Written evidence submitted by Greater Manchester High Rise Task Force [BSB 411]
I am writing as Chair of the Greater Manchester High Rise Task Force (the Task Force) to provide evidence to the Committee which I hope will assist its pre-legislative scrutiny of the Building Safety Bill.
Firstly, I would like to thank the Committee for examining this issue and its previous work looking at the progress of remediation of unsafe buildings. This remains an area of great concern in Greater Manchester and affects many of our residents and key services. It is clear that the current system of regulation for new buildings is not fit for purpose and this has led to a national industrial and regulatory crisis which the Government has not yet provided an adequate response to.
The announcement in March of a Building Safety Fund is a welcome step but it is increasingly clear that that this fund will be inadequate to assist residents trapped in dangerous homes through no fault of their own. Despite the mantra ‘Residents should not pay’ repeated by successive Ministers, the Government’s focus appears to be moving away from this commitment. I note with concern that in the response to the Committee’s report on cladding, the Government’s focus seems to have moved the responsibility onto leaseholders. The statement provided in that response “We recognise that the majority of residential leases in high rise buildings provide that the costs of remediation can be recovered from leaseholders through the service charge provisions. We are providing additional funding to the Leasehold Advisory Service…to enable them to help people understand the rights and obligations in their lease.” provides little confidence that the Government will deliver on commitments to protect residents facing life changing bills.
This when taken with the ‘first come first served’ approach to the Building Safety Fund and the exclusion from the fund of residents living in Skyline Central in Manchester already forced to enter into loan agreements is creating anxiety for many affected residents in Greater Manchester. It is disappointing that the Bill does not contain any proposals to protect residents from costs or provide mechanisms to ensure that those responsible for the failings can be held liable and pursued for the costs of remediating dangerous buildings they and their financiers have profited from.
In Greater Manchester we have been supportive of and actively called for legislative reform and sought to work with Government to shape a system which is fit for purpose. The Task Force has provided evidence to the Independent Review of Building Regulations and Fire Safety, responded to various Government consultations, facilitated direct engagement with Residents, a number of our members are participating in Early Adopter schemes and both I, Andy Burnham the Mayor of Greater Manchester and local leaders have written repeatedly to Ministers to highlight failings in the current system.
In developing and introducing the Bill the Government has referred to the proposals as ‘the biggest change in building safety for generation’ and whilst I am sure we are all supportive of this ambition the actual detail of the proposals fall far short of the radical reform required to ensure all new homes and buildings are safe in the future.
It remains the view of the Task Force that the proposed scope of the new regime is too narrow and I know the Committee shares our view that height should not be used as a single determinant of risk. The Bill fails to effectively improve the broken system of Building Control and will continue to allow developers to choose their own regulators with no effective enforcement for the vast majority of buildings. This will create a further fractured two tier system which is open to gaming and will lead to illogical and unjustifiable distinctions between the requirements for different buildings. Residents in buildings below 18m should be afforded the same protections and reassurances as those in buildings over 18m. It appears that despite some steps to recognise the risk, demonstrated through the amendments to Approved Document B which will require sprinklers in residential buildings over 11m the protections contained within the Bill are not being extended to this group. Although the Government has indicated the potential to expand the scope of the new regime in future with an estimated forecast of seven years to inspect and review the buildings over 18m in scope there is little confidence that other buildings are likely to be brought within scope in the same period.
I and the Task Force are concerned that some of the key findings of the Independent Review of Building Regulations and Fire Safety which the Government accepted in principle are already being watered down. The principles of Gateways was welcomed by the Task Force and in particular Gateway 1 as a means of embedding safety into the lifecyle of the building from the initial design stage. It is astonishing therefore, that there is no legislative provision within the Bill for this and the Government plans to exempt buildings developed under Permitted Development Rights from this vital stage. It cannot be right that consideration of key safety features should not be required for all buildings at the outset and there are numerous examples in Greater Manchester of conversions undertaken without planning approval under permitted development posing a risk to residents.
When taken with the current Planning White Paper, this failure to legislate for Gateway 1 indicates that the Government has no real intention of delivering on this fundamental tenet of reform.
The Independent Review of Building Regulations and Fire Safety also found that a lack of competency across a range of industries significantly contributed to the failing system of regulation. It is disappointing that despite extensive work and the creation of an Industry Safety Steering Group and the development of sector Competency Frameworks, competency requirements are not effectively enshrined within the Bill. There is inadequate information contained in the Bill, Explanatory Notes or Impact Assessment proposals as to how improving competence across a range of sectors will be resourced and funded. This coupled with the failure of the Bill to provide an effective mechanism to hold developers or builders to account for failings in existing buildings and those not within scope undermines the intent of the legislation and fails to protect residents and the public.
The reform required of the regulatory system must include all buildings and an improvement in competence across all sectors. Without this future high rise buildings may be safer but the much needed new homes across the country, our schools and our hospitals will not be. Whilst the ambition of the Bill and many of the principles are sound, without significant expansion and amendment the Bill will fall far short of the Government’s ambition for a once in a generation change to building safety and deliver a further fractured system, the failings of which will be paid for by future generations.
Finally, I would like to offer my assistance and that of the Task Force if further information would be useful to the Committee.
City Mayor of Salford
GMCA Housing, Homelessness and Infrastructure Lead and Chair of the Greater Manchester High Rise Task Force
Enclosed: Greater Manchester High Rise Task Force Submission: Housing, Communities and Local Government Committee ‘Pre-Legislative Scrutiny of the Building Safety Bill’
Greater Manchester High Rise Task Force
Submission to the Housing, Communities and Local Government Committee
Pre-legislative Scrutiny on the Building Safety Bill
1.1 The Greater Manchester High Rise Task Force (the GMHRTF) was established following the fire at Grenfell Tower by Andy Burnham, the Mayor of Greater Manchester and is led by Paul Dennett the City Mayor of Salford. The GMHRTF is supported by Greater Manchester Fire and Rescue Service (GMFRS) and consists of housing providers both social and private, local authorities, universities and other partners. The GMHRTF has overseen the response within GM to ensure preparedness in the event of a similar incident to the fire at Grenfell Tower, taken urgent action to ensure safety of premises and provide reassurance to residents in high rise accommodation. The GMHRTF has also ensured that robust contingency plans are in place in the event of a similar fire occurring within Greater Manchester.
