Written evidence submitted by Working Group 8 (Competence Steering Group) [BSB 427]

Working Group 8 (WG8) on Competences for the building safety manager (BSM) welcomes this opportunity to provide feedback on the draft Building Safety Bill.

About WG8

An Industry Response Group was established by the Ministry of Housing, Communities and Local Government (MHCLG) in early July 2017 to provide access to technical expertise from the Built Environment and to stand ready to mobilise industry to support a programme of remediation if necessary.

Following the publication of ‘Building a Safer Future: Independent Review of Building Regulations and Fire Safety: Final Report (The Hackitt Review), industry established the Competency Steering Group (CSG) and sub-working groups covering professions and trades to develop proposals to assure the competence of those working on buildings that would fall under the new regime.

Working Group 8 (WG8) was established as one of the sub-groups to develop a competence framework for the BSM.  WG8 members cover a wide range of residential and commercial expertise for the occupation phase, with participating members coming from social housing sector, commercial and residential management, facilities managers, health and safety experts and fire safety experts.[1]  Meetings were attended by MHCLG officials.

The final WG8 report ‘Safer People, Safer Homes’, which contains our recommendations for both the BSM competences and its wider operating environment, will be formally published as part of the CSG ‘Setting the Bar’ report in late September but is already available to MHCLG and the Health and Safety Executive (HSE). We would welcome the opportunity to discuss its contents with Committee members.

WG8 will continue to work with BSI and MHCLG to turn the BSM competence framework into a Publicly Available Specification (PAS) and we will continue to work with the department and the new Building Safety Regulator (BSR) both together and as individual organisations to embed the new regime to ensure safe homes for people.

We have tried to provide concise answers to the questions below and will remain engaged to assure the new regime is embedded in a manner that realises Dame Hackitt’s vision and the draft Bill’s policy objectives.

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

WG8 members welcome the draft Building Safety Bill and the progress it is making towards enabling the vision set out in the Hackitt Review.

In particular we welcome the outlining of a system of accountability and responsibility throughout the lifecycle of a building which will be critical to deliver safe homes and buildings.  Crucial to the delivery of a sound system of accountability and responsibility is the competence of people delivering it and sanctions in the event of failure.  Our comments, however, will focus for the most part on the element of competence.

An essential element to deliver safe homes and places is the availability of the right, correct, and up to date building information.  For this reason, we welcome the embedding of a golden thread of information through a variety of processes, gateways and information requirements and offer our continued support for its development.  Our report has made several recommendations of how this should be approached to make this work on the ground.  This includes the need for mandated structures and information outcomes.  We also welcome great progress on the development of greater resident engagement and the establishment of the new Building Safety Regulator within the Health and Safety Executive. 

While we welcome the overall high-level principles, WG8 members look forward to receiving the detail that will enable them to operationalise the new regime, we offer our continued help for the development of the secondary legislation which will hopefully provide more clarity on how significant areas of the draft bill will work in practice.

Key issues that we would like to bring to the attention of the Select Committee are:

• Timetable for implementation of the new regime: greater clarity is needed on not just the detail of the secondary legislation, but also the expected timetables to allow working towards implementing the regime.
• Ongoing concerns around the professional indemnity insurance: this relates both to duty holders and for newly developed roles such as the BSM.  Further consideration needs to be given as to how the insurance industry will respond to the new regime as feedback from people on the ground for a variety of roles such as the BSM, and fire risk assessors, is that the high insurance premiums could prevent competent roles from being delivered, therefore potentially undermining the entire new regime.
• Coherence with other relevant legislation: it is crucial that the draft Building Safety Bill also aligns and interlinks with other pieces of life safety legislation such as the Regulatory Reform (Fire Safety) Order 2005 (FSO) and the Fire Safety Bill, to ensure there are no gaps or confusion between complementary regimes.

• Risk assessments: the requirement to determine from risk assessment whether hazards may lead to a major incident does not exist in current practice.  This will require a new approach to risk assessment and building risk registers taking into account, fire, structural failure or other prescribed matters and therefore specific guidance will be needed. This will aid evidence of compliance with sections 72, 73 & 76.  Although the first focus is on HRRB’s, this should be encouraged to become industry best practice for assessing building safety risks for other residential/mixed use properties.

• Notification of change of safety case to regulator: we are concerned that this may discourage people from changing the safety case, undermining its purpose.  More definition, and possibly guidance, is needed around what constitutes a notifiable change.  In addition, not notifying the BSR of changes should be considered a breach of the Bill with associated, proportionate sanctions.

