The Building Safety Act 2022 – A Practitioner's Perspective

I was on vacation in the Philippines in May this year and came across a notice in the hotel; it read: "If you were waiting for a sign, this is it!". As I pondered these words I realised there was something quite prophetic about them, and it got me thinking about how fire-related policy is driven in the UK. From the Great Fire of London in 1666 to the Grenfell Tower disaster in 2017, each disaster representing a new sign, or event, from which to learn – but such a pity that we always have to learn retrospectively.

Please don't misunderstand me, the above is not an attack on policy-makers. I fully understand the retrospective nature of policy-making in this area and appreciate the political need to restore confidence after disasters such as that at Grenfell - though why the Lakanal disaster in 2009 was not enough to bring about the latest legislative changes still confounds me. No, for me, the need for change is absolutely clear, but as a professional working in the field of fire engineering, I do sometimes wonder if the retrospective nature of policy in this area, and the political impetus surrounding it, has a tendency to lead to disproportionate (and sometime impractical) outcomes.

In this article I make reference to five issues faced by practitioners and/or building owners. In putting forward these examples, I acknowledge that some are anecdotal because they are based on experiences from my own consultancy. Nevertheless, I put them forward on the basis that they are consistent with the feedback from a number of independent colleagues in the industry.

My first example comes from colleagues who are overseeing cladding work that involves the removal of isolated decorative panelling (a mere one square metre in area) from beneath the window of each floor of buildings no more than 9 storeys high. In their portfolio they have a range of building remedial work – some of which involves complete removal of cladding from very tall buildings. This scale of work is estimated to take more than a year to complete. In contrast, removal and replacement of small areas of cladding from a 9 storey high building will take around a couple of weeks and is pretty-much as minor as external wall remediation gets. Since the buildings are over 18m, they have to be overseen by the Building Safety Regulator (BSR). This is not a problem in itself, but we note that the same "cookie-cutter" approach (their term, not mine) is being used by the BSR to process and assess the work. So, whether the job is £15,000 or £15 million, precisely the same information requirements and assessment criteria is applied, without any reference to proportionality.

My second example is drawn from a letter received in April 2024 from the Minister of State for Housing, Planning and Building Safety. This was an open letter to building managers in which minister stated that he had been "...made aware of concerns regarding both the cost and type of documentation which is needed to create a safety case..." He asserted that practitioners were requesting the commissioning of new investigations and assessments to produce building safety cases instead of utilising existing documentation. My experience is that such documents invariably do not exist for a large proportion of buildings I come across, particularly older buildings constructed prior to the introduction of CDM regulations. Colleagues doing similar work across the UK report the same thing. Clearly, it would be extremely unusual for a new building not to have all/most of its Golden Thread documentation; but that is true for new-builds, not legacy/existing buildings. The fact is that the vast majority of HRBs in the UK are legacy buildings. Far too often, basic information such as floor plans, as-built drawings, structural assessments and the like, have been either lost, or were not produced, for many legacy buildings. Perhaps we should consider the possibility that there is a mis-match between those advising the Government on the theory of what "should" happen on the ground, versus people like myself advising clients on the reality of what "actually" exists on the ground.

My third example focuses on the new Building Safety Regulator (BSR) who has numerous responsibilities for higher risk buildings. The number of buildings for which the BSR has responsibility is huge. I read somewhere that there are approximately 42,000 buildings taller than 18m in London alone. There will, of course, be significant numbers of HRBs in other major cities, such as Birmingham and Manchester. Each HRB is required to have a building safety case (i.e. information that identifies the building's safety risks and explains how those risks are being managed), and each one needs to be checked and assessed by the BSR. On top of this, the BSR regulates care homes and hospitals during their design and construction phases. And on top of this, the BSR is responsible for raising safety standards and improving the competence of professionals in the construction industry. When one thinks about the numbers of buildings and the scope of the BSR's responsibilities, one wonders how much resources the BSR will need to carry out all of its functions in full and, indeed, whether the required level of competent staff resource even exists in the UK.

