Fellows Article Series

Building Safety (Part 3) – The Duty Holders

Following the release of Parts 1 and 2 of the series of articles in which Fellows delve deeper into the Government’s Building Safety Programme, in today’s article, our Associate Director of Project Management – Jonathan Russell – looks at the Duty Holder Regime, examining those with responsibilities under the Building Safety Bill (the Bill) and the issues associated with the new role – the Accountable Person. If you missed the earlier article in this series, it is available to view on our website here: https://fellowsconsultants.co.uk/2021/07/fellows-article-series-2/

Over the last month, the team at Fellows have been working with some of our Clients to assess the future impact of the Bill, and in particular the additional responsibilities it will place on the Client Team. Whilst we fully anticipate an increase in roles and responsibilities, this is not only limited to the scope of the fire engineer or re-emergence of the clerk of works, alluded to in earlier articles. One of the primary outcomes of the Bill, is the creation of additional powers that place duties on those who procure, plan, manage and undertake building work. These duty holders will be required to actively consider and manage building safety risks throughout the commissioning, design and construction process.

The CDM regulations identify and place health and safety duties on those who commission construction work and those who are key in the design and construction process. However, the Bill extends these duties further and any new resulting regulations will impose additional, building safety duties on these duty holders. Notably, the Bill also introduces two new duty holders – the Accountable Person and the Building Safety Manager – aimed at addressing one of the key findings of the Hackett Review, e.g., the lack of a single person or entity responsible for coordinating fire safety during construction and occupation.

  • ACCOUNTABLE PERSON – During the building’s occupation phase the primary duty holder will be the “Accountable Person”. The Accountable Person will have an on-going duty for the safety of those who live in the building and will need to register the building and apply to the Regulator for a Building Assurance Certificate before the building is occupied.
  • BUILDING SAFETY MANAGER – The Accountable Person also has an obligation to appoint a Building Safety Manager, who must have the organisational capacity and relevant skills, knowledge, experience, and behaviours to carry out their obligations. The Building Safety Manager can either be an individual or an organisation and will assist the Accountable Person in the day-to-day management of building safety including complying with the relevant statutory duties set out within the Bill and complying with all directions and statutory notices issued by the Regulator.

Whilst this is evidently a positive step in resolving some of structural failings within the industry, highlighted by Hackett, the creation of these new duty holders raises a number of essential questions around the application of the Bill and the safety regime moving forward.

Firstly, what will be required to successfully undertake this role with the skill and competence expected, and secondly, how will this be defined? It is our understanding that the government expects that the organisation designated as the Accountable Person (be it the Client / Employer / Developer / Housing Association / Local Government Organisation / Owner of the Freehold etc.) will have to demonstrate that they are qualified to act in this respect. In parallel, the government has also indicated that these duties cannot be delegated or contracted to others where these skills and qualifications do not exist. As such, we expect that these organisations will need to engage specialist in house expertise to ensure that their legal obligations for any one high-rise property or building is being appropriately discharged. This for the most part, is clearly a move away from the norm.

Whilst this may equate to taking on a specialist ‘in house’, this will also mean, ensuring that these individuals or organisations themselves have the knowledge, experience, and qualifications to be able to take on the responsibilities to undertake the work in the first place. This point around “competence” will become paramount in the years to come, as the government’s transition plan comes into force, and it is something we are considering in greater detail with our Clients.

One of the fallouts from Grenfell, was that the Independent Review of Building Regulations and Fire Safety identified the need for improvements in the competence of those working in the built environment. There are various routes for assessing and demonstrating competence that are not always clear, consistent, or sufficiently robust. In an effort to address this, the government is working with the British Standards Institution (BSI) to create a suite of national competence standards for higher-risk buildings. The BSI also developing the competence requirements for the Building Safety Manager. This will go some way to defining what is required of the duty holders, but it does not address the issue of having a labour force sufficiently skilled to be able to successfully undertake the role. The certification and training up of this workforce will take time.

The key question we have been putting to our Clients around this topic, is, are you prepared or ready to take on these new responsibilities? The transitionary nature of the proposed Bill means that at some point during a project or building life cycle, it will need to undergo a Safety Case Review and obtain a Building Safety / Assurance Certificate. That means that projects currently going through Planning are likely to be captured within Gateways 1 and 2 in the near future, but more notably, existing high-rise housing stock will need to be assessed and a measured put in place to ensure Building Safety. For those that are not yet prepared or have come to realise their future obligations, this could become a daunting prospect.

Whereas these new duty holders – Accountable Person and Building Safety Manager – are unlikely to become law until 2024, it is clearly vital that the industry makes suitable plans to ensure they have the skills and competency ‘in house’, to be able to protect the interests of those inhabiting their buildings as well as protecting their wider legal interests. Whilst it is clear many are embracing this change; it remains to be seen whether the pace of change will keep up with the reality of the situation.

Please look out for the fourth and final instalment of this series in the coming weeks, where we will look to debate the elephant in the room, COST. If you enjoyed the content of this article, then please do not hesitate to share with your connections on LinkedIn. If you think that we could assist you with this in any way, or would like to know more, then Fellows would be more than happy to discuss this further. Please contact – Jonathan Russell, Associate Director, Fellows Construction Consultants via email on jr@fellowsconsultants.co.uk.