Has the UK Government done a devious deal to protect its favoured business interests among property developers and construction firms from a post-Grenfell crackdown on dangerous homes? Suspicious minds might think so.
After some years of prevarication and filibustering by the Tories, the Government has agreed to back a Private Member’s Bill from Labour MP Karen Buck requiring homes to be “fit for human habitation”. With one proviso: a single simple clause that would do most to help people living in potential Grenfell Towers – catastrophically dangerous homes – has been removed.
In its original form the Buck bill included a provision that would have had a huge and positive benefit: simply to bring into effect a piece of legislation that is already on the statute books and has been sitting there for more than 30 years.
If it were implemented by the Government, Section 38 of the Building Act 1984 would make it much easier for tenants to sue for breaches in building regulations – the very issue that (it is alleged by some) may have led to the disaster at Grenfell Tower with 71 people killed by the fire.
The Government seems to have headed off Karen Buck’s calls for reform by backing her bill but with the clause that would have implemented Section 38 excluded. That 1984 legislation will remain uselessly in limbo.
Section 38 would have allowed for tenants to bring damages claims for death or injury when there has been a breach of building regulations. It says: “breach of a duty imposed by building regulations, so far as it causes damage, is actionable”. In other words it would impose legal liability in tort for such breaches. Tenants would be able to sue on the basis of an alleged breach of regulations rather than go through the more difficult process of proving negligence on the part of developers.
Housing lawyer Andrew Arden QC, in a law journal edition looking at Grenfell, asked why the Government has refused to ensure section 38 is brought into force – and answered his own question thus:
“Why has it not been implemented, despite lobbying from within housing? Is it cynical or common sense to suggest that it is a response to counter-lobbying from a construction industry which does not want those most affected by its failures to be able to hold it to account?” (Journal of Housing Law, Vol 20, issue 5 2017)
The law would have helped by making clear to anyone potentially responsible for regulatory breaches that they were less protected against legal action from tenants – thus persuading them to be more rigorous in following the regulations – and would have made legal claims easier for victims and survivors of any such failures.
But it needs a government Secretary of State to implement it by passing necessary regulations – and no Government has been willing to do that given the implications for the property developer and construction lobby. (Cynical? Certainly.)
The Buck Bill
For several years now, Buck has been trying to get her Private Member’s Bill passed requiring homes let to tenants to be “fit for human habitation”. Her Bill was filibustered away by Tory MPs in 2015, but she had hopes, given the post-Grenfell atmosphere, for a new version, which gets its second Commons reading on 19 January.
Via the Bill she also originally wanted Parliament to force the Government to act on section 38. The version of the Bill presented by Buck this time contained this:
“Amend section 38, Building Act 1984 as follows:
(a) after subsection (4), insert:
“(5) The Secretary of State must, within 12 months of the relevant date, make regulations under subsection (1) which provide for owners and occupiers of residential properties to be afforded the remedies provided for in that subsection.
“(6) The relevant date is 12 months after the Homes (Enforcement of Housing Standards and Liability for Housing Standards) receives Royal Assent.”
So the Buck clause was intended to force the Government to bring in the necessary regulations for Section 38 to operate within a year, putting a powerful card in the hands of tenants, since proving breach of building regulations “is considerably easier than proving negligence” (Journal of Housing law, Vol 20, issue 5 2017).
We know this was to be part of the newly presented Buck Bill because even the revised version says it was to be part of the Bill. It’s called the Homes (Fitness for Human Habitation and Liability for Housing Standards) Bill and the long title says it is a Bill to:
“Amend the Landlord and Tenant Act 1985 to require that residential rented accommodation is provided and maintained in a state of fitness for human habitation; to amend the Building Act 1984 to make provision about the liability for works on residential accommodation that do not comply with Building Regulations; and for connected purposes.” (Emphasis added)
In fact, nowhere in the Bill does it now make mention of the Building Act 1984. Whoever redrafted it for presentation to MPs on January 19 should probably have changed the long title too.
There seems little doubt that in the post-Grenfell angst, parliamentarians would have willingly voted for the Section 38 clause if it had been presented to them. Who now would dare to be seen filibustering in favour of the interests of developers when such a tragedy has occurred?
There may be a simple explanation for the clause’s disappearance (see below). It looks as if we must wait for some time to find out if there will be any Government action on Section 38, a provision that Parliament demanded three decades ago and Governments have blocked ever since – and which almost without doubt could have saved lives.
Note: Since publication of this piece, Karen Buck has said that she decided to withdraw the Section 38 clause at the draft stage of her new Bill in view of the significant overlap with the Hackitt Review of Building Regulations and Fire Safety.
Hackitt did not directly address Section 38 but the Government is now (until 30 July 2019) consulting on the Hackitt review and has included a question on whether Section 38 should be commenced and, if so, whether it should be amended first. This interesting note on the review by Thomson Snell and Passmore sets out some of the background. It points out:
“Section 38 of the Building Act 1984 has never been brought into effect. If in force, it would give individuals the right to legal recourse where they suffer damage (which includes death of, or injury to, any person including any disease and any impairment of a person’s physical or mental condition) as a result of a breach of duty imposed by Building Regulations.
The fact that section 38 has never been brought into force is sometimes cited as a good reason for denying claims for liability on other grounds. This is on the basis that allowing such claims would sidestep the legislative regime which has deliberately decided not to bring section 38 into force.”
It seems quite bizarre that Parliament has passed the legislation yet the Government’s failure to introduce it is considered as if it were a legislative act, the will of Parliament – and has an actual (and presumably negative) effect on other legal remedies.
A further note
The Government has now (2020) brought forward a Draft Building Safety Bill, which repeals rather than seeks to activate section 38 of the Building Act 1984. It’s in Schedule 5, Part 1, Para 29: “Omit Section 38”. This despite very clear suggestions during consultation that the government was minded to bring section 38 into force. It called for comments on whether it should be improved but did not state clearly its actual intention to repeal it. It was a shocking smoke and mirrors attempt to ensure there was no controversy over repealing S.28. This is what it said in the consultation guide (Chap 6):
We are also proposing to make it easier to take action for all buildings where building work does not meet required building regulations standards by:
Enabling private individuals to make a claim for damages where work on a building has not met building regulations standards, and they have suffered harm as a result.
Here is the related full question in the consultation document (note the “before being brought into force“):
Civil liability for carrying out non-compliant work 370. Section 38 of the Building Act 1984 provides a private right of action where a breach of a duty imposed by the building regulations causes damage (including the death of, or injury to, any person). 371. Section 38 enables the Secretary of State to make regulations to set out defences to a claim for such a breach of duty. However, no such regulations have been made and the section has not been brought into force to enable claims to be made. 372. Government is seeking views on whether it should commence section 38 and, if so, whether section 38 requires any amendment before being brought into force.
• Here is a Nearly Legal piece (published before the Section 38 clause was removed from Buck’s Bill) that explains Section 38 thus:
“Section 38 Building Act 1984 made provision for direct liability for damage caused by breach of building regulations. But this required regulations to be made by the Minister to come into effect. No such regulations have been made. So, establishing liability for damage (death or injury) now means establishing all the elements of negligence.
If regulations are made, then liability for breach of building regulations would be a statutory tort, and only the fact of the breach would be required (subject to defences set out in regulations). The builder/developer would be liable to the person caused damage.”
And here is Nearly Legal’s current assessment of the Bill.
Note: What does the Buck bill do?
There is already on the statute books legislation relating to landlords ensuring they let homes fit for human habitation. Here it is in section 12 of the Housing the Working Classes Act 1885:
“In any contract made after the passing of this Act for letting for habitation by persons of the working classes a house or part of a house, there shall be implied a condition that the house is at the commencement of the holding in all respects reasonably fit for human habitation.”
Unfortunately the section goes on to explain: “In this section the expression ‘letting for habitation by persons of the working classes’ means the letting for habitation of a house or part of a house at a rent not exceeding in England the sum named as the limit for the composition of rates by section three of the Poor Rate Assessment or Collection Act, 1869, and in Scotland or Ireland four pounds.” The 1869 Act gives values of:
“twenty pounds if the hereditament is situate in the metropolis [of London], or thirteen pounds if situate in any parish wholly or partly within the borough of Liverpool or ten pounds if situate in any parish wholly or partly within the borough of Manchester or the borough of Birmingham, or eight pounds if situate elsewhere”.
Those figures were updated in 1957 – but remain way out of line with contemporary reality. The law applies to leases of less than three years where the rent is less then £80 a year in London and £52 a year elsewhere, according to Nearly Legal.
So the Act remains in force, but applies only to homes let for annual sums not seen for many a decade. The Buck Bill remedies that.