Pre-legislative scrutiny of the Building Safety Bill Contents

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5Construction Products and Supplementary Provisions

Construction products (clause 110 and Schedule 8)

189.The current regime for regulating construction products only covers products with European harmonised standards (hENs) or European technical assessments (ETAs). As a result, certain safety-critical products, such as aluminium composite material (ACM) cladding, are not regulated. The main purpose of clause 110 and schedule 8 is to expand the scope of the regime to include other “safety-critical products”. It does this by conferring powers on the Secretary of State to regulate the marketing and supply of construction products that fall into one of three categories: those with designated standards; those deemed to be “safety-critical”; and those not deemed to be “safe products”. Under schedule 8, a product can be deemed “safety-critical” if, in the view of the Secretary of State, any failure of the product would risk causing death or serious injury to any person; and a product can be considered a “safe product” if, under normal conditions of use, it presents no or very little risk to health or safety.

Product testing

190.The Hackitt report concluded that “the product testing, labelling and marketing regime” was “opaque and insufficient” and recommended the development of a “clearer, more transparent and more effective specification and testing regime of construction products”.230 We also heard criticism of the lack of transparency and rigour in the current testing regime from Dr Debbie Smith, of BRE Global, the independent testing and certification body.231 We find it surprising, therefore, that the Bill, as noted in the evidence, makes no mention of the future testing regime.232 AXA UK, noting its absence from the Bill, said it would “welcome further clarity on product testing in the regulatory framework and a commitment from Government to improve product testing across the built environment”.233 We note, however, that the HSE told us in its written submission that product testing was one of the main outstanding issues still under discussion.234

191.We strongly agree that there is insufficient clarity around the future product testing regime, although we acknowledge that discussions on the detail are ongoing. We recommend that the Government publish with the Bill its proposals for improving the product testing regime.

Third-party certification

192.In a previous report, we recommended that the testing regime “be more transparent, with details of test failures and re-run tests made publicly available”,235 and this conclusion accords with the findings of the Hackitt report. On the question of whether test results should be made public, however, Peter Caplehorn, CEO of the Construction Products Association, said it would be “quite a challenge” as the results had “commercial value”.236 On the other hand, we heard support for third-party certification as a means of improving transparency, including from the Mineral Products Association and the Insulation Manufacturers Association. The former said it should be “a central part of the product testing regime”.237 Dr Smith told us that a “national-level third-party certification scheme” could address many of the flaws in the current regime, including the lack of transparency and the inability of customers to verify marketing claims.238

193.Unsurprisingly, the United Kingdom Accreditation Service, the national accreditation body, also argued for third-party certification and urged the Government to use “existing frameworks to provide this oversight”, such as the “accreditation and accredited certification to agreed international registration (as provided by UKAS)”. It said that “the mechanisms to deliver this oversight already exist” and that there was “no need to ‘reinvent the wheel’”, and added that missing from the proposals was “a sufficiently robust regulatory regime, which ensures that these mechanisms are deployed correctly, consistently and comprehensively.”239

194.We are not persuaded that third-party certification alone would provide the transparency and accountability that we and the Hackitt report have previously recommended and still believe that details of test failures and re-run tests should also be made publicly available.

195.We recommend that the Government provide for the publication of test failures and re-run tests and for the establishment of an independent and unified system of third-party certification in order to introduce greater transparency and rigour into the regulation of construction products.

Product testing (capacity and resources)

196.Several organisations, including the LGA, told us that the Bill did nothing to address the lack of resources and testing capacity in the UK and that this could impede the roll-out of any new testing regime.240 The Insulation Manufacturers Association warned that “the capacity for testing construction products with accredited laboratories in the UK is already stretched” and that “before introducing more testing regimes the government will need to be sure that testing capability is ramped up”.241

197.We recommend that the Government establish the capacity of the testing market in the UK and, if necessary, provide the necessary funding to increase that capacity so as not to hinder the implementation of the new product testing regime.

