Widespread ignorance on Building Safety Act

The roundtable — the idea of Steve Batson MIHEEM, Studio director and Sector Lead for Healthcare at architecture and masterplanning practice, Stephen George + Partners, and Phil Morrison, a Partner at Leeds-based solicitors, Clarion — was held on 11 June at Clarion’s offices. The firm had kindly offered to host the proceedings, and indeed Phil Morrison explained that he and his colleagues had seen a considerable increase in enquiries about the obligations imposed by the Act from a range of interested parties since the legislation came into force. The participants were:

Chair, Steve Batson, Studio director and Sector Lead for Healthcare, Stephen George + Partners.

Phil Morrison, Partner, Clarion.

Steve Crow, Business Development Director, Clarion.

Trevor Rogers, Regulatory specialist, LABC.

Andrew Varley, Director, International Facilities and Real Estate, Steris.

Dean Payton, Associate, Stephen George + Partners.

Stuart Dalton, Programme Manager, Hive Projects.

Connie Campbell, Senior Mechanical Engineer, Hoare Lea.

Andy Buckley, Design Director, Curtins, and

Jonathan Baillie, Editor, Health Estate Journal.

A two-part report

Given the depth of the discussion, and the subject matter covered, the roundtable lasted an hour and a half, and this report will thus run in two parts — with the first half of the event covered in this article, and the second in October’s HEJ.

The discussions began with each participant introducing themselves, and providing some information on their professional role and involvement with the Building Safety Act to date. The day’s Chair, Steve Batson, explained that the roundtable had been arranged to ensure that as many in in the healthcare construction and healthcare engineering and facilities management arena as possible, and in particular readers of HEJ, are ‘aware of what the Building Safety Act is, and what it means for the sector’. The architect feels there are ‘very varying’ levels of understanding about the Act and its implications within the sector, and considerable ignorance of some of its key provisions, particularly within some NHS Trusts. He said: “For instance, I have encountered complete denial among some NHS EFM personnel that the Act, and the degree of compliance it sets out, even apply to say, refurbishment projects — which is pretty alarming. With the Act now enshrined in law, there is the requirement at the key Gateway ‘stages’ — especially on the design delivery team — to ensure that all the parties have met their obligations.”

“Today at this roundtable,” Steve Batson continued, “we have representatives from different professional services who are engaging with the NHS estate — including people from the private sector working collaboratively with NHS EFM personnel, on, for example, short- or long-term leases as part of that estate. What are the ramifications here? Perhaps we can also explore how the NHS currently reports its compliance digitally, and whether that will change in terms of the Premises Assurance Model, which was re-launched this year? We also have the ERIC (Estates Returns Information Collection) reporting system — via which NHS EFM teams must report back annually on their management of the estate. Both are mandatory annual reporting systems, but where might they go in future in terms of helping the evidence capture?”

Continuing to set the discussions in context, Steve Batson noted that while there had been ‘a big push on investment into new build hospitals’, “if we tried to build our way out of the problem via new build it would take 300 years, because it’s just the tip of the iceberg. The existing estate is thus the lion’s share of what we’ve got,” he added, “and it’s about how we manage it over time and deliver healthcare efficiently.”

He continued: “How we fund our healthcare has also changed; the money now goes through to local area health economies — via Integrated Care Boards. The way we manage our estate legally, fund our healthcare, but ultimately the affordability of our healthcare delivery over a period of time, are all becoming more challenging. Equally, how we manage our estate from a health and safety, legal, longevity, and sustainability standpoint, are all part of the equation.”

A solicitor’s view

Having set the context, Steve Batson asked Phil Morrison to précis ‘what the Building Safety Act is from a solicitor’s standpoint’. The latter said: “Well, I’ve been living this for five years, and I think there is considerable ignorance in the industry, although perhaps that’s not reflected in the room. Part of the reason people attend roundtables is because they are interested in important topics like this, and although they have some knowledge, they are keen to expand it — so that’s always a good starting point. However, if we are talking about the industry, and especially clients, the ignorance is massive, and I mean that across the board — in terms both of developers, and clients in the public sector and NHS Trusts. It’s certainly been reflected in the questions we have been receiving from our clients.”

Phil Morrison continued: “We can trace the DNA of the Act back to the Grenfell Tower fire, Dame Hackitt’s enquiry, and her subsequent report. It’s quite revolutionary, because for many years the construction industry has essentially marked its own homework. Clearly construction companies and healthcare organisations must comply with the Building Regulations and Building Control, but much of this has been done with the assurance of the parties in saying, ‘Yes, we have done it.’ As the Hackitt Inquiry showed, however, all the way down to fire test certificates, that’s not the most trustworthy approach. There’s a lot of temptation to bend, if not ignore, the rules. We are now seeing a major change.”

Phil Morrison explained that the Building Safety Act is aimed principally at high-rise, high-risk residential buildings, at least 18 metres high and of seven storeys or more, while it has also created a new Building Safety Regulator, part of the Health and Safety Executive — demonstrating just how important the role is. Phil Morrison added: “There are also quite serious sanctions for non-compliance — right up to imprisonment and unlimited fines. The Building Safety Regulator has been installed to oversee a change in the industry’s regulation — primarily around high-rise buildings, or ‘HRBs’, but also the Building Regulations, and construction and cladding products — a real step-change. There have been massive changes to the Building Regulations, but also to other legislation, which have had a considerable impact.

“For instance,” he continued: “the Defective Premises Act, which applies to defectively designed dwellings, previously had a limitation period of six years. So, if a resident found a defect, they had six years to take the party to court. This has now been expanded to 15 years, and if you currently own a defective dwelling, you could, in fact, now go back 30. This has never applied retrospectively in the UK before, and the change has been made because of the cladding crisis.” Phil Morrison explained that the Defective Premises Act came into law in 1972, and ‘was always there, essentially as a fallback to sue for negligence in relation to defects’.

He explained: “Another interesting change is remediation orders and building liability orders — new court powers created under the Building Safety Act to cater for leaseholders finding they would be charged to re-clad their multi-storey buildings, but without recourse to claim the cost back from anyone. Remediation orders and building liability orders were introduced as a redress for leaseholders wanting to sue the developer or landlord who had built the house, or the multi-storey building, who then came up against ‘£1 companies’ — special purpose vehicles, that either didn’t exist, or had been dissolved after the buildings’ completion.

Right of redress ensured

“These new orders now allow individuals to ‘go behind’ those companies and sue the companies that own then. For instance, where there is a major housebuilder that has set up these individual SPVs — such as Housebuilder 1 Leeds, but which is owned by a massive housing company, the claimant could leapfrog the SPV and sue the other company. Such cases are now going through the courts, and succeeding — a massive change, because previously, via what is colloquially known as a ‘corporate veil’, you have been able to set up a limited company, which then does its business, and gets dissolved, and unless malfeasance is proven, claimants against it can’t go beyond that.” He explained that there had also been regulations introduced covering cladding and construction products — brought in following the independent Hackitt Inquiry, where it had been shown that current legislation was inadequate.

Three ‘Gateways’

Returning to HRBs (or High-Rise Buildings under the Building Safety Act), Phil Morrison explained that the Building Safety Regulator is involved with such buildings via three ‘Gateways’. He elaborated: “If you’re going to construct a high-rise building, Gateway 1 requires you to make an initial application to the Building Safety Regulator with your fire strategy and get this signed off. Without this, you can’t proceed. At Gateway 2, before you start construction — probably at RIBA Stage 4, you must show the BSR that you have a design and construction ready to go that they can sign off.” He continued: “This is quite different from the previous situation — because with the construction industry’s traditional modus operandi, time being money, and money time — very often a design / construction team will have started the design and the works, and then develop the design as they go. As Grenfell has shown, you can even be working on the design and construction with the design actually completed by somebody not even engaged at that juncture. You will thus now have to do considerably more upfront to get through Gateway 2, and again — fail here and the project can’t proceed.

“Then,” Phil Morrison continued, “we have the construction phase up to Gateway 3, which we’d know as completion — where on completing the work, you go back to the Building Safety Regulator and say: ‘We’ve completed the project in accordance with how we set it out, so please sign it off.’ If there are major changes that would affect fire safety or other key safety aspects, you must return to the Regulator and get them signed off via a change control plan.”

Phil Morrison explained that one key issue was how quickly the Building Safety Regulator would then revert. He explained: “There are eight and 12-week timescales set under the Act, depending on the stage, but the BSR is not bound by them; nor can approval be assumed ‘granted’ if he doesn’t come back. We’re having to make clear to clients that while they may have ‘all their ducks in a row’, and be on time, they may still have to wait. We haven’t yet seen how long such instances will take. We’re also looking at who takes the risk in contracts — the client who takes the risk of delay, or the contractor? This will have a significant impact, because as soon as a new-build or refurbishment is completed, you want it occupied. If it’s a healthcare facility, that will all have a huge impact.”

Andrew Varley asked Phil Morrison to clarify what would constitute ‘qualifying buildings’ under the Act. He answered: “The high-rise buildings are those at least 18 metres high and of 11 storeys or more, and must contain ‘overnight accommodation’. A second part of the Act says that if you have a building which is occupied thereafter, you must have all the necessary information on these qualifying buildings — which can be different heights — stored digitally and readily accessible. Dealing with NHS clients, we have found that you can have an HRB or other building you don’t think falls under the Act, but if it’s connected to an HRB, then it does. Equally, if your building existed before the Act came into force, it can still fall under it — either because it’s connected, or it becomes an HRB and you start refurbishing it. So, if a client is refurbishing a ward or reconfiguring it, then it falls under the Act too. Connection is a big thing for the NHS.”

Steve Batson asked: “My understanding is that, as regards occupation of buildings, the NHS estate was exempted — due to the fact that the service and its Estates teams report under the Building Safety Act Part 2 in terms of assurance of compliance?” Phil Morrison said: “One of the initial conclusions I came to was that the NHS estate was exempt from the construction side of HRB, or the occupation side of the Act, because buildings must comply with the Regulatory Reform (Fire Safety Order) 2005, and various other fire safety regulations. I think it was also felt that they’re in active occupation ’24/7′ — so there is always movement, and people around. It’s not like some residential settings where there is nobody there, and if something happens, it’s catastrophic. There is constant flow. So the legislators felt there was sufficient legislation in place under the RRO etc for the NHS estate to comply with that.”

Domino effect?

He continued: “The other point is that in the NHS estate, Firecode stipulates phased evacuation as the means of escape. Does the domino effect thus apply? If you have an adjacent ward upgrade, even at a distance, and it’s part of that phased evacuation plan and links to an HRB — is there a ‘grey area’ in understanding how that will have cause and effect? On the reporting side,” Steve Batson explained, “you may have patients — for example in intensive care or mental health settings — who can’t be moved in a phased evacuation, and the risk is thus actually even higher; take dementia patients, for example, who may be confused as to where they are.”

He added: “In addition to the Grenfell Tower fire, there have been a few care home fires with loss of life. So, I believe the healthcare sector was set for review anyway in terms of fire compliance and its management in the estate. That has been caught in the Building Safety Act for buildings up to 18 m. However, the Act is also about widespread behavioural change, i.e. for all owners of buildings and the responsibility for life within them — whether residential or used for healthcare. Might the 18 metre benchmark be just the start? There has been speculation that the bar could brought down? It has been suggested that in care homes it could fall to 11-12 metres.”

Phil Morrison said: “It’s undoubtedly about behavioural change. Earlier I referred to the construction industry ‘marking its own homework’. In my view, what we’re seeing currently is a race to the bottom, i.e. ‘Let’s build it as fast and cheaply as possible’. I’m sure every construction company would say they look to do the best possible job, but I don’t think there’s an industry like it for defects, claims, or disputes. Recently,” he added, “and this is anecdotal — we explained to clients how the construction industry works, and they were pretty taken aback. I don’t think they quite believed us about the struggle you have with defects, and over the two-year period they came round to our way of thinking about how the sector deals with things. I think there will be an attitude change; very much in the same way as when the Construction (Design and Management) Regulations 2015 were introduced. While any deaths or injuries on construction site are unacceptable, raising this to the fore, and the bar so much higher, the industry had to comply. There’s always complaints — on introducing any regulation — that it will destroy the industry or impact profits. However,” Phil Morrison added, “you’re talking about loss of life, and what price can you put on that?

“We might see something akin to a BREEAM-type regulation — where if the manufacturer’s product will be satisfying all these regulations, you can argue that you have a better, more investable, and more marketable, product? If that’s the standard you work to, I can quite easily see funders saying: ‘We want this anyway, and if you don’t incorporate it, you’ll fall further down the chain.’ I think the Act will change attitudes. People learn that standards have to be achieved. Let’s open that to the floor.”

Fewer design and build contracts?

Curtins’ Andy Buckley said: “The necessary behaviour change could take years, but we’re reverting to designing buildings properly upfront and then building them, as opposed to building while we design. Could we see fewer design and build contracts?”

Phil Morrison said: “I was going to make that point. We have a procurement route which is a design and build contract — essentially there for the contractor to take the employer’s design, finish it, and undertake the construction. The concern here is that if you hand over the design and construction to a contractor there to make a profit, he’s not going to be occupying the building or dealing with it. They call it ‘value engineering’, but they design the product down. If you’re having to do this right at the beginning, there’s less point having the contractor responsible for all the design. You may still want that single point of liability, but do you then need a contractor managing or dealing with the design?”

Andy Buckley said: “The implications there are on programme, which translates to cost as well, particularly if before Gateway 3 you’re making changes — something I haven’t come across yet. Has anyone else?”

Hive Projects’ Stuart Dalton said: “One of the challenges we’ve encountered is how difficult it’s been to determine the applicability of the HRB status for existing accommodation within a diverse estate, depending on the function and interconnection to adjoining buildings.
For live projects we’ve found it a real challenge to formally appoint a Principal Designer relating to the Building Safety Act, with almost a ‘merry-go-round’ of ‘That’s not me; we need to get someone else to do it’ mentality across multidisciplinary teams. Then you get this converged, and often confused, message between different parties as whether the building is a qualifying one. ‘It might be taller, but we don’t have sleeping accommodation’, or ‘It might be lower in height, but we’ve got interconnections’.” Stuart Dalton said there were two or three differing opinions on a project he is working on currently as to whether the building is or isn’t an HRB.

Across the board

Trevor Rogers of LABC said: “In terms of your Principal Designer and Principal Contractor, that’s obviously not HRB-related; it’s across the board, and we’re finding issues with duty-holders not wanting to take on the responsibility, and unsure of their role. As to mechanisms in the Act to change the measures relating to heights, storey numbers, and even different building uses, there is indeed provision for it, and it can be done, if the behaviours route doesn’t work. The Building Safety Regulator is looking at technical changes in care homes currently, with a consultation out for installing sprinklers into all such establishments irrespective of height — so you can make changes to technical standards, as well as via the legislative route.”

Andy Buckley said: “Linking with those two points, it’s about people understanding what connectivity means, because a facility can be structurally connected, or structurally independent, but touching, and part of the same estate. We’re finding challenges on existing healthcare sites where you have a large, complex high-risk building, connected to a sprawling estate that’s all single or two-storey. If we’re doing a refurbishment 200 metres away, is that connected to the high-risk building? We’d argue it wouldn’t be, but people are debating that.”

‘Access connectivity’

Phil Morrison explained: “If you go to the Act, it talks about the ‘access connectivity’, so if your access is through a fire door that’s normally closed, then you’re not connected, but if you have a free-flowing connection above ground, you would be connected. The current problem is that if you have four opinions, just come and ask me, and I’ll give you two others, depending on who’s asking.”

Steve Crow of Clarion said: “I guess it’s going back to the early concept stage of the building. In my experience, on large, complex projects such as a hospital involving several different multidisciplinary organisations, the more time you spend focusing on getting things right at concept stage, the more likely you are to achieve a project on budget, on time, and to the client’s quality expectations. For me, it’s all about creating a true partnering approach between the client and the design/construction team — think back 30-35 years to Sir John Egan, and the whole idea of partnering — to bring the whole supply chain together, working with an informed client to consider all the risks at the start, and then mitigating them, so that as you develop into the construction stage, you’re mitigating the risk. That concept of partnering still gets discussed, but I’m not sure it’s really properly evolved. I wonder whether others have a view?”

Hoare Lea’s Connie Campbell said: “Working within the building services sector — when designing services and the associated details, we’re seeing that now as an individual you have to sign your name, and that when you tell your client the building will be ‘satisfactory and compliant’, you must be confident it actually will be; the industry is becoming significantly more risk-averse. Even though the building may not meet the ‘high-rise building’ criteria, or it has fire doors and is separated from the HRB, some designers are more likely to now recommend that buildings should incorporate further fire management strategies, particularly when they feel legislation will likely change in future. As much as the client wants to save costs, it’s about making the right choice, i.e. best practice means we need to be designing safe buildings, even if the legislation doesn’t specifically stipulate something. For us it’s an education piece for us to try and sell this concept to clients and service management teams, and say: ‘Actually, we think this is the best approach.'”

Andrew Varley said: “From the private sector standpoint, design and build contracts are all about risk, and it all depends what expertise the team possesses from the client’s standpoint to be able to manage that. With traditional build, with a large team, and everyone being collaborative and doing all the upfront work, it’s great, but you don’t really know where your end-costs will be at that point. Where we’re doing work particularly within the NHS — and I think it needs a culture change back the other way — this is all about being ‘smart’, and doing the work at the beginning. So, you’re almost into a two-stage tendering process now that you need to do that design work, and traditionally everybody wants to pass on the risk. You then start paying for risk, so it becomes too expensive. It used to be a race to the bottom, and a case of trying to pass that risk on to another contractor. However, it needs to change; you’re going to have to partner to do that upfront design work and then the costs could rise. Effectively it’s design / build, but it’s not. You’re effectively building that design, but it’s a lesser element of design / build, working within value engineering — because everything’s driven on cost.”

Value engineering aspects

Andrew Varley continued: “Value engineering still needs to happen, but from the beginning, and must be something that meets regulations, because we’ve seen recently interpretation from contractors on what they see as value engineering, and they’ve got a big learning curve. They think they were doing it right, but can’t evidence this, and thus what was done yesterday can’t be done tomorrow.”

Andrew Varley said this scenario necessitated more time being devoted to the upfront design work. He said: “You can’t return a tender in three weeks, because there can be substantial work — especially if we’re talking about interconnecting to hospitals. Many NHS Trusts don’t really know what their estate’s like, and the condition of their buildings. They haven’t even got evidence that it’s compartmentalised correctly, and thus whoever goes in must upgrade. That’s the big challenge — who takes that risk? From a private sector standpoint, it lends itself to looking more at an open book agreement — where you either say you’re going to pay a lot because you’ve got to account for the risk, or arrive at a mechanism which says you’re going to pay for what you get.”

Evidence and gateways

Steve Batson said: “There are a couple of key points you raised we should discuss. In terms of the Building Safety Act, and the evidence and the Gateways you outlined, there are key obligations for Gateways 1 and 2 for the design team to ensure and evidence that the design process is developed, and the ‘unknowns’ are turned to ‘traffic lights’, to either close out the design intent — when they can be opened up in some instances in terms of refurbishment projects, or to have gone ‘green’, signifying that this is the design at Gateway 1 and 2.

“It’s about the emphasis on professional duty to ensure that this is done and evidenced, and that the reasons for change, and the necessary evidence, have been captured.”

Steve Batson continued: “At Gateway 3, the contractor is legally required to evidence and ensure they have done that, because if they make changes, they must evidence why. With an HRB and a non-HRB, the processes are the same in project delivery terms, but an HRB could stop a project, i.e. ‘gateway it out’, for 8-12 weeks. Similarly, on non-HRBs, if a design change happens down the line in that third gateway, it still causes a delay, because you must still ensure you have the evidence of compliance at the end of the job, which all must sign off. The client, professional team, and contractor, must sign off that you have done your duties under the Act, and those Gateways.”

Steve Batson added: “Also under the Building Safety Act — because of Grenfell and the associated cladding and fire issues — there is an onus on manufacturers to improve from a point of specification, and on us, as professional teams, to understand that what we are specifying, and what the client is buying, are clear, transparent, and evidential. We just need to drill into this a little more from a specification and manufacturing standpoint.”

Phil Morrison said: “The Act is not prescriptive on how the information is to be gathered, other than to say that it must be done electronically, and be readily accessible and regularly updated during the design, construction, and occupation phases. You will need to have all the information ready. Essentially, if the Fire Service turns up, they should be able to readily access the information electronically, or have access to it before leaving the fire station. That must be done. It’s not prescriptive of what kind of system you use; that remains to be settled. With every registered building over the last year or so, it will be interesting to see how much information they actually have, and how much they update it. With a building that is neither part of the NHS estate, nor public authority-owned housing, many of the residents may not be aware of the Building Safety Act, understand it, or even expect that the property or managing agent will be the party responsible.”

Dispute complications

Phil Morrison said he believed there remained ‘many issues still to be worked out’. He said: “One of the things I’ve found in is that when you get a dispute, and then look to obtain a full set of documents signed by all, it’s a miracle if you actually can. To be able to get a full set of O & M manuals with ‘as built drawings’ incorporated is practically unheard of, even if it’s in the list of practical completion documentation. So, having the information, and not getting the completion certificate, will be a game-changer.”

He added: “The other thing the Act is introducing is ‘professional competency’. Anybody in the industry will have to show their competency. It will no longer be enough to say: ‘I have taken my professional body’s course, and there’s a certificate on the wall.’ As a professional you’ll have to demonstrate that competence, as will your client, and everybody else in the chain.”

A change in thinking

Connie Campbell said: “Given the frequent difficulty in getting the full O & M manuals, we’re finding the importance of this is coming forward on projects when progressing through the Act’s gateways. Even just on the design side, before we even get to construction, we are having to confirm that details are approved, that we have suitable manufacturers, and, for instance, that we’ve got approved installation for the wall types; all that detail is coming to the fore. The risk of this is being pushed forward into design, so we are coming to a slightly different style of approach; it’s not design and build — it’s two-stage, i.e., ‘This product or solution is what we are using.’ That’s sometimes very difficult, because when you’re in those value engineering conversations later, if you design for a specific product that always carries an extra element of risk for delivery, there’s the question of whether you can find an alternative that will work and is approved. I think manufacturers are playing ‘catch up’. We’re finding that with products we’ve previously used, the manufacturers perhaps haven’t completed their updated tests, and are still waiting to get their certificates.”

Andy Buckley said: “I also think the skills shortage will come to the fore, with consultants not knowing how things are built, or designers not experienced in this area. Equally, maybe some contractors don’t know how to build any more? Thus returning to traditional forms of construction is positive.”