Written evidence submitted by Construction Industry Council Approved Inspectors Register(CICAIR) [BSB 310]
I am pleased to write to the draft Building Safety Bill pre-legislative scrutiny committee on behalf of CICAIR, the body designated by the Secretary of State in England, and Welsh Ministers in Wales, to maintain and operate the Approved Inspectors Register.
Approved Inspectors registered with CICAIR are qualified to undertake building control work in accordance with Part II of the Building Act 1984 and the Building (Approved Inspectors etc.) Regulations 2010.
We have been the designated body since 1996, firstly limited to consideration of applications for approval of individuals as Approved Inspectors, and then from March 1999 we have been responsible for approval of corporate Approved Inspectors in England and Wales.
As the body currently responsible for the regulation of Approved Inspectors, we are uniquely placed to be able to assist the committee with any questions and queries it may have on the current Approved Inspectors regulatory regime, and any questions it may have, on the setting up of a new body to undertake the role of regulating Building Control Approvers and Building Inspectors.
In our role as the designated body, our functions include setting the entry and approval requirements for entry on to the Approved Inspectors Register, the determination and execution of an annual monitoring process, and a rigorous audit regime to determine suitability of Approved Inspectors licence re-approval. This process includes the scrutiny of AI’s compliance with the Building Control Performance Standards and the CICAIR Code of Conduct. The audit process also explores the competence of the AI. However our remit does not currently extend to the audit of technical judgements on compliance with the Building Regulations. Further information on our current regulatory regime can be found on our website.
As with any regulated profession, we have in place a conduct and disciplinary function to ensure the standards of conduct and competence expected of an Approved Inspector are maintained, and matters of misconduct investigated to ensure the integrity of the Register and public confidence in the profession is upheld. .
Our regulatory functions are focused on protecting the public. We are not a representative or lobbying body, and our remit is clearly defined in our letter of designation.
As the body currently responsible for the regulation of private sector building control professionals, we have been fully involved in the Future of Building Control Working Group(FOBCWG) and support the recommendations laid out in their published report.
In CICAIR’s judgement, the model set out in the FOBCWG Report will ensure a more effective and rigorous regime for the oversight of Building Control, and driving up standards across the sector, than the model currently proposed in the draft Building Safety Bill. So, in response to the first two questions posed by the Committee, “How well does the Bill as drafted meet the Government’s own policy intentions?”, and “Does the draft Bill establish an appropriate scope for the new regulatory system?” our view is that the policy intentions, which we fully support, could be better met by the adoption of the framework proposed in the FOBCWG Report. There are five main reasons.
1. The FOBCWG Report proposes a single unified structure for the oversight of all Building Control activity, whether or not this includes higher risk buildings, rather than the two-tier Building Control system currently proposed by the Bill. The Bill as it is drafted would allow the existing arrangements to continue for the majority of Building Control work, while the proposed new more rigorous arrangements would apply to higher risk “in scope” buildings. We believe that a single unified system would make it much easier to regulate higher standards across the whole sector, while still ensuring more rigorous oversight of “in scope” buildings. The majority of the complaints we receive about the conduct and competence of Approved Inspectors come from domestic clients undertaking projects that will not fall within scope of the new regime
2. The more pro-active approach to audit (including technical judgements) and disciplinary procedures under the FOBCWG Report will help drive culture change where needed in the sector to raise standards faster and more effectively than the more reactive model proposed in the draft Bill.
3. By having an independent designated body responsible for registration and audit of all Building Control Bodies and individual Building Control professionals, there will be no potential suggestion of conflicts of interest, which could easily occur under the draft Bill proposals under which the Building Safety Regulator will act as the Building Control Body on “in scope” buildings, while retaining responsibility for the oversight of all Building Control activity. The current proposal could lead to the accusation of the regulator marking its own homework.
4. By relieving the Building Safety Regulator of the day to day responsibilities of registering, monitoring and auditing Building Control Bodies and Professionals, the FOBCWG recommendations will allow the Building Safety Regulator to focus on its key responsibilities across the whole range of Building Safety issues. This will not reduce the Building Safety Regulator’s power or influence as it would continue to set the standards and framework of the designated body’s work. It would also remain responsible for serious disciplinary decisions either involving individual professionals or Building Control Bodies (subject to Ministerial decision in the case of serious sanctions in respect of Local Authorities).
5. As the FOBCWG proposals have been developed by the leadership organisations within the sector, they are more likely to command the support of all parts of the industry and thus secure a successful transition to the new structures, without the risk of a period of uncertainty and, worse, the potential loss of significant capacity from the sector.
CICAIR is committed to the effective delivery of independent regulation in the public interest. We fully support the FOBCWG proposal that the Building Safety Regulator should delegate the registration functions to an independent body, separate both from Government, industry and the Building Safety Regulator. We suggest an independent Building Control Registration Board be set up to deliver the functions delegated to the designated body as available to the Building Safety Regulator under Part 3, clause 58X of the Bill.
