Building Safety Competence: Navigating Expectations In 2026 (Video)

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My name's Gemma Whittaker, I'm a Partner in the construction and engineering team here at Gowling WLG and I've got Danielle Klepping here with me today. Danielle is a commercial contracts lawyer, but she has a particular focus on advising clients in the real estate sector and she's a key member of our multidisciplinary building safety team.

Today we're going to be discussing the topic of competence, which comes up in a variety of contexts when you're thinking about the legal duties that are imposed under the Building Safety Act, clients need to understand what competence means and what they need to do to ensure they're meeting their legal obligations in this area. We're going to unpack a few of those questions and also talk about some of the latest developments in that area.

So, Danielle, in this context, what does competency actually mean? And four years on from the Building Safety Act, has there been a bit of an evolution in how we understand that term?

Yeah. I mean, it's obviously a big question. It's a big concept. At its core, competency is about capability. So, Dame Judith Hackett, who we all love in this context, she talked about how every director and manager and worker should think about identifying risks and then about how to control and manage those risks.

So sort of drilling into that a bit more on an individual level, it's about whether the individuals have got the right skills, the right experience, behaviours and knowledge. And then on an organisational level it's about whether they're being appropriately supervised, what kind of policies and procedures there are in place so that you can kind of get a sense of leadership oversight.

Now, you asked a bit about what's changed, and those concepts aren't necessarily new. It's always been good practice if you're appointing someone to provide some services to you, to make sure you know who they are, what they can do, you know, assess whether they're the right fit for those services. But the thing that’s shifted with the Building Safety Act is that that's now a legal responsibility,

it's not just good practice or common sense. So in terms of that legal responsibility, it sits with the duty holders. So on the occupation side, where you've got an occupied, Higher Risk Building that's very much about the accountable person or the principal accountable person making sure that they are operating in accordance with what the legislation calls prescribed principles, and that not saying does it really mean very much.

But when you drill into what those prescribed principles are, it includes ensuring that anyone that's helping you and supporting you is competent. And obviously without stepping too much into your world Gemma, that applies in the construction side of the regime as well. So a wider range of duty holders. So designers and contractors, not just accountable persons. 

Yeah.

That's right. So in the construction space, anyone that's appointing anybody to carry out any design or construction work where the building regulations apply, has a legal duty to take reasonable steps to check that those people are competent. And that's something that I think in construction, the concept of competence has been around for some time, particularly in the context of the CDM regulations, which have existed for some time now.

But I think the sort of sharper focus following Grenfell on making sure people are competent in the context of their understanding of the building regulations and making sure that what they are doing, what they're designing, what they're constructing, is building regulations compliant has really thrown up new issues and new questions about, well, what questions should we be asking the people we're appointing both on an individual basis and an organisational basis?

I think for the last 3 to 4 years, we've probably been getting to grips with that extension of this concept of competence into the building regulations sphere, working with the definitions in the legislation and the government guidance. But in the background, the Industry Competence Committee has been working on, some strategic leadership and guidance for industry in this area.

And I understand there's been some recent developments relating to that. 

Yeah, there have. So, the industry competency committee that was set up under the Building Safety Act took a little bit of time to sort of establish itself and decide how it was going to be structured, and then they published 15 principles at the end of April, which are intended to help duty holders assess competence.

They built on that as well, because there's an industry task and finish group, which is sort of a cross-sector group that's been set up, who've published some rather lengthy guidance about how you take those principles and kind of consider them practically. So the guidance goes into a lot of detail about the kind of things that you could do.

So how you, how you define competency, how you designate roles, how you monitor that, and how you learn from performance shortfalls, if there are any. And so it's a really useful and practical tool for duty holders to be able to have to really get to grips with this. 

Yeah. So that sounds like it's going to be a really positive development, I think, for people who are really trying to get to grips with this.

And one of the interesting things I thought about that guidance was the case studies at the end, in terms of what good might look like in different types of organisation. I think that's a really good, practical, way of helping people to understand what good might look like in their particular context.

How can a duty holder in either of those two contexts? So design and construction and management of an HRB how can they check that somebody that they're appointing is actually competent? 

