By Harry Scoffin
The first new law on fire and building safety to go before the Commons since the Grenfell Tower disaster was debated by the UK’s virtual parliament on April 29 and nodded through.
But not before seasoned MPs expressed their doubts about the fire safety regime and absentee building owners.
Some were upset by the time spent to get the Bill through; others were concerned about vested interests, with developers marking their own homework through the British Research Establishment (BRE).
MPs from across the political divide lamented the absence of Jim Fitzpatrick, a patron of LKP and former firefighter who stepped down in December after 22 years of representing the seat of Poplar and Limehouse, which has some of the tallest residential buildings in western Europe:
“I look across the Chamber trying to see Jim Fitzpatrick, but he has retired. His expertise, knowledge and balanced attitude in these debates over the years is something that we will miss a lot,” said Conservative Hemel Hempstead MP Sir Mike Penning, a former firefighter and fire minister.
Communities Select Committee chair Clive Betts also heaped praise on the widely respected Labour figure:
“First, may I allude to the work, which has just been mentioned, by my honourable friend and colleague, of Jim Fitzpatrick? When he was a member of this house, he did an awful lot of work in this area, and he deserves to be respected and remembered for that.”
Security minister James Brokenshire opened the second reading debate for the Fire Safety Bill from his Bexley home via video-conferencing.
“Our home should be a place of safety and security. At a time when we are asking the people of this country to stay at home—indeed, many of us will contribute to this debate from our homes—we are reminded of the overriding importance of people being safe and feeling safe at home, especially in high-rise properties,” said the former Communities Secretary.
Containing just three clauses, the Home Office initiative is intended to make it easier for fire services to compel freehold owners to remediate the outsides of their apartment buildings, by serving them a fire order. Unsafe cladding, windows and balconies will fall under the scope of the new legislation.
The technical fix also amends the Regulatory Reform (Fire Safety) Order 2005 to allow for the statutory notices to cover the front doors to flats, which is one of leasehold’s grey areas since many leases suggest these are “demised” to the leaseholders.
The Fire Safety Bill also hands the Communities Secretary the power to unilaterally rewrite the regulations and change the premises that fall under the fire safety order, without consulting parliament.
MPs, online and in the chamber, heard from Mr Brokenshire that the current law was poorly drafted, meaning “that the full identification and management of fire safety risks is compromised, which can put the lives of people at risk.”
The Home Office minister began the three-hour debate on April 29 by paying tribute to the work of Grenfell campaigners:
“I have had the privilege to meet [Grenfell] survivors and their families, as well as those in the local community who joined together to support them. Those discussions have been humbling and harrowing. They have underlined the responsibility—indeed, the duty—on us to act.”
Building on remarks made a day earlier by cabinet colleague Robert Jenrick, his successor as Communities Secretary, Mr Brokenshire sympathised with leaseholders over spiralling “waking watch” fees. He appealed to industry to resume work to remove dangerous cladding from tower blocks amid the coronavirus outbreak:
“We have pushed owners and local authorities hard to identify and remediate unsafe buildings … to ensure that interim safety measures are in place in all buildings until the cladding is replaced, but there is an urgent need for remediation to progress, even at this challenging time, recognising the continuing risks and the financial burdens on leaseholders in maintaining waking watches.
“I therefore want to be clear that remediation work can and should continue wherever it can be done safely—wherever it can, whenever it can.”
Mr Brokenshire promised further reforms and said that these would be put out to public consultation “in the coming months” before being fine-tuned and introduced as secondary legislation.
The Home Office minister also announced that the Building Safety Bill, which enshrines the recommendations from Dame Judith Hackitt’s review into the construction, occupation and maintenance of England’s high-rises, will be with MPs in “draft form” ahead of the summer recess.
With a new state-backed regulator monitoring freehold owners and managing agents, and threatening them with sanctions, including criminal ones, Mr Brokenshire said that the Building Safety Bill will “give residents a stronger voice in the system, ensuring that their concerns are never ignored.”
Responding for the opposition, shadow home secretary Nick Thomas-Symonds said that the proposals before MPs are “clearly not enough in themselves to meet the government’s pledge to prevent another tragedy from happening.”
