Written evidence submitted by the Health and Safety Executive [BSB 424]

Contents

Introduction

Part A    The Health and Safety Executive

Part B   Questions from the Housing Communities and Local Government Committee for Pre-Legislative Scrutiny

Q1: How well does the Bill, as drafted, meet the Government’s own policy intentions?

Q2: Does the draft Bill provide and appropriate scope for the new regime?

Q3: 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?

Q4: Will the draft Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building’s safety?

Q5: Is the Government right to propose a new building safety charge? Does the draft Bill introduce sufficient expectations to ensure that leaseholders do not meet excessive charges and that their funds are properly managed?

Q6: Does the draft Bill improve the product testing regime in a way that will command the full confidence of the sector?

Q7: Is it right that the new Building Safety Regulator be established under the Health and Safety Executive, and how should it be funded?

Q8: Does the draft Bill present an opportunity to address other building safety risks, such as requirements for sprinkler systems?

Part C   Additional Points

 


Introduction

The draft Building Safety Bill, published by the Ministry for Housing, Communities and Local Government (MHCLG) on 20 July 2020, formally names the Health and Safety Executive (HSE) as the new Building Safety Regulator (BSR). HSE is responding in this capacity to the call for written evidence.

The government has asked HSE to establish a new BSR in the wake of the Grenfell Tower disaster and following recommendations in the Building a Safer Future report by Dame Judith HackittThe new Regulator will oversee the safe design, construction and occupation of high-risk buildings so that residents are safe and feel safe. It will be independent and give expert advice to local regulators, landlords and building owners, the construction and building design industry, and to residents.

Specifically, the BSR will have three functions:

 

 


Part A


The Health and Safety Executive


Who is the Health and Safety Executive (HSE)?

HSE is the national, independent regulator for safety and health at work in Great Britain. HSE is established under the Health & Safety at Work etc Act 1974 and is a Crown non-departmental public body sponsored by the Department for Work & Pensions. 

HSE regulates health and safety in a wide range of industrial sectors including construction; offshore gas and oil; onshore chemicals; factories; farms; hospitals and schools; and many others (https://www.hse.gov.uk/aboutus/index.htm).

HSE is a modern and high performing Regulator. Its people are committed to reducing risk, protecting people and the environment, and to saving lives. HSE believes people’s lives come first. No one should work in an unsafe environment and HSE supports and regulates industry to follow the law and help protect millions of people from ill health, injury and death.

For over 40 years, HSE has worked in partnership with stakeholders (employers, unions, trade associations, professional bodies and other representative bodies) to manage serious risks and hazards and holds those responsible to account for any failures. HSE requires industries to recognise their role in keeping people healthy and safe, and by enforcing these responsibilities firmly and fairly, HSE also delivers justice for victims when things go wrong.

 

Central to this is protecting people by managing risk in a proportionate and effective way, supporting innovation and productivity. Great Britain has one of the best workplace health and safety systems and set of outcomes in the world (https://www.hse.gov.uk/aboutus/strategiesandplans/helping-great-britain-work-well-strategy.html).

 

Why is the new Regulator being set up in the Health and Safety Executive?

 

The Government decided that the BSR should be established in HSE, after taking independent advice from Dame Judith Hackitt. Taking this approach enables the Government to mobilise the new Regulator at pace, under the leadership of an organisation with an established reputation and experience of operating regulatory regimes that rely on collaboration with other key regulators.

To deliver the new regulatory regime it is vital that the BSR is independent. The new regulatory regime will need a body capable of delivering robust, impartial advice to Government and industry and the ability to take independent regulatory decisions.  Thus, it is vital the new Regulator has sufficient independence and confidence to deliver these functions effectively; HSE has extensive experience acting independently whilst working within the framework provided by Ministers.

a) Partnership working

Working in partnership is one of HSE strengths. It is at the heart of how HSE protects workers and the public. HSE already works in partnership with a range of other regulators, sometimes in Joint Competent Authority type arrangements. For example, HSE works alongside the Environment Agency in England to regulate high-hazard industries such chemical processing plants under the Control of Major Accident Hazards Regulations (COMAH) (https://www.hse.gov.uk/comah/authorityindex.htm).

