Building Safety Act – Implications for FMs as Construction Clients

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08 March 2024

The 6 April 2024 deadline is approaching, marking the end of the transitional period for building control applications and a new regime which has implications for those who commission, design and construct all buildings in England.

In this Opinion piece, Chartered Institute of Building (CIOB) Client Champion Paul Nash, Director of Paul Nash Consultancy Ltd, explains what facilities managers need to know about the responsibilities of the client as a dutyholder under the Building Safety Act and related secondary legislation.

In a career spanning nearly 40 years, Paul has worked for some of the UK’s leading international construction companies and built environment consultancies, and currently runs his own business providing advice to developers, contractors and investors in the property and construction sector. As a Past-President and Fellow of the Chartered Institute of Building (CIOB), Paul is actively engaged in raising awareness of key issues affecting the construction sector and regularly speaks at industry events.

He was chair of the CIOB’s Construction Quality Commission, which was established to investigate the issue of quality in construction and what needs to be done to improve it, and currently chairs the CIOB’s Quality Implementation Group. In 2017 he chaired the working group on procurement as part of the Independent Review of Building Regulations and Fire Safety led by Dame Judith Hackitt and is a member of the Industry Safety Steering Group that was established in 2018 to drive culture change in the industry in the wake of the Grenfell Tower fire.

 

Picture: a photograph of Paul Nash. Image Credit: CIOB

 

New Dutyholder Roles

 

Facilities managers will be aware of the new dutyholder role of accountable person in connection with operating higher-risk buildings (HRBs) introduced by Building Safety Act 2022 (BSA). If you didn’t know, people in the role have a regulated duty to keep occupants safe and to provide a “Safety Case Report” demonstrating how you are identifying, mitigating and managing building safety risks. 

What you may be less aware of is that the BSA also affects a much bigger group of people: construction clients, i.e. persons for whom a project is carried out. This group is likely to include many more facilities managers because it is not restricted to work on HRBs but includes any work where Building Regulations (BRegs) apply. 

If you commission repair and maintenance work that is covered by the building regulations, you now take on new duties as a client and are subject to new requirements, with additional ones if the work relates to an HRB.

As the April 6 deadline approaches, facilities managers must familiarise themselves with these changes and prepare to act.

Focus on Compliance

 

Although the end goal of the BSA and related secondary legislation is improved safety for occupants, the focus during design and construction is on tightening compliance to ensure that what is designed and built fully complies with building regs.

The detailed procedural changes are best understood in relation to a handful of overarching themes identified as contributing to compliance. These are accountability, competence, project management, information management and deterrence. 

 

“Properly assigning dutyholder roles will not only ensure that you have fulfilled your duty as a client properly but will also improve the chances of your project complying with all relevant requirements of the building regulations.” 

Accountability

 

The updated building regulations assign accountability for compliance by creating new duties that must be fulfilled by persons (i.e. individuals or entities) taking on regulated dutyholder roles. 

Although these roles have the same names as the dutyholder roles under the CDM Regulations – Client, Designer, Contractor, Principal Designer, and Principal Contractor – they are distinct and different, and of course carry different liabilities. 

For total clarity, if you are the client, you should identify which of your service providers is doing what in appointments and articulate expectations regarding these regulated roles accordingly. In this context, developing a RACI (responsible, accountable, consulted, informed) matrix can be very helpful.

Properly assigning dutyholder roles will not only ensure that you have fulfilled your duty as a client properly but will also improve the chances of your project complying with all relevant requirements of the building regulations. 

Competence

 

To be competent means having the right individual skills, knowledge, experience and behaviours, or for an organisation, having the organisational capability. (If you are unfamiliar with what is meant by "behaviours" in this context, it includes being able to cooperate and having the integrity to refuse work if it is beyond your competence.)

Evidence suggests that too many service providers in the past turned out not to be sufficiently competent and so you are now required to satisfy yourself that they are before you appoint them. 

The responsibility is not all yours: other dutyholders have a reciprocal duty to refuse work that they are not competent to carry out. 

Proper checks on competence will help to ensure compliance. Update your standard questions when appointing by asking for appropriate qualifications, current certifications, experience, and references as evidence. Look out for service providers who are members of professional organisations operating to a code of conduct (such as the CIOB).

Project Management 

 

All dutyholders now have a duty to cooperate with each other and to plan, manage and monitor their work so that it complies with all relevant requirements. The client must make suitable arrangements for planning, managing and monitoring their project, and must ensure the allocation of sufficient time and resources to ensure compliance.

This will help your project to run smoothly and help you to maintain a good working relationship with the relevant building control authority. Having proper systems in place is especially important for HRBs, where the building control requirements are more stringent. 

You must have the governance, reporting structures and training in place to ensure the whole project team can contribute to recording decisions, tracking and notifying changes accurately to leave a clear audit trail and obtain approval from the Building Safety Regulator where required, and identifying and reporting safety occurrences. 

Information Management

 

The flow of information in construction projects underpins everything and so has always been important. It is even more so now. 

For HRB projects, the information management burden is particularly onerous. You must provide for the “golden thread of information” and also manage numerous other information requirements. These include comprehensive packages of information for building control approval by the new Building Safety Regulator, change control notices, and safety occurrence reports. 

For all projects and in particular HRBs, you should treat your regulated information exchanges as more than just ticked boxes. As well as being comprehensive, accurate and up to date, they should be well organised and clearly communicated. This will ease your path through building control and reduce the likelihood of delays, as well as ensuring that the responsible and accountable persons can discharge their duty to ensure the safety of occupants after completion.

Deterrence

 

A final factor underpinning the Building Safety Act’s strategy for improving compliance and, therefore, safety, is to increase the penalties for non-compliance. The relevant authorities’ regulated powers of enforcement have been considerably beefed up, with extended liability periods, stiffer fines, and, ultimately, criminal conviction and imprisonment for failures to comply.

It is likely that the legislative changes will take time to “bed in”, especially in connection with HRBs, but it is in the interests of society and the industry to make them work. We should never lose sight of why this change was needed and the responsibility we all have to ensure the public are safe and feel safe in their own homes and the buildings they visit in the future.

Picture: a photograph of a person wearing a protective hard hat, protective eyewear and a hi-vis jacket. person Image Credit: Pixabay

Article written by Paul Nash | Published 08 March 2024

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