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

Building safety risk/clause 16: WG8 has consistently argued that to achieve a holistic ‘whole systems and life safety’ approach the regime’s scope should be extended beyond fire and structural safety. While we welcome the opportunity within clause 16 for the scope to be extended beyond fire and safety, we also noted that because of the criterion of major accident hazard the expansion to other building safety risks in the future is likely to be minimal. 

Our concern centres on the fact that with clear attention and accountability on ‘fire and structural safety’ other areas of life safety could potentially continue to risk non-compliance, with some of those areas not necessarily leading to a major accident, but nonetheless impacting residents in a significant and potentially ongoing manner.  Following on from the Hackitt Review we had initially hoped to see wider areas of life safety (i.e. public health) being brought together in one regime. Given this is not possible the legislation could still cross reference to other relevant legislation, much like the references to the FSO.  Additionally, this can be integrated at operational level through the development of further guidance, the PASs covering the three new statutory roles and the overarching competence framework.

‘Whole Building’/Clause 102 Cooperation and coordination:

A new duty to cooperate and coordinate with the Responsible Person (RP) in the FSO will apply to the accountable person (AP) and the BSM where there are common areas or commercial parts of a mixed-use building in scope.  This is to achieve the ‘whole building’ approach outlined by Dame Hackitt as the draft Bill will only cover the residential parts of a building.  While WG8 very much welcomes this alignment with the FSO, we are concerned that this approach does not fully negate the potential for gaps, especially in mixed use and other complex ownership structures where it might be difficult to identify a lead AP.

We therefore recommend that Government deliver detailed guidance on aspects of control and associated responsibilities throughout mixed use and other forms of building occupation, including specifically ‘Right To Manage’ and commonhold organisations, many of which will have very varied ownership structures. WG8 would also suggest that such guidance also cover the expected alignment and implementation of various other (duty holding) roles, beyond fire.

In addition to the above, the complexity of residential property management, is the wide range of ownership models, some of which can overlap in a single whole building.  This can give rise to a potential hierarchy of organisation BSMs and Nominated Individuals, all responsible for different areas within one ‘whole building’.  It is therefore crucially important that these individuals cooperate, and coordinate and that due consideration is given to this potential situation when undertaking a Safety Case review or considering the roles and responsibilities when registering a building at Gateway 3.

Higher risk buildings/clause 19:

WG8 agree with the proposal for an initially narrow definition of higher risk buildings to allow for the new regime to be embedded. We welcome the flexibility built into the draft Bill which will allow for a wider range of buildings to be brought into scope in a phased manner. WG8’s BSM competence framework has been developed to allow for a roll-out across the wider residential and even commercial sector, during a reasonable, sustainable transition period.  We also welcome the potential flexibility to only make certain elements of the new regime applicable to future additional building types.

Will the Bill provide for a robust – and realistic – system of accountability for those responsible for building safety? 

The accountability and responsibility system incorporated in the Bill will be critical for delivering safe homes and we agree with the high-level principles.  We welcome the fact that building management is rightly being recognised as an integral part and important phase in the lifecycle of a building.  Critical of course is the clarity on who the AP is, and that people responsible for the delivery of building management and life safety are competent to the right standards. 

Our comments focus on:

Relationship accountable person and BSM, and related competence requirements:

• We are pleased to see that the accountability does indeed lie with the AP, but additional guidance will still be required to ensure a clear AP arises in complex ownership structures.

• The explanatory notes are clear that the accountable person is the duty holder and that the BSM is the person/organisation that will deliver the day-today management of the building. The notes are clear that the accountability lies with the AP and that the delivery of the day-to-day management lies with the BSM, who needs to be competent for that role.  This same clarity is not achieved in the actual write up of the Bill, which is written as if the accountable person will deliver against their statutory duties outlined, rather than delegating them to the BSM, which is what will happen in reality.  This clarification is important as the accountable person will often not be competent to carry out their duties, neither do they have specific competence requirements against their role/duties.  Therefore, there needs to be greater clarify on the relationship between the AP and BSM in the Bill, not just the explanatory notes.