Product testing (combination of products)

198.We heard also that schedule 8 failed to treat products as parts of systems, including from the HSE, which said it was one of the remaining challenges in this area still under consideration.242 The CPA noted “great concern from many quarters that the Bill is angled towards individual products and that systems are ignored”.243 EPIC told us that “the stand-alone performance of individual products is just one aspect of building safety” and that much depended on “the design, configuration and interaction with other elements of the construction, including which other materials are being used.” It said it was “crucial to take a holistic view of the building envelope rather than an over-simplistic view of individual components” and that “system testing is a much more reliable indication of the performance of a construction and the various products it is made up of.”244

199.Similarly, Kingspan explained that many products “are utilised in systems/assemblies/kits in conjunction with various other products” and that the “best approach to assessing suitability and safety of systems of products is for them to be treated not in isolation, but as an assembly of building products.”245 The joint submission from three roofing trade associations helpfully illustrated how this point with reference to their industry.246 In making the same criticism, the NHBC cited the example of fire doors, for which components are tested together but then procured individually, and where the substitution or changes to individual parts to compromise overall performance. It recommended that product certification include information about how the product performs when combined with other products.247

200.We are persuaded that schedule 8 fails to treat products as parts of systems, though we recognise that discussions on this point are ongoing. The future testing regime must assess a product’s performance in combination with other products as well as in isolation.

201.We recommend that the Government make provision, either in the Bill or in secondary legislation, for a testing regime that treats products as parts of systems, perhaps by mandating the provision of a certificate confirming how the product performs when combined with other products.

Definition of “safety-critical” products: field of application and product families

202.One of the most common criticisms of schedule 8 was that the definition of “safety-critical product” failed to consider a product’s application. The Phenolic Foam Manufacturers’ Association told us that a product could only be considered “safety critical” based on its application, that a single product may have more than one application, and that it might be safety critical in one scenario but not in the other.248 As the British Cables Association pointed out, cables are an example of such a product: they could not normally be considered safety critical except where used for “specific life-safety purposes in buildings, for example in fire detection & alarm systems, in emergency lighting systems, and for providing power and control for fire-fighting equipment”. It argued that depending on use cables ought to be caught by the provisions either for general safety requirements or for safety critical products.249 Similarly, we heard from Dr Debbie Smith, from BRE Global, about the importance of a product’s “field of application” to any testing and safety regime.250

203.Several submissions from industry bodies were worried by the apparent intention to classify safety-critical products according to product family. EPIC recognised that the intention was “to make the list manageable” but wondered what the criteria wold be to establish whether or not a product or product family is safety critical.”251 The Phenolic Foam Manufacturers’ Association thought that basing the safety-critical list around product families rather than individual products from specific manufacturers could complicate the regime as a “product family could be fairly generic in description”,252 whilst the Association for Specialist Fire Protection said that “all products within a product family should be tested, assessed and certified based upon individual tests of products and systems” and that it “should not be the situation that one manufacturer tests, and others can gain entrance into the market based upon that test.”253

204.The construction products regulatory regime envisaged in the Bill and accompanying documents fails to recognise that a single product may have more than one application and that it might be considered safety critical in one application but not in another. Further, this weakness in the regime could be exacerbated by the apparent intention to designate product families, rather than individual products, as safety critical.

205.We recommend that the Government set out, either in the Bill or in secondary legislation to be published alongside it, how the regime will certify individual products, as opposed to product families, and take account of products with more than one application.

Designation of European technical assessments

206.In describing the standards to be designated as UK standards under schedule 8, the Department is clear that products with European technical assessments, as well as those with EU harmonised standards, will be caught within the new regulatory regime.254 Schedule 8 itself, however, mentions only “EU harmonised standards” and “other overseas standards”. This appears to have caused some confusion and concern in the industry, with many organisations, including the Association for Specialist Fire Protection, the Construction Products Association and EPIC, under the impression that products with European technical assessments will not be caught by Schedule 8.255

207.It seems obvious that the provisions in Schedule 8 for the designation of European standards are intended to cover products with European technical assessments. It is less obvious why schedule 8 refers only to “other overseas standards”. We understand why it has caused confusion in the industry, although we accept that there might be a good reason for the drafting.

208.We recommend that the Government make clear that the schedule as worded will cover such products or amend it so that it does.

