Clause 24> - Review by regulator of certain decisions made by it

Building Safety Bill – in a Public Bill Committee at 9:45 am on 21st September 2021.

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Question proposed, That the clause stand part of the Bill.

Photo of Clive Efford Clive Efford Labour, Eltham

With this it will be convenient to consider clause 25 stand part.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I will speak first to clause 24. The Government support the independent review’s recommendation that the new regulatory system should have

“a clear and easy route of redress to achieve resolution in cases where there is disagreement”.

I suspect that, from time to time, there will be disagreements. We are committed to ensuring that, where disputes occur in relation to regulatory decisions, they are resolved as quickly as possible for all parties involved. Our fundamental and overriding objective is to make sure that buildings and the people in them are safe.

The Building Safety Regulator will make a significant number of regulatory decisions under the new legislation. The approach to any disputed decision will be two-staged: first, an internal review by the regulator and following that, if necessary, an appeal to the tribunal. It will be in both parties’ interest that an independent team within the regulator carry out an initial review of any disputed decision. This will ensure swifter resolution for both parties.

Photo of Selaine Saxby Selaine Saxby Conservative, North Devon

The Minister has mentioned a two-tier approach, so will he clarify whether that will put lengthy delays into the whole process?

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I am obliged to my hon. Friend for asking that question. The very reason for having a two-stage process and an initial stage is to try to make sure that disputes that can be resolved quickly are resolved quickly and to minimise the number of disputes that go to the first-tier tribunal. That can be a more lengthy process. Our objective is to move as swiftly as we can through any disputes. We believe that will be for the public good.

As I have just said to my hon. Friend, clause 24 provides the legal basis for a person affected by the Building Safety Regulator’s decisions to request to have that decision internally reviewed. In the initial years of operation, we expect that there will be a substantial number of requests for review owing to the natural adjustment required by all industry actors to the new regulatory regime. We expect, and we intend, the Building Safety Regulator to make every effort to resolve disputes at the internal review stage. We believe that will be the swiftest way of achieving resolution. The right of appeal to the courts remains because individuals will be able to appeal against a decision made on review to the tribunal if they think it is unsatisfactory.

Photo of Brendan Clarke-Smith Brendan Clarke-Smith Conservative, Bassetlaw

The Minister has mentioned appeals. Will he say more about what the Government are going to do to ensure that the regulator is transparent in those appeals and in the outcome of the reviews?

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

We certainly want the system to be transparent and the outcome to be agreeable to both parties, so that things can be done as swiftly as possible. We certainly want to make sure that the right resources are made available to all parties to ensure that that can be done. I am grateful to my hon. Friend for highlighting the importance of swift and transparent resolution.

As I have said, the right of appeal to the courts remains and if I give an example of how the system may work in practice, it may assist the Committee and my hon. Friend the Member for Bassetlaw. Relevant duty holders may have submitted a full gateway-2 application with all its constituent parts. The Building Safety Regulator, however, finds some of these documents to be not compliant, so does not approve the application to enable construction to begin. The developer then lodges an appeal—an internal review—against the Building Safety Regulator’s decision within the period prescribed. The BSR then decides the most appropriate form of review and how comprehensive the review will be. If the developer is not content with the final decision of the regulator, they can appeal that decision to the first-tier tribunal. I might add that this clause is intended for certain types of regulatory decisions, such as the example of the refusal of a gateway application, but it does not include enforcement decisions, which will be appealable directly to the tribunal. The clause reflects our intention that, where disputes occur in relation to regulatory decisions, we want them to be resolved as rapidly as possible for all parties involved.

Where disputes regarding the regulator and its decisions occur, and given that the BSR will make a significant number of regulatory decisions, it is in all parties’ interests for them to be resolved in an expedient and expeditious manner. Clause 25 therefore specifies that a decision by the BSR, if disputed, must initially be reviewed by the regulator’s independent internal review procedure before an appeal can be lodged with the first-tier tribunal. The intention behind this clause mirrors that of clause 24, because it seeks to ensure swifter resolution for both the individual who has lodged the request and for the BSR by providing an alternative dispute resolution procedure. It is important that disputes are swiftly identified and rapidly resolved, we hope, to the satisfaction of all parties. We believe that the two clauses provide an expeditious set of methods, so I commend them to the Committee.

Photo of Mike Amesbury Mike Amesbury Shadow Minister (Housing, Communities and Local Government)

Again, we welcome the ability to request a review and the provision for a first-tier tribunal, which will create the necessary expertise going forward. The detail of quite a lot of the provisions is left to secondary legislation, so will the Minister expand on some of that? Would he also provide some clarity on the persons directly impacted and an example of when the regulator would intervene because it is not happy with the work carried out by the developer? In what circumstances could the developer apply for a review?

