New Clause 17 - Presumption of allowing urgent building safety remediation work

Building Safety Bill – in a Public Bill Committee at 2:45 pm on 26th October 2021.

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“(1) If a leaseholder or tenant has identified urgent building safety work needed to the property they occupy they should notify the freehold owner in writing.

(2) Should the freehold owner not reply to the written notification under subsection (1) within 90 days of receiving it there should be a presumption in favour of allowing the work to proceed.

(3) It is the freehold owner’s responsibility to ensure that all leaseholders and tenants have the correct details to provide them with a written notification as set out in subsection (1).

(4) The Secretary of State may issue guidance on the application of this section.

(5) A court considering a matter relating to this section must have regard to any guidance issued under subsection (4).” —

This new clause would introduce the presumption of consent for leaseholders to carry out urgent building safety work, where absent freeholders cannot be contacted, or refuse to respond.

Brought up, and read the First time.

Photo of Daisy Cooper Daisy Cooper Liberal Democrat Spokesperson (Health and Social Care)

I beg to move, That the clause be read a Second time.

I spoke too soon early in proceedings; I thought I had finished all my new clauses for the day, but I forget about new clause 17. This new clause would introduce the presumption of consent for leaseholders to carry out urgent building safety work where absent freeholders cannot be contacted, or refuse to respond. I have moved this new clause following the evidence from the National Housing Federation, which spoke in detail about the challenges its members had faced when dealing with absent or offshore freeholders. Kate Henderson said in evidence to this Committee:

“We can have buildings that are owned by freeholders that are shell companies, and sometimes those companies then demise the internal parts of the building to a long-term leaseholder…Our members have told us that it can be really difficult to engage with the freeholder in this sort of set-up, especially when they need to do things such as assess external wall materials or identify what needs to be remediated.”––[Official Report, Building Safety Public Bill Committee, 9 September 2021; c. 48, Q46.]

This new clause seeks to give the Government an opportunity to fix that specific problem.

There is, of course, a precedent for the concept of a presumption of consent, because the Government introduced it in their own legislation on broadband earlier in the parliamentary session. When I put that to the National Housing Federation during our evidence session, Members may recall that the NHF said there were concerns that the legislation to enable residents to get fast broadband into their homes could cause fire safety defects if the people installing the broadband inadvertently went through firebreaks. I recognise that my proposal is not without problems, but given that leaseholders have been given a presumption of consent in order to get faster broadband put into their buildings—whether or not that might cause problems with firebreaks—if those buildings face fire safety problems, one can see why a presumption of consent might be a good thing.

At an earlier point in proceedings, the Minister and I had an exchange about this new clause, and I believe he raised the question of unintended consequences from that presumption. I hope he may be willing to expand on his concerns and provide assurances that he is aware that this is a challenge for social housing providers, and that the Government will look to address it either through this new clause or in an amendment of their own.

Photo of Christopher Pincher Christopher Pincher Minister of State (Department for Levelling Up, Housing and Communities) 3:00 pm, 26th October 2021

I am obliged again to the hon. Lady for raising this matter, which we recognise is an important one. She asked me to expand on the concerns that I raised about the applicability of the new clause, as opposed to the motivation behind it. We have three concerns, essentially, but I hope that she will be further reassured as I explain what we are doing to ensure that tenants and leaseholders are protected.

My first concern is that the new clause does not make it clear what type of work constitutes urgent building safety work, how that would be funded or the rationale regarding the introduction of a 90-day notice period. That lack of clarity presents opportunities for all sorts of legal interpretation that might see the proposal and the wording challenged in the courts.

My second concern is that tenants would have to wait at least 90 days before beginning remediation. I know that the hon. Lady will say to me that a lot of people have been waiting a lot longer than 90 days for their properties to be remediated, and I hear that concern, but I do not see how putting a 90-day window in law will help them or anybody else who might be affected by this challenge.

My third concern relates to the common parts of the building, which are not the responsibility of the leaseholders and tenants. The new clause therefore runs the risk of undermining the role of accountable persons and their building safety responsibilities over the common parts of the building, which we are mandating as part of the new building safety regime.

Those are my three concerns, but I want to offer the hon. Lady some reassurance that we consider that the Bill already delivers the policy intent of her new clause by ensuring that there is a robust definition in place that identifies the accountable persons for buildings that fall within scope. The Bill automatically places statutory obligations on those persons, making them responsible for effectively managing building safety in accordance with the new regime. That is in addition to their active repairing obligations in the lease.

If leaseholders or tenants raise a complaint about an urgent building safety works matter with an accountable person and the accountable person does not adequately address those concerns, rather than the tenants or leaseholders carrying out the work themselves, there will be mechanisms enabling them to raise their concerns directly with the Building Safety Regulator. The Building Safety Regulator will be well equipped to use their expertise and resources to assess whether urgent building safety works are required, and subsequently to take the necessary compliance and enforcement action. Because of their expertise, they will properly be able to identify what is urgent, and that will stand the test of any legal interrogation.

I hope that the hon. Lady will recognise that there are some practical challenges with the new clause, notwithstanding the intent that lies behind it. I hope that she will also see that, vested in the Bill that she has already been voting on—almost entirely favourably, I am pleased to say—is provision that gives leaseholders and tenants the sort of protections that she is looking for. I hope that she will withdraw the new clause.

Photo of Daisy Cooper Daisy Cooper Liberal Democrat Spokesperson (Health and Social Care)

I thank the Minister for his assurances. I note that the issue was still raised by the National Housing Federation. I will go back to it to ensure that it feels comfortable that the definition of the accountable person and the mechanism that has been set up for other properties will in fact operate well enough if the freeholder is absent. I trust that the Minister will be happy to receive any representations from it if it sees any further issues. But at this point in the proceedings, I am happy to beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.