• We would like to see the clear demand for competence for the other key roles – the principal designer and principal contractor – being reflected in the same clear and straightforward manner to the occupation phase. The language in those other parts relating to duty holder competence requirements are absolute, whereas they are more conditional in the occupation phase for the BSM.  This is in part because in those previous phases, the duty holder role and competence requirements are embodied in the same role, while in the occupation phase the duty holder requirements and the competent day-to-day delivery has been split across the accountable person/duty holder and the BSM respectively. Additionally, there is a clear need for explicit competence during the occupation phase as often changes will be made, including by residents, without the input of a principal designer/contractor.

Building registration process and certificate:

• The registration process for existing buildings has too many stages.  While the registration and application for certificate were anticipated, this should be feasible in a one step process.  The draft Bill outlines one must register the building as an HRRB and then apply as an accountable person.  While this will help the HSE to understand the volume they are dealing with, a simple one step registration would be better than a two-step process which is unlikely to help with compliance as if someone is going to comply with step one, they will comply with step two. 

A competent workforce – systems, structures and processes to achieve this:

• The delivery of safe homes will depend very much on having a competent workforce and competent BSMs.  Greater clarity is needed on how the requirements for enhanced competences are enforceable given that much of this will be implemented by secondary legislation, statutory guidance and PASs.  There is still some uncertainty how the theory will be operationalised and then assess and deliver the competent people needed, to ensure that unscrupulous businesses and organisations don’t circumvent the frameworks and competence requirements outlined and opt for cheaper, non-compliant programmes. How can we ensure that the outlined route is followed?  Mandating the forthcoming PAS explicitly in statutory guidance would provide for greater clarity on what criteria and processes to comply with.

• Many of the improvements outlined in the draft Bill require a change in attitude and culture of the wider built environment sector, the organisations within and its workforce.  WG8 consider that the establishment of a central register would support this change, especially driving up competence standards.  Such a central register would hold the names of those individuals, and organisations, that will have upskilled their competence according to competence criteria of the different CSG Working Groups/forthcoming national BSI standards.  This would include a list of certified/competent Nominated Individuals who could deliver the BSM role. This register could be held by Industry Representatives, Professional Bodies participating in the certification schemes for competent people, or by the BSR, but must have some recognition in law or by way of a requirement set down in statutory guidance. 

• Another area contributing to culture change and delivering consistent standards of competence across the sector is the uniformity of the assessment standards applied. While we are anticipating this to be included in forthcoming workstreams the lack of clarity makes it difficult to commence delivering certified competent people. Of particular concern is the need for assessment standards to be part of the competence requirements.  WG8 are in the process of putting forward proposals to MHCLG, BSI and the HSE. 

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

• WG8 fully supports giving residents a stronger voice and ensuring that concerns and interests will not be ignored.  As such we fully support the role of the Resident’s Panel within the remit of the BSR.

• WG8 have argued that the scope of the legislation should really cover all ‘occupiers’ beyond those classed as resident.

• The definition of common parts and section 86 Duties on Residents does not address the issue that some building features which contribute to overall building safety can be owned by leaseholders.  Particularly this includes items such as flat entrance doors, windows and balconies.  Section 86 defines residents need to cooperate on prescribed matters. This is basically disclosing evidence of gas and electrical safety only.   This therefore leaves both the AP and BSM toothless to address associated structural and compartmentation risks which are fundamental to the safe operation of the building.

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?

There is a challenge for government to ensure that the costs of implementing requirements in the new regulatory system remain affordable, both to residents and owners.  The proposed “building safety charge” needs further consideration as it does not provide the necessary protection for leaseholders from both historical and future charges.

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

WG8 welcome this development as the HSE is already a respected authority for its independence and considerable experience in their field.  Having HSE play this lead role should also provide for greater application and uniformity of the regime across the country.

WG8 would like to stress the importance of the role of validating the AP’s due diligence around BSM competence.  Equally important for the new regime’s success are the role enforcement and assuring compliance play in driving standards.  The Regulator needs to be assured they have sufficient funding in place to be able to carry out their role, delivering safe homes.  Without an efficient enforcement regime, the incentive for non-compliance will be too great and the new regime undermined.

The greatest ‘burden’ of the new regime will fall on existing occupied buildings.  A two staged approach could therefore be suggested, where HSE is self-funded for new builds, with a level of government funding support for existing buildings for an initial phase of setting up the new regime.  Once all buildings in scope are registered, a fully self-funded approach could be taken.

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

WG8 suggest that flexible clauses should be introduced to allow for new developments and insights on building safety issues to be implemented appropriately, as and when they arise and if deemed opportune (either through secondary legislation or existing legislation), including those building safety issues and systems that form part of the Grenfell Tower Inquiry. 

September 2020