Building Safety Bill

Written evidence submitted by the Building Safety Alliance (BSB46)

Written submission to Building Safety Bill Committee

Concerns around the effectiveness of the Building Safety Manager Role as proposed

We welcome the opportunity to feed into the democratic process guiding the Building Safety Bill towards its enactment. The Building Safety Alliance is a stakeholder group from the occupation phase, with participating members and experts coming from the social housing sector, commercial and residential management, facilities managers, fire safety experts, and most importantly, it includes the resident voice (see appendix). Originating in the work and membership of Working Group 8 (WG8) [1] , the group who was charged with developing the competence requirements for the Building Safety Manager (BSM), its members are keen to drive culture change and competence throughout the occupation phase to give residents safe homes.

WG8 delivered its draft competence framework in June 2020 (WG8’s final report was published as an annex to Competence Steering Group’s report ‘Setting the Bar’ in October 2020) and it forms the basis for PAS 8673 [2] which will deliver the competence specification for the BSM. This PAS 8673 is being developed by the BSI and sponsored by the Ministry for Housing, Communities and Local Government (MHCLG – now the Department for Levelling Up, Housing and Communities, DLUHC). PAS 8673 is expected to be referenced by the statutory guidance mentioned in clause 117 in the Building Safety Bill.

Creating confidence in the competence of the BSM

The Draft Building Safety Bill facilitates the function of the BSM to be delivered by either a competent individual, or an appropriate and capable organisation. The latter can only deliver the function if they have a competent nominated individual.

While the competence framework for individuals is now being developed by the BSI (PAS 8673) there is no body readily available to assess these individuals (both individual BSM and nominated individuals) putting themselves forward to be a competent BSM.

The Housing Select Committee in their report Pre-legislative scrutiny of the Building Safety Bill [3] , recommended "that the Government provide, either in legislation or in statutory guidance, for a national system of accreditation to agreed common standards and for a central register of building safety managers. Given how critical building safety managers will be to the new building safety regime, we do not see how that regime can succeed other than by requiring prospective building safety managers to demonstrate competence. A robust system of accreditation and registration will give accountable persons and residents confidence in the competence of those appointed to the role and make more likely a genuinely robust system of building safety."

The Regulator and MHCLG/DLUHC, have been explicit in advising that the Regulator will not hold a register of competent BSMs (other than an internal Regulator’s register of those who have been appointed to a specific building). As WG8 members have been of the same opinion on the benefits and need of a robust system of certification and registration as the Housing Select Committee, they moved to seek a broader alliance – the Building Safety Alliance – to provide this assessment and certification process, and to take ownership, and responsibility for the governance thereof, of a national register of certificated individuals.

Along with the Housing Select Committee, the Building Safety Alliance sees the value of such a recognised single Register for the benefit of all stakeholders, including residents wishing to review the competence of their BSM, the Regulator, and owners of the property (Accountable Persons) looking to recruit appropriately competent individuals, and/or organisations.

Concerns

1. Building Safety Charge and impacts on the delivery of holistic whole building safety and scope of BSM competence

The Bill includes a Building Safety Charge which will allow the Accountable person to recover costs incurred in relation to building safety measures taken under the Building Safety Bill.

One of the main conclusions from Dame Judith’s report, was that there is a lack of competence to deliver holistic building safety for all parts of a building, hence the creation of the statutory role of a competent BSM. This BSM will be appointed by the Accountable Person and their duties to help the Accountable Person meet their own duties, will be set out in a contract.

To deliver holistic building safety, the BSM will be informed by several separate legislative regimes; the Building Safety Act, the Regulatory Reform (Fire Safety) Order 2005, the Health and Safety at Work Act, the Housing Act 2004, etc. They may be contracted to deliver against all these regimes, or they may be contracted to deliver solely against the measures and activities that will be covered by the building safety charge.

We are seriously concerned that the building safety charge will drive a splitting-out of the delivery of fire and structural safety, to ensure that any costs associated with the delivery of the role, can be recovered properly and appropriately. After all, only applicable costs (as recommended below) will be able to be recovered through the Building Safety Charge. If the Building Safety Charge is to facilitate holistic building safety and approaching buildings as whole systems, as per Dame Judith Hackitt’s report in paragraph 3.3 [4] , it will need to be revisited, with an option to take it out completely.

In practice it would be hard however to manage the duties of the Building Safety Bill in isolation to other areas of built environment compliance, unless you deliver through two distinct sets of people and more than one management system. To have two systems to manage risk actions, planned preventative maintenance and inspections, contractors etc., noting that these systems will need also to form part of the management system within the golden thread and therefore need to be digital, will clearly be significantly more expensive than having one set of people and one system to manage all compliance. We have also noted concerns from residents that the splitting out of the costs will mean they are charged more for a service that should already be covered by the existing service charge.

