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Implications for the Fire and Rescue Service
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Does Hackitt cut it?
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Just ten months after commencing work, Dame Judith Hackitt published her Independent Review of Building Regulations and Fire Safety. At 156 pages long it is complex, detailed and speaks to the complexity of building fire safety, reports FIRE Correspondent Catherine Levin
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or the future, I would want to see a system that was simpler, streamlined, risk based and proportionate’. In her final report she sets out how this vision will work in practice but leaves plenty of questions unanswered along the way, with a lot of commentators disappointed that she did not go far enough. It is not possible to cover every aspect of the final report here. For example, regarding the absence of a recommendation to ban the use of combustible materials in cladding on high-rise residential buildings; there is detailed and much more expert analysis available elsewhere. In this article, the focus is on the specific impact on the Fire and Rescue Service. Creating a Dutyholder The critical recommendation in the final report is the creation of a dutyholder for building safety. This is a new concept in the fire and rescue world, but it is modelled on the Construction (Design and Management) Regulations (CDM Regulations) under the Health and Safety at Work
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Government & Politics
Act. This recommendation (and others described below) makes entire sense considering Dame Judith’s background; she was Chair of the Health and Safety Executive between 2007 and 2016. Dame Judith sets out the ‘overarching principle that responsibility for understanding and managing building safety must rest with those dutyholders whose building work create the risk. This is a significant culture change but it has the potential to help underpin a more modern, productive and safe building sector’. (p.32, para 2.11). The identification and responsibilities of the dutyholder then becomes critical to the Fire and Rescue Service in carrying out its role as adviser, enforcer and ultimately as responder when it all goes wrong. The dutyholder is so important in this report that it warrants 329 mentions. The dutyholder is someone with responsibility during the whole lifecycle of the building, covering procurement, design, construction, occupation, maintenance and refurbishment. The building safety regulatory framework diagram on page 157 shows the role of the dutyholder once planning
“The identification and responsibilities of the dutyholder then becomes critical to the Fire and Rescue Service in carrying out its role as adviser, enforcer and ultimately as responder when it all goes wrong” www.fire–magazine.com | June 2018 | 17
“It is not possible to provide all the answers now but what she has done is set out a detailed framework of how it can be achieved”
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The final report introduces the concept of Gateway Entry Points where the JCA is involved: the first being planning permission, then full plans sign-off, with completion as Gateway three.
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Legislative Impacts In the final report there are recommendations for a new regulatory framework that will have impacts on existing legislation: • Regulatory Reform (Fire Safety) Order 2005 (FSO) • Housing, Health and Safety Rating System (HHSRS) under the Housing Act 2004.
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permission is given. The report is less clear about who the dutyholder is in the design and construction phases (it uses the term client in many places),w but it is explicit about who the dutyholder should be once the building is occupied. ‘It is recommended that the building owner or superior landlord be the dutyholder during the occupation and maintenance phase with responsibility and accountability for building safety covering the whole building’. (p.53, para 3.14). The dutyholder is so important that it surely must require a legislative basis. Only by mandating the role in statute will it have the heft it requires to lead to meaningful change. It must be accompanied by substantial enforcement and sanctions if it is to be taken seriously. The specifics on this are not detailed in the final report but rest with government to consider and implement.
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Joint Competent Authority Going hand in hand with the dutyholder is the new Joint Competent Authority (JCA). This is another HSE inspired innovation. The new regulatory framework set out in the final report establishes a JCA comprising Local Authority Building Standards, fire and rescue authorities and the Health and Safety Executive to oversee better management of safety risks in these buildings (through safety cases, detailed below) across their entire life cycle. In the report, the JCA is referred to as the regulator. It implies a single body but that is not the case. There is a fundamental organisational difficulty with bringing these three organisations together: building control is managed by local authorities and there are over 350 of these in England; there are 45 fire and rescue authorities in England which in the main do not correspond with local authorities; and the HSE is a national organisation, at arm’s length from government. Clive Betts, Chair of the Housing, Communities and Local Government Select Committee, was equally puzzled. He asked Dame Judith about this on the day of publication: “You are combining accountability into one body, aren’t you?” To which she responded: “Competent authorities will come together to regulate buildings within scope and cover all aspects of that building.” They will work together as a single regulator, possibly at a regional level, but no single new entity will be created at a national level. When collecting evidence for the interim report, Dame Judith heard from fire and rescue services that they are often not listened to during the early phase of the building life cycle. By adding fire and rescue authorities to the JCA, they are sited firmly at the heart of the regulatory process – starting with the requirement for a local planning authority to consult with the JCA if a residential building is ten stories or more.
