Weighing up the law - July/August 2018

Weighing up the law - July/August 2018

Laura Page explores the recently published Hackitt Review’s key themes and next steps

AS ALL readers will be aware, Dame Judith Hackitt was tasked with carrying out an independent review of building regulations and fire safety after the Grenfell Tower fire. 
 
The report proposes a new regulatory framework with three key parameters. Firstly, the framework will initially apply to multi occupancy, higher risk residential buildings of ten storeys or more. However, it suggests that many of the proposals should also apply to other types of high risk residential premises, such as care homes and university accommodation. 
 
There is cross industry agreement that it is right to focus on higher risk accommodation, where serious incidents are more likely to occur. However, several stakeholders, including the Royal Institute of British Architects and the National Fire Chiefs Council, consider that the scope of the changes ought to be broader from the outset, or quickly broadened. 
 
Secondly, the report proposes the formation of a new Joint Competent Authority (JCA), comprising local authority building standards, fire and rescue authorities and the HSE, utilising their respective skills. Services would be fully chargeable, comparable to the COMAH and offshore fee charging regimes. 
 
The JCA is modelled on the Competent Authority under COMAH, where the HSE and Environment Agency work together. There is broad support for this proposal, although some are of the view that there should be a new and distinct body, and others – such as the British Security Council – are concerned about the logistics of three already stretched public functions working together.
 
The third ‘key parameter’ is a mandatory incident reporting mechanism. This is based on the model used by the Civil Aviation Authority, where relevant senior duty holders are under a duty to report occurrences and near misses on a no blame basis. 
 
Failure to report is deemed a non compliance. Sanctions can follow, and outputs are publicly available. A different reporting mechanism is suggested for other relevant buildings. This links in with an overall theme of the report: that fire safety arrangements should be transparent and made available publicly. In particular, the duty holder at the occupation stage will present – at regular intervals – a safety case to the JCA, resulting in a publicly available rating. 
 
Notably, the report proposes that the new framework of responsibilities is structured in the same way as the Construction (Design and Management) Regulations 2015, in that the roles of client, principal designer, principal contractor and contractor all have distinct duties at each stage, and that the client and principal designer will sign off on building safety before occupation. 
 
Additionally, the JCA will be involved at key gateway points at which construction and occupation can be stopped if the JCA is not satisfied that suitable safety arrangements have been made. This will all be supported by a ‘golden thread’ of information, to be developed and maintained through the whole lifecycle of the building and consisting of various key information products: a digital record; a fire and emergency file; full plans; a construction control plan; a pre occupation fire risk assessment; and a resident engagement strategy. 
 
However, how will this vision become reality? The government agrees with the proposed changes, and that the current system is not fit for purpose. However, the responsible minister has pointed out that legislative change takes time, has invited responses as to how this could come about by July, and intends to make a more detailed statement in the autumn on how the government intends to implement the new regulatory system. In the meantime, the industry has been asked to get started on the cultural change which is required.
 
Laura Page is a solicitor in the health and safety team at Pinsent Masons