INTRODUCTION
On 14th June 2017, a fire spread through Grenfell Tower and over seventy people lost their lives.
The government in response to the fire have asked for two reports; one based on a public enquiry chaired by Sir Martin Moore-Beck considering the buildings design, construction, modifications, inspection, management, as well as the fire, the cause, fire progress and the response of the emergency services.
In addition the Government asked Dame Judith Hackitt, previously Chair of the Health and Safety Executive to undertake an independent review of the current building regulatory system regarding fire safety and the guidance provided with a particular focus on high rise residential and other complex buildings with the aim of making recommendations that will ensure that there is a robust regulatory system for the future and provide further assurance to residents that the buildings in which they live are safe.
The interim report (published in December 2017) identified that the current system of building regulations and fire safety was in her opinion, “not fit for purpose” and that a “culture change is required to support the delivery of buildings that are safe, both now and in the future.”
The system failures identified in the interim report has according to Dame Judith allowed a culture of indifference to perpetuate.
More specifically:
- the roles and responsibilities of those procuring, designing, constructing and maintaining buildings are unclear;
- the package of regulations and guidance (in the form of Approved Documents) can be ambiguous and inconsistent;
- the processes that drive compliance with building safety requirements are weak and complex with poor record keeping and change control in too many cases;
- competence across the system is patchy;
- the product testing, labelling and marketing regime is opaque and insufficient; and
- the voices of residents often go unheard, even when safety issues are identified.
Ark has reviewed Dame Judith’s Final Report and welcomes many and much of the recommendations she has provided but is concerned that some issues have not been fully considered and and in some areas Dame Judith has not gone, in our opinion far enough.
It is noted that the Rt Hon James Brokenshire MP, Secretary of State for Housing, Communities and Local Government stated on the day of the final report publication that the Government has “listened to concerns and will consult on banning the use of combustible materials in cladding systems on high-rise residential buildings.” Ark would question why the exclusion of other high-rise and other complex buildings from such considerations and consultations.
As an overview of the report, the new regulatory framework set out in Dame Judith’s report must, she suggests, address all the weaknesses within the current framework and systems if there is to be a stronger focus on creating and maintaining safe buildings.
This new framework must, she believes:
- strengthen regulatory oversight to create both positive incentives to comply with building safety requirements and to effectively deter noncompliance.
- clarify roles and responsibilities.
- raise and assure competence levels, as well as improving the quality and performance of construction products.
- ensure that residents feel safe and be safe, and must be listened to when concerns about building safety are raised.
This new regulatory framework must, she states and Ark concurs, be delivered as an entire package. The framework is based around a series of interdependent, mutually reinforcing changes where one new measure drives another, but again whilst Ark welcomes the proposals we are firmly of the belief that Dame Judith has missed some important opportunities to drive further change and improve fire safety within occupied buildings in the UK.
The new framework is designed to:
- Create a more simple and effective mechanism for driving building safety – a clear and proportionate package of responsibilities for duty-holders across the building life cycle. This means more time should be spent upfront on getting building design and ongoing safety right for the buildings in scope. This will create the potential for efficiency gains; scope for innovation in building practices; and value for money benefits from constructing a building that has longer-term integrity and robustness.
- Provide stronger oversight of duty-holders with incentives for the right behaviours, and effective sanctions for poor performance – more rigorous oversight of duty-holders should be created through a single coherent regulatory body that oversees duty-holders’ management of buildings in scope across their entire lifecycle. A strengthened set of intervention points should be created with more effective change control processes and information provision.
- Reassert the role of residents - a no risk route for redress should be created and greater reassurances about the safety of their home will be offered, as well as ensuring that residents understand their role and responsibilities for keeping their building safe for themselves and their neighbours.
In making these changes, Dame Judith believes that the new framework will also radically enhance the current model of responsibility so that:
- Those who procure, design, create and maintain buildings should be responsible for ensuring that those buildings are safe for those who live and work in them.
- Government should set clear outcome-based requirements for the building safety standards which must be achieved.
- The regulator should hold duty-holders to account, ensure that the standards are met and take action against those who fail to meet the requirements.
