UK: Lighting The Fire For Tougher Sanctions? Hackitt Recommendations For Building Safety Considered

Last Updated: 8 March 2019
Article by Rod Hunt and Luisa Lister

Most Read Contributor in UK, March 2019

"The Hackitt review has shown that in too many cases people who should be accountable for fire safety have failed in their duties. In future, the government will ensure that those responsible for a building must demonstrate they have taken decisive action to reduce building safety risks and will be held to account".

Such strong words came from the government following the publication of Dame Judith Hackitt's final report into building regulations and fire safety. The report promises a more robust regulatory regime, overseen by a new competent authority, to hold those responsible to account. With a range of criminal enforcement powers and sanctions to be made available, who are the dutyholders and what are the implications for non-compliance?

What is the new regulatory framework?

The report identified that the current disparate approach adopted across building regulations and fire safety is not fit for purpose and a culture change is required to support the delivery of buildings that are safe. To that end, a new regulatory framework is proposed designed to:

  • Create a regulatory environment that is more coherent across the building life cycle.
  • Create a clear and proportionate package of responsibilities for dutyholders.
  • Provide stronger oversight of dutyholders with incentives for the right behaviour and effective sanction for poor performance.
  • Create a single regulatory body that oversees dutyholders' management of buildings in scope across their entire life-cycle.
  • Reassert the role of residents.

The new regulatory framework will be focused on multi-occupancy higher risk residential buildings (HRRBs) that are 10 storeys or more in height. There is a suggestion that specific recommendations could be applied to a wider set of buildings, including hospitals, care homes and other buildings identified through a risk-based approach.

At present, the framework covering the life cycle of HRRBs involves several different regulators working under several different pieces of legislation. To simplify this and ensure that HRRBs are subject to closer and more robust scrutiny, the framework outlined above will be overseen by a new "Joint Competent Authority" (JCA). The JCA would comprise the combined expertise and knowledge of Local Authority Building Standards, Fire and Rescue Authorities and the Health and Safety Executive (HSE). It is hoped that having a single agency will be more efficient than a number of different regulators and allow expertise to be shared effectively. Indeed, there are a number of other regulatory regimes already working well in this way, including under the Control of Major Accident Hazards Competent Authority and the Work-Related Death Protocol.

Linked to the JCA will be Local Authority Building Control, the professional body covering building control teams working in local authorities. This body will be re-branded "Local Authority Building Standards (LABS)" and will oversee HRRBs, as part of the JCA. 

So who is responsible for what?

As part of her previous role as Chair for the HSE, Dame Hackitt was heavily involved in the introduction of the Construction (Design and Management) Regulations 2015 (CDM), which may have influenced the report's recommendation for a new regulatory framework mirroring the tried and tested approach in CDM.

The new key roles and duties set out in the report will therefore apply to Clients, Principal Designers and Principal Contractors engaged in projects and buildings covered by the proposed regime, with CDM continuing to apply in other cases. The expectation is that dutyholders are able to show the JCA that they have the required leadership, management and competence capabilities to deliver their responsibilities.

Whilst the report stresses that "the aim of this review is to move away from telling those responsible what to do and place them in a position of making intelligent decisions about the layers", there will be a requirement on the dutyholder to present a safety case to the JCA at regular intervals to check that building safety risks are being managed so far as is reasonably practicable. In the event that the dutyholder falls behind, enforcement tools will be available. So what happens if a party does fall foul?

New dawn or damp squib?

A range of enforcement methods is proposed for JCA/LABS inspectors to secure compliance, but how effective will these be?

  • Enforcement Notices
  1. Improvement/ Correction Notices- served on dutyholders when the JCA/ LABS believe that building work is in breach of the law and needs to be corrected within a certain period of time. Where significant failings are identified, such a Notice can be served up to 5 or 6 years after building work is completed.
  2. Prohibition or Stop Notices- served on dutyholders when the JCA/LABS believe that the building work has serious deficiencies which could impact significantly on building safety.
  • Criminal sanctions

Failure by dutyholders to comply with either type of notice would be a criminal offence. Where the non-compliance poses a real and credible risk to the safety of building occupants now or in the future, it is proposed that the full range of penalties under HSWA should be replicated. Whilst there is no specific comment in the report on what this will encompass, to ensure the new regime has teeth it is expected that unlimited fines for corporations as well as imprisonment for individuals will be available. It is also anticipated that any breaches will be sentenced in line with the sentencing guidelines on corporate manslaughter and health and safety offences, introduced in 2016.

With fines in excess of £1 million or more the new norm under the 2016 sentencing guidelines for the largest offenders committing the most serious breaches, alongside a general upward trend in the level of penalties being imposed, compliance with the new regime will be key. Indeed, the consequences of non-compliance could be catastrophic.

  • Time limits

Time limits for bringing prosecutions against dutyholders should be increased to five or six years for "major" deficiencies in building requirements identified at a later date.

  • Cost recovery

Interestingly, the report states that the JCA should design and operate a full cost recovery model. In much the same way as the HSE recover their costs under the Fee for Intervention Scheme (FFI), all key engagements between dutyholders and the JCA would be fully chargeable. Whilst further detail is still awaited, the report currently suggests that a proportionate approach is adopted whereby those whose work needed the highest level of intervention and oversight would pay the highest cost.

It is arguable that such a scheme is needed as, without proper funding, it is hard to see how the report's recommendations can be implemented effectively. However, given FFI found its revenues falling short of anticipated levels and was also subject to challenge by judicial review, which ultimately resulted in the dispute process being made fully independent, it remains to be seen how successful this proposal will be.  

Building blocks for the future?

The government is to consult on the further detail of implementation of the report in the spring, specifically on the proposals for rigorous enforcement and sanctions to support the new regime.

A Joint Regulators Group (comprising representatives of the HSE, Local Authority Building Control, fire services and the Local Government Association) will start to test elements of the revised framework in 2019 ahead of any new proposed legislation. However, given that the Grenfell Tower Inquiry remains ongoing, it is expected the proposals will not be finalised until that has concluded. It is therefore anticipated that a full new safety regime is unlikely to be up and running before 2021. In the meantime, we will keep you updated.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions