Proposals for reforming the building safety regulatory system

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Ahead of the second anniversary of the Grenfell Tower fire, the government published a consultation to create a radically new building and fire safety system that puts residents’ safety at its heart

In the wake of the Grenfell Tower disaster, the government commissioned Dame Judith Hackitt to conduct an Independent Review of Building Regulations & Fire Safety, which concluded that the current system for ensuring safety in high-rise buildings was “not fit for purpose” and no longer commanded the confidence of the public.

Building on Dame Judith’s recommendations, the government has now published its proposals to fundamentally reform the system for higher-risk residential buildings.

In a statement to the House of Commons, housing secretary James Brokenshire said the consultation document sets out how the government will “take forward meaningful legislative reform” focusing on five areas of the new regime:

  • The scope of the new regime.
  • Establishing the concept of dutyholders having clear responsibilities throughout a building’s design, construction and occupation.
  • Giving residents a stronger voice and ensuring their concerns are never ignored.
  • Plans for a new building safety regulator to provide oversight of the new regime.
  • Strengthened enforcement and sanctions to deter non-compliance.

Scope of the regime

The government is proposing that the new regime will initially apply to all new and existing multi-occupied residential buildings of 18m or more, or approximately six storeys, broadly in line with its ban on the use of combustible materials brought into force last year.

Dame Judith’s recommended starting point was to cover high-rise residential buildings over 10 storeys or 30m, but the government said many stakeholders felt this proposal was too narrow.

Since then, the Home Office has conducted research into the fire risk profiles of different building types. It found that the number of building fires attended by fire and rescue services has fallen by a quarter from around 65,000 in 2010-11 to 48,500 in December 2018, with fire-related fatalities down 21% over the same period from 273 to 216 and casualties requiring hospital treatment down 30% from 4,123 to 2,902.

The analysis indicated that buildings, where people sleep, are at greater risk of fires involving fatalities and casualties requiring hospital treatment, and for apartment blocks, there were higher rates of fire as building height increased. Rates of fire were considerably higher in apartment blocks over 18m, with 43 fires per 1,000 buildings between 18m and 30m and 366 fires per 1,000 buildings 30m and above compared with nine fires per 1,000 buildings of any height.

In light of stakeholder responses and the Home Office analysis, the initial scope for the new regime is therefore wider than Dame Judith’s proposed starting point, with the possibility that it could be extended to include other building types over time, such as other blocks of flats or non-residential buildings where people sleep such as hospitals, sheltered housing and prisons, “in response to our evolving understanding of safety risks in the built environment”.

Duthyholder regime

Introducing a more stringent approach to accountability over the whole lifecycle of a building was at the heart of Dame Judith’s report. Currently, duties under Building Regulations sit with the person undertaking building work but, in practice, who fulfils those duties and therefore accountability is not clear.

The government’s proposals would create a system of dutyholders, people involved in the design, construction and management of buildings, with clear responsibilities at each stage of the building’s life. Some responsibilities run throughout the building’s lifecycle while others only apply to particular stages.

There will be five dutyholder roles for buildings in scope during the design and construction phase with responsibilities set out in law, drawn on the approach of the Construction (Design & Management) Regulations 2015: Client, Principal Designer, Principal Contractor, Designer and Contractor.

There are proposals for three “gateway” points, where the dutyholder will have to demonstrate that they are managing building safety risks appropriately in order to process to the next stage of development. Gateway one would occur before planning permission is granted, gateway two before construction begins and gateway three before the building’s occupation.

The second part of the regime would cover occupied buildings, creating responsibilities and a system of registration and building certification. The accountable person in the occupation will be responsible for applying for and meeting the conditions of the building safety certificate. Mandatory conditions of the certificate will include engaging with and providing key information to residents and maintaining the “golden thread” of information.

The third part would focus on duties that apply across the lifecycle of the building, setting out proposals for: the golden thread of information; a new mandatory occurrence reporting regime; and competence of key roles in the new regime.

“The dutyholder regime will mean that for the first time there will be clear accountability on who owns building risks and clear responsibilities for managing the risks to ensure buildings are safe for residents,” Brokenshire said in his statement.

