Building Safety Bill

Written evidence submitted by the National Fire Chiefs Council (NFCC) (BSB19)

To the Public Bill Committee,

Parliamentary Committee Written Evidence Submission: Building Safety Bill

The National Fire Chiefs Council (NFCC) is the professional voice of the UK fire and rescue services and includes a council of UK Chief Fire Officers. NFCC drives improvement and development throughout the UK FRS, while supporting strong leadership – including for the devolved administrations.

The NFCC’s Protection Policy and Reform Unit provides support to fire and rescue service (FRS) protection departments, develops guidance and policies to promote national consistency, and supports the Fire Protection Board. The unit contributes to the Government's Building Safety Programme, which was established in the wake of the Grenfell Tower Fire, by providing technical advice and insight as well as supporting the development / implementation of the proposals made in response to Dame Judith Hackitt's independent Review of Building Regulations and Fire Safety .

This submission responds to the Parliamentary Committee call for written evidence as it considers the Building Safety Bill which was formally introduced to the House of Commons on 5 July 2021.

Introduction

In the years since the Grenfell Tower fire, NFCC has worked with the Government on their initial focus to help coordinate action in buildings with combustible ACM cladding on both social and private housing blocks. Since then, we have played a central role in the ongoing response to the challenges posed by unsafe Aluminium Composite Metal (ACM) and other emerging fire safety issues, providing a single point of contact for Government to coordinate visits to identified unsafe buildings, and commencing the Building Risk Review Programme. We have provided support and expert advice to the Independent Expert Advisory Panel and the Industry Response Group (IRG) to complement remediation efforts and contributed to the work of the Construction Industry Council (CIC) Competency Steering Group.

The Building Safety Bill will become a key piece of legislation that will contribute to essential developments in fire safety. NFCC supports the Bill for multiple reasons discussed within this submission but believe it would benefit from further clarification in certain areas, including the scope of the bill, how it will address non worsening conditions and how it will remove competition between building control bodies. NFCC seeks clarity and confirmation that Government will not dilute important areas of building and fire safety including ensuring that existing buildings and refurbishments have as much accountability and oversight as new builds, and that a focus on competence across all elements of the process and tightening of standards is embedded.

NFCC recognises the Bill is an enabling piece of legislation. In this regard we welcome the flexibility provided which appears to have met the government’s policy intentions.

This broad enabling nature does however mean that achieving the policy intent will depend on detail yet to be seen within secondary legislation and further guidance.

The steps that have been taken to date to address issues raised after the draft bill was consulted upon are positive, however more must be done to ensure gaming of the system doesn’t happen and that not just the buildings regulated by this bill are safe buildings.

NFCC is mindful of the pressing need to produce sufficient new homes for our communities yet there should not be a conflict between streamlined planning, sustainability, and improved building standards including fire safety. When addressing the housing crisis, quantity and quality are not mutually exclusive.

Key Issues

Costs to leaseholders

We continue to hold concerns about the costs of historic building defects and the resulting remediation being passed onto leaseholders. Whilst we welcome the funding announced so far, we do not believe that the costs of serious building defects should end with leaseholders and that these defects extend beyond those resulting from issues with external wall systems and beyond the current scope of the building safety fund.

We would support further development of any options which create additional pathways and a broader scope of defects for which costs can be recovered from those who design and construct buildings.

Whilst recognising the seriousness and impact of costs to leaseholders, NFCC would emphasise that this bill offers the opportunity to try and combat decades of inaction on building safety by multiple Governments and Parties. Whilst the issue of who pays is of importance, Parliament cannot let the mistakes of the past overshadow ensuring future buildings are built to a high quality and assure resident safety. Otherwise, England faces decades of continuing remediation problems, from even continued inaction.

In December 2020, NFCC called for a mandatory requirement to retrofit sprinklers in all high-rise residential buildings over 18m, or 6 storeys, that are served by a single staircase. We have continued to reiterate this call for sprinklers in our responses to Government consultations most recently in our response to Home Office Consultation on Personal Emergency Evacuation Plans. We would urge Parliament to look at how this bill or subsequent legislation can mandate sprinklers in these existing buildings.

