Building Safety Bill

Written evidence submitted by The Competence Steering Group (BSB51)

Building Safety Bill

About the Competence Steering Group

The Competence Steering Group (CSG) was set up to tackle competence shortcomings identified in the 2018 Hackitt Review Building a Safer Future, published in the wake of the Grenfell Tower fire in June 2017.

More than 300 people have been directly involved with the CSG’s work, drawn from some 150 institutions and associations across the full spectrum of built environment, fire safety and building owner / manager sectors. It is chaired by Graham Watts OBE, Chief Executive of the Construction Industry Council.

It was instigated by the Industry Response Group, a government/ industry group which came together in the aftermath of the fire to tackle the immediate safety issues on similar high rise residential buildings. And although it is industry-led we have worked closed throughout with the formerly the Ministry for Housing Communities and Local Government (MHCLG).

The intention underpinning the CSG’s work has been to set out a system of competence standards that all those in life-safety-critical disciplines working on higher-risk buildings will adopt, as set out in Building a Safer Future. They have been drawn up by a number of working groups, covering disciplines which includes engineers, fire engineers, designers, building standards officers, installers, site supervisors, fire safety enforcement officers, fire risk assessors and project managers.

The CSG’s focus has not solely been on fire safety: we have also considered how to develop skills and competences pertaining to all aspects of life safety related to completed buildings (and potentially across all buildings) in order to raise the bar and drive much-needed and far-reaching culture change.

The CSG is now working closely with the Interim Industry Competence Committee which has been set up by the Health & Safety Executive.

Context to our written submission

In October 2020, the CSG published its second and final report Setting the Bar which set out its recommendations to Government and industry for improving competence in professions and trades where their work is critical.

Alongside, we have drawn up stringent recommendations for continual learning, reassessment and third-party accreditation of those assessing competence. Many of the sector working groups have drawn up their frameworks across all building types and not just those in the higher-risk categories.

We have worked closely with the Department for Levelling Up Housing and Communities (DLUHC) formerly the Ministry for Housing Communities and Local Government (MHCLG) and some of the recommendations we are making in this report have already been acted upon and are set out in the draft Building Safety Bill.

Our submission focuses on areas that we consider missing from the Bill and could undermine changes the Bill is intending to bring about.

General comments

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).

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

Building Safety Regulator (BSR)

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 and infection-resilient environments, are among the many areas covered by the regulations.

Any confusion as to the non-safety role of the regulator and Building Regulations Advisory Committee (BRAC) should be clarified.

Competence

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.

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 third-party certification

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

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.

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.

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 third party accreditation.

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.

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.

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

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.

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.

The Bill links ‘firefighting’ 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.

The Regulator can recommend changing scope and the Secretary of State needs to have a good reason not to take such recommendations forward. DLUHC 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.

Guidance

A further piece of secondary legislation is needed to define the form and content of a safety case report. In its response to the DLUHC (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.

Unintended consequences and emerging issues

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.

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.

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.

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.

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.

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.

The need for independent scrutiny

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.

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.

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.

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. 

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.

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.

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.

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.

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.

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

What industry needs to do

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.

Significant parts of the construction and refurbishment sector depend upon the supply of transient semi-skilled labour to meet work peaks and troughs. For example, a majority of cladding, roofing and dry-lining operatives are categorised as self-employed and/or work through employment businesses.

Such workers may be competent to carry out the manual tasks asked of them, but rarely belong to any organisation long enough to justify the costs of worthwhile training. Currently this semi-skilled, casual 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 training they would need to achieve the Bill’s objectives. It is a cause for concern as, without proactive engagement with relevant stakeholders, the Bill may be being set up to fail if these people cannot be trained

The sector also has a dependency on smaller consultancy and specialist companies who likewise have limited access to training and competency advice. Their areas of interest include important aspects of surrounding reliability and sustainability of construction and occupation. For example, interactions in the supply train, like product testing, specification and procurement, and for occupancy, with risk assessment, quality audits and inspections. Creating options and supportive processes to encourage inclusiveness remains a significant challenge requiring national leadership from government and regulator.

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.

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

Submitted by Denise Chevin, Secretary of the CSG on behalf the CSG.

October 2021