1.2 Greater Manchester has over 500 residential high rise buildings with many more in the planning, development and construction phase. In both the social and private sector there have been significant financial implications associated with the use of non-compliant cladding systems, with the cost of the interim measures recommended by MHCLG running into thousands of pounds a week for some housing providers. The cost of remedial works is extensive and in many cases it still appears that the costs will fall to leaseholders.
1.3 A key priority for the GMHRTF is ensuring the safety of residents and in Greater Manchester we have committed to developing a world class approach to fire safety – clearly this will be easier if much needed legislative change is introduced.
1.4 The Grenfell Tower fire has had significant and far reaching consequences for all parties within the GMHRTF and our key priority remains ensuring and assuring the safety of residents in Greater Manchester. In a previous submission to the Committee’s Inquiry on Cladding Remediation, the GMHRTF set out the scale of the issue in Greater Manchester and its concerns that the Building Safety Fund would not be adequate to fund the works required to ensure high rise buildings around the country are made safe. At the time of that submission, 78 high rise buildings in Greater Manchester had adopted ‘interim measures’ to support a change in the evacuation strategy as a result of serious fire safety deficiencies. Now, just four months later more buildings have received the results of specialist assessments and there are currently 95 high rise buildings with interim measures and increasing reports of buildings under 18 metres identifying similarly serious concerns.
1.5 The GMHRTF welcomed the Report of the Independent Review of Building Regulations and Fire Safety (the Hackitt Report) and was unified in agreeing that the current system of regulation is not fit for purpose and that the safety of buildings needs to be embedded from the planning stage through to the management of occupied buildings. The GMHRTF responded to the Government when it called for views on the Hackitt Report and its subsequent Building a Safer Future consultation last summer. It has continued to work to improve the safety of high rise residential buildings and to support Greater Manchester residents living in high rise and smaller blocks of flats.
1.6 Members of the GMHRTF have met to consider the Building Safety Bill and this submission draws on expertise from Housing Providers, GMFRS, Building Control, Housing Enforcement, Solicitors with regulatory and housing experience, and from our previous consultation events with residents.
1.7 In preparing this submission the GMHRTF has sought to comment on the various elements of the Building Safety Bill and summarise the issues and concerns in relation to the Committee’s specific questions.
1.8 The GMHRTF is concerned that the Bill lacks sufficient information about how many of the new mechanisms are intended to work. Whilst it is recognised that the intention is for the Bill to provide an overarching y framework, the amount of detail which is left to secondary legislation is a concern without any clear policy indications. It is difficult to assess how effective the proposals may be without further detail.
1.9 A number of the questions posed by the Committee have been addressed in summary in the section below. In the section following these questions, we have provided further detail on the views which underpin our responses and concerns.
GMHRTF responses to consultation questions
1.10 How well does the Bill, as drafted, meet the Government’s own policy intentions?
a) The GMHRTF considers that the general approach set out within the Bill will enhance the safety and system of regulation for new buildings within scope of the regime but the Bill falls short of delivering the Government’s commitment to ‘fundamental reform of the building safety system.
b) The Independent Review of Building Regulations and Fire Safety found that the current system of regulation was not fit for purpose. The effects of this failed system are evident in the number of high rise buildings which have been identified as having fire safety deficiencies requiring extensive remediation and the extent of this in buildings under 18 metres is not yet fully understood. The significant fires which have occurred following Grenfell including at The Cube in Bolton demonstrate the risks posed to residents from the failed regulatory system.
c) It is unclear how the Bill will deliver the significant reform of the Building Control system which is required to ensure the safety of the built environment and for the majority of new developments out of the limited scope of the Bill there is no real change to the current system. It is a major concern that the clear conflict identified in the Hackitt Report of developers being allowed to choose their own Regulator is not being addressed for the majority of buildings. This risks the creation of a further fractured and two tiered system of building safety with competition and financial savings allowed to influence vital regulation of buildings out of scope.
d) The general proposals in the Bill will assist in improving the safety of those buildings within scope but it is a concern that the system of Gateways which are a central tenet of the proposed reforms are not given a clear legislative basis. The GMHRTF is concerned that the principle of Gateway 1, which in our view should be extended to all new developments is undermined by the exclusion of buildings developed utilising Permitted Development Rights and there is a clear conflict between the approach set out in the Explanatory Notes and the recently announced reforms in the Planning White Paper.
e) The Hackitt Report identified competency and culture as a key problem within the existing regulatory system. There has been considerable work undertaken through the Industry Safety Steering Group and Competency Working Groups to establish competency requirements and increasing competency will be essential to ensuring the effectiveness of the new regime. The GMHRTF is concerned that competency requirements are not effectively enshrined within the Bill. Although the Bill imposes a general duty on the Regulator to ‘facilitate’ competency through providing ‘assistance and encouragement’ there is no mechanism as to how competency will be mandated and where necessary enforced. This is a key concern in relation to the proposals for work on in scope buildings to only be undertaken by Registered Building Inspectors with no detail as to how this registration of sufficient professionals can be achieved. The proposals for every in scope building to have a nominated Building Safety Manager must be linked to a requirements for clear and mandated competency requirements for this role. The current proposed obligation on Accountable Persons to be satisfied the Building Safety Manager has the necessary “skills, knowledge, experience and behaviours” must be underpinned by a clear and independent system for assessing and assuring competency.
