Judith Hackitt’s interim report following the Grenfell tragedy

Dame Judith Hackitt’s interim report following the Grenfell tragedy outlined major changes. But does the scale of the interventions match the gravity and widespread nature of the problem? Some of the industry reactions published in Health and Safety at Work.

A month on from the publication of Dame Judith Hackitt’s interim report into fire safety and building regulations, the sector has found plenty to digest. Behind Hackitt’s highly critical language and condemnation of the status quo, there are strong hints that her final report will recommend the creation of new legal roles to manage fire safety in construction projects; new tests of professional competence for fire risk assessors and other fire professionals backed by a registration scheme; and greater enforcement and sanctions of both the Building Regulations and the Fire Safety Order.

For a readership in health and safety, the report also contains strong echoes of the terminology and general approach to safety that Hackitt absorbed in her stint as chair of the HSE, and is now applying in a different regulatory arena. The report stresses non-prescriptive, outcome-based Building Regulations and the need for industry to take “ownership” of solutions, in a read-across from the HSE’s general approach to safety regulation, while the stress on accountable legal roles in fire safety also has parallels in the framework set by the Construction (Design and Management) Regulations.

But faith in “non-prescription”, rather than taking the opportunity to adopt an unequivocal ban on combustible materials on tall buildings, has attracted criticism. The chair of the Select Committee for Communities and Local Government, Clive Betts MP, has written to Hackitt asking her to reflect on MPs’ concerns on this (and two other issues related to the scope of her inquiry) before the final version of the report is published.

"The CDM Regulations are her background. They’ve also been quoted in several arenas as a model that would be needed."

Barry Turner, policy director, Local Authority Building Control

The select committee and other commentators were also sceptical of Hackitt’s suggestion that the construction industry should be encouraged to take ownership of compliance solutions under Building Regulations, given that many of the problems that have come to light since the Grenfell disaster – including around 300 high rise buildings with non-compliant cladding – arose from the industry’s reliance on its own “experts”. In this light, not everyone shares Hackitt’s faith that the construction sector can undergo the kind of “culture change” on fire safety she hopes to see.

Hackitt makes clear that her recommendations are aimed at “complex, high risk” buildings where there is the potential for significant loss of life, but recent major fires (see box, below right) show just how diverse a range of scenarios need to be covered by the future regulatory regime. With a need to overlay so many building types and ownership scenarios, are the review proposals robust enough?

Revisiting the review

One of the most pressing issues identified following the Grenfell fire was the urgent need to update Approved Document B on fire safety. Hackitt’s discussion of the Approved Documents (ADs) hints that her final report will go further, recommending changes to the wider suite of ADs that interact with fire safety – such as the specifications on noise, energy efficiency and structural integrity – and a rethink on the role of government and industry in managing and updating the documents.

Katherine Metcalfe, a senior associate in the regulation teams at Pinsent Masons, believes there will be considerable change: “I think we’ll see a massive simplification in the Approved Documents, they will be very slimmed down. The idea is that it’s then for industry to find the best way to make the building safe, and achieve the over-arching standards.”

But not everyone feels that the construction industry – even one that is going through “culture change” – should have this responsibility. “How exactly will that work? How do you practically achieve that, or control the process if the industry does take ownership?” asks Barry Turner, director of technical policy at Local Authority Building Control, which represents council building control departments.

And, nine months on from the Grenfell fire, Jonathan O’Neill, managing director of the Fire Protection Association, says that delays in rewriting AD B – as originally recommended by the coroner in the Lakanal House fire in 2013, and then shelved – are becoming intolerable. “Why are we still waiting? Even if a review started tomorrow, it would take two years.”

O’Neill points out that the Australian government, which previously was committed to updating its Building Regulations every three years, has now moved to annual updates in recognition of the fact that construction technology and materials move so rapidly.

Throughout the report, Hackitt refers to what she calls a new category of “complex, high risk”. However, Turner says that the Building Regulations already recognise a similar distinction, and that the new term may not be helpful. “It’s a term that has evolved from all the discussions. My view is that there needs to be a distinction between simple buildings and complex buildings, and high risk is one way of describing that. But do you label the whole building ‘high risk’, which might not be attractive, or do you give it a ‘higher risk assessment’?