This need is particularly pertinent given the recent policy intent to re-evaluate waking watches in light of Government’s call for proportionality making the need for sprinklers more important and apt than before. Sprinklers and other suppression systems can buy crucial additional time in firefighting operations and may mean that evacuations are not necessary.

NFCC recognises the potential for these costs to be passed on to leaseholders, in a similar way to waking watch costs. Data published by MHCLG shows the average cost per dwelling for buildings with a waking watch in London is £499 per month (or £6k per year, per dwelling). This compares to the one-off cost of retrofitting sprinklers of £2,500 per dwelling, with annual maintenance costs of around £34 per year.

Measures such as sprinklers can often provide significant mitigation against fire risk, avoiding the need for other, more expensive, measures.

NFCC welcome the amendments to expand the limitation period for the Defective Premises Act, which should help resolve some of the ‘who pays’ issues going forwards.

However, the extension of the defective premises act must address liability issues especially where developers open subsidiary companies or special purpose vehicles to be responsible for new development or refurbishment. That company is then closed down after completion of the project and the parent company rarely has any ongoing legal liability for the premises or remediation.

Although the Bill gives the Regulator stronger enforcement powers, it still does not address the risk of delays to remediation work and leaseholders being left liable for all costs resulting from negligent work by developers and their contractors where the developer has ceased to exist.

We would like to understand whether, where a company is closed down, liability for compensation for poor building work will still be attributable, at least within the fifteen-year limitation period, and whether criminal proceedings against a company can also be pursued if necessary.

Consideration in the guidance to follow on this issue should also take into account the time that may have elapsed since building completion and discovery of these historic building defects. We have seen examples where defects in the original construction have remained hidden and once uncovered the intervening years have already extended beyond the limitation period or there is insufficient time left to take necessary legal action.

NFCC would also raise the need for considerations to include the knock-on effects of PII which also extends to fire risk assessors and fire engineers who are often called upon to make these risk assessments / judgements and likely to be called on to provide some of that evidence that the building is fit or not fit for habitation.

Scope

NFCC welcomes the flexibility for the scope of the Bill to be widened over time. However, we believe the intention to begin with residential buildings of 18 metres or more could be more ambitious and better recognise the needs of more vulnerable groups, especially at the new build stage.

In her assessment of the industry Dame Judith Hackitt in the Building a Safer Future Independent Review of Building Regulations and Fire Safety: Final Report (as well as the interim report) she emphasised that the entirety of the system was broken, and "that there is a need for a radical rethink of the whole system and how it works".

NFCC supports a broader scope than one that is limited to high rise residential buildings of 18m or more (or more than six storeys). While we welcome the inclusion of buildings such as care homes and hospitals in the new build process, we would like to see this expand further to include care home and hospital buildings at all heights.

We believe that more vulnerable groups and higher risk premises could be recognised within the Gateways process from the outset.

To limit the scope to 18m or more (or more than six storeys) will create a two-tier building regulatory system, where a limited set of buildings that are defined as higher risk are required to meet more robust standards.

FRS’ are reporting issues in buildings of all sizes, and as a society we can no longer accept that a person living in an unsafe property doesn’t deserve action based on the height of the building in which they live.

By the time the new regulator comes into force, the approximate 11,300 HRRBs will have had additional attention due to:

· The Fire Safety Act 2021

· The government’s Consolidated Advice Note (CAN)

· The Joint Inspection Team (JIT)

· Being reviewed by FRS as part of Protection Board activity

· Other post-Grenfell scrutiny being driven by the market, such as the EWS1 form process.

The proportion of new builds/refurbishment projects involving HRRBs per year is small when compared to the existing built environment.

We have previously raised with officials that we do not support the narrowing of the scope achieved through the insertion of the words "more than" before the words "six storeys". We believe the spirit of the original proposals were inclusive of existing six storey buildings. The addition of the words "more than" narrows the scope to buildings which are 18m, or seven storeys. We strongly believe this is likely to miss a number of existing six storey buildings deliberately constructed to be just under 18m, in order to ‘game’ the system.

