Building Safety Bill

Written evidence submitted by the Chartered Institute of Building (CIOB) (BSB54)

Evidence for the House of Commons Public Bill Committee on the Building Safety Bill

Summary

1. The Chartered Institute of Building (CIOB) is the world’s largest and most influential professional body for construction management and leadership. We have a Royal Charter to promote the science and practice of building and construction for the benefit of society, and we have been doing this since 1834.

2. Our members work worldwide in the development, conservation, and improvement of the built environment. We accredit university degrees, educational courses, and training. Our professional and vocational qualifications are a mark of the highest levels of competence and professionalism, providing assurance to clients and authorities who procure built assets. 

3. We welcomed Dame Judith Hackitt’s Building a Safer Future report and were supportive of its 53 recommendations to establish a new regulatory framework and achieve a culture change to create and maintain safe buildings. We have been active in driving building safety reform, participating in the Industry Safety Steering Group, the Competency Steering Group and through several British Standard Institution (BSI) committees that are developing new standards to prepare for the implementation of the Building Safety Bill. 

4. Overall, we are satisfied that the Building Safety Bill (BSB) follows through on the key recommendations made in the Building a Safer Future report, particularly those calling for a new and more rigorous regulatory framework and a series of robust gateway points to strengthen regulatory oversight.

5. However, there are still some concerns that remain regarding the Bill in its current form. It is important to ensure that, when passed into law, the BSB can coexist with current and upcoming legislation. Specifically, the Planning Bill which was introduced during the Queen’s Speech on 11 May 2021. We are concerned that design standards through the proposed local design code may counteract building safety measures outlined in the BSB and through the National Model Design Code. Additionally, issues may arise through the proposed streamlining of the planning process and how it may be in opposition to the greater checks and balances that are being proposed in the BSB at the gateway stages. Greater clarity on how the two pieces of legislation will work together is necessary prior to the Bill’s passage.

6. We are also concerned with the lack of clarity provided on the new competencies that will be required in the Bill as there will be a knock-on effect in the industry given the requirements for a number of new key roles set out in the Bill. To prepare for the new competencies, CIOB has been working on several new qualifications to sit alongside our existing training offers.

7. Further details on the various qualifications and training courses offered by CIOB in relation to the BSB are detailed in this evidence. We would be delighted to work alongside committee members in informing the industry of available courses to prepare for the necessary upskilling that will be required as a result of the Bill.

8. We understand that the BSB is a framework that the Government intends to build on through secondary legislation. However, there are still many aspects of the Bill that are not clear to the industry and require further detail to be able to be adopted as regular practice. We welcome all aspects of the Bill as a way to improve the standard of the built environment and encourage Government to engage and communicate with industry bodies to enable them to clearly communicate complex aspects of the Bill to members and the wider sector. This will help encourage the cultural shift that was highlighted in Dame Judith Hackitt’s Independent Review.

Intentions and scope of the Bill

9. We remain satisfied that the BSB follows through on the key recommendations made in the Building a Safer Future report, particularly those calling for a new and more rigorous regulatory framework and a series of robust gateway points to strengthen regulatory oversight. [1]

10. We believe that the Bill sets out a compelling vision for the future of the industry. However, the devil will be in the detail and the success of the new regime is heavily dependent on how the new Building Safety Regulator is constituted and how it operates.

11. We agree with the Government in its assertion that the rate of fire risk is considerably higher in buildings over 18m/six storeys than in high-rise residential blocks of any height (respectively, 43 fires/9 fires per 1,000 buildings) and that evacuation plans are inevitably more challenging the higher the building. We also feel that it is important to remember that the Bill applies to all new and existing buildings as well which we feel is a necessary inclusion. However, we believe that the definition of higher risk residential building (HRRB) in its current form is too limited in scope, although we appreciate that the Government widened the scope of the design, construction and refurbishment elements of the regime to include care homes and hospitals which are 18 metres or more in height or have at least seven storeys.