1.11 Does the draft Bill establish an appropriate scope for the new regulatory system?
a) The GMHRTF is concerned that the proposed scope of the new regime is too narrow and have repeatedly raised concerns with Government about the use of height as a determinant of risk. It is our view that a height threshold is not the best way of considering risk within residential buildings and we remain concerned that the current proposals will create a two tier system which is open to gaming and will lead to illogical and unjustifiable distinctions between the requirements for different buildings. Residents in buildings below 18 metres should be afforded the same protections and reassurances as those in buildings over 18 metres.
b) In our response to the Building a Safer Future Consultation, the GMHRTF stated that the scope of any new regulations should be determined in relation to the risk, including risk profile of occupants. We also stated that enhanced regulation should include hospitals, care facilities, boarding schools and other buildings with a sleeping risk. In addition, the following factors relating to existing buildings should be considered as part of the overall risk profile - layout; means of escape and access; fabric of building; fire safety history.
c) Although the Bill contains provisions for the scope of the regime to be extended through Regulations, it is unclear how many of the provisions could be applied effectively to other high risk premises. The focus on multi-occupied residential buildings within the legislative provisions may provide a barrier to effective expansion of the scheme to buildings like care homes and hospitals.
d) It is disappointing that the Government has failed to draft the Bill in a way that would allow flexibility for the scope of the regime to be determined regionally based on risk and aligned to regional frameworks and strategies. This is a particular concern in relation to existing buildings. The GMHRTF is concerned that there is no legislative provision that would enable a building to be subject to a declaration that it is a ‘higher risk building’.
e) The approach to ensuring that Building Standards are kept under review is welcomed. However, the GMHRTF has concerns about the capacity and resources of the Regulator to ensure that this can be done effectively in relation to the buildings out of scope and the requirements of the Building Regulations which will not be enforced by the Regulator for buildings in scope. It is a noted that the Impact Assessment indicates an annual cost estimate of £1.9 million to fulfil this function. This appears low given the expansive nature of matters covered in the Building Regulations and the variety of buildings which will need to be considered by the Regulator in order to effectively fulfil this function.
f) The GMHRTF has concerns that the current focus on fire and structural risk is too narrow and that this is a missed opportunity to ensure that risk is considered and addressed holistically. The introduction of a new regulatory regime that only focuses on fire and structural safety and will operate in tandem with both the Fire Safety Order and the Housing Act 2004, has the potential to cause confusion for dutyholders, regulators and residents. In the absence of any proposed operational guidance, it is difficult to anticipate how the regimes are intended to interact. Urgent consideration must be given to this by the Government to support the principles of effective regulation. It is the view of the GMFHRTF that the Government should reconsider whether the proposed Joint Competent Authority (JCA) arrangement, originally proposed in the Hackitt Report, would be a more effective delivery mechanism. This could be achieved through amending the Bill to give the Regulator the function of overseeing and co-ordinating JCAs aligned to the existing provisions for co-operation.
1.12 Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety? Are the sanctions on those who do not meet their responsibilities strong enough?
a) The GMHRTF welcomes the intent of the Bill to create a clear system of responsibility and accountability for those involved in the design, construction and management of buildings in scope. It is less clear how the Bill as drafted provides an effective mechanism for that, as there are no provisions that explicitly create any additional accountabilities or sanctions for those roles defined within the current Construction, Design and Management Regulations.
b) There is clear evidence that there is currently no effective mechanism to hold developers or builders to account for failings. In Greater Manchester the costs of those failings are falling to housing providers and residents. The failure of the Bill to create a clear mechanism for liability is a cause for concern and undermines the intent of the legislation. As a minimum, the Bill should contain a provision aligned to s36 of the Health and Safety at Work Act and Article 32(8) of the Fire Safety Order, to allow for offences which are committed as a result of an act or omission of a third party.
c) The amendments to the Building Act contained within the Bill that extend the limitation period and penalties for existing offences are welcome. However, the proposed amendments do not appear to address the lack of effective sanctions and enforcement available where the Building Control Body is an Approved Inspector. This is considered to be a significant shortfall in the legislation and, as previously set out, does not contribute to systemic improvements within the current regulatory system and will not prevent the creation of a two tier system of building safety. It is the view of the GMHRTF that the Bill should contain provisions for Local Authorities to take enforcement action on any building and remove the current restrictions on this.
d) We have concerns that the current proposed definition of “Accountable Person” is unnecessarily complex and the reliance on detailed guidance to support this is problematic. If detailed guidance is necessary to address the issues of complex ownership, then it is the view of the GMHRTF that the Accountable Person should be defined in a way that aligns to the current definitions of “Responsible Person” in the Fire Safety Order. This will assist in aligning responsibilities and accountabilities across the two regimes.
e) The GMHRTF is concerned that the Bill currently does not make any provision to impose responsibilities on third parties who may undertake work in relation to existing occupied buildings. There should be a statutory mechanism to set out legal duties which would cover parties contracted to undertake, for example, assessments or maintenance of safety systems, as well as third parties who may enter the building to provide services to leaseholders and undertake work on the structure. There should be a corresponding sanction where the work or services undertaken do not meet the required standard or interfere with existing safety mechanisms. This would support Accountable Persons and Building Safety Managers to effectively manage the building and provide a level of protection to them against liability for the negligence of third parties.
f) The provisions within the Bill relating to residents duties are not considered to be appropriate or adequate to support the policy intention and ensure that residents are clear about their own responsibilities and protected from adverse implications caused by the behaviour of others. The current provisions are considered to be unnecessarily onerous on long term residents and largely unenforceable, and they are not considered adequate to protect residents from the actions of those occupying the building on a short term basis. The proposed enforcement of residents duties, which is reliant on the Accountable Person taking action through the County Court, is not considered to be effective and will be onerous, time consuming and costly. It is the view of the GMHRTF that residents’ duties would be better created through a ‘general duty’ to take reasonable care for their own safety and the safety of others, and co-operate with the Accountable Person and the Building Safety Manager. This would align to the duties imposed on employees in under the s7 of the Health and Safety at Work Act and Article 23 of the Fire Safety Order. There should be a mechanism for Accountable Persons to enforce this duty and the ability for enforcement to be escalated to the Regulator where necessary.
g) The current proposals do not contain any provision for an Accountable Person to undertake work to rectify the actions of residents which may impact on the safety of the building. Residents who contributed to our response to the Building a Safer Future consultation were supportive of legal responsibilities being imposed on residents irrespective of the tenure of the building, and considered that where work which interferes with the safety of a building is carried out without consent, then there should be a power for the building owner to rectify the work and recharge the tenant / leaseholder. It is the view of the GMHRTF that a mechanism for this should be contained within the Bill so that Accountable Persons have the ability to remediate or rectify works undertaken by residents which impact on the safety of buildings.
