Building Safety Bill

Written evidence on the Building safety Bill submitted by Local Authority Building Control.

(BSB05).

1. About Local Authority Building Control (LABC)

1.1 LABC is the membership organisation for public service building control representing all local authority building control teams in England and Wales. LABC develops the learning, competences, standards and practices used by nearly 3,800 building control surveyors and technical staff. LABC, through its network of professional surveyors, advises and supports property owners and professionals, making sure buildings are safe, healthy and efficient and conform with building regulations. LABC teams are independent, impartial and not for profit.

1.2 LABC’s main functions are:

· In-depth technical policy, technical competencies and best practice.

· Externally accredited learning and qualifications.

· UKAS audited validation assessments, standards, and performance of local authority teams.

· Consultancy support for local authority teams going through local government transformation and shared working.

· Functions for managing Competent Person Scheme notifications.

· Commercial added value services including LABC Warranty.

1.3 LABC wishes to give evidence to the committee to share our expertise and experience as a key industry organisation that has been supporting the MHCLG and more latterly the HSE as the shadow regulator in the development of the Building Safety Programme. This has included being members of expert panels established in the immediate aftermath of Grenfell and as working group members supporting Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety. LABC’s Chief Executive and Executive Director are members of the Joint Regulator’s Group and LABC has provided expert surveying support to sub-groups such as the ‘Early Adopters’ trials for the new regime and the Joint Inspection Teams for replacing unsafe cladding on occupied buildings. LABC have also arranged site visits for large groups of civil servants to experience live building sites and the challenges faced. LABC contributes resources and expertise to maintaining protocols such as the recently published Building Regulation and Fire Safety Procedural Guidance which has established robust procedures for consultations between building control bodies and fire authorities and a Consensus Reaching process for use when there remain differences in opinion these have all been completed by LABC on behalf of the BSR on a task and finish basis.

1.4 LABC welcomes the publication of the Building Safety Bill and the opportunity to give evidence to the committee. 

2. Executive summary

2.1 LABC welcomes the extension to the definition of higher risk buildings to include hospitals and care homes above the 18m/7storey height threshold, during design and construction only. However, safety risks are not confined to large or tall buildings and as such we would hope that the scope is appropriately widened over time as resources allow.

 

2.2 As you will be aware, Building Control remains the only regulatory service subject to competition from private sector building control providers (approved inspectors). Unfortunately, a by-product of the new regulatory structure is the creation of a two-tier system with competition increasing in building control for work outside the scope of the new regime. As a result, LABC is very concerned that ‘least intervention at the least cost’ will remain the culture for out-of-scope buildings should developers continue to be able to choose how they are regulated.

2.3 But for the higher risk buildings as proposed in the Bill, LABC welcomes the approach to building safety and believes that new primary legislation creates the systemic approach described in Dame Judith’s Final Report. LABC supports the creation of the BSR together with the appointment of the HSE as the regulator. The HSE is respected by industry and instantly gains the attention of dutyholders when it intervenes.

2.4 LABC welcomes the more stringent regulatory regime that introduces greater accountability and statutory responsibility on dutyholders and removes the current ambiguity of who is responsible for regulatory compliance. We are satisfied with the improved definition and identification of duties and responsibilities in the Bill and with the sanctions and penalties which are proportionate.

2.5 LABC has invested in competency through learning, standards and developing competency validation assessment for Fire Safety in Higher Risk Buildings under ISO 17024. To ensure that this and four further validation assessments being developed (which cover all levels of LABC surveying) are a truly impartial validation of building control competence this has been moved out of the control of LABC to the Building Safety Competence Foundation (BSCF) – a Community Interest Company independent of LABC.

2.6 We believe the proposals for regulating the profession are essential. Introducing the concept of the ‘registered building inspector’ is most welcome as is the requirement for the BSR to register different classes of building inspector.

2.7 We fully support the registration of building control approvers (currently approved inspectors) and this registration should encompass independently accredited, third-party technical audits. Similarly, we believe local authorities should be subject to similar auditing standards set by the Regulator and local authorities should be required to be compulsorily affiliated to LABC.

