by Iain McIlwee | Jan 11, 2022 | Building Safety Act
Today Housing secretary Michael Gove has warned developers, contractors and manufacturers they must fork out £4 billion to fix dangerous cladding on low-rise buildings. Whilst this may seem to be good news to some – Government has at last made a stand – our concern is the impact and ripple effect that this will have has been not been fully understood.
FIS predicted this news before Christmas and our firm view remains that the current approach is more about winning the blame game than solving the problem.
In his opening remarks Gove said it wasn’t fair that leaseholder take the financial impact, this is true but it is also true that the construction sector shouldn’t shoulder more than its fair share of the burden. The current approach will see years of legal wranglings with costs simply being pushed down the supply chain. The only winners will be the lawyers and the administrators and the real losers will be the small and medium sized contractors and subcontractors, who bound by heavily amended contracts (designed to deflect risk), operating in exceptionally difficult circumstances and could well be left holding the bill when the music stops. New procurement guidance targeted at stopping prioritising cost over value clearly recognises the challenges that the supply chain was under and seeks to change the culture, but this approach was endemic in the past.
Commenting on the letter FIS CEO, Iain McIlwee stated:
“This latest announcement is focussed on cladding, but we know this is not the only issue and when read in context with other correspondence and the retrospective application of changes to the Defective Premises Act it is troubling. In his opening remarks Gove said it wasn’t fair that leaseholder take the financial impact but it is also true that the construction sector shouldn’t shoulder more than its fair share of the burden. The issue is about being proportionate. By passing the entire responsibility on to the construction sector we run the risk of derailing future work whilst we manage this legacy. It is very difficult for the industry to look forward when there is a shadow that is getting darker with every announcement looming over our shoulder.
We have to accept this is a systemic breakdown, regulation and guidance was not clear and new procurement guidance targeted at stopping prioritising cost, over value, is recognition of the challenges that much of the supply chain have been struggling with. Unrealistic cost and time pressure have been masked by terms like value engineering and liquidated damages and dumped in “standard contracts” that were amended beyond all recognition to dump risk through the supply chain. I remain unconvinced that the solution is in the interventions we are seeing and suspect the only winners will be the lawyers and the administrators with cost and blame being pushed through the supply chain. A better approach is a levy based Building Safety Fund and we have written to Mr Gove and his department to recommend this.”
A better solution has to be found. FIS has long advocated – a similar approach to the Pension Protection Fund. Putting a £4 billion pound threat on to contractors, developers and manufacturer may win headlines now but it will just create an even bigger problem further down the road.
Read the full open letter from Michael Gove here
by Iain McIlwee | Dec 27, 2021 | Building Safety Act
The UK Government has notified the Committee on Technical Barriers to Trade at the World Trade Organisation (WTO) of their intention to bring into force the Construction Products Regulations 2022. The document correspondence provides a useful update of the intent and focus of changes to the regulatory environment for construction products. GBR45_EN
The Building Safety Bill will carry the necessary legal changes
In correspondence with the World Trade Organisation the Department for Levelling Up, Housing and Communities (DLUHC) have advised WTO thar regulations will be made under the Building Safety Bill (once it has received Royal Assent) and will extend the existing regulatory framework to cover all construction products placed on the market in the UK. The existing regulatory framework for construction products, which derives from EU law, will remain in place for Great Britain (the EU regulatory regime for construction products will continue to apply in Northern Ireland as per the Northern Ireland Protocol). The regulation of safety critical products and the requirement for construction products to be safe will be extended to Northern Ireland.
DLUHC has also advised WTO that the intention of these regulations is to require that construction products placed on the UK market are safe, and can be used safely. It will do this by placing obligations on economic operators in the supply chain, including to carry out a risk assessment, provide customer information and to take corrective measures where necessary.
The Bill includes a power to create a statutory list of ‘safety critical’ construction product standards (where their failure would risk causing serious injury or death). The
regulations set out that manufacturers will be required to complete a declaration of performance, put in place factory production controls and follow the specified system of assessment and verification of constancy of performance to ensure that the claimed performance is consistently met. This will bring the regulation of these products in line with arrangements for products covered by the existing regulatory framework, including the affixation of a UKCA mark. Other economic operators in the supply chain will have obligations placed on them to support compliance with these requirements.
The overall aim is that regulations will strengthen the market surveillance and enforcement regime for construction products so that safety concerns can be identified and dealt with, and action can be taken against those who do not comply with the regulations. This includes powers to investigate, take civil action or prosecute economic operators for breaches in construction products regulations.
Grenfell has highlighted that “many construction products do not fall under a regulatory framework”.
