Building safety regulation - what is in the pipeline for construction professionals?
This article was co-authored by Bushra Jalil, Trainee Solicitor, London.
In the past six months, we have seen the launch of over 15 consultations and countless new guidelines on building safety in England and Wales. Such a high level of regulatory activity on one topic in a relatively short period of time is rather unusual.
However, the sense of urgency observed is likely due to the imminent introduction of the Building Safety Regulator (BSR) that is set to start operating as part of the Health and Safety Executive (HSE) in April (just round the corner). As such, the UK Government has very little time to establish all required building safety processes to be overseen by the new BSR.
Most of the consultations concern competency requirements, conduct and other standards for construction professionals and contractors. The infinite number of consultations and guidelines that use different terminology for the different professions (especially inspectors and approvers) is creating inconsistencies and uncertainty.
If there is no further clarification on the competency requirements and levels for each professional, the construction sector will inevitably find it challenging to comply with the new rules.
In this article, we provide an overview of the potential key changes for construction professions and highlight some of the potential implications for our clients.
Principal designers and principal contractors
In July 2022, the Department for Levelling Up, Housing and Communities (DLUHC) and the British Standards Institute (BSI) published publicly available specifications for principal designers (PAS 8671) and principal contractors (PAS 8672).
In summary, both frameworks specify competence thresholds that individuals are expected to meet when carrying out their role. PAS 8671 covers areas of competence including appropriate behaviour, the legislative and regulatory framework for compliance, management of design work compliance and the technical framework for competence which covers minimum and specific competences. PAS 8672 covers roles and responsibilities, skills, knowledge and experience, behaviour and ethics and limits of competence. Both frameworks cover additional competencies required when working on higher-risk buildings (HRBs).
It is also worth noting that the HSE recently published an information document that highlights the necessary competency rules for the new principal designer and principal contractor roles, as outlined in PAS 8671 and PAS 8672 and is currently seeking comments on its information document. The aim of the consultation is to ensure that the competency guidelines are easy to navigate for all audiences. However, the level of competency outlined in the PAS documents differ from that outlined in the HSE information document. Although only a summary document, key aspects and the specific wording of competencies of PAS appear to be excluded from the information document, with occasional conflating of competencies with the additional competencies for when working on HRBs. The PAS documents therefore create a higher threshold of competency than the HSE document.
This undoubtedly creates confusion as to which document to follow. The sole fact that the HSE is asking interested parties whether a summary document is clear enough is raising questions around the specifications themselves.
The DLUHC and BSI have also published PAS 8673 outlining competency requirements for the management of safety in residential buildings (i.e. Accountable Persons) in July 2022. The Accountable Person (AP), namely the building owner, freeholder or management company, is a new role created as part of the Building Safety Act 2022. As outlined in our last article, they will have an ongoing duty to assess and report on building safety risk, as well as register buildings under their control before occupation.
Similarly to the principal designers and contractors, the HSE is running a consultation on an information document that summarises PAS 8673 for Accountable Persons. There again appear to be different levels of competency between the HSE document and PAS 8673. Interestingly, neither document impose any legal obligation on the individual and PAS 8673 explicitly states (as do the other PAS documents) that the publication is to be used at the recipient’s own risk and that users are responsible for its correct application. While the HSE guidance is again not compulsory, it states that following it will normally be enough to comply with the law. This suggests that the HSE guidance should provide the more accurate interpretation. The different level of competencies therefore does add to the confusion.
Inspectors and approvers
Inspectors will, arguably, be most impacted by the changes to building safety. Once the BSR’s registration scheme has been up and running for 6 months (we anticipate the register will launch in October 2023), existing inspectors that want to carry out key activities (e.g. submitting initial notices) will be required to apply to become building control approvers.
Inspectors that do not wish to carry out key activities or do not meet the registration criteria will have to prepare to exit the market or register with the BSR as building inspectors. However, their remit will be decided on the basis of their skills, and they will be assigned to the appropriate class for the type of work they wish to carry out. This will in turn impact professional indemnity policies as the appropriate cover will need to be taken out. This may impact the premium payable, based on the class cover needed and the implications of that particular role.
The DLUHC has recently published a consultation on the implications of approved inspectors becoming registered building control approvers, e.g. the length of the registration period, mechanisms of oversight, sanctions and appeals. The most significant proposal included in the consultation is that inspectors that become approvers will have to renew their license every five years, whilst inspectors that choose not to become building control approvers will need to renew every four years.
Looking at the structure of the DLUHC’s consultation, it appears that there are still no concrete plans in relation to the responsibilities of the new approvers as well as their minimum competency levels. The HSE shared a draft Building Inspector Competence Framework (BICoF) last October, and the finalised document is expected to be published next month. However, we have not yet seen a similar document for building control approvers.
As the DLUHC and the HSE continue to flesh out the provisions included in the Building Safety Act 2022, the regulatory landscape is becoming more and more difficult to navigate for the construction industry. We will continue to monitor any developments in this area.
- Building Safety Act update – key elements so far and what to expect in 2023
- The Building Safety Act 2022 – the ‘Accountable Person’
- Limitation and the UK Building Safety Act: new claims and what insurers may have missed