Timescale issues and a distinct lack of data

In the first half of the roundtable, topics covered included how much knowledge, or lack of it, there appears to be both within the construction supply chain and among NHS EFM teams of the Building Safety Act and its provisions; the way the current healthcare estate is managed from a health and safety, legal, and longevity and sustainability standpoint; what kinds of buildings are covered by the Act, the various Gateways through the design, construction, and planning process — and what each entails — and some of the dangers if the various parties involved in new-build and refurbishment healthcare projects fail to take the correct steps to ensure safety and compliance at the right time. The discussion’s second half began with a focus on the pressures imposed by short project lifecycles, and the potential issues where building data is incomplete.

Very short project lifecycles

Stuart Dalton of Hive Projects said: “In the NHS particularly we work on very short project lifecycles and timescales. Typical projects are on a capital programme that might, at best, be five years, or just a couple, but are usually annual. Gathering all the information on a ward that may have been partially refurbished four or five times, with partially completed O & M documents or contradictory information, designs tend to move ahead with a lot of assumptions predicated on the point at which you get ownership and have vacated clinicians and other people. At that juncture, you’ll do some opening up and confirm your plans. I think as we go through the Gateway process particularly we will see unforeseen findings and surveys related to asbestos, fire safety, or whatever it might be. That clock then starts ticking, and all your good work on design assumptions, detail, and specifications, gets put on hold to address an issue you’ve encountered on site that might instantly delay the project by 2-3 months. In a 12-year cycle, such a delay has a massive impact on deliverability.

“Certainly centrally,” Stuart Dalton explained, “the NHS and others who fund these buildings are not necessarily that flexible in how long they can stretch the funding over. It’s counter-intuitive for those wanting to do the right thing, but there’s not the spare capacity or vacant space to allow those conversations and ‘opening up’ exercises to happen.”

Chair Steve Batson, of Stephen George + Partners, said: “On the funding point Andrew raised, you have the new-build route, but the other part of the conundrum is the existing estate and how we refurbish, alter, maintain, and extend it. Part of the jigsaw with the existing estate is that you have the capital project money and then the ticking growth of some £12 bn of backlog maintenance, which increased especially during COVID — because people either couldn’t afford to maintain, or couldn’t get access to do so. As soon as you get to the periphery boundary — whether it’s a leased or an NHS-managed area, and reach that opening up stage, you may have a capital budget for the activity within that space, have completed the design, and set out the intent at Gateway 1 and Gateway 2. When you open up though, and, discover what’s above the walls or behind the ceilings, there’s a risk of adding to the backlog pot. I think there’s a debate to be had about how we fund the existing estate in future.”

Steve Batson continued: “How do you take on responsibility for that the space without that discussion or evidence? The digital capture of this data on refurbishment projects under the annual Premises Assurance Model reporting perhaps needs to include some form of registration of those projects? In some instances, the evidence NHS Trusts have on their estate’s condition is really poor. Sometimes they don’t know what they have at all, or have systems from tracing papers transposed to CAD. These may be so inaccurate that you’re not sure what you’re working with — from a structural or an M&E standpoint.”

His colleague, Dean Payton, said: “We’ve talked with various Trusts, and I think some of the Capital and Estates Teams have almost talked about ‘banking projects’, i.e. getting to OBC or even less far, to Stage 1, where they can do some of the surveys and investigations where they can. Then — should the funding come — you will be striving to get them done by a particular point in the financial year.

“Now, even just to book a survey,” he continued, “you’re looking at a couple of months potentially. In the old ‘blue book’ days they’d have masterplan — a projected plan of works going forward. There is evidence of this in various Trusts, but I think there are key questions about linking the jigsaw pieces to form the full picture. ‘Is there an up-to-date Development Control Plan (DCP)?’, ‘Where are all these pressure points?’, and ‘Where can we see them in the next two, three, five, or 10 years using robust healthcare planning based on projected service use, demographic change, and standard changes?’, and then understanding the fabric of the estate. But then,” Dean Payton continued, “is there a wider need for all estates to be spatially captured in three dimensions? We can’t necessarily open up the building fabric in live clinical spaces, but understanding what passive fire protection there is, and having a robust fire strategy, will go a long way towards de-risking future projects and assisting with the Trust’s obligations under the RRO. We do, though, have various technologies to capture data on the estate, and then undertake investigations around that to arrive at a ‘single source of truth’. So, when the Trusts obtain funding, there is a body of work ready to build from — including the building height and storey count for determining HRB status. Non-HRB projects still require the rigour to evidence and document duty-holder competence, manage and monitor building regulation compliance, and provide compliance declarations and other requirements discussed as part of today’s roundtable.

