Out-Law Analysis 4 min. read
18 May 2018, 9:45 am
Hackitt's final report sets out the principles for a new regulatory framework which she considers will drive culture change and the right behaviours in relation to fire safety. Emphasis is placed on a clear model of risk ownership, and the new regulatory framework she proposes is to be “outcomes-based” rather than following a prescriptive regulatory approach. The view is that guidance on how to comply with the building regulations should to be owned by industry, with government setting out the regulatory requirements and providing oversight. This may be disappointing for those looking for better clarity and prescription in the building regulations themselves.
The report makes 50 recommendations to the government, which she has been at pains to present as an integrated package rather than a 'shopping list' of individual reforms from which the government can pick and choose. It adopts a tried and tested model; which is familiar from the regulation of offshore oil and gas installations and facilities which pose a risk of major accident onshore due to the presence of chemicals, explosives or other dangerous substances.
The recommendations apply to multi-occupancy, higher risk residential buildings (HRRBs), which the report defines as buildings of more than ten storeys. The report recommends that the government considers extending the new system to other buildings used as living accommodation where people sleep, including care homes, hospitals, hotels, prisons, halls of residence and boarding schools; while some of the recommendations are also applicable to an even wider range of buildings.
A new model of risk ownership
Hackitt places a new 'Joint Competent Authority' (JCA) at the heart of this new regulatory system. The JCA would not be a new regulator, but rather a formal mechanism through which the existing regulators would work together in a much more integrated way. The new JCA would act as a 'gatekeeper', whose approval would be required at certain 'gateway points' in order to obtain planning permission, start building work and start occupation.
The Health and Safety Executive (HSE) would have a key role in this new framework, working in tandem with local authority building standards and fire and rescue authorities (FRAs). The HSE has a wealth of experience of working in this way, for example in partnership with the Department for Business, Energy and Industrial Strategy and the Environment Agency.
Parties involved in the construction of new HRRBs under the new regime would be assigned roles broadly aligned with the familiar roles of client, principal designer, principal contractor and contractor under the 2015 Construction (Design and Management) Regulations. Strikingly, it is envisaged that the client and principle designer would co-sign, at completion, that the work, to the best of their knowledge, meets building safety requirements. The principal contractor would also have a key role to play during construction, and in the handover to the occupation and maintenance phase. Criminal sanctions would apply if duties are not discharged.
The JCA's work as gatekeeper and reviewer of the safety case (see below) would be done on a full cost recovery basis, underpinned by a fee charging regime. The fees envisaged could be significantly higher than the current fees charged by building control bodies and statutory consultees.
The JCA would have new enforcement powers, including the power to serve formal improvement and prohibition notices, and ultimately to pursue prosecution of those who fail to comply with their duties.
New information and 'safety case' requirements
The creation, maintenance and handover of key information, the so-called "golden thread", would be required of these duty holders; to include a digital record, a 'fire and emergency' file, full plans, and a construction control plan. The building owner would also have to complete a pre-occupation 'fire risk assessment' and a resident engagement strategy before the building could be occupied. Together, this information will form a 'safety case' for the building, which would have to be reviewed at least every five years, and more often if modifications are proposed to the building.
The report envisages retrospectively creating safety cases for existing buildings, which would require an information-gathering exercise to build the data record and reconstruct the design intent for building safety. Hackitt recognises that this will be an enormous task, and proposed a phased programme of work on a prioritised basis.
More rigorous oversight of duty holders
Once an HRRB is occupied, the building owner or superior landlord would be required to notify the JCA that they are now the duty holder for the building. The duty holder must also nominate a competent building safety manager to be responsible for the day-to-day management of the building, and to act as a point of contact for residents.
The duty holder would have an overarching responsibility to take such safety precautions as may reasonably be required to ensure building safety risk is reduced so far as is reasonably practicable. This duty would operate in a similar way to the duties under health and safety legislation to ensure the health, safety and welfare of employees. It would be a criminal offence to fail to comply, carrying penalties comparable to the unlimited fines available for health and safety offences.
Residents would be given a voice under this new system, as promised by Hackitt in her interim review. The duty holder would have an obligation to ensure that there is a resident engagement strategy, and that residents receive information on fire safety in an accessible manner. However, with that voice will come responsibility. Clearer obligations would also be imposed on residents to cooperate with the duty holder and to ensure that they take any action required within their own flats - for example, to ensure that fire compartmentation is maintained to a suitable standard.
Competence and building regulations
The interim report identified lack of a coherent and comprehensive approach to competence as a significant issue. The final report gives the industry one year to develop, and present to government, coherent proposals on competence, to include the role and remit of an overarching body to provide oversight and competence requirements.
A clearer, more transparent and effective specification and testing regime should be developed for construction products, with products critical to safety tested at least every three years. More effective enforcement, complaint investigation and market surveillance is recommended in relation to construction product safety, and the government should also consider extending the remit of the Office for Product Safety and Standards.
On procurement and supply chain, the report makes recommendations in relation to the content of construction contracts and tenders to emphasise that safety must take precedence over cost. These documents would also form part of the digital record for the building.
Katherine Metcalfe is a health and safety and fire safety law expert at Pinsent Masons, the law firm behind Out-Law.com.