Local Government, Housing and Planning Committee [Draft]

Meeting date: Tuesday, December 12, 2023

Official Report 725KB pdf

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Housing (Cladding Remediation) (Scotland) Bill: Stage 1

Under agenda item 4, we will take evidence on the Housing (Cladding Remediation) (Scotland) Bill from Scottish Government officials Kate Hall, director of the cladding remediation division; Rachel Sunderland, deputy director of that division; and Micheila West, a solicitor in the housing branch. I welcome them and invite Kate Hall to make an opening statement.

Thank you for giving us the opportunity to speak to the committee about the important topic of the bill. In his evidence about the cladding remediation programme to the committee on 30 May, the Minister for Housing said that the safety of home owners and residents was the Government’s “absolute priority”. The driver for establishing the programme was the tragic fire at Grenfell Tower, and that tragedy clearly sets out why we need to take action to identify, assess and remediate the risk from unsafe cladding.

As the committee will be aware, the ministerial working group on building and fire safety was established following the Grenfell fire tragedy, and it developed the recommendation for single building assessments. The cladding remediation programme was established to deliver that recommendation and to seek to deliver the Scottish Government’s commitment to protecting lives by supporting and facilitating the assessment and remediation of unsafe cladding on residential buildings of 11m and above.

As the programme has progressed, a number of issues have been identified that have been impacting on delivery of the overall programme and therefore of the policy objective. Those issues have emerged from the Scottish Government’s direct experience and from discussions with developers. The bill has been designed to address the barriers to delivery, particularly in relation to home owners’ consent and through providing clarity and assurance about standards and the status of remediation and creating a legal framework for developers to participate in remediation.

I will outline the bill’s key elements. It will allow for the establishment of a cladding remediation register to provide information on buildings that have undergone a single building assessment and remediation. That will take forward a direct recommendation from the ministerial working group that better information should be made publicly available—for example, through a database or a portal—on the safety profile of domestic buildings with cladding.

The bill will allow for the assessment of buildings through a single building assessment, even when it is not possible to achieve owners’ consent. The bill will allow ministers to specify the standards for a single building assessment; the ministerial working group recommended having such an assessment.

The bill will provide ministers with the power to arrange remediation work that a single building assessment has identified

“as being needed to eliminate or mitigate risks to human life that are (directly or indirectly) created or exacerbated by the building’s external wall cladding system”,

even when it has not been possible to secure consent. That provision reflects experience from the programme and from engagement with developers. Finally, the bill also includes provisions to establish a developer remediation scheme.

The programme arises from the work of the ministerial working group on mortgage lending and cladding, which included representatives of the finance sector, home owners, Homes for Scotland and the Scottish Fire and Rescue Service. The programme continues to be built on regular stakeholder engagement, and developers have been closely involved in discussions over the past 18 months or so. That has supported policy development, within the bounds of convention and confidence. Our engagement continues with stakeholders, and there will be further opportunity for them to be involved in consultation on secondary legislation.

The focus on cladding sits alongside work by our colleagues in building standards, housing standards and fire safety. Once the building safety levy, which was announced in the programme for government, is established, it will support the financing of the remediation work. The work continues in collaboration, and we are collaborating with local authorities in the spirit of the Verity house agreement.

Developers’ commitment is a valuable asset, and we are extremely grateful for their contribution and collaboration in the public interest. Nine developers have publicly signed the developer commitment letter as part of the Scottish safer buildings process.

I add that I am joined by my colleagues Rachel Sunderland and Micheila West.

Thank you—it is helpful to hear that overview.

Why has there been no public consultation on the bill? What changes to the bill, if any, were made following conversations with stakeholders?

10:15  

The priority in relation to the bill has been to ensure that we can quickly make progress on some of the issues that I outlined in my opening statement. That also reflects a period of some time in which we have been engaging with stakeholders, and we therefore consider that the bill seeks to achieve a balance between the initial consultation that we have undertaken and the subsequent progress and on-going engagement that will follow during its passage. Elements in secondary legislation will allow time for further consultation with stakeholders as we move forward.

As part of the work that you are doing, you are undertaking a stock survey of all the medium-rise and high-rise buildings that are in the scope of the programme. How advanced is that survey?

