New building and fire safety regime for occupied residential buildings: uncertainties remain

The Act sets out a series of principles, yet uncertainties linger about how they translate into a practical and proportionate operation in occupancy. We’ll get to some of the questions later.

The big change, which crystallised at the Lord’s review stage of the Bill, was the deletion of the duty to appoint a building safety manager (BSM). The aim of this role was to support the Accountable Person with their duties to look after the management of fire and structural safety in higher-risk buildings on a day-to-day basis. 

The shift in government position has been an undeniable setback for those of us who have been advocating greater competence in the occupation phase. More so because the Part 4 (and 3) duties in the Act still need to be delivered. Indeed, it will still be the responsibility of ‘accountable persons’ to ensure they have the necessary arrangements in place to manage building safety risks, meet the duties relating to information and documents, and ensure meaningful engagement with residents. All this requires competence.

Sofie Hooper: "The Act sets out a series of principles, yet uncertainties linger about how they translate into a practical and proportionate operation in occupancy."

New competence framework for building safety management

While the ‘duty to appoint’ a BSM in itself is being scrapped, the competence framework that underpins the competent delivery of building safety management in occupation is nearing its publication. At the same time, it has completed its pivot to organisational competence.

PAS 8673 Built environment – Competence requirements for the management of safety in residential buildings – Specification, should be used by all those managing buildings, regardless of height, both to assess their organisational capability and to assess the competence of their people who will oversee and/or deliver building safety management.

Having worked on the competence framework for some years now - first through Working Group 8 of the Competence Steering Group, then as part of the Steering Group for PAS 8673 - IWFM will continue to collaborate with other stakeholders in the occupation phase to make sure that the Building Safety Act will deliver on its purpose of safe homes for people and overall safer and better buildings. 

Much like PAS 8673, the Building Safety Alliance, the successor to Working Group 8, is pivoting its work to bring stakeholders across the sector together to drive the culture change needed across the occupation phase and disseminate best practice. With so much of the operational implementation to be determined via secondary legislation and statutory guidance, the collaboration has got its work cut out.

Especially when we should remind ourselves that the impact of the Building Safety Act stretches beyond Higher-Risk Residential Buildings, as buildings below 18m will also fall under the new regime for refurbishments, works, etc. Hospitals, for example, will fall under the scope of the regime, but not for the Part 4 duties. Secondary legislation will help fill in some of the questions around this.

Golden thread

At IWFM’s recent Conference, we had a panel discussion with the golden thread lead within Government about much of what is yet to be determined in secondary legislation, and the golden thread is one such key area. What will need to be included in the golden thread and how the information must be kept is currently still under development.

Much of the detail is still being shaped and the draft legislation will be consulted on shortly. Photograph: iStock

One point people should understand is that not all elements of the golden thread from the construction phase will fall under the occupation phase’s golden thread scope. The Health and Safety File, for example, should be handed over to the client at the end of the construction phase as per CDM Regs, but it doesn’t fall under the scope of the Building Safety Act’s golden thread for occupation. It will therefore not be part of the Building Safety Regulator’s enforcement check for a building’s compliance with the Building Safety Act. Of course the File must still be handed over upon completion of the construction phase!

Another area of discussion is whether the safety management system should be included in the Golden Thread, given how it is very much embedded within organisations delivering ‘Part 4 Duties’, who will often be distinct from the main dutyholder, the Principal Accountable Person.

For new buildings, the collection of information should be easier as the buildings will still move through the new Gateway systems, and they will not be able to progress without meeting information requirements. The more difficult question is around the principle of proportionality for existing buildings. Over the last few years, those managing buildings have made great progress in collecting data, but gaps are often still plenty, especially when it comes to structural safety information.

So, what would be proportionate? Intrusive surveys? Not necessarily, especially as we know the regime is a risk management based one. The information will need to be sought and provided where it is imperative for correct decision making. You may not need to know the internal layout for internal units (although there are exceptions), but you will need to know the distance for egress in a hallway, for example.

Another question is the degree of digitisation (and interoperability) the sector would have to undergo, as current capability is varied across the sector. The Government’s own factsheet says the golden thread will have to be kept in a digital format, but what exactly does this mean? A scanned document may suffice but given this is a compliance driven sector, is that sufficient to shift the dial towards better document and information management? Yet, pushing the wider sector too much may likewise mean outcomes cannot be delivered against. A tricky balance is needed, and dials may have to be shifted over time.

Additionally, we will need to understand the context of the buildings in scope of the new design and construction regime, but not the new occupation regime, such as hospitals or care homes. It is anticipated the golden thread will be handed to the responsible person under the Regulatory Reform (Fire Safety) Order 2005 (FSO) in occupation. However, this policy has not yet been finalised.

So, much of the detail is still being shaped and the draft legislation will be consulted on shortly, not least because the policy makers are aware of the high stakes of not getting it right. Indeed, it is critical for building safety management that the information our professions base their decisions on is accurate, accessible, up to date and shareable. 

And yet, we are starting to get indications of what may be required through related Fire Safety legislation.

The Fire Safety Act has become applicable, and with it the scope of the Fire Safety Order has been extended to explicitly include flat front doors and cladding in fire risk assessments. The Fire Safety (England) Regulations 2022 are implementing many Grenfell Tower Inquiry recommendations relating to information requirements for high-rise buildings (with some of the requirements also applying to domestic buildings over 11m and any domestic building).

These include provisions on the secure information box, floor plans and building plans, lifts and essential fire-fighting equipment, etc. We also know that these requirements need to be in place by 23 January 2023. It would not be a great surprise that any complementary, yet to be finalised golden thread requirements would become applicable later in 2023.

Sofie Hooper is Head of policy at the Institute of Workplace and Facilities Management (IWFM).

For more information on the work of the IWFM see: iwfm.org.uk