. What is more, it has appointed an additional building safety co-ordinator. In correspondence with the lease-holders, Contour writes of balancing “value for money” against taking

“appropriate measures to meet new safety requirements”.

Then the killer line tells them, almost casually as an afterthought:

“As a result of these appointments, there will be an increase in your service charges.”

There they are, in the small print, for the forthcoming year from April 2022 to March 2023. If you look at the small print in the bill, as I have, the building safety manager is there at £21,249.50. The cost of the part-time safety co-ordinator is £11,702.56 and this is charged to the leaseholders.

This might be blatant but, even if there is no direct mention of the building safety manager, it seems that they are lurking in the shadows, rebadged or slightly in disguise, but ever present none the less. The heavily administrative substance of the duties that they were meant to take part in remains in the Bill. Many of these duties are based on the precautionary principle, sadly interpreted through the prism of zero risk and often disproportionately focused on myriad possible risks rather than clearly defined dangers. In Sarah’s case, one of the listed duties is writing and maintaining the building safety case for the building, which shows that all the potential risks have been considered and mitigated. Never mind the cost of the building safety case itself, who will pay to resolve all the potential risks?

The question is whether the removal of the legal requirement to appoint building safety managers is strong enough to, in effect, stop them being imposed. This amendment asks the Government to note that the genie is out of the bottle, but the Secretary of State has the opportunity to ensure, in guidance, that the sector should not just rush to risk-averse costly solutions because they have once been suggested, but should instead focus on whether costs are proportionate to real risks and ensure that value for money is a barrier to costs just being dumped on leaseholders via service charges or other nefarious routes.

Of course, it is not all about money. We have to consider human costs, too. There is no point in knowing the cost of everything but ignoring the non-monetary value of homes for people, discussed so eloquently in the group beginning with Amendment 1.

Amendment 46 focuses on tightening the ability of freeholders, landlords and managing agents to force entry into leaseholders’ homes. When I raised this in Committee, there was understandable concern. People wanted to say, “What if there is an emergency? You need to be able to enter.” We can all think of such instances. I know that that happened with a burst pipe in a flat above mine, with water pouring into the flat below. You need to be able to get in to turn the water off, but this should be a last resort. This modest amendment simply aims to reinforce that point and to give leaseholders some power in that decision.

At present, despite limited rights for leaseholders, which have become increasingly clear since building safety issues came into the public realm, landlords have been under an implied obligation—as the ideal—to give the tenant or leaseholder “quiet enjoyment” of the property and they should not interfere with that. If you read the literature around building safety, you will discover an increasing clamour to challenge the idea that leaseholders have any rights to stop entry into their homes, presenting leaseholders as obstacles to safety.

For example, in the Safer People, Safer Homes: Building Safety Management report of a couple of years ago, there are complaints of

“Leasehold … units … purchased by their owners, who are not culturally accustomed to the notion that the owner … has any jurisdiction over their home.”

The landlords complain that access for owners and their agents is just too difficult. Extraordinarily and insultingly, the assumption is that, behind leaseholders’ front doors, they all behaving as fire hazards, irresponsibly ignorant of risks. Leaseholders are painted as ill-informed problems:

“Most will have no comprehension as to fire (or other safety) principles and their place in the matter.”

The report demands:

“Timely intervention on a statutory basis is needed to enable prompt access” in order to

“monitor or assess risk and condition.”

My concern is that all these checks, monitoring and assessment will mean demands for entry beyond any reasonable bounds of common sense. Leaseholders themselves are anxious that the Government press home that this is not encouraged, and that the Government ask key questions of landlords.

Amendments 46 and 47 would restrict the power to enter people’s homes unless it was essential and would make it clear that the court must be satisfied that it was necessary to grant entry only in extreme circumstances, not just because an accountable person had sent a notice demanding entry for building safety purposes so vaguely defined that they could include anything from the overuse of scented candles to fridge inspections. I am just waiting for smoking in one’s home to become a listed fire risk, although I do not want to give that idea to the Government.

I make a final plea that leaseholders’ property rights are not just to be shooed away and a final reminder—one that I will return to later—that we should avoid pushing a narrative that assumes that all blocks of flats are inherently dangerous and at high risk of fires, creating a climate of fear that then justifies the surveillance and monitoring of leaseholders in their homes and the reorganisation of everyone’s lives around hypersafety and zero risk at great cost, both financially and in the human sense of civil liberties and privacy rights, to those homeowners who are unfortunate enough to be leaseholders as well.

