Over three and a half years since the tragedy at Grenfell, the new fire safety law is yet to come into force. This article examines the current proposals under the Fire Safety Bill 2020 and the proposed Building Safety Bill 2020.1
The Fire Safety Bill 2020
Published in March 2020, the Fire Safety Bill 2020 is now in the final stages of its progress through Parliament, yet key issues are still to be resolved, in particular, who will bear the cost of the remedial work that is likely to be required in pre-existing buildings.
The Bill amends Article 6 of the Fire Safety Order (FSO) to confirm its application to the building’s structure, external walls and common parts in multi-occupied residential buildings regulated by the FSO.
Two questions about the proposed legislation have been answered during Parliamentary debates:
- The government has clarified that the Bill does not apply to internal structures. However, this does not mean that intrusive surveys will never be required. Instead, the onus is on the Responsible Person to determine when an intrusive survey is necessary. Addressing the House of Lords on 1 October 2020, Lord Greenhalgh stated: ‘The intention, as set out in guidance, is that this should be a visual inspection of the construction and layout of the building on the basis that it will have been built to resist early structural collapse in the event of a fire. As such, although dependent on the circumstances in any particular case, intrusive surveys of buildings are likely to be required rarely and only on the basis that the fire risk assessor has serious concerns about the risks that the structure of the building could pose. Otherwise, non-intrusive surveys should normally be carried out’.
- It is not clear what circumstances will require intrusive surveys. In many cases, historical records are not available to help identify the materials used and a visual inspection may not indicate whether internal structures pose a fire safety risk. Guidance is awaited.
- Although the government had stated its intention to transition the legislation in order to avoid a bottleneck of fire risk assessment reviews, it has since confirmed that the new law will commence at the same time for all buildings in scope. Statutory guidance setting out a ‘risk-based approach’ to prioritise the review of fire risk assessments for high-risk buildings will be provided.2 In considering enforcement measures for breaches of the Fire Safety Order, compliance with the risk-based prioritisation system will be taken into account.
However, important questions remain. For example, will there be suitably qualified risk assessors available to undertake intrusive surveys in cases where that is required?
The most significant outstanding question is: who will bear the costs of remedial work? During the Third Reading in November 2020, the House of Lords passed a number of amendments to the Bill, including to prevent freeholders from passing on historical remediation costs arising from the Bill to leaseholders and tenants through increases in service charges or one-off payments. On 15 December 2020, a similar amendment was proposed by MPs. At time of writing3, the amendment is garnering support in the House of Commons and will shortly be put to a vote. However, the government has opposed the amendment on the basis that the issue will be dealt with in the Building Safety Bill.
The Building Safety Bill
In July 2020, following the publication of the ‘Building a Safer Future’ consultation in April 2020, the draft Building Safety Bill 2020 was published. It will create a new regime applying to ‘higher-risk’ multi-accommodation residential buildings over 18m/six storeys in height, although some parts of the legislation will apply to all buildings, regardless of height. The Bill establishes the new national role of the Building Safety Regulator, who will sit within the Health and Safety Executive, as well as a ‘New Homes Ombudsman’ to respond to complaints about new-build properties. The Bill also proposes:
- The creation of ‘Gateways’ for regulatory assessment, with specified duty holders responsible for sharing information at each stage;
- The introduction of a Building Assurance Certificate issued for all new properties prior to occupation and for all existing buildings on a phased basis;
- The mandatory appointment of a Building Safety Manager and the completion of a safety case risk assessment which must be reviewed every five years;
- New competence and registration requirements for certain professions, such as building inspectors; and
- Reporting requirements for structural or fire safety concerns which could cause ‘significant risk’.
The Building Safety Bill has not yet been introduced in Parliament, but it was considered by the Housing, Communities and Local Government Committee, which produced a report in November 2020.4 The report criticised the lack of detail in the draft legislation, noting that the majority of information had been left to secondary legislation and guidance that has not yet been drafted. It urged the government to publish the secondary legislation alongside the Bill. If this recommendation is heeded, it would allow the industry sufficient time and information to prepare for the new regime but would likely delay the passage of the Bill.
The report was also critical of the provisions regarding the allocation of the costs of remedial work. The draft Bill commits to protecting leaseholders from ‘unaffordable costs’ of remediation, but does not otherwise limit payments, and allows owners/freeholders to impose a ‘building safety charge’ which is separate to a service charge. It allows tenants to be charged for historical repairs, contrary to previous promises made by the government.
Whether these provisions are ultimately amended to provide greater protections for leaseholders as the Bill progresses through Parliament will depend in part upon whether the proposed amendment to the Fire Safety Bill is successful.