1.13 Will the Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building’s safety?
a) The principles of ensuring effective mechanisms for resident engagement are welcomed and the general provisions of the Bill are considered appropriate. There are concerns, however, that the draft provisions are too prescriptive in this area and may result in Accountable Persons incurring unnecessary costs.
b) In contributing to the response to the Building a Safer Future consultation, residents were clear that they were supportive of a requirement to provide information, but that they considered this needed to be proportionate and appropriate. There was consensus that basic information about the building, for example what to do in a fire and the evacuation strategy, should be available and displayed in the building and that more detailed information should be available when someone moved in and on request. Residents were clear that there was also a responsibility on people living in a building to familiarise themselves with information about the building and engage with the safety arrangements. Concerns were expressed about the cost of repeatedly providing information if this is not read. Residents were also clear that information needs to be available in different formats and not just available online. The GMHRTF considers that the obligation to prepare a Resident Engagement strategy is appropriate, but that the provisions should be amended to remove the requirement to provide every resident over the age of 16 with a copy on completion or revision.
c) The proposals that the Regulator should create a Residents Panel are welcomed in principle. The GMHRTF has consistently advocated that residents must have a voice within the system. However, there are concerns as to how one panel will be able to effectively represent the views and interests of residents from different areas of the Country and different ownership structures. Consideration should be given to an obligation to create regional panels which may be more representative.
d) There proposals for a new Ombudsman scheme may be of benefit to individuals who purchase or move into buildings developed after the new regime takes effect, but will not assist residents in existing privately owned buildings.
1.14 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?
a) In establishing a response to this particular question, the GMHRTF has engaged and consulted with the Manchester Cladiators who work closely with the GMHRTF on common areas of interest and concern and provide an ongoing conduit for resident engagement. The Manchester Cladiators is a strong voice and source of support to affected residents in Greater Manchester particularly in privately owned buildings and the GMHRTF is grateful for and supportive of the work the group does on an entirely voluntary basis. The GMHRTF shares the concerns of the Manchester Cladiators that the Bill does not provide any protections to prevent leaseholders from excessive charges.
b) Given the Government’s longstanding position that residents should not have to pay and that developers and freeholders “should do the right thing” it is disappointing that the Bill does not contain any proposals to protect residents from costs and provide mechanisms to ensure that those responsible for the failings can be held liable and pursued for the costs of remediating them.
c) The Government has repeatedly stated that residents should not be required to pay to make their homes safe and yet the Bill provides no protection from this real concern for residents and the proposals for the Building Safety Charge and more significantly the “building safety costs”. The GMHRTF notes with concerns that despite the position taken by Government since 2017, the Impact Assessment makes repeated references to leaseholders should not “face unaffordable costs” and options being explored to “mitigate this if they arise”. This appears to be a clear departure from the established position repeated by successive Ministers that leaseholders should be protected from paying for the failures of others. This in the view of the GMHRTF and the Manchester Cladiators should be the fundamental objective and the Government must do more to ensure those responsible for the fire safety failings and whom have already profited should be held liable.
d) The significant reforms which are required to improve the safety of buildings and the competency of those involved in the design, construction and management of them will involve significant costs at all stages of the lifecycle of the building. For new buildings in scope of the regime, these additional costs will become the new ‘norm’ but the Government must take steps to ensure that there is transparency about the costs related to the occupation stage and that this is built into the conveyancing process.
e) The GMHRTF remains of the view that residents and leaseholders should not bear the costs of failings in design and construction whether through service charges or the diversion of funds from other areas.
f) The evidence of the detrimental impact both financially and mentally of unanticipated costs is widespread and the costs of interim fire safety measures and remediation of buildings is a significant financial burden to many residents. The principle that a greater focus on safety should be embedded into the management of buildings and consequently the management costs is not a cause for significant concern but protections must be put in place to ensure that the initial costs of developing safety cases do not fall to leaseholders and housing providers.
g) The Impact Assessment indicates the potential extent of the costs which will be related to the new regime in relation to the production of safety cases and any identified remediation works with the average cost estimated to be £9,000 per leaseholder but the potential costs being up to £75,000. In Greater Manchester there are a number of buildings where the remediation works required are known to be significantly higher than these estimates. The GMHRTF is concerned that there is little or no evidence base against which to assess the potential costs of structural remediation work and to date the Government has produced no guidance on how structural assessments should be undertaken.
h) The proposals within the Bill that payment of the Building Safety Charge can be demanded within 28 days without consultation is a cause of significant concern in the absence of any indication from the Government as to the maximum specified amount that could be in these circumstances. It is unclear how this will operate in relation to the established consultation requirements and protections under the Landlord and Tenant Act. If the ‘specified amount’ is to be more than the current £250 limit where consultation is not required, this may worsen the situation for leaseholders in relation to costs and bills. The protections for leaseholders who are unable to pay charges within 28 days is entirely unclear and this is a cause of significant concern to residents. It is vital to consider the impact of any additional charges and costs in the context of the existing liabilities and charges incurred by leaseholders.
i) There is a concern that the proposals to imply terms into existing leases may result in a worsening of the situation for some leaseholders if their current leases do not obligate them to meet the costs of remediation.
1.15 Is it right that the new Building Safety Regulator be established under the Health and Safety Executive, and how should it be funded?
a) The GMHRTF has previously welcomed the concept of a national regulator to oversee the system; develop guidance and best practice; and oversee industry competence and the regulation and certification of products. However, we expressed concern in our response to the Building a Safer Future proposals around the costs and removal of local involvement and accountability if a national body was to undertake all regulatory functions.
b) In principle, the GMHRTF does not object to the Health and Safety Executive (HSE) fulfilling the function of the Regulator, but we remain of the view that a Joint Competent Authority model for delivery would be beneficial. There is a risk that, as a consequence of the proposals within the Bill, resources will be drawn from existing experienced regulatory staff from both Local Authorities (LAs) and Fire and Rescue Authorities (FRAs), with a detrimental impact on the delivery of their functions.
c) It is clear that significant initial funding will be necessary for the creation of the new Regulatory Function within the HSE and that given the wide scope of the functions, duties and powers within the Bill, a significant element of the established and running costs will not be recoverable. It is the view of the GMHRTF that the Government must commit to adequate funding of the HSE and that any costs that are not directly attributable to ensuring the safety of individual buildings should not fall to Accountable Persons.
d) There is also significant investment required by Government to build capacity and capability within LAs and FRAs to support the proposals within the Bill. The GMHRTF is concerned that the cost of this has not been considered as part of the Impact Assessment which is focussed on the costs of participating in the new regime and fails to recognise the significant investment that is required in recruitment, training and retention, to ensure there will be a sufficient number of appropriately qualified staff.
