Building Safety Bill

Supplementary written evidence submitted by the Construction Industry Council (BSB35)

Building Safety Bill

About the Construction Industry Council

1. The Construction Industry Council (CIC) is the representative forum for the professional bodies, research organisations and specialist business associations in the construction industry.

2. Established in 1988 with five founder members, CIC now occupies a key role within the UK construction industry providing a single voice for professionals in all sectors of the built environment through its collective membership of circa 500,000 individual professionals and 25,000 firms of construction consultants.

3. The breadth and depth of its membership means that CIC is the only single body able to speak with authority on the diverse issues connected with construction without being constrained by the self-interest of any particular sector of the industry..

Written Evidence

4. Overall, there is much to welcome in the Bill, which creates the framework for a systematic approach. The amendments made to the Draft Bill, published last year, are improvements and we particularly welcome the clarification of scope and the inclusion of care homes and hospitals over 7 storeys (in design and construction phases).

5. The detail of the proposed nine statutory instruments will be crucial and these will need adequate consultation and scrutiny.

Building Safety Regulator (BSR)

6. The two-tier approach to Building Control is confused and fraught with complexity so Parliament should move to one system as soon as practical. Secondary legislation can set standards for higher risk buildings and this level of flexibility would help guard against the unintended consequences of overly prescriptive primary legislation.

7. It should be made clear that the role of the BSR is to cover and enforce all regulations (not just those relating to structure and fire) and all processes. Energy conservation, sustainability, disabled access, drainage, security are among the many areas covered by the regulations. Any confusion as to the non-safety role of the regulator and BRAC should be clarified.

8. The regulator should be required to audit the available Building Control resource to enable effective application and to understand any shortfall relating to staff requirements and training. The job advertisement for the Chief Inspector of Buildings suggested that the regulator would need around 750 staff and this would mean using the already under-resourced pool of Building Control officers. It is essential that the team available to deliver this change is in place and able to perform the duties as required. Registration arrangements must draw in as many Building Control Professionals as possible, regardless of whether they are in public or private sector.

9. The regulator must review the successes and failings of the Building Regulations and Approved Documents and instruct the BRAC Expert Group to deliver options and proposed changes. HSE’s role in leading the government’s Joint Regulators Group (JRG) is critical in supporting the development of close working arrangements between the BSR and local regulators.

10. The Government does not currently believe it to be necessary or beneficial to make property protection a statutory requirement of the BSR. The "Property Protection" vs "Health and Safety" debate is often seen as a binary subject. We believe there is another aspect to property protection aside from the purely commercial aspect and that relates to the impact of the loss of certain buildings (certainly buildings containing multiple homes) on the wellbeing of individuals or communities. Public perception appears to be that property protection should be within the regulator’s scope following a series of complete losses from fire post-Grenfell, which includes the blazes at Beechmere Care Home, Worcester Park and Cribbs Causeway. For the reason given above we also regard that the loss of vital community focused buildings such as schools, care premises and hospitals etc. should be considered in the Building Regulations and if there needs to be an amendment to the primary legislation to achieve this then the BSB could provide that opportunity.

11. There are also implications for sustainability and environmental health. Rebuilding would mean additional resource consumption including increased embodied carbon and construction waste.

12. We note that primary legislation may require amendment to give due regard to property protection but we agree that property protection should be included in scope, alongside the paramount objective of life safety.

Competence

13. Clause 41 gives powers to the BSR and we support the need for enhanced competences. While there is regulation of Principal Designers (PD), Principal Contractors (PC) and Building Safety Managers and direct regulation of the Building Control profession, we note that there is no narrative in relation to regulating Fire and Rescue Services as well as possibly those who work in local authorities (for example Housing Officers) who might be called upon to work with the regulator on HRBs post-Gateway 3.

14. We believe that the Setting the Bar report attempted to address this and that the role of Fire and Rescues Services is equally important in fire safety of both regulated and non-regulated buildings alike. Setting the Bar advocates:

· Mandatory registration

· Centralised register

· Mandated CPD and regular reassessment

· Stringent assessment of individuals through independent 3rd Party Certification

15. We support the BSR developing enhanced competences and developing regulated roles linked to this.

16. Registration will encourage professional improvement and create a structure for professionals but it should not be over-complex. 3 or 4 levels are adequate and more could weaken the resources, limit professional development and polarise training. Excessive numbers of different grades will also cause employers problems as they will be forced to recruit on this basis.

