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Covid-19 and the challenges for implementing changes to the building safety regime

Posted: 06/07/2020


In the current uncertain climate, it may seem that anything unrelated to Covid-19 has slipped off the Government’s agenda. However, the increased focus on remote working and ‘staying in’ to prevent the spread of the virus means that the safety of our homes has really never been more important. It therefore comes as no surprise that, on 16 April 2020, the Housing Secretary, mayors and local leaders signed a pledge to ensure that the important changes to the building safety regime continue to be a priority despite the pandemic.

The momentum in this area is shown by the introduction of a variety of measures, including:

  • The £1 billion fund announced in the March 2020 budget to support the remediation of unsafe non-ACM cladding which, since 26 May 2020, has opened for applications on a first come first served basis.
  • The introduction of a draft Fire Safety Bill that aims to deliver the recommendations of the Grenfell Tower Enquiry’s phase one report. This will amend the Fire Safety Order 2005 to clarify that the responsible person or duty holder for “multi-occupied, residential buildings” must reduce and manage the risk of fire in connection with the entrance doors, common parts and external structure.

The Fire Safety Bill will empower both the ‘responsible person’ and ‘duty holder’ in relation to any relevant building to take concrete steps to better ensure the safety of residents. It intends to empower the fire and rescue services to take enforcement action against those who do not comply. In addition to this, many of the key changes that we can expect to see in the coming months have been outlined in the recently published response to the Building a Safer Future Consultation. The five main proposals are summarised below.

Proposal one: the introduction of a new national Building Safety Regulator

The Government will establish a new national Building Safety Regulator whose primary responsibility will be to implement and enforce a more stringent regulatory regime for multi-occupied residential buildings over 18 metres in height by providing a stronger oversight of the safety and performance of all such buildings and increasing the responsibilities and competence of those working on building safety.

The Building Safety Regulator will perform a number of functions, including:

  • keeping the scope of the more stringent regulatory regime under review
  • making all major regulatory decisions at key points during the design, construction, occupation and refurbishment of relevant “in-scope” buildings
  • carrying out ‘national-level’ functions including, among others, establishing a national register of relevant buildings
  • ensuring that resident complaints which have been escalated are dealt with effectively
  • advising on current and emerging risks and hosting centres of excellence
  • working with technical experts and the industry to ensure that all those involved are able to access the most up-to-date advice on best practice
  • overseeing and publishing reports on the performance of building control bodies (BCBs).

Proposal two: amendments to the duty-holder regime

Reforms to the duty-holder regime have been proposed. These include clearer guidance on the responsibilities involved within each stage of the building’s lifecycle through the new ‘gateways’ and identifying who will be taking on these responsibilities to ensure that appropriate accountability is maintained throughout.

Who the duty holder is will vary depending on which stage in its lifecycle the building is in. For example, at the construction phase, a number of duty holders have been identified including the principal designer, client and contractor, who will be required to work together to ensure building safety.

The Consultation Response identifies that it may be more difficult to determine who the accountable person should be during the building’s ownership phase due to the complex ownership structures that may exist. As a result, the Government is in the process of producing comprehensive guidance on this phase which we will expand on when it is released.

Proposal three: enhancements to the engagement of residents

This proposal centres on ensuring that residents’ concerns are more visible. This will include the appointment of a building safety manager by the accountable person, who will have responsibility for implementing an approved ‘Resident Engagement Strategy’ and the maintenance of a clear and appropriate complaints procedure.

Proposal four: increased regulation of construction products

This will include the implementation of a new national construction products regulatory role (including the development of standard third-party certification with the British Standards Industry) and a Construction Products Standards Committee to ensure greater consistency across the industry in terms of the testing, oversight and assessment of materials used.

Given the increasing momentum in this area, the first meeting of the Construction Products Standards Committee is anticipated to take place soon.

Proposal five: promoting competence across the industry

This proposal will be developed after the results of the competence steering group that are expected in the coming months have been published. The success of this goal will largely be facilitated by the appointment of an industry-led committee and the creation of a unified professional structure to encourage collaboration and knowledge-sharing.

The likely impact of the proposals

Undoubtedly, the publication of the consultation response provides further background and guidance on the steps that the Government will require the industry to take to enhance the safety of residents and allow building owners to ensure the long-term protection of their properties.

Together with the progress of the Fire Safety Bill, which had its first and second readings on 19 March 2020 and 29 April 2020 respectively, this gives a clear indication of the enhanced status and importance of fire safety in the industry.

Although the measures are unlikely to provide a complete solution to the multitude of issues arising, they show the Government’s desire to facilitate greater accountability and collaboration which will, in turn, be helpful in incentivising improvements to building safety in the sector.

Furthermore, these proposals, when combined with existing measures such as the expansion of the guidance to all buildings regardless of height in the Ministry of Housing, Communities and Local Government January 2020 Advice Note, the provision of funds for the removal of ACM and, more recently, non-ACM cladding,  underline the Government’s renewed focus on improving the current regime.

The impact of the Covid-19 pandemic has undoubtedly affected the speed of rectification in recent months, leaving the Government deadline for the removal of all unsafe cladding by June 2020 in further doubt. However, the Government’s April 2020 pledge to continue to focus on this area certainly means that building owners cannot use the challenges presented by Covid-19 as an excuse for non-compliance.

Furthermore, the industry and funders in the sector are helping to force rapid change and urgent remediation, as with asbestos historically. For example, funders are now routinely requiring that the RICS’ ESW1 form must be provided for a buyer to obtain a mortgage for all residential properties, despite the fact the form was originally intended for use on buildings of over 18 metres.

This practice has now become the norm, notwithstanding that leaseholders often legally cannot force freeholders or management companies to obtain the same for a property and that approved inspectors who can issue such ESW1 forms remain in high demand and are often unwilling to sign off the stringent requirements of the same without qualification.  This means that leaseholders are finding that they are unable to sell.

We also understand that funders will be looking for such sign offs and comfort when undertaking wider portfolio refinancing which, again, is likely to accelerate the speed of change.

The funders’ stance, combined with the clear direction of travel of the legislation and guidance, means parties are likely to need to intensify their efforts if they have not already investigated and remedied defective fire stopping. Likewise, and notwithstanding the challenges, affected parties must now continue to focus on removing unsafe cladding and performing all necessary inspections and tests as swiftly as is practicable both to ensure the safety of their residents and to avoid funding restrictions and undoubted future legislative sanctions.

 

Please contact us for more information on how we can help you ensure your assets are protected from a fire safety perspective. We can carry out individual scheme and portfolio risk reviews to assess your exposure and work with you to identify how best to manage the process and protect your organisation from associated investigation, management and remediation costs.


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