Clause 126 - Limitation periods

Building Safety Bill – in a Public Bill Committee at 12:15 pm on 21st October 2021.

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Photo of Mike Amesbury Mike Amesbury Shadow Minister (Housing, Communities and Local Government) 12:15 pm, 21st October 2021

I beg to move amendment 14, in clause 126, page 133, line 1, leave out “15 years” and insert “30 years”.

This amendment changes the period for claims under the Defective Premises Act 1972 and the Building Act 1984 to 30 years.

Photo of Peter Dowd Peter Dowd Labour, Bootle

With this it will be convenient to discuss clause stand part.

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

The former Secretary of State, Robert Jenrick, admitted that most cladded buildings were built in the period between 2000 and 2017. Given that the Bill is likely to become law only in July 2022 or later, the limitation period is likely to capture only buildings completed up to and around July 2007, assuming that the Bill keeps making pace as quickly as it has. By the Government’s own admittance, then, extending the period for claims under the Defective Premises Act by only 15 years would miss a significant number of buildings, which is why our amendment proposes a change to 30 years. That is based on evidence, which I know other Members will bring to the debate today.

It is important that we do not mistake this change to the Defective Premises Act as giving more than some relief to a small number of leaseholders and residents in the current building safety crisis. Many of their building owners have become insolvent, as Ministers know. As has been mentioned, many leaseholders will simply not be able to tie themselves up in lengthy legal battles with wealthy developers. The Government must fund remediation up front. That does not require a Bill—it is a political decision. The polluter pays principle should be used to recoup the costs. That is the only way to address this.

Our time is certainly not wasted in this Committee Room. Over the last few weeks we have discussed some really good, solid, life-changing proposals and clauses, but the Bill does not address the fundamental principle of polluter pays. The amendment would certainly strengthen the clause. We might not believe it, but sometimes people listen to our debates, read Hansard and go through it line by line, so it is important that collectively we show this place at its best, give life to people’s voices and pass the amendment.

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

It is a pleasure to serve under you again, Mr Dowd. I reinforce what my hon. Friend the Member for Weaver Vale has said about the number of dwellings that will fall outside the 15-year catch. Obviously, we welcome its being extended from six to 15 years, but a case from my constituency illustrates why 30 years would be more appropriate.

I have had the honour and pleasure to represent Brentford for over 30 years, and a lot of new homes have been developed during that time. My office is keeping tabs on construction issues with blocks of flats, including those in Brentford ward. I can tell which blocks have required no casework during all my years of representation—it is those that were built more than 30 years ago under a regime of good quality construction and in a culture of safety. Those constructed after that were built at a time when standards were starting to fall. The culture of competition and the privatisation of building control meant that there was price competition and a reduction in inspections. There was the demise of the role of the clerk of works, corners were cut, and there was a skills shortage in the construction industry. Taken together, as we have said many times, that created this crisis. My casework shows that well over 25 separate estates in my constituency that were built in the last 20 years—since around 2000—have issues with cladding, lack of compartmentalisation, and shoddy workmanship.

I also picked up casework on damp and safety as a councillor. I will give two examples Even before Grenfell, leaseholders at Holland Gardens, which was built by Barratt, had forced Barratt to replace all the window fixings because they had not been done properly. It was subsequently found that the building had flammable cladding, so scaffolding was put up again. I have already mentioned the Paragon, which was built in about 2003. We do not know what its future is, but it is empty because it is too dangerous to occupy. I absolutely endorse the amendment’s aim of extending the timescale from 15 to 30 years. There is so much evidence. I can see it on my own patch, but we all have evidence.

Photo of Rachel Hopkins Rachel Hopkins Labour, Luton South

It is a pleasure to speak under your chairship again, Mr Dowd. I want to add my voice in support of the amendment tabled by my hon. Friend the Member for Weaver Vale and of the points raised by my hon. Friend the Member for Brentford and Isleworth. I have similarly seen many developments go up in my home town of Luton, where I live. I am speaking for the leaseholders of Point Red, who have been in touch with me. Point Red was redeveloped in the mid-2000s, and it is touch and go whether the leaseholders would have any recourse under the current 15-year rule, so it is absolutely right that I stand up and support this amendment.

The metaphor of David and Goliath comes to mind. If the Government are committed to supporting leaseholders who, through no fault of their own, have found themselves in very difficult situations with regard to their homes, the period of time that we are talking about should be longer. That could have a life-changing effect on people working in our communities—we are talking about social workers and teachers—who may be made bankrupt, and who may therefore lose their professional accreditation and no longer be able to work. As one small step among many that we are trying to take, the Government’s acceptance of this amendment would be life-affirming for so many of our leaseholders. I urge the Government to consider it carefully and adopt the 30-year period.

Photo of Peter Dowd Peter Dowd Labour, Bootle

I apologise. I call the Minister.

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

I am grateful to the hon. Members for Weaver Vale, for Brentford and Isleworth and for Luton South for the points that they have raised, and I appreciate that this is an important matter. We are mindful of the challenges faced by leaseholders who are specifically affected by the consequences of the Grenfell tragedy, and I hope that when I have spoken, the hon. Member for Weaver Vale will feel able to withdraw the amendment.

The Defective Premises Act 1972 applies not simply to the tall buildings that we are addressing primarily through the Building Safety Bill, but to all buildings. This clause extends the limitation period of the 1972 Act, and under section 38 of the Building Act 1984, from six to 15 years. That is a highly unusual retrospective change, which we believe will provide a legal route to redress that previously would not have been possible for hundreds of buildings, benefiting thousands of leaseholders.