- Residents should actively participate in the ongoing safety of the building and must be recognised by others as having a voice.
OVERVIEW OF REPORT RECOMMENDATIONS
The recommendations for this new framework are outlined below:
- New regulatory Framework - the key parameters of a new regulatory framework should if implemented, establish:
- Improving the focus on building safety during the design, construction and refurbishment phases through:
- A set of rigorous and demanding duty-holder roles and responsibilities to ensure a stronger focus on building safety. These roles and responsibilities should broadly align with those set out in the Construction (Design and Management) Regulations 2015;
- A series of robust gateway points to strengthen regulatory oversight that will require duty-holders to show to the JCA that their plans are detailed and robust; that their understanding and management of building safety is appropriate; and that they can properly account for the safety of the completed building to gain permission to move onto the next phase of work and, in due course, allow their building to be occupied;
- A stronger change control process that will require robust record-keeping by the duty-holder of all changes made to the detailed plans previously signed off by the JCA. More significant changes will require permission from the JCA to proceed;
- A single, more streamlined, regulatory route to oversee building standards as part of the JCA to ensure that regulatory oversight of these buildings is independent from clients, designers and contractors and that enforcement can and does take place where that is necessary. Oversight of HRRBs will only be provided through Local Authority Building Standards (the new proposed Name for Local Authority Building Control) as part of the JCA, with Approved Inspectors available to expand local authority capacity/expertise or to newly provide accredited verification and consultancy services to duty-holders; and
- More rigorous enforcement powers. A wider and more flexible range of powers will be created to focus incentives on the creation of reliably safe buildings from the outset. This also means more serious penalties for those who choose to game the system and place residents at risk.
Ark’s concerns remain in respect of the current building control process. The introduction of Approved Inspectors has, in Ark’s opinion, seriously affected building regulatory enforcement and safety within new and extended buildings. Ark has seen poor design and practice accepted by both AI’s and LABC which appears to be based on a lack of inspection, an acceptance of poor design outside of that detailed in both Approved Documents and current guidance and best practice and in our opinion more worryingly because both AI’s and LABC are under pressure to reduce costs and in some instances, concerns over future business opportunities.
Whilst the JCA will hopefully go some way to dealing with these issues, if this body is not given “teeth,” with full investigatory powers and resources, the “drive to the bottom” as Dame Judith has suggested will, in our view, continue. The JCA therefore must be undertaking formal and publicly available “audits” of building control authorities with the aim of ensuring the effectiveness of their approval and inspection regimes (similar to OFSTED for example) with powers to remove operating licenses where persistent or poor approval or inspection regimes are found, to step in and manage local building control bodies are not meeting minimum standards and in addition check the competence of surveyors, officers and/or inspectors within both AI and LABC bodies.
Ark also believe that there is a real need for the strengthening of the requirements for Building Control Authorities to undertake more detailed inspections of fire safety systems and features including compartmentation and fire stopping especially within high rise, complex and fire engineered. Ark believes that there should be a requirement on such bodies to formally “certify” the veracity of the systems as installed against design – this will force such bodies to improve their inspection regimes and provide a more fitting conduit for enforcement where necessary. In addition, it will ensure that at handover that what was designed / approved not only is what is built but ensures the safety of residents and occupants.
- Improving the focus on building safety during the occupation phase through:
- Giving residents a voice in the system through providing reassurance and recourse for residents of all tenures by providing:
- greater transparency of information on building safety;
- better involvement in decision-making, through the support of resident’s associations and tenant panels; and
- a no-risk route for residents to escalate concerns on fire safety where necessary, through an independent statutory body that can provide support where service providers have failed to act.
Ark would suggest that if the current requirements in respect of cooperation and coordination contained within fire safety legislation across the UK were fully embraced and applied (and therefore enforced) that such transparency, involvement and escalation would already be in place. Ark’s experience is that whilst well managed owners and managing agents ask for and share information, many tenants, leaseholders etc. fail to respond, refuse to cooperate and operate in isolation from others who have an interest in the fire safety measures within such buildings.