12. While we support a risk-based approach to the implementation of the new building safety regime, we also acknowledge the practical difficulties that will come with implementation. We understand the decision that starts at the narrower definitions, but which is capable of being extended regularly through revisions to secondary legislation, after suitable reviews, to bring a much wider range of buildings into scope of the enhanced regulatory regime; notably schools and all other buildings in which vulnerable people will sleep.

13. Within scope HRRBs making a small percentage of construction industry output, it could be difficult to generate the wholesale, industry wide, cultural change that the Government is purported to be seeking. Consequently, there is a concern that in the current climate, developer, and construction supply/demand economics, will drive a very concisely defined improvement pertaining solely to building in scope and potentially ignoring the wider sector. We would therefore support an incremental increase in scope over the long term to aid the wider cultural changes sought.

14. Alongside this, ensuring that the scope of ‘high risk buildings’ is adaptable will allow the Bill to align with the guidance for the provision of sprinkler systems as seen in the Government’s Fire Safety: Approved Document B (ADB). The approved ADB sets regulations for buildings with a floor above 11 metres as a starting point which is then able to be amended according to industry trends. The wording of the Bill should be flexible to create a pathway for step changes to be made to bring all buildings under its scope over an extended period.

15. To address these concerns, we recommend the publication of an implementation programme indicating the milestones for additional buildings to be brought into scope and by when.

16. Further clarity is also needed on whether certain use classes that are defined as ‘in scope’ will be subject to all aspects of the Bill. In the supporting documentation, hospitals and care homes that meet the height requirements will be classified as higher-risk building for their design, construction and refurbishment stages but will not be subject to the in-occupation obligations under the Bill. We encourage Government to provide details on why this distinction has been made for hospitals and care homes as these are buildings where vulnerable people stay overnight.

17. Importantly the Bill aligns with the intention to create a greater sense of management and safety through the built environment. It correctly places the responsibility for maintaining and raising awareness of building safety with the industry who will be able to drive forward this step change. This also provides an opportunity for the scope of the Bill to be extended further down the line as the industry will have the correct apparatus in place to ensure all buildings regardless of height comply with the strictest safety standards. We welcome this flexibility, to ensure the Bill can be regularly monitored and improved, ensuring there is cohesion across Government policy and so that it does not conflict with existing fire safety legislation especially in the creation of new roles.

18. Although not directly related to the wording of the BSB itself, there are perceptions that many of the regulations in the Bill only apply to HRRBs as opposed to all buildings. This lack of understanding and willingness to engage early in the process could inhibit the cultural shift, identified in the Hackitt Review for a large section of industry. We encourage Government to release further detail on the draft timeline for implementing the primary and secondary legislation. This will enable industry to anticipate the need for new roles as well as understand whether the provisions made in the BSB will go far enough to address industry standards.

Design and Construction

19. The Housing, Communities and Local Government Committee in its pre-legislative scrutiny of the BSB rightly highlighted the Construction Industry Council’s (CIC), point that the dutyholder roles the new regulatory regime are the same as those identified in the Construction (Design and Management) Regulations (CDM) 2015, however the responsibilities identified for each role are significantly different. [2] The requirements for the proposed principal designer and principal contractor roles under the draft BSB require different competences and skills to those required under CDM and the doubling-up of these dutyholder responsibilities will require careful consideration.

20. The CIC pre-legislative scrutiny [3] recommended ‘that the Government work with the industry to identify and any potential confusion, including, if necessary, by redefining the role of principal designer intended under the proposed new dutyholder regime…and the role be defined in secondary legislation and that this be published alongside the Bill.’ The Government’s response stated its intention to publish detail on the new dutyholder regime in draft secondary legislation during passage of the Bill, providing clarity about the definition of the Principal Designer role and ensure that Parliament and industry have sufficient opportunity to scrutinise the proposals.

