Building standards - building warrant fee model: research project

7. Enforcement

7.1 Introduction

7.1.1 At present, local authorities receive a revenue grant from the Scottish Government to cover their statutory building standards duties. The adequacy of this level of grant is considered in Section 7.2. In addition to formal enforcement notices, authorities also engage in soft enforcement and this is considered further in Section 7.3.

7.2 Grant Aided Expenditure

7.2.1 The current level of grant settlement for building standards statutory duties is £5.3 million, although £1.5 million is taken from the grant prior to distribution to fund BSD verification related activities. The £1.5 million funding for BSD is off-set by the 2017 building warrant fee increase. This grant should cover the cost of maintaining the building standards register and formal enforcement, each of which are considered below.

7.2.2 Table 7.1. provides a summary of the number of formal enforcement notices served across Scotland over the last six years.

Compliance Notices

7.2.3 There have been very few S25 or S26 notices issued since 2016/17. The number of building warrant enforcement notices (S27) issued fluctuates by year but there has been a marked reduction in the number of notices issued since 2019/20. S27 notices can be served when:

• Work requiring a warrant has been or is being done without a warrant.
• Work has been or is being done that is not in accordance with a warrant that has been granted.
• A limited life building has not been demolished by the expiry of the period for which a warrant has been granted.

7.2.4 There is considerable variation in the total number of S27 notices issued by each authority between 2016/17 and 2021/22. Over the six year period, a few authorities have served less than five notices while a few have served over 30 notices. Details are shown in Table 7.2 which provides a summary of the number of authorities by the number of notices served (in total) over the six year period.

7.2.5 The range in the number of notices served raises issues relating to the level of soft enforcement:

• Are authorities with low numbers of S27 notices engaging in more soft enforcement activity in a bid to limit formal action?
• Are authorities with high numbers of S27 notices engaging in more soft enforcement such that more incidences of non-compliance are identified and there is a greater chance of more formal action being taken?
• Do some authorities just do the minimum amount of enforcement?

7.2.6 Unauthorised works can result in the submission of a late building warrant application or a late completion certificate application. Figure 7.1 shows the number of late building warrant applications in Scotland has declined from over 1,100 in 2018/19 to 830 in 2021/22.

7.2.7 The distribution of the 830 late building warrant applications by authority in 2021/22 is shown in Figure 7.2. The majority of authorities received less than 40 late building warrant applications in 2021/22.

7.2.8 For Scotland, late applications accounted for 2.2% of total applications (excluding late, staged and amendments) in 2021/22. Seven authorities had late applications which accounted for more than 3% of applications and four of these seven authorities also had relatively high numbers of S27 notices.

Defective and Dangerous Buildings Notices

7.2.9 The number of S28 notices (defective buildings) is relatively low. From a peak of 39 in 2019/20 there were 15 in 2021/22. In 2021/22, the majority (23 or 72%) of authorities did not issue any S28 notices with only four authorities issuing more than one. Covid may have been a factor in the reduced number of notices in 2020/21 and 2021/22 as these types of notices are often picked up by surveyors being out and about.

7.2.10 The number of S29 notices has also fallen from approximately 400 per year between 2016/17 and 2018/19 to 271 in 2021/22. The majority (62%) of notices were issued in three authorities.

7.2.11 The number of S30 notices has fluctuated between 74 and 163 notices per year between 2016/17 and 2021/22 with 124 in 2020/21.

7.2.12 The number of enforcement notices issued varies year to year, but the level of revenue grant provided for statutory duties has remained at the same level since before the previous fee increase. Authorities were asked as part of the survey if they had any details or evidence to support the adequacy or otherwise of the level of grant funding.

7.2.13 None of the twelve responding authorities indicated they had any evidence. One respondent indicated that there is no mechanism in place for recording time spent on statutory duties as there has never been a requirement to record this information.

7.2.14 One third of respondents indicated that their building standards service does not receive any of the revenue funding for building standards activities.

7.2.15 Authorities were asked how much in pounds per annum they require to deliver the local authority building standards statutory role. Several authorities indicated that they do not currently record or cost these activities. One authority thought the current settlement is likely to be proportionate, but as there is no requirement for grant funding to be used for specific purposes, it may not be directed to those activities. The potential for grant (GAE) funds for statutory duties to be ring-fenced was suggested.