Nevertheless, if you do try and managing the building using one system, someone will need to accurately proportion what part of each person’s time and each system is attributable to either the Building Safety Charge or the existing Service Charge.

Recommendations: The management problems caused by the Building Safety Charge could be resolved by:

· Issuing statutory guidance on what precisely is understood to be included under ‘relevant building safety measures’ to fulfil the requirements under clause 83 & 84 of the Bill. A greater level of ‘prescription’ of what is and is not to be charged to the Building Safety Charge to properly deliver whole systems safety is needed. This can be discussed and agreed between the Regulator, industry and resident representation, quite quickly, and then the prescribed list can be adopted as statutory guidance. This information could then also be included in industry adopted existing Service Charge Codes, this would help increase clarity on what falls under the building safety charge and what falls under the existing Service Charge. Clear provision for such statutory guidance should be made at this stage.

· An alternative would be to dispose of the Building Safety Charge altogether, and to continue to charge fire safety and structural safety relates costs under the Service Charge. Greater transparency could then be provided in the single mechanism of the Service Charge.

· The guidance recommended above, on what measures are chargeable, should also be cross-referenced against the Golden Thread so that related and pertinent minimum information/data will always be present in the Golden Thread.

These changes would also provide residents with greater transparency about the charges put towards them.

Why is this important to raise this at this stage? Holistic BSM competence is needed to deliver safe homes

This concern around the building safety charge and what costs are recoverable needs addressing at this legislative stage, as it is interfering with the scope of the PAS 8673 – the framework for competence of BSMs. This PAS competence framework not only needs to deliver competent BSMs to deliver against the Bills statutory duties, it also needs to be able to deliver the competent BSMs needed before the Bill needs to be implemented. There is little time to put the framework in place, upskill people where needed and then certify and include them on the register.

If keeping the building safety charge as a recovery of strict fire and structural safety related costs, then we anticipate reluctance from certain parts of the industry to pay for upskilling for a PAS that would deliver the needed holistic competences. The reluctance stems from the fact that once the BSM is employed, they would only be focusing on the strictest interpretation of fire and structural safety, and therefore would only deliver building safety measures that will be easy to recover, rather than a more holistic approach providing the necessary focus on those matters that should be taken to deliver safe homes for residents. A wider scope of measures would not be recoverable under the Building Safety Charge.

There is great consensus that to be able to deliver the BSM role, holistic competences are needed, as outlined in WG8’s report. Those holistic competences all need including in the PAS, this will assure the drive for uptake of holistic competences and therefore the outcome of holistic, whole systems building safety – and safe homes for people - is more likely to be achieved.

Recommendation:

· That the forthcoming statutory instruments/guidance explicitly require that all individuals delivering the function of a BSM, including nominated individuals within organisations delivering management of the BSM function, be assessed & certified against PAS 8673, which must deliver an holistic approach of building safety management competence so that BSMs can support Accountable People with their Building Safety Duties

2. Single National Register

Without a single, robust, independent organisation delivering assessment and validation of the competence of individuals, and holding a Register of these individuals and organisations, past experience dictates the emergence of a plethora of ‘assessment’ organisations. Such plethora is likely to lead to commercial realities encouraging a race to the bottom. Rather than driving competence, the lack of a single assessment and registration process (unlike that for the architect’s profession) is likely to prohibit an upward competence drive.

It is not envisaged that there will be a large cohort of either individuals or organisations being required as BSMs, (we are working with an assumption of approximately 1000 individuals including those appointed within organisations). This means that the commercial reality of such a small ‘market’ could lead to lax oversight of assessments undertaken, fragmentation of the assessment process and ultimately the delivery of a variety of competence levels, with many not meeting the required national standard.

A stronger and emphatic link is needed between the Regulator and the competence requirements against the forthcoming PAS 8673. In addition - to drive competence - the Regulator should be able to point towards organisations that can deliver robust governance for the certification process and the holding of a register. We advocate a single register to make sure there is clarity for residents, Accountable Persons and any other interested party. Indeed, the knowledge that such a single register exists should go a long way to stopping people from claiming competence they do not possess. If an appropriate registration and certification body is not explicitly acknowledged, encouraged and supported by the Regulator and policy makers, the delivery of competent cohorts of BSMs genuinely meeting the national competence requirements may not happen as envisaged.

Recommendation:

· That the forthcoming statutory instruments/guidance explicitly require that all individuals delivering the function of a BSM, including nominated individuals within organisations delivering management of the BSM function, be assessed & certified against PAS 8673; and

· That if the applicant is successful, their name should be placed on a single National Register.