21. We are pleased to see that the industry has received sight of the competence requirements for the role of the Principal Contractor in the form of the BSI PAS 8672 [4] . As it is the intention that a Principal Contractor will be required on all [5] building works (in England) where the Building Regulations apply and not just HRRBs, this role will be extensive in both reach and impact. However, the draft PAS confirms that the requirements that are specific to the principal contractor role under CDM Regulations 2015 are separate to those required under the BSB. This is a concern as the implications are that more than one principal contractor will be required on projects that need to meet both standards. Given there is already a significant skills shortage in the industry for building control professionals, this could further be exacerbated if the two roles are not combined.

22. The same point above applies to the creation of an ‘accountable person’, as set out in Clause 69 of the Bill. Article 3 of the Fire Safety Act 2005 established the need for a ‘responsible person’ of a premise. This was also cemented in the amended Fire Safety Act 2021. This person, according to the Act, is defined in relation to a workplace as the owner or those who have control of a premises. [6] However, the BSB sets out the need for an ‘accountable person’, who is defined as a person who holds a legal estate in possession in any part of the common parts or a person who does not hold legal estate in any part of the building but who is under a relevant repairing obligation in relation to any part of the common parts. [7] Under these two definitions there is room for both functions to be performed by the same individual. Further clarity needs to be provided on whether these two roles act simultaneously or if they are necessary to be performed by different individuals.

Timescales and resourcing

23. Ultimately, while the BSB is a welcome and necessary response to recent tragic failings in building safety and quality, the solution going forward must be robust. Key questions around timescales and cost must be considered, including the length of time it will take for developers to get approval from the new regulator at the proposed gateways and the impact this will have, as well as the cost of applications to the regulator and who will pay them. From a building control perspective, resourcing and how it will be impacted by the Bill is a core concern. 

24. It will be challenging for brand-new roles to be created and fully operational in the time that it takes for the Bill to pass into law, with the training of prospective roles such as the BSM are likely to take at least three to four years to complete. There is also a risk that other built environment professionals will move into these new roles, creating a shortage in existing roles and moving the chronic skills crisis from one area to another.

Role of the Health and Safety Executive

25. One of our primary concerns is whether the Health and Safety Executive (HSE) is adequately resourced to undertake the functions of the new Building Safety Regulator. We are aware that the Secretary of State for Housing has reassured the Committee that HSE will be provided with increased funding.

26. During the recent meeting of the BSB Public Bill Committee, [8] a representative from HSE outlined that there may be real constraints for HSE to fulfil the role. The representative highlighted that HSE, alongside all public sector organisations, will soon be undertaking a spending round.

27. It is crucial to the success of the BSR role that the HSE is organised and resourced to ensure proper enforcement. To assure the wider industry that HSE will be able to perform the roles allocated to them as the BSR we urge Government to provide an indicative resource plan that shows how further funding will be structured as different aspects of the Bill come into force.

28. Separately, there needs to be consideration on the skills and competence of HSE inspectors that are being brought in as new inspectors under the BSR. Anecdotally, experienced HSE inspectors have come from hazardous industries and have little experience of the construction of building and CDM 2015 regulations. There is going to be a learning curve by the BSR to establish to what degree of detail is required at Gateway 2 and 3 and we are currently still a long way from this.

Enforcement

29. We are concerned that, while the Bill places emphasis on early life dutyholders to pay for any remediation work necessary to secure the safety of a building, there are still costs that may be levied against leaseholders, causing further financial risk.

30. Clause 27 states that the regulator may charge fees or recover charges for or in connection with the performance of a relevant function. We are aware that the objective of this Clause is to ensure that the BSR can recoup finances to continue its operations, while ensuring that there are enforcement tools in place to keep the industry accountable for its actions. However, there is a lack of clarity on what is meant by the Clause.

31. The Clause states that the BSR may prescribe a fee or provide for the amount of a fee to be or determined by the regulator in accordance with the regulations. Prior to a base rate for charges or fees being established through experience, the BSR will be required to levy charges and fees based on assumptions. We believe that further clarity is required on how these assumptions will be made and whether any under or over charges will be corrected if experience shows that charges or fees were too high or too low.

