Written evidence submitted by Eaton [BSB 266]

 

Background to Eaton

 

Eaton is a global power management company with particular expertise in fire safety. We manufacture market-leading power management technologies - including arc fault detection devices – and safe evacuation solutions - such as emergency lighting, fire detection systems, emergency voice communication systems, and low voltage distribution systems. We are committed to making homes, workplaces and communities safer and more resilient.

 

Eaton has been present in the UK since 1946 and directly employs around 4,500 people in 31 sites across the country in high-tech manufacturing, R&D and administrative functions. Eaton has manufacturing and R&D sites around the country, with key locations including Doncaster, Cwmbran, Luton, Titchfield, South Molton, Sutton Coldfield and Havant.

 

Eaton welcomes that Government has embarked on a comprehensive programme of work which will deliver a much-needed systematic overhaul of an outdated regulatory system.  However, we are concerned that the limited scope the Bill creates a missed opportunity to bring forward changes now in primary legislation to drive up the safety of buildings and homes across the country. We are concerned that in creating a generational framework at this unique moment of reform, leaving too many elements of the structure to the Secretary of State to determine at a later date under secondary legislation is effectively kicking the can down the road and leaves the safety of the public in many high risk buildings at stake.

 

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

 

We are concerned that the limited scope of the Bill, as drafted, will not fully meet the Government’s policy intention to raise building standards across the industry and ensure the public are protected. We are concerned about the implications around granting the Secretary of State powers via secondary legislation to bring further at risk buildings into scope of the regulations in the future. We believe that the Government should take a more holistic approach to its considerations of building safety and rather than being guided by the height of a building alone. It is also crucial to also consider the fire risk presented as a result of the profile of the occupants and how the building is being used, and such considerations must be put into the Bill now in order to ensure other at-risk buildings are covered by the legislation from the outset

 

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

 

No. The Government have outlined their intention to establish a two-tier regulatory system with the stricter level of regulation initially applied to multi-occupancy High Rise Residential Buildings (HRRBS) over 18m (or 6 stories, whichever is lower), which would seriously leave public safety in many other high-risk buildings at risk.

 

The Bill makes provision under 19 (1) – (3) to allow the Secretary of State to make regulations to establish the meaning of “high-risk buildings” subject to the higher tier of regulation. Eaton appreciates the Government’s stated intention to design a new regulatory regime so that over time additional at-risk buildings may be brought into scope. However, no indication has been given of which types of buildings this may apply to, or on what basis other high-risk buildings may be assessed. There were also no timelines given for such considerations. This creates a serious missed opportunity and the Government should not, in seeking to grant flexibility to the system, inadvertently create an improved regulatory system for only one element of the landscape.

 

We have direct concerns about the Bills initial focus HRRBs of 18m / 6 stories of more, which we believe is far too narrow and prescriptive in comparison to the actual complexity of the building environment, and overlooks many other high-risk buildings. Rather than being guided by the height of a building alone, it is crucial to also consider the fire risk presented as a result of the profile of the occupants and how the building is being used.

 

Higher risk buildings should be brought into scope on the basis of complexity of usage, occupation density, occupation type, and the type of occupant. Statistics from 2013 to 2018 indicate that for buildings of any height, the highest rate of fires can be found in hospitals, sheltered housing, residential religious and education buildings and hotels. By way of illustration - a large shopping centre or football stadium will have a complex structure and is occupied by a high volume of people who will not be aware of safety procedures – and yet would not be considered for the higher band of supervision. Buildings used by those with accessibility issues or those hard of sight or hearing present a much higher risk in the event of fire and are similarly overlooked.

 

According to ONS and London Fire Brigade data, education premises accounted for 4.2% of primary accidental fires (477 fires total) in the year ending March 2019. Hospitals and medical care buildings accounted for 3.8% (437 fires total). For residential dwellings in London – 20% of fires in ‘other dwellings’ (e.g. not house/flats) in 2019 occurred in nursing/care homes or hospices. 14% occurred in student residence halls.

 

Considering the existing levels of risk this highlights, coupled with the complexity of these types of buildings and potential vulnerability of occupants, the Government should look to close the scope gap as soon as possible and bring in specific measures to afford additional protection for occupants of these building types.

 

The Secretary of State will have the power to make and vary this definition immediately, and to present the option as a matter for future consideration rather than delivering a comprehensive review of risk profiles now. As such, we would welcome the structuring of the system in the primary legislation to consider the profile risk of buildings and being these into scope, rather than creating powers that will functionally serve to move the policy debate further down the road.

 

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?

 

Eaton fully supports the Government’s intention to introduce duty holder roles and responsibilities during the design and construction phases, alongside three gateways points at which the duty holder must demonstrate that they are managing building safety risks appropriately at each stage. The provisions in the Draft Bill do deliver on the policy intentions set out in “Building a Safer Future” – which we wholeheartedly support.