Designation of European harmonised standards

209.One of the most controversial elements of the new regulatory regime for construction products concerned the designation of hENs. Some in the industry wanted all hENs to be designated as UK designated standards. ROCKWOOL said it “firmly believes that British standards should mirror European product standards” in order to “reduce complexity, ensure continuity of standards and building safety practices, and prevent any misinterpretation of standards or friction in the cross-border manufacture, supply, or implementation of safe building materials.” On the other hand, the Mineral Products Association criticised the proposed regime for being too reliant on hENs and asked that provision be made for reviewing all hENs and commissioning new standards where these are found to be inadequate.256 Both agreed, however, that the Government needed to indicate its intention regarding the designation of hENs as soon as possible.

210.We cannot judge the adequacy of European harmonised standards, but we agree with the industry that the Government should indicate soon whether it has any plans to review hENs and commission new standards. The Government should indicate whether or how quickly it intends to review existing European harmonised standards.

Miscellaneous provisions

Removal of the democratic filter

211.The Bill provides for social housing residents to immediately escalate a complaint to the House Ombudsman, once they have exhausted the landlord’s complaints procedure, by removing the existing requirement (the democratic filter) that they make that complaint through a designated person, such as an MP or councillor, or wait until eight weeks after the completion of the landlord’s complaints procedure. The few submissions that mentioned the removal of the democratic filter all welcomed it without qualification.257

New Homes Ombudsman

212.The Bill also provides for “relevant owners” of new build homes to escalate complaints to a new homes ombudsman and for a power to require developers to become members of the scheme and for sanctions where they breach its requirements. Under clause 106(7), a “relevant owner” is an individual with a legal interest in land that includes the home, though clause 106(4) also provides a power for the scheme to permit persons other than the “relevant owner” to make a complaint. Under clause 107, a “developer” is anyone who undertakes the construction or conversion of homes with a view to selling them.

213.We received mostly very positive submissions on the introduction of the new homes ombudsman scheme, including from the Leasehold Advisory Service, UK Finance, the Law Society and the Construction Industry Council,258 though we did receive some representations on the definition of “developer”. The Property Ombudsman suggested that the definition of “developer” be amended to include self-build developers who sell within two years and freeholders and management companies who manage communal spaces within developments, such as recreational areas.259 Propertymark made the same point about freeholders and managing companies.260 Similarly, the Federation of Master Builders asked that the definition of “developer” be expanded to include contractors and special purpose vehicles set up to oversee a development and then wound up once the building works have been completed and the properties sold.261

214.The Property Ombudsman asked that under clause 106(4) prospective buyers who have to pull out of a purchase because the developer fails, for example, to provide accurate or timely information, and who consequently lose money, also be permitted to make a complaint.262 Homes for Scotland, a property developer, criticised clause 106(4), however, as it failed to see who else could have reason to bring a complaint, and it asked for this to be clarified.263 Similarly, on the definition of “relevant owner”, the Law Society of Scotland asked that the definition be extended to include spouses/civil partners who occupy the new build property but do not hold a title interest and to beneficiaries under a trust where, for example, a trustee purchasing a property for a disabled individual.264

215.On balance, we are broadly satisfied with the scope of the new homes ombudsman and with the definition of terms establishing that scope, though we think that the Government should include among those permitted to make a complaint prospective buyers who are forced to pull out of a purchaser owing to the actions of the developer.

216.We recommend that the Bill include among those permitted to make a complaint to the new homes ombudsman prospective buyers who are forced to pull out of a purchase owing to any behaviour by the developer that is itself grounds for a complaint. We also recommend that the Bill require developers to establish their own complaints procedures and to inform purchasers of their rights under the new homes ombudsman. Finally, we recommend that the Government monitor the performance of the scheme and amend its scope if necessary.

Architects

217.Clause 111 provides for disciplinary orders made against architects by the Professional Conduct Committee of the Architect Registration Board, the statutory regulator of architects, to be listed alongside their entry in the register of architects, and for the Board to monitor the competence and continuing professional development of architects and to remove those who do not meet the competence requirements.

218.We received very little evidence on the clause 111, although Adrian Dobson from RIBA said it “makes sense” to place a duty on architects to demonstrate competence, as this removed a complex and costly disciplinary process. Graham Watts from the Construction Industry Council agreed that the measure was a “good thing”.265 Like the evidence, we believe that these provisions are uncontentious, straightforward and very welcome.