Written evidence submitted by the Swish Residents’ Association [BSB 011]

We are the residents of a block of 66 flats built in 2003 with combustible non-ACM cladding and various other deficiencies which make the building unsafe in the event of fire. The dangerous condition of the building became known to us following the Grenfell Tower disaster. No remediation work has been carried out. We welcome the creation of the Government's Building Safety Fund and are actively engaged with the owner's agents to try to get them to apply on time for the substantial funds which are needed to pay for the work. It continues to be a frustrating struggle.

Our response to the committee's questions on the draft Bill are as follows :

The Government states that its policy intentions are to take forward the accepted recommendations of the report by Dame Judith Hackitt which found that the whole system of building regulation and fire safety needed major reform and that residents’ safety should be given much greater priority at each stage through the entire life cycle of the building. The regulatory regime laid out in the draft Bill goes some way to better clarify who is responsible and accountable for what at each stage of providing a new residential building and to set out the rights of leaseholders and residents. However, as much of the detail is to be left to regulations made by the Secretary of State at some time in the future, it is impossible to provide a comprehensive answer here.

If, despite all the safeguards and duties in the new comprehensive regulatory regime, the building is found to be unsafe, the cost of putting this right will fall not on the developer, builder or other party who may well be at fault but on the leaseholder through the introduction of a Building Safety Charge.  If this is Government policy, it is in complete contrast to the approach currently taken by the Government in its operation of the Building Safety Fund where MHCLG has made it clear that leaseholders should not have to pay for the replacement of combustible cladding. It also provides no incentive for developers, builders and others to ensure they get things right as they are not to be held financially accountable.  This requires explanation by the Government.

 

The draft Bill relates only to high-risk buildings of 18 metres or more in height. No reason has been given for the imposition of this arbitrary limit. The scope of the Bill should be extended to all higher risk residential blocks because the degree of risk faced by residents is not determined by the height of the building alone. For example, a very tall block may have a range of fire safety features, such as a sprinkler system and multiple stairways, which a building of fewer storeys may not have.  A proper risk assessment should be undertaken in every case before it is determined whether the regulatory system is to apply.

 

The evidence being given at Part 2 of the Grenfell inquiry confirms what is already known or suspected about sections of the building industry; that keeping costs to a minimum too often means that other consideration are overlooked. Thus at Grenfell the type of cladding was chosen on grounds of cost, with little thought given to fire safety. The attitude of those in positions of responsibility was casual to the point of negligence; assessment of risk was someone else’s problem. A contract manager thought details about fire safety would be handled by the architects or if not, building control would catch any mistakes. A cursory look at a fire certificate by a product manufacturer seemed to suffice, despite knowledge of the number of cladding related fires around the world. An expert fire safety consultant did not include the cladding issue in his fire safety strategy but said this would be covered in a later report, which was never forthcoming. One commentator has observed that such consultants appear to believe their role is to guide plans past building control, rather than to provide insightful, honest and accurate advice on how to make a project as safe as it can be.  If this is the case, it is a very serious issue that must be addressed by the professions themselves. The legislation can only go so far in trying to compensate for a lack of professionalism.

The extension of the time limit for prosecutions for non-compliance with the Building Regulations from two to ten years is to be welcomed as is the power for the Regulator to prosecute individuals as well as corporate bodies for all offences in the Bill. However, the lack of serious concern for residents’ safety appears so prevalent in the industry that the proposed maximum of two years imprisonment plus unlimited fine for non-compliance is in our view wholly inadequate and fails to send the right message. 

 

We welcome clauses 82 to 85 which provide a framework for proper engagement and consultation with residents over safety matters and for the handling of complaints to the regulator. However, we cannot comment further without knowing the details which will be set out in regulations to be made by the Secretary of State.

 

No. The draft Bill goes to great lengths to provide for the introduction of a complex regulatory system (with subsequent secondary legislation to provide further details) for the design, materials used, construction and maintenance of residential buildings.  Presumably the Government expects this will address the deficiencies of the past which led to the scandal of hundreds of unsafe buildings and the Grenfell Tower disaster.  But if in any case, despite the new system, a building is found to have significant safety risks and defects needing expensive remediation, the cost should be borne by those at fault, not the leaseholders. It is not enough for MHCLG to state its desired intention that leaseholders should not have to face “unaffordable costs “.  The fact is that the Bill puts the onus on the leaseholder to apply for an order from the tribunal to have some costs excluded from the Charge on certain grounds. (clause 88 which inserts new provisions into the Landlord and Tenant Act 1985) Some of these grounds would be difficult if not impossible to prove (provision 17O) such as costs incurred as a result of the negligence, breach of contract or unlawful act by the Accountable Person. 

The current proposal does little more than take some costs from the Service Charge, payable by the leaseholder under the terms of the lease, and add them to a new charge payable by the leaseholder under an Act of Parliament.  This fails to address the injustice of leaseholders having to foot the bill for the incompetence, negligence and/or unlawful actions of those who have a legal duty of care towards those who buy and inhabit the property.      

 

Whether it will command the confidence of the sector is a matter for those concerned but there is no doubt that the existing regime is not fit for purpose.

 

The HSE is the national regulator for health and safety in the workplace so it does not seem to be the obvious choice for the management of the safety of residential buildings.  But whatever the arrangement, funding must come from the Treasury.  

 

The Bill should address issues of fire safety more generally.  Sprinklers and other measures, such as the provision of fire extinguishers, to put out fires quickly before they have a chance to spread should be considered.

 

August 2020