This approach is already benefiting the preparations for establishing BSR through working with the MHCLG, the Home Office, local regulators, building control bodies, building owners, housing providers, the construction industry, the Local Government Association, Local Authority Building Control and the National Fire Chiefs Council.

b) Experience of outcomes- based legislation

The proposed regulatory system is intended to be simpler and more effective, being outcomes-based, rather than relying on prescriptive rules and complex guidance, and ensures that those who create risks should be responsible for managing and controlling them. This approach is part and parcel of the Health and Safety at Work etc Act 1974 and its associated regulations, which HSE enforces. They are goal-setting and aimed at ensuring the risks to health and safety of workers and others are properly controlled (https://www.hse.gov.uk/legislation/hswa.htm).  HSE has experience in delivering culture change across industry and business sectors through such outcomes-based legislation.

c) Proportionate legislation

HSE is not in the business of over-regulation. Dutyholders are not expected to manage every conceivable risk out of existence. Health and safety at work regulation is all about what is ‘safe enough’, based on the foreseeability of the risk and what constitutes a proportionate response to the risk. This is based on sound science and evidence.

 

HSE approaches its regulatory role by applying the principles of HSE’s Enforcement Policy Statement (ie. targeted, proportionate, consistent, transparent and accountable https://www.hse.gov.uk/enforce/enforcepolicy.htm).  Inspectors use guidance (HSE’s Enforcement Management Model) to help with their enforcement decision making. This is a tried and tested approach that helps to provide proportionate and consistent enforcement expectations against benchmarks (https://www.hse.gov.uk/enforce/emm.pdf). Typically, these benchmarks are developed with the industry sectors to which they apply, e.g. with representative bodies, worker representatives and any fellow regulators. 

 

The situation is more complex where simple industry-wide benchmarks are not available but HSE has experience of working with industry to develop these and HSE proposes to do exactly the same with the housing sector.

 

One industry in which HSE has extensive experience of working with representative bodies and other organisations to drive up standards is the construction and building industry. As well as providing regulatory oversight, HSE has worked closely with employers and key job roles (ie client, principal contractor, principal designer) to embed and enforce dutyholder responsibilities under the Construction (Design and Management) Regulations 2015.

 

HSE has expertise of risk management of major hazards and the process and theory of safety case assessment and reviews through the COMAH regulations and other permissioning regimes in high hazard industries. Maintaining control of such operations requires the site to have leadership and a safety management system in place that:

 

 

This approach is a key part of the proposed HRB regime.

 

d) Translating our experience to new areas such as the residential housing sector

HSE is recognised for its experience in regulating the workplace both fixed and transient. While normally the remit of other regulators, HSE is active in protecting people in the residential housing sector from the risks, for example from, asbestos, legionella and gas supplies. Nevertheless, HSE does not underestimate the challenges of translating its broad experience into a non-workplace environment.  The safety of people has always been at the heart of HSE’s regime.  Residents’ safety (as well as the inherent safety of the building) will equally be our priority for this new regime.

 

Delivering the Building Safety Regulator

 

Work has already begun to establish the BSR and key early priorities for the shadow BSR are to appoint a Chief Inspector of Buildings to lead the BSR and to prepare the necessary infrastructure within HSE so that the fully-fledged Regulator can operate at scale as soon as possible after its powers come into effect.

 

 


 

Part B


Questions from the Housing Communities and Local Government Committee for Pre-Legislative Scrutiny


Q1: How well does the Bill, as drafted, meet the Government’s own policy intentions?