Photo of Lord Best Lord Best Crossbench

My Lords, I shall say a few words on behalf of my noble friend Lady Grey-Thompson in respect of Amendments 13, 20 and 35, to which her name is attached. As the noble Baroness, Lady Brinton, explained, my noble friend sends her apologies; she is attending the thanksgiving service for His Royal Highness the Duke of Edinburgh in her capacity as chair of the wonderful Duke of Edinburgh’s Award scheme. I think we all agree that that event should take priority.

She wanted her thanks to the Minister and his officials to be recorded for the new amendment, which will require the regulator to report regularly on engagement with residents who are disabled. She has greatly welcomed constructive talks outside the Chamber and is keen to keep working with the Minister on personal emergency evacuation plans to meet the needs of people with disabilities so that they have correct and useful information and can feel safe where they live.

Amendment 86 in this group is in my name and that of the noble Baroness, Lady Neville-Rolfe. I will also comment on government Amendments 73, 85 and 263. In Committee, I raised the issue of leaseholders managing their own blocks of flats who would be given onerous new responsibilities for safety issues by this Bill. These new duties and liabilities could deter many from acting as the voluntary unpaid directors of their resident management companies and right-to-manage companies. These self-managed blocks depend on their volunteer directors to give up their time—and, indeed, risk falling out with their neighbours since not all their decisions will be popular with everyone—but who wants to risk a criminal prosecution and a criminal record for failing to carry out all the correct safety actions required of an accountable person by the Bill? Recruiting and retaining volunteers to be directors of resident-run companies is already difficult yet there is widespread agreement that more, not less, leaseholder control should be strongly encouraged.

The Minister has recognised the issue and brought forward government Amendment 73 to enable lease-holder-controlled companies to take on board a paid expert building safety director to provide this service to the company if, and only if, the leaseholders wish to delegate the job. Amendment 85 means that the cost of engaging that professional as the person responsible for building safety can be included in the service charges for all residents. These government amendments are very welcome; I thank the Minister very much for listening to the arguments and acting accordingly.

However, the Institute of Residential Property Management and the Association of Residential Managing Agents—they are now becoming a single entity, to be known as the Property Institute—noticed one obstacle to the Government’s otherwise excellent solution: quite a few resident-controlled companies prohibit the appointment of any director who is not themselves a leaseholder in the block. My amendment would address that point and enable an external expert safety director to be appointed in such circumstances, with necessary protections on costs and the ability to get rid of the building safety director if the arrangement does not work out.

In the not-too-distant future, we discuss leasehold reform and improvements to the commonhold system whereby the occupiers of blocks of flats or groups of homes both own and manage them directly. These amendments pave the way for those discussions. They send out a signal for future developments that resident control will be supported and facilitated, not overburdened and undermined by extra regulatory requirements on their volunteer directors.

Following helpful discussions, the Minister has explained that our Amendment 86 is acceptable to the Government. I am delighted to move it as a technical but necessary addition to the provisions of the Bill, with repeated thanks to the Minister, who has listened to the arguments and acted accordingly.

Photo of Lord Stunell Lord Stunell Liberal Democrat 1:00 pm, 29th March 2022

My Lords, first, we very much welcome the way the Government have moved on this. We appreciate that the Minister has aimed to build consensus for the changes and amendments that he has now brought forward. Several points have been made by noble Lords, in particular my noble friend Lady Brinton, about gaps that remain and uncertainties about implementation. We look forward to hearing how the Government feel they can respond to those, if not by accepting specific amendments then at least by setting out a clear way of engaging with those who have legitimate concerns to find out how they can be best resolved.

On my own behalf, I thank the Government for government Amendments 10 and 11, which safeguard the building safety regulator’s committees from interference by the Secretary of State unless a request is made by the regulator to change the internal structures of the body. That is a necessary and very welcome change. Our overall view is that these government amendments earn our support—we certainly support their rapid implementation—but the loose ends that have been discussed by noble Lords and drawn to the Minister’s attention need attention. We very much look forward to hearing the Minister’s response to them.

