Clause 102 - Notification by regulator before applying for special measures order

Building Safety Bill – in a Public Bill Committee at 3:01 pm on 19th October 2021.

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

Photo of Maria Miller Maria Miller Conservative, Basingstoke

With this it will be convenient to discuss clauses 103 to 105 stand part.

Photo of Eddie Hughes Eddie Hughes Parliamentary Under Secretary of State (Department for Levelling Up, Housing and Communities)

The vast majority of accountable persons will meet their new duties under the more stringent building safety regime, but a small number may still fail to comply. The clause establishes the procedural steps that the Building Safety Regulator must take to put a failing building into special measures.

The Building Safety Regulator must notify persons of its intention to apply to the first-tier tribunal for the appointment of a special measures manager who will carry out functions in place of the accountable person. The clause details the persons who should be notified and sets out the information that needs to be provided, which must include the rationale for the special measures proposal. The persons who must be notified include every resident of the building over 16 years old, the fire and rescue authority for the area, and every accountable person for the building, among a number of others.

The Building Safety Regulator must make it clear how a person can make comments and observations about the special measures proposal. That ensures that those who may be affected are consulted and can make representations. Requiring that the rationale for the special measures proposal is contained within the notification gives the residents and those other interested parties clarity on why the notification is being issued.

The Building Safety Regulator must comply with the procedural requirements of clause 102 before making an application for a special measures order. Once the decision is made to make an application to the tribunal, a final notice needs to be given to those persons, detailing the rationale for that decision. The proposed terms of the special measures order must be included in the final notification if the Building Safety Regulator decides to apply to put the building into special measures. Clause 102 enables the Secretary of State to make regulations about the form of notices and the way in which they need to be given. It establishes a key procedural aspect of special measures, and is necessary so that affected parties have the opportunity to make comment and provide representations about the management of their building

The clause builds on that, giving the first-tier tribunal the necessary powers to make a special measures order. Special measures is a last resort intervention. In the majority of circumstances the Building Safety Regulator will be able to take other enforcement measures to direct compliance with the new regime. However, where that fails, the Building Safety Regulator may need to step in and appoint a special measures manager to take over the fire and structural safety management of the building to ensure safety for the residents. The clause sets out the grounds that the tribunal must have agreed to be met when making an order: there must have been a serious failure, or a failure on two or more occasions by the accountable person to comply with a duty or duties under part 4 of the Bill. Those are the same grounds that the Building Safety Regulator must consider when making its application to the tribunal.

The order will set out the functions of the special measures manager, which will have been proposed by the Building Safety Regulator in its application for the order. This will effectively “switch off” the fire and structural safety obligations in part 4 of the Bill of the recalcitrant accountable person. The clause ensures that the tribunal can bestow receivership functions on the special measures manager, allowing them to collect the building safety charge directly from leaseholders, so that the manager can fund the functions that they have been tasked with undertaking.

A special measures order can make provisions covering any matter relating to the special measures manager’s exercise of their functions, and any incidental or ancillary matter. That will be vital to ensure that the special measures manager can carry out their role. The special measures order continues in force until it is discharged. I will speak about the discharging of an order in more detail later.

An example of when a special measures order might be necessary is if an accountable person repeatedly fails to meet the statutory obligations under part 4 of the Bill. Yet if, after using the compliance and enforcement tools at its disposal, the Building Safety Regulator is still of the opinion that the safety of residents is at risk, they apply to the first-tier tribunal for an order to appoint a special measures manager. The special measures order would detail the identity of the special measures manager, the scheme and terms of management, including the specific functions that the special measures manager would be undertaking to make sure that obligations under part 4 of the Bill are met. In making such an order, the first-tier tribunal specifies that the special measures manager has the functions of a receiver of the building safety charge to pay for their own renumeration and functions in relation to undertaking their safety obligations. This clause provides for a hugely important failsafe for when the safety of residents is at risk.