 

The crux of the Government’s policy intention, from the Regulator’s perspective, is that the Bill should legislate for a more stringent regulatory regime for higher-risk residential buildings. This regime will be informed by the key principles flowing from Dame Judith Hackitt’s Review which called on the Government to:

 

 

HSE is committed to transforming the regulatory and accountability framework for building safety and views the draft Bill as a major step towards delivering the fundamental reforms called for by Dame Judith Hackitt.  HSE has drawn on its experience of regulating construction and high-hazard industries to advise MHCLG officials developing the draft Bill, particularly on the development of the Building Safety Regulator’s (BSR) functions and is encouraged by the comprehensive set of regulatory and enforcement measures which it offers to the Regulator. 

 

We recognise that some individual areas of the draft Bill could be improved upon – and these matters are explored during the following sections of this evidence - but, taken overall, the draft Bill provides a strong platform for the new building safety regime. 

 

A particularly welcome feature of the draft Bill – from HSE’s perspective as the workplace health and safety regulator - is the common ground it shares with health and safety at work legislation. In particular, many of HSE’s existing stakeholders in the construction sector will find that the Bill replicates the roles they already occupy under the Construction (Design & Management) Regulations 2015 (CDM).  This strong element of continuity is invaluable – it will allow HSE, as the BSR, to build on existing stakeholder relationships, and on the safety gains it has already delivered with such stakeholders, to the benefit of the building safety regime ultimately protecting residents in high rise buildings. This also provides an opportunity for a holistic approach to the management of building risks throughout the lifecycle of a building to protect both workers and residents.

 

That said we are aware that the draft Bill is but one stage in a long journey.  The draft Bill delivers on its objectives by placing major responsibilities on the regulated community, and by providing strong mechanisms to the regulator. And many of these objectives, not least the culture change called for by Dame Judith Hackitt, will only be delivered through sustained commitment.

 

 

 

 

 


Q2: Does the draft Bill provide and appropriate scope for the new regime?

 

In the first instance, the new regulatory regime will apply to all multi-occupied residential buildings of 18 metres or more in height, or more than six storeys (whichever is reached first); however, the Secretary of State has the power (through regulations) to extend the regime further – either in light of government research or on the basis of advice from the BSR. Further, the Secretary of State can amend (through regulations) the definition of building safety risks (currently defined as fire and structural failure) to add other risks should the evidence suggest that they could also cause a catastrophic incident in a single event. Additionally, the Regulator may advise the Secretary of State – whether reactively or proactively – on proposals to change the definition of “higher risk buildings”, or to prescribe a new building safety risk.

 

HSE is committed to helping transform the regulatory and accountability framework for building safety.  The draft Bill provides a broad scope for the regulator’s oversight function (where it will oversee the performance of all buildings), for the new HRB regime and for the potential expansion of that regime:

 

i)                    HSE recognises that the intended scope of the new HRB regime may be contentious and that some stakeholders may consider the use of height (ie, the current 18m+/six storey threshold) to be too crude a risk factor for the purposes of determining the potential of a building for a “high consequence” event (major incident).  We nonetheless consider it an appropriate starting point given that the consequences of fire are likely to be more significant in higher buildings owing to the numbers of people and the limited escape options.  At the same time, we support the commitment – in the Government’s response to the “Building a Safer Future” consultation – to explore whether further buildings should be brought into scope based on appropriate risk factors. HSE’s experience of operating high-hazard permissioning regimes also supports adopting criteria for determining whether a building or activity is in scope of legislation as simple to understand, objective and as measurable as possible; any ambiguity should be avoided. Factors which reflect inherent hazard, or potential for a major accident and its consequences (rather than the likelihood of a major incident occurring) are better suited to the scope of a regime aimed at preventing high hazard – low probability events. A duty holder’s management and control of risk and compliance with statutory provisions can then be based on risk (ie. likelihood of an event occurring), as would be the scale, nature and targeting of the BSR’s interventions.