Turning to the Committee’s third question, “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?” We believe the Bill needs to go further than it currently does in relation to the auditing of the building control profession, with the objective of delivering continuous improvement in standards, and must be supported by a sanctions regime providing proportionate responses to the full range of potential failures or misdemeanours. To facilitate the change in the culture the Bill is aspiring to deliver, the legislation needs to promote a pro-active registration, monitoring and audit regime covering all those who apply to or become registered under the new legislation. Our current auditing regime at CICAIR, whilst relatively infant in its development has enabled us to focus our regulatory reach, driving up standards within the AI profession, but there is more to be done.
We have already mentioned the limitation of our current remit that precludes technical judgements on compliance with Building Regulations. Our disciplinary powers are also constrained, with no effective sanctions for serious breaches other than the “nuclear” option of removing the AI’s licence to operate. Finally our audit regime applies only to organisations and does not cover individual professionals (other than in the very small number of sole trader AIs). A comprehensive auditing regime backed by appropriate and proportionate sanctions covering both Building Control Bodies and individual professionals is an essential element in the new framework.
We are not commenting on questions 4 to 6 because these are not matters on which CICAIR has relevant expertise, other than to make the obvious point that restoring the trust and confidence of the public is absolutely critical, and depends not just on new structures or responsibilities, a lot of which are included in the Bill, but on how they work in practice, and whether they do give residents and all interested parties the confidence that robust and effective measures are being put in place that will prevent any repeat of the terrible Grenfell tragedy.
Turning to question 7 “Is it right that the new Building Safety Regulator be established under the HSE, and how should it be funded?” CICAIR has no objection to the location of the Building Safety Regulator within the HSE, provided the arrangements for its operation make it possible to fulfil all its responsibilities effectively and without conflicts of interest. As we have pointed out earlier, the proposal for the Building Safety Regulator to itself take on the registering, monitoring and auditing Building Control Bodies and professionals does not meet these tests, which is why we have strongly advocated the creation of an independent Building Control Registration Board.
Whilst independent from Government, and the Building Safety Regulator, this Building Control Registration Board would be working within a framework set by Government and to standards set by the Building Safety Regulator. Oversight of this body could be achieved through a Framework Agreement arrangement similar to those applying to many other arms length body sponsorship arrangements. This type of arrangement allows the designated body to deliver its remit independently, whilst maintaining a strong relationship with its sponsoring department or body.
While there would be a need for seed-corn funding to set the new body up, we believe that it should quickly evolve into a self – funding body, whose income is derived from the registration and audit fees paid by Building Control bodies and individual professionals. This is a similar basis to that on which CICAIR has operated successfully for the past 20 years, which gives us confidence to recommend a similar approach for funding the Building Control Registration Board.
At a time of significant change, we believe the governance arrangements and structure of the new designated body will be particularly important in building the trust and confidence of those it will regulate, and the public confidence which the Bill is trying to rebuild.
We propose the body has a small board (no more than 11 members), with all board members appointed by Government or the Building Safety Regulator. The Board’s remit should be clearly defined; its main purpose should be to oversee the effective delivery of the designated body’s functions. We suggest the Board should have a lay majority and be made up, as is the CICAIR Board, of a combination of industry professionals (building control, both private and public sector), and lay members with relevant expertise, led by an independent lay chair. All appointees should be able to demonstrate proven skills and experience of working in the public interest. This type of focused board of non-executives will enable the new body to concentrate on moving the reform agenda forward, whilst ensuring that it delivers its designated functions efficiently. An independent body such as this can deal effectively with regulatory issues, whilst keeping the Building Safety Regulator informed of trends or issues that need to be addressed and can be via the powers the Building Safety Regulator has in relation to setting operational standards or, if necessary, legislative change. In this context, and aware as we are of the difficulty in securing time for Primary legislation, we believe that whilst it is very important to lay out the key objectives in primary legislation, the Bill should have enough flexibility within it to enable those objectives to be broadened and strengthened through statutory instruments, so that refinements and changes to matters of detail can in future be effected without the need for further primary legislation changes.
With our experience in regulating the AI profession for over 20 years, we stand ready to assist the Committee with any questions or queries it may have. We also stand ready to assist Government and the HSE with any transitional arrangements. The importance of the Building Safety agenda cannot be under-emphasised, and it is vitally important that the reforms now being proposed are comprehensive, thorough, practical and workable. Building Control is one very important part of that overall agenda. To deliver effective regulation of the building control profession, to strengthen and maintain public confidence in the vital role it plays in public safety, the task must be clearly defined and resourced appropriately.
We have no comment to make in response to question 8, other than to point out the the Draft Bill already provides for a very significant number of new responsibilities, powers and functions. As we have stressed earlier, the key test for the public will be whether these work in practice so as to deliver the Government’s objectives. Before the Grenfell Tower disaster there were already a very large number of provisions and obligations which had been put in place over previous decades designed to secure public safety. Sadly they did not work as intended to prevent the tragedy. We must not repeat that mistake.