Under most construction contracts, the contractor takes on the ground conditions risk. However, a recent case has demonstrated that the risk can fall on the employer.
Following the Grenfell Tower Tragedy, the Government commissioned an independent review of Building Regulations and Fire Safety. In December 2017 the interim report of Dame Judith Hackitt’s reported that the current regulatory system for high rise buildings was not fit for purpose and needed a complete overhaul after the publication of the final report on 17 May 2018.
The focus of the report was predominantly upon a new regulatory regime for new and existing multi-occupancy, higher-risk residential buildings (‘HRRBs’) that are 10+ storeys in height.
The report makes over 50 recommendations covering:
- a new, more robust regulatory framework
- the establishment of a Joint Competent Authority (“JCA”) to oversee the management of safety risks
- a rigorous set of roles and responsibilities for duty holders
- an improved focus and accountability on building safety from procurement, design and construction through to occupation of the buildings, and
- reasserting the role and voice of residents.
We have selected a few of the recommendations that will significantly impact on landlords:
Dame Judith Hackitt advocates the creation of a ‘Joint Competent Authority’ (JCA) by the Government.
She proposes that the JCA should comprise varied expertise and knowledge of the Health and Safety Executive (“HSE”), fire and rescue authorities (“FRAs”) and local authority building standards. They should all work together to oversee the creation and implementation of a stronger regulatory framework.
Key responsibilities of the JCA would include:
- the creation and maintenance of a database of all HRRBs and their respective duty holders at both the construction and occupation stage
- ensuring duty holders focus on the mitigation and reduction of building safety risks
- assessing immediate ad-hoc building safety concerns about specific HRRBs
- requesting testing of construction products and requesting annual reports from product testing houses, and
- helping to validate the proposed new guidance.
A rigorous set of roles and responsibilities for duty holders
The Interim Report recognised the confusing overlap between the Housing Act 2004 and the Fire Safety Reform Order 2005, particularly in identifying a key person responsible for the structural and fire safety of a building.
The Housing Act 2004 gives local authorities the power to take action against individual landlords and leaseholders but does not require an individual to take overall responsibility for the safety of buildings. In multi-tenure blocks, there are commonly numerous people subject to the responsibilities of a responsible person under the Fire Safety Order. As such, there is no clarity on who holds which responsibility resulting in diluted or confused accountability.
Dame Hackitt suggests that at the construction stage, overall responsibility for the whole building should be assigned to a known person (‘dutyholder’) who can be held accountable for safety measures and precautions falling under that responsibility. The creation of a clearly identifiable dutyholder would make clear that the nominated person would retain overall responsibility for safety aspects of a building, and is accountable to the residents of that building and the regulator. The dutyholders would also be responsible for ensuring information management systems are in place, ensuring that residents receive adequate safety information and encouraging resident engagement.
The report emphasises that buildings should be considered as a ‘system’, with each individual aspect of construction, refurbishment and maintenance affecting the overall system.
Improve competence across the system
The report suggests that all bodies and individuals at all stages of a HRRB life cycle should have the competence to develop a responsible approach to delivering building safety standards, though there is currently no consistent means of assessing or verifying such competence. With reference to existing sector-specific schemes and accreditations, it is recommended that a single body oversees the competence levels across relevant disciplines and professions, such as engineers, fire risk assessors, enforcing officers and building control inspectors.
Re-establishing the resident voice
There was an emphasis on the importance of ensuring that all residents have access to key information about their building and its safety measures. It is recommended that the dutyholder provides information tailored to each building, including a summary of the latest fire risk assessment and a ‘safety rating’. It is suggested that this will also incentivise dutyholders to make any necessary improvements promptly.
Information provided to tenants should advise residents of steps that they need to take within their own homes in conjunction with the existing safety measures implemented by the dutyholder. Residents should also have access to fire safety awareness training where beneficial and there should be clear signposts to the relevant internal procedure for reporting concerns or getting involved in the decision-making process.
The report encourages increased resident involvement in decision-making but stops short of prescribing specific means of engagement. There is reference to the Tenant Involvement and Empowerment Standard for social landlords, and voluntary accreditation schemes for managing agents of privately owned blocks of flats.
Finally, the report highlighted the need for a clear route of safety concerning escalation to an independent body, with powers of inspection and the power to escalate concerns to the JCA.
It is recommended that the Government consider the role of the ombudsman system in respect of this recommendation, with particular consideration of the suggestion of forming a single housing ombudsman.
If, as anticipated, the Government does implement changes in legislation to reflect the Dame’s recommendations, then those involved in the processes described above can expect to be subject to stricter duties and also robust penalties for non-compliance.
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