Ark has, even after the tragic fire, seen and collated evidence that some residential and corporate tenants (including worryingly some housing associations and hoteliers), do not see the need to or clearly refuse to share and cooperate with other responsible persons and duty holder’s essential information necessary for the effective management of fire safety in such buildings.
There is also a misconception, Ark believes, by some owners and agents that by sharing and asking for information from and with their tenants that they are taking on the obligations and responsibilities from tenants where issues are apparent. This is clearly not the case, as responsible persons or duty holders tenants also have duties in this aspect and Ark welcomes the proposal for an independent statutory body as long as this is resourced sufficiently to ensure that it is effective and delivers improvements in communication between all parties.
- Setting out demanding expectations around improved levels of competence through:
- The construction sector and fire safety sector demonstrating more effective leadership for ensuring building safety amongst key roles including an overarching body to provide oversight of competence requirements.
Ark welcomes this recommendation and notes that Dame Judith did in fact adopt a similar approach in the health and safety sector through the introduction of the OSHCR. Ark though would want to ensure that such a body was sufficiently resourced, included real and thorough assessment that is not purely reliant upon qualification (as the current OSHCR does) but focuses on competence and experience and ensures that regular review and periodic auditing of competent persons is undertaken.
Ark also recognises that the survivors of the tragedy are concerned that “self-regulation equates to no regulation” and would therefore hope that the Government would consider or maintain an effective “oversight” role in this area.
- Creating a more effective balance between government ownership of building standards and industry ownership of technical guidance by:
- Moving towards a system where ownership of technical guidance rests with the industry as the intelligent lead in delivering building safety and providing it with the flexibility to ensure that guidance keeps pace with changing practices with continuing oversight from an organisation prescribed by government.
- A package of regulations and guidance that is simpler to navigate but that genuinely reflects the level of complexity of the building work. This new approach will reinforce the concept of delivering building safety as a system rather than by considering a series of competing or isolated objectives.
Again, Ark recognises that the survivors of the tragedy are concerned that “self-regulation equates to no regulation” and would therefore hope that the Government would ensure that approval for such guidance rests with Government rather that a quango or another organisation prescribed by government, there is in our opinion a real need if this is to be effective for the Government to retain consider a statutory role in this area.
In addition, Ark is concerned that without such statutory oversight there can be a danger of removing what is perfectly good guidance and advice.
- Creating a more robust and transparent construction products regime through:
- a more effective testing regime with clearer labelling and product traceability, including a periodic review process of test methods and the range of standards to drive continuous improvement and higher performance and encourage innovative product and system design under better quality control. This regime should be underpinned by a more effective market surveillance system operating at a national level.
- Creating a “golden thread of information” about each HRRB by:
- Obligating the creation of a digital record for new HRRBs from initial design intent through to construction and including any changes that occur throughout occupation. This package of building information will be used by the duty-holders to demonstrate to the regulator the safety of the building throughout its life cycle.
Again, Ark would suggest that to limit this approach to HRRB’s only is missing the point and this should be required for all multi-occupied and complex buildings and whilst we accept that the report does suggest that there would be merit in certain aspects of the new regulatory framework applying to a wider set of buildings, by limiting the report as such provides an opportunity for Government to ignore this and focus only on HRRB’s.
- Tackling poor procurement practices - to drive the right behaviours to make sure that high-safety, low-risk options are prioritised and full life cycle cost is considered when a building is procured.
- Ensuring continuous improvement and best-practice learning through membership of an international body – with the Government re-joining the Inter-jurisdictional regulatory Collaboration Committee (IRCC) and build upon evidence of best practice from other countries
- preventing the use of “Building Notices” where fire safety is or can be affected by proposed works (thus requiring a detail examination and consideration of fire safety measures prior to construction); and
- where a proposed building has been approved under previous regulations or guidance and where such projects have not materially commenced, that they are required to re-evaluate the fire safety measures to ensure that the most recent regulation or guidance is adhered to.
Ark notes Dame Judith’s comments that regulatory frameworks are often rooted in historical events and local practices, and as such they cannot be easily transferred from one jurisdiction to another. But, Ark believe this should not stop Government from trying where appropriate; identifying best practice, wherever it may be.