2.8 LABC believes the Bill could go further and that duty holder choice should be removed across a wider section of the Built Environment. The ‘gateway’ principles should be extended to all building regulation work (apart from some very minor works). This would mean that construction and occupation could not continue, without appropriate notification from the regulator which need not be a burden for the BSR for any such widening of the regulatory regime.

3. The Building Safety Bill – LABC view

3.1 Extension of definition

3.1.1 LABC welcomes the extension to the definition of higher risk buildings to include hospitals and care homes above the 18m/7storey height threshold, during design and construction only. LABC would like to see a forward plan to improve safety across all buildings with appropriate measures to counter the cultural ‘race to the bottom’ and ‘gaming’ that Dame Judith Hackitt identified in her report.

3.1.2 We understand the challenges relating to the volume of work and required resourcing should the scope be too wide during the first years of implementation. However, safety risks are not confined to large or tall buildings and as such we would hope that the scope is appropriately widened over time. (Please see our recommendations for further action at 4 below).

3.1.3 Unfortunately, a by-product of the new regulatory structure is the creation of a two-tier system. There is no doubt that competition is already increasing in building control for work outside the scope of the new regime; as a result, we are very concerned that ‘least intervention at the least cost’ will remain the culture for out-of-scope buildings.

3.2 Setting up and operation of the Building Safety Regulator

3.2.1 LABC welcomes the ‘whole system’ approach to building safety. Having been part of this process as members of the Joint Regulators’ Group we have witnessed first-hand Dame Judith’s recommendations being translated into the legislation.

3.2.2 We believe that new primary legislation creates the systemic approach described in Dame Judith’s Final Report and do not believe that an alternative of relying on updates to existing or secondary legislation would have pulled together the radical changes needed.

3.2.3 The HSE is respected by industry and instantly gains the attention of dutyholders when it intervenes. We believe this level of regulatory influence had been lost in building control due to de-regulation and the introduction of competition in the 1980s which has directly affected industry thinking and culture. LABC believes the only way to bring back regulatory influence across the whole construction sector is to remove dutyholders’ choice of regulator. However, without the complete removal of competition from the regulation of construction and refurbishment of buildings, the only viable way forward is as proposed in the Bill – so LABC supports the provisions creating the BSR together with the appointment of the HSE as the regulator for this small section of higher risk buildings.

3.2.4 Having worked closely with the HSE throughout the programme leading up to the publication of the draft Bill and now the Bill we have witnessed their wholehearted approach to regulation. The policy design trials that trialled this new regime have clearly demonstrated the effectiveness of true regulators working together as part of a multi-disciplinary team.

3.2.5 The more stringent regulatory regime that introduces greater accountability and statutory responsibility on dutyholders and removes the current ambiguity about who is responsible for regulatory compliance is most welcome.

3.2.6 One of Dame Judith Hackitt’s recommendations was that a duty holder should not be able to choose their own regulator. With the introduction of the BSR, that has now been achieved in respect of this small section of higher-risk buildings. It is only when regulators are uninhibited by competition that they can truly act as regulators and therefore we are disappointed that the opportunity has not been taken to remove duty holder choice across a wider section of the Built Environment. We do, however, recognise that there is the provision in the Bill (para 30) to modify the scope of Higher-Risk Buildings in the future.

3.2.7 LABC is satisfied with the improved definition and identification of duties and responsibilities in the Bill. Similarly, we are satisfied that the sanctions and penalties are sufficient to focus attention and are proportionate. We welcome the additional powers and mechanisms such as the introduction of Authorised Officers (para 21), the addition of compliance and stop notices, together with the extension of time limits for prosecution for contravening the Building Regulations (para 38) from one year to ten years.

3.2.8 However, LABC believes that the unavoidable, but unintended, consequence of the strengthened powers of local authority building control, will be to push developers and contractors who prefer lighter touch regulation away from public service building control to the private sector for work where they can still choose their regulator. The extension of the removal of dutyholder choice as recommended by the pre legislative scrutiny committee and further debated during the Bill’s second reading has to be included in the Bill to deliver the necessary culture change and avoid the system being gamed.