DLUHC advise WTO that changes are necessary following the fatal fire at Grenfell Tower where it became apparent that many construction products do not fall under a regulatory framework. This means that regulators lack powers to act if certain products do not perform in the way they are claimed to, or if they are unsafe. The intent is to make sure that construction products fall under a proportionate regulatory regime that protects the public effectively from products that are not safe. To be effective, reforms must achieve their objective to ensure that products are safe, and can be used safely, in a way that is proportionate to the risk posed by the product. That is why the most stringent requirements (which are equivalent to the existing regulatory regime), including providing clear and accurate performance information, undertaking third-party conformity assessment (where required) and affixing the UKCA marking, will fall only on construction products deemed to be safety critical, where their failure would risk causing serious injury or death.
Other products which currently fall outside of clear regulatory requirements will be required to be safe before they can be placed on the market, aligning with the minimum standard required for consumer products. This broad outcome-based requirement to assess safety risks, rather than requiring specific standards will ensure that the reformed regime will enable rather than restrict market access for innovative products. A new national regulator for construction products will more effectively and proportionately enforce this reformed regulatory framework, improving the ability to remove non-compliant products from the market and to deter non-compliance. This will help to level the playing field between companies who follow best practice and who comply with the law, and those that try to seek a competitive advantage through non-compliance.
A full copy of this correspondence can be seen here.
A full summary of the Building Safety Bill written by FIS is available here
by Iain McIlwee | Dec 27, 2021 | Building Safety Act, Main News Feed
Government has made it clear that it is lining up changes to the Defective Premises Act and Section 38 of the Building Act 1984 to ensure the construction sector is “held to account for building safety issues”. In a letter to FIS, the Department for Levelling Up, Housing and Communities have spelled out that Legislative changes are being designed to “extend legal rights to redress for shoddy workmanship” and facilitate “civil action to be brought regarding breaches of building regulations which have resulted in injury or damage to property”, holding “those responsible for defective construction work can be held to account for their failures.”
This clear warning was issued in a response to an FIS letter sent in early November to Secretary of State, Michael Gove suggesting a new approach to the Building Safety Fund is required. FIS has isolated issues with the Building Safety Fund since its inception and repeatedly spoken out on concerns related to the retrospective elements of changes to the Defective Premises Act. The Act is being extended to cover refurbishment works and to alter the limitation period under section 1 of the Defective Premises Act 1972 from six to fifteen years regardless of contracts and warranties – this change will be imposed retrospectively from the moment the Act is passed (expected to be in the Spring or Summer 2022).
In the letter to Mr Gove, FIS recommended drawing parallels with the Pension Protection Fund, an intervention designed to protect individuals in defined pension schemes from company insolvencies. FIS suggests that this approach could be replicated by raising a levy on costs like Insurance Premium Tax. and would help to prioritise building work over litigation. It could also facilitate a mechanism to extend the focus of the Fund beyond cladding, supporting a holistic acceleration in improvement in much needed building safety work. As with the Pension Protection Fund, a centrally co-ordinated approach could also provide an efficient mechanism to deal with isolating culpability retrospectively and in a more consistent and measured way. FIS expresses concern that the current policy direction is likely to see litigation put in front of action, companies wound up in administration and life critical interventions delayed and the question of who pays unresolved.
Reflecting on the Government response to the FIS letter CEO, Iain McIlwee stated: “I believe the direction of travel set down in this letter is a real concern to the construction sector and remain convinced that the answer to safer buildings is not the punitive, backward looking approach described.
The Defective Premises Act applied retrospectively in this way is more about winning the blame game than solving problems. To be clear no-one is advocating that leaseholders should be footing the bill or that, in clear cases of negligence or deliberate attempts to disguise information, companies and individuals should not be held to account.
But we can’t allow history to be re-written and a better Building Safety Fund would give the opportunity to draw a line under the past, whilst at the same time recognising that, from regulation, through guidance, enforcement, design, construction and the asset management and maintenance of buildings there has been a systemic failing in the process required to build and maintain safe buildings.
My concern is that, beyond the gaps and opaque advice around regulatory compliance, unhealthy procurement practices, value engineering and accelerated programmes, failings have been underpinned by inappropriate risk exchange in heavily amended standard and ultimately unfair contracts. Contracts have been written to drop a disproportionate amount of financial, time and quality risk into the smallest parts of the supply chain, those least able to resist and manage it. In the interventions described in this letter I don’t see a rapid and effective solution or those morally who should shouldering the blame being held to account. All I can see is a process that squeezes far more blame than is fair or proportionate onto small and medium sized contractors, manipulated by a failed process, never set up to succeed and now to take the fall.”
