Written evidence submitted by the Association for Specialist Fire Protection [BSB 272]
This response has been prepared by A Taylor and N Rowan of the Association for Specialist Fire Protection (ASFP). ASFP was formed in 1975 in recognition of a need to bring together passive fire protection manufacturers, contractors, and testing/certification bodies to encourage, develop and give guidance on essential standards in passive fire protection. Today, ASFP is a trade association representing over 200 member companies across the passive fire protection market.
The ASFP serves and represents the needs of its members and the wider passive fire protection industry, by raising standards and competence through training, testing, certification and quality of installation and maintenance.
It aims to advance knowledge and guidance on all aspects of ‘built-in’ fire protection; provide technical support and impartial advice; lead regulatory and behavioural change as an independent authority; and improve competence and quality through training.
ASFP have chosen to submit evidence to this enquiry, as we believe that the products and systems manufactured and installed by our members come fairly and squarely within any definition of ‘Safety Critical’. We therefore wish to make certain representations to ensure the correct outcome regarding the provisions for passive fire protection products and systems within the Building Safety Bill.
Broadly we welcome the publication of the draft Building Safety Bill text, as an important step in the implementation of the 53 recommendations within Dame Judith Hackitt’s report “Building a safer future”.
The Bill seems to lay the path and take the first tentative steps towards implementing most of the recommendations from the ‘Building a Safer Future’ report. The devil, however, is in the detail of how this is followed up. Although this bill makes the primary enabling legislation, giving the necessary powers, we still need to see how the secondary legislation will be written and implemented to ensure that all the recommendations are met.
We also have concerns in our market that one particular sector has not been covered in any detail. We are conscious there appears to be no potential legislation covering the installers of safety critical products / systems. It appears that the only requirement for installers will be to meet a future requirement for a competence-based scheme, which is outside the provisions of the Building Safety Bill. We consider this is an inadequate level of response. As ASFP, we have lobbied for third party certification of installers of PFP, and we would expect that some form of regulation of installers of safety critical products is required. In our experience, the weak link in the performance of Passive Fire Protection products and systems is usually at the installer level, and seldom the manufacturer. The current bill text does not make any provision for regulation covering the installation of safety critical products and systems. As it stands today, we would suggest that the Government should mandate a body to establish the competence levels required within the construction industry and oversee implementation of this, as suggested in recommendation 5.2c within ‘Building a safer future’.
The proposed scope to include fire (safety) and structural safety (failure) under the meaning of building safety risk is to be welcomed. As an association representing manufacturers, installers of passive fire protection products and all the testing and approval bodies in this area, we have long campaigned for fire to be taken more seriously. The bill also allows the future scope to include other risks and this flexibility is welcomed.
With regard to the current definitions of buildings ‘in scope’ (in excess of 18m/6 storeys), this is a good start but, as has been identified by many stakeholders in numerous consultations, the use of height/storey is a crude tool for determining scope. A four storey accident and emergency hospital where evacuation of occupants cannot be undertaken simultaneously or immediately may have a far better case for being in scope than an apartment building with dual staircases, a linked fire alarm system and suppression. The ability to vary the scope of buildings included is welcomed and we would expect more buildings to be included in due course. These could include e.g. some buildings constructed using modern methods of construction.
We also believe that the scope of building safety should be expanded beyond the current legal position looking solely at life safety. Property protection is important, to limit the financial, environmental, and emotional impact of fire events. We know this has been considered by MHCLG recently, and we would recommend that this topic is revisited.
The system of accountability using the dutyholders taken from the CDM regulations and then supplemented by the Accountable Person and Building Safety Manager gives some concern in that the potential for loss of continuity of integrity of the fire design and its implementation into installed products and systems is larger than if a single person of fewer persons were responsible.
The ability to sanction e.g. individuals for professional misconduct, developers for breaching requirements and building control approvers for omission are to be welcomed. The use of unlimited fines and up to a year in prison is an adequate sanction/deterrent if there are enough prosecutions. If the chances of getting caught and punished are very low, the level of sanction/deterrent is irrelevant.
The bill provides a strong framework, but care needs to be taken on how this is implemented to ensure that residents’ concerns are fully considered.
The proposal to establish a new ‘building safety charge’ to facilitate recovery of costs incurred by landlords in putting in place building safety measures is acceptable, but there is no proper protection for leaseholders in respect of e.g. remedial works for cladding replacement which is accepted by all as necessary. This is currently causing many homes to have zero valuations and is preventing sales of properties. The current situation whereby landlords are attempting to recover costs from leaseholders who have come into this situation from no fault of their own is unacceptable.
Again, there is the potential to improve the regime in the correct way. However, as before, the devil is in the detail here also. Our primary concern is around how products with ETAs (soon to become UKTAs) will be treated.
It is clear that products with hENs (soon to become dBSs) are to be treated in the same way as they are already, with a mandatory system. However, the draft text of the Bill (Schedule 8 – clause 7(2-c)) gives products with a UK Technical Assessment (Presumed descendant from European Technical Assessment) exemption from any ‘Safety Critical’ Status. Many passive fire protection products are currently covered by European Technical Assessments (ETAs) derived from European Assessment documents (EADs). These are expected to be transferred over to UKTAs / UKADs in the new year. Fundamentally, we believe this is a wrong step, and could potentially lead to a loophole. ETAs and by consequence UKTAs are not mandatory, and there is no minimum requirements for properties within scope of the technical assessment. We believe that the flow chart represented below would give a better path through the regulation.
In our opinion, it is vital to define what is meant by “product families”, and an appropriate level of testing. We believe that all products within a product family should be tested, assessed and certified based upon individual tests of products and systems. It should not be the situation that one manufacturer tests, and others can gain entrance into the market based upon that test.
Finally, one of the main challenges of the whole European Construction Products Regulation (CPR) system has been the aspect of market surveillance. The EU Member State Authorities charged with market surveillance under CPR have not had the necessary skills and experience to carry out this function in any meaningful way. We were initially informed of that a new Product Regulator would be created, possibly under the remit of OPSS (Office of Product Safety and Standards). The draft bill text does not clearly identify this. Although market surveillance tasks are to be carried out by “Relevant Authorities”, the text identifies a number of possible relevant authorities, mainly written around Local Authorities. In our opinion, issues around construction product testing, assessment, certification, and installation are too complex to be dealt with by Local Authority Trading Standards. We need a better informed and educated regulator for these matters, and this is probably better provided at a national level.
We are fairly neutral on the proposal for the Health and Safety Executive to be the new regulator. On the positive side, as the regulation is underpinned by Health & Safety at Work act, HSE therefore can use the same enforcement and civil/criminal penalties as with H&SaW, which is a welcome improvement. On the negative side we are concerned about the apparent lack of knowledge on fire matters and of the construction industry. We are concerned that the established procedure, methodology and rigour of safety cases as used in the oil and gas industries might become degraded to something more like a ‘desktop study’ in the construction industry. As a trade association ASFP is keen to reach out to HSE to work with them to understanding how their new regulator will operate. We do not have any particular opinion on how the regulator should be funded.
The Bill, in itself should not represent an opportunity to address other building safety issues. However, it should set up a framework where other issues can be raised through Buildings Advisory Committee. This new committee should be best placed to consider where technical changes to address building safety issues are required.