A number of major fires since 2019 have resulted in significant fire spread and/or total building loss; these types of fires are a result of twenty years of building safety failure. They highlight the risks within the built environment and the national pattern of buildings failing in fires. Since the ban on combustible cladding, for certain buildings over 18m came into force, we have not witnessed the universal culture change expected, and continue to see ‘gaming’ of the system, including examples of some design teams proposing designs with the height of the building intentionally millimetres under the ban threshold, while admitting that this is intentional to seek flexibility with the materials used.

At planning, design, and construction stage, we welcome the response to our calls to include buildings such as care homes and hospitals in the new build process but disappointingly only those over 18m. NFCC again seek for the Government to increase the scope of this. This addition only brings in approx. 5 buildings a year.

An arbitrary height threshold does not accurately associate risk to occupants or reflect vulnerabilities and poor construction (i.e., breaches in compartmentation, missing cavity barriers etc) so we would reinforce our calls that a schedule is put in place as to when all buildings will be bought into scope. If it is not widened there exists the potential to create a two-tier building regulatory system, with lower standards of safety accepted in premises where the most vulnerable occupants of society reside.

Increasing the scope in design will not increase workloads as all the buildings have to go through building control process, which means the resource to deliver this is already within the system.

Although the Bill’s primary concern is rightfully life safety, the response to the Call for Evidence on Approved Document B found that a large majority of respondents supported the inclusion of property protection as a guiding principle. This was on the grounds of protecting the Nation’s built assets, avoiding business disruption, continuity of social and public services, prevention of pollution and avoiding rebuilding and other associated costs such as insurance, rehousing, and health (physical and mental) and concerns for the residents affected.

Whilst property protection can be seen within the built environment industry as a matter for owners and their insurers, in most multi-occupancy buildings the resident has no control over property protection decisions which are made early in the design stage yet are the ones liable for the costs of insuring the building in occupation. Costs which may reflect those design stage decisions and execution are resulting in greater costs. For these reasons we believe that the regulator should also have remit to ensure appropriate measures are in place to minimise property loss.

Such a change would help to minimise the set of impacts which are currently ending with some leaseholders.

NFCC welcome the proposed scope for the new regulator to:

· oversee the safety and standard of all buildings

· oversee the performance of building control bodies

· directly assure the safety of higher-risk buildings

· improve the competence of people responsible for managing and overseeing building work

· understand and advise on existing and emerging building standards.

We would like to see the scope of the new regulator extended to not just include those elements with which we agree but also to include the power to bring any building into the regime if evidence is produced of deliberate gaming of the system.

Non-Worsening provisions and proportionality

One of the key findings from the Building a Safer Future: Independent Review of Building Regulations and Fire Safety: Interim Report, was that non-worsening provisions under section 4(3) of the Building Regulations seriously limit the scope of the law to improve fire safety in existing buildings. Addressing this issue is critical to supporting the Government’s objectives around proportionality.

There is a unique opportunity to improve the safety of the wider built environment beyond what is currently drafted, by addressing the non-worsening provisions in regulation 4(3). We would like to see an ambition to address this in due course for all buildings.

We understand concerns about the feasibility of improved retrospective implementation on existing building stock, however these arguments fail to recognise or examine available examples of how to manage this, which are already basic standards of fire safety in the regulations of other countries.

NFCC believe that a change of use or major refurbishment should trigger a cost/benefit analysis of reasonable life safety improvements balanced against the value of the building works in question. This could be applied to the entire built environment, to help gradually improve safety across building stock over time.

The framework for the Safety Case Report provides a mechanism for the building safety regulator (BSR) to challenge assumptions that have been made about safety issues. We seek reassurance that as part of the Safety Case regime, it will be possible for the BSR to require proportionate improvements to the building (e.g. sprinklers) and will not be hampered by the non-worsening clause 4(3), which does not require improvements to building standards to be retrospectively applied. This would resolve the tension between the principle of non-worsening and the objectives of continuous improvement.

We have had positive engagement with officials on this matter, who seem confident that the Safety Case can be used to require accountable persons (APs) to retrofit life safety features where it is to address serious risk. However, the threshold for risk provided by the Bill through the definition of "major incident" in Section 60 (an incident resulting in a significant number of deaths, or serious injury to a significant number of people) seems high. It is also out of sync with the definition of major incident used by blue light services in the JESIP doctrine which could give rise to confusion.

