5 Enforcement
Introduction
51. There are three monitoring and enforcement mechanisms
regulating compliance with Part P:
a) the checks and tests carried out by the competent
person (or qualified supervisor), the role of which we have examined
in chapter 3;
b) the monitoring and supervision of the competent
person by the eight competent persons scheme operators; and
c) enforcement by local authorities to ensure
the requirements of Part P of the Building Regulations have been
met or to remedy a breach of building control. This enforcement
can be applied to any case of non-compliance whether it is in
relation to operations outside the competent persons schemes or
indeed to non-compliant work carried out within the schemes.
MONITORING BY SCHEME OPERATORS
52. We sought and received evidence that questioned
the effectiveness of the supervision by the scheme operators.[71]
In rejoinder the scheme operators set out the systems that they
had in place to meet the terms of Building Regulations: Competent
Person Self-Certification Schemes—Conditions of Authorisation
from 6 June 2012.[72]
Day to day assessment and supervision of the schemes is carried
out by UKAS on DCLG's behalf.[73]
As we have noted, in June 2012 DCLG issued new Conditions of
Authorisation for competent person schemes, which include
a new condition that all schemes have to achieve accreditation
by the UK Accreditation Service (UKAS) against the standard BS
EN 45011, General requirements for bodies operating product
certification systems, by June 2014.[74]
As we were told—see paragraph 16—UKAS is currently
carrying out an assessment of each scheme operator against BS
EN 45011. With the results
of the UKAS review of the Part P competent persons scheme operators
due in June 2014 and on the basis that the report is published
in full, we conclude that it would be premature in this report
to comment further on the monitoring and supervision of the competent
persons by the scheme operators. We shall consider the matter
further when the UKAS review has been completed and consider the
matter again.
Local authority enforcement
53. A theme running through the evidence we received
was the absence of enforcement by local authorities. Damian Skelton,
electrical contractor, told us:
I have tried on a number of occasions to report
dangerous work carried out by unregistered people and my local
authority has told me quite categorically that they don't carry
out enforcement. The furthest I have come to helping customers
claim money back for dangerous work carried out is through dealings
with trading standards who although very helpful can only deal
with cases of fraud and/or miss-selling of services.[75]
On the competent persons scheme operators' side there
was also concern. Steve Bratt, Electrical Contractors' Association,
said that:
some things are out of our control. One of the
things that we need some help in resolving is the issue of enforcement.
We [have] tried to provide a carrot, but ultimately there has
to be some form of stick. Where our industry differs from some
of the others is that there is very limited enforcement. We talked
about the gas industry, for example, with health and safety to
enforce—just not being Gas Safe registered is an offence
and will be acted upon. Not being in the [electrical] scheme is
unlikely to result in any kind of censure, unless you have done
something seriously wrong. The enforcement end of things needs
some work—that is outside our control, but we would happily
work to resolve that and to create a framework that would be effective.[76]
NAPIT Trade Association said in its written submission:
The limitations of current Building Control enforcement
of Building Regulation compliance were highlighted in a DCLG report
commissioned during the consultation process for changes to Part
P which took place in 2012. The report, compiled by EC Harris,
noted: "The building control enforcement landscape is one
of extremes. On the one hand there is an extremely, perhaps unduly,
low level of formal enforcement applied. Against this there is
a massive (5 million p.a.) portfolio of informal compliance interventions
being conducted. It has also been shaped by the particular unwieldiness
of building control law and the constraints of its formal enforcement
procedures".
The lack of adequate enforcement of the Building
Regulations alluded to here, and supported by extensive anecdotal
evidence from NAPIT members, means unregistered installers and
cowboys who chose not to comply with the regulations or notify
work are able to undercut those competent registered electricians.[77]
The Electrical Safety Roundtable suggested in its
memorandum that the lack of public awareness was due, in part,
to "low levels of enforcement of Part P".[78]
Richard Hall, an electrical contractor, told us that he had used
the Freedom of Information Act to ask his local authority Building
Control Department "how many enforcements or prosecutions
they have made under the auspices of Part P. None in 7-8 years".[79]
Finally, at the oral evidence session on 6 January we asked the
competent persons scheme operators how many prosecutions for non-compliance
had taken place as a result of work not being up to standard.
Emma Clancy, Certsure, replied that she was aware of three in
the past year.[80]
54. The evidence we received points to a serious
weakness in the system: poor proactive and reactive enforcement
of Part P by local authorities. When we put this concern to the
Minister, Stephen Williams, he responded that enforcement was
"the responsibility of the local authority, because it is
their job to enforce the general application of all Building Regulations".[81]
While the Minister is correct in law, there is more to it. The
purpose of a competent persons scheme is to relieve the burden
on local authorities and so criticism of local authorities for
not enforcing against work carried out by a scheme member is harsh
when it should be, in the first instance, for the scheme operator
to receive the complaint and seek to rectify the problem. In addition,
Bob Ledsome, Deputy Director and Head, Building Regulations and
Standards Division, DCLG, drew attention to a survey undertaken
under the aegis of the Building Control Alliance, which recorded
that there were over 9,000 interventions by building control bodies
relating to Part P in November 2011. He said that the "idea
that building control bodies do not get involved in Part P is
not substantiated by that report".[82]
In our view the Minister may have been nearer the mark when he
said that there "might be an issue as to what particular
priority local authorities decide to give to enforcement, whether
or not it is of building regulations".[83]
We cannot see that the current arrangements provide an incentive
to local authorities to give greater priority to enforcement of
Part P.
Conclusions and recommendations
on enforcement
55. We conclude
that the evidence points at best to patchy enforcement by local
authorities, though for understandable reasons. If the competent
persons schemes continue and if the changes we have recommended
in this report are made, it is essential that those who stay outside
a scheme and attempt to carry out notifiable work in breach of
building control be identified, reported and prosecuted.
We recommend that as a matter of urgency the Government put
in place new arrangements to incentivise and assist local authorities
to strengthen enforcement of Part P. We suggest such arrangements
could include the following:
a) a levy on those registered with a competent
persons scheme to be used to provide a fund to enhance enforcement;
the funding arrangements for enforcement could be managed on behalf
of local authorities, possibly through an agency such as LABC;
b) local authorities to inspect a sample of
the notifications;
c) the Government working with local authorities
to put in place and publicise arrangements to allow householders,
contractors and scheme operators to report work carried out in
breach of Part P;
d) where there is prima facie evidence of
a breach the local authority should investigate and, where a breach
has been found to have occurred, the authority should have a range
of sanctions available including on-the-spot fines; and
e) where a local authority successfully prosecutes
a breach through the courts, the court should as a matter of course
award the local authority its full costs from initiating and pursuing
the prosecution and a portion of the fine imposed because of the
breach.
71 For example, Dr Robert Judson (BRC 02), FUSE Services
Ltd (BRC 53) and Phil Watts (BRC 66) Back
72
Certsure (BRC 58), para 4, NAPIT Registration (BRC 35), section
D, NAPIT Governing Board (BRC 57); and see also DCLG (BRC 44),
paras 20, 23-25, Electrical Contractors' Association (BRC 55),
section D Back
73
UKAS (BRC 70), para 7 Back
74
DCLG (BRC 44), para 5 Back
75
Skelton Electrical Ltd (BRC 11) Back
76
Q112 Back
77
NAPIT Trading (BRC 46), paras 1.5-1.6 Back
78
Electrical Safety Roundtable (BRC 44), para 2.2 Back
79
Red Kite Electrical (BRC 21) Back
80
Q83 Back
81
Q206 Back
82
Q208 Back
83
Q207 Back
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