A fully copy of the letter follows:
Dear Mr McIlwee,
Thank you for your email dated 9 November to the Rt Hon Michael Gove MP regarding cladding remediation and leaseholder liability. I am responding as an official in the team responsible for building safety.
Thank you for your suggestions. The Government has been clear that building owners and industry should make buildings safe without passing on costs to leaseholders. Where they have not stepped up, the Government has intervened by providing grant funding for the removal of unsafe cladding on all buildings of 18 metres and above in height. The total amount of this grant funding scheme represents a globally unprecedented investment of over £5 billion in building safety which will protect hundreds of thousands of leaseholders from the cost of replacing unsafe cladding on their homes.
However, Government funding does not absolve building owners of their responsibility to ensure their buildings are safe, and they should consider all routes to meet costs, protecting leaseholders where they can – for example, through warranties and recovering costs from contractors for incorrect or poor work.
It is also fundamental that the industry that caused this legacy of unsafe buildings contributes to setting things right. At Autumn Budget 2021 the Government released details of the Residential Property Developer Tax, which will apply a new 4% tax to the largest residential property developers on the profits they make on UK residential property developments. Details of this can be found here
The Government is also introducing a levy on major developers which we expect to be introduced at the Gateway 2 stage of the new Building Safety Regime. On 21 July the Government launched a consultation seeking views on the design of the developer levy, including how it will be calculated. The decision on the levy calculation and rate will be informed by the evidence received from this consultation, and balancing revenue raised with potential impacts on housing supply. The consultation has now closed, and the Government is considering responses. The consultation can be accessed on gov.uk here.
The Government’s approach prioritises action on buildings 18 metres and above because the risk to multiple households is greater when fire spreads in buildings of this height. For buildings lower than 18 metres, advice from independent experts, published on 21 July on gov.uk, is clear that there is no evidence of systemic risk of fire in blocks of flats.
The principle that those responsible for creating building safety defects should pay to put them right has always been the Government’s position. That is why we are taking action through the Building Safety Bill to extend legal rights to redress for shoddy workmanship by retrospectively extending the limitation period under section 1 of the Defective Premises Act 1972 from six to fifteen years.
These changes will enhance the ability of building owners, homeowners and leaseholders to seek compensation from those responsible for defective work. Going forward, we are also expanding the Defective Premises Act to include refurbishment works, and we will be commencing section 38 of the Building Act 1984, allowing civil action to be brought regarding breaches of building regulations which have resulted in injury or damage to property. These measures will ensure that those responsible for defective construction work can be held to account for their failures.
We are also introducing the Residential Property Developers Tax and the Building Safety Levy to make sure that the industry which created these problems pays its share towards resolving them. In addition, we are actively encouraging developers to step up and make direct contributions towards historic defects in buildings for which they are responsible.
Thank you again for your correspondence and I hope that you find this response helpful.
Yours sincerely,
Building Safety Programme
Correspondence Team
Department for Levelling Up, Housing and Communities
A recent SpecFinish Article highlights how the Defective Premises Act may impact the sector
You can find out more about FIS Campaigns and Lobbying work here
by Iain McIlwee | Dec 15, 2021 | Building Safety Act, Main News Feed, Technical
As part of work underway to establish a new Building Safety Regulator and reform the building safety system, HSE is urging those who design high-rise buildings to act now to prepare for the changes coming when the Building Safety Bill becomes law.
The Building Safety Bill, currently making its way through Parliament, aims to implement all of the recommendations set out in Dame Judith Hackitt’s “Building a Safer Future” report, and in places goes further. The reforms include a more stringent approach to the design and construction of high-rise buildings, clearer responsibilities on designers to ensure these buildings are safe, and new measures so that everyone doing design or building work is competent to carry out that work in line with building regulations.
People working on the design of a high-rise building, from the development of a planning application through to building regulations approval will need to understand the building’s intended use, correctly identify the risks, and own and manage those risks to determine the safety of a building.
There will be a requirement to record and provide evidence of decision-making during the design process, and a need to be engaged throughout a building project to handover to the end client. Prepare now for these changes.
Peter Baker, Chief Inspector of Buildings at the Health and Safety Executive, said:
“Designers have a strong influence on safety and standards, particularly during the very early planning and design stages of a building project. Their decisions not only affect the safety of those carrying out the building work, but also those maintaining, using, or living in a building after it is built.
“I encourage designers to act now and prepare for the more stringent regulatory regime. HSE will continue to work with the building design industry and related businesses to support them to deliver safe and high-performing buildings and ensure that residents of high-rise buildings are safe, and feel safe, in their homes now and in the future.”
Colin Blatchford, Operational Policy Lead for Gateways and Building Control at HSE, said:
“Everyone involved in the design of high-rise buildings must take a proactive approach to managing building safety from the earliest stages of the design process. These changes are coming. Those involved need to plan ahead through correctly identifying, taking ownership and managing the risks – ensuring key decisions are recorded throughout the process.
