Written evidence submitted by the Fire Brigades Union [BSB 066]
Introduction
This is the Fire Brigades Union (FBU) submission to the Housing, Communities and Local Government (HCLG) Committee inquiry into the draft Building Safety Bill. The FBU is the democratic, professional voice of firefighters and other workers within fire and rescue services across the UK. The union represents the vast majority of whole-time (full-time) and retained (part-time, on-call) firefighters and fire control staff.
The FBU welcomes the HCLG Committee inquiry into the draft Building Safety Bill and its ambition to assess its policy objectives, key provisions and likely impact. The union has made submissions to Ministry of Housing, Communities and Local Government (MHCLG) consultations, including Judith Hackitt’s review and is a core participant in the Grenfell Tower Inquiry.
The Building Safety Bill was promised in the Queen’s Speech (December 2019), but only published on 20 July 2020 for pre-legislative scrutiny. This means the union has begun to assess its implications, but has not formulated an exhaustive response.
The FBU’s initial assessment is that the Building Safety Bill does create a more robust regulatory regime for high risk homes and some other sleeping accommodation. The Hackitt review made a strong case for applying aspects of health and safety at work regulation and best practice from the Health and Safety Executive (HSE) to matters of building safety. As such the FBU can support the direction and key changes in the Building Safety Bill, although we still have some significant questions and concerns.
However the FBU also believes that the Westminster government has missed an opportunity to undertake a deeper, more systemic review of the building safety regime. The FBU believes that the fundamental shift during the 1980s towards deregulation, privatisation and contracting out is crucial to understanding what went wrong at Grenfell Tower and continues to hamper building safety. The switch to fewer regulations and more voluntary guidance, the provision of private “approved inspectors”, the privatisation of the Building Research Establishment (BRE) and the savage austerity cuts across public services have not been questioned by Hackitt or central government.
If politicians are serious about “leaving no stone unturned” and examining the systemic failures that led to the Grenfell Tower fire, then the whole building safety regime should be subjected to scrutiny. While the Westminster government’s proposals should improve certain aspects of the building safety regime for high rise residential buildings, many flaws are left in place.
The FBU’s response will address the committee’s specific questions from this critical perspective. The union’s answers refer to:
How well does the Bill, as drafted, meet the Government’s own policy intentions?
The Westminster government’s policy intentions for the Building Safety Bill were set out in the Queen’s Speech (December 2019). The explanatory notes (§3 page 6) that accompany the draft Building Safety Bill state: “The objectives of the draft Bill are to learn the lessons from the Grenfell Tower fire and to remedy the systemic issues identified by Dame Judith Hackitt by strengthening the whole regulatory system for building safety”.
The Impact Assessment (§12 page 7-8) states: “The outcome expected is that buildings are safer places to live and, particularly for buildings in scope, there is a reduction in the risk of multi-fatality incidents occurring in a building in scope per year”.
The draft Building Safety Bill is a step towards making homes safer places to live. However the FBU is still not convinced that this new regime will be sufficient to keep everyone safe in their homes.
Does the draft Bill establish an appropriate scope for the new regulatory system?
Clause 19 of the draft Building Safety Bill defines “higher-risk buildings”, to which the more stringent safety regime will apply. The FBU believes the scope in the Bill is too narrow. First, the Bill sets the height condition at 18m or 6 storeys. The Impact Assessment (§28 page 11) estimates that this will cover approximately 13,000 existing buildings and will grow by 400 buildings a year thereafter.
The FBU believes the height condition of 11m or 4 storeys would be a safer threshold for the new regime. Firefighting ladders currently used across England are able to carry out rescues externally up to this height. According to Home Office fire statistics (FIRE1204, FS2), there are approximately 30,000 purpose built flats of 4 storeys or more known to fire and rescue services in England. Recent major fires at the Cube in Bolton and Samuel Garside House in Barking would not come under the new regime with an 18m height threshold.