A key example of the need for an improvement on non-worsening conditions is Lakanal House. Following the six tragic deaths in Lakanal House in 2009, significant refurbishments to the building were undertaken including a conversion to the top floor, which was intended to be sold off.

Despite these investments and cost off-setting, nobody could compel the owners to install sprinkler systems at a marginal cost to the project, because non-worsening provisions prevented regulators from being able to require this. This was despite of the Lakanal Coroner’s recommendations, who also observed that refurbishments carried out in 2006/7 provided numerous opportunities to consider whether the level of fire protection was adequate.

The Bill must ensure that conditions placed on safety case reports are given the footing in primary legislation to override section 4(3) of the regulations. If safety cases don’t have the power to improve situations like the one at Lakanal, then we’re not clear what powers they will give the Building Safety Regulator over and above the existing system.

Building Control Independence

A crucial part of the Bill is that it removes the ability for clients to choose their own regulator for buildings within scope, which we believe is key to creating the right parameters for people to follow the rules. This change in law is critical to fixing the broken culture within the industry highlighted by Dame Judith Hackitt in her report. While there is ample evidence that private sector participation in building control can bring efficiencies, if not implemented correctly, such a delegation of regulatory mandate can come with significant unintended consequences.

A 2018 report by the World Bank [1] found private sector participation in construction regulation in 93 out of 190 economies. The report concluded that, for such an arrangement to work as intended, the public sector should regulate private third-party professionals and firms and reported that in 76% of economies that make use of third-party inspectors, regulations explicitly require the independence of third-party inspectors; they should have no financial interests in the project and should not be related to the investor or builder.

The report concluded that private sector participation should be accompanied by appropriate safeguards that favour the public interest over private profits. We believe that the change to remove the ability for clients to choose their own regulator, is necessary to apply to the whole of the built environment.

Construction Products

NFCC support provisions in the Bill to improve the regulation of construction products. In addition, we believe a review of testing procedures should be carried out to ensure that materials are being tested to the most appropriate standards and identify where there is an absence of applicable standards.

NFCC understands that the Secretary of State is very supportive of Modern Methods of Construction (MMC) and sees MMC as central to the delivery of the new Affordable Homes Programme and has set a minimum target for the use of MMC to deliver this work.

We are concerned that MMC buildings are currently being designed, approved, and built under a regulatory system that has been accepted by Government as ‘not fit for purpose’ even for traditional construction techniques. Assurance is needed that fire performance of materials, elements, and systems have been fully considered, have been tested appropriately, and provide the level of safety that residents and firefighters should expect.

Current testing procedures were developed around traditional products, systems, and materials and we have not seen an adequate acknowledgement of the growing use of non-traditional and non-standard products and methods within the construction industry, and whether existing testing methodologies are applicable to emerging and innovative construction techniques. This is the case not just for new builds but within extensions and retrofits including efforts to increase energy efficiency.

Any situation where design teams specify their own test standards should not be seen as acceptable in any competent building standards process and shows an industry that has not accepted the cultural changes needed.

The regulation of construction products should look to better scrutinise MMC, an area where an understanding of materials and construction technique performance is vital for those specifying their use. This should be carried out in conjunction with building control bodies, particularly where prefabricated structures are used. Consistency in this area would better enable building control bodies to focus on checking that products which have been approved are being installed correctly.

Refurbishments

The new regime must avoid a two-tiered standard of safety. We would advise Government against removing or weakening standards around significant refurbishments of buildings. Government must not compromise on standards concerning refurbishments and stay true to their policy directive and intentions as laid out in previous consultations and documents. It must not be overlooked the contribution of refurbishments to the current need for remediation and their contribution to the problem and their devastating consequences when they are done in a vacuum of oversight and standards as seen by the Grenfell tragedy.

Last year the Government set out an ambitious new policy direction for planning which included aims to decrease the carbon footprint of the built environment by addressing stored carbon through an aim to refurbish and regenerate existing buildings over demolition, this policy direction makes the need for regulatory control over refurbishments to be strengthened within this bill even more important to ensure we provide safe homes whilst we meet environmental targets.

