"The Hackitt review has shown that in too many cases people who should be accountable for fire safety have failed in their duties. In future, the government will ensure that those responsible for a building must demonstrate they have taken decisive action to reduce building safety risks and will be held to account".
Such strong words came from the government following the publication of Dame Judith Hackitt's final report into building regulations and fire safety. The report promises a more robust regulatory regime, overseen by a new competent authority, to hold those responsible to account. With a range of criminal enforcement powers and sanctions to be made available, who are the dutyholders and what are the implications for non-compliance?
What is the new regulatory framework?
The report identified that the current disparate approach adopted across building regulations and fire safety is not fit for purpose and a culture change is required to support the delivery of buildings that are safe. To that end, a new regulatory framework is proposed designed to:
- Create a regulatory environment that is more coherent across the building life cycle.
- Create a clear and proportionate package of responsibilities for dutyholders.
- Provide stronger oversight of dutyholders with incentives for the right behaviour and effective sanction for poor performance.
- Create a single regulatory body that oversees dutyholders' management of buildings in scope across their entire life-cycle.
- Reassert the role of residents.
The new regulatory framework will be focused on multi-occupancy higher risk residential buildings (HRRBs) that are 10 storeys or more in height. There is a suggestion that specific recommendations could be applied to a wider set of buildings, including hospitals, care homes and other buildings identified through a risk-based approach.
At present, the framework covering the life cycle of HRRBs involves several different regulators working under several different pieces of legislation. To simplify this and ensure that HRRBs are subject to closer and more robust scrutiny, the framework outlined above will be overseen by a new "Joint Competent Authority" (JCA). The JCA would comprise the combined expertise and knowledge of Local Authority Building Standards, Fire and Rescue Authorities and the Health and Safety Executive (HSE). It is hoped that having a single agency will be more efficient than a number of different regulators and allow expertise to be shared effectively. Indeed, there are a number of other regulatory regimes already working well in this way, including under the Control of Major Accident Hazards Competent Authority and the Work-Related Death Protocol.
Linked to the JCA will be Local Authority Building Control, the professional body covering building control teams working in local authorities. This body will be re-branded "Local Authority Building Standards (LABS)" and will oversee HRRBs, as part of the JCA.
So who is responsible for what?
As part of her previous role as Chair for the HSE, Dame Hackitt was heavily involved in the introduction of the Construction (Design and Management) Regulations 2015 (CDM), which may have influenced the report's recommendation for a new regulatory framework mirroring the tried and tested approach in CDM.
The new key roles and duties set out in the report will therefore apply to Clients, Principal Designers and Principal Contractors engaged in projects and buildings covered by the proposed regime, with CDM continuing to apply in other cases. The expectation is that dutyholders are able to show the JCA that they have the required leadership, management and competence capabilities to deliver their responsibilities.
Whilst the report stresses that "the aim of this review is to move away from telling those responsible what to do and place them in a position of making intelligent decisions about the layers", there will be a requirement on the dutyholder to present a safety case to the JCA at regular intervals to check that building safety risks are being managed so far as is reasonably practicable. In the event that the dutyholder falls behind, enforcement tools will be available. So what happens if a party does fall foul?
New dawn or damp squib?
A range of enforcement methods is proposed for JCA/LABS inspectors to secure compliance, but how effective will these be?
- Enforcement Notices
- Improvement/ Correction Notices- served on dutyholders when the JCA/ LABS believe that building work is in breach of the law and needs to be corrected within a certain period of time. Where significant failings are identified, such a Notice can be served up to 5 or 6 years after building work is completed.
- Prohibition or Stop Notices- served on dutyholders when the JCA/LABS believe that the building work has serious deficiencies which could impact significantly on building safety.
- Criminal sanctions
Failure by dutyholders to comply with either type of notice would be a criminal offence. Where the non-compliance poses a real and credible risk to the safety of building occupants now or in the future, it is proposed that the full range of penalties under HSWA should be replicated. Whilst there is no specific comment in the report on what this will encompass, to ensure the new regime has teeth it is expected that unlimited fines for corporations as well as imprisonment for individuals will be available. It is also anticipated that any breaches will be sentenced in line with the sentencing guidelines on corporate manslaughter and health and safety offences, introduced in 2016.
With fines in excess of £1 million or more the new norm under the 2016 sentencing guidelines for the largest offenders committing the most serious breaches, alongside a general upward trend in the level of penalties being imposed, compliance with the new regime will be key. Indeed, the consequences of non-compliance could be catastrophic.
- Time limits
Time limits for bringing prosecutions against dutyholders should be increased to five or six years for "major" deficiencies in building requirements identified at a later date.
- Cost recovery
Interestingly, the report states that the JCA should design and operate a full cost recovery model. In much the same way as the HSE recover their costs under the Fee for Intervention Scheme (FFI), all key engagements between dutyholders and the JCA would be fully chargeable. Whilst further detail is still awaited, the report currently suggests that a proportionate approach is adopted whereby those whose work needed the highest level of intervention and oversight would pay the highest cost.
It is arguable that such a scheme is needed as, without proper funding, it is hard to see how the report's recommendations can be implemented effectively. However, given FFI found its revenues falling short of anticipated levels and was also subject to challenge by judicial review, which ultimately resulted in the dispute process being made fully independent, it remains to be seen how successful this proposal will be.
Building blocks for the future?
The government is to consult on the further detail of implementation of the report in the spring, specifically on the proposals for rigorous enforcement and sanctions to support the new regime.
A Joint Regulators Group (comprising representatives of the HSE, Local Authority Building Control, fire services and the Local Government Association) will start to test elements of the revised framework in 2019 ahead of any new proposed legislation. However, given that the Grenfell Tower Inquiry remains ongoing, it is expected the proposals will not be finalised until that has concluded. It is therefore anticipated that a full new safety regime is unlikely to be up and running before 2021. In the meantime, we will keep you updated.
Article authored by Rod Hunt, partner, and Luisa Lister, professional support lawyer.