 

ii)                   HSE further welcomes the Bill’s approach to potentially bringing further buildings into HRB scope.  The proposed structured approach is essential for planning and resourcing purposes.  The benefits of a similar approach are seen already, in preparations to transition existing HRBs to the new regime in tranches, including the development of a prioritisation tool to assist prioritisation within the tranches (the draft bill ensures a general duty to keep buildings safe is in place from day one regardless of which tranche a HRB is in). This approach will facilitate lessons to be learned as the regime matures.  This work will be further informed by the outputs from the Fire Protection Board’s Building Risk Review Programme, where all existing HRBs over 18m will be reviewed and audited by the end of 2021; 

 

iii)                 a guiding principle of the new regime is to apply proportionately more rigour to regulating the safety of buildings where the consequences of significant fire and/or structural failure could put many people’s lives at risk. This is a robust, evidence-based approach with which HSE concurs and we will prioritise our interventions accordingly;

 

iv)                 for the future, the flexibility offered by the scoping provisions will be of further benefit, allowing all parties to make informed decisions where changing circumstances and new evidence may point to the need for changes.

 

 

 

 


 

Q3: 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?

 

Dame Judith Hackitt’s Review found that those responsible for the safety of buildings are not deterred from failing to comply with their responsibilities as they are not effectively held to account, because i) enforcement action was not taken due to priorities lying elsewhere and ii) where action was taken, penalties were too low to act as a deterrent.

 

HSE welcomes the objective to make those who create building safety risks responsible and accountable for managing and controlling them.  This is a basic tenet of health and safety philosophy with its roots in the review of workplace health and safety undertaken by the Committee led by Lord Robens in the 1970s, which led to the Health and Safety at Work etc Act 1974. The Committee believed that, amongst other things, overly detailed workplace regulations encouraged employers to relinquish their responsibilities and think that safety and health was a matter for the government. The Health and Safety at Work etc Act 1974 places goal based general duties on employers and others to prevent harm to people, supported where necessary by secondary legislation, codes of practice, and guidance

 

The system of accountabilities and sanctions set out in the draft Bill support this approach and address the current over-reliance on regulators’, rather than duty holders’, assessments that buildings meet the required standards.   

 

Together they address previous failings by introducing new dutyholders, new responsibilities and strong incentives for compliance.  At the same time, it is not a “step into the unknown” –the proposals are firmly evidence-based, drawing on tried and tested practice in the occupational health and safety regime – notably, by adopting the dutyholder roles found in the CDM Regulations.

 

Equally, the new regime allows the regulator flexibility and discretion in the exercise of its new powers through secondary legislation and guidance. This approach benefits the regulator and regulated community alike - it allows room for common ground to be established with shared expectations of how legal requirements will be applied and enforced. Moreover, regulatory flexibility and discretion will facilitate improvements in the regulatory regime as lessons are learned as the regime matures.

 

HSE will also work with MHCLG to fine tune those areas of the draft Bill where, there is need for greater precision and clarity – in particular:

 

             

            We recognise that there will be overlaps with other legislative regimes, most notably the Regulatory Reform (Fire Safety) Order 2005.  However, we are confident that the focus on ensuring the right leadership and management of building risks in a holistic way will supplement the delivery of fire safety outcomes under the FSO.  Regulatory overlaps are not uncommon, and where necessary tools, such as Memoranda of Understanding, can help to bring clarity on how these regimes will interact, for dutyholders, residents and our partner regulators.  While overlaps can be managed, we would not want to see gaps in the protection for residents that might be inadvertently created by well-intentioned attempts to define regulatory interfaces in precise detail through legislative means.

 

 


 

Q4: Will the draft Bill provide strong mechanisms to ensure residents are listened to when they have concerns about their building’s safety?

 

Dame Judith Hackitt’s Review emphasised that it was imperative to “put residents at the heart of a new system of building safety for buildings in scope, empowering them with more information, engaging them on how risks are managed in their building and ensuring effective routes for raising and escalating safety concerns”.