32. Alongside this we require details about how Government intends to ensure that these fees or charges are not passed onto leaseholders by dutyholders.

Competencies and training

33. In order for both clients and the regulator to have assurance of the safety of buildings, they will need to be confident that newly trained Building Safety Managers (BSM) have the necessary qualifications and competencies, and thought must be given to whether the current educational infrastructure is adequate. A key challenge will be the availability of experts to deliver BSM training, and the cost of implementing and delivering an accreditation scheme taught by highly qualified professionals. 

34. Separately, the construction industry must have clarity on the proposed process and timescales for accreditation as soon as possible, so that it can begin to apply and ensure a sufficient supply of Building Safety Manager’s (BSM), Principal Contractors and Principal Designers to meet demand. Without adequate numbers of qualified individuals, or a lack of supply in the right place at the right time, the availability of these roles will be unevenly distributed and lead to further problems.

35. Historically, there have been shortcomings in the wider building education landscape around quality, and there are difficulties especially in helping people to differentiate between qualifications and competency. It will be necessary to continue to push the industry to understand that it is more difficult, time consuming and expensive to achieve competency, and that qualifications alone will not be enough to improve building safety. 

36. Currently, there are gaps in the curriculum which will make a combination of qualifications and certification schemes necessary for accreditation, for example the current lack of fire safety modules available in construction courses. Clients will need to better understand the educational process in order to be assured that the builders they employ are properly qualified in accordance with the provisions of the Bill, especially if they are to be legally responsible for providing evidence of this. Ultimately, it is vital that all qualifications have true meaning and equate to real competency if assurances are to be legitimate, and clients will have to work with industry to put a system in place that allows them to comply, and exceed, what is demanded from the regulations.

37. In response, CIOB has launched a level 6 Diploma in Building Safety Management for construction professionals moving into this key dutyholder role. [9] The qualification is designed to give participants the knowledge and skills to manage the safety of the building in occupation as well as looking after the day-to-day management of fire and structural safety in higher risk buildings.

38. Other organisations have also begun to prepare for the implementation of this new role. We have been working closely with the Local Authority Building Control to develop vocational qualifications for the Building Control discipline to improve competency in the sector. There is a range of level 3 to 6 qualifications in Building Control, covering technical administration, domestic building control, high-rise and commercial building control as well as specialisms such as fire safety, legislative compliance, management of building control and safety at sports grounds and other public events. Formal learning content has been academically accredited and validated by CIOB and the University of Wolverhampton and the first cohort of the Building Control degree apprenticeships was awarded in Summer 2021. It should be noted that this course is also open to private sector building control professionals, as well as those in the public sector.

39. There is a noticeable lack of alternative courses outside those offered by CIOB and LABC to train professionals for the competencies that will be required in the BSB. Importantly, any training must be robust and not attendance-based with clear learning outcomes. We welcome the opportunity to share our intentions for further training and qualifications and recognise there must be alignment with other institutions and trade bodies to ensure consistency in quality and standards if the new regime is to be a success.

Golden thread

40. A lack of complete, accurate and up to date building information was one of the issues identified by Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety. The review highlighted the need for robust record keeping, with a digital ‘golden thread’ of key building information running through all phases of design, construction, and occupation.

41. In July 2020, CIOB and i3PT Certification conducted a survey into the industry’s understanding of the golden thread, how responsibility for its delivery might be distributed, current capacity and capability of the built environment to deliver, and potential blockers and solutions. [10]

42. Members of the Building Safety Bill Committee welcomed the inclusion of the ‘golden thread’, stating that it would be critical in helping ensure that buildings are safe throughout their life by providing requirements on the giving, obtaining and keeping of information and documents. The inclusion of paragraph 1D creates the power to make regulations to set out the information and documents that must be stored as part of the golden thread. However, it gives no indication on the type of document that should be stored or retained.

