Catherine Levin continues her regular column looking at updates and developments with the Building Safety Bill.
After many hours of line-by-line scrutiny, 54 submissions of written evidence, and oral evidence from a range of witnesses from the fire world and beyond, the Committee stage of the Building Safety Bill has finished. The new version of the Bill was published on 27 October and contains 220 pages, comprising six parts and 149 sections.
From the beginning of November, MPs started to table amendments to the Building Safety Bill as part of Report stage of the Bill. These included Labour’s proposal to create a Building Works Agency. Shadow Housing Minister, Lucy Powell MP has often referred to this in her speeches about fire safety remediation. The Agency would administer a programme of cladding remediation and other building safety works. It would audit, prioritise works, determine funding, monitor progress, assess safety, provide support for building owners, and seek to recover costs from ‘responsible parties.’
One other significant amendment is the proposal for a Building Safety Indemnity Scheme. The purpose of the scheme is to collect money from levies and to disburse the money raised as grants to leaseholders to pay for all or any part of costs of remediation. There is nuance in the amendment, but broadly the money will pay for work associated with fire safety defects in external walls as well as other types inside or external to a building. It is significant that the amendment applies to any building and not just the higher-risk buildings in the scope of the Bill. The scheme is likened to the Motor Insurers’ Bureau, which was established in 1946 to compensate the victims of negligent uninsured and untraced motorists. Every insurer offering motor insurance must be a member of the MIB and contribute to its funding.
Scope of scheme
The Building Safety Indemnity Scheme levy would apply to anyone seeking building control approval, those buying building insurance where the building contains two or more residential units (not just higher-risk ones), suppliers of construction products, mortgage lenders, and anyone else the Secretary of State ‘considers appropriate.’ The amendment describes what needs to be in place to make the scheme work including appointing a board to oversee it.
By including all buildings and not just higher-risk buildings in the Scheme, the cost of remediation will be enormous and whether a levy as set out in this amendment would claw back the costs remains to be seen. There must be a debate about timescales as levies, unless retrospective, will take time to accumulate into a fund that is large enough to pay for the remediation. Having a Scheme looks sensible but for every organisation that must pay the levy, there are customers who will simply see the cost passed on as part of their insurance premiums or product costs, so really the taxpayer is still paying but in a different way. The debate in the House of Commons on this amendment will be interesting; the government response is likely to be the predictable mantra of ‘we must start somewhere’ and that means only focusing on buildings 18+ metres in height as that is where the risk, in the government’s view, is greatest.
Elsewhere in the Palace of Westminster, the Housing Select Committee heard from Dame Judith Hackitt and Sir Ken Knight. Clive Betts MP is the committee chair and he welcomed ‘our most frequent visitors’ to the sparsely attended meeting on 22 November. Sir Ken Knight, as you may already know, chairs the independent expert panel based in the Department for Levelling Up, Housing and Communities or DLUHC for short. His 40-year career in the fire and rescue services includes three stints as Chief Fire Officer for Dorset, West Midlands, and London. Dame Judith is well known as the author of an independent review of building safety which was published in May 2018. She is a former head of the HSE, and now chairs the industry safety steering group as well as the transition board to set up the Building Safety Regulator.
How high?
The issue of scope came up again during this meeting. It is nothing new that there are considerable concerns by many involved in this sector that the height determinant is too limited to achieve the change required across all buildings. Sir Ken recognised that other buildings could be brought into scope in the long term but held his position in supporting the current 18m+ approach because this is a considerable burden on the Regulator on day one. Dame Judith concurred and trotted out the ‘we have to start somewhere’ line again and added later that there has to be a manageable scope for the Regulator.
The Committee made several attempts to understand how the fire safety issues affecting buildings that are 11-18 metres in height will be managed given the Bill’s focus on higher-risk buildings. Dame Judith made so many references to the need for proportionate approaches, it started to seem like the answer to everything. It is a mantra for her.
Dame Judith said there is a government working group developing a methodology to enable a whole system proportionate approach to remediation and mitigation of fire safety defects in buildings 11-18 metres. It’s also looking at the number of buildings to determine the ‘the extent of the problem’ that needs to be properly quantified. She said it’s being pursued as a matter of urgency, and that something would be available within weeks; it wasn’t clear what that would be. Surely by now the government must know how many buildings 11-18 metres in height have fire safety defects?
In the summer, the government published advice from a group led by Dame Judith that argued that risk of fire is low in buildings 11- 18 metres. It caused consternation at the time and during the Committee meeting, MPs referred to interim research from academics at the University of Leeds that said fires in buildings in 11-18 metres had increased. ‘It’s a matter of interpretation,’ responded Dame Judith. Sir Ken was blunter when he said: ‘It is a qualitative assessment. It didn’t have the benefit of a peer review from either the IFE or NFCC.’
Perceptions of risk
A lot of the discussion centred around perceptions of risk by people living in buildings below 18 metres. Sir Ken returned several times to the point: ‘We need to move the risk dial back where people are aware of real risk and not perceived risk.’ And for Dame Judith that relates to costs as she asked: ‘How do we ensure a level of safety people can feel reassured in and avoid excessive cost and excessive concern about a building they believe to be less safe than it really is?’
This whole discussion about height is really about money. It is helpful to the government to have its advisors, independent or otherwise, saying that fire risk is lower in 11-18 metre buildings and that other risk mitigation options are available to them in the form of waking watch and fire detection systems. It’s helpful because it means that the government doesn’t have to throw any more money at the problem. Clive Betts knows this as he asked in a pointed, albeit convoluted, question:
‘Do you think there’s a concern out there that having been told since Grenfell that this cladding is dangerous and it must come off, and it’s a real risk, to suddenly be told that in some circumstances you can happily live in a property with this kind of material on, is going to take a lot of convincing people that somehow the change hasn’t been made to save the Treasury money?’
The problem is that until the mortgage companies stop asking leaseholders for an external wall system report in these medium rise blocks, the leaseholders can’t sell their flats where fire safety defects remain unfixed. If the mitigation options are in play, then surely the EWS1 forms are moot. This is where Sir Ken's responses relating to the Fire Safety Order come into play.
Remember that the Fire Safety Act 2021 allows for the Regulatory Reform (Fire Safety) Order 2005 to be changed so that fire risk assessments must include external walls. This hasn’t happened yet in England, as the government needs to lay regulations in parliament first. Dame Judith said that there will be a British Standard setting out the methodology for this assessment and implied a draft would be published soon. Sir Ken added that the government will be publishing a risk prioritisation tool alongside the changes to the Fire Safety Order as not all buildings can have an external wall assessment on day one.
Clive Betts asked if EWS1 forms will be redundant, to which Sir Ken said yes, when the new regulations are in place. It is hard to see how the day that the regulations come into force, that the mortgage companies will stop asking for EWS1 forms as it’s going to take a very long time for fire risk assessors to build up the competence to assess external walls and include that in fire risk assessments.
The difficulties I set out above show just how much work needs to take place to ready the fire safety industry for this change to the way that fire risk assessments are completed. That probably explains why the government in England hasn’t mandated the changes yet. Westminster politicians might like to look over the border to Wales to see how it’s working for them as they laid their regulations to make this change back in August.
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Catherine Levin is a Freelance Communications Consultant specialising in fire.