Photo of Siobhan Baillie Siobhan Baillie Conservative, Stroud 10:00 am, 21st September 2021

It is a pleasure to serve under your chairmanship, Mr Efford. I am a lawyer, so I would say this, but I agree that it is super-important for disputes to be dealt with properly. That was a key plank of the Minister’s explanation of the clauses. I am also pleased that a right of appeal to the court remains, but I will be interested to hear from the Minister how the Government will ensure that the regulator reviews decisions and whether there has been any assessment of how long reviews can take. We know that the issues are incredibly complicated, so there should be some investigation into that now and an ability for the regulator to check their own homework and for us to do so too.

When a developer lodges an internal review against the Building Safety Regulator’s decision within the prescribed period, the explanatory notes to the Bill say:

“The Building Safety Regulator decides the most appropriate form of review and how comprehensive the review will be.”

If the developer is not content with the final decision of the BSR, it can appeal that decision to the first-tier tribunal and that is what we were discussing earlier. The thing that shone out for me when we heard from the witnesses, particularly those affected by building safety concerns in their own homes, was the lack of trust in a range of policies and the legislation. It is therefore incumbent on us all to create the trust so that those people are able to rely on what we are doing. We have talked about transparency in the dispute resolution process and that is obviously key, but I would like to know a little more about how we will ensure that good transparency runs through the disputes process.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I am obliged to my hon. Friend the Member for Stroud and the hon. Member for Weaver Vale. We are clear that the process should be as collaborative as possible. We want it to be fair and transparent. When disputes arise, we envisage that the first stage of that dispute will be an informal discussion between the parties. That is normally part of the process that the HSE employs in other examples. If there is an internal review and if that is followed by an appeal to a first-tier tribunal, all those discussions and decision points will of course be publicly aired in the normal way.

What we want fundamentally to ensure is that the BSR has the flexibility to do its job effectively and to build casework and a casebook of knowledge and expertise that it can then use in cases as they develop. That is one of the reasons why—to answer the question from the hon. Member for Weaver Vale about secondary legislation—we are employing statutory instruments largely through the affirmative procedure. That will give the Commons in Committee and in the full House the ability to scrutinise, debate and vote on the issues. Fundamentally, it allows us as the Government, on the recommendations and advice of the BSR, to improve legislation rather than write it into the Bill and thus require further primary legislation should we find that events and examples arise to require that. We are trying to be flexible.

Photo of Daisy Cooper Daisy Cooper Liberal Democrat Spokesperson (Education)

It is a pleasure to serve under your chairmanship, Mr Efford. The Minister talked about internal discussions and internal reviews and, if necessary, going to the first-tier tribunal, which he said ordinarily happens under the HSE. How long might that process take? How long does it normally take under the HSE? Will he address the point made by the hon. Member for Stroud about the need to build trust into the system?

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

I am grateful for the hon. Lady’s intervention. It is true to say that the first-tier tribunal element of any dispute resolution procedure can take months before a hearing is held. The tribunal is a busy organisation. It can, indeed, take a little longer, depending on the nature of the case, for a decision to be handed down. That is why informal discussion and decision between the appellant and the Building Safety Regulator are sensible in resolving smaller disputes, particularly in the early stages of the regulator’s existence when there are likely to be a number of disputes and a body of casework by which internal dispute resolution will be conducted. The two-tier mechanism is the right way of ensuring swift dispute resolution, enabling all parties to get on with their work.

Photo of Daisy Cooper Daisy Cooper Liberal Democrat Spokesperson (Education)

I thank the Minister for his patience on this point.

I note from the Minister’s use of language that it is “anticipated” that most cases will be dealt with informally at an early stage and that only exceptional cases will go to the first-tier tribunal. Can he assure the Committee that in the event of many cases going to tribunal and lots of leaseholders getting caught up in this lengthy, slow and bureaucratic process he will consider intervening to bring in other mechanisms to speed up the resolution of disputes?

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities)

Without making any firm and final commitment to the hon. Lady, and as I said to the hon. Member for Weaver Vale, one of the reasons we are using secondary legislation in the Bill is to provide the Government, of whatever colour and stripe, and on the advice of experts such as the Building Safety Regulator, with the ability to make changes to the operation of the legislation as the terrain develops. As I said during our deliberations last week, we committed during the covid emergency to increase the resources of the Health and Safety Executive. It is a matter for my right hon. Friend the Chancellor to determine in the spending review the exact amount, but we have committed to ensuring that the BSR and associated bodies have the appropriate resources to do their work. We expect a material number of dispute cases to occur, at least initially as the regulator beds in. I shall bear in mind what the hon. Lady says.

I am grateful to the Committee for its questions and deliberation. Clause 24 aims to ensure that where disputes occur in relation to regulatory decisions, they can be resolved as quickly as possible, which is to the advantage of all parties involved.

Clause 25 ensures that disputed decisions must initially be reviewed by the regulator’s independent internal review procedure before an appeal can be lodged with the first-tier tribunal—again, to ensure that a degree of consistency and transparency runs through the BSR’s deliberations.

With those final remarks, I commend clauses 24 and 25 to the Committee.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Clause 25 ordered to stand part of the Bill.