The Parliamentary Committee responsible for reviewing the Building Safety Bill also called upon the government to publish a clear timetable for the implementation of the reforms, stating: ‘The final Bill will establish new duties, some of them extremely onerous, on individuals and organisations responsible for building safety throughout the lifecycle of higher-risk buildings. We do not think it right to expect individuals to implement its provisions and assume such heavy responsibilities without sufficient transition periods.’5
The challenges of change
The publication of these two Bills means dramatic reform across the industry, imposing new obligations upon industry professionals, local authorities and other stakeholders, all of which must be understood, resourced and implemented. Yet preparation is difficult because of the paucity of information provided in the Building Safety Bill and the likelihood that the two Bills will change significantly as they progress through Parliament.
At the same time, a raft of new proposals and advice has been released which are likely to have an impact upon the implementation of the new legislation, including a new advice note on cladding, external walls and fire doors released on 21 November 20206 and a White Paper on Social Housing, which was released on 17 November 2020.7
The various proposals do not seem to be well aligned. For example, whilst the Building Safety Bill establishes the new national role of the Building Safety Regulator, the White Paper proposes strengthening the powers of the Regulator of Social Housing to focus on safety. Similarly, the Building Safety Bill creates the office of the New Homes Ombudsman, whilst the White Paper proposes increasing the role and powers of the Housing Ombudsman. It is not clear how these four roles will interact with one another and with existing authorities, whether there will be effective information sharing or where the boundaries of their responsibilities will lie. It is difficult to discern the path of Hackitt’s golden thread in these disjointed reforms.
The proposal of so many and such sweeping changes in a short period of time has left the industry in a position of uncertainty. At present, there are more questions than answers, including:
- To what extent will there be overlap between the Building Safety Bill and the Fire Safety Bill? Or between the Building Safety Bill and the reforms proposed in the White Paper on Social Housing?
- Should the regime for ‘higher-risk’ buildings apply to buildings under six storeys which have additional risk factors, such as hospitals and care homes?
- How and when will the changes be enforced? Will enforcement fall to existing authorities, or to new regulators? Will there be a transition period?
- Will there be sufficient qualified professionals to undertake new roles, e.g. Building Safety Managers? Will new qualifications or registration be required?
- Who will bear the cost of implementing the new legislation?
- When should businesses be making changes – is early adoption responsible or risky?
When publishing the pre-legislative report into the Building Safety Bill, Clive Betts, the Chair of the Committee, stated: ‘Establishing a new regime to ensure that buildings are made safe will require significant change in terms of how buildings are constructed and maintained. From Day One, it’s crucial that those tasked with the design, construction and upkeep of those buildings have no doubt about the new standards to be adhered to at all times in addition to the ongoing responsibilities expected of them.’8
There is no question that greater clarity is needed regarding the timing and the detail of the Building Safety Bill, the implementation of the Fire Safety Bill and the intersection between the two statutes so that enforcement authorities, businesses and other stakeholders can understand their obligations, consider the resources which will be required and begin to prepare for the significant changes which are on the horizon.
For more information, email Saba.Naqshbandi@3rblaw.com
References
- This article follows on from an article ‘The Fire Safety Bill 2020: Will it deliver safer blocks of flats’ published in the August 2020 edition of UK Fire which provided an overview of the Fire Safety Bill.
- https://hansard.parliament.uk/lords/2020-11-17/debates/0BD09BD1-A8F7-4859-B157-4F15D16F75D4/FireSafetyBill
- https://publications.parliament.uk/pa/bills/cbill/58-01/0218/amend/firesafety_rm_CCLA1215.pdf
- https://committees.parliament.uk/work/361/prelegislative-scrutiny-of-the-building-safety-bill/
- https://publications.parliament.uk/pa/cm5801/cmselect/cmcomloc/466/46603.htm
- https://www.gov.uk/government/publications/building-safety-advice-for-building-owners-including-fire-doors
- https://www.gov.uk/government/publications/the-charter-for-social-housing-residents-social-housing-white-paper
- https://committees.parliament.uk/committee/17/housing-communities-and-local-government-committee/news/132826/building-safety-bill-aims-welcome-but-more-detail-needed/
Fire Safety Bill timeline:
19.03.20: 1st reading in HoC
29.04.20: 2nd reading in HoC
25.06.20: Committee debates
07.09.20: Report to HoC
3rd reading in HoC
08.09.20: 1st reading in HoL
01.10.20: 2nd reading in HoL
20.10.20: Committee stage
17.11.20: Report stage
24.11.20: 3rd reading in HoL
15.12.20: McPartland/Smith proposal
Building Safety Bill timeline:
20.07.20 Draft Bill published
24.11.20 Committee report published
About the Author
Saba Naqshbandi is a barrister with over 23 years’ experience in fire safety, acting for notable major companies, individuals and fire authorities in criminal proceedings, inquests and public inquiries, as well as advising on key aspects of fire safety law and policy. Cases include the Grenfell Tower Public Inquiry and the Lakanal House inquests. 3rblaw.com/barrister/saba-naqshbandi/
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