He urged the government to outline its timetable for when it will be delivering the secondary legislation, which is set to carry forward the recommendations from phase one of the judge-led Grenfell inquiry, and “to clarify” when the Hackitt reforms will become law.
“There is an urgent need for the fire safety measures recommended, and that urgency must be reflected in the actions of ministers. Indeed, almost three years after Grenfell, this three-clause Bill is the first and only piece of primary legislation on fire safety that the government have put before the house,” said Mr Thomas-Symonds.
The Labour frontbencher was not the only politician to express disappointment with the paucity of the government’s offer.
Barry Gardiner, the former shadow international trade secretary, said:
“Criticising this Bill would be as futile as criticising an empty bookshelf: one needs to look at the quality of the books. Clause 1 simply clarifies the fire safety order of 2005, and clause 2 is no more than a delegated power to make regulations amending that order in future. While the Bill is, in itself, welcome, it is no more than a piece of legislative furniture—the content is yet to come.”
Conservative MP Bob Blackman, who still serves on the Communities Select Committee, said: “it is sobering that almost three years on from the [Grenfell] disaster we are considering this Bill,” adding that he was “looking forward” to voting for the additional fire and building safety measures government says are forthcoming.
MPs sceptical over another attempt to make freehold speculators ‘long-term custodians’
But it was a warning from Sir Mike Penning over the Bill’s implications for leaseholders that dominated the session, which was MPs first opportunity since the February 12 Westminster Hall debate to discuss the plight of constituents caught in the post-Grenfell fire safety crisis.
The ex-minister suggested leasehold as a means to organising the ownership of flats, unique in the world to England and Wales, was a “major anomaly” in the Bill and that the government’s wider approach to fire and building safety risked overlooking the unique challenges presented by the tenure:
“The LGA’s brief says that it should not be responsible for properties owned by leaseholders.
“The leaseholder does not own the property—that is the freeholder—and they should not have the burden, which is currently on them all the time, day in, day out, in the Bill.”
The Tory politician’s point was echoed by countless other legislators, including Barbara Keeley who backed the need for additional work to make apartment buildings safe, but highlighted “that in too many cases the burden will fall on leaseholders with increased service charges.”
The Worsley and Eccles South MP cited a survey by the Greater Manchester High Risk Taskforce, which found evidence of widespread service charge hikes, quoting one leaseholder who has seen their monthly service charge contribution increase from £90 to £400, with another having to accept an increase to £1,000 a month to cover remediation works.
New Putney MP Fleur Anderson challenged the government to change the law “to ensure that freeholders foot the bill, as they, not the leaseholders, will be the ones who benefit from building improvements.”
Some MPs argued that the Bill’s definition of a “responsible person”, a Home Office concept, is flawed and could facilitate the very same blame-shifting culture that the current system has been criticised for.
“It seems from what the minister said earlier that the definition will include managing agents. Do the obligations apply both to them and, equally, to their principals? Must a ‘responsible person’ be a named individual, or could it be an organisation?,” asked Kate Green, the MP for Stretford and Urmston.
Ms Green’s Labour colleague, Abena Oppong-Asare, registered her unease at the apparent mismatch between the Fire Safety Bill’s concept of a “responsible person” and the dutyholder regime set out in the heavily trailed Hackitt reforms, which work on the basis of an “accountable person”.
The new MP for the London seat of Erith and Thamesmead suggested that this overlapping responsibility, or role duplication, could cause issues:
“The Local Government Association has raised concerns about disparities between the fire safety order’s concept of a ‘responsible person’, and the proposals for an ‘accountable person’ and a ‘building safety manager’ in the government’s response to the Building a Safer Future consultation.
“Clear guidance must be issued on who is responsible for carrying out essential fire safety checks or we face the risk of some continuing to avoid their responsibility to their tenants.”
The ministry of housing’s companion Building Safety Bill, incorporating the Hackitt reforms, should have been prepared for scrutiny so MPs “have the Bills side by side to ensure consistency and to ensure that all angles are covered,” countered Hammersmith MP Andy Slaughter.
The anxiety around freeholder game-playing was a genuine cross-party concern, having been flagged by new Tory Orpington MP Gareth Bacon, who concurrently serves as a London assembly member. A former chairman of the London Fire and Emergency Planning Authority, he explained that the Bill “does not make clear what constitutes a ‘responsible person’—what skills and abilities they need or what precise enforcement powers they have.”