Photo of Baroness Hayman of Ullock Baroness Hayman of Ullock Opposition Whip (Lords), Shadow Spokesperson (Environment, Food and Rural Affairs), Shadow Spokesperson (Levelling Up, Housing, Communities and Local Government)

My Lords, I start by thanking the Minister for his introduction to a large number of government amendments. Like other noble Lords, I think it is really important that the Government listened to a lot of our debate in Committee and have brought forward these amendments, as well as others that we will discuss later, in response. It is good that we are making such excellent progress in some areas. I also thank the officials in the department, who have been incredibly supportive and helpful in spending time with me to help me understand the huge number of amendments we had to consider at quite short notice; I very much appreciate that work.

However, as the noble Lord, Lord Stunell, said, there are still a few areas where people feel there is a bit more to be done; they are addressed by the amendments we have been looking at. I start with the three amendments in the name of the noble Baroness, Lady Brinton. I was pleased to add my name to them, as did the noble Baroness, Lady Grey-Thompson. There was a lot of discussion in Committee about the need for disabled people to be more supported. I am pleased that the Government brought in amendments to strengthen the voice of disabled residents; that is extremely important.

Starting with Amendment 13, the noble Baroness, Lady Brinton, mentioned that 41% of the disabled people at Grenfell Tower were killed in the disaster, which is an appalling figure. Anything that can be done to ensure that something like that does not happen again in a fire is terribly important.

The noble Baroness also talked about the Equality Act on her Amendment 20. It is really important that we consider how building safety can affect different groups listed with protected characteristics under that Act. This could also include pregnant people, who may need more support in getting out of a building. As a protected characteristic, it is important that that is taken into account, as someone who is very elderly and vulnerable should be.

I am pleased that the Minister has offered the noble Baroness a meeting on her Amendment 35, on personal emergency evacuation plans, because this is really important. I was quite concerned that none of the Grenfell Tower residents had been offered a personal emergency evacuation plan. Again, we need to ensure that in future these things are better managed, so I thank the noble Lord for his time on that.

I turn to the amendments in the name of the right reverend Prelate the Bishop of St Albans. I thank the noble Lord, Lord Blencathra, for introducing these amendments and look forward to his first sermon in the not-too-distant future, we hope. Again, these two important amendments draw attention to areas that need to be looked at further. Government Amendments 37, 38 and 41 to 45 look specifically at tenants’ associations and principal accountable persons. This was also much discussed in Committee, where it needed further work. I would like to talk a bit about the resident tenants’ associations because, as I think the noble Lord, Lord Blencathra, said, they need to be more widely promoted. This is a really important part of managing safety going forward.

Recognised tenants’ associations give owners of leasehold flats important rights. To become recognised, an association must have agreement from more than 50% of qualifying leaseholders. They then have the right to request information from the freeholder of their block, such as about the service charge account, which again was discussed a great deal in Committee. It is really important that resident tenants’ associations are properly recognised and more widely promoted. Again, when looking at consultation, they are a vital part of understanding better what residents’ needs and concerns are.

I turn briefly to the amendments in the name of the noble Baroness, Lady Fox. Her Amendment 36 raises the important issue that leaseholders need value for money. On her other amendments regarding entering buildings, it is important that tenants are properly protected in this way. Only when something essential is happening safety-wise can flats be entered, and it is really important to say that. I also welcome the fact that the government amendments remove the building safety manager. As the noble Baroness said, it was important that the Government listened to her clearly laid out concerns in Committee.

Along with the noble Lord, Lord Young of Cookham, we very much welcome the amendments to the building safety charge, and the fact that the Government have accepted the amendment of the noble Lord, Lord Best, which will make a very sensible and practical change going forward, as he said. I look forward to the Minister’s response.

Photo of Lord Greenhalgh Lord Greenhalgh The Minister of State, Home Department, Minister of State (Department for Levelling Up, Housing and Communities)

My Lords, I start with Amendments 13, 20 and 35, which relate to disability discrimination. I thank the noble Baroness, Lady Brinton, for tabling these amendments, but I am afraid the Government will not be able to accept them. However, we were all struck by the statistic that more than 40% of the disabled residents of Grenfell Tower died in that tragedy, and the Government are committed to supporting the fire safety of the vulnerable. We are particularly aware of the need to improve the safety of those with mobility concerns. As the noble Baroness mentioned, I have committed to meet with her and I have met with the noble Baroness, Lady Grey-Thompson, on a number of occasions.