Residents’ views and concerns must never be ignored by those responsible for managing the safety of their buildings - and that applies equally to the regulator. HSE welcomes the comprehensive coverage offered by the draft Bill and the clarity of roles and responsibilities it provides. HSE is confident that the draft Bill provides strong mechanisms to ensure that residents are listened to when they have concerns about their buildings safety.

 

The success of the workplace health and safety system reflects the close collaboration between duty holders and workers required under the Health and Safety at Work etc Act 1974, and successful businesses rely on engaging with their workforce on solving problems and ensuring safety outcomes.  There are parallels with what is being proposed under the draft Bill.

 

The regulator’s complaints system is a large undertaking and HSE is building capability and systems to address the challenges in operationalising it.


 

Q5: Is the Government right to propose a new building safety charge? Does the draft Bill introduce sufficient expectations to ensure that leaseholders do not meet excessive charges and that their funds are properly managed?

 

The draft Bill proposes a new ‘building safety charge’ (clause 89). This will give leaseholders greater transparency around costs incurred in maintaining a safe building. It is envisaged this will include costs such as employing a Building Safety Manager and producing a building safety case report demonstrating how risks have been assessed and mitigated.

The draft Bill places obligations on the landlord in relation to providing budgets and estimates to tenants and making demands for building safety charges. The charges will be separate from the service charge, so that costs incurred on building safety measures will be readily identified and accounted for. In addition, there is an obligation on the landlord to deduct the value of any funding received, and there is a provision to exclude some costs from recovery.

HSE agrees that leaseholders should not face unaffordable costs, nor should they have to worry about the cost of fixing historic safety defects in their buildings that they did not cause. HSE welcomes the draft Bill’s facilitation of transparency, the limitations to the building safety charges, exclusion of some costs and also the provision of powers for the Secretary of State to prescribe additional exclusions via Secondary Legislation.

HSE also recognises that there is an importance balance to be struck in the building safety charge between the legitimate needs and obligations of the landlord/other Accountable Person, the residents and the Regulator.

 

 


Q6: Does the draft Bill improve the product testing regime in a way that will command the full confidence of the sector?
 

Dame Judith Hackitt’s report stated that ‘products must be properly tested and certified and labelled and marketed appropriately’.

The current regulatory regime for construction products requires manufacturers to test products, declare their performance and put in place systems to ensure that performance is consistently met. However, this regime currently only covers construction products where there is a harmonised EU standard in place so for example, Aluminium Composite Material (ACM) ACM cladding falls out of scope of the regime.

The draft Bill proposes to create powers to broaden the regime to bring more construction products into scope.

 

MHCLG will work with construction product industry leaders, in consultation with the new Building Safety Regulator, Fire and Rescue Authorities, local building control, Trading Standards and devolved governments to identify safety critical products that currently are not covered by the existing regulations. The products identified in this process will then be brought into the scope of the regime.

 

Where products do not meet the claimed performance, manufacturers will be required to take action to correct, withdraw or recall them.

 

MHCLG are also creating a national construction products regulatory role, responsible for market surveillance and oversight of local enforcement action, enforcement action with manufacturers and providing advice and support to industry.

 

HSE welcomes the broadening of scope for the regulation of construction products and the establishment of a Construction Products Regulator. HSE, in its current capacity and in the future as the BSR, will continue to advise MHCLG where necessary. Three major challenges currently under discussion are:

 


 

Q7: Is it right that the new Building Safety Regulator be established under the Health and Safety Executive, and how should it be funded?

 

The Government’s decision that the new BSR be established within HSE followed independent advice to Ministers from Dame Judith Hackitt, which identified HSE as best placed to deliver the changes needed because:

 

 

Dame Judith Hackitt’s Review further recommended that the regulator for HRBs be funded through a full cost recovery approach. The Bill makes provision for this, allowing the Regulator (though regulations made by the Secretary of State) to charge fees and recover charges from those it regulates in relation to its HRB functions. The Bill makes similar provision for the Regulator to cost recover in respect of: its general functions under the Bill; its functions under the HSW Act 1974; and its functions under the Building Act 1984 (BA) and relevant regulations (local authorities may similarly charge for their own functions under BA legislation).
 