1.16 Does the Bill present an opportunity to address other building safety issues, such as requirements for sprinkler systems?
a) The GMHRTF is surprised and disappointed that the holistic benefit of sprinklers is not considered or promoted as part of these proposals. Many housing providers have already committed to the installation of sprinklers in high rise buildings or are consulting with residents. They consider that this enhanced safety provision should be recognised and could be used to offset some of the requirements for building information for existing buildings as set out in the proposals for safety cases within the Explanatory Notes and Impact Assessment.
b) The GMHRTF is concerned by the Government’s continued resistance to proactively promote the benefits of sprinklers for existing buildings and mandate installation in new buildings. There has been significant research by both the National Fire Chief’s Council and the industry itself demonstrating the effectiveness of these systems at reducing fire spread and saving lives.
c) The Bill as drafted makes no provision for recognising or incentivising excellence and promoting enhanced safety provisions. The GMHRTF considers that in addition to effective sanctions, there should also be incentives for compliance and higher standards. This might include recognition on the register of buildings, an extension of the building safety charter; approved developers; and positive news stories. This would be easier to deliver through a system of local regulation.
Further detail on the concerns of the GMHRTF
Scope of the Bill
2.1 In responding to the Hackitt Report, the GMHRTF was of the view that the scope of a new regime should not be restricted to buildings over 30 metres. We therefore welcome the proposals for a new regime to apply to a wider range of buildings, but consider that the current proposals for buildings over 18 metres or 6 storeys do not go far enough. The GMHRTF does not consider that a height threshold is the best way of considering risk within residential buildings and is concerned that the current proposals will create a two tier system which is open to gaming and will lead to illogical and unjustifiable distinctions between the requirements for different buildings. Residents in buildings below 18 metres should be afforded the same protections and reassurances as those in buildings over 18 metres.
2.2 If a height threshold is to be applied, this should be no higher than 11 metres. The GMHRTF would welcome the flexibility for building owners to ‘opt in’ to the system of registration and regulation, if a strict height threshold is introduced. There should be the flexibility for the scope of the regime to be determined regionally, particularly in areas where there are devolution agreements in place. This determination should be based on risk and aligned to regional frameworks and strategies.
2.3 There are concerns that the proposed new regime does not consider safety holistically and that the focus on fire and structural safety may create a disconnect with other key safety elements that must be managed – for example, gas and electrical safety and the control of Legionella. The proposed new regime does not adequately take account of the current regulation of social housing providers and may introduce duplication and unnecessary burdens.
2.4 The GMHRTF is surprised and disappointed that the holistic benefit of sprinklers is not considered or promoted as part of these proposals. Many housing providers have already committed to the installation of sprinklers in high rise buildings or are consulting with residents. They consider that this enhanced safety provision should be recognised and could be used to offset some of the requirements for building information for existing buildings as set out in the proposals for safety cases within the Explanatory Notes and Impact Assessment.
2.5 The GMHRTF is concerned that there is inadequate information about how the new regime set out in the Bill, will interact with existing legislation applicable to the buildings within scope, specifically the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order) and the Housing Act 2004. The provisions relating to co-operation between responsible persons under the Fire Safety Order and Accountable Persons within the Bill are not sufficiently clear.
2.6 The GMHRTF is concerned that the relationship between the new Regulator and the Local Authorities (LAs) and Fire and Rescue Authorities (FRAs) lacks clarity. The duty on LAs and FRAs to provide assistance is not considered to be balanced and greater clarity should be provided in this area including the timescales involved for requests for assistance. In addition there is no mechanism for LAs and FRAs to secure the assistance of the Regulator and this should be addressed.
3.1 The GMHRTF welcomes a Gateway approach to ensuring the safety of new buildings, however there are significant concerns that, despite being a fundamental principle of the reforms recommended in the Hackitt Report, these are not enshrined within the Bill.
3.2 The proposal within the explanatory notes that Gateway 1 can be delivered through amendments to the Town and Country Planning Act by making the new Regulator a statutory consultee at the planning stage, is a particular concern. The principle of Gateway 1 is that fire safety should be considered at an early stage with particular reference to firefighting access and water supplies. It is not clear how it is envisaged that the Regulator will have the knowledge or expertise to comment on these matters, as primarily this will relate to operational considerations of Fire and Rescue Services (FRSs). If it is the intention that the Regulator will utilise the local FRSs, it is unlikely that the current statutory consultation period will be appropriate.
3.3 The GMHRTF does not support the principle that Gateway 1 should only apply to buildings within scope and, in line with the submission to the Government’s consultation last year, considers that access and water for firefighting should be considered at an early stage for all developments. There is a lack of clarity about how the proposals for Gateway 1 will align with the Government’s proposed reforms of the current Planning system as set out in the recent White Paper. If those reforms proceed to remove the current planning application process, then it would appear from the information within the explanatory notes to the Bill that the principle of Gateway 1 would become obsolete.
3.4 There are significant concerns that the Bill’s aims of embedding fire safety from the outset of the design of a building are undermined by the effective exemption for buildings where the use is changed under permitted development rights. This is particularly relevant regarding Gateway 1. The basis on which the Government does not consider it necessary for fire safety, including access and water, to be a consideration when planning the expansion of, or change of use to, a high rise residential building is unclear. The inspections undertaken by GMFRS of high rise buildings have identified significant fire safety concerns in a high proportion of buildings which have been converted to residential accommodation under Permitted Development Rights. It is possible that some of these issues will be identified at Gateway 2 but it is not clear how unsuitable access for firefighting or inadequate water supplies will be properly addressed in a proportionate way.
3.5 It is not clear from the Explanatory Notes how proposals which are submitted at Gateway 1 would be enforced in the event of non-compliance and whether this will be undertaken by LAs as part of planning enforcement, or if this will be undertaken by the Regulator.
