Building Safety Act: Implications for FMs as construction clients

Paul Nash, Director of Paul Nash Consultancy Ltd, explains the responsibilities of the client as a dutyholder under the Building Safety Act and related secondary legislation

Facilities managers will be aware of the new dutyholder role of accountable person in connection with operating higher-risk buildings (HRBs) introduced by Building Safety Act 2022 (BSA). People in the role have a regulated duty to keep occupants safe and to provide a ‘Safety Case Report’ demonstrating how you are identifying, mitigating and managing building safety risks.

What you may be less aware of is that the BSA also affects a much bigger group of people: construction clients, i.e. persons for whom a project is carried out. This group is likely to include many more facilities and estates managers because it is not restricted to work on HRBs but includes any work where Building Regulations (BRegs) apply.

If you commission repair and maintenance work that is covered by the BRegs, you now take on new duties as a client and are subject to new requirements, with additional ones if the work relates to an HRB.

FOCUS ON COMPLIANCE

Although the end goal of the BSA and related secondary legislation is improved safety for occupants, the focus during design and construction is on tightening compliance to ensure that what is designed and built fully complies with BRegs.

The detailed procedural changes are best understood in relation to a handful of overarching themes identified as contributing to compliance. These are accountability, competence, project management, information management and deterrence.

ACCOUNTABILITY

The updated BRegs assign accountability for compliance by creating new duties that must be fulfilled by persons (i.e. individuals or entities) taking on formal dutyholder roles.

Although these roles have the same names as the dutyholder roles under the CDM Regulations – Client, Designer, Contractor, Principal Designer, and Principal Contractor – they are distinct and different, and of course carry different liabilities.

For total clarity, if you are the client, ie a person for whom a project is carried out, you should identify which of your service providers is doing what in appointments and articulate expectations regarding these regulated roles accordingly.

COMPETENCE

To be competent means having the right individual skills, knowledge, experience and behaviours, or for an organisation, having the organisational capability.

Evidence suggests that too many service providers in the past turned out not to be sufficiently competent and so you are now required to satisfy yourself that they are before you appoint them.

The responsibility is not all yours: other dutyholders have a reciprocal duty to refuse work that they are not competent to carry out.

Update your standard questions when appointing by asking for appropriate qualifications, current certifications, experience, and references as evidence.

PROJECT MANAGEMENT

All dutyholders now have a duty to cooperate with each other and to plan, manage and monitor their work so that it complies with all relevant requirements.

The client must make suitable arrangements for planning, managing and monitoring their project, and must ensure the allocation of sufficient time and resource to ensure compliance.

This will help your project to run smoothly and help you to maintain a good working relationship with the relevant building control authority. It is especially important for HRBs, where the building control requirements are more stringent.

INFORMATION MANAGEMENT

The flow of information in construction projects underpins everything and so has always been important. It is even more so now.

For HRB projects, the information management burden is particularly onerous. You must provide for the ‘golden thread of information’ and manage numerous other information requirements. These include comprehensive packages of information for building control approval by the new Building Safety Regulator, change control notices, and safety occurrence reports.

For all projects and in particular HRB’s, you should treat your regulated information exchanges as more than just ticked boxes. As well as being comprehensive, accurate and up to date, they should be well organised and clearly communicated.

This will ease your path through building control, and reduce the likelihood of delays, as well as ensuring that the responsible and accountable persons are able to discharge their duty to ensure the safety of occupants after completion.

DETERRENCE

A final factor underpinning the Building Safety Act’s strategy for improving compliance and, therefore, safety, is to increase the penalties for non-compliance. The relevant authorities’ regulated powers of enforcement have been considerably beefed up, with extended liability periods, stiffer fines, and, ultimately, criminal conviction and imprisonment for failures to comply.

FINAL WORD

The legislative changes, which came into force on 6th April, may take time to ‘bed in’, especially in connection with HRBs, but it is in the interests of society and the industry to make them work. We should never lose sight of why this change was needed and the responsibility we all have to ensure the public are safe and feel safe in their own homes and the buildings they visit in the future.

More client advice from CIOB, including a client guide, can be found at https://ciob.me/clienthelp