There is much to be learned from work being undertaken across the globe because of the Grenfell Tower fire. There is no single solution, and that it would be beneficial to find effective ways of sharing learning and good practice.
GOVERNMENT RESPONSE
In response to Dame Judith’s Final Report, the Government has made a series of commitments to make sure people living in high-rise buildings are safe. The government has committed to:
- launching a consultation on banning the use of combustible materials in cladding systems on high-rise residential buildings;
- banning desktop studies if the current consultation – which closes on 25 May – does not demonstrate that they can be safely used;
- ensuring residents have a better mechanism for blowing the whistle on landlords who do not maintain safe buildings;
- changing the law to achieve meaningful and lasting reform of the building regulatory system, with strong sanctions for those who fail to comply;
- inviting views to inform how the government could implement major reform of the regulatory system; and
- restructuring building regulations fire safety guidance to ensure it is clear
This is in addition to the £400 million of funding announced by the Prime Minister yesterday to fully fund local authorities and housing associations with the removal and replacement of aluminium composite material (ACM) cladding, the type used on Grenfell Tower, on social housing buildings above 18 metres.
COSTS AND SAVINGS ASSOCIATED WITH THE NEW REGULATORY FRAMEWORK
The implementation and enactment of Dame Judith’s recommendations will require additional actions from building owners, agents, and occupiers.
However, Dame Judith suggests that there are several potential benefits including investing more in upfront design is likely to save financial resources later in the process.
Research from the USA, she suggests, provide net savings in the region of 5% in the costs of the construction of newly built projects are possible where a digital record is utilised (Recommendation 8 above).
In addition, a clearer set of roles and responsibilities could:
- create certainty in the market in terms of what the changes look like and in both the immediate and longer term reduce risks of poor quality building work, increasing investor confidence and mitigating the likelihood of any slowing down in the pace of building work; and
- reduce confusion between different actors over who is responsible for specific aspects of the work, and minimise the likelihood of mistakes that need to be rectified, speeding up the transaction process and potentially deliver efficiencies that manifest themselves in greater productivity.
More broadly, investing in improved competence levels could ensure that more skilled workers are able to correct errors and improve efficiency alongside ensuring compliance with the regulations during construction preventing retro alterations and changes.
An improved product testing regime could also have additional quality benefits, ensuring sustained and realised product performance.
CONCLUSION
Ark broadly welcome the contents of the report although as stated, we believe that several opportunities have been missed and are concerned that whilst the report does suggest that the proposed new framework could be applied to a wider set of buildings, it is clear from the Government’s initial response that they have already ignored that statement and Ark are fearful that a Grenfell Tragedy could manifest itself in other complex buildings be they residential or commercial.
Whilst each recommendation is key; in isolation we believe they will fail to achieve the systemic change that is so clearly needed and therefore Ark would urge Government to take the lead, think outside the box and seize the opportunities that this report has in part highlighted and make real changes to a system that is so obviously in need of repair.
Implementing the package proposed in Dame Judith’s report will clearly take time and whilst there is a need to act and support those who have been affected by the tragedy and some of the recommendations can be delivered in the short term, some will require primary legislation.
In the meantime, we believe that all those who have an impact of fire safety in large and complex buildings must start living what Dame Judith suggests is the “cultural shift.”
The most important element in achieving this will be leadership from within the fire safety, real estate management and construction industries and Ark would hope that all of those who influence, procure, construct, deliver and maintain fire safety within buildings. We all need to take a long hard look at what we are doing and respond positively to Dame Judith’s recommendations and push Government to seize the opportunities we now have to improve fire safety in such buildings.
DAVID HILLS FRICS, FIIRSM, MIFireE, OSHCR
ABOUT ARK
Ark Workplace Risk Ltd put organisations in control of their fire and health and safety management, while focusing on efficiency and effectiveness. The company has now evolved to become a market leading provider of Operational Risk, Compliance and Safety Solutions and Services internationally. Ark focuses on the entire supply and value chain for an end to end solution for our clients using QUOODA® Enterprise Software Platform, Outsourcing Solutions and Professional Services.