 

We are also supportive of the Government’s proposal that a golden thread of building information on the original building design and subsequent changes is created, maintained and held digitally that operates throughout the whole lifecycle of a building. The operation of a key dataset of such information will be important for assuring the safety of buildings, helping duty holders fulfil their responsibilities to check and update this, and provide a means for holding them accountable for doing so. Again, the Bill makes appropriate provision through 78 – 81 on this matter – though we would, in line with our suggestions around the scope of the higher tier of regulation, be keen to see the principle of the “golden thread” applied in line with an expansion of the categorisation of “higher-risk” buildings around risk profile rather than characteristics.

 

We would suggest that the Bill should make statutory requirements for electrical fire safety to be signed off at all points throughout the design and construction phases and at all gateways, including the handover stage. Each proposed gateway offers an important opportunity to check for different electrical fire safety risks. At the handover phase and during occupation, it is crucial that the duty holder understands their ongoing responsibilities and obligations to continually check electrical infrastructure and emergency systems, such as evacuation or fire safety systems. We support the intention that the key dataset contains information on safety-related features that exist within a building such as fire doors and sprinkler systems, and we believe that this dataset must include information on electrical fire safety.

 

The Bill in its current form empowers the Secretary of State to precisely define the nature and implementation of gateways via secondary legislation – there is a policy incentive to include requirements around electrical fire safety, and 86 lays a duty (and civil sanction if an order made under 86 (5) by the County Court is breached) on occupants in relation to keeping their own appliances in safe order. To effectively deliver on the policy intention the Government should lay a commensurate requirement on constructors and the regulator to consider electrical fire safety in the gateway process, rather than leaving it open to be defined in the regulations (and thus watered down once public pressure has lapsed).

 

The matter of if these requirements are realistic is better considered in relation to the competency of the new Building Safety Regulator (which we mention below). The requirements in the Bill are reasonable and realistic in theory, and enabled by the development and management of the new “golden thread” of information that will allow far better oversight of a buildings status throughout the stages of its life. As we discuss in our reply to the question concerning the BSR below, it is absolutely crucial that the compliance and enforcement regime that sits alongside these measures is robust enough to act as an effective deterrent against non-compliance. Market surveillance must be proactive and properly resourced to ensure that duty holders are compliant. Too often prosecution is only bought after an incident where non-compliance becomes apparent. There is current complacency when compliance issues are flagged in the marketplace. In the past there has been few viable options for enforcement, due to being B2B in nature, rather than being seen as a direct consumer threat.

 

Will the Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building’s safety?

 

Eaton does not wish to comment on these elements of the Bill.

 

Is the Government right to propose a new Building Safety Charge? Does the bill introduce sufficient protections to ensure that leaseholders do not face excessive charges and that their funds are properly managed?

 

Eaton does not wish to comment on these elements of the Bill.

 

Does the Bill improve the product testing regime in a way that will command the full confidence of the sector?

 

Eaton are glad that the Government has recognised that just as important as the culture of compliance is the competency of compliance. It is no longer sufficient to simply expect that observable installation according to standard is enough in meeting and fulfilling guidelines. A far more holistic approach must be taken in relation to assessing the safety of products used as well as the competency of those installing them. The Bill is a much welcomed attempted to build in stronger and clearer duties and responsibilities into the inspection function throughout the construction process to detect failures before works can progress past critical points.

 

However, there is a pressing need to go further on electrical safety products in particular. Product compliance must extend further to cover installation capability and approval schemes, and cover training and accreditation of staff. This is already included in Building Regulations Part P – requirements for residential installers – but it’s a lower barrier. A product can be compliant to set standards but can be installed badly, or the wrong product could be chosen for the application, resulting in a continued fire safety risk. There is a risk that at the installation phase, the installer makes a non-compliant decision or installs the wrong product as a cost-saving measure.

 

According to ONS and London Fire Brigade data, 10% of fires in the UK were due to electrical distribution faults in the year ending March 2019 – despite the existence of technology which can predict when an electrically ignited fire is likely to occur and shut down the circuit to prevent it starting. There were 9 fatalities caused by electrical distribution fires in the year ending March 2019 (up from 8 the year before) across all types of dwellings.

 

What is needed is an effective incentives and penalties framework that induces businesses and individuals to move away from a culture of “value engineering” - where the focus is on saving cost – towards one of meaningful and substantive compliance as part of a holistic whole-system approach to safety. Without clear duties and oversight there will remain a risk that at installation phase an independent actor will make non-compliant decision or install a sub-standard product as a cost-saving measure – but detection of which is not effectively guaranteed within the new scope of assessment. The Government should consider establishing a meaningful standard for which such actions should be regulated against – an expectation of competency and compliance (as personified by the establishment of several new committees in the Bill - on Building Safety and on Industry Competence) is not the same as actual regulation – and the Bill should go further on this matter.

 

Provision is made in Schedule 8 to give the Secretary of State extensive power to make regulations to regulate products and penalise non-compliance. We would be interested to see proper consideration now of the meaningful system of standards that will be used to determine the application of regulation.

 

One particular industry standard that functions as a valuable benchmark currently is the British Approvals for Fire Equipment - a voluntary approvals system which deals with fire systems and emergency lighting. It covers the design, installation and maintenance of electrical systems. The Government should consider the operation of this model and how it can be replicated in the building regulatory system now to assure the integrity of electrical systems. Installer competence must also be considered or there will continue to be a dangerous “hole in the system.”