3. Capacity of individual BSMs and nominated individuals to manage multiple buildings

Dame Judith Hackitt’s Report [5] outlined the BSM role as a competent individual (the BSM) to be responsible for the day-to-day management of the building and act as a point of contact for residents. To deliver this, the BSM must therefore understand, in depth, the intricacies related to the risk management of that building. As the Bill is currently written, an organisation can appoint a nominated individual as the person responsible to manage the function of the BSM role for that organisation. An organisation may be responsible for hundreds of higher-risk buildings.

We agree with the proposals that there should not be a specific ratio of competent individual BSMs or nominated individuals to the number of buildings for which they are responsible (there are too many variables to effectively legislate for this). We are advised that the potential ‘ratio’ of buildings to competent BSM/nominated individuals will be considered by the Regulator during the process of awarding a Building Assessment Certificate. We advocate that this requirement for the Regulator to consider the BSM to building ratio is enshrined in legislation –clause 75 or 76 would be a suitable home for that purpose.

Recommendation:

· That consideration of how many buildings each individual BSM/nominated individual can be responsible for becomes an explicit consideration for the Regulator when considering applications for Building Assessment Certificates. Such consideration can be included in clause 75 or 76.

· This consideration will need to consider matters such as occupant demography, and the attendant risk and vulnerability risk, as well as requirements for Personal Emergency Evacuation Plans (PEEPs), height and the attendant systemic building safety risk profile.

4. The Golden Thread

The Golden Thread is a crucial component of the forthcoming regime. It will be held digitally. We would suggest that there are many organisations in the ‘Occupied’ residential sector that do not, currently, have the data management & information creation skills that are commonplace within the ‘construction’ sector. BIM is not yet a universally well understood or deployed practice in the ‘occupied’ sector. We also recognise that the occupied sector deploy a wide range of data management tools to effectively manage the properties for which they are responsible. It would be unusual to find an organisation within the occupied sector that already has a fully integrated data management system. As a result, digital information relevant to the Golden Thread/Safety Case will be held on several systems within each organisation.

It is critical to the concept of the Golden Thread that data is easily transferable between organisations, and therefore their systems. We understand that recommendations and signposting through forthcoming guidance will provide suggestions to ‘labelling’ the data using ‘common data structures’. We agree with the Regulator who is loath to prescribe too much as this would lead to checklist management. We are however concerned that there will be no ‘prescription’ of labelling of such critical information as may be anticipated for example, for the ‘Fire & Emergency File’. A total lack of labelling or prescribed data will lead to a confusion of data structures, it will create associated costs in moving data from one system to another, and the Regulator (including the Fire & Rescue Services) and all other stakeholders are likely to have difficulty in locating the information they will need from time to time.

While the aim to move to digital and well-maintained information systems is right, there are still many challenges relating to both capacity and competence in implementing for example building information modelling (BIM). A degree of realism will need to be applied as to the time needed for implementing such digital systems. Forthcoming guidance should be clear about both the ambition for fully digital and well-maintained systems, but that for now, the Golden Thread can be held on any system. This underscores the importance of prescribing elements of the information to facilitate finding and transferring data between and to others.

Recommendation:

· That prescriptive requirements in regard to the digital data requirements of the Fire & Emergency File including a prescribed data structure (labelling) are included in secondary legislation or statutory guidance. A degree of prescription for outputs, not methodology, would allow that enquires made of a property, for example, in southern England could also be made in all the other regions, delivering the same data. This too will facilitate data analysis on a national scale should research be required – which it commonly is.

5. Concern for ‘Lay’ Directors of Companies run by unpaid Directors (RTM/RMC/Commonhold etc)

There is significant concern that those potentially ‘lay’, resident, senior directors of such organisations as RTM (Right to Manage), RMC (Resident Management Companies) or those leading ‘Commonhold’ entities will be unwilling, or unable, to take up the role of the Accountable Person, either as individuals or as organisations themselves as they are unlikely to have the specific Health & Safety knowledge and the risk appetite to do. Why would well-meaning lay individuals want to carry out a role, when the consequences of an error could potentially lead to a prison sentence or a significant fine? How would they insure themselves?

The employment of external directors is not a given for these models. Legal restrictions are in place and some RMC/RTM Articles and even leases can stipulate that you must be an owner to be on the board. 

Recommendation:

· That the law be amended to allow RMC/RTMs to hire professional directors, the latter to act as the Accountable Person, instruct managing agents and BSMs alike and charge their time to the Service Charge. This should then also allow for lay board members to also be protected from corporate liability.

