Clause 125 - Duties relating to work to dwellings etc

Building Safety Bill – in a Public Bill Committee at 12:00 pm on 21st October 2021.

Alert me about debates like this

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

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

To aid Committee members in making interventions, I will try to sit down slowly, so that I am standing for as long as possible. In conjunction with clause 126, which is to come shortly, clause 125 makes changes to the operation of the Defective Premises Act 1972. That Act creates a right to bring a claim for compensation where a dwelling is not “fit for habituation” on completion of that dwelling. The Act currently applies only in relation to the provision of a dwelling, mainly when a property was built defectively in the first place. It does not apply to work done to a dwelling beyond its initial completion—not even to major or complex refurbishment works, such as the cladding of a block, which is what Grenfell Tower underwent. The clause seeks to remedy that.

The clause expands the Defective Premises Act by inserting proposed new section 2A into it. The new section will create a duty to ensure that any work done to a dwelling does not render that dwelling unfit for habitation. It will cover subsequent works done to the building after construction. The clause applies where a person takes on work in relation to any part of a relevant building in the course of a business. That means that it does not apply, for example, to homeowners doing work on their own properties. As in the case of the 1972 Act, the person to whom the duty is owed—the person who has the right to bring a claim—is the person for whom the work is done and any person who holds or subsequently acquires a legal or equitable interest in a dwelling in the building. That includes the freeholder of a block of flats as well as leaseholders.

The “fit for habitation” test is the same test used in the 1972 Act. Subcontractors also owe the same duty for the work that they take on. The clause applies to any relevant building defined as a building consisting of or containing one or more dwellings. The new provision will apply to work completed after the clause comes into force. Clause 126 will provide for a 15-year limitation period in relation to this clause.

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

On the ability of a leaseholder to bring a civil claim against a contractor, there is a real fear about the ability of David to challenge Goliath. In our discussions on the Bill, we have talked a lot about cultural change and historical problems and what is required. I am listening to what the Minister says, but once again my great fear is that unless the provisions can be outlined in terms, how can David challenge Goliath? Will leaseholders get legal aid to challenge contractors? Will there be a level playing field for people who want to bring civil cases against contractors? Historically, as Opposition Members have outlined, many people have been dragged into the realms of the law, and have basically had to devote their life to challenging unfair decisions.

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

I am grateful to the hon. Gentleman for his question. Legal aid is not available in these cases, but there are various remedies people can take, either individually or collectively. It is not necessarily the case that the leaseholder would be bringing the claim. It could be the landlord or freeholder. With clause 125, we want to define a very strict provision. That means that the appellant does not have to demonstrate that fault or negligence has taken place. All they have to demonstrate is that the building is not fit for habitation under the terms of the 1972 Act, and the case law already develops that. Adding new section 2A into the Act strengthens the provision. We consider clause 125 to be an important additional safeguard for homeowners against shoddy work done to their dwellings.

Photo of Ruth Cadbury Ruth Cadbury Shadow Minister (Housing, Communities and Local Government) (Planning)

Will the Minister clarify the term “fit for habitation”? Does it mean fit for habitation only with a waking watch? I am trying to get to the bottom of the difference between “fit for habitation” and a building at risk in the more general sense. I have mentioned the example of the Paragon many times. Two years after the flammable cladding was removed, all residents—students and shared owners—had to leave with a week’s notice. Clearly, the risk assessment is that it is not fit for habitation. We all have examples of blocks where waking watch is put in or cladding works are planned. Where is the cut-off?

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

I am obliged to the hon. Lady. It gives me the opportunity to remind the Committee that, by altering the 1972 Act, we are not simply specifying these changes to taller buildings. It applies to all premises. That is one of the reasons why a whole range of people might use this legislation. To be clear, it is for a court to decide the facts of a specific case—whether a dwelling is fit for habitation. The existing case law, which may be built up and amplified in future, suggests that, in order for a dwelling to be fit for habitation, it must be capable of occupation for a reasonable time without risk to the health or safety of the occupants and without undue inconvenience or discomfort to the occupants. That is the case law definition that the court would understand. Should an appellant bring action against a developer or provider of a building that is defective, that is the definition the court will look at to see whether they have a case. With that, I commend the clause to the Committee.

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

I thank the Minister and all those who have intervened. Clause 125 is welcome on this side, but it does not go far enough. We welcome the extension to refurbished properties, which we have debated at considerable length with regard to permitted development and additional floors. I know that the Minister will clarify whether the clause captures that scenario in the new building safety regime.

The Minister referred to case law. Others have referred to the nightmare of litigation and the costs in a David and Goliath process. How many claims have been made under the existing regime? The Minister referred to the existing case law, so I am assuming that the Department has made an assessment.

We heard evidence from Justin Bates and Giles Peaker. They suggested that the chances of litigation were minimal. They have considerable expertise in this field on a national and probably an international level. There are learned lawyers on the Government side of the Committee. I am sure that, with their learned experience, they will have something to say on taking litigation forward under this clause.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities) 12:15 pm, 21st October 2021

I am grateful to the hon. Gentleman for his support for the clause. He asks two questions. The first is on the volume of case law that has been built up. I will have to write to him or inform him at a later point about the specific number of cases. I remind him that the Defective Premises Act 1972 was passed some 49 years ago—many members of the Committee were not born when that Act was passed. The case law is presumably quite voluminous and therefore the courts will be well able to assess any new cases in the light of that established case law of 49 years.

The hon. Gentleman mentioned the evidence given eloquently by Justin Bates—I think that was his name; I apologise if I have got that wrong.

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

Yes. He gave us some eloquent testimony in one of the Committee’s witness sessions. The reason why our court processes work so very well and why there are court actions—sometimes rather voluminous actions such as there may have been under the 1972 Act—is that there is always more than one view. There will be another lawyer countering the arguments made by someone such as Mr Bates, who will say that there are in fact very good chances for an individual to seek redress using this mechanism. I invite those who wish to use the new powers we are giving them to so do, to test the courts and test Mr Bates. I commend the clause to the Committee.

Question put and agreed to.

Clause 125 accordingly ordered to stand part of the Bill.