Refurbishments can bring a higher degree of complexity and risk to a project as it must interface with buildings already in use and where different materials and standards of construction are used. NFCC would also seek clarity on how works undertaken by residents or leaseholders will be managed by those with oversight responsibility, especially where those works have consequences on the building and fire safety of the premise.

Competence and tightening of standards

Competence is at the core of a functioning building safety system. NFCC recognise that a building safety regulator is not able to check the competence of every single person at all stages of the process, which highlights the importance of clear structures and parameters for recognising competence.

NFCC welcome the proposed creation of a committee on industry competence however, there does not appear to be a clear route for the BSR to hold the built environment industry to account. To effectively drive cultural change there needs to be the ability to apply sanctions where standards are not being raised or upheld within a particular sector.

NFCC welcome the creation of BS Flex 8670 which provides guidance on the core criteria for competence frameworks for the built environment industry and the development of publicly available specifications (PAS) 8671, 8672 and 8673 which will outline the competence standards for principal designers, principal contractors and building safety managers. This suite of PAS documents should be extended to other professions including fire risk assessors and building control officers, and that mandatory compliance with the PAS for individuals working in these professions would be appropriate.

In addition, individuals working within key sectors should also be required to be on an appropriate third-party register which has been assessed by the BSR (or committee on industry competence) to ensure that they meet a minimum validation process standard to ensure consistency across all registers.

NFCC recognise that there is still significant work to be undertaken by some sectors within the built environment industry to set and achieve appropriate competence standards. This may be addressed within secondary legislation, but clear direction and robust oversight of competence standards is needed to improve building safety now and in the future.

The Bill provides that the BSR will be able to request the assistance of competent fire and rescue service protection officers. As there are known limitations on the numbers of officers with the required level of competences, and a significant lead-in time for training, it is essential that these new burdens are appropriately funded to avoid an impact on core, statutory, business as usual activities. Other sectors will face similar challenges particularly where roles, competence requirements and associated frameworks and appropriate training did not or does not currently exist.

Residents Voice

Transparency is also needed for those who are outside the industry, but who are impacted upon by a lack of standards or understanding of where to go when things go wrong, namely residents.

Outside of social rented accommodation, our members’ experience shows the complex nature of some ownership structures can cause confusion for residents about who is responsible for the safety of their building. Dame Judith envisaged a simplified regime with a clearly identifiable Accountable Person. The Bill introduces the possibility for mixed-use buildings to have multiple Accountable Persons and a new Building Safety Manager, on top of the multiple ‘Responsible Persons’ which already exist. The introduction of multiple APs, in addition to multiple RPs, will add further layers of complexity to what is already a significant challenge.

NFCC welcomes the definition within section 70 which meets our ask for a lead Accountable Person to support clarity. Yet despite section 70 of the Bill that outlines the notion and definition of a "principle accountable person", section 71 (2) identities the possibility that there may be more than one person who classifies as the "principle accountable person" with the tribunal making the consideration which one of those accountable persons they believe is appropriate as the "principle accountable person".

We would seek further clarity on this, to ensure that those that are accountable people and those they are accountable for, know with whom the responsibility lays.

We would also seek clarity on the relationship between this legislation and other pieces of legislation that all cover regulatory functions. Currently a Responsible Person can have action taken jointly under the Housing Act 2004 and the Fire Safety Order, we would welcome clarity on whether action can be taken for someone deemed the Responsible Person under the FSO and the principle accountable person under this Bill under both pieces of legislation, or whether the intention is for the Building Safety Bill to take precedence in this instance.

Further detail is also sought on whether leaseholders can escalate concerns to the New Homes Ombudsman as well the Building Safety Regulator and the Housing Ombudsman. It is unclear if residents have access to different bodies depending on where they live. It appears residents in high rise residential buildings can have their concerns heard directly by the new regulator, but residents in buildings under 18 metres may need to refer to the Housing Ombudsman.

We trust the attached submission is helpful, we are happy to send any further information the committee may need and welcome the opportunity to discuss these issues and more when we provide verbal evidence on 09 September 2021.

Yours sincerely,

Dan Daly

Head of Protection Unit

National Fire Chiefs Council

September 2021