Independent Review of Construction Product Testing calls for full supply chain to take greater responsibility to restore trust in system

The much-anticipated Independent Review of the Construction Product Testing Regime was published on 20 April. It identified several major gaps in the current system, while highlighting the requirements of the full supply chain to take greater responsibility over its actions.

The review, carried out by Paul Morrell OBE and Anneliese Day KC, was initially announced in April 2021, with the purpose of identifying weaknesses in the system and to make recommendations for improvement.

In summary, it has found significant gaps remain in the system – one that has been under intense scrutiny following the Grenfell Tower fire in 2017. Key findings include:

• Only one-third of construction products currently fall under a standard covered by the Construction Products Regulations (CPR) – two-thirds remain unregulated
• The process of reviewing standards, Conformity Assessment Bodies (CABs) and UKAS itself is “slow, insufficient and of variable quality”, leaving standards outdated and inconsistent
• The assessment process is overly complex and few people understand it in its entirety
• The whole system is overloaded and slow
• Enforcement has been “totally non-existent” allowing bad actors to feel they can bypass regulations without consequence

While acknowledging that the Building Safety Act and its secondary legislation is designed to tackle some of these issues – coverage and enforcement in particular – the Review found that many gaps remain.

Several potential solutions have been proposed in the review, but the concluding statements ultimately noted that any change will require clear regulatory requirements and standards. Crucially, it will also require all those involved in the supply chain to act honestly and responsibly for the public good.

Read the full Independent Review of the Construction Product Testing Regime here >>

Purpose of the Independent Review of the Construction Product Testing Regime

The key purpose of the Independent Review was to address the question of:

How can the UK system for testing the safety of construction products and the use of data from the system be strengthened, to inspire confidence that those products are safe and perform as labelled and marketed?

In doing so, the review set out to:

• map the system for testing, certifying, marketing, selling, re-testing and recalling construction products;
• assess what does/could go wrong within this system; and
• recommend how the system should be strengthened.

The report was not limited to just those products applicable to higher-risk buildings. It also acknowledged that uncertainty remains around several factors, such as conformity assessment following the UK’s exit from the EU.

Ultimately, the conclusion reached at the end of Phase 1 of the Grenfell inquiry found that products that were either incorrectly selected, installed or failed to perform as they should were key to the rapid spread of the fire. While in Phase 2, fault was found of the manufacturers and those responsible for testing.

Credit: elxeneize/AlamyStock

This provided the necessary context for an independent review of the construction products testing regime to take place.

Key gaps found in the system

The Executive Summary of the 174-page report found several gaps in the system, which it breaks down into six key areas:

• Coverage – Only construction products for which there is a designated standard are covered by the CPR – about two-thirds of products remain unregulated.
• Purpose – Regulation was originally designed to create a level playing field for a single market and not to ensure a safe or sustainable product or building – there isn’t really a specific ‘UK system for testing the safety of construction products’.
• Standardisation – Everything depends on the relevant standards, how a product is to confirm, how it is to be tested and accredited and how Conformity Assessment Bodies themselves are reviewed by UKAS. The report found that this process can be “slow, insufficient and of variable quality” – leaving standards outdated, inconsistent or non-existent. Research conducted in 2020 questioned the fitness for purpose of a number of standards critical for testing products for resistance and reaction to fire.
• Complexity – The CPR assessment process is overly complex meaning few people fully understand it. This has created a disconnect between those involved in assessment and those who actually design and construct buildings. A process that isn’t understood is unlikely to be regularly and properly reviewed and enforced – allowing people to take advantage of a lack of transparency.
• Capacity – The whole system is overloaded and slow, leaving a threat to quality and barrier to reform – especially concerning if CE marking is no longer recognised in Jan 2023.
• Enforcement – Found to have been “totally non-existent”, meaning bad actors may feel they can bypass regulations without consequence – no centralised database of regulatory investigations or enforcement actions or of products that might represent a risk.

Building Safety Act 2022 – Will it tackle any of these issues?

The report acknowledges that the Building Safety Act 2022 and its secondary legislation is primarily looking to tackle two of these issues: coverage and enforcement.

Coverage

BSA plan: All construction products will be brought into the scope of the CPR by virtue or a “general safety requirement”. Those not currently covered can be brought into regime with a new designated standard or be added to a list of ‘safety critical’ products.

Review response: The review noted practical, proportional and effectiveness challenges of a regulatory ‘catch all’ that essentially extends from a principle designed for consumer goods. It may also be difficult for both manufacturers and a regulator to fully understand the market without prescriptive measures of compliance, while issues may occur retrospectively meaning it is difficult to ascertain blame.

Review solution: The review suggests that a requirement for all manufacturers to issue a Declaration of Performance in the way currently required of products regulated under the CPR. This will support dutyholders in accessing reliable information about the performance of their products. In summary, it is suggesting an extended requirement for a Declaration of Performance to all construction products.

Enforcement

BSA plan: Enforcement will be strengthened with two new regulators: National Regulator for Construction Products who will work with the Building Safety Regulator. There will also be greater requirements for manufacturers to share technical documentation.

Review response: The review questioned how effective a new regime will be where there is added complexity and a fragmentation of responsibilities. In particular, it notes Trading Standards officers have little to no experience in the construction sector.

Review solution: The review highlights that the industry will require persuading that enforcement will be effective, and how regulatory continuity will be established in following products from manufacture to installation. This links to the requirement for the golden thread of information to go beyond design stage.

It also adds that there are issues around the definition of safety critical products – some may be safe in one use but unsafe in another. This will need workable and legally robust criteria for categorising products in certain applications as safety critical.

What remains missing from legislation?

Several areas are still missing from legislation, the report says. These include:

• Government, UKAS and the oversight of CABs – questions over remit of UKAS (no enforcement powers) and requires more dynamic oversight of CABs to strengthen third-party certification schemes
• Purpose of UKCA marking – no question over the fundamental purpose of marking or the potential to simplify the process
• Assessment process – needs to be simplified and strengthened – report proposes a series of graduated options to raise the standards of the system and making assessment of safety critical products more stringent to focus on those that might result in real harm in the event of failure
• Conformity Assessment Bodies – doesn’t believe CABs have demonstrated any obvious sense of a need for change in the wake of the Grenfell tower fire. Wants a clearer statutory duty to be aware they’re acting in the public interest, and a duty to warn the new regulator where they suspect manufacturers to manipulate the system
• Product manufacturers – more self-regulation required such as increased use of voluntary third-party certification schemes and the potential for a Code for Construction Product Information similar to that of the Advertising Standards agency
• Government procurement – Government should use its buying power as an incentive to adopt good practice by setting out how designers, contractors and specifiers can approach safe building outcomes and commit to the Building a Safer Future Charter
• Joint government-industry action plan – continuous engagement required by government and industry to ensure success of Building Safety Act – progress should be subject to six-monthly report to Secretary of State
• Body of knowledge – particularly fragmented around fire, with many organisations engaged in this specialism. Need to pull a body of knowledge together which is accessible and kept under review with public interest at its core.

Read the full Independent Review of the Construction Product Testing Regime here >>

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