Limitation periods serve several important purposes. They give legal and financial security and certainty; they protect defendants from stale claims, which may be difficult to counter—that is important, too, and we must remember that we are talking about all buildings covered by the Defective Premises Act—and they prevent injustice that may arise from the courts being required to decide on past events on the basis of evidence that may have become unreliable because of the passage of time.

Various limitation periods are set in the Limitation Act 1980 for different types of civil claim, of which this would be one. They range from 12 months for defamation or late payment of insurance claims, to six years for claims relating to some types of contracts, and to 15 years for cases involving negligence. That is where this type of case sits.

Photo of Shaun Bailey Shaun Bailey Conservative, West Bromwich West

My right hon. Friend will also be aware that it is possible, in the course of litigation, to make an application for those periods to be disregarded in the event that it can be proven to the tribunal that there are circumstances that make it possible to do so. Notwithstanding the conversations that we have had in Committee on the cost of litigation, does he agree that there are avenues by which that limitation period can, in extreme circumstances, be extended?

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

I believe that my hon. Friend is correct in terms of the Limitation Act 1980, rather than the Building Safety Bill.

We cannot go back indefinitely, and a proportionate longstop needs to be arrived at. It is clear, I think, to the Committee and the House that the present six-year limitation period is too short. The 15-year limitation period that we are proposing brings the Defective Premises Act in line with other types of serious civil claim. Of course, were we to choose to go further, we would have to consider what the effect might be on actions brought in relation to the 1980 Act. Any choice of limitation period could be viewed to some extent as arbitrary. There will always be somebody who falls either side of the line. And when we consider a retrospective change, that is even more the case. However, we are clear that hundreds of buildings will be able to benefit from the extension to 15 years. Therefore, and having listened carefully to the hon. Member for Weaver Vale and other members of the Committee, I consider that a 15-year limitation period is appropriate.

To speak specifically to clause 126, it means that claims will be able to be brought for buildings completed up to 15 years prior to commencement of this clause. There has been some criticism—or some other criticism—of the clause, on the basis that individual leaseholders would have neither the expertise nor the funds to bring actions against large developers. We have said that building owners are responsible for ensuring that their buildings are safe, and as we have set out in clause 124, which we have discussed and agreed, they must meet the costs of remediation without passing them on to leaseholders, wherever possible—for example, by recovering costs from applicable warranty schemes, or from the developers or contractors who were responsible for the building and the defects in the first place. Making a claim under the Defective Premises Act will be one of the measures that we would expect building owners to explore. This clause and the previous one expand their opportunity for taking such action, and thereby amplify the culture that we are trying to inculcate across the sector.

Clause 126(1) makes the substantive change to the limitation periods by inserting new section 4B into the Limitation Act 1980. As a result, where a claim is brought under either section 1 or new section 2A of the Defective Premises Act, which we discussed under clause 125, the time limit to bring proceedings is extended from six to 15 years. The same extended limitation period will also apply to actions brought under section 38 of the Building Act 1984.

It might assist the Committee if I explain briefly how the various types of action differ. Section 1 of the Defective Premises Act allows an action for damages to be brought where a dwelling is unfit for habitation as a result of the way it was constructed or converted into a dwelling in the first place. Section 2A, which we have just discussed, allows action to be brought where a dwelling is unfit as a result of other work done to it. That is an addition to the existing Act. Finally, section 38 of the Building Act, which we will bring into force alongside the Defective Premises Act changes, allows an action to be brought for damages where a breach of building regulations in respect of any building, not just domestic premises, has caused damage. That “damage” is a human term rather than damage to a building, so, for example, poor ventilation or a crack in the wall that caused damage to a lung would be a reason for utilising that particular provision in the Act.

Clause 126(2) is technical and reflects changes to limitation provisions since the 1972 Act was passed. Subsections(5) and (6) provide protection for the legal rights of those against whom legal action may be brought under the retrospectively extended limitation period. In very limited circumstances—this is another reason why the hon. Member for Weaver Vale might consider withdrawing his amendment—there is the potential for the defendant’s convention rights, human rights, to be breached by the retrospective extension of a limitation period. I suggest that the longer that period is, the more appetite there might be for a defendant in a case to bring forward action under human rights legislation. We have therefore included subsections (5) and (6), which are important safeguards to ensure that our changes to the Defective Premises Act do not conflict with human rights legislation. That does not mean to say that people may or may not choose to bring court action under human rights legislation.

Photo of Mike Amesbury Mike Amesbury Shadow Minister (Housing, Communities and Local Government) 12:30 pm, 21st October 2021

On counter-litigation under the Human Rights Act, will the Minister elaborate on that scenario and the right to private property?

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

I am not a lawyer and I cannot second-guess why an individual might choose to go to court using one particular Act of Parliament to defend themselves against another. However, we know that the Human Rights Act is cross-cutting. In any legislation that we scrutinise, we see reference to the Human Rights Act in its annexes. All I suggest to the Committee is that the longer the retrospective limitation period, the greater the chance that individuals may choose to go to court and test the legislation under the Human Rights Act.

Finally, I draw the Committee’s attention to subsection (3), which provides that the clause will be commenced automatically two months after Royal Assent. That will be the date from which the extended limitation period is calculated, including the retrospective period for action under section 1 of the Defective Premises Act. With that, I commend the clause to the Committee.

Photo of Peter Dowd Peter Dowd Labour, Bootle

I apologise, Minister, for my inappropriate limitation on your intervention. As a pre-’69 person, my levels of concentration are not what they should be, I suspect.

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

I suspect that we will probably come back to this subject on Report, perhaps in a different form of amendment. I thank the Minister for his detailed and considered response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 126 ordered to stand part of the Bill.