We have undertaken some preliminary estimates, and we have set those out in the initial memorandum to the bill. We are working through a process of procuring the next stage of work on the stock survey, and we hope to have—in line with the commitment in the mandate letter—information available on the outcome of that during the early part of 2024.

We have heard that owners and residents of properties and buildings with potentially unsafe cladding have consistently reported challenges with the remortgaging, buying, selling or insuring of their properties. What conversations have you had with lenders and insurers in the development of the bill? Are you confident that the proposed cladding assurance register will provide them with sufficient assurance?

Yes. I will provide some initial detail and then hand over to Rachel Sunderland to pick up some of those further points of detail. I can assure you that the Association of British Insurers has been closely involved in our stakeholder group, as has UK Finance. Rachel may want to pick up some of those points.

I am happy to do so. It is worth noting that, as the committee will probably be aware, the recommendation for a register of some type came from the ministerial working group, which, as Kate Hall mentioned, included representation from UK Finance and the ABI. Those organisations are also represented in our cladding stakeholder group, so we have been talking to them about those issues and we are working closely with them. As we work through and operationalise what a register will look like, we will work closely with them and with other stakeholders.

Thank you.

I will bring in Marie McNair, who joins us online.

I will carry on looking at the single building assessment process, which we touched on earlier. The bill states that a single building assessment can proceed without the consent of the owner, provided that a notice period has lapsed and any appeal that may have been lodged has been determined or withdrawn. How prevalent has the problem been of securing consent for assessments, and how significant a factor has that been in holding up the remediation process?

As a consequence of the work that we have been undertaking so far through the pilot programme, it has come to our attention that there can be instances in which consent can cause a delay in moving through to the next stage. That is why we consider that it would be appropriate to include those provisions in the bill. It is so that we can move all the way through from carrying out the building assessment to ensuring a fair pace of subsequent remediation work, thereby ensuring the safety of all home owners in a block of flats.

How significant a factor has that been in holding up the remediation process?

Evidence has come to light that it can delay the process. As a consequence, in the interests of all home owners, we have considered it significant enough to decide that some legislative provisions are needed to sit around it to ensure that, as the programme moves forward, all home owners in a single block are equally supported through having remediation work done, and that one or two individuals are not able to block reasonable progress.

The committee will see from provisions in the bill that it is intended to be a proportionate response in relation to consent and is built on precedent from previous acts, in order that we are taking action that is in the wider interest of everybody in the individual blocks concerned.

Thanks for that confirmation.

We understand that 105 buildings are in the pilot phase of the programme. Where are we in relation to the assessment and remediation of the buildings that have been identified?

Willie Coffey is correct in relation to the programme as a whole. We have formally commissioned 27 building assessments. We now have 16 of those at substantive reporting stage. We have remediation under way in one building and mitigation in a second building.

We have a commitment to ensure that all of those 105 are on a pathway to a single building assessment by next summer. That is set out in the mandate letter from the First Minister to the cabinet secretary, and we are taking steps to ensure that the mandate is met.

We have also recently been undertaking work with developers on a task and finish group to look at the process around an SBA and ensure that we are taking learning—as this is a pilot—from the work that we have experienced so far on those that have been undertaken. We want to ensure a smooth process as we move forward into the substantive SBA process, which would fall from the provisions in the bill.

Those are quite low numbers when it comes to progress, if there are 105 buildings and only 27 assessments are in commission and only one building has had any remediation so far. Would you accept that? Are the provisions in the bill likely to help you to accelerate that?

The bill is scheduled to complete its passage by next summer. While that is going on, we wish to make progress on the remainder of the 105 buildings. We see that happening in parallel with the passage of the bill. We wish to make on-going progress with the ones that have already been identified as part of the pilot programme.

As the minister has previously acknowledged, we are seeking to speed up the process in relation to those SBAs and then to speed buildings through into a remediation programme. Ultimately, the programme is intended to ensure the protection of life and the safety of individuals within those blocks, so we are very mindful of the need to make that progress.

One issue that keeps coming up is whether we have enough fire engineers and surveyors to help us to carry out the assessments. Has that been a barrier in the pilot phase of the programme? Do we need to do more to recruit, hire and train fire safety engineers and surveyors to carry out the work at a greater pace?

We are mindful of the importance of the supply chain to our ability to make progress on the SBAs. As part of the task and finish group, we have been looking at the specification of the SBA so that we can be assured that there will be a wider supply chain.

