RDC0004

Written evidence submitted by Andrew Tyron

I am writing to volunteer this letter as a submission of evidence to the Public Accounts Committee inquiry into remediating dangerous cladding.

1. I must begin by stating that I am not in any way a specialist in cladding or in buildings.  Nor do I have any knowledge of any such cases.  I work as a Chartered Civil Engineer in the discipline of infrastructure design and the point I wish to make is a general one pertaining to the provisions of the Construction Design and Management (‘CDM’) Regulations, and particularly in relation to health and safety files.

2. The CDM regulations were introduced in 1994 [1] with subsequent versions introduced in 2007 [2] and, most recently, in 2015 [3].  Although there are some exceptions for smaller projects, the regulations require that for most construction projects a ‘health and safety file’ is produced.  The purpose of the health and safety file is to contain the information needed to allow future work such as maintenance, alterations and demolition to be carried out safely.  The exact format or content of a health and safety file are not prescribed.  Following completion of the construction phase, the regulations require that clients keep the health and safety file and pass it on to anyone else who acquires an interest in the building.  In summary, the regulations envision and require that information that is produced during design and construction should be retained and passed on to those who may need it in future.

3. Given the intentions of the CDM regulations, it is salutary to hear that many building owners are now facing great difficulty in determining the make up of their wall construction. Indeed, in a recent interview on BBC Radio 4, the fire engineer Jon Pagan described his experience of dealing with buildings with apparently no records at all [4].  Inevitably, these cases result in the need to undertake intrusive, damaging and in some cases difficult investigations of buildings, with attendant hazards.  In contrast, were the CDM regulations working as I imagine they were intended, the question of ascertaining the type of insulation buried within a wall construction would, and should, simply be a case of referring to the records retained within the health and safety file.  Granted, some buildings may have stood unaltered since before 1994 and therefore fall outside the scope of the CDM regulations, but there will be many others that fall within the regulations.

4. If we recognise that the CDM regulations envision a chain along which information is passed, starting usually with designers, moving through construction, to clients at completion and then owners, then it becomes obvious that there are many stages and interfaces at which necessary information may be lost.  I work in a profession that is subject to the CDM regulations, so it seems pertinent at this point to share my own views of a few of the potential weak points that I have observed within this chain:

1. Firstly, the CDM regulations themselves leave the decision as to what information is incorporated into a health and safety file as a matter for those who are responsible for producing the file.  As a result, I have seen at times debate over precisely what information is essential, and what is not.  There is a strong argument that too much trivial information can detract from what is important.  It seems conceivable to me that a designer or contractor might for example decide that choice of insulation – a soft non-structural material - is a trivial matter not needed in a health and safety file.

2. Even when it is very clear that certain information should be retained in a health and safety file, it is not always the case that this is done.  There could be many and various reasons for this including for example poor communication between parties during construction.

3. Even if all the required information is incorporated into a health and safety file at construction phase, it is not clear that clients subsequently keep this information or pass it on to future interested parties as they should.  Given that the CDM regulations impose legal requirements upon building owners to retain and pass on this information, I wonder whether this should be a standard item for conveyancing solicitors.

4. Finally, even if the required information in a health and safety file is passed on, it is not always trusted by those who need to rely upon it.  For example, in my experience most professionals would never solely rely upon ‘as-built’ drawings, preferring instead to conduct their own investigations as to the facts, the key consideration here being professional liability.  There are many sound reasons as to why ‘as-built’ drawings are not fully trusted.  Often, ‘as-builts’ will simply be the original design drawings with an as-built stamp added and consequently there is no way for another party to later verify whether any changes that might have been made on site were properly recorded on the ‘as-builts’.

5. In conclusion I feel that, given the present difficulties being faced by many building owners in ascertaining the construction of their walls, the CDM regulations have failed to fully achieve their purpose.  I have given my own thoughts as to some of the weaknesses in the system and I hope these prove useful.

July 2020