 

6. Concerns regarding insurance matters.

The Building Safety Alliance engages regularly with the Insurance sector. There is ongoing concern over the capacity and/or willingness to offer suitable (by way of price and cover) insurance to both individuals and organisations looking to deliver the function of BSM.

The main concerns relate to the provision of cover for professional indemnity insurance, and that for directors and officers of the organisations.

Recommendation:

· Government should engage with the insurance industry to ensure there is sufficient market understanding of the role, responsibilities and liabilities. Greater understanding would lead to greater appetite to offer the insurance cover that BSMs require.

· Greater clarity over the BSM competence requirements and the explicit inclusion in statutory guidance for third party validated assessment and certification against PAS 8673, and consequent inclusion on a single National Register, would give the insurance industry greater confidence that the role is indeed delivered by competent people. In turn, this would make the risk profile for the role more palatable, and therefore facilitate a reasonable and proportionate level of cover and associated cost of premium.

Note on submission status

This written submission is made by the Building Safety Alliance reflecting the views of those representatives of the Stakeholder group who have attended meetings and have responded to consultation of the draft of this document. It does not necessarily reflect the full views/position of the respective individual organisations listed, nor is it a submission on behalf of any the organisations/supporters listed.

Attached as appendix:

1 Page briefing note introduction to the Building Safety Alliance

List of current Building Safety Alliance Stakeholder Supporters

THE BUILDING SAFETY ALLIANCE

A Central Register and Certification

Scheme for Building Safety Managers

Briefing October 2021

Introduction

The Building Safety Alliance is a stakeholder group from the occupation phase, with participating members and experts coming from the social housing sector, commercial and residential management, facilities managers, fire safety experts, and most importantly, it includes the resident voice. Members are keen to drive culture change and competence throughout the occupation phase to give residents safe homes. We aim to do this through building on the recommendations of Working Group 8 (WG8) [1] .

Initially led by its inclusive Stakeholder Council, it will provide resident and Regulator confidence in its provision by seeking third party accreditation to assure appropriate governance, transparency, complaints process, appeals process, and sanctions.

The Building Safety Alliance, an independent ‘not for profit’ organisation will deliver two functions:

1. The certification of individual BSMs or Nominated Individuals within the BSM (organisation); and

2. A publicly accessible register of those certified by the scheme.

Purpose

While the Building Safety Regulator will maintain a register of Assured Buildings, Accountable Persons and appointed BSMs, there is no plan to have a register for those BSM available but not yet appointed. We want to make sure Accountable Persons can find the right, competent people who have validated that they can deliver building safety to the nationally agreed standard, with the right behaviours so that residents can be safe in their homes and further tragedy can be prevented.

Benefits of central register and single end point assessment for certification

· Greater assurance for residents, B uilding S afety R egulator and A ccountable P erson .

· Simplifying the process, reduce bureaucracy and more cost effective .

· ‘Single source’ of assured excellence .

· Dynamic source of information on competent people.

· Clarity on single competence standard and single assessment benchmark .

The challenges – delivering assurance to residents in an affordable manner

· Assurance to residents that individual BSMs and nominated individuals within BSM organisations must demonstrate meeting the PAS requirements through participation in a third-party accredited scheme.

· Issues with Personal Indemnity Insurance will continue without clear validation of competence.

· Assurance that the nominated individual within the BSM organisation and the individual Accountable Person must be listed on the Building Assurance Certificate.

· Collaboration with the Building Safety Regulator to ensure that the Alliance certification, based on the PAS assessment will be seen as having met the Core Criteria, meaning Accountable Persons should then not require any further evidence relating to the BSM competence at Building Assurance Certification stage.

· Seed money for the Building Safety Alliance to set up the scheme, including through grants and/or loans.

List of stakeholders/supporters

Association for Project Safety

Association of Residential Managing Agents

BAFE- British Approvals for Fire Equipment

British Insurance Brokers' Association

British Property Federation

Building Engineering Services Association

Building Research Establishment Ltd

CMDi

Chartered Association of Building Engineers

Chartered Institute of Building

Chartered Institution of Building Services Engineers

Citizen Housing

Construction Industry Council

Derwent London

Direct Works

Federation Of Private Residents Associations

Fire Protection Association

First Port

Griffiths & Armour

Helix International - Ark Workplace

Institute of Fire Safety Managers

Institute of Residential Property Management 

Institute of Workplace and Facilities Management

International Institute of Risk and Safety Management

Knight Frank Promise

London Borough of Camden

National Federation of ALMOS

National Fire Chiefs Council

National Housing Federation

National Social Housing Fire Strategy Group

Property Management Legal Services Limited

Property Manager’s Health and Safety Forum

Resolve Risk Ltd

Stroma Group

Tetra Consulting

UK Apartment Association

WG1 - Engineering Council

October 2021