The Association of Consultant Approved Inspectors (ACAI) seeks to increase awareness and understanding of the private sector’s role in inspecting and approving safe buildings. It has over 80 member organisations, including the UK’s largest building control bodies that make up nearly 50% of the whole UK professional capacity. This represents the majority of the country’s private Approved Inspectors (AIs), making it the leading voice for private sector building control within the UK.

Over recent years, ACAI has been pleased to support the work with Government and other industry stakeholders to support raising standards, operating by an enforced Code of Conduct through the current designated body (Construction Industry Council Approved Inspector Register) and promoting culture change in the industry to improve building safety.

Response to questions to be considered by the Committee

How well does the Bill, as drafted, meet the Government’s own policy intentions?

ACAI welcomes the Government’s intention, following the tragedy at Grenfell Tower, to reform the building control sector. We have, over recent months and at the Ministry of Housing, Communities and Local Government’s invitation, worked with other industry representatives as part of a Future of Building Control Working Group to develop proposals to reform the whole industry.

We recommend two important additions that would go further than the current draft Bill:

• Creation of an independent designated / delegated body supporting the Building Safety Regulator (BSR) that regulates the whole building control profession

• Ensuing that all those practicing in building control are registered and accountable

Both additions are also included in the eleven recommendations made by the Future of Building Control group, which ACAI fully supports.

Whilst ACAI welcomes many other elements of the Bill, including the unification of competency requirements across the public and private sectors, a number of proposals contained in the draft Building Safety Bill, particularly in relation to the new regulatory regime for High-Rise Residential Buildings (HRRBs), will not help achieve the Government’s objectives of raising standards and restoring public confidence in the building control sector.

Indeed, some of the proposals, through reducing both competence and capacity in the sector and introducing new conflicts of interest, will lower standards, damage trust and certainly jeopardise the delivery of the Government’s housebuilding targets:

• The assumption within the Bill that the new Building Safety Regulator will select the relevant local authority building control department to act as lead inspector is unjustified given that AIs currently deal with approximately 70% of in-scope buildings and have the relevant expertise and experience to do so. Without an equitable selection process, it is very likely that AIs will focus on the client-facing advisory role with the inevitable migration of a very significant number of skilled professionals away from the regulatory function, exacerbating the serious capacity and competence issues that already exist. We also believe that the removal of all choice and competition from the entire system will only serve to stifle innovation and incremental improvements across the sector. This contradicts the sentiment expressed in Dame Judith Hackitt’s Building a Safer Future report, which fully recognised that the introduction of choice and competition had raised standards significantly over the last 30 years

• The sheer complexity of the proposed Bill is a concern for ACAI and those across the sector. In its current form, the proposals will act to significantly increase the level of bureaucracy in the building control sector, for example in relation to transferring oversight of in-scope buildings to local authorities. This is contrary to one of the core aims of the Hackitt Review process, which called for the widespread simplification of processes in the sector

• ACAI is concerned that, with the Building Safety Regulator making decisions, it is unclear where liability lies around consumer protection. This will need to be made clear given that local authorities have no liability or accountability for financial losses resulting from their decisions made during their building control process

• Another aim throughout the Hackitt Review process was that the future regulatory regime should have the ability to evolve as circumstances change. Currently, the Bill places far too much regulatory detail in primary legislation, which will leave Government and regulator alike with a critical lack of flexibility to make changes to the proposed regime quickly, should objectives not be met

• Furthermore, the Government has used the bill as an opportunity to address a number of issues identified in the Building Act 1984 regarding the existing system. This work does not go far enough – it does not address a range of issues identified by industry over the last 10 years. The proposed changes simultaneously fail to address key issues, while drastically increasing the complexity of the Act – rendering it nearly unworkable. Our recommendation is that the Building Act be replaced as part of the Bill

Does the draft Bill establish an appropriate scope for the new regulatory system?

The ACAI, along with the majority of the industry, believes that the scope of the new regulatory system needs to be widened over time in order to provide a simplified process for all high risk and complex buildings. However, our serious concerns relating to complexity, competence and capacity (as outlined above) mean that the transition to a wider scope would need to be strictly and effectively managed.

Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety? Are the sanctions on those who do not meet their responsibilities strong enough?

Key to ensuring accountability and public trust in the sector is providing the new, single, strong regulator with the appropriate statutory powers to deliver its remit effectively, along with ensuring the governance and operation of this regulator is to the highest standards of probity.

In line with the recommendations of the cross-sector Future of Building Control Working Group, we fully support the adoption and maintenance of a single code of conduct applicable to all building control bodies and professionals. This would be fairly applied by the new regulator to help create a level playing field of accountability across the sector.

However, there are a number of proposals in the draft Bill in relation to this issue that undermine these principles of equity, competence, accountability and the avoidance of conflict of interest:

• In its current form, the Bill is unclear as to how the competence of the lead building inspector will be assessed and regulated. It is also unclear as to how a conflict of interest will be avoided in situations where the BSR acts as the building control body, given that these bodies are regulated by a body designated by the BSR

• As cited above, this will further exacerbate the issue of consumer protection, which has long been a problem in the building control sector. With the BSR making decisions, this raises the question of where the liability and accountability for these decisions lies and how consumer protection and independence is assured, given that it has been deemed that local authorities have no liability or accountability for financial losses due to decisions made during their building control process

• As mentioned earlier in this response, ACAI also believes that the new system proposed by the Bill will become a significant barrier to development in terms of complexity, available capacity and competence, gateway management and cost. This will in turn have a negative effect on the ability of firms to attract and retain talent in the sector

• This broad reduction in competence will harm rather than promote the Government’s objectives of raising safety standards in relation to HRRBs and increasing public confidence. Ultimately the removal of choice and competition for in-scope buildings will inevitably lead to a stagnation of standards through a lack of incentive for continual improvement

Is it right that the new Building Safety Regulator be established under the Health and Safety Executive, and how should it be funded?

As stated above, ACAI is broadly supportive of the establishment of the new Building Safety Regulator. Delegating oversight to a fully-independent body with the right mix of flexibility and strength of statutory powers is an important step in ensuring accountability and trust in the sector. Once regulatory provisions are agreed, Government and the Building Safety Regulator should convene a working group to manage communications and develop a deliverable strategy to support the transition of the sector.

Questions remain over how exactly the BSR will operate – whether it will impose a more HSE-style reactive system of on-site fines and sanctions, or be proactive in supporting the delivery of safe buildings. This is, in part, a potential issue relating to organisational culture – and one that the industry working group mentioned above could look to solve.

Should the regulator be highly active, undertaking limited inspections and raising fines in the method the HSE has universally adopted, it may result in a large, experienced and highly qualified portion of the current building control workforce being absorbed into the client/developer organisations to introduce self-regimes of compliance and HSE avoidance. 

In terms of funding, the Bill in its current form provides a large number of actions and duties for the Building Safety Regulator to carry out which would need to be effectively resourced if it is to deliver. There is general cross-sector agreement that the cost should be borne by industry through application fees, but if there is a fall in the amount of activity with in-scope buildings (something that, as mentioned above, remains a distinct possibility following the capacity reductions that certain proposals in the draft Bill may lead to), a significant gap in funding may form, along with an additional cost barrier to development.

September 2020