Mr Bacon also said:
“Pinning down the identity of the responsible person has long been the bane of various fire and rescue authorities’ existence, and it can lead to long delays in taking enforcement action.”
He added that “even once identified”, the freeholder of a block of flats “will often attempt to find a legal loophole to evade responsibility.”
Roy Wilsher, the UK’s most senior fire officer, made similar comments at a City Hall meeting on February 6, which LKP reported here:
Mr Bacon asked ministers and officials to rework the Bill to require the disclosure of the full identity of the responsible person on a “building-by-building basis”, as in the past the entity with management control of the property has varied, between freeholders, head leaseholders, tenant management organisations and resident management companies.
Do what you did over flooding to help cladding victims with soaring insurance costs, government told
Insurance and interim fire safety costs for leaseholders on cladding sites also came up as hot-button issues.
Birmingham Ladywood MP Shabana Mahmood repeated her call on government to intervene in the insurance markets to provide more affordable cover, similar to the Flood Re scheme targeting homeowners in flood-prone areas, for cladding leaseholders affected by jittery insurers and soaring insurance premiums.
Ms Mahmood’s constituents at the 144-flat Islington Gates still face having their coverage pulled and being forced out of their homes.
Over at the 182-flat Brindley House, another leasehold block in Ms Mahmood’s constituency, the latest insurance quote is “1,000% higher” than last year’s, having increased to £530,000, with “the commission and taxes alone” on the premium “more than the whole of their premium for the previous year.”
In addition to the extra insurance bills, the Brindley House leaseholders are “paying over £180,000 for their 27/4 waking watch”, which comes on top of the £15,000 they have to stump up for works to the block’s internal compartmentation and fire doors, and the £100,000 invoiced for a brand new fire alarm system.
Their story was covered by the BBC last week:
Flat owners at a tower block in Birmingham say they face a joint insurance bill of about £500,000 due to changes brought in the wake of the Grenfell Tower tragedy. Last year, owners of the 182 flats in Brindley House paid £43,000.
Ms Mahmood queried whether ministers on the Treasury bench could “imagine the stress of receiving a bill for a sum that is much more than they earn in a year?”
She added that their dire leasehold situations were made worse by “the tightening of everyone’s financial circumstances as a result of the Covid-19 crisis.”
“It offends every part of our British values, our sense of fair play and decency, that people face ruin through no fault of their own. It is a national failure and it requires a national response.”
Another MP with major cladding casework weighed in. Sir Bob Neill, whose constituency includes Bromley’s blighted Northpoint development, said that while the government is “doing the right thing” by going further than the £200m originally set aside for the removal of Grenfell cladding from private blocks, with a £1bn Building Safety Fund announced by Chancellor Rishi Sunak in the March Budget, the earlier scheme is complicated and slow-moving:
“To access the scheme, those residents have to go through a bureaucratic procedure to show that they qualify. There is no doubt that they qualify, for heaven’s sake. It takes far too long for them to access the scheme. By the time they have gone through the form-filling, the getting of surveys and then the commissioning of contractors and the getting in of materials, all of which has been slowed up by the near cessation of building works during the coronavirus emergency, it will, on current form, be a long time before they actually see that money. They are getting into more and more debt.”
Every month without the cladding removed from their freeholder’s building is an additional £11,000 in waking watch fees that the Northpoint leaseholders, i.e. the tenants, have to fund, he said.
“Their service charge has gone through the roof, and their management reserves are expended entirely.”
Sir Bob said that it was negatively impacting upon his constituents’ physical and mental health and urged the government “to get a move on, cut out the red tape—cut through the bureaucracy—and get the money to these people at the earliest opportunity.”
A former leader of the now-defunct London Fire and Civil Defence Authority, Sir Bob made clear that leaseholders should not be paying for state and market failure:
“No question of any moral hazard arises, because these people relied on the regulatory system that was then in place, which said that their properties were safe and suitable. If there was a failing in that system, that certainly is not their fault. They acted in good faith, and we ought, in all decency and as a matter of good governance, to speed the process along.”
Stop developers from marking their own homework, says Kevin Hollinrake MP
The hybrid sitting also heard from Kevin Hollinrake, who pushed for the £1bn Building Safety Fund and forensically scrutinised the government’s approach to the cladding crisis on and off the Communities Select Committee, which he stepped down from after the December election.