3.6 The principle of Gateway 2 is welcomed by the GMHRTF but concerns remain that the scope of these reforms are too narrow. The GMHRTF remains of the view that this process should be the standard approach and all new developments should require a full plans approach, irrespective of the Building Control body. There should be a level playing field in the Building Control process to ensure that appropriate rigour is applied to safety considerations.
3.7 The GMHRTF welcomes the proposed amendments to the Building Act 1984, but considers that these reforms do not go far enough to address the existing problems within the current Building Control system. There is a risk of creating a fractured system with three tiers of possible regulation -the Regulator managing buildings in scope; the current inadequate system applying to buildings out of scope; and the potential for the Regulator to intervene where there is a linked building in scope. This will not lead to a consistent approach to regulation and the current proposals are inadequate to remove the clear conflict of developers choosing their own regulator for the majority of buildings.
3.8 The scope of application of the new proposals relating to Building Control and the protections which will be included at Gateway 2 to buildings over 18m+ is far too narrow . It will make worse the problems that already exist for buildings outside of this scope, by creating a two-tier system for design and construction, building control, and the management of fire safety following occupation. Without wider reform of the building control process, the new regime will not address these issues for the majority of residential buildings.
3.9 The GMHRTF is concerned that the concept of Register Building Inspectors, which is one of the key tenets within the proposals for buildings in scope, is not adequately underpinned. It is understood that the current Competency Framework for Building Control is being expanded, but there is no information as to how this registration requirement will be mandated and systematically applied.
4.1 The GMHRTF expressed concern in response to the Building a Safer Future consultation that the proposals for a new national regulator will be expensive and remove local involvement and accountability, and risks reducing the expertise available at a local level. The GMHRTF considered that there was a role for a new national body that should oversee the system; develop guidance and best practice; and oversee industry competence and the regulation and certification of products. It remains the view of the GMHRTF that the national regulator should provide a statutory framework but this should be delivered at a local level through the JCA proposals as contained in the Hackitt Report.
4.2 It is clear that the Government has now committed to utilising the Health and Safety Executive as the Regulator, but it is the view of the GMHRTF that significant further work is required to formalise the operating arrangements and ensure that independence and expertise of local regulators within LAs and FRSs are appropriately recognised and local accountability is not undermined.
4.3 The proposed duties of the Regulator under s4 of the Bill to facilitate building safety for high risk buildings and to keep under review the safety of buildings and building standards are welcomed. However, it is less clear how the Regulator will review and assess safety standards in the wider built environment which are outside its direct enforcement remit. To ensure the ongoing improvement of the wider regulatory framework, it will be essential to ensure the Regulator has access to information and the ability to assess compliance with the Building Regulations across the whole built environment.
4.4 Irrespective of the regulatory model, there will be significant investment and additional funding required to deliver the new regime and this cannot be restricted to a cost recovery model, particularly for LAs and FRSs. The GMHRTF notes that the Government’s estimates that the costs to LAs and FRSs of participating in the new regime are estimated to be £12.1 million and £9.1million respectively, and is concerned this does not recognise the significant investment that is required in recruitment, training and retention practices.
Dutyholders & Definitions
5.1 The GMHRTF has previously welcomed the proposals to clearly define dutyholders within a statutory framework and to specify responsibilities. However, we informed the Government in our response to the Building a Safer Future consultation, that further work was required in this area to ensure a clear system of accountability.
5.2 The responsibilities of different roles in relation to the planning, design and construction are detailed clearly in the Government’s response to the Building a Safer Future Consultation and set out in the Impact Assessment published alongside the Bill which refers back to the previous Government response, but are not set out clearly in the Bill. It is not clear therefore how the proposed new responsibilities will be effectively enforced.
5.3 The GMHRTF has previously expressed concerns in relation to the proposed dutyholder roles and definitions, as in many cases the delineation between Client, Designer and Contractor is not the norm and one Organisation may fulfil a number of these functions. It is currently unclear how responsibilities will be separated when dutyholders are within the same company.
5.4 The GMHRTF remains concerned that there is little information about how these roles will work in practice and there is inadequate information contained in the Bill, Explanatory Notes or Impact Assessment proposals as to how improving competence across a range of sectors will be resourced and funded.
5.5 The GMHRTF is concerned that the proposed definition of an Accountable Person will not address the current difficulties that arise from complex models of ownership. It is concerning that the proposed mechanism for defining the Accountable Person includes, and is dependent upon, a proposed definition of ‘common parts’ which does not align to the wording of the Fire Safety Bill which clarifies the application of the Fire Safety Order (FSO). The wording of the Fire Safety Bill is intended to remove any doubt that the FSO applies to external walls including balconies, doors and windows and flat front doors. The proposed definition of common parts in the Building Safety Bill excludes parts of the premises which are demised to individual dwellings and therefore there is the potential for doors, windows and balconies to fall outside the scope of this definition.
5.6 In responding to the Building a Safer Future Consultation the GMHRTF called on the Government to ensure that proposals for the definition of the Accountable Person offered a clear advancement on the current mechanism for determining responsibility under the FSO. The draft definition of Accountable Person fails to do this and may consequently lead to significant confusion. If the intention is for the party with responsibility for collecting service charges and arranging and undertaking repairs to be the Accountable Person, then the existing definitions within the FSO of the person in control of the premises are adequate for this purpose.
5.7 It is clear from the Explanatory Notes and Impact Assessment that the definition is intended to cover a variety of arrangements and specifically any of the following are envisaged to be included - “freeholders, the head lessees, management companies, commonhold associations or a Right to Manage Companies”. The Impact Assessment indicates that detailed guidance will be provided by the Government on identifying the Accountable Person. It is the view of the GMHRTF that adopting a definition aligned to the wording of the FSO, and supported by guidance, would be preferable.
5.8 It is not clear from the proposals as to what support will be provided for existing management companies, commonhold associations and Right to Manage Companies to support them in preparing for new responsibilities. In relation to privately owned buildings, residents have previously expressed concerns that that no one will want to undertake roles within these entities, because of the personal liabilities and consequent risk. This may present a barrier for residents to have control over, and involvement in, the management of their building and undermine the viability of different models of leasehold ownership arrangements.