17. In regard to competence, we note that the Building Safety Bill creates powers to prescribe the competence requirements of the PD and PC and to impose duties on the persons appointing them to ensure they have the right competences and organisational capabilities for the work.

18. In practice, clients will look to the organisations undertaking these roles to provide evidence that they have the required individual and organisation competence, which in turn will depend on 3rd party accreditation.

19. Our view is that whilst large contractors are well placed to undertake the role due to their scale, smaller contractors do not have the same resources and will need support in order to meet the requirements of the new regulatory regime. It is important that Government is aware of the potential barriers to undertaking these roles as envisaged by the legislation, and put in place the appropriate measures to support adoption.

20. The standards of the sector-specific competence frameworks must be set sufficiently high enough to drive the increase in competence that the industry requires. The use of a well-established certification/accreditation model (or licencing in the case of Engineering Council) offers a clear route to a robust and meaningful competence regime. To support this, some text could be introduced into the Bill to ensure that the Industry Competence Committee (ICC) operates in a transparent way.

21. Third party oversight has not been included on the face of the Bill. Although it could appear in secondary legislation or statutory guidance we don’t yet know what exactly it will say. We urge government to work with industry to define this as leaving it entirely to the industry to decide what they want is fraught with risk.

Scope of the Bill

22. The scale of change represented by the Bill means that it may be convenient to concentrate attention on buildings in excess of 18m in height, but height is not the only determinant of risk in relation to fire, structural and other life critical safety issues.

23. In due course we would expect to see further categories of building made subject to the enhanced higher risk regime, with the nature of occupancy factored in to scope calculations. A lower height building housing vulnerable people might well pose a greater risk than a six-storey block of flats. As the direction of travel is likely to be one-way only, this will potentially create even more severe challenges to recruit and retain appropriately qualified staff with the skills necessary to fulfil the tasks involved in building control work on high-risk buildings.

24. The Bill links ‘Fire fighting’ to scope, but this is only a small part of a building’s safety risk profile. Where fire safety is relevant, Home Office figures dispute the use of 18m and 11m as criteria for fire risk and provision of sprinklers. This should be fully and independently evaluated in respect of safety and firefighting, supported by up-to-date guidance.

25. The Regulator can recommend changing scope and the Secretary of State needs to have a good reason not to take such recommendations forward. MHCLG has a ‘trigger point’ committee set up and BRAC has suggested that height issue needs looking at. To support this we strongly recommend that the scope of the Bill should be subject to ongoing assessment using appropriate, independently evaluated evidence to determine risk.

26. The two-tier system of compliance with building safety standards could lead to Accountable Persons trying to ‘game’ the system. Solutions suggested by CIC members include introducing an appropriate clause that promotes mediation to address any building safety deficiencies by risk assessment across the entire Accountable Person’s housing stock. HRBs are likely to dominate the assessment’s highest risks and will be prioritised for mediation, but risk assessing the whole property portfolio allows one building safety policy to be applied. This will counter any speculation that that some housing landlords and their refurbishment contractors may use the 18m limit as an excuse not to engage with the building safety reforms.

Guidance

27. A further piece of secondary legislation is needed to define the form and content of a safety case report. In its response to the MHCLG select committee, Government has committed to publish clear guidance and this is needed to set the standard for safety cases and avoid some of the challenges that have been seen with fire risk assessments, whereby a lack of guidance on the contents of fire risk assessment reports leads to wide differences in their quality, relevance and suitability.

Products and testing bodies

28. Government is "seeking voluntary industry measures rather than statutory measures" in the area of testing procedures, testing bodies and independence. The Grenfell Inquiry evidence has exposed multiple problems including bias, falsification, editing, avoidance of failure reporting, mismanagement, misinterpretation and collusion in the system. Government must be proactive in controlling and auditing who verifies, approves and gives certification. Clearly some bodies are not appropriate and there is a desperate need for a recovery of the status of UK testing.