My fourth example relates to the lack of understanding that appears to exist among many identified as having responsibilities under the legislation. The complexity of the legal language, and the broad scope of its requirements, present significant challenges for building managers. The truth is, many building owners are left confused about what they need to do. Like rabbits caught in the headlights, many are frozen into inaction. The number of building owners I come across who are only just starting to wake up to their responsibilities leaves me more than a little concerned, given the importance of this issue. However, I can sympathise with their situation. From their perspective, the level of scrutiny required under this new legislation is very new, necessitating a steep learning curve. There are some clear implementation challenges for building owners, including resource constraints and the need for specialist knowledge. Professionals, like myself, need to quickly get involved in filling that knowledge gap.

My final example considers Government guidance; in particular, guidance on the assessment of external walls, which has evolved over time as problems associated with certain types of cladding became apparent. Today, that guidance has culminated in a document known as PAS 9980 - an important development for anyone involved in our industry. For lay-people, the document has effectively become a bible that must be followed rigidly. In contrast, professionals like myself see the document as important, but only to a point, because so much is left to the discretion of the fire engineer. The result is that recommendations for remedial work can vary hugely from one engineer to another. In the end, clients are effectively left with a lottery, hoping they haven't engaged a "risk-averse" fire engineer. Giving such wide discretion to professionals is a two-edged sword because whilst there are benefits, there are also clear dangers - in particular, that of client uncertainty as they consider the financial implications of recommendations from one engineer to another. When clients receive vastly different assessments from equally qualified professionals, it starts to raise questions about the qualifications of those engineers and the reliability of the guidance– client questioning of this nature is not helpful to the industry. Ultimately this could lead to an erosion of professional trust and loss of confidence in the guidance. I am conscious that my statements here could be read as a call for prescriptive guidance, but I want to be clear - that is not what I am suggesting. I am merely pointing out a potential weakness associated with current guidance.

The examples provided above are not intended to be a detailed account of the issues, nor do they represent all of the issues being faced; they simply provide a flavour of the current issues. Now, it would be very easy for professionals to complain about these (and other) issues but, in my view, that would be to make light of some very complex and inextricably linked technical, legal and political issues. So far, policy has been led (quite rightly) from the top down. I have no doubt that some form of bottom up engagement has been undertaken, but now, if the Secretary of State and civil servants will permit, it may be time for practitioners to provide relevant and realistic bottom up advice to ensure accurate feedback is being provided to ministers and policy writers. I am well into my fifties now and, in my experience, we are in the bow wave of significant change, which will become less volatile the sooner effective two-way dialogue can take place. Speaking to building owners, as I do day-to-day, there is clear need for an expedient suppression of that bow wave.

Dialogue with Government is needed to talk through these, and a few other, issues. At the same time individuals identified in legislation as the Principal Accountable Person (PAP) need urgent assistance. In my view, there is a clear role for professionals, like myself, to step up to the plate and do what is necessary to oil the wheels of this complex machine we know as the Building Safety Act 2022. This is one of the reasons we at Vemco Consulting have developed a bespoke web-based portal (see here https://youtu.be/A1-GURdAmbk) designed to support our clients in meeting their responsibilities under the new legislation. With their own personal login, each of our clients can input Golden Thread documents for their building(s), manage information relating to resident engagement policies and processes at the building(s) and view risk profiles so that their building safety case can be developed.

It isn't a requirement that we wait for the next sign, or event, in order to take action. So over the coming months, we will take steps to engage with the Building Safety Regulator to further develop our portal (see here https://youtu.be/A1-GURdAmbk) for the benefit of our clients and, most importantly, the people who use their buildings. My very clear hope is that Government representatives will see merit in further discussions on the issues raised above.

Notes to editor

The Building Safety Act 2022 represents a significant change to existing building regulations and provides clarity on how residential buildings should be constructed, maintained and made safe. Three new bodies have been created to oversee the new regime; namely: the Building Safety Regulator, the National Regulator of Construction Products and the New Homes Ombudsman. Government intends for the new legislation to bring about better managed, high quality buildings so that residents can enjoy safer homes.

About the author: Basil Jackson is the Managing Director of Vemco Consulting Ltd, a consultancy specialising in the delivery of specialist engineering services including fire engineering, highways and transport infrastructure. He is a chartered fire engineer, chartered civil engineer and chartered building engineer.