“So,” Dean Payton added, “without acknowledging these activities, and sufficient ‘as constructed’ information to de-risk as far as practicable, along with the more onerous administrative processes, programme implications might push a project from one financial year into the next. I can imagine many projects might stop before they even start, because the funding has gone. It will be interesting to see how Trusts address this.”

Steve Crow of Clarion said: “In terms of technology supporting that, we have a client who provides a technology solution to the NHS estate, to enable Trusts to ensure that contractors that might be about to refurbish or update the hospital’s fire systems have the appropriate competences, training, and accreditations, helping the NHS to reduce and manage risks. I wonder though — with the construction sector constrained by skills shortages — whether we will need to start bringing more resource in from overseas? This software solution will be particularly critical in ensuring that the workforce has the right skills and competencies to be working on site. In a way, I can see technology coming to the rescue in such situations.”

A lack of existing data

Steve Batson said: “In my experience, Trusts have little to no existing information on their estate, nor — often — on what’s happened between refurbishments and extensions and alterations. The contractor or a consultant may hold it for them, and at the end all the information gets stuck on a CD or disk and is simply placed in a cupboard. So it’s about upskilling that Trust, or the building asset owner, on how they might best use their estate-related data.”

Dean Payton said: “Due to the sheer enormity of the NHS estate, will they need a central data repository to maintain the ‘golden thread’ in the ownership of the NHS? Could a common data environment be linked with PAM and ERIC? There needs to be a central location for it. How, for example, does the Fire Service access this information when they arrive on site? Where is everything stored?”

Stuart Dalton said: “Does the data all end up piecemeal? Getting that performance level criteria set and standardised allows innovation. You can use any system, but if it gives you a common look, feel, and structure of information coded to RICS standards or similar, it opens the playing field for something consistent. The NHS is generally not keen to be solution-specific, locking, say, an Estates team, into long, arduous contracts, but would rather provide the criteria for what the software solution does, and then allow systems to integrate and collaborate. There’s got to be a way to solve that problem, because I don’t think anyone would thank the NHS for going to a single solution-provider.”

Hoare Lee’s Connie Campbell added: “The healthcare sector can be notoriously sluggish, and doesn’t have the greatest IT infrastructure. We could, however, take data models from other sectors; anyone who’s done a DfEE or MoD project will know that they use digital twins, and COBie data, and are very specific about the level of detail they need for every drawing or 3D model. I don’t think it would necessarily be that hard to apply a similar logic to hospital projects, but it could take a long time, because they’re large estates. The data would probably come in piecemeal, but eventually you’d hopefully end up with a single model.”

A masterplanning standpoint

Steve Batson said: “This is interesting where — from a masterplanning standpoint — on the one hand you have the physical estate, but actually, because it is also about healthcare activities, healthcare planning is involved too. It’s thus interesting that the discussion currently is both about the legal obligations under the Building Safety Act, but also the funding with the Integrated Care Boards to understand their healthcare activity over time, and managing their estate to assure its compliance. Equally, from a fire safety and estate evidence perspective, there is an overlap, and it’s agnostic, because healthcare activity — public or private sector — is a healthcare activity. We don’t necessarily have the answers today, but there’s a further debate as to how other sectors, such as education, have used digital assurance of compliance, and with the Building Safety Act that obviously must now be done to a granular level.”

Steve Crow said: “Just thinking about Connie’s point — as to whether healthcare can learn from other sectors; historically I’ve worked in the nuclear and oil and gas sectors, with really high-risk installations. The level of risk assessment, for instance, that went into the complex nuclear infrastructure at Sellafield in Cumbria — which entailed using the Monte Carlo risk assessment to look at the whole project programme to determine where the pinch points were — was incredible. In these situations it’s important to understand how informed the client is, and to have commercial conversations about what level of risk is acceptable. For example, if you’re dealing with the design of a nuclear installation, do you design for the potential impact of a significant 1000-year seismic event with the consequential costs of construction, or for a 100-year event, which might reduce the construction cost, but increase risk? It’s all about the acceptable level of risk, and you can never completely eliminate all risk. Clearly in the health sector you’re not looking at that level of risk, but can we learn from some of those other sectors, and can we cascade that into this sector? It’s something to consider?” Steve Batson said: “I also think there may be lessons from how the private sector is engaging with this.”

Modelling and data differences

Steris’s Andrew Varley said: “We talk about modelling, and things like that. There are quite a lot of PFIs out there. It’s OK when it is the NHS building it, because it has control of its own budget, will overspend it, and plough the money in. However, with a private client, usually the NHS is not putting capital in, but rather paying over a period of time, as a service charge — which depends on the capital spend the private company is investing. For example, if we are building, we will do the scans and the modelling. We have a 3D model, but that effectively sits within our company, because we’re not contracted as the builder, but as a service-provider. We’re leasing that building, and the NHS has many leased buildings as well, which probably do have all this information in that format, as private industry tends to run it that way. We will, for example, say we want a model and COBie data, because we’re looking at it from an FM standpoint. How much it costs the NHS monthly as fees depends on capital spend. Now, when you’re in charge of that capital spend, you can make those changes as you go along, saying: ‘I’m sorry; we’ve overspent, we need another £X million’, or whatever. However, it’s a bit different when your monthly fees are going to rise because you’ve got to depreciate over the next 10-15 years. That’s the challenge with service contracts involving construction; the monthly fee creeps up, because you’re discovering things. When NHS Estates is in charge of procurement, that’s fine, as these areas can be explored and they understand. However, they are generally nothing to do with the procurement. It’s a totally different department, purchasing a service, and not concerned about the Building Safety Act — because they’re passing it all on to the service-provider undertaking the construction and alterations.

“So,” Andrew Varley continued: “I don’t think Procurement really understands all that consideration of the Act’s impact. When they say they want a price back, at a fixed cost, you’re paying for a lot of added risk, whereas realistically the procurement method must change to allow for two stages. You don’t know what you’re pricing until you look at it and ‘open the can’; otherwise you pay for the risk and effectively the NHS is going to overpay, because there’d lots of risk, so somebody’s going to catch cold. It’s either the NHS or the private sector; the latter doesn’t really want to do that, so you end up with the NHS overpaying. We’ve seen that with PFIs.”

He added: “I think when Estates look after it, they can control it. Procuring services, where companies are leasing buildings or functionality, means they’ve got to interact or refurbish areas as part of that service, and this is where the challenge lies, because you’ve still got to comply, and this may increase the scope of the original works.”

Steve Batson said: “There are two really key interesting points there. The first is the private sector PFI — because a lot of PFIs funded 20-25 years ago are nearing their end, and so with that sizeable part of the estate, there’s a whole debate about compliance to standards, and the surrounding evidence, when the PFI facilities are handed over.

“The second point relates to the Building Safety Act. If the NHS was the owner of a residential block, the client isn’t a multifaceted client per se, because you’re selling a flat in a high-rise building and taking your money for it. With the NHS, however, it’s so complicated and fragmented, but ultimately it’s the client who’s responsible for the activity and safety. So, even though it’s different departments and silos, surely it’s still the client who has a legal responsibility?”

A universal responsibility

Clarion’s Phil Morrison responded: “The Building Safety Act is quite cute on that, because it charges everyone with responsibility — whether you’re the landlord, leaseholder, developer, or the freehold proprietor, you have responsibilities, and must ensure everything is dealt with appropriately. This will be challenging for NHS Trusts, because so frequently, the NHS doesn’t know if it owns or leases a building, or it could own a building, lease it back to itself, and then lease it out to another part of the NHS. The service simply doesn’t have the necessary records in place to be effectively doing any of that kind of stuff.”

Steve Batson said: “The Integrated Care Boards are ultimately top of the tree in terms of responsibility for the local health economy, but whether it’s the Estates or clinical teams under that Board, they’re all equally responsible under the Act — because the provider, who may just be clinical, paying for that service, can’t take some share of responsibility upstream.”

Phil Morrison said: “I don’t think the Building Safety Act would go to the level of the integrated healthcare provider. You’d start at the NHS Foundation Trust level, and then you’re looking at the Chief Executive, the Board, and your Estates team. You’re then looking through the contract, in terms of who has a legal interest, all the way through to the Trust being the owner, leasing it out to somebody, and then the PFI, and also everybody who entered into the contract, and how that’s going to be worked out.”

‘Opening up a can of worms’

HEJ’s Jonathan Baillie asked: “Isn’t this opening up a major can of worms in terms of compliance with so much confusion about who’s actually liable? Won’t it be very difficult to prove which party is responsible?”

Phil Morrison said: “As a lawyer, I’d say ‘yes’. The law is either going to have a lot of people to go at, or the responsible parties could be quite difficult to pinpoint. If you’re suing someone, you only need one person or company to be found liable, but the more you can target, the greater your chance of success. If you’re suing for anything defective, you would go against the most prominent party. If that was a design and build contractor, for example, you’d expect it to bring everybody else in as part of its defence, either saying: ‘If I’m liable, you’re all liable’, or: ‘I’m not liable, but you guys are.'”

He continued: “The Building Safety Act can, however, be quite clever, because while the client has the ultimate responsibility, including for appointing other parties, that doesn’t detract from the next person’s responsibility. So you can’t just say: ‘Well, I appointed a designer, or a contractor, so I have nothing to do with it subsequently.’ Everybody has that level of responsibility they must comply with. So, a design and build sub-contractor may be responsible for providing or specifying a façade panel, but ultimately the whole point of the Act is that, at Gateway 2, you should know enough about that design to be able to pinpoint that specification.”

Dean Payton said: “Trusts will still have Authorising Engineers and various Accountable Persons. It seems to me Trusts might create a new role, to oversee the client duties for minor works, instead of employing an independent BRPD to dispense the client duties — which may be cost-prohibitive relative to the project budget. This new role could keep this in house.”

Trevor Rogers of LABC said: “If residential units are involved, then you’ve got the principal accountable person — somebody who is going to have to be defined, because it’ll go through the building assessment certificate process with residential in there. Somebody will have to put their hand up for that.”

Dean Payton said: “We work across multiple Trusts, and with the Act fairly new, Estates and Capital teams are learning ‘on the job’. We’ve been asked to provide the BPRD services. It’s going to start getting very expensive for Trusts to go and change a toilet, for example, on smaller jobs. It’ll start adding up to substantial fees for what are effectively minor refurbishment works. I don’t know if the NHS is looking at that. Is there a level where they say, for example: ‘We are just going to deal with this in ‘in house’ as the accountable persons, and then — if it’s over this threshold — we will get in an external consultant?’ “

Phil Morrison said: “Anecdotally, clients have taken a de minimis approach that if it’s a certain level — for example replacing a fire door — they will not go to the Building Safety Regulator, but if it’s replacing a number, they will. It’s just ridiculous to go with every kind of change — so they’ve taken it on themselves to make that decision. They’re informed and they’re looking at it, which is fine. However, as it develops, it’s about understanding what the Building Safety Regulator is concerned about, and your relationship with them or their team, so they get an understanding that if you’re a responsible local authority or other public body, they will accept that you are not going to approach them about everything, but only with the issues that make a difference.”

Steve Batson said: “We have 10 minutes of the discussion left, if anybody wants to raise any particular points?”

HRB Procedures Regulations

Trevor Rogers said: “In terms of the HRB Procedures Regulations, there are two categories of works: Category A and Category B, so that might be the actual process by which you decide which route to take. For Category B you don’t need quite so much information for the Building Safety Regulator as for Category A works. The distinction is defined in the regulations.”

Phil Morrison said: “Again, anecdotally — with everybody still trying to identify what is covered, one of the contributors to our last seminar told us about a discussion they had with the Building Safety Regulator because on one project they were installing a garden on top of the building, and you wouldn’t normally think that’s an extra layer or level, because it’s not enclosed. However, because it had patient stations, to plug medical gases in, it became much more of a storey. Up until the final part of the dialogue with the Regulator, it was quite close to being considered as an extra storey, because of the level of detail, even though it wasn’t enclosed. So I think there’s still a lot of learning on both sides.”

Trevor Rogers said: “We’re working with the Building Safety Regulator, because where you have two building control authorities essentially having differences of opinion, you can get into sticky situations.”

He added: “If the local authority has different interpretations to the Building Safety Regulator, the NHS body may not know which control authority to go to. So, yes, it’s about working with the Regulator. Interpretation is a lot of it.” Steve Batson said: “In terms of the RAAC and asbestos issues across the NHS, I understand there have been surveys going on — and I know some of you have been reporting back on them.”

Andy Buckley said: “Yes, it’s about the Trusts understanding whether or not they have RAAC. In some instances we’ve revisited Trusts, because they’ve had surveys by inexperienced or incompetent firms, who’ve said they haven’t got it, but when we’ve gone in, they have. It’s then about recording the extent of the RAAC, and what’s been done over time, i.e. the sort of penetrations through the services extensions, and refurbishments etc. What we’ve learnt is that people with no experience of RAAC may say: ‘You’ve got RAAC, it’s dangerous: everybody out.’ In a healthcare setting you can’t do that, so we’ve devised RAAC management strategies to help Trusts, working with them on operating and living with RAAC, with a view to removing it over time. It’s about managing risk.”

Steve Batson said: “Also, in terms of the PFCs within existing estates, has that become like the asbestos, in terms of them understanding where they’ve got PFC?”

Andy Buckley said: “Yes, the Trusts are now taking on board digitising their assets, and then evidencing what they have via pictures and records, which can be used in GIS systems. If, for example, you have someone working on a roof, they can see if that roof has RAAC, and what condition it might be in, almost instantly. That’s the way things are going, but it’s early days.”

Jonathan Baillie asked: “Phil, as a lawyer, this is presumably a pretty complex piece of legislation to deal with, but I guess you can see the rationale behind it?”

Phil Morrison responded: “Yes, absolutely; you can trace the DNA right through to the Grenfell enquiry and everything that went wrong there — from an architect not having the experience of dealing with high-rise buildings, all the way to the design still being done by the design and build sub-contractor right up until the minute before things were being put into the building. And also there not being enough accountability, or sufficient evidence of basic things like fire test certificates for actual panels — which we now know they didn’t have, and the various associated tests. So, as regards the complete change we are seeing in the legislation that’s coming through — and we will see masses more — you can see the rationale behind it. It goes back to us talking about this compliance being difficult, or expensive, but then how much is a life worth? It’s a very difficult argument to have if you’re going to say: ‘Well, we could have done it, but we didn’t.'”

Jonathan Baillie said: “Has anybody got a view on how much of an extra burden the obligations under the Act will be for, say, NHS Estates departments and Estates managers with a varied and sizeable estate incorporating some liable buildings?”

Timescales key

Stuart Dalton said: “I think the timescales are the big thing here. There’s appetite to do the right thing, as always, but being able to do enough of it soon enough, and stick with your timescales and budgets, will be a challenge. Dean mentioned work banks getting projects ready so you’ve done that homework early on, which we recommend a lot, but it’s not always practical with the investment a Trust must make for capitalising work that may not proceed for several years. Things change and move on.”

Steve Batson said: “I think from an awareness and training standpoint within the NHS estate — from Project managers through to Board-level personnel, I’m hoping this will help them on their journey. However, in terms of their competencies, their charge of the projects, and understanding that they are responsible, I think there is a large lack of awareness of their legal duty.”

Connie Campbell said: “I think it’s interesting that this is now all coming into force via the Building Safety Act, because we’ve also had significant legislation change in other building regulations — so it’s all happening now. I think there’s a degree of information overload, and people are learning, trying both to understand their responsibilities, and the impact. It’s perhaps a good thing that it’s all happening now; you could say this is a step change for the industry. We have to do this, and perhaps it’s an opportunity to ensure we emphasise that the Act is actually the one we really need to be focusing on?”

Steve Batson said: “I think there is also an interesting dynamic about responsibility for our estate for life in terms of sustainability.”

Impact right up the chain

Jonathan Baillie asked: “Presumably this is going to go right up in terms of responsibility to somebody like a Trust CEO if there is an issue? Trust Boards will thus need to be aware of the ramifications as well, Phil?”

Phil Morrison replied: “Yes, absolutely. We’ve seen, if you look at any enquiry — the Post Office one being the most recent — that the powers-that-be look at the top person to see what practices were in place, and ascertain what they knew about it. So, as a Trust CEO, you need to be sure you have the right people in place, with the right competencies, and procedures. Taking the point made about potentially needing a Building Safety Act Officer in the same way you have Authorising Engineers and fire safety etc, as a CEO you would want to know your fire strategy is getting updated, and that your plans for dealing with RAAC or the Building Safety Act can all be dealt with — and that you have the right people in place.

“The last thing you want to be doing, at an Inquiry, is saying: ‘I would have loved to have done all this, but there was just not enough money.’ You need to be doing something, because the downside is: it’s your picture on a headline. So I suppose the only thing to say really is that it’s never too early to call your solicitor.”

Dean Payton said: “Just to say that while we are talking about the Building Safety Act, and the Building Regulations, we’re not talking about the Approved Documents, which are often used interchangeably. The Approved Documents, of course, aren’t the Building Regulations, but rather a way of complying with them. I think there is a danger that Trusts reading this might think: ‘What does this all mean to us? We use the Building Regulations, and we comply with the HBNs and HTMs.'”

Andy Buckley of Curtins said: “My understanding is that the HTMs and HBNs are not necessarily mandatory, but guidelines?” Dean Payton responded: “They set out best practice, but they are a way of achieving compliance with the Building Regulations, although it is not uncommon for us to derogate away from them in certain circumstances with approval from the Trust concerned.”

Trevor Rogers said: “The HTMs are identified in the Approved Documents, so have the same status in an Approved Document, so it is one way of achieving Building Regulations compliance, and then there is a section in the Building Safety Act which indicates a tendency towards negative liability if you follow it, and towards liability if you don’t. So that’s where it comes in.”

With this, the discussions concluded, and the day’s Chair, Steve Batson, thanked the attendees for their contributions, and Clarion for hosting the event.