Clause 104 supplements clause 103 in that it sets out further detail about special measures orders. It ensures that a special measures manager takes over the functions of the accountable person for the building as provided for under part 4 of the Bill. However, there are some exceptions to this in order to allow the accountable person to retain the right of appeal, or to make an application, to the first-tier tribunal. Furthermore, once the building is put into special measures, any requirements of a previously issued compliance notice are cancelled. But enforcement action can be continued by the Building Safety Regulator. Once a special measures order is made, the role of the building safety manager ceases and any appointment ends. A special measures manager is solely responsible for managing the fire and structural safety of the building until the order is discharged by the tribunal. My apologies; I thought that I had got to the end of this group of clauses, but I certainly have not.

Clause 105 enables the special measures manager to take over relevant fire and structural safety contracts that may be in place for the building, effectively stepping into the shoes of the accountable person. That ensures that the special measures manager can carry out their functions as set out in the order. The circumstances that led to the appointment of a special measures manager are likely to be so dire that any competent manager would want to replace contractors. There may also be the outstanding provision of works and services, or a breach of contract by a supplier of shoddy workmanship. The clause gives the special measures manager the legal remit to pursue those types of actions under contract.

In pursuing such claims the special measures manager may be liable to pay damages incurred for the actions of the accountable person or building safety manager prior to their appointment. If that happens, those persons will be liable to reimburse the special measures manager. That type of provision is common in receivership, where one party has to step in to take over the management arrangements to help a failing company, and it is necessary here to ensure that the special measures manager can carry out their job effectively. As with other such clauses pertaining to the remit of the special measures manager, our aim is to give them the requisite and necessary ability to effectively carry out their role. In such cases as the example relating to shoddy workmanship and replacement contractors, the special measures manager needs the remit to be able to take a hands-on approach in those issues.

Photo of Ian Byrne Ian Byrne Labour, Liverpool, West Derby

Where would the special measures managers come from?

Photo of Eddie Hughes Eddie Hughes Parliamentary Under Secretary of State (Department for Levelling Up, Housing and Communities)

The functions that will be performed by the special measures manager will be the same or similar to those of an accountable person. As we have discussed on previous clauses, an accountable person could be a single person or an organisation, as in the case of a council or a housing association, so it would depend on the circumstances pertaining to the building in question. It might be that that person is simply an individual who has the competence and experience to discharge the role, or it might be that an organisation is brought in and the competences and experience are spread across several people.

Photo of Rachel Hopkins Rachel Hopkins Labour, Luton South

Most of us have heard special measures mentioned in relation to schools and Ofsted, or where the Care Quality Commission has to intervene in health services. There is an element of public good, so when people can move around and come across from other parts of the system to become a special measures manager, so to speak, it is still after that same aim of public good. Given that many buildings that may be affected by this are in the private sector and by dint of that naturally competitive, does the Minister not see that there could be a potential conflict of interest sometimes, and how would he look to remedy that?

Photo of Eddie Hughes Eddie Hughes Parliamentary Under Secretary of State (Department for Levelling Up, Housing and Communities)

I am not sure that the “special measures” description or title translates equivalently from the examples that the hon. Lady gave to this particular example. What we are talking about, and hopefully an incredibly rare occurrence, will be a significant failure on the part of the accountable person to discharge their duties, thereby putting the safety of residents at risk, so, regardless of who comes in to perform that duty, the main function and purpose of the clause in allowing this to happen is to ensure that the safety of residents is maintained, and that an appropriate person or entity with the appropriate skills, qualifications and experience takes over those duties to ensure a smooth transition.

Photo of Rachel Hopkins Rachel Hopkins Labour, Luton South

I understand that the absolute objective is about safety, but what I was trying to get at is that with schools there is a very like-by-like aim of education. It may be that someone moves across, where functions have failed, to take on that role, but they could be, in the private sector, competing. They may not want to come across, so that we cannot find anyone to take it on because they are a rival building provider; or it may be that it is an assertive move to say, “We will rectify this but take it on.” How would the Minister keep the safety element for residents despite private businesses’ potentially using this as a mechanism to secure a greater place in the market?

