Competence and culture change in the built environment: important developments

Building safety is the new regulatory regime overseen by the Building Safety Regulator (BSR) to ensure the fire safety and structural safety of higher-risk buildings (HRBs). The BSR is part of the Health and Safety Executive (HSE) and will regulate building work through a series of gateways and a new occupation phase, and dutyholders will need to prepare a safety case setting out how they will make sure the building stays safe to occupy throughout its lifetime. This article focuses on two key goals of the new building safety regime – competence and culture change and considers the BSR’s role in regulating these changes and how dutyholders can ensure compliance.

Laura White, senior associate, Pinsent Masons LLP.

The new powers of the BSR under the building safety regime have been widely discussed. However, as well as new powers the new regime also imposes statutory duties on the BSR itself. One of the duties of the BSR is to facilitate improvement in the competence of industry and building inspectors. These are ongoing duties in relation to HRBs and keeping standards of all buildings under review. Therefore, as well as overseeing the safety and performance of all buildings, a key associated function of the BSR will be to help the built environment industry and building control professionals to improve their competency.

All dutyholders under the new regime are expected to demonstrate their competence for undertaking those roles.

The building control profession competencies are not addressed in this article but it is important to note that the Committee on Industry Competence will also assist the BSR with unifying the building control profession and improving competency across the industry. Mandatory codes and standards have been published by the BSR for the building control profession which will apply from April 2024.

New legislation

New legislation will underpin competence requirements on dutyholders in the construction and occupation phases. The Building (Appointment of Person, Industry Competence and Dutyholders (England) Regulations (The Dutyholder Regulations for short!) will apply to all buildings. During the design and construction of HRBs dutyholders will be identified in the same way as those under the Construction (Design and Management) Regulations 2015 (CDM).

The wording of the draft dutyholder regulations almost exactly mirrors CDM, except that the obligations are designed to ensure compliance with the building regulations, rather than workforce health and safety. These two parallel regimes mean that the organisation in the ‘client’ roles will need to consider whether the contractor is competent from a health and safety perspective, and separately from a building safety perspective.

A striking difference between CDM and the dutyholder regs is in the ‘client’ role. It poses the question of whether this is when the ‘client’ will get serious attention from the BSR.

The government has stated that it would not expect clients on building projects to appoint separate dutyholders to fulfil the requirements of the CDM Regs on one hand, and the HRB regime on the other. However, it noted that if the same party were appointed to a fulfil a dutyholder role under both sets of requirements (for example, a contractor is appointed ‘principal contractor’ under the CDM Regs and the HRB regime), it or they must have the competence to deal with both sets of responsibilities.

Skills, knowledge, experience and behaviours

Individuals involved in building work must demonstrate the skills, knowledge, experience and behaviours necessary for the job. The ‘behaviours’ part is about changing safety culture.

Those organisations undertaking the principal contractor and principal designer roles must appoint named individuals to manage those roles. This is particularly important where the same organisation may have both roles. HSE says that it is not going to support bolt-on consultancies for these functions. It sees building regulations compliance as an integral role of the lead designer and the main contractor.

BSI (British Standards Institution) has developed PAS standards which will support the new building safety regime. These are not legal requirements, but guidance. Having said that, Pinsent Masons expects them to be widely adopted and dutyholders can use compliance with the guidance as demonstration of compliance with their duties under the dutyholder regulations.

There are four PAS standards to be aware of:

• BSI Flex 8670: sets out a framework for all competence assurance systems
• PAS 8672: contains competence requirements for principal contractors working on higher-risk buildings
• PAS 8671: is the equivalent for the principal designer role
• PAS 8673: sets out competence requirements for the occupation phase.

BSI Flex 8670, ‘a code of practice which sets core building safety criteria for built environment competence frameworks’, is intended to support wider industry reform with the ultimate objective of minimising safety risks and improving protection to consumers and occupants, including residents, in and about buildings.

The PAS states that while oversight of competence might rest with professional, trade or training bodies, competence is ultimately an individual responsibility relevant to every person in the construction and built environment workforce. Embedding building safety competence at all levels and across all roles, functions, tasks and activities is critical in protecting residents and other occupants throughout the building lifecycle.

This BSI Flex is applicable to buildings of all types and scales. It is intended to have wide application and relevance in modern construction and property markets throughout the UK and beyond.

The BSI Flex makes it clear that it is important that competence frameworks and training and development regimes establish the right conditions so that individuals are able to take reasonable steps in managing limits of competence. This includes enabling a culture where it is seen as the right thing to do to flag concerns about limits of competence, and where individuals have the necessary authority to act to mitigate risks.

PAS 8671 specifies the minimum competence thresholds needed by Principal Designers and further additional requirements for working on HRBs.

It details the Principal Designer dutyholder’s areas of competence as:

• Appropriate behaviour
• Knowledge of legislative and regulatory framework for compliance
• Management of design work compliance
• Awareness of technical framework for compliance.

PAS 8672, which applies to Principal Contractors (PCs), articulates that no one individual can be expected to possess the full range of competences given the breadth and complexity of building works.

It sets general competencies which relate to all buildings and specific ones relating to HRBs. PCs are expected to have sufficient technical expertise for ensuring building safety, compliance with building regulations and the quality of work by others under their responsibility. They should possess managerial expertise that enables them to effectively liaise with all others undertaking or supplying building work, materials/products or services for buildings.

Additional competences required of PCs include understanding the regulatory obligations in respect of signing-off key information, including the compliance of the ‘as-built’ building; establishing the competence of sub-contractors; maintaining the construction control plan (which forms part of the golden thread of information) during construction; detailing full, accurate records of all design changes; establishing a system for mandatory occurrence reporting and contributing to an appropriate handover of information to the Accountable Person.

PAS 8673 sets out a competence framework for occupied buildings to support Accountable Persons and others in managing building safety risks in HRBs. The principal accountable person will need to condense fire and structural safety risk information into a safety case report, to be submitted to the BSR as part of an application for a building assessment certificate.

The PAS guidance documents provide a useful framework for all dutyholders in the new regime
to assess whether they meet the competence requirements for their roles. Dutyholders should also be aware that the PAS documents provide a relatively easy approach for the BSR if dutyholders are investigated for breaches. They should therefore be ready to demonstrate how the principles have been considered and applied, in order to avoid potential criticism.

Laura White is a senior associate at Pinsent Masons LLP. Contact her at: 

https://www.pinsentmasons.com/people/laura-white