7.2.16 One authority provided an indicative staffing level of 2.5 FTE for statutory duties while a further authority suggested the difference between building standards total staff costs and verification staff costs in the KPO data provides an estimate of costs. This approach was adopted in establishing the costs of the building standards service in the model, but it is acknowledged that the cost could include some other activities undertaken by building standards teams e.g. licensing.

7.2.17 Table 4.3 earlier showed that total non-verification costs (measured as non-verification staff costs plus 30%) have been approximately £4.2 to £4.9 million over the last five years. This would suggest that non-verification costs are lower than the £5.3 million of grant funding.

7.3 Soft Enforcement

7.3.1 Through discussions with BSD and the pilot Hub Directors it appears that soft enforcement is not a clearly defined process and that soft enforcement could occur in several situations:

• Unauthorised work: it was suggested that authorities deal with queries about authorised work on a regular basis. This work is work undertaken without a building warrant can result in four possible outcomes:

a) No unauthorised work was found, no further action required.

b) There is/has been unauthorised work and a late building warrant or completion certificate application is made.

c) There was evidence of unauthorised work, but it has been removed.

d) A formal S27 notice is served.

• Deviation/non-compliance from a building warrant: soft enforcement could occur at any point in the building process where work deviates from the approved warrant. It was suggested that it is very unusual for an application to be completed without soft enforcement.
• Pursuing dangerous buildings: soft enforcement can arise in relation to dangerous buildings where verifiers try to resolve the situation before formal notice procedures are required.

7.3.2 For some of the situations listed above (e.g. (a), (c), preparation for (b) and (d), pursuing dangerous buildings in advance of the notice), there will be verifier time spent on activities for which no fee or revenue grant is provided.

7.3.3 For work around non-compliance or deviation from an approved warrant, it is not clear where the boundary lies between soft enforcement and providing a good verification service by keeping the applicant on the right track. For this work a building warrant fee will have already been paid.

7.3.4 Several sources of information and data were considered on soft enforcement.

7.3.5 Discussion with a Local Authority: one local authority records non-compliance inspections within their systems and provided the data shown in Table 7.3. The data suggest that approximately 10% of inspections are for non-compliance reasons. They also record the number of S27 to S30 cases and notices served. This is also shown in Table 7.3. The number of notices per case varies year to year.

7.3.6 The Authority also indicated that they had no way of recording the hours or time spent on soft enforcement, but that it is resource intensive. Officers spend more time discussing building warrant compliance issues, assessing options and agreeing the way forward than they would issuing a notice. The need for more senior staff time was also highlighted.

7.3.7 Hub request to the Digital Delivery Group (DDG): a request was issued to DDG leads to determine how practical it would be to extract information from case management systems to assess time spent on soft enforcement. Feedback to the Hub found:

• It would not be possible to extract the time spent on soft enforcement activity from enforcement or verification activity. Any details provided to evidence activity would be an educated guess.
• Time recording could be established to identify time spent on soft enforcement, but it was described as ‘tricky’ and could not be done retrospectively.
• One response noted that a more formal stance on enforcement will be taken in the future. Contributory factors were the resources required for soft enforcement and a more risk averse approach.

7.3.8 Survey of local authorities: the local authority survey asked for any data or information which would help to estimate the prevalence of soft enforcement or the time spent on soft enforcement. None of the respondents were able to provide data as it is not currently recorded to allow this break down. One respondent stated that the situation is common and estimated it occurs with approximately 10-20% of warrant submissions. One authority noted that they are currently reviewing the enforcement recording process within their system to start to record time spent dealing with enforcement.

7.3.9 When asked for comments on the resourcing of soft enforcement both at present and in the future, several respondents highlighted that this area of work is causing issues for their service:

“'Soft enforcement' takes up a considerable amount of our time however we cannot quantify that time at present, suffice to say if soft enforcement increases we will be in a position where resourcing this will prove problematic.”

“Resources allocated to this work is very limited due to budget restraints, we don't meet customer expectations and particularly struggle to follow up lower risk incidents as quickly as we would like.”

“Currently there is a massive resource issue in soft enforcement given the time it takes which does have an impact on a case surveyors application checking, if the fees were increased we could resource this by investing in an enforcement team.”

“The activity is resource intensive. Given the existing challenges around workforce strategy/training/development/recruitment, this may be a real issue.”

7.3.10 It is possible that the new compliance plan approach will improve customer behaviour and reduce the amount of soft enforcement required within the building warrant process.