29. In response to the MHCLG select committee, Government stated its intention to publish further details of how it would shape this secondary legislation on key elements of the new regime, including the Gateway process and Construction Products regulations. Further that this advice was to be published before the Bill is scrutinised within parliament. It is unclear how this can happen, as much of the construction products provisions will be derived from the current Government sponsored independent review on product testing and certification, being conducted by Mr Paul Morrell. We have supported this review and the latest information is that Mr Morrell will report in the autumn so the Bill text is being reviewed before we know how this secondary legislation will be framed. On this issue it is hoped that the Secretary of State can exercise his power to make future regulation responsibly.

30. The Government response to the MHCLG select committee implied future secondary legislation covering non-voluntary testing and factory production control systems would be in place for safety critical products. Mandatory Third Party Certification of products would be hugely beneficial here and could help deliver the required increase in product confidence if it is associated with a high level of Attestation and Verification of Constancy of Performance.

31. The marking required for construction products is set to change from CE Marking (under the Construction Products Regulations) to UKCA marking. At the moment, however, there is no statutory instrument to implement this. The delay in replacing the CE mark has been welcomed but ultimately the lack of clarity is causing the UK Construction Product Industry a great deal of uncertainty.

Unintended consequences and emerging issues

32. Unintended consequences of the legislation are a major concern. One in particular is that the two-track approach focussed on just residential HRBs will drive many professionals away from this sector leading to a skills shortage, particularly with the liabilities and lack of available and affordable Professional Indemnity Insurance (PII). Government intervention in training and PII may be necessary to avoid market failure in this area.

33. There are concerns that the Accountable Person and Building Safety Manager role will be sufficiently onerous to prevent PI insurance cover and the general appointment of sufficiently competent people. Resourcing this in people and financial terms will be challenging. Without these links to the management of fire safety the proposed system will not function. Currently most PII policies for building design professionals are subject to broad fire safety exclusions. In order to create a reasonable market appetite for the insurance of the Principal Designer duty holder, the duties need to be qualified as to be carried out "so far as reasonably practicable."

34. Regarding Clause 139, there is a proposal for a reviewer of the performance of the Bill (report to be published after 5 years). This should be created at inception to follow the development and provide annual interim, independent reports to guide Government, the BSR and the public on this essential development in building legislation.

35. The burden of this increased regulation is of concern should it fall on ordinary leaseholders via the Building Safety Charge. The increase in administration by managing agents will be passed on to leaseholders with increased service charges.

36. The burden of paying for remediation of poorly constructed and dangerous buildings has not been addressed and will continue to plague the public, industry and the Government. The revision to the Defective Premises and Limitation Acts proposed in the Building Safety Bill - to establish a 15 year limitation period – may bring serious unintended consequences. Some CIC members feel that it is unlikely to help homeowners recoup compensation for substandard cladding and fire safety related work. The businesses that may have contributed to the substandard work are at this stage unlikely to have on-going insurance for external wall and fire related claims and they are also unlikely to have significant financial assets. The proposed 15-year limitation period may in fact further cool the insurance market and make it even more difficult for the new duty holders to get appropriate cover. As a broader point it is common for some in the construction industry to seek to avoid legal liability and personal accountability for remediation issues by working through phoenix companies, transient businesses and those going out of business overnight need to be specifically addressed within the new rules.

37. On a similar note, Government has not committed to the MHCLG Select Committee recommendation regarding the costs of repairs to existing buildings. Increasing the timescale for legal cases may not have the effect of delivering remediation of problem buildings. The legal cases will be too complex, and no doubt there will be cases where the main contractor is no longer trading. This is preventing the whole construction industry from moving on, and standards being improved.

38. There are concerns over the burden of the Residential Property Developer Tax on the Build-To-Rent sector, thereby decreasing the availability of increased rental properties.

39. We still have a concern that the provisions of the Building Safety Bill, and the provisions of the Regulatory Reform (Fire Safety) Order place are overlapping, but without any coordination between them. This complexity will lead to confusion and error in implementation. The system needs to be simplified, to prevent confusion between responsible persons and accountable persons.

40. There is little connection with the Fire Safety Act and ongoing control of fire safety, which comes under the Home Office. Safety cases and Fire Risk Assessments (FRAs) must be better mandated and verified. The Fire Service, local authorities, and the BSR must have a stronger policing role over all buildings.

41. Greater clarity on the need for a single Principal Designer (PD) appointment across both CDM and Building Regulations regimes would avoid confusion and ensure proper co-ordination of building safety activity.