Photo of Eddie Hughes Eddie Hughes Parliamentary Under Secretary of State (Department for Levelling Up, Housing and Communities) 3:15 pm, 19th October 2021

I refer again to the overarching responsibility of the Building Safety Regulator. That is the ultimate entity to which these people will be responsible. The Building Safety Regulator will have complete oversight, will understand and will be there to validate that the special measures manager is appropriate for the job.

With regard to the market for this, we now have so much more focus on building safety in this country and there has been an appropriate, commensurate growth in the services provided by some big providers, who understand the demand and need for this service provision. So I do not think we need to feel anything other than assured that there will be a smooth transition.

Photo of Shaun Bailey Shaun Bailey Conservative, West Bromwich West

It is a pleasure to serve under your chairmanship again, Mrs Miller. Just to expand on the response that my hon. Friend gave, does he agree that with the preceding clauses we have created a building safety sector and profession that will ultimately have their own professional regulatory obligations? If someone is going in as a professional within that sector, is it really worth their certification or their job to put profit before the duties they have to their profession? It is no different—to use my experience as a lawyer, for example—from a solicitor going in with their overarching professional regulatory obligations and then trying, for some reason of malfeasance, to undercut that. Does the Minister agree that we have to look at the overarching professional obligations that these people will have?

Photo of Eddie Hughes Eddie Hughes Parliamentary Under Secretary of State (Department for Levelling Up, Housing and Communities)

I completely agree with my hon. Friend’s point. What we have seen through the development of this Bill is that specific people will now be accountable for very specific functions: the accountable person, the building safety manager and, in the case of the building safety manager, a specific person identified with that responsibility. Now that there is a clear line of sight to who is ultimately to be held accountable, I think we will see increased professionalisation and the sector responding to that, in terms of developing the professional capacity of the people involved.

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

I thank the Minister for his description of the new regime under the clauses. I do not know whether he remembers Mr Benn—he probably does—who could be something different every day, or several different things in one day. This reminds me of that, with the principal accountable person, the accountable person, the responsible person, the building safety manager and the special measures manager. Certainly, in a lot of cases, they will be one and the same thing if they have the competency, knowledge, experience and so on to do that. What would be incredibly helpful going forward—for us all, collectively—would be some kind of diagram. I know the Minister referred to things becoming clearer now in regard to accountability. I am not convinced that they are. That is not meant as a criticism, but I would find a diagram incredibly helpful.

I worry also that we are having almost a first and second-class approach to building safety. Again, I go back to the point about 18 metres or seven storeys. This whole regime, this whole professionalisation, that hon. Members have referred to is for the higher-risk buildings. There are still risky buildings from 11 metres up to 18 metres —below the seven storeys—that do not have this regime.

Photo of Eddie Hughes Eddie Hughes Parliamentary Under Secretary of State (Department for Levelling Up, Housing and Communities)

I think the hon. Gentleman makes a point that may have passed me by. Because I started off as a civil engineer and have worked in construction all my life, I was excited by the prospect of serving on this Bill Committee. I am immersed in the detail and so it all makes sense in my head. But the hon. Gentleman makes a very important point: it is just not enough that it makes sense to people who are technically engaged in it; it is meant to make sense to residents as well. When we talk about the engagement strategy and the approach that is taken to working with tenants and residents, we need to ensure that they have a clear understanding of who is responsible for what and to whom they need to apply, depending on what their grievance might be, so it is a very fair point to make.

With regard to the Mr Benn element, I fully appreciate that that is possible for some people. It is possible for an accountable person to discharge the duties of the building safety manager if they have appropriate competencies, so it could be one and the same person. Perhaps some sort of diagrammatic explanation of how these things work would be appropriate.

Question put and agreed to.

Clause 102 accordingly ordered to stand part of the Bill

Clauses 103 to 105 ordered to stand part of the Bill.