Ron Alalouff

Freelance journalist

Author Bio ▼

Ron Alalouff is a journalist specialising in the fire and security markets, and a former editor of websites and magazines in the same fields.
May 5, 2020

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Vulnerable workers: A Barbour guide

Post-Grenfell regulation aims to transform fire safety in buildings

Nearly three years after the devastating Grenfell Tower fire, the Government has published its proposals for what it calls “the biggest change in building safety for a generation”. Ron Alalouff highlights the main features of the wide-ranging provisions.  

The proposals for a new building safety regime are set out in the Government’s response to the ‘Building a Safer Future’ consultation and are based on the acceptance of all 53 recommendations of Dame Judith Hackitt’s Independent Review of Building Regulations and Fire Safety, and in some cases may go further.

The Government is proposing to apply the new safety regime initially to all multi-occupied residential buildings of at least 18 metres, or more than six storeys (buildings “in scope”), but this can be extended to other premises. The new Building Safety Regulator will have a duty to keep the scope of the regulatory system under review and to provide advice to government when the evidence suggests it should be extended.

The new regulatory structure will initially apply throughout the lifecycle of new builds, and later to the occupation stage of existing buildings. There will be a new duty-holder regime placing greater responsibility on those designing and constructing buildings to explain how they are managing risks and demonstrating that the building is safe to be occupied.

Building Safety Regulator

The Building Safety Regulator (the regulator) will be responsible for all major regulatory decisions made at key points during the design, construction, occupation and refurbishment of relevant buildings, drawing on the expertise and advice of other regulators and relevant experts, such as fire and rescue services, local authorities and the Health and Safety Executive. Decisions will include whether to allow a building to be constructed and later occupied, and whether the Accountable Person has demonstrated that appropriate actions to mitigate and manage fire and structural risks are being taken. The regulator will have a duty to keep the scope of the system under review and provide advice to the government when it should be extended.

Highlighting the move away from local control, the Building Safety Regulator will also carry out functions at national level, such as:

  • Establishing a register of relevant buildings and other national systems
  • Ensuring that residents’ complaints about safety issues are dealt with quickly and effectively
  • Producing advice to help duty-holders discharge their responsibilities
  • Advising on current and emerging safety risks in relevant buildings
  • Hosting centres of excellence to strengthen enforcement, including specialist expertise to assist with prosecuting complex cases, and to develop best practice on engagement with residents.

The regulator will also have a wider role beyond buildings in scope and will carry out regulatory functions that will apply to all buildings. These include ensuring that designers and builders can access “cutting edge” advice on delivering safe, high-performing buildings; advising the Government on changes to the building regulations and Approved Documents; overseeing the performance of building control bodies; and advising on current and emerging risks to building safety and performance. A new oversight structure staffed by a wide range of specialists from across the built environment will replace the current Building Regulations Advisory Committee.

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The regulator will also oversee the assurance of competency of those working on buildings across all disciplines, in order to give confidence to duty holders and residents that people are competent to carry out their jobs ensuring quality, safety and compliance with building regulations.

On the Hackitt review’s recommendation, the new Building Safety Regulator is being set up within the Health and Safety Executive – initially in shadow form so that it can work with government to develop relevant legislation such as the Building Safety Bill – and will report directly to the Secretary of State for Housing.

Duty holders

During the design, construction or refurbishment of buildings, duty holders – including those identified in the Construction (Design and Management) Regulations 2015 (the client, the principal designer, principal contractor, designers and contractors) – will have formal responsibilities for complying with building regulations. A duty holder will usually be an organisation but could be an individual.

Duty holders during the design and construction phases will also be responsible for meeting the requirements at two of three key sign-off points – gateway two (before the start of construction) and gateway three (before occupation) – where the client will need to demonstrate to the regulator that building regulations have been met and risks are being appropriately managed.

The Accountable Person

After occupation, the duty holder regime continues with the imposition of specific responsibilities on the Accountable Person, who will be responsible for understanding fire and structural risks in their buildings and taking appropriate actions to mitigate or manage those risks.  The Accountable Person will in turn appoint a Building Safety Manager approved by the Building Safety Regulator to deliver day-to-day functions under these obligations.

The Accountable Person will be the individual, partnership or corporate body with the legal right to receive payments for service charges or rent from leaseholders or tenants. In most cases this will be the freeholder or head lessee, including overall landlord or a management company. In complex building ownership situations, there could be more than one Accountable Person.

Building Registration Certificate

The Accountable Person will be responsible for applying for and meeting the conditions of the Building Registration Certificate. To register a building, the Accountable Person will have to provide information such as the core details identifying the building, as well as details of the Accountable Person and Building Safety Manager.