3.3 Building control competence and standards

3.3.1 Part of Dame Judith’s Final Report recommended those working in the construction industry should prove their competence. In 2018 LABC took on Dame Judith’s challenge to prove the competency of building control professionals. Working with the Institution of Fire Engineers, LABC developed a competency validation assessment for Building Regulation Fire Safety in Higher Risk Buildings. To date we have accredited 550 surveyors for higher-risk buildings and assessments are continuing.

3.3.2 To ensure there is a truly robust and impartial validation of building control professionals’ competence this scheme has been moved out of the control of LABC to the Building Safety Competence Foundation (BSCF) – a Community Interest Company set up by LABC, but independent of it and chaired by Lord Porter of Spalding.

3.3.3 Validations will continue to be developed under UKAS and ISO/IEC 17024  (conformity assessment for bodies operating the certification of persons).  By the end of 2021 there will be the following Competence Validation Schemes in place:

· Building Regulation Fire Safety in Higher Risk Buildings

· Building Control – Residential

· Building Control – New Dwellings

· Building Control – Lower Risk (Non-Residential)

· Building Control Higher Risk / Complex (Residential and Non- Residential)

The whole programme is scrutinised by an Independent Certification Committee and for each scheme there is a separate Scheme Committee made up of pan-industry subject matter experts.

3.3.4 The certification process rigorously tests to see if the individual can prove their competence to perform the tasks associated with a specific technical specialism. Certification lasts for four years and includes a combination of:

· Passing examinations / assessments / interviews.

· Completing a portfolio of recent relevant experience performed to predefined levels of performance and standards.

· Commitment to continuous professional development in the related competency specialism.

· Maintenance of technical skills through documented on-the-job experience.

3.3.5 The Building Safety Competence Foundation will also become the contracted provider for all LABC learning and assessment and will be able to offer appropriate LABC learning to the wider construction industry (including both public and private sector building control). The BSCF, has applied for funding from the MHCLG to assist in the building of competence and capacity in those authorities subject to new burdens from the new regime. If successful this will help fund the increased capacity and competence requirements to support the Building Safety Regulator’s multi-disciplinary teams for the design, construction and occupation phases whilst maintaining vital public protection services. LABC stands ready now, subject to securing the necessary funding described, to build the necessary capacity ahead of the new regime.

3.3.6 O ver the past 4 years, LABC has implemented a robust UKAS audited ISO standards framework for local authority building control teams. It sets the standards and performance required of local authority building control in the delivery of the building control function and other statutory functions such as safety at sports grounds assessments, control of demolition and emergency dangerous structures call out. All apart from 29 authorities in England and Wales have voluntarily signed up to the quality management system and are independently audited by the LABC Standards Team and UKAS accredited Alcumus ISOQAR.

3.3.7 LABC provides OFQUAL accredited , CIOB and University of Wolverhampton awarded qualifications which have been established over the past five years. The qualifications consist mainly of a blended learning making them geographically accessible. These award-winning qualifications allow entry from other disciplines , cater for new entrants into building control through to surveyors operating at levels 4, 5 and 6 and link to professional membership accreditation from CIOB and CABE . They are aligned to structured building control competency frameworks and ISO 9001 quality management systems . LABC intends to launch a level 7 Master’s Degree in Building Control in September 2022

3.4 Regulation of the Building Control Profession

3.4.1 We appreciate the comprehensive approach that has been proposed for regulating the profession. Introducing the concept of the ‘registered building inspector’ is most welcome as is the additional clarity found in the Bill (and the associated documents). We believe the requirement for the BSR to register different classes of building inspector is essential and the only way to ensure the required cultural change and competency requirements cascade into all classes of building and not just those that are in scope of the new regime.

3.4.2 The Bill sets out both restricted activities and functions and states (para 54B) that building control authorities and registered building control approvers "Before each exercise of a restricted function in relation to any work, the approver must obtain and consider the advice of a registered building inspector whose registration has effect in relation to work of that description. And "The registered building inspector who carries out the restricted activity… may (but need not) be employed by the approver." Supporting documents to the Bill, identify ‘restricted activities’ such as site inspections. A building control surveyor is expected to be registered at the appropriate level to be able to fulfil their duty. LABC very much welcomes this approach since it will have a positive effect on the whole built environment and not just those in-scope of the new regulatory regime.