43. Our research notes that, while most respondents were confident in their own understanding of the golden thread, less than half believed that the appropriate people in their organisations shared the same level of understanding. This highlights a lack of understanding of the type of information that the industry will be required to retain during the design and construction of high-rise buildings. To proactively tackle this lack of understanding, we recommend that the Government provides an indicative list of the type of documents that would be required to be retained to provide greater clarity to construction professionals.

44. The survey also indicated that there is no clear consensus over who owns project data at the design and construction stages of a project. While the Committee has set out that, once a building has been completed, the responsibility to maintain the golden thread must be handed over to the person responsible for the occupied building, this has not been clearly communicated to the industry. Further information on the golden thread will come forward through secondary legislation, however, it is important to provide an explanation early on in the process of the exact points at which the responsibility changes from one dutyholder to the next to avoid information being lost as a result of dutyholders not understanding when maintenance of the thread becomes their responsibility.

45. Another key finding of the survey was that almost half of client and facilities management teams do not have the appropriate software and technical capabilities to check that information provided to them by the design and construction teams meet their information requirements and 35% are not confident that they could clearly specify the correct requirements at the outset of a project. These early indications on both responsibility and storage will allow the industry to prepare the necessary software so that the thread can be put in place as soon as it passes into law.

Gateways

46. We would welcome further clarity on how certain aspects of the Building Safety Bill will work in parallel with future legislation. Through the proposed planning reforms there are intentions to streamline the planning process to ensure a consistent delivery of homes of all types across the UK. This will include large levels of town centre, high rise development, in cities without high levels of available land. However, to ensure that this increased supply is in line with the intentions set out in the BSB , developers will be re quired to participate in the new ‘gateway’ regime.

47. Whilst we encourage new checks and balances to ensure that schemes are in line with key aspects of the new building safety regime , we are concerned with the practical application of these gateways early in the lifetime of the Bill.

48. The g ateway process will require the industry to produce detailed planning applications that contain key information about how a scheme meets fire safety requirements. Whilst this is encouraged, it is necessary that G overnment is clear with the level of information that will be needed by the BSR.

49. This process will be time and cost intensive in its early stages as the industry adapts to the new way of working. It is currently unclear how long it may take for each of the gateway criteria to be met which is generating further uncertain ty from many areas of the construction industry. It would therefore be helpful for Government to produce indicative timelines for each gateway so that these can be factored into proposed development programmes to ensure the system operates efficiently and as intended at the outset.

50. I n the Gov ernment’s Impact Statement published with the Draft Bill it state d ‘ At Gateway three, the Client, Principal Designer and Principal Contractor will also be required to produce and co-sign a final declaration confirming that to the best of their knowledge the building complies with building regulation s ’ . [11] However, when the second final draft was published there was no reference to this requirement being a function of either the Principal Contractor or the Principal Designer. Clarity is required on whether the intent is still to have this function fall under the new roles.

Indemnity

51. While the extensive programme of regulatory change set out in the Bill is welcome, we are concerned about the implications of this change for the availability and affordability of insurance products, and particularly professional indemnity insurance for dutyholders who will hold increased levels of responsibility under the proposed legislation. Many of our members have voiced concerns that insurance will become prohibitively expensive or impossible to buy as a result of the Bill. This is especially true considering the impact of the Covid-19 pandemic on the insurance industry, which may accordingly become more risk averse in future. Construction work will be unable to go ahead unless contractors are able to obtain affordable cover, and thought must be given to how the insurance industry can adapt to changes set out in the Bill.

52. There is an issue with both the availability and/or affordability of PII and we are also seeing restrictions on cover to exclude fire safety. Ultimately, this is an insurance product and we know that pricing has been historically low and what we are seeing is partly a market adjustment. Construction projects will continue to go ahead, but contractors will look to pass on the additional cost to the client, potentially leading to clients accepting lower levels of indemnity. We might also see more take up of Project Insurance (also known as Owner Controlled Insurance Programme). However, the restriction on cover does have implications, in particular for those undertaking EWS1 inspections.

October 2021