5.9 It is the view of the GMHRTF that a statutory definition of ‘Building Safety Manager’ would be beneficial and support the effective implementation of the proposed changes. At present the Bill sets out some statutory responsibilities, but is drafted so that the position is held in accordance with the Terms of Appointment. This may lead to inconsistency of approach. The GMHRTF considers that a statutory definition of the role is essential and that further provisions are required to ensure that the competency requirements are mandated and embedded.
5.10 There are concerns that the current definition of “resident” set out in s60 is unnecessarily restrictive and is not adequate to reflect the different uses of multi-occupied residential buildings. It results in an unnecessary distinction between flat owners and residents in relation to other provisions and the intended application, for example, to people occupying the premises on a short term basis is ambiguous. It is the view of the GMHRTF that it would be better to have a broader definition which could include anyone lawfully occupying part of the premises. This is particularly important in the context of the proposed ‘Residents Duties’ which are addressed in more detail below.
5.11 The proposal to define “residents” and flat owners as a recognised group for some purposes within the Bill is logical and appropriate. However, the current categorisation as “relevant persons” is unhelpful given it will create a different definition to that contained in the FSO which is likely to cause unnecessary confusion. This is exacerbated by the fact that the Bill contains a variety of definitions of “relevant persons” all with different meanings.
5.12 The GMHRTF is concerned about the use of the phrase “major incident” to establish the key duties of the Accountable Person within the proposals. This phrase has an existing and well established meaning for Emergency Services, Local Authorities and other Category 1 Responders and the use of this phrase may cause unnecessary confusion. It is noted that the Explanatory Notes use the phrase “major accident” and this, or an alternative phrase, would be desirable. The current proposed definition is also a concern, in particular the use of ‘significant’ in relation to the number of deaths or people injured. The GMHRTF is concerned that this is unnecessarily ambiguous and subjective.
5.13 It is a concern that the Bill as drafted does not contain any clear provisions relating to the duties and accountabilities of third parties (for example utility and services suppliers) and mechanisms as to how this should be monitored or controlled. The GMHRTF is of the view that there should be an express statutory provision which creates an obligation on any party undergoing work in relation to the safety of in scope buildings.
Resident Engagement and Duties
6.1 The safety of our residents is the driver for the activity that has been undertaken in Greater Manchester and there has been extensive engagement with residents and leaseholders. Before the impact of Covid-19, a Residents Forum was held on a quarterly basis, and in 2019 a survey was undertaken of residents in high rise buildings. The results of the survey and engagement with residents through the Residents Forum informed the GMHRTF response to the Building a Safety Future Consultation. The survey, ongoing engagement with residents, and collaboration with the Manchester Cladiators, continues to inform the views of the GMHRTF.
6.2 It is clear that there is mixed practice across the sector, including across tenures. Residents have told us that some housing providers have excellent engagement strategies in place and that information is readily available, but that more could be done to speed up responses to queries or concerns that are raised.
6.3 The GM High Rise survey asked about the provision of fire safety advice and information from their landlord or managing agents. Residents told us:
When asked about the evacuation strategy for their buildings residents have told us;
6.4 This is a clear indication that a requirement to effectively share information with residents about the arrangements for buildings is necessary.
6.5 The principles of ensuring effective mechanisms for resident engagement are welcomed and the general provisions of the Bill are considered appropriate. However, there are concerns that the draft provisions are too prescriptive in this area and may result in Accountable Persons incurring unnecessary costs.
6.6 As set out above the current proposed definition of “resident” is a concern for the GMHRTF and this significantly impacts the proposals for the Resident Engagement Strategy and Resident Duties. The current drafting of the Bill makes no provision for residents’ representatives or advocates to have the right to access information on behalf of residents. This should be addressed to ensure that the most vulnerable residents are able to be supported effectively.
6.7 The Bill as drafted provides that the Resident Engagement Strategy must consider both those who are over 16 and occupy the building and (non-resident) flat owners, but fails to impose any duties or responsibilities onto non-resident leaseholders. It is the view of the GMHRTF that a requirement to identify all residents over the age of 16 is impractical and will have significant cost implications, which in many cases will fall to residents through increased management costs and service charges.
6.8 There is a clear contractual relationship between those who are likely to be considered Accountable Persons and flat owners, but there is not necessarily any relationship between Accountable Persons and those who reside in the building. There is a real risk that the current proposals within the Bill may result in the abrogation of non-resident flat owners’ responsibilities both in respect of the building and also the provision of information to, and management of, their tenants. This is a particular concern for buildings where flats are used as short term lets and therefore there is a high turnover of people staying in the building with little or no interest in its safety or management. It is the view of the GMHRTF that it is disproportionate to expect the Accountable Person to identify all individuals living in a building in scope with no requirement for leaseholders to pass on information about the buildings safety arrangements to their tenants.
6.9 In contributing to the response to the Building a Safer Future consultation, residents were clear that they were supportive of a requirement to provide information, but they considered this needed to be proportionate and appropriate. There was consensus that basic information about the building, for example what to do in a fire and the evacuation strategy, should be available and displayed in the building, and that more detailed information should be available when someone moved in and on request. Residents were clear that there was also a responsibility on people living in a building to familiarise themselves with information about the building and engage with the safety arrangements. Concerns were expressed about the cost of repeatedly providing information if this is not read. Residents were also clear that information needs to be available in different formats and not just available online.
6.10 The GMHRTF considers that the obligation to prepare a Resident Engagement strategy as drafted is appropriate, but that the provisions should be amended to remove the requirement to provide every resident over the age of 16 with a copy on completion or revision. The Bill should also make provision for a duty to be imposed on non-resident flat owners to provide information to their tenants in relation to the Resident Engagement Strategy.
6.11 The principle that there is a statutory duty to establish a Complaints Procedure is welcomed in principle, but the GMHRTF is concerned that this is one of the few elements of the Bill that is currently over prescriptive and this may have a detrimental impact for Accountable Persons who already have effective and robust complaints procedures. There should be a statutory requirement to provide a Complaints Procedure to address concerns or complaints about building safety, but this should not be drafted in such a way as to create duplication with existing complaints procedures.