“These responsibilities, which include creating and maintaining the digital records of a building and producing a safety case that will be approved by the new building safety regulator prior to issuing a building safety certificate, will be set out in law.”

Putting residents at the heart of the system

The proposals aim to give residents a stronger voice and ensuring their concerns are heard and acted upon.

The government is inviting views on requiring accountable persons to, through their building safety managers, to:

  • Proactively, rather than on request, provide residents with information in a clear and accessible format so that they understand the protections that are in place to keep their building safe.
  • Provide residents with more detailed information on building and fire safety on request.
  • Engage with residents through developing and implementing a Resident Engagement Strategy. Residents would be empowered to play an effective role in making sure that their building is, and remains, safe. This includes identifying and reporting hazards that may impact on the safety of the building and meeting their responsibilities to ensure their own safety and that of their neighbours.
  • Address residents’ concerns about fire and structural safety and ensure that they are resolved, with residents being able to use a clear route of escalation if their safety concerns are not being dealt with effectively.

In terms of information provided to residents, as a minimum requirement, it would cover:

  • Measures in place to mitigate potential fire and building safety risks to residents, eg fire precautions.
  • How to reduce the risk of fire in individual dwellings, eg by not storing flammable materials.
  • Process for reporting a fire risk and/or raising any other safety concerns.
  • Procedures to follow when a fire occurs, including for evacuation.
  • The different roles and responsibilities of the accountable person, building safety manager and residents.
  • Key information from the Resident Engagement Strategy, eg contact details of the accountable person and Building Safety Manager.

Examples of information a responsible person must make available on request could include:

  • Full, current and historical fire risk assessments.
  • Planned maintenance and repairs schedules.
  • Outcome of building safety inspection checks.
  • How assets in the building are managed, eg frequency of lift maintenance.
  • Details of preventative measures, eg smoke alarms.
  • Fire protection measures in place, eg sprinklers, fire extinguishers.
  • Information on the maintenance of fire safety systems.
  • The fire strategy for the building.
  • Structural assessments.
  • Planned and historical changes to the building.

A new building safety regulator

The building safety regulator will have responsibility for overseeing design and management of buildings, with a strong focus on ensuring the stricter regime for buildings in scope is enforced effectively and robustly. They would oversee or undertake the functions Dame Judith earmarked for the Joint Competent Authority, as well as functions that she has proposed assigned to the overarching competency.

However, the government is proposing that two elements of Dame Judith’s recommended regulatory reforms should remain separate from the planned regulator: the regulation of construction products and the periodic review of the system. The government is proposing that the review takes place every five years.

Tougher sanctions

One of the core functions of the building safety regulator will be to oversee tougher enforcement through a three-stage process:

Reinforcement of operating standards and provision of professional guidance through seeking to achieve compliance by informally working with the dutyholders/accountable persons, evidencing its intervention.

Proactive intervention and monitoring, where the above collaboration approach fails to achieve the desired outcome, or where the building safety regulator determines that the offence in question warrants more serious action, it will stage interventions to secure compliance. Generally, this could be through taking action such as (but not limited to) issuing stop notices or improvement notices.

Enforcement action, where first two stages fail to achieve compliance, the building safety regulator moves to take enforcement action against dutyholders/accountable persons. This may be through formal orders, penalties or by reviewing the building safety certificate, which may ultimately lead to revocation. The building safety regulator may also decide to prosecute the dutyholders/accountable persons.

Other measures

The government has already identified over 400 high-rise buildings with unsafe Aluminium Composite Material (ACM) cladding similar to the type used on Grenfell Tower and has made £600m available to fund the replacement of the material in the social and private sectors.

Alongside the consultation document, the Home Office has launched a call for evidence on the Regulatory Reform (Fire Safety) Order 2005 to ensure it is fit for purpose for all buildings it regulates.

It has also set up a Joint Regulators Group to develop and pilot new approaches. Some of the proposals in the consultation are being tested voluntarily by construction firms and housing associations as part of the government’s Early Adopters work, which has included the launch of the Early Adopters’ Building Safety Charter.

The government’s consultation ran until 31 July. It will consider the feedback over the summer before publishing its response.

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