“Once the Building Safety Bill becomes law, there will be a requirement for a safety case report when a building is completed and occupied. It is important to consider this at the early design stage for your clients and future residents’ safety.
“Building safety changes are coming and will affect everyone involved in a high-rise building project beyond its design. We urge that you act now.”
Responding to this statement, FIS CEO Iain McIlwee said:
“The Building Safety Bill offers a huge lever for change, but it needs to start with a recognition that design is detailed through the construction process and for the detailing to be effective we need the specialist contractors and manufacturers involved (and contracted) at a far earlier stage. Even with tighter regs, we will still see problems being resolved on the fly in difficult circumstances and under severe time pressure on site rather than designed out of the process at an earlier stage. This has to be about changing not just the way we design and build, but vitally how we procure the services, respect specialist knowledge and collaborate far more effectively through the project.”
You can find out more about the implementation of the Building Safety Bill here
by Clair Mooney | Nov 18, 2021 | Building Safety Act, Technical
BSI has launched BSI Identify to allow permanent structured product data to be found at any stage in the design, installation, maintenance and deconstruction of the product or system.
The Construction Product Association (CPA) said ‘This unique initiative aims to improve safety across the built environment through digital product identification’
BSI Identify has been in development with CPA and its members since 2024 and was supported with Innovate funding
How does it work?
- Manufacturers are issued a unique digital identifier called a BSI UPIN for every product
- The manufacturer can mark or tag their products via QR codes, NFC or RFID tags
- The BSI UPIN, once scanned, directs users to an open-access permanent page that holds all relevant and up to date product information
- All product queries can be routed back to the manufacturer
By using this revolutionary technology, manufacturers can support the Golden Thread of Information and improve industry safety. It’s good for business and good for your customers.
FIS Technical Director Joe Cilia sai:
‘Being able to access product information at the point of installation or even years after its been integrated in the fabric of a building is vitally important if we are to maintain buildings for the safety of all occupants in future. BSI identify will allow this to happen using a data base that will be available in perpetuity even if the company is no longer in business, and that’s a game changer.’
Peter Caplehorn CEO at the CPA said
‘By moving everything into a fully joined-up digital process, we can improve overall efficiency, product performance, safety, customer satisfaction, environmental performance and profit margins, which is a good thing because some money can be put back into R&D. BSI Identify is a unique digital identification service that looks to improve industry safety by solving the challenge of product identification.’
Watch this video to see how BSI Identify helps manufacturers
Find out more about BSI Identify on the BSI Identify website or CPA website.
by Clair Mooney | Nov 12, 2021 | Building Safety Act, Technical
Building Standards Division (BSD), is developing a national Compliance Plan approach to provide greater assurance that compliance with building regulations is achieved from design to completion.
This consultation seeks to obtain the views on the development of a new Compliance Plan Manager role within the building standards system which will apply to specific High Risk Building (HRB) types, the definition of these HRBs and the level of fines where work is not carried out in accordance with the regulations.
This consultation forms part of the work undertaken by the Compliance Plan Working Group, which is one of seven work streams, being directed by the Building Standards Futures Board. The consultation will gather opinions from stakeholders on a review of the building standards system relating to the way in which compliance with the building regulations is assured and enforced to help ensure the health, safety and welfare of people in and around Scotland’s buildings and to further the conservation of fuel and power and further the achievement of sustainable development.
The consultation covers four main areas, as follows:
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- Creation of a new Compliance Plan Manager (CPM) oversight role on High Risk Building types on behalf of the Relevant Person (normally the owner or developer);
- The definition of High Risk Buildings requiring a CPM;
- Fines and penalties; and
- Impact assessments.
The proposed changes outlined in the consultation aim to:
Require applicants (building owners and developers) to evidence and document how compliance with the building regulations has been approached from a ‘pre-application meeting’ (initial) stage through to completion of the building project. The intention is to strengthen compliance across all building types with the new Compliance Plan approach and also to introduce a requirement for independent professional oversight – a Compliance Plan Manager – on high risk buildings to manage the compliance process from start to finish. Initial considerations have concentrated on application to High Risk Buildings (high rise residential, high public value – schools, healthcare facilities) and also housing sites. But this may be extended, in the future, to apply to a wider range of buildings types if there is evidence to support this. The consultation also seeks views on the definition of buildings classed as ‘High Risk Building Types’ (HRBs).
You can read the consultation paper here.
Members are encouraged to read the consultation and feed back their comments to FIS Technical Director Joe Cilia via email joecilia@thefis.org