42. Due to the nature of Design & Build contracts, which comprise the majority of building contracts, the Contractor ends up being responsible for the design. It is vital that the roles of PD and Principal Contractor (PC) are kept separate and independent. Clarity is needed around how this can work in practice as the PD is likely to be one of the disciplines ,such as architect, structural engineer or mechanical and electrical services engineer, novated to the main contractor and hence they would be under contract to the contractor, potentially compromising their independence.

43. Where the Bill uses the word "ensure", that is not currently insurable in Professional Indemnity Insurance policies so no professionals would be able to take up the role of PD, thus making the Act inoperable and hence bringing a substantial proportion of the construction industry to a halt.

44. The regulations should be aligned as much as is practical between England and Wales. At the moment, the HSE has responsibility in England, yet Building control/Fire are responsible in Wales.

45. It is essential that the new regulatory regime for higher risk buildings includes a requirement for a Principal Designer to be appointed prior to Gateway 1 (planning) and to be actively engaged in the assembly of the Gateway 1 application.

46. Registration of buildings and the national public access database of fire safety information as the Golden Thread - as part of the Gateways - must be delivered as soon as possible. To be effective it will need audits, verification and reviews as to accuracy of information. This should also be provided on many more buildings than just residential ones.

What industry needs to do

47. The scope of the proposed competence framework is limited, covering senior management to site manager levels. It presumes that site managers can effectively implement and enforce the higher building safety standards on their sites to the extent that the Bill and the BSR require. This may be the case but it relies on well-managed construction sites where the personnel are all directly employed by responsible firms that invest in the necessary training.

48. The construction and refurbishment sector depends upon the supply of transient semi-skilled labour to meet work peaks and troughs. Such workers can competently carry out the manual tasks asked of them, but rarely belong to any organisation long enough to justify the costs of worthwhile training. The Construction Statistics 2019 indicate that 96% of the 290,374 registered construction firms employ less than 14 people. 92% of all firms employ so few people they do not even have to legally maintain written H&S policies. Currently this semi-skilled workforce has no reason or perceived need to improve their understanding of building safety standards. Arguably they may not possess the aptitude to benefit from the expensive training they would need to achieve the Bill’s objectives. It is a cause for concern as the Bill may be being set up to fail if these people cannot be trained.

49. The HSE is well acquainted with this problem of H&S compliance. Millions of pounds go into H&S education each year and yet it struggles to convince this transient workforce to exercise higher standards of safe-working to protect their welfare, health and continuing safety. As such, it will be difficult for the BSR to convince them to exercise a higher standard of building safety compliance so as to protect themselves and others. The introduction of enforced compliance with building standards will be resisted by this group of workers, if for no other reason than it will impede their ability to continuing operating at a profit margin they can survive with. Compliance, training, and third-party accreditations all come with a high overhead that many of these workers cannot afford. This is a self-perpetuating cycle that will undermine the effectiveness of the Bill’s aims to drive up building safety standards in the UK’s construction workforce.

50. The requirements under the amended CDM 2015 regulation are meant to ensure competence of designers and contractors. But these need to be enforced by HSE and industry and government need to ensure that these are aligned with better apprenticeship and formal training provision (including funding). This is likely to have the desired effect of driving small businesses to improve competence standards.

51. The BSR (via the HSE and working in conjunction with industry) should develop and sponsor an independent Government approved knowledge base website, where detailed and reliable educational material is published on how to do basic construction tasks correctly. Professional bodies and manufacturers would be keen to support such an enhanced programme of freely accessible, vetted guidance material pitched at the correct, non-academic level to engage with a large pool of semi-skilled workers. This could have a format and legal status similar to Approved Codes of Practice (ACOPs) to motivate compliance and could help negate videos promoting unsafe practices and commercial bias when manufacturers make flawed claims about the efficacy and application of their products.

The need for Independent scrutiny

52. With reference specifically to The Building (Appointment of Persons, Industry Competence and Dutyholders) (England) Regulations [2021], there is an omission to recognise the duty of those involved to see that there is adequate independent scrutiny of the construction.