HSE is committed to make the new regulatory system work and considers that it has the skills, experience and independence to do so (for details of which, see Part A of this evidence). Equally, the regulator must be seen to deliver on the high expectations which residents and the regulated community rightly hold.  The draft Bill makes provision for such accountability, including (at clause 34) for reviews of the regulatory regime on a five-yearly basis and the prospect of moving the Regulator out of HSE, should that be the decision of the Government in future.   HSE welcomes the detailed scrutiny which such reviews will provide, together with the accountability which the regulator will routinely owe to Ministers and Parliament.
 

The Government has agreed that the regulator will be established in both shadow form and fully-fledged form. Preparations for the shadow form are underway.  Its priorities will include:
 

 

On fees and charges, HSE will lead on the development of the secondary legislation which will give effect to the powers provided for in the Bill. This legislation will be subject to full consultation and will be guided by five key principles, with a view to it being equable and transparent to all parties:

 

 

 

 

 

 


Q8: Does the draft Bill present an opportunity to address other building safety risks, such as requirements for sprinkler systems?

 

The draft Bill does not itself include requirements for measures such as sprinkler systems, but instead provides the framework by which such requirements may be set out in secondary legislation. Additionally, Dame Judith Hackitt’s Review recommended that:

 

 

 

From the regulator’s perspective, the BSR’s role in regulating measures such as sprinkler systems would include:

 

 

 

 


Part C


Additional Points


Overview

 

HSE is working with MHCLG to finalise clauses that are still under development. Although mostly technical, there are some important policy areas,

The BSR Oversight Function

Oversight is one of BSR’s three key functions and addresses the safety and performance of the built environment.  It applies to all aspects of a building’s performance i.e. beyond fire and structural safety and covers all buildings not just higher risk buildings.  The function includes activity on:

HSE welcomes the additional measures that the draft Bill brings to strengthen the oversight function and grow greater ownership of safety outcomes by industry.

 

While MHCLG will retain policy responsibility for building safety legislation, HSE anticipates taking on strategic and day-to-day control over the organisation, management, delivery and relative priority of the oversight function, applying its long-established risk-based approach to ensure a focus on safety outcomes and HRBs.

 

Implications arising from HSE implementing the oversight role in this flexible and strategic way remain subject to further exploration, though the focus will be fire and structural safety rather than other areas.

 

Ongoing development of the draft Bill

 

HSE continues to advise MHCLG on aspects of the draft Bill that are still in development. In particular, the following clauses are being jointly worked on with MHCLG prior to the Bill being introduced into Parliament:

a)      Clause 52 – Information Register

b)      Clause 62-66 - Registration and Certificates

c)      Clause 68 – regulator’s power of veto over a Building Safety Manager’s (BSM) appointment

d)      Clauses 72-77 - the safety case report clauses

e)      Clause 94 – offences (for contraventions by Accountable Person)

f)        Clauses 95 - 100 - Special measures clauses

 

Clauses in Development for the Bill’s Introduction to the House

 

There remain some technical and detailed areas of the policy intent for legislation that are being developed on a timeframe for the Bill’s introduction into the House. Details can be provided to the scrutiny committee as required. These areas include:

 

Implementation

HSE is working with MHCLG colleagues to facilitate the phased implementation of the new regulatory regime, where safety case reports will be reviewed, and building certificates issued, in accordance with risk.  HSE is working closely with MHCLG to build capability for ‘Day1’ of the regime. This preparatory work includes a system whereby the submission of safety case reports by dutyholders will be prioritised into tranches that are based upon a buildings hazard profile.

Dutyholders will be expected to comply with the duties and obligations established by the draft bill from day one of commencement.

Planning Gateway One is being established via secondary legislation under the existing planning system in England and does not form part of the draft Building Safety Bill. HSE is in discussions with MHCLG on how best to operationalise Gateway One.

 

September 2020