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The final report states: ‘This new [regulatory framework] approach will also remove the uncertainty and overlap of the Housing Act 2004 and the Fire Safety Order in relation to fire safety, ensuring that the dutyholder and regulator roles are clear and transparent’. (p.53, para 3.25). The final report identifies weaknesses in the way the Responsible Person operates under the FSO. It describes how the Responsible Person is not always identified when a building is handed over and often residents do not know about the Responsible Person function at all. By introducing the new role of the dutyholder who is responsible for whole building fire safety, it makes sense for it to embrace the functions of the Responsible Person. It would be helpful to have more clarity on whether the Responsible Person as defined in the FSO is to be subsumed by the dutyholder for the purposes of high-rise residential buildings or if it continues to exist alongside. The FSO also defines the Fire and Rescue Service as an enforcer. Under the JCA arrangements, is that enforcement role in high-rise residential buildings also to be subsumed? Again, some clarity would be helpful here. Separately, there is the issue of the fire safety element of HHSRS. In the interim report, Dame Judith wrote about an overlap and mismatch across the HHSRS and the FSO that does not assist a ‘holistic focus on the fire safety of all occupied buildings’. There is some commentary on HHSRS but it is brief and undeveloped. It is welcome that the approach is intended to remove uncertainty and overlap, as set out above, but the detail is lacking and through the implementation of this report, the impact on both these pieces of legislation should be set out in simple terms. Fire and Emergency File The final report introduces the safety case that will contain all the critical evidence and documentation about building fire safety throughout the lifecycle of the building. There is a ‘requirement on the dutyholder to present a safety case to the JCA at regular intervals to
To ensure that carrying out design, construction or refurbishment work on a building can provide a clear and comprehensive record of the fire strategy for the building and its residents (including those who are vulnerable). This will help to ensure that the future building owner has a proper record of key building safety aspects so that they can understand why the fire and other safety precautions have been provided.
proposal to government within one year’. (p.79, rec. 5.2). Where industry fails to do so, the final report suggests that government step in and do something instead. This, of course, includes competence to carry out fire risk assessments. She does say that when an enhanced level of competence for fire risk assessors is in operation, dutyholders would appoint someone who can demonstrate that level of competence. It is not quite a Corgi or Gas Safe regime, but it is a step in the right direction and builds on what is already going on in the broader fire protection arena. There is also a welcome mention about the Fire Risk Assessment guides published by government to support the implementation of the FSO. ‘It is also noted by the review that it would be appropriate for existing fire safety guidance for the Fire Safety Order to be reviewed and, where necessary, updated’. It is about time; these are over ten years old now and the approach taken with operational guidance should be applied here.
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check that building safety risks are being managed so far as is reasonably practicable. (p.13). Part of the safety case is the Fire and Emergency File (see extract above from p.36). This is one of four key information products that are ‘integral to greater dutyholder oversight on building safety’ and form part of the ‘golden thread of good quality information that will also enable future building owners to better manage their buildings safely’. (p.35, para 2.19). In practical terms it means that, for example, a preoccupation fire risk assessment is required to demonstrate that the building is ready for occupation. This is intended to improve the unsatisfactory current situation described below. ‘The fire safety information which should be handed over under Regulation 38 of the building regulations on completion of the construction of the building is often not present or is insufficient, which may mean that an adequate fire risk assessment cannot be undertaken. Even where information is passed on, fire risk assessments are frequently inadequate or not completed at all’. (p.53, para 3.20). Once the building is occupied, the dutyholder should nominate a building safety manager who would then be responsible for ensuring that fire risk assessments are carried out. The fire risk assessment then becomes part of the golden thread of information about building structure and materials required by the dutyholder. The point about the Responsible Person is particularly relevant here.
Initiated by the client, handed over, updated and finalised by the Principal Designer and Principal Contractor.
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Product setting out the key building safety information. The file will be initiated and then updated and ultimately passed across to the building owner (Appendix D sets out more detail9).
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The Fire and Emergency File
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Competence At a summit convened in January, Dame Judith brought together representatives of all the industry bodies involved in the lifecycle of high-rise residential buildings. She wrote in her interim report that she wanted to see professional bodies joining up to get a whole lifecycle approach to competence. She does not come up with the answer in her final report; rather she recommends that those bodies continue to work together to ‘present a coherent
Conclusion Being able to produce a report this long and this complex in such a short period of time is impressive. Dame Judith has assembled a highly competent team and taken a forensic approach to her work. It is not possible to provide all the answers now, but what she has done is set out a detailed framework of how it can be achieved. The next phase is to look at implementation, but it must be done so with an eye to providing more detail on the areas of the final report that are underdeveloped, like competence and the impact on the Fire Safety Order. For fire and rescue authorities, particularly those in urban areas, understanding the resource implications of taking on the functions under the JCA will be an important consideration. Getting implementation right will require a partnership approach between government and industry. Dame Judith has started the process and both sides must continue to listen to each other for lasting, meaningful change to take place.
“The next phase is to look at implementation, but it must be done so with an eye to providing more detail on the areas of the final report that are underdeveloped” www.fire–magazine.com | June 2018 | 19