3.4.3 We fully support the registration of building control approvers (currently approved inspectors). This registration should encompass independently accredited, third party technical audits including a technical analysis of decision making to ensure that compliant buildings are being delivered in accordance with the requirements of the Building Regulations.

3.4.4 Similarly, we strongly believe that local authorities should be subject to similar auditing to standards that are set by the Regulator across both public and private sector building control and to that end, local authorities should be required to be compulsorily affiliated within LABC and its independently audited Quality Management System.

3.4.5 CICAIR is currently designated by the Secretary of State to register and provide oversight of approved inspectors. LABC recommends that immediate action is taken to strengthen the audit process of CICAIR to include the requirement for external independent technical auditing in advance of the Bill being enacted to improve current performance and standards. In one ongoing case involving the court sentencing of an approved inspector back in September 2020 CICAIR are still to act with any consequence.

3.4.6 In 2020 the Future of Building Control Working Group (convened by MHCLG and containing the various bodies involved in the building control profession) made proposals to transform the discipline. This work has now been taken up by a reconstituted Building Control Alliance and LABC looks forward to continuing this work in the interests of creating a truly unified, consistent and accountable profession.

3.5 Duty holders

3.5.1 LABC is satisfied with the improved definition and identification of duties and responsibilities in the Bill. Similarly, we are satisfied that the sanctions and penalties are sufficient to focus attention and are proportionate. We welcome the additional powers and mechanisms such as the introduction of Authorised Officers (para 21), the addition of compliance and stop notices, together with the extension of time limits for prosecution for contravening the Building Regulations (para 38) from one year to ten years.

3.6 Charges

3.6.1 The Bill details how the BSR can recover the cost of delivering their service (para 27) together with the reimbursement of local authorities and fire and rescue services providing support (para 56). Local authorities can only provide the appropriate resourcing to support the BSR where they are appropriately reimbursed and as such, we fully support the proposals and are working directly with MHCLG and the shadow regulator to test and pilot proposals.

3.6.2 Those commissioning work and developing sites should pay for regulation and it should not be considered an inconvenient requirement to be minimised. While it would not be appropriate to burden developers with disproportionally high charges, these will be on a not-for-profit, cost recovery basis and amount to a very small percentage of the overall cost of constructing, refurbishing, or maintaining a higher-risk building. Regulatory involvement should start as early as possible in the project; our experience and research show that early regulatory intervention results in significant cost benefits in reducing wasted materials, unnecessary delays and in achieving higher performing and safer buildings. It is, however, important to recognise that these proposals must not delay the delivery of much needed residential accommodation.

3.6.3 The Bill also provides for local authorities to recover the cost of delivering services that they are currently unable to charge for. Again, we support the inclusion of this new ability to make charges and appreciate the ongoing engagement of both MHCLG and the HSE to develop an effective cost recovery model.

4. Recommendations for further action

4.1 LABC would like to see a forward plan to improve safety across all buildings with appropriate measures to counter the cultural ‘race to the bottom’ including an early decision on extending the definition of higher-risk buildings using the provision in the Bill (para 30).

4.2 Unfortunately, a by-product of the new regulatory structure is the creation of a two-tier system. There is no doubt that competition is already increasing in building control for work outside the scope of the new regime. As a result, we are very concerned that ‘least intervention at the least price’ will remain the culture for out-of-scope buildings. We believe duty holder choice should be removed across a wider section of the whole Built Environment.

4.3 LABC believes that the ‘gateway’ principles still to be developed in secondary legislation should be extended to all building regulation applicable works (possibly apart from some very minor works). This would mean that construction and occupation could not continue, without appropriate notification from the regulator. This would significantly improve general compliance and in particular fire and structural safety. The BSR would not need to be the Building Control Authority for any such widening of a strengthened regulatory regime.

4.4 We strongly believe that local authorities should be subject to similar auditing to standards that are set by the Regulator across both public and private sector building control and to that end, local authorities should be required to be compulsorily affiliated within LABC. This designation would also help to enforce professional standards of registered building inspectors and allow for various sanctions.

4.5 LABC recommends that immediate action is taken to strengthen the audit process of CICAIR to include the requirement for external independent technical auditing in advance of the Bill being enacted to improve current performance and standards.

Monday 23rd August 2021.