53. Under the current regulatory regime it is rare for building projects to incorporate independent scrutiny.  This saving in capital cost has worsened safety, quality and waste. Young architects, engineers and other professionals do not get out onto site as frequently as their predecessors, affecting their ability to supervise the correct interpretation of their designs.  The workforce is so used to doing things without independent scrutiny and some have difficulty recognising errors in the construction.  The overarching aspiration on site is to meet programme requirements to avoid contractual penalty clauses.  Too often, correct interpretation of the design takes second place.

54. If proper independent scrutiny had been present during construction then many of the problems that have hit the building industry over the last few years could have been avoided.  For example the Edinburgh Schools issues and many of the current problems with clad high rise buildings where EWS1 surveys routinely report workmanship errors.

55. After discussions with ISSG, the Competence Steering Group Working Group 9 (WG9) has developed a proposal for the implementation of standardised independent scrutiny in building construction. 

56. Reasonable independent scrutiny should be defined in a PAS.  It would be carried out by the design team, product manufacturers and inspectors such as clerks of works, with some of them using technology such as CCTV or geo-located body cameras.  The PAS would provide guidance on what scrutineers need to do to provide an acceptable level of scrutiny.  To avoid too great a shock to the industry, the PAS would cover a proportionate range of areas of construction that required independent scrutiny, in particular aspects upon which life-safety depended.  The scope would be expanded over time to encompass more elements.  The PAS would be developed ultimately to become a British Standard.

57. Currently there is no such standard. The provision of independent scrutiny is resisted because there is no benchmark that can be used to tell whether the extent of scrutiny is reasonable or whether a scrutineer has acted reasonably.  That is why professional indemnity insurance is seen as such a difficult matter for PDs.  With a new standard there would be an objective measure against which scrutiny could be measured.

58. At the outset of a project the design team would refer to the PAS to develop a "scrutiny plan" for the project, setting out what each scrutineer had to do.  During the project they would complete their scrutineering activities, reporting each time to the PD and PC.

59. Just prior to hand over the PD and PC would have a record of the scrutiny completed that would match that planned.  The PD and PC would be acting reasonably if they were then to acknowledge that a reasonable level of independent scrutiny had been exercised on the project and that reports from scrutineers gave them no reason to consider that the construction fell short of the design.  If the design complied with the building regulations then it follows that they would also have no reason to consider that the construction fell short of the requirements of the building regulations.

60. In summary, all duty holders should have a duty to see that reasonable independent scrutiny is exercised during the construction of buildings. We feel that this type of approach is both practical and deliverable. An example is Scottish Government plans for a compliance plan manager (registered for HRB but implied in law for non HRB) responsible for putting in place compliance plan including inspection standards.

61. Such an initiative could be the single most powerful change that could be made to get our industry on track.

The CIC would be delighted to expand on any of the issues we have raised in this submission.

Annex A: Members of the Construction Industry Council

ACAI Association of Consultant Approved Inspectors

ACE Association for Consultancy and Engineering

APM Association for Project Management

APS Association for Project Safety

ASFP Association for Specialist Fire Protection

BAFE British Approvals for Fire Equipment

BCS Chartered Institute for IT

BIID British Institute of Interior Design

BRE Building Research Establishment

BSRIA Building Services Research and Information Association

CABE Chartered Association of Building Engineers

CIAT Chartered Institute of Architectural Technologists

CIBSE Chartered Institution of Building Services Engineers

CIOB Chartered Institute of Building

CIHT Chartered Institution of Highways & Transportation

CIPHE Chartered Institute of Plumbing and Heating Engineering

CIPS Chartered Institute of Procurement & Supply

CIRIA Construction Industry Research and Information Association

GF Ground Forum

ICES Chartered Institution of Civil Engineering Surveyors

ICWCI Institute of Clerks of Works and Construction Inspectorate

​IET-BES Institution of Engineering and Technology - Built Environment Sector

IFE Institution of Fire Engineers

IIRSM International Institute of Risk and Safety Management

ISSE Institute of Specialist Surveyors and Engineers

IStructE Institution of Structural Engineers

IWFM Institute of Workplace and Facilities Management

LABC Local Authorities Building Control

LI Landscape Institute

NHBC National House-Building Council

RIBA Royal Institute of British Architects

RICS Royal Institution of Chartered Surveyors

RTPI Royal Town Planning Institute

SAFed The Safety Assessment Federation

September 2021