As noble Lords are aware, we ran a consultation on personal emergency evacuation plans last year. This highlighted the substantial difficulties in mandating PEEPs in high-rise residential buildings, especially around practicality, proportionality and safety. I shared some of our thinking, admittedly quite late before this debate, with the noble Baroness, Lady Brinton, because it is important to recognise that this thorny policy issue requires a considerable amount of work and collaboration with the fire and rescue service.

We will publish the Government’s response as soon as possible and explain these concerns in more detail. Our response will include a commitment to undertake a new consultation on this proposal for emergency evacuation and information-sharing—an EEIS. One of the things we learned about from the Grenfell Tower tragedy is the ability to locate people who are vulnerable and have mobility concerns, so that we can provide them with the support they need to safely evacuate those buildings where the “stay put” policy has been suspended. It is clear that information is critical. As are visits from the fire and rescue service to help advise them on how to make their properties that much safer. This is fundamental to ensure that we can provide the support that disabled residents require, so this EEIS proposal will give the fire and rescue service the information it needs on where people are located within higher-risk buildings that have a simultaneous evacuation strategy in place.

I completely agree—there is absolute unanimity on this—that accountable people must take all the appropriate steps to ensure that they comply with the law, not least in respect to protected characteristics. However, it is not clear what this amendment will achieve beyond the requirements that already appear in the Equality Act, which I will describe shortly.

Furthermore, an accountable person’s duty to manage building safety risks under the Bill extends to limiting their impact, should an incident involving the relevant building safety risks occur. This means accountable persons are already required by the Bill to consider how people might evacuate safely, if relevant to the building safety risk in question.

Amendment 13 would require the building safety regulator, in its statements of its engagement with residents, to outline the extent to which accountable persons have engaged with residents in relation to a duty to avoid disability discrimination by virtue of Amendment 35.

I agree with the noble Baroness, Lady Brinton, that disabled residents must be listened to and have their needs met. That is why we have tabled Amendments 3, 9 and 12, which require the building safety regulator to pay particular attention to the safety of disabled people in high-rise residential buildings. This includes seeking out disabled representation on its residents’ panel and publicly reporting on its engagement with the disabled residents of high-rise residential buildings. In relation to principal accountable persons’ proper engagement with disabled residents, it is clear that their responsibility to measure and review the effectiveness of their residents’ engagement strategy will apply to all residents, including those with disabilities.

On Amendment 20, activities relating to the exercise of a public function in the provision or management of public housing in relation to building safety will, depending on their nature and context, already be covered by specific parts of the Equality Act 2010. They may be within Part 3, “Services and public functions”, or Part 4, “Premises”. In other words, protection from discrimination, harassment and victimisation already exists for the users and residents of premises, irrespective of whether they are in public or private sectors, and subject to certain exceptions. A reasonable adjustments duty also arises in this field of activity.

Which part of the 2010 Act provides this protection will be case specific. The preliminary text of Part 3 provides that, if an act of discrimination, harassment or victimisation is made unlawful by other parts of the Act, including Part 4, which relates to premises, those provisions rather than those covering services and public functions apply. The depth or reach of protection between these two parts is broadly equivalent. Therefore, our conclusion is that Amendment 20 is unnecessary.

I now turn to Amendment 264A tabled by my noble friend Lady Neville-Rolfe. Unfortunately, the Government again cannot accept this amendment, which would require a review of the impact of the Act. I reassure my noble friend that a review is already required by Clause 152, which provides that the Secretary of State must—

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated 1:15 pm, 29th March 2022

That amendment has been degrouped; we are coming to it later, where I have a similar amendment. The Minister might want to wait until then.

Photo of Lord Greenhalgh Lord Greenhalgh The Minister of State, Home Department, Minister of State (Department for Levelling Up, Housing and Communities)

I am addressing my noble friend Lady Neville-Rolfe’s amendment; we will come specifically to group 6 from the noble Baroness, Lady Fox, in due course.

Photo of Baroness Fox of Buckley Baroness Fox of Buckley Non-affiliated

It is just that it has been degrouped to be with my amendment on the review. I was just explaining.