The regulator may attach specific conditions to the certificate, with the Accountable Person obliged to comply or face penalties including possible criminal sanctions. In cases of non-compliance or poor performance, the regulator would have the power to add, amend or vary the conditions, as well as require the Accountable Person to appoint a replacement Building Safety Manager. A relevant building could not legally be occupied without a valid certificate.

Building Safety Manager

The Accountable Person will have to make available adequate resources to the Building Safety Manager – which can be a person or a legal entity – to comply with a number of tasks including:

  • Ensuring the conditions in the Building Registration Certificate are complied with to the satisfaction of the Accountable Person and the Building Safety Regulator
  • Ensuring those employed in the maintenance and management of the building’s fire and structural safety have the necessary competence to carry out their roles
  • Engaging with residents in the safe management of their building by producing and implementing a resident engagement strategy
  • Reporting to a mandatory occurrence reporting regime.

Safety Case

Reflecting the approach of most other major hazard safety schemes, submitting a safety case report to the regulator will be mandatory. Building Safety Managers will be required to keep safety cases up to date as a way of providing themselves, and their residents, with the assurance that they understand the fire and structural risks in their buildings and are taking appropriate steps to mitigate and manage those risks. Risk assessment principles will be consistent with those that should be undertaken for fire risk assessments under the Regulatory Reform (Fire Safety) Order 2005 (the Fire Safety Order).

The Building Registration Certificate and safety case will be reviewed periodically by the regulator. In addition, a review could be triggered by a building refurbishment or a change of Accountable Person, or where the regulator considers it appropriate.

Golden thread

Dame Judith Hackitt

Echoing the Hackitt review, duty holders will be responsible for creating and maintaining the ‘golden thread’ of fire and structural safety building information. At the handover stage between gateway three and occupation, this key information will have to be handed over to the Accountable Person, who will continue to be responsible for the information remaining accurate and up to date.

Other provisions in the Government’s proposed reforms include:

  • Mandatory occurrence reporting, where any fire safety or structural event which is perceived to represent a significant risk to life in relevant buildings must be reported
  • Protection for industry whistleblowers
  • The need for duty holders to ensure that those they employ are suitably competent.

Refurbishments

Before a building in scope is refurbished, the Building Safety Manager will need to engage with residents on the proposals and update the safety case on any changes that might affect the safety of the building. If the refurbishment is subject to building regulations, an application will have to be made to the Building Safety Regulator who, depending on the scale of the refurbishment, may request any other relevant information. If the refurbishment is not subject to building regulations but could have an impact on fire or structural safety, the Building Safety Manager will still be required to notify the Building Safety Regulator, but work can start without waiting for a response.

If occupying a building while undertaking refurbishment work carries a significant risk to residents, the Building Safety Manager must demonstrate that their safety can be assured throughout, and that he or she has engaged with them on aspects that affect them and has provided that information to the design and contractor teams.

Residents wanting to refurbish their own property will be required to notify the Building Safety Manager. If the work may impinge on the fire or structural safety of the building, or is subject to building regulations, the resident or contractor will need to notify the Building Safety Regulator before and on completion of the work. Throughout all refurbishment work, the safety case must be updated to demonstrate how risks are being predicted, planned for and managed.

If a review of the safety case leads to the identification of safety risks that require remediation to protect residents’ safety, the Accountable Person will be expected to rectify the building to ensure the safety of occupants is prioritised. Building owners remain legally responsible for the safety of their buildings, and are expected to act responsibly and pay for remediation of their buildings.

Residents’ role

Residents will be entitled to receive key information about the safety measures in place with new rights to request access to detailed information where appropriate. The Building Safety Manager will be required to “proactively engage” and communicate with residents to allow them to stay informed and participate in decision-making about the safety of their building. Where a complaint or concern cannot satisfactorily be resolved by the Building Safety Manager, the resident will be able to go directly to the Building Safety Regulator.

As well as having new rights, residents will have a general duty to cooperate with the Building Safety Manager and avoid actions that could pose a threat to the fire and structural safety of the building. Where cooperation is not forthcoming, the Building Safety Manager will be able to enforce residents’ responsibilities where there is a risk to the safety of other residents.

Construction products

A new national construction products regulator will be responsible for:

  • Market surveillance and oversight of local enforcement action
  • Enforcement action with manufacturers where issues are judged to be national and/or significant
  • Providing advice and support to the industry to improve compliance, and
  • Providing technical advice to government.