Second, Clause 19 is too narrow because it excludes rooms in sleeping accommodation of certain categories, such as residential care homes, prisons, hotels, hospitals and related buildings (§228 page 39). Fire risks are likely to be higher in these buildings containing vulnerable people and therefore should come under the more stringent regime. This would be particularly important for those premises over 11m in height.
The evidence provided in Annex B of the MHCLG consultation, Building a Safer Future: Proposals for reform of the building safety regulatory system, (6 June 2019) shows elevated rates of fire in buildings above 11m in apartments/flats, care homes, education, houses of multiple occupation (HMOs), hospitals, hotels, prisons and sheltered housing. Similarly, the risks of fatalities and casualties are elevated above 11m in all the same categories.
Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety?
The Building Safety Bill endeavours to clarify those responsible for building safety throughout the lifecycle of the building and to define their respective roles. Clause 61 defines the Accountable Person, who is responsible for meeting the statutory obligations for occupied higher-risk buildings. There is likely to be significant overlap between the Accountable Person under this legislation and the “responsible person” in the existing Regulatory Reform (Fire Safety) Order 2005.
Firefighters, including fire safety inspectors, have long complained of the difficulties in identifying the responsible person, given opaque patterns of corporate ownership of many buildings. The HCLG committee should seek clarification from ministers on how these difficulties will be managed under the new regime.
Clause 67 establishes the role of the Building Safety Manager, who will appointed by the Accountable Person to carry out day to day functions with respect to the building. While the Building Safety Manager could potentially assist safety regulators and residents in improving accountability for safety, such a role should only be occupied by someone with the necessary professional qualifications. Similarly, sufficient numbers of Building Safety Managers would be necessary to meet the expected workload. Accountable Persons should not be able to appoint a Building Safety Manager with so many buildings to attend to that in practice they will fail to manage safety matters.
Clause 44 of the Building Safety Bill requires all local authority building inspectors to register with the Building Safety Regulator. The FBU believes this should be made as straightforward as possible for those public building inspectors employed by local authorities.
Clause 45 renames the private approved inspectors as “building control approvers”. Clause 46 appears to remove certain functions from these individuals or firms, such as issuing the final completion certificate. The explanatory notes (§416 page 74) state that the functions excluded will be laid down by secondary legislation – but no further detail is provided. The FBU opposed the introduction of these private ‘inspectors’, which undermined local authority professional inspectors and weakened building safety regulation. The union believes that the private inspector role should be abolished. The explanatory notes (§442 page 80) refer to a number of approved inspectors that went into administration last year.
The accountability of ministers also deserves more scrutiny. Clause 9 would abolish the existing Building Regulations Advisory Committee and replace it with the Building Advisory Committee for England (explanatory notes §170-171 page 29). The previous body was criticised for the prominence of construction industry figures – it is not clear how the new committee would avoid a similar fate.
The role of representing the fire and rescue service within any new structures cannot be left solely to the National Fire Chiefs Council (NFCC). Chief fire officers were complicit in creating the light-touch, weak regulatory regime that led to the Grenfell Tower fire. The FBU wants the Westminster government to establish a statutory fire safety advisory body, with guaranteed representation for trade unions and residents on this and other such bodies.
Fire authorities
The Building Safety Bill will have a direct impact on fire authorities and affect the work of fire inspectors. The FBU would expect the Building Safety Regulator to listen to the advice of firefighters, who have unrivalled professional experience with fire safety matters.
Clauses 13 and 14 define the requirements on fire and rescue authorities to assist the Building Safety Regulator. The explanatory notes (§191 page 33) state that the Building Safety Regulator will have the power to direct a fire authority to assist its operations. The notes (§194 page 34) add that fire authorities have to provide competent staff to assist the Building Safety Regulator, which will raise staffing and training issues.