One of the challenges I think duty holders have with the legislation, will also have to a degree with that guidance, is that it's broad.

It's deliberately broad. It's not prescriptive. Which is great in that it's flexible. So you're not treating all organisations that don't necessarily have the same level of resource or perhaps contributing in the same way, different risk profile to the services, the same. But it's challenging because, you know, in an ideal world, there would be a nice checklist that duty holders could work through.

I think if you are a duty holder and you're trying to work through that at the moment, then taking the guidance and really looking at the practical actions that it has in there, which are really helpful.

Reading the guidance and then reflecting on what's right for you and your services is really important. 

So it sounds like there's no single right approach. 

Yeah, that's exactly the case. There is no one way of dealing with competency unfortunately. And it's not any one time either. So you need to be thinking about it both at the time of the contract being put in place, but also through the lifecycle of that contract.

That doesn't mean it's optional. It is very much a legal duty. And I think going back to where we started, in terms of what shifted, this has always been good practice and it has been implied.

But the Building Safety Act and this guidance, it really sort of brings competency front and centre and makes it something that you've got to really focus on. From my perspective, there's also a sort of shift in terms of focus. So I think before the Building Safety Act, a lot of the questions in this space would have been about the individual that's being appointed to provide those services.

And we now have this much clearer concept of the organisation as well. So it's not necessarily new to see clauses in contracts that say, you know, you service provider will ensure that your staff are appropriately trained and you will ensure they're appropriately supervised. But this concept of organisational competence, I think, builds on that and expands that. And it sort of stands a bit more on its own now then sort of a passing thought. 

Yeah. And that's really interesting because under the building regulations, we've actually got this concept of organisational capability that's built into the letter of the regulations. So organisations that are being appointed are expected to have policies, procedures, resources in place to ensure that the individuals that they're in control of are competent. So the policies and procedures are as important as the individual competence.

And I think it feels like that's something that perhaps from a legislative point of view, is something a bit newer from a property management point of view, perhaps. 

Yeah, I definitely think in the property management agreements, you would have kind of in your wider service standard clauses, a nod to ensuring staff are appropriately trained and supervised. But we haven't seen this level of focus on competency until the Building Safety Act. 

So what should organisations be doing now to protect themselves if they're operating in this space?

It's really important that duty holders take a step back and just start to think, where am I getting support for these services from?

Who's that support coming from? You know, how am I dealing with competency for each of those different points in the chain? How are we checking it? And then mapping those responsibilities. You know, looking at what's in your contracts, making sure that it's clear because, you know, as you've kind of picked up, you just don't want there to be grey in this space.

You want it to be really clear who's doing what. And that's really important. But also on that organisational side, asking to see more from your suppliers about how they're setting their services up and the just generally their organisation structures and their organisation set up. So what policies and procedures have they got in place and then having more in your contracts and more that you actually sort of implement around asking for information, checking, monitoring- working together as well

I quite liked how the guidance talked about needing to promote open dialogue and learning. You know, it might not go right the first time, but actually it's really important that you learn from that and you build on that. 

Yeah. One of the most interesting points, I think from the guidance for me was about learning about when from when things have gone wrong.

So accepting that things will not be perfect all the time but what have you got in place to actively and, you know, systematically and strategically monitor that and put in place some elements of monitoring and continuous improvement? 

Yeah. And I think we will keep seeing like shifts and evolution in this space because as you get more of that continuous improvement and reflection, we might also start to see shifts like, I don't typically see a lot of KPIs, for example, in the context of building safety yet in management agreements. But I do think that probably will come at some point. And I think specifically around competency and going to that concept of organisational competency, we might also see a little bit of, you sometimes get key personnel provisions in the contract and we might see a bit more focus, not just on the person delivering, but actually who's supervising, and maybe a request for more clarity about those kind of changes within the organisation as well. 

I think the publication of the ICC guidance is going to be really helpful, as we said, for people trying to, really get to grips with competency in this context.

I think we're going to have to draw to a close for now, but it's certainly something we'll be able to talk a bit more about at our Autumn building safety conference. 

In the meantime, if you have any questions that you'd like to ask about competence in this context, please do contact the team at Gowling WLG.

What does competence mean under the Building Safety Act 2022?