Obviously, other parts of the UK are also undertaking building assessments. We would hope that the work that we are doing will help to stimulate a wider market across the UK so that we can also access the fire engineers and the others that are needed to carry out the SBAs that we require for the programme.

We are hopeful that we will make progress on that and that there should not be a barrier to ensuring that SBAs can move through as quickly as possible so that we can move individual buildings into a process of remediation, which is the first and foremost priority of the work.

Do we have enough people at the moment to carry out the work, or do we need to accelerate recruitment?

We have not found that to be a specific barrier to completing SBAs at this point. I would hope that our approach to SBAs will ensure that the market follows and will send out market signals so that those who are in a position to provide the services are able to do so.

We are also seeking to move from a grant-based process to a procurement process, and we hope that that competition will help to stimulate the market and bring additional fire engineers and others into the supply chain to support delivery of the programme as a whole.

Thank you.

I will bring in Pam Gosal, who joins us online.

Good morning, panel. The UK Government has so far provided the Scottish Government with £97 million to identify and remove dangerous cladding from buildings. However, so far, less than £5 million has been spent through the single building assessment programme. What actions is the Scottish Government undertaking to speed up that process?

We are mindful of the need to make progress on the programme. Just last month, we published data that sets out that we have spent almost £5 million on the programme as a whole in the current financial year, which is an increase and pick-up from previous years. For example, in 2022-23, we spent just over £1.5 million, and in 2021-22, it was £242,000, so we feel that we are on an increasing trajectory.

The establishment of my directorate and the uptick in the programme overall are also intended to increase the speed and the expansion of the programme. The bill should help us to make progress and to continue to build out and move through the programme of remediation. Obviously, given that much of the spend will be demand led as a consequence of the SBAs, we have a good opportunity to start moving forward with the expenditure on the buildings that will follow on.

Rachel, do you want to add anything?

When the minister gave evidence to the committee previously, he talked about the fact that things had probably started more slowly, and that was acknowledged in the cabinet secretary’s statement last year. As Kate Hall said, the move from the grant model to direct procurement has seen a significant increase in spend from around £241,000 in 2021-22 to just over £3.1 million this year, and the total of just under £5 million.

Do you envisage any problems ahead? You have said that you are on a trajectory where basically things are getting better, but do you foresee any problems in spending more money?

The key priority is for us to make further progress in relation to the SBAs to identify the buildings that may then require remediation and then to move them through into that remediation being carried out. We are working with the developers to seek to agree a legally binding contract with them to fulfil their commitment to remediate buildings, which will also help us move forward on that trajectory.

The Scottish Government is committed to picking up spend in relation to what are known as orphan buildings, which are those where there is no identified developer that would be in a position to remediate them. Obviously, it would fall to the Scottish Government to cover the costs in relation to those buildings.

Total spend by the Scottish Government is not the only indicator of progress on the programme because, if developers are remediating buildings, that does not necessarily mean that the Scottish Government funding needs to be spent in order for home owners to be protected. I just flag that Scottish Government spend is not the only indicator of progress on remediation and protecting home owners.

Thank you.

Thanks for that clarity. We heard on our recent visit that part of the problem is not so much that the single building assessments are not being undertaken but that the remediation work is not subsequently being pursued. Do you recognise that as a concern and, if so, how will the bill contribute to overcoming the problem?

We have talked already about resolving issues in relation to consent. Progress through to remediation also requires the support of developers in order that they will then move the buildings for which they are responsible into a full programme of remediation.

The priority is to get more building assessments done. Once we have done those, buildings can more swiftly move into the process of remediation. Providing clarity about the scope and content of the single building assessment, and about the one that will ultimately be provided for in the bill, will also support a continued forward trajectory in relation to the programme as a whole.

Again, I will offer Rachel Sunderland the opportunity to add anything, should she wish.

10:30  

Just to reinforce what Kate Hall has said, I point out that the focus in the initial pilot phase has been on the single building assessment process and getting the 105 buildings on the pathway. Sometimes, where we have identified immediate risks, we have had to step in and take urgent action to address them. We then need to engage with the home owners or residents in order to secure their consent to move on to the next phase, and the bill will help with that process.