The explanatory notes (§192 page 34) explain that Clause 14 would enable the Building Safety Regulator to provide fire authorities with the appropriate funding to cover the costs of this activity. The Impact Assessment (§144 page 32) states that “Fire and Rescue Authorities will collectively see an increase in staffing costs on an annual basis of between £9.0m and £15.4m”. The Impact Assessment (§175 page 38) also states that safety case costs were equivalent to 55 members of staff, full time equivalent. MPs should probe ministers to establish how these figures were arrived at and clarify the extent of extra work required of fire authorities.
The FBU is also sounding the alarm over the suggestion that the Building Safety Regulator would be permitted to seek private sector involvement if the fire authority cannot assist. The explanatory notes (§197 page 35, example 1) states:
It is expected that the Building Safety Regulator will work cooperatively with Fire and Rescue Authorities and local authorities to secure support from them. If the local authority or Fire and Rescue Authority in the area where the higher-risk building is located is unable to provide support, the Building Safety Regulator could seek support from other Fire and Rescue Authorities and local authorities whose capability is less stretched, or from the private sector.
This seems to allow private firms to sign off fire matters on higher risk buildings. The FBU has vigorously opposed such a regime throughout its history and will continue to do so. Building safety cannot become an opportunity for profiteering. The answer is to invest in the public fire and rescue service, by recruiting and training sufficient local authority professional firefighters to carry out these duties.
Are the sanctions on those who do not meet their responsibilities strong enough?
Clause 42 enables the Building Safety Regulator (or local authority) to issue compliance and stop notices where there is or is likely to be a contravention of building regulations. It also gives the Building Safety Regulator powers to prosecute all offences in the Bill. These sanctions are consistent with other safety regimes. However enforcement powers will only improve compliance and act as a deterrent if there are sufficient inspectors to intervene in good time.
The FBU has already raised the issue of the number of fire inspectors in our submissions on the Fire Safety Bill. Home Office figures (FIRE1204, FS10) report the number of staff employed for fire safety activities in England. In 2018-19, only 951 staff were competent to carry out audits, 597 to serve an enforcement notice and 407 to serve a prohibition notice. One in five (20%) of firefighter jobs have been cut over the last decade, with fire inspectors particularly hard hit. The FBU wants the Westminster government to invest in more firefighters, so that they can carry out the full range of prevention, protection and intervention work.
Similarly, the numbers of health and safety inspectors has fallen dramatically in recent years. Andy McDonald MP obtained figures from the House of Commons library for Workers’ Memorial Day, 28 April 2020. These showed that between 2009-10 and 2017-18, the number of HSE inspectors fell from 1,495 to 978. These are inspectors responsible for the highest risk workplaces and industries. Similarly, the HSE board report in December 2018 estimated that the number of environmental health officers working on health and safety regulation had fallen from 1,520 full-time-equivalent inspectors in 1996 to just 500.
The HCLG committee should ask ministers where Building Safety Regulator staff will be recruited from and the expected impact on other inspection bodies.
Will the Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building’s safety?
The Building Safety Bill contains some improvements for residents. Clause 11 requires the Building Safety Regulator to establish a residents’ panel (explanatory notes §179 page 31). This could be an improvement, but it is not clear how the Building Safety Regulator will appoint representatives to this panel. The FBU would expect tenants groups and a range of housing campaign organisations to be represented.
Clause 82 requires all Accountable Persons to produce a Resident Engagement Strategy to promote the participation of residents and flat owners in the decision-making about building safety risks in their building (explanatory notes §632 page 113). Again, this should be both individuals and tenant’s organisations from the buildings concerned. This means bodies like the Grenfell Action Group, which warned of the risks before the fire, but were ignored by the council, TMO and contractors.
Clause 113 will amend the Housing Act 1996 to remove the “democratic filter” to speed up redress for social housing residents (explanatory notes §810 page 142). At present social housing residents have to make a complaint via a designated person such as an MP, councillor or recognised tenant panel or wait eight weeks after the end of their landlords’ complaints process. The bill will allow residents to make a complaint directly to the Housing Ombudsman. The FBU supports removing this barrier.
Is the Government right to propose a new Building Safety Charge? Does the bill introduce sufficient protections to ensure that leaseholders do not face excessive charges and that their funds are properly managed?