 

However, in creating an effective regulatory system around construction products, the Government must be careful not to close the door on innovation. Recent advances in everything from arc-fault detection technology to evacuation aids have been shown to have a meaningful place within any holistic safety framework. In creating an effective oversight system that holds operators and products to standard, they should not programme out the opportunity to innovate in safety.

 

That’s why one of the most compelling issues throughout the whole reform process has been consideration of how to actually develop a culture of compliance, backed by a meaningful enforcement structure, but with the judgement and flexibility to evolve the standards in line with industry best practise. As such, Eaton fully welcome the announcement of the establishment of a new Construction Products Standards Committee (announced in the Government’s response to the “Building a Safer Future” consultation) to oversee the integrity of the industry and to advise the Secretary of State whether voluntary industry standards should become regulatory standards. It is a step in the right direction, though we would be concerned that, as with the Health and Safety Executive and potentially with the BSR, the danger of awarding too much responsibility and too little resource could lead to a similar outcome of compliance on paper and not in practise. Any Standards Committee must be effectively resourced so that the welcome changes the Government have put in place as taken up by the industry and effectively translated into outcomes.

 

The Committee will not be empowered under the Building Safety Bill in its current form – whereas it does place the new Building Advisory Committee on a statutory footing as part of the wider reforms to underpin the new duty-holder and inspection system in 9 (1) – (3). If the intention of the Bill is to create an appropriately empowered system, there is a need to place the Construction Products Standards Committee on a similar statutory basis to give it effective standing within the wider system. This is an oversight that should be remedied within the Building Safety Bill now as part of the root and branch review of the system rather than left for later consideration.

 

 

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

 

The Health and Safety Executive is the principal agency at the heart of a complex and every growing web of compliance and risk assessment designed to underpin and assure safety standards on a cross-sector basis. Their responsibilities are particularly pertinent in relation to the building safety framework. Eaton is proud of it’s contribution to the safety environment and favours effective reform to better empower the HSE to carry out meaningful surveillance and intervention in the sector to drive up standards and increase levels of compliance, but this must be achievable and functional – it cannot be an exercise in adding additional responsibility to an already overburdened regulator that may inadvertently create more inefficiencies and incentivise a culture of compliance for compliance’s sake.

 

As such, whilst we welcome the establishment of the new Building Safety Regulator (BSR) in the form that Bill makes provision for, we would suggest that it would be far more effective to legislate for a distinct identity rather than empower it as a  discreet element of the HSE. Without a formal separation, we would have some concerns about how separate, in practise, the delivery of the HSE’s generic functions and those in the guise of the BSR would be – and expect that this would be related to both levels of financial interdependency and of legislative identity. This could see the BSR forced to compete for resources as part of the HSE’s wider strategic programme.

 

The BSR should have complete financial separation from the HSE and must not be budgeted as part of a wider “Health and Safety pot” if it is to have the freedom to focus on compliance across the sector, rather than being submerged inadvertently into the complex web of regulations and standards that at this stage faces no prospect of root and branch correction.

 

Whilst additional contributions from industry funding streams to support the BSR to be the best it can be would not be unwelcome (in the same way that the HSE is free to pursue commercial opportunities), it cannot be left dependent on commercial arrangements alone – as the HSE as a whole has increasingly been forced to rely on. Government must resource the BSR’s core activities via public funding and allow them the appropriate level of resourcing to ensure meaningful compliance with the renewed safety framework. We would suggest that the Bill should make provision for this now via alterations to the Draft provisions in Part 2 of the Bill.

 

 

Does the Bill present an opportunity to address other building safety issues, such as requirements for sprinkler systems?

 

The Bill creates the necessary regulatory and enforcement framework around the use of certain safety critical equipment in buildings – creating the oversight structures to compel their installation through the duty holder system if the regulator deems it appropriate, and a meaningful enforcement framework for those failing to comply. As we said, Eaton favours moving away from a culture of compliance for compliances sake or of “value engineering” and towards one of effective regulation that can, realistically, be enforced. Instead of prescribing requirements for certain allocations of safety systems per building (such as a number of mitigations depending on floor count), we would prefer to see an appropriate codification that requires the relevant parties to prioritise action and mandates the installation of equipment based on an assessment of the risk profile of a building. There is certainly an opportunity here, and the imposition of requirements to install sprinkler systems or safe evacuation aids (like safety lighting) would be a welcome one – within the context of the general improvements that should be implemented in the Bill.

 

 

Conclusion

 

The legislative programme now under way is a substantial and welcome movement in the right direction, however while Eaton welcome the Government’s intentions, we urge them to go further in the Bill to drive up fire safety standards across a wider profile of at-risk buildings beyond the limited scope of HRRBs. In addition, the Bill must ensure that regulation and standards covers not just construction products used, but extends to the regulation of the installation of electrical products - another crucial factor in assuring the safety of buildings. Enforcing compliance with both new product standards and installation competency standards will be essential to achieve this.

 

 

September 2020