Penalty charges

Most commentators agree that Hackitt has correctly identified a need for far greater clarity on fire safety responsibility during a building’s design and handover phases, with the language in her report containing clear references to the CDM Regulations. “That’s her background. It’s also been quoted in several arenas as a model that would be needed,” says Turner, mentioning the Construction Industry Council’s submission to the review.

O’Neill says that the FPA was among those giving evidence that clear lines of responsibility and accountability need to be created within project teams. “There’s no one taking end to end responsibility for signing things off. Where you’ve got a fire engineering approach, they would make sure that the design matches the built project. During the handover [of the building] from Building Control to the Fire and Rescue Service [FRS], single person sign-off would mean that the FRS could go back and say ‘what does this mean?’”

Turner agrees, pointing out that one current area of weakness is the critical handover of information from the construction project team to the building’s owner and/or occupier. “There’s a need for clarity on the kind of fire safety information required by the Building Regulations, and there’s no clear timetable for when it’s handed over, or who checks it. Is that the role of Building Control, or the Fire and Rescue Service?” he asks.

At Pinsent Masons, Metcalfe believes that the industry should be prepared to see the creation of new legislation that would create new legal roles – perhaps, following CDM, a Principal Fire Safety Designer and a Fire Safety Manager – with compliance becoming a duty under the Building Regulations. Other commentators, however, believe that Hackitt could press the industry and its professional bodies for the required changes without having to legislate.

Sanctions change behaviour

On sanctions for breaches of Building Regulations, under Section 35 of the Building Act, Hackitt wants to call time on a system that sees just a handful of prosecutions (by local authorities) each year. Although fines in theory are unlimited, they typically run at a fraction of the actual remedial costs of addressing the breach. Turner quotes one example where the works would have cost £30,000 to £35,000, but the fine was £3,000. “Essentially, it’s cheaper to go to court and to be found guilty than to put the job right. There need to be more effective sanctions – that could influence the number of prosecutions,” he says. The implication in the interim report is that the Sentencing Council would need to produce new guidance for magistrates’ courts.

However, the recommendation likely to have the widest impact on professionals in the sector is Hackitt’s call for new “competence” standards and registration schemes for a range of fire safety professionals. This comes with the added suggestion that professional bodies in the sector should set up and run such schemes.

Lukas Rootman, partner in the environment and health and safety team at CMS Cameron McKenna Nabarro Olswang, points out that Hackitt seems to have in mind the template of the Occupational Safety and Health Consultants Register (OSHCR), set up by the HSE as part of the government’s response to Lord Young’s 2010 report, Common sense, common safety. “The scheme was set up by Judith Hackitt, so possibly she likes the concept as a solution in another arena,” Rootman notes. However, with only 2000 professionals taking up voluntary registration – despite the fact that ten safety and professional bodies have backed the scheme – this suggests that OSHCR has failed to gain a grip on client’s choices.

O’Neill is also sceptical about the industry’s capacity to deliver a registration scheme, and how quickly its requirements could upskill the industry. “Hackitt is putting her faith in the professional bodies, but do they have the resources to pick it up? That gap in [staff and professional] resources won’t be solved quickly in my experience,” he says.He also makes a case for mandating the use of existing registers of fire risk assessors – of which there are currently three with UKAS accreditation for companies and two for individuals – rather than devising and marketing a new scheme from scratch. “The fire industry is quite advanced in pushing third party certification schemes, often pushed by the insurance industry. I’d have liked to see her more go down that route. We could see a new regulation [amending the Fire Safety Order] requiring clients to use third party accredited schemes.”However, O’Neill admits that not many employers currently insist on third party certificated assessors. “The law does not say this, and unless things are actually mandated it becomes difficult. A new regulation would solve the problem quite quickly, although there currently aren’t enough accredited firms and it could take the rest of the industry some time.”