Clause 89 inserts new sections into the Landlord and Tenant Act 1985 concerning building safety charges payable by tenants under long leases of dwellings in high risk buildings. The charges which will be separate from the service charge, so that costs incurred on building safety measures will be readily identified and accounted for (explanatory notes §668 page 120).
The FBU has serious concerns about the implications of this charge. The firms who put flammable cladding on these buildings, as well as their current principal owners should pay for remediation. They are the most powerful bodies in this situation, the ones who have made money from the buildings and who ultimately consented to the dangerous cladding. They have the greatest ability to pay for remediation. Tenants and single flat owners, however long they have lived in the building, did not have the power to decide on the use of flammable cladding on the homes. Tenants already face high rents and other bills. Charging tenants and flat home-owners for the mistakes of firms and landlords is to pass the buck to the most vulnerable.
Does the Bill improve the product testing regime in a way that will command the full confidence of the sector?
It is unclear from the Bill how the product testing regime will be improved. The Impact Assessment (§109-111 page 24) states: “the Government intends to provide a legislative framework through the Building Safety Bill to strengthen the oversight of the existing construction products regulatory regime”. The HCLG committee should seek more clarity from ministers about what this secondary legislation will entail.
The FBU believes that central government lacks its own means of determining the risks from existing and emerging products. The privatisation of the Building Research Establishment (BRE) means that high level testing is beholden to a private provider at commercial rates. Central government should have the facilities to carry out its own product testing. If firms want to market such products, then they should pay central government to test and then certify their use.
Is it right that the new Building Safety Regulator be established under the Health and Safety Executive, and how should it be funded?
Clause 2 establishes the new Building Safety Regulator within the Health and Safety Executive (explanatory notes §143 page 24).
The creation of the Building Safety Regulator with wide powers is probably the biggest institutional change arising from this Bill. The way the regulator has been established appears to have widened the remit of HSE beyond health and safety at work to significant involvement in domestic building safety. Yet HSE funding has been cut from £239m in 2009-10 to £135m in 2017-18, with overall staff reduced from 3,700 to 2,500. The HCLG committee should ask HSE safety inspectors (not just senior figures) whether it has the resources necessary to meet both its existing responsibilities and these new duties.
The materials provided by the Westminster government do not explain how fire safety will be managed within the Building Safety Regulator and who will pay for it. Central funding from general taxation is the best means. It is possible principal managers from the fire and rescue service will be recruited or seconded to work for the Building Safety Regulator. This will have implications for the fire and rescue service.
The FBU has also raised concerns about the input fire and rescue authorities will get with the Building Safety Regulator at each gateway, from design through construction to occupation. The union wants fire and rescue authorities to become statutory consultees for buildings in scope at all gateways in the process. The union notes that Hackitt’s final report (17 May 2018 page 43) recommended:
2.46 Fire and rescue authorities should also have the explicit ability to delay JCA [Joint Competent Authority – now Building Safety Regulator] clearance at any Gateway Point if the information provided by the dutyholder does not enable them to undertake a proper assessment.
Does the Bill present an opportunity to address other building safety issues, such as requirements for sprinkler systems?
The FBU’s policy is to support the wider use of sprinklers as part of building safety strategy to protect people, firefighters, property, jobs and the environment. However the union is not convinced that this Bill is the right vehicle to advance issues such as sprinklers. Sprinklers are not a substitute for passive fire protection measures such as compartmentation, nor are sprinklers a substitute for the emergency response of professional firefighters.
Whether to retrofit sprinklers in existing high rise residential buildings will depend on the risk assessment, which would take into account the existing fire safety measures (which may be affected by the installation of sprinklers), as well as the views of residents and local firefighters. The Grenfell Tower Inquiry has promised to consider sprinklers during phase 2 of its work, which is currently ongoing. The FBU believes it would be wise to wait for the inquiry’s findings before making further legislation on sprinklers.