In addition, a new construction products standards committee comprising technical experts and academics will advise the Secretary of State on whether voluntary industry standards for construction products should become UK regulatory standards. The committee will also provide advice on the conformity assessment process and product test standards, and in particular will advise on:

  • The assumptions and weaknesses within the current testing regime, including the effectiveness and accuracy of current tests
  • Ways to improve the testing regime and new tests to address the weaknesses
  • Innovation in how construction products are tested.

The Government says it has engaged with key stakeholders to ensure the establishment of the committee addresses some of the key issues on product standards identified by the Hackitt review, and in the phase one report of the Grenfell Tower inquiry.

Industry competence

The interim report of the industry-led Competence Steering Group, published in August 2019, proposed that relevant professional and trade bodies should increase competence in their own sectors through a number of recommendations. These include designing sector-specific competence frameworks and creating an overarching competence framework standard for all trades and professions, setting out benchmark competence requirements including relevant core skills, knowledge, experience and behaviours.

In the meantime, BSI will establish a group to advise on the creation of a suite of national standards that will set out common principles for competence requirements and provide a framework for the three critical roles of Principal Designer, Principal Contractor and Building Safety Manager. These standards will be developed to provide consistency across independent assessment and third-party accreditation schemes. A new industry-led committee will also be established to oversee the longer-term development of the competence frameworks. The Government is also working with the Architects Registration Board to assess how architects maintain and enhance their competence throughout their careers.

The Building Safety Regulator will also have oversight of the competence and performance of building control professionals. The Government intends to create a unified professional structure for both local authority staff and Approved Inspectors, maintaining competence throughout an individual’s career. This new structure aims to allow greater collaboration and knowledge-sharing and help address entry hurdles and retention issues to increase capacity.

Enforcement

The Building Safety Regulator will have powers to intervene, from providing informal advice to issuing ‘improvement’, ‘compliance’, or ‘stop’ notices, the breaching of which will be a criminal offence. The regulator will also be able to review or revoke the Building Registration Certificate and, where appropriate, to prosecute duty holders and/or the Accountable Person. The sanctions would be designed to reflect the degree to which safety has been compromised and the need to deter non-compliance.

The new regulatory framework is designed to supplement existing requirements on multi-occupied residential buildings under the Fire Safety Order and the Housing Act 2004. Where a building is mixed use, the Government will introduce duties to cooperate between the Responsible Person(s) under the Fire Safety Order and the Accountable Person(s) under the new regime.

The Fire Safety Bill – introduced in parliament on 19 March 2020 – is designed to emphasise that under the Fire Safety Order, building owners and managers of all multi-occupied residential buildings must assess the risks from external walls (including cladding and balconies) and front entrance doors.

Following a consultation, an update to Approved Document B will include measures requiring sprinkler systems and introducing the provision of wayfinding signage in all new high-rise flats over 11 metres tall. A full technical review of Approved Document B will also take place.

The Government recognises that fire and structural safety issues can be exacerbated by poor procurement, including poorly designed tender specifications and processes, last-minute contractor appointments, lack of appropriate engagement with the supply chain and contract forms which prioritise low-cost solutions at the expense of building safety. The Ministry of Housing, Communities and Local Government will build on work already undertaken to develop practical guidance for the implementation of collaborative procurement methods for the procurement of buildings in scope. This work is overseen by a Procurement Advisory Group comprising procurement experts from industry, professional associations, government and the legal profession.

The Government’s proposals for a new building safety regulatory system represent a considerable tightening of regulation through the lifetime of buildings in scope, and may also have a ripple effect on the safety of other buildings. But, it remains to be seen how legislation for the new regime will be drafted and subsequently implemented, and whether it will clarify the responsibilities of everyone concerned with the design, construction, management and occupation of high-rise residential buildings.

Free download: Fire Safety Guide

Know your fire safety responsibilities.

Business owners have many responsibilities, but the consequences of neglecting your fire safety responsibilities are potentially unthinkable.

Download this guide to get:

  • A beginner’s guide to the Regulatory Reform Fire Safety Order
  • Your guide to fire risk assessments
  • Further guides covering fire doors, fire alarm systems, smoke detectors, fire escape signs, sprinklers, water-mist systems and fire safety training

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michael floyd
michael floyd
April 30, 2020 3:38 pm

The sprinkler requirement proposed here above 11m is a big change and will a step change in flat safety. I can see objections from developers arising and possibly a lull in construction, as we had in Wales when their sprinkler guidance commenced

Ashley Wood
Ashley Wood
May 14, 2020 9:56 pm

Our Regulation 38 app and PC software package enables all of the information required to be held in one place for a building and a Regulation 38 report can be produced on site. It is vital that information be available throughout the life of the building.