I seek some clarification, because we have heard about what has been described as a pile of single building assessments. The assessments are just piling up and are not moving through to the remediation phase. Is that to do in part with not having the consent from everybody in the building, say, and will the legislation allow things to move forward to the remediation process?

Yes, it will certainly help us move through the process. The bill is intended to help us to tackle some of the barriers and issues that we have started to identify in the pilot phase of the work. Obviously, consent will be one element that will help us move from assessment to remediation. Even during the pilot phase, the knowledge that those provisions are there will, we hope, provide a stimulus to move buildings from the initial assessment all the way through to a remediation programme.

Have you identified anything else that is preventing the movement from the single building assessment to remediation?

I do not think there are any specific blockers that we have not previously identified from within the programme. Rachel, would you like to add anything?

I would not necessarily describe them as blockers, but work is going on with developers to secure an agreement to allow buildings with a linked developer to be progressed. There is also, as Kate Hall has mentioned, the on-going work of the task and finish group. There are a number of different strands, and the bill is part of that work. Consent is not the sole issue that we are looking at, but it is certainly an important one that we need to address.

Thanks very much—that was helpful. I will now bring in Mark Griffin.

The bill gives Scottish ministers the power to establish a responsible developers scheme. Are you able to set out how the scheme will speed up the remediation of potentially unsafe buildings?

Yes. As we have just been saying, that is one part of a start-to-finish process that goes all the way through to ensuring that we have engagement from developers who are responsible for individual buildings. As Rachel Sutherland has been very heavily involved in that work, I will hand over to her to answer your question.

The responsible developers scheme forms an important part of our wider engagement with developers. At the moment, we are discussing with them developer contracts, which will confirm and clearly set out developers’ responsibilities in relation to remediating their buildings. There is also the responsible developers scheme. As it is important that the developers who step forward and voluntarily remediate their buildings are not disadvantaged if others do not do the same, the responsible developers scheme will clearly set out the membership criteria, the expectations and also the consequences for developers in terms of stepping forward to remediate their buildings.

Why has that been left to regulations? Why is there no more detail up front to make developers aware of what is coming down the track?

It is probably worth noting that we are proposing to put the detail into regulations under the affirmative procedure. We will therefore come back to the committee, and you will see the detail.

We have tried to put into the bill some detail on the areas that we will be looking at in regulations, but we are also mindful of the on-going process for the developer remediation contract, about which we are in live and active negotiations with developers. As we refine and define exactly the parameters of the developer remediation scheme, we will be mindful of our current discussions with developers. The two things should be speaking to each other.

The policy memorandum refers to a “proportionate approach”. What will be the Government’s attitude towards the varying levels of size of house builders? Small and medium-sized enterprises are being treated very differently in the scheme down south. What will the Government’s approach on that be in Scotland?

We recognise that there will be a difference between developers’ ability to pay to remediate their buildings. It is important that that is reflected in any agreement that we reach with them, and we are actively discussing that with developers through the developer remediation contract negotiations. I cannot give you the detail of exactly what we will do, because we are still discussing it, but we are absolutely bearing in mind that principle as we engage in those negotiations.

It would be helpful if you could let the committee know as soon as you have any detail on that. That would be worth while.

Yes, we will.

Yes.

Finally, I want to ask about the power to introduce a levy. Has there been any difficulty in developing the bill or the programme while we wait for the devolution of the power that would enable the introduction of a levy?

Colleagues in tax policy are taking forward the levy, but we are working very closely with them. It is not an impediment to the bill or to the work that we are doing at the moment. It will obviously be an important factor in the future in terms of the wider funding of the programme, given the fact that the UK Government is planning to put in place a building safety levy to fund the programme in England.

Being able to put the levy in will be important in the future, but it is not an impediment at the moment.

Do you have a timeline for the expected devolution of power to introduce the levy?

My understanding is that there are on-going discussions between Treasury and the Scottish Government and that we do not have a precise timeline yet. We might have to come back to you if there is any further detail on that, because lead responsibility in that area rests with colleagues elsewhere.

I have set out my understanding, but I will confirm the position with my colleagues and we can come back to you if there is further information.

Thank you.

I will bring in Miles Briggs.

Good morning, and thanks for joining us. In some of the meetings that we have had with affected residents and experts, they have been critical of the limited progress that we have made in Scotland to date. What learning is taking place to try to align the bill with the schemes that have been progressed in England and Wales, given that many of the companies operate across the UK?

