Can the HSE resource the Building Safety Regulator?

With the Health and Safety Executive (HSE) already suffering pressure on its resources, Sally Hancock asks if it can support the creation of the new Building Safety Regulator.

This week, housing secretary Robert Jenrick announced the formation of the Building Safety Regulator, to be established as part of the Health & Safety Executive (HSE). It is a new post created as part of the Building Safety Programme, with the government describing the regulator as “the biggest change in building safety for a generation”, and a positive step towards improving the pace of safety enforcement.It is a natural progression in light of the risks residents of high-rise developments face; however, details of how this new regulator will be resourced and work in practice is scant.

Sally Hancock

With the Building Safety Regulator to be established as part of the HSE, we could expect the two bodies to share resources.

However, the HSE is already facing significant resourcing pressures. While the government is likely to extend the HSE fee for intervention scheme, which enables the HSE to recover their costs of investigating potential breaches of health and safety legislation to the new regulator, this currently does not cover all costs and there is evidence that revenue from this scheme is diminishing.

This raises the question of how the new Building Safety Regulator will be effectively funded and resourced, and clarity in relation to this is awaited.

The new regime is in response to the spate of recent fires in high-rise buildings, especially the tragic events surrounding Grenfell Tower. The measures will specifically give greater oversight of “the design, construction and occupation of high-rise buildings”, and the government has also set out consolidated advice for improved safety of at-risk developments and buildings – from guidance on fire sprinklers to extending the cladding ban to buildings under 18 metres.

Enforcement role

While currently the requirement to remove cladding is left to owners and developers of at-risk buildings, in theory it seems the government intends its new regulator will be responsible for enforcing its recommendations.

As part of his House of Commons announcement, Jenrick also revealed he will begin naming building owners who have not begun the process to remove unsafe aluminium composite material (ACM) cladding from their buildings; how effective this “name and shame” approach will be to encouraging developers to speed up their efforts to remove cladding remains to be seen, but it undoubtedly poses reputational risks.

Jenrick’s announcements represent a move to reassure residents up and down the country who may currently feel unsafe in cladded developments.

Until building safety legislation is brought forward by the government, the new Building Safety Regulator will exist in shadow form, with the former chair of the HSE, Dame Judith Hackitt, overseeing the transition.

Hackitt is also currently chair of the independent review of Building Regulations and fire safety, commissioned in response to the Grenfell Tower fire. Her report confirmed “the deep flaws in the current system” and the “need for a radical rethink of the whole system and how it works”.  The findings were damning, suggesting that the regulatory system was wholly inadequate while the guidance available lacked clarity. The report concluded that there was insufficient regulatory oversight and inadequate enforcement tools with penalties that were an “ineffective deterrent”.

The government accepted all recommendations in the report and set out an implementation plan to establish “a more effective regulatory and accountability framework, focused on keeping people safe, and a tougher oversight regime with stronger and better enforcement sanctions to prevent and punish wrongdoing”.

Those in the construction industry can therefore expect an overhaul of the current regulations and guidance, and a full technical review is anticipated.

That is to be combined with an even more robust enforcement approach that maintains a sharp focus on all aspects of the design, construction and maintenance of high-risk residential buildings. This will include greater scrutiny of the roles and responsibilities of duty holders to ensure building safety, and the establishment of a new role of “accountable person”, who it is envisaged will be legally responsible for the fire and structural safety of an occupied residential building.

Increased sentencing

There is also a strong indication that increased sentencing will be considered. All the measures go to support the government’s commitment to keep residents firmly “at the heart of the new system”.

Though the housing secretary expects the shadow regulator to be “established within weeks”, (and we can presume further detail will come before this) we are yet to see an indication of the precise remit of the Building Safety Regulator, and the particular powers it will be afforded.  It is therefore vital that construction, building and development firms receive clarity on the exact remit, resource and scope of the new regulator’s powers so that those within the industry can ensure safety standards (existing or new) can be met to keep people safe.

Notwithstanding this, the message is loud and clear from the housing secretary: compliance on matters of safety must be top of the agenda within the construction and building industry. 

Sally Hancock is health & safety partner at law firm BLM, and specialist in construction industry safety regulation.