Mr Hollinrake took issue with certain MPs seeking to make political capital out of the Grenfell tragedy and fire safety scandal, saying that “it is a case of decades of mistakes; it is wrong to try to use this as some kind of party political opportunity.”
The Thirsk and Malton MP pointed the finger at freeholders and suggested that it was their recalcitrance and general inability to pay for the remediation of their buildings which has led to the taxpayer bailout of £1.6bn to date.
“Much as we talked about holding building owners responsible, that proved to be impossible in many cases,” he said.
Mr Hollinrake commended Dr Jonathan Evans, of the Metal Cladding and Roofing Manufacturers Association, “who provided the Select Committee with much useful and important evidence. For example, he has shown that high-pressure laminate cladding is pretty much as bad as ACM in terms of fire performance. We need to remediate these buildings urgently to prevent another tragedy.”
The former estate agent concluded his remarks by proposing that the days of industry marking its own homework are brought to an end:
“We also have to question why we lost sight of the importance of non-combustible materials on buildings in the first place—perhaps it relates to the drive towards energy efficiency, or the commercial interests of the people responsible for testing these products. The Select Committee looked at the conflicts of interest that exist in the Building Research Establishment.
“It would be sensible to have a national public testing facility that represents the national interest, rather than the commercial interests that a private commercial organisation such as the BRE may have. We should look at that to ensure that the drafting of future guidance is informed by a national public body.”
Liberal Democrat justice spokesperson Daisy Cooper, and new MP for St Albans, cautioned that “as currently drafted, tenants, leaseholders, local government and the fire service will take the weight of the new legislation.”
She also complained about the government’s general approach to building safety, which has had the effect of stalling the flats market, adding that her constituents now must wait between 12 and 18 months before properties are EWS1-certified and they can sell up and move on with their lives.
“Honourable members will of course understand the impact that a 12 to 18-month delay will have on a pregnant constituent of mine who is looking for a suitable home for her growing family, or on the pensioner living in my constituency who is relying on the sale of their [leasehold] property to support them in retirement. Again, this is all the more urgent for those who find themselves and their jobs in a precarious situation as a result of coronavirus,” Ms Cooper said.
UK government support for leasehold causing grief north of the border, even though Scotland abolished the feudal system years ago
The debate also heard that the UK government’s familiarity with the leasehold system has created some headaches north of the border.
Acknowledging that the Fire Safety Bill will only apply to England and Wales, Liberal Democrat home affairs spokesperson Christine Jardine, the MP for Edinburgh West, used the debate to urge ministers and officials to rework recent UK-wide directives to account for the flats market in Scotland, where apartment buildings do not have third-party freeholders because of the country’s commonhold-style system:
“While this Bill may be designed for England and Wales only—Scotland has its own fire safety regulations—it is far-reaching and has potentially serious implications for Scotland, where many homeowners now find themselves faced with a significant problem. 9 out of 10 mortgages in Scotland are provided by London-based lenders. The terms of those mortgages are based on English law and regulations. The effect of that is that many in apartment blocks are finding that their flats are now worthless. The mortgage lenders have placed a zero value on their property …
“In England, one person would normally own the block and lease out the apartments to the owners. In Scotland, all the apartments are owned outright; there is no leasehold. The difficulty is down to that different ownership model … We need acknowledgement of the issue and arrangements made for properties where there is no leasehold.”
Ms Jardine is not the first Scottish MP to raise the issue.
SNP politician Alison Thewliss brought it to the UK government’s attention at the Westminster Hall debate in February, where she also came “from a slightly different angle, because we do not have the leaseholder/freeholder issue in Scotland, although we have continuing issues with cladding.”
“We also have issues over which the UK Government have had an influence but have not had the best communication with the Scottish Government.
“The Scottish Government have ended up with a problem not of their making that they are struggling to put right. Finance and insurance are obviously reserved to Westminster, and the Scottish Government have limited influence on the actions of mortgage companies, banks and insurers.”
So exercised by the situation, Ms Thewliss joined the APPG on leasehold and commonhold reform earlier this year to push for a resolution and keep abreast of fire safety issues, becoming the group’s first Scottish member.