We regularly meet counterparts in the UK and Welsh Governments. What they have learned from their initial assessment process and from running and taking forward their programme is helpful learning for us as we move through our next stages.

We are mindful of the fact that developers operate on a UK basis. However, some arrangements in Scotland are different from those in other parts of the UK, such as the tenure system. It is important that the programme’s arrangements for Scotland reflect and mirror the arrangements in which developers operate in the Scottish environment. There are also different regulations in relation to building standards in Scotland. We are mindful of that, but it is very helpful to be able to understand what has been learned in other parts of the UK as we take forward our programme.

That is helpful. As the bill progresses, there might be quite a few amendments that seek to ensure that the bill is aligned in that way, so it would be helpful to see how things are being taken forward elsewhere.

One issue that I have raised consistently and about which I am quite concerned is that the bill relates only to residential buildings in Scotland. There are many other buildings that potentially include flammable cladding where people sleep, such as care homes, student accommodation and hospital settings. Why are those buildings not covered by the bill? Why are no provisions made for non-residential buildings that could potentially have unsafe cladding?

The programme, as you rightly said, is focused on residential buildings, so that may include commercial premises. The ministerial working group had a wide remit and covered non-residential buildings, but the barriers that were identified—which we have talked about and that are being reflected in the bill—are focused on matters that are not replicated in the same way in non-residential buildings.

Building safety is the responsibility of the building owner. When there is a clear owner, such as national health service boards, local authorities and commercial owners, we would expect them to understand and assess risks of cladding on those buildings and then take action to remediate as necessary. The focus has been primarily on residential buildings, but the bill is tenure neutral.

Do you expect non-residential buildings to be included in the register that you mentioned?

The register focuses on buildings that have been through a single building assessment under the programme. It would therefore be confined to buildings that start and finish the programme.

Okay. Many organisations that have influenced our work still have a lot of questions about the buildings that are not being included and about how that will be dealt with as the bill progresses.

One aspect to consider when undertaking remedial work is economies of scale. Will work to retrofit buildings be co-ordinated to try to ensure that economies of scale can be realised?

That is a helpful point. We are mindful of wider work that is going on, and we will take that into account as we transition from pilot into full programme, although no decisions have been made yet in relation to that.

I have raised concerns with the previous minister, Tom Arthur, about charging points that are attached to buildings. Specific concerns have been raised with us with regard to electric bikes and electric cars. That is not covered in the bill currently. Are you mindful to look at the issue and include that aspect in the bill, given some of the incidents that we have happened?

Any decision in relation to that would ultimately be a matter for ministers. However, the scope of the bill solely relates to cladding at this point, which constrains what provisions can be in the bill.

One issue that came up several times in discussions with residents is that no one knows what their building is made of. That came as a surprise to many of us—particularly in relation to modern homes. Who is in possession of information about what material a building is constructed from, where is that record held, and how can people get access to that information? Nobody seems to know. I know that that is outwith the scope of the bill, but it is an important issue, particularly for people who are buying new flats, homes or residences.

Someone commented that the inspection process during construction is perhaps not what it used to be and that, in some cases, buildings can be constructed in a way that is not entirely consistent with the specification drawings and so on. Where is the protection for the public on that, and where should the committee look to pursue that, if it is not in the bill?

You are correct that it is not within the direct scope of the bill. Rachel Sunderland, do you want to come in with some background on that?

I can say a little bit about some of those things, but some of that falls outwith our responsibility and it would not be appropriate for us to talk about other people’s responsibilities.

The point that you raised about there being, if you like, a golden thread of information on buildings was identified in the Grenfell inquiry as a key issue. The register will help to address that for buildings that have gone through a process, because it will hold information about what has been done to a building up to a fixed point in time.

Colleagues in building standards are doing work more broadly on their commitments, and a number of the points that you raised rest quite closely with them. We are happy to take those points away and feed them back to our colleagues, and to ask if they want to respond to the committee.

Absolutely. Thank you for that.

That concludes our questions. Thank you very much for coming today, and for giving us clarity around the bill and its purpose.

We previously agreed to take the next four items in private, so that was the last public item on our agenda today.

10:45 Meeting continued in private until 12:13.