Photo of Lord Greenhalgh Lord Greenhalgh The Minister of State, Home Department, Minister of State (Department for Levelling Up, Housing and Communities)

I am referring to Amendment 264A tabled by my noble friend Lady Neville-Rolfe, not the amendment of the noble Baroness. If it has been degrouped, I apologise; my speaking notes have not kept pace with the regroupings of particular amendments, which have been prolific and frequent until the very last minute. In any case, we are not accepting my noble friend’s amendment; we may turn to it once again, in which case I will not repeat myself.

I turn to Amendment 36 tabled by the noble Baroness, Lady Fox of Buckley, which would require the accountable person to take all reasonable steps to achieve best financial value. We believe these protections are already in place. The Bill requires all accountable persons to take reasonable steps to manage building safety risks.

As part of this duty, accountable persons will be required to act in accordance with principles that will be prescribed in regulations. We have published these in draft to provide an indication of our intent. They include a requirement that, where reasonable to do so, accountable persons consider the impacts on residents within the higher-risk building and carry out engagement with them. There will be a full consultation on these regulations in due course.

Accountable persons need to be clear about the charges they pass on. This Government believe very strongly that service charges should show this. The law is already clear that service charges must be reasonable. Under the residents’ engagement strategy, residents will be able to participate in building safety decisions and can raise cost as an issue.

I turn to Amendments 46 and 47 on powers of entry, also tabled by the noble Baroness, Lady Fox of Buckley. The Government recognise the importance of safeguarding against the misuse of requests for access to residents’ premises by accountable persons. I reassure her that those intentions have already been met in the Bill.

Amendment 46 aims explicitly to require that a request for access must be essential to achieve a building safety purpose. I assure the noble Baroness that Clause 101 already does this. To be an enforceable access request under the existing drafting, it must be made for the purpose of fulfilling the accountable person’s building safety duties or establishing whether a resident has breached their building safety duties. Therefore, by its nature, the request will be essential to achieving a building safety purpose.

It is not clear how Amendment 46 would change the current requirement that an access request must be necessary for one of the purposes I just mentioned. It is important that we do not set the bar so high as to make access requests difficult to implement where necessary; accountable persons have important building safety responsibilities and must have the appropriate tools available to ensure the safety of all residents.

Amendment 47 would require that, when making an order to allow access to a resident’s premises, the county court must be satisfied that access is essential to achieve the requested purpose. I reassure the noble Baroness that the county court is already required to be satisfied that the granting of an order must be necessary, under Clause 101(4), and will consider what is appropriate when considering a request. Therefore, the intended effect of the amendment has already been met.

I turn to Amendments 39 and 40 tabled by the right reverend Prelate the Bishop of St Albans, but so ably delivered by my noble friend Lord Blencathra, on residents’ engagement. I thank my noble friend for addressing these amendments, but unfortunately the Government cannot accept them. Amendment 39 would oblige principal accountable persons to change the residents’ engagement strategy to reflect representations made by residents. The amendment is too restrictive, as there will be a number of factors that principal accountable persons must consider when updating the strategy.

The views of residents must also be weighed against other factors, such as the principal accountable person’s ability to deliver what residents want and the cost of doing so, which would of course be passed on to residents. It is right that we allow principal accountable persons the flexibility to determine how best to ensure the views of residents are represented and balanced alongside other building safety considerations.

In any case, government Amendment 38 already requires meaningful consultation with residents. If the principal accountable person fails to take residents’ representations into account when updating the strategy, residents will be able to raise a complaint, and escalate if needed to the building safety regulator.

Amendment 40 would oblige principal accountable persons to establish a tenants’ association where a majority of residents participating in the strategy consultation are in favour of one being established. The Government agree that tenants’ associations can be and are powerful tools for resident representation. However, they work best when established by residents rather than when mandated by landlords or managing agents. Residents already have the right to establish a tenants’ association under existing legislation and any proposed change to the arrangements for establishment of tenants’ associations is not a building safety matter.

I will touch finally on the amendment tabled by the noble Lord, Lord Best. I thank him for his constructive engagement with me over the last week, and confirm, as I said in my opening speech to this group, that I am happy to accept his amendment.

I think that we have covered most matters raised during the debate. I am really sorry to the noble Baroness, Lady Fox, that my speaking notes did not keep up with the groupings. She is the Oliver Twist of the House—I have noticed that she wins, and then asks for more. I thank all noble Lords who participated in the debate. I hope that, with the explanations and reassurances that I have given, they will be content not to press their amendments and to support the government amendments.

Amendment 3 agreed.