6.12 The proposals that the Regulator should create a Residents Panel are welcomed in principle, as the GMHRTF has consistently advocated that residents must have a voice within the system. There are concerns as to how one panel will be able to effectively represent the views and interests of residents from different areas of the Country and different ownership structures. Consideration should be given to an obligation to create regional panels which may be more representative.
6.13 There proposals for a new Ombudsman scheme may be of benefit to individuals who purchase or move into buildings developed after the new regime takes effect, but will not assist residents in existing privately owned buildings.
6.14 The provisions within the Bill relating to residents’ duties are not considered to be appropriate or adequate to support the policy intention and ensure that residents are clear about their own responsibilities and protected from adverse implications caused by the behaviour of others. The current provisions are considered to be unnecessarily onerous on long term residents and largely unenforceable. The duties as proposed will not be adequate to protect residents from the actions of those occupying the building on a short term basis. The proposed enforcement of residents duties, which is reliant on the Accountable Person taking action through the County Court, is not considered to be effective and will be onerous, time consuming and costly.
6.15 It is the view of the GMHRTF that residents’ duties would be better created through a ‘general duty’ to take reasonable care for their own safety and the safety of others and co-operate with the Accountable Person and the Building Safety Manager. This would align to the duties imposed on employees in under the s7 of the Health and Safety at Work Act and Article 23 of the Fire Safety Order. There should be a mechanism for Accountable Persons to enforce this duty and the ability for enforcement to be escalated to the Regulator where necessary.
6.16 The proposals in relation to arranging access to individual dwellings are also considered to be problematic and the GMHRTF is concerned that the County Court may not be the most appropriate route for escalation. It is recommended that the Government consider whether in circumstances where a notice has been served and access has been refused a warrant of entry from the Magistrates Court may be a more expedient form of sanction.
Enforcement & Sanctions
7.1 The GMHRTF welcomes the principles for enforcement contained within the Bill and in particular the new powers which will align to Gateway 2.
7.2 The amendments to the Building Act contained within the Bill to extend the limitation period and penalties for existing offences are considered to be an improvement to the current system. However, the proposed amendments do not go far enough to ensure the safety of all buildings. It is evident that whilst the current Building Control process, (undertaking regular inspections during works), should be sufficient to drive compliance, this is not done in a consistent manner. The opening up of the market to competition has resulted in a disincentive to building control inspectors to carry out adequate numbers of inspections as it is not commercially viable to do so. Where the Approved Inspector route is taken, the suspension of the local authority building control enforcement powers means there is little remedy available. Even where there is evidence that work may not comply with the regulations, there is no effective enforcement. It is the view of the GMHRTF that the Bill should contain provisions for Local Authorities to take enforcement action on any building and remove the current restrictions on this. This will address the lack of effective sanctions and enforcement available where the Building Control Body is an Approved Inspector.
7.3 The Bill makes clear provisions for offences for non-compliance, with a number of requirements. Broadly these are considered to be appropriate and the penalties proportionate. However, the GMHRTF is concerned that a number of offences are unnecessarily restricted to the Accountable Person and that this should be expanded, or a provision for other persons to be liable for those offences inserted into the Bill. This would provide a more robust framework for enforcement and support the drive to ensure competency across a range of dutyholders. It remains the view that there must be clear criminal liability for significant breaches by any party or individual that jeopardise the safety of residents and sentencing guidelines should be produced to ensure there is national consistency.
7.4 The GMHRTF is particularly concerned about the wording of the offence set out in s94 which relates to contraventions that give rise to risk of death or serious injury. It is not clear on what basis this offence is restricted to ‘Accountable Persons’. As a minimum, there should be a provision aligned to s36 of the Health and Safety at Work Act and Article 32(8) of the Fire Safety Order, to allow for prosecution of other parties or individuals in cases where the contravention has arisen as a result of act or omission of a third party. The current definition within this offence of “critical risk” is considered problematic and it is the view of the GMHRTF that the current qualification that the risk of death or serious injury is “significant” is unnecessary. The equivalent offence under the Fire Safety requires the contravention to have placed one or more persons at “risk of death or serious injury” and this wording is preferable.
7.5 The GMHRTF is concerned that the Bill does not make any provision to impose responsibilities on third parties who may undertake work in relation to existing occupied buildings. There should be a statutory mechanism to set out legal duties which would cover parties contracted to undertake, for example, assessments or maintenance of safety systems as well as third parties who may enter the building to provide services to leaseholders and undertake work on the structure. There should be a corresponding sanction where the work or services undertaken do not meet the required standard, or interfere with existing safety mechanisms. This would support Accountable Persons and Building Safety Managers to effectively manage the building and provide a level of protection to them against liability for the negligence of third parties.
7.6 As set out in the section on Resident Engagement and Duties, the provisions within the Bill relating to residents duties are not considered to be appropriate or adequate to support the policy intention and ensure that residents are clear about their own responsibilities and protected from adverse implications caused by the behaviour of others.
7.7 The current proposals do not contain any provision for an Accountable Person to undertake work to rectify the actions of residents or flat owners which may impact on the safety of the building. Residents who contributed to the response to the Building a Safer Future consultation were supportive of legal responsibilities being imposed on residents irrespective of the tenure of the building and considered that where work which interferes with the safety of a building is carried out without consent, then there should be a power for the building owner to rectify the work and recharge the tenant / leaseholder. It is the view of the GMHRTF that a mechanism for this should be contained within the Bill so that Accountable Persons have the ability to remediate or rectify works undertaken by residents which impact on the safety of buildings.
7.8 There GMHRTF remains concerned that without wider review and reform of the use of limited companies, the enforcement regime will be ineffective as some companies will simply dissolve or declare themselves bankrupt and then set up again under a different name. There are numerous examples of developers doing this following the sale of properties, leaving regulators, and more significantly residents and leaseholders, with no effective form of action or redress.
7.9 The GMHRTF considers that in addition to effective sanctions, there should also be incentives for compliance and higher standards. This might include recognition on the register of buildings, an extension of the building safety charter; approved developers; and positive news stories. This would be easier to deliver through a system of local regulation.
 According to GMFRS records on the 07/09/20
 https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/877628/A_reformed_building_safety_regulatory_